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[2001] VCAT 2009
mixed. The Council’s decision was varied. The Council was directed to issue a permit for specified works and up to 11 unregistrable movable dwellings, subject to conditions. The Tribunal declared that an...
The Tribunal decided that placing the cabins on the Crown land required a planning permit, even though the cabins were made elsewhere and could rest on blocks. It found that the site had a long-established camping-ground use protected by existing use rights, but that the proposed physical works still needed permission. The Tribunal approved a reduced proposal of 11 cabins, subject to conditions, because it considered that the modified development was supported by relevant tourism and coastal policies and would not cause unacceptable coastal or neighbourhood impacts. It refused to order the removal of two cabins already installed because they were included in the approved layout and the Tribunal considered removal unnecessary.
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2,586 words · generated 02/10/2026
The Victorian Civil and Administrative Tribunal dealt with three related planning proceedings concerning Marengo Camping Ground, on Crown land at 15 Marengo Crescent, Marengo. The land comprised parts of two temporarily reserved parcels, one reserved in 1965 and one in 1879 [4]-[6]. It was managed on behalf of the Minister by the Apollo Bay Foreshore Committee of Management, and the James held a lease entered into on 30 November 1998 [5]-[6].
12 cited instruments linked from this judgment.
The first proceeding was John King and others’ review of the Council’s decision to grant a permit for upgrades to the existing camping ground. The second was the Council’s application for a declaration about whether placing an “unregisterable” or unregistrable movable dwelling on the land required a planning permit. The third was the objectors’ application for an enforcement order seeking removal of two cabins and restoration of areas excavated for them [1]-[3].
The permit proposal was broad. It included upgrading the amenities block, improving electricity and plumbing, firefighting works, landscaping, a playground, a sign, a camp kitchen and BBQ, a spa, roads, and up to 21 tourist cabins [21]-[22]. The central legal question was whether the camping ground use and proposed additions could proceed under the planning scheme, and whether cabins placed on the land required a permit.
The Tribunal’s orders produced three distinct results. It varied the Council’s decision and directed it to issue a permit for specified works, including no more than 11 unregistrable movable dwellings in locations shown on the approved plan [Order, 1999/083391]. It declared that an unregistrable movable dwelling is a movable building under the scheme and that placing one on land is carrying out works [Order, 1999/096627]. It refused the enforcement application seeking removal of the two existing cabins [Order, 2000/006736].
The permit was subject to detailed conditions. These included endorsed plans, muted and non-reflective materials, planting no higher than four metres, stormwater discharge requirements, connection to the Apollo Bay sewerage system, a four-metre setback from a boundary in separate ownership, limits on unit height, baffled lighting and a three-year completion period [Order, 1999/083391]. The result was therefore not approval of the initial 21-cabin design without change. The Tribunal considered the initial number and siting too visually dominant and reduced the number.
The Tribunal first addressed whether it could review the Council’s decision, given the applicants’ argument that the permit application had been withdrawn. It relied on clause 62 of Schedule 1 to the VCAT Act, which allowed it to determine a planning proceeding despite a failure to comply with an enactment and to disregard that failure where the interests of justice supported doing so [17]-[18]. The objectors had participated as parties, and the Tribunal considered it just to hear the planning issues.
There were also arguments about the Crown land lease, the 1879 reservation and the timing of the Minister’s coastal consent. The Tribunal concluded it lacked jurisdiction in these proceedings to determine whether the lease was valid or to review the Minister’s consent decision [39]-[40], [53]. It treated the written consent accompanying the application as sufficient for the Council to consider the permit application [58]-[63]. It also identified an alternative: even if consent had been out of time, it could disregard the failure under clause 62 of Schedule 1 to the VCAT Act if it considered that appropriate in the interests of justice [62]-[63]. This did not amount to a finding that the lease was valid or a general ruling that the consent process complied with every statutory requirement.
On existing use, the Tribunal characterised what was happening on the land by reference to the actual purpose of the use, rather than relying only on a label in the planning scheme. It found the relevant use was a “camping ground” [65]-[72]. The site had been used for camping over a long period, with substantial improvements to roads, amenities and services by 1984 [69]-[72].
