(Given orally at the hearing and subsequently revised)

1. This is an application under section 82 of the Planning and Environment Act 1987 against the decision of the council to grant a permit. The purpose of this Practice Day Hearing was:
   • To consider the future conduct of the proceeding.
   • To consider whether the application should be struck out.
   • To consider the issues raised in VicRoads Statement of Grounds dated 3 June 2011.
2. The applicant/objector, Mr David Hollibone, was not able to be present at the Practice Day Hearing. The merits of his application were not considered. Rather, there was a legal issue to be determined, which was whether any permit was required for the proposed development of the subject land for a public toilet. If no permit is required, then Mr Hollibone has no right of review and his application must be struck out.
3. The subject land is in a Rural Living Zone and subject to a Wildfire Management Overlay under the Northern Grampians Planning Scheme. The land is owned by VicRoads and abuts the Western Highway. The land has been declared as a road under the Road Management Act 2004.
4. Until twelve months ago when VicRoads acquired the property, the land had been used as a roadhouse. The roadhouse has since been removed. VicRoads propose to construct a public toilet on the land and use the land for carparking associated with a rest area for highway users.
5. Under the Rural Living Zone, road is a section 1 use.
6. Normally, a permit would be required for buildings and works within 30 meters of a road zone category 1[1]. However, under clause 62.02-2 a permit is not required for public toilets unless specifically required by the planning scheme. Clause 62.02-2 provides:

Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works does not apply to:

Street furniture including post boxes, telephone booths, fire hydrants, bus shelters, shade sails, traffic control devices and public toilets.

This does not apply if a permit is specifically required for any of these matters.

1. There is nothing in the provisions of either the Rural Living Zone or the Wildfire Management Overlay, or elsewhere in the planning scheme, that specifically requires a permit for a public toilet. This contrasts, for example, with provisions in the Urban Floodway Zone[2] and the Heritage Overlay[3], which do explicitly require permits for public toilets and, street furniture and roadworks.
2. Accordingly, I find that no permit is required to construct or carry out works for the proposed public toilet. Similarly, I find that no permit is required for works associated with the carpark/rest area. I find that such works are categorised as roadworks, which are also exempt from the need for a permit under clause 62.02-2.
3. As a result of no permit being required there are, therefore, no grounds for Mr Hollibone to make this application for review. In fact, the permit purported to be issued by the council is entirely unnecessary. I will therefore strike out this application for review on the grounds that it is misconceived.

[1] Clause 35.03-4 Northern Grampians Planning Scheme. The Western Highway is within A Road Zone Category 1 and the proposed toilet is within 30 meters of the highway.