Victorian Civil and Administrative Tribunal|2015-08-03

The Applicant has submitted that in the circumstances of this application, the objectives for a fair and orderly planning outcomes enunciated in the P&E Act are relevant and support a case for granting an extension. I have touched on these circumstances already in these reasons. To summarise, they amount to a case that in granting the permit and previous extensions when matters of risk from the refinery were or should have been known to the Council, it would now be unfair to penalise this Applicant when the same policies remain in place. There is also the situation of how far the Applicant has advanced the development in good faith believing the permit to have been enlivened as well as the considerable financial stress the lapse of the permit would cause.
To grant an extension of the permit in these circumstances would it is submitted accord with the notion of a fair planning outcome.
I have sought to acknowledge the circumstances of this application and in doing so I also have sought to acknowledge why the Applicant may seek what would seem to be fair outcome. However I must also take into consideration that the objectives of planning are far broader than matter of fairness. The objectives of planning in Victoria include amongst others:

to provide for the fair, orderly, economic and sustainable use, and development of land;

to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

To facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e) [of section 4(1)];

to balance the present and future interests of all Victorians.

Taking such objectives into account I cannot consider the Applicant's plea for fairness in isolation from other objectives. In so far as one person's position for fairness might be brought forward in this case I must also consider and balance the needs and fairness of the decision for the broader community. These needs include securing and facilitating a pleasant and safe living environment. I cannot set aside such objectives for the benefit of one party. As much as the Applicant has sought fairness in this case, those who may reside in any future development that might occur on this land deserve for these objectives to be upheld.
Thus I cannot set aside the potential risks identified with this site and the fact that such matters may be reason that a fresh permit would not be granted. As a matter of balancing fairness and orderly planning to the wider community, such matters need to be tested.

It follows from my reasons that a very real and substantive issue has arisen about the appropriateness of the previously approved development in proximity to the Altona Refinery and the associated risks of this facility on human life. The matters bought o my attention pose the possibility that if a fresh permit application were made no permit would be granted. Such a possibility should be tested when having regard to the objectives of planning in Victoria, not withstanding the circumstances that have led to this application.
It follows that I shall affirm the decision of the Responsible Authority and direct that no extension be granted for permit PA 1021230.

[1] The council had advised a date of 7 September 2014, however it did not dispute this date and nothing materially turns on the discrepancy.

[2] The consent of a council made under s.29A of the Building Act is made on the basis of that council is acting as a responsible authority under the Planning & Environment Act 1987. While this is the case, the jurisdiction of a council to make this decision is through the former rather than the latter act.

[3] Set out in a letter dated 12 January 2015.

[4] WSV1331/01/03.10. WorkSafe Victoria, first issued 7 April 2010.

[5] These include Shell Company of Australia v Hobsons Bay CC & Ors (includes Summary) (Red Dot) [2012] VCAT 1184; VJA Consultants Pty Ltd v Hobsons Bay CC & Ors [2012] VCAT 1846.

[6] Kantor v Murrindindi Shire Council (1997) 18 AATR 285.

[8] Peninsula Junction Pty Ltd v Mornington Peninsula SC [2013] VCAT 2169 at [9].

[11] Clauses 10, 11 and 15 within the SPPF.

[12] A period of two years applies under section 68(1)(b) if no time limit is specified in a permit.

Environment Act 1987

JB & DP Milgate Property Pty Ltd v Hobsons Bay CC [2015] VCAT 1167 (3 August 2015)

Kantor v Murrindindi Shire Council (1997) 18 AATR 285; Peninsula Junction Pty Ltd v Mornington Peninsula SC [2013] VCAT 2169; Shell Company of Australia v Hobsons Bay CC & Ors (includes Summary) (Red Dot) [2012] VCAT 1184; VJA Consultants Pty Ltd v Hobsons Bay CC & Ors [2012] VCAT 1846.

JB & DP Milgate Property Pty Ltd v Hobsons Bay CC [2015] VCAT 1167

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (1)

Cases Cited (2)

JB & DP Milgate Property Pty Ltd v Hobsons Bay CC [2015] VCAT 1167 (3 August 2015)