The Tribunal then considered the zone’s conditions. The relevant as-of-right use conditions could not be met because the land manager did not fall within the categories specified in the zone, and the use was not covered by an incorporated plan [90]-[99]. It concluded the use was prohibited under the zone provisions, so the permit applicants needed to rely on existing use rights [97]-[99].
Clause 63.11 was important to that conclusion. It provided a way to establish an existing use through 15 years’ continuous use, subject to exceptions such as a court or tribunal decision that the use was unlawful, or a clear written direction from the responsible authority requiring it to cease for non-compliance [81]. The Tribunal found at least 15 years’ continuous camping-ground use and no relevant decision or written direction [86]. It read “lawfully” in this planning context as referring to planning compliance, not the lawfulness of land tenure arrangements [87]. This was the Tribunal’s interpretation of the scheme in this case, not a determination of the lease’s validity.
The placement issue turned on statutory definitions. The scheme defined a movable building as a structure, other than a tent, caravan or vehicle, designed to be moved more than once [119]. The Tribunal found the cabins fit that description [120]. The PE Act definition of development included placing a building on land, while works included changes to the natural or existing condition or topography of land [121]-[122]. The Tribunal therefore concluded that placing a cabin on the land was itself works, whether the cabin was on concrete blocks, anchored, connected to services or placed without excavation [125]-[127]. This reasoning did not depend on the cabins being constructed on the site.
The Tribunal then assessed the permit merits under the scheme’s decision guidelines, including policy, the zone, coastal effects, design and amenity [128]-[132]. It read the Victorian Coastal Strategy as a framework to be applied as a whole. In its view, the Strategy addressed ecological sustainability and protection, but also direction about suitable locations and where development should occur [143]-[146]. The Coastal Action Plan’s recommendation for formalised camping at Point Hayley and the Marengo Camping Reserve supported the site’s role as a location for camping [149]-[152].
The Tribunal found the proposal would not have a significant, permanent negative effect on coastal ecology or marine processes. It considered the site’s history of quarrying, camping and nearby urban development, and the location of the proposed works away from more sensitive coastal areas [154]-[156]. It nevertheless considered visual character and siting important. The proposed 21 cabins could dominate the exposed site, and low-level planting might not sufficiently soften their impact. It reduced the proposal to 11 cabins and specified their locations [164]-[166].
For neighbouring amenity, the Tribunal acknowledged that the foreground view from nearby homes would change, but found the long-distance panoramic views would not be significantly affected. It considered the change to the foreground relatively minor and not sufficient to justify refusing the permit [171]-[173]. It also considered improved site management and maintenance likely to reduce some existing amenity impacts [174]-[176].
The judgment records the planning scheme and statutory provisions as they stood in the proceedings. It does not provide a comprehensive account of later amendments or subsequent case law, so a “before and after” comparison must be limited to the specific legal position the Tribunal explained.
Before the decision, the parties disputed whether placing a cabin that had been constructed elsewhere amounted to works requiring a permit. The Council and permit applicants argued that the cabins were merely placed on sites and that any permit requirement depended on excavation or other physical works [111]-[117]. The Tribunal rejected that distinction for these cabins. It treated their placement as development and works under the cited definitions, even without excavation [121]-[127]. The declaration therefore clarified how the relevant scheme provisions applied to these movable dwellings.
On existing use, the Tribunal applied clause 63.11 to continuous use for more than 15 years. It stated that a use might establish an existing use right even if it did not comply with the scheme during the relevant period, unless one of the clause’s specified exceptions applied [81]. It also drew a distinction between planning non-compliance and issues of land tenure or other restrictions, concluding that “lawful” in the relevant existing-use provisions concerned planning law [82], [86]-[87]. The judgment does not establish that every breach of a non-planning requirement is irrelevant in every context. Its conclusion was tied to its reading of the clauses and the facts before it.
The decision also illustrates the relationship between an existing use right and the need for permission for buildings and works. The Tribunal found the use could continue through existing use rights, but that clause 63.05 still required a permit for buildings and works, and that other scheme requirements continued to matter [99]-[100]. The existing use finding did not itself authorise the cabins or the proposed physical changes.
For coastal planning, the Tribunal did not treat conservation policy as an automatic bar to development. It read the cited strategy and local policy materials together, including their objectives of protecting coastal qualities and directing appropriate development to suitable locations [143]-[152]. Its conclusion depended on its findings about this site, the proposal’s design and location, and the modified cabin numbers [153]-[166]. The judgment should not be read as a general rule that tourism development in coastal areas is acceptable whenever a strategy identifies a broad activity node.
At [66], the Tribunal adopted the question of what the site was used for “according to ordinary terminology.” In plain English, the label is determined by the actual purpose being served, not by a fine-grained inventory of every activity or facility. The Tribunal applied that approach to characterise the site as a camping ground [65]-[72].
At [81], clause 63.11 is set out as allowing an existing use right to be established through 15 years of continuous use, even if the use did not comply with the scheme, subject to the clause’s stated exceptions. In plain English, long-running use could be protected under the scheme unless the specified enforcement or decision events had occurred.
At [87], the Tribunal stated that “lawful” in the existing-use provisions related to lawfulness in planning terms. In plain English, it treated planning compliance as the relevant inquiry for the existing-use question, rather than deciding whether the lease or other tenure arrangements were legally valid.
At [125]-[126], the Tribunal held that “the mere placement” of the cabins on the land amounted to carrying out works. In plain English, moving a cabin onto a site can itself trigger the scheme’s works-permit requirement, even if the cabin is manufactured elsewhere and rests on blocks.
At [145], the Tribunal said the coastal strategy was “intended to be applied in its entirety.” In plain English, it considered protection and sustainable use alongside planned locations for tourism and development, rather than treating one policy objective as automatically overriding all the others.
At [165], the Tribunal explained why it required fewer cabins and specified their location: it considered reducing numbers and increasing separation preferable to relying only on revised landscaping. In plain English, the Tribunal considered the built form itself needed to be changed, not just screened.
The decision is most directly relevant where a planning scheme requires permission to construct a building or carry out works, and a movable dwelling or cabin is brought onto land rather than constructed there. The Tribunal’s reasoning focuses on the legal character of the structure and the act of placing it on the site. Under its approach, arguments that a cabin is unregistered, movable, supported by blocks or installed without excavation do not necessarily avoid a permit requirement [119]-[127].
It is also relevant to existing use disputes involving a long-established activity that does not fit comfortably within a current zone’s as-of-right category. The decision shows the Tribunal characterising use by its actual purpose, then separately considering whether the zone conditions are met and whether existing use rights are available [65]-[72], [90]-[99]. The duration and continuity of use, and whether a court or tribunal decision or written direction occurred, were material to the clause 63.11 analysis [81], [86].
The coastal-planning aspect is fact-sensitive. The Tribunal considered a site with a substantial history of human use, an existing camping-ground function, relevant tourism policies, a local recommendation for formalised camping, and proposed works it considered removed from sensitive areas [147]-[156]. It also relied on design changes, including reducing the number of cabins and controlling their locations, to reach its planning conclusion [164]-[166].
The judgment is less directly informative where the proposed structure differs materially from the cabins considered, where the scheme’s definitions differ, or where the site has different environmental characteristics or policy designations. It does not decide whether all movable structures are buildings, or whether all placement works require permits under every planning scheme. Its declaration is expressly about an unregistrable movable dwelling that meets the scheme’s movable-building definition [119]-[127].
The supplied judgment does not identify any later court or tribunal decisions that applied, followed, distinguished or rejected its holdings. It therefore does not support a claim about the precedent’s subsequent judicial treatment.
The decision itself refers to earlier authorities in explaining its reasoning. It cited Shire of Perth v O’Keefe for characterising an existing use by its purpose in ordinary terminology [66]. It referred to Norman v Gosford Shire Council, Rockdale Municipal Council v Clark and Nunawading CC v Harrington in connection with the view that introducing cabins could be an intensification of an existing camping-ground use rather than a change of use [73]. It distinguished Royal Park Protection Group v Urban Camp Melbourne Cooperative because that case concerned permanently reserved land, whereas the Marengo land was temporarily reserved [79]-[80]. Those references describe the reasoning available to the Tribunal in 2001; they do not establish how later courts have treated this VCAT decision.
The supplied reasons do not resolve the legal validity of the lease. The Tribunal expressly said it lacked jurisdiction to determine that question [39]-[40], [63]. It also did not determine whether the original Ministerial consent was given within the statutory timeframe. It accepted the consent for the planning proceeding and relied alternatively on the VCAT Act’s power to disregard a failure [53]-[63].
The decision’s treatment of “lawful” for existing use purposes was based on the Tribunal’s reading of clauses 63.01 and 63.11 and the planning context [81]-[87]. The judgment does not comprehensively determine how every non-planning restriction affecting Crown land would interact with an existing use claim in another case.
The reasons also leave questions about the application of the placement reasoning to other objects. The Tribunal treated these cabins as movable buildings under the scheme definition and found that their placement changed the existing condition of the land [119]-[127]. Different structures, different statutory definitions or a different scheme might require separate analysis.
Finally, the merits decision depended on the approved layout, the reduction to 11 cabins, conditions governing height, materials, lighting and landscaping, and the site-specific policy evidence [133], [164]-[166]. The Tribunal’s findings on coastal effects and neighbourhood amenity are therefore not a general assessment of cabin development on coastal Crown land. The source supports only the outcome on the proposal as modified and on the evidence recorded in this judgment.
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Section 82 Planning & Environment Act 1987 - Colac Otway Planning Scheme - Public Conservation & Resource Zone - Caravan Park and Camping - Coastal Crown Land - DNRE not public land manager under as of right conditions - use prohibited under zone - existing use rights - Camping ground - upgrading of facilities - supported by Tourism Policy - Victorian Coastal Strategy - policy support for preferred location - no negative impact on coastal ecology or marine processes - no impact on panoramic views - no loss of amenity.
Section 61(3) Planning and Environment Act 1987 - consent of Minister accompanying application sufficient for compliance with section.
Section 149A Planning & Environment Act - placement of cabins on land - unregistrable movable dwellings - defined as movable building in planning scheme - placement involves development - change of existing conditions - within definition of works in Act -placement on land the carrying out of works - permit required
Section 114 Planning & Environment Act - two cabins placed on land - determination to issue a permit - exercise of discretion.
1. The decision of the Responsible Authority is varied.
2. The Responsible Authority is directed to issue a permit to construct a building or to construct or carry out works under clause 63.05 Colac Otway Planning Scheme to the existing camping ground at 15 Marengo Crescent, Marengo in accordance with the endorsed plans including the placement of 11 unregistrable movable dwellings on the land, renovation of the existing amenities block, installation of a children's playground, installation of a sign, construction and installation of a BBQ and Camp Kitchen, installation of a Spa/Hot Tub and works generally required for the connection of the camping ground to three phase electricity supply, plumbing and installation of a dedicated water line for firefighting subject to the following conditions:
1. Before the development starts, amended plans must be submitted to and approved by the responsible authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and 3 copies must be provided. The plans must be generally in accordance with the plans substituted at the hearing of the Victorian Civil and Administrative Tribunal on 15 May 2001, (identified as Plans prepared by Chris Dance Land Design Pty Ltd (4sheets) drawing no's 00/824/LA01, LA02, LA03, and LD4, Plans (3 sheets) of the existing (units 1 and 2) unregistrable mobile dwellings 04/2000, Plans (4 sheets) Orbit Solutions "Alterations to Existing Amenities Block and new Kitchen Rotunda" dated February 00 drawing no's A1, A2, A3 and A4, existing conditions and demolition plan drawing No. A1, ground floor plan drawing no. A2 and east elevation plan drawing A3 date Feb 00 of Orbit Solutions, Chris Dance Land Design Pty Ltd Landscape Concept Plan, the Vegetation Management Plan (the plan so described in the Applicant's "Tender Proposal"), figure 1.3 children's playground brochure, drawing A4 date Feb 00 of Orbit solutions, floor plans and elevations (three sheets) dated APR, 00 prepared by Shannon and Shannon Planning and Design Consultants), but amended to show:
(a) A maximum of eleven (11) unregistrable movable dwellings (excluding the manager's residence) each located on the site generally in accordance with the plan attached to this Order.
(b) A schedule of colours and materials for all buildings and structures approved under this permit, incorporating muted toning and non reflective materials.
(c) A notation on the landscaping plan that planting is to be maintained at a maximum height of 4.0m.
2. All run off from stormwater, including overflow from water storage, shall be taken to a legal point of discharge to the satisfaction of the responsible authority.
3. All the proposed buildings and unregistrable movable dwellings shall be connected direct to the Apollo Bay sewerage system and in accordance with the requirements of Barwon Water.
4. Landscaping works as shown on the endorsed plans must be completed to the satisfaction of the responsible authority within 12 months from the date of the issue of the permit, or any other time agreed to by the responsible authority, and then maintained to the satisfaction of the responsible authority.
5. The unregistrable movable dwellings shall not be located within four (4) metres of the joint property boundary to land in separate ownership.
6. Floor level of each unregistrable movable dwelling shall be set to the minimum practicable height above either natural ground level or excavated ground level on the road side of the unit, with the maximum height of any unit to be not greater than 3.0 metres above floor level at any point.
7. Any additional lighting, including external lighting of buildings and unregistrable movable dwellings, shall be provided with suitable baffles so that no direct light is emitted outside the site.
8. Without the prior approval of the responsible authority, no advertising sign, advertising hoarding, advertising sky sign or advertising shall be erected.
9. If the development authorised by this permit is not completed within three (3) years, this permit shall expire, unless a request in writing for an extension of time has been received by the responsible authority before three months have elapsed after the date of expiry.
1. The Tribunal makes the following declaration pursuant to s149A(2)(a) Planning and Environment Act 1987:
An unregistrable movable dwelling is a movable building as defined within the planning scheme. The placement a movable building on land is the carrying out of works where referred to in the planning scheme.
1. The application for an enforcement order is refused.
________________________ _________________
For the Applicants for Review: Mr S Molesworth QC &
Mr N Lucarelli QC of Counsel instructed by Thompson & Thompson, Solicitors
For the Respondents: Mr T Callander, Rigby Cooke, Solicitors
Mr S Morris QC and Mr A Finanzio of Counsel on behalf of the Department of Environment and Conservation instructed by the Victorian Government Solicitor
Witnesses: Christopher Noel Marshall - Land Use Planner
1. Application 1999/083391 is an application pursuant to s82 Planning and Environment Act 1987 (PE Act) brought by John King and Others seeking review of the notice of decision issued 24 September 1999 by the Colac Otway Shire Council to grant a permit for cabins and infrastructure additions and alterations to an existing Caravan Park at 15 Marengo Court, Marengo.
2. Application 1999/096627 is an application pursuant to S149A PE Act for declaration brought by Colac Otway Shire Council as the Responsible Authority for the Colac Otway Planning Scheme that the placing of an Unregisterable Moveable Dwelling on concrete blocks which are not fixed into the ground or pored in situ on sites presently serviced with power and sewer connections and requiring no earthworks at the Marengo Foreshore Camping Reserve being Crown Land in a Public Conservation and Resource zone used as a camping ground at the approval date, does not require a town planning permit under clause 36.03-2 or other provisions of the Colac-Otway Planning Scheme.
3. Application 2000/006736 is an application pursuant to s114 PE Act by John King and Others seeking an enforcement order requiring the removal of two tourist cabins installed on the coastal crown land and the occupants restore the coastal crown land to its condition immediately before the use or development started.
4. Marengo is a small township, located approximately 4km south of Apollo Bay on the Great Ocean Road. The Marengo Caravan Park is located within the township of Marengo on a headland known as Hayley Point (Cape Marengo). It comprises two parcels of land that have been temporarily reserved for a public purpose:
* Part of allotment 9D Section 2A, Parish of Krambruk, containing 1.0117ha temporarily reserved for public purposes by Order in Council of 25 May 1965 ("the 1965 reserve"); and
* Part of allotment 9D, Section 2A, Parish of Krambruk, continuing 0.5143ha more or less being part of that land temporarily reserved for public purposes by Order in Council of 11 August 1879 ("the 1879 reserve").
5. The land is Crown land and pursuant to s3 PE Act, the Minister for Conservation and Environment is the owner of the land for the purposes of the Act. The land is managed on behalf of the Minister by the Apollo Bay Foreshore Committee of Management pursuant to the Crown Land Reserves Act 1978 (CLR Act).
6. On the 30 November 1998, following a tender process the James, the permit applicants, entered into a lease of the Crown land under Section 17D CLR Act referred to in the lease as the 1965 and 1879 reserves with the Apollo Bay Foreshore Committee of Management Inc. The land to be leased was described as "the whole of the land shown on the map contained in Appendix A and known as Marengo Camping Ground". The area marked on the plan is 1.526ha.
7. The Marengo Camping Ground is located on a relatively flat area of open headland. An amenities block is located towards the northern end and in a centrally fenced area of the site. The entrance to the site is via a gravel road. The Manager's residence erected in 1998 pursuant to permit PPA/328/98 is located on the western side of the entrance. The gravel road continues into and circumnavigates the site. Areas for camping are located on either side of the roadway. The site was described in the tender documents as having 70 unpowered sites for year round use. At the southern or ocean end of the site is a small car parking area with steps down the cliff to the rocks of Hayley point. Residences abut the site on its northern and western boundaries. There is sparse vegetation within the site itself although there has been considerable planting undertaken by the current lessees. There is some vegetation in the form of bushes and some medium height trees located along the western boundary. On the eastern edge of the site is an area once used as a quarry. Within this area is a considerable amount of low coastal vegetation as well as several large cypress trees. Access to the rocks and beach in this area is via steps at the southern end of the quarry. Low coastal vegetation clings to the edges of the cliff on the seaward sides of the site.
8. A number of objectors to the permit application have residences or undeveloped land abutting the camping ground on its western side. Mr King's property does not abut the site but is located a short distance further to the west and has a clear view over the camping ground to Mounts Bay to the east, as do the other residences on the western side of the site.
9. An application for permit dated 10 May 1999 signed by the James was received by the Responsible Authority on 11 May 1999. The application referred to the "proposed development of Marengo Caravan Park" and attached a proposal outline, understood to be similar to the tender proposal which included the proposed renovation of the existing amenities block, connection of the Park to high voltage electricity supply, plumbing works, CFA required works, sealing of the external road, installation of a children's playground, a sign, a BBQ and camp kitchen, a boom gate, tourist cabins and a spa/hot tub.
10. Accompanying the application were several sketch plans, a letter dated 27 October 1998 from Powercor, relating to the budget estimate for electricity supply for Marengo Caravan Park and a letter dated 15 April 1999, from Mr P Mainey Regional Manager, Department of Natural Resources and Environment, being consent to use and develop the coastal Crown land by the Minister for Conservation and Environment pursuant to section 40 Coastal Management Act 1995 (CM Act).
11. The application was advertised by certified mail to adjoining property owners, a public notice on site and a notice in the Colac Herald and the Apollo Bay Newsheet. Eleven objections were received. The application was also referred to Powercor, Barwon Water, the Department of Natural Resources and Environment (DNRE), the Western Coastal Board and the Apollo Bay Foreshore Committee.
12. On the 5 August 1999, following the lodging of the application, the Colac Otway new format planning scheme was gazetted. As a result of the coming into force of the new scheme, it was questioned as to whether a permit was required in the full form that had been applied for, particularly as to whether a permit was required to install the proposed tourist cabins.
13. On or about 18 August 1999 the James indicated to the Responsible Authority they would withdraw their application following the receipt of legal advice that they did not require a permit. Shortly after this the Responsible Authority sought legal advice. The Responsible Authority informed the objector Mr King, by letter dated 9 September 1999, that the permit applicant had written to the Council to withdraw the application on the understanding that a permit may not be required. As a result, a further application was submitted for "Renovations to the Amenities Block, Installation of a sign and construction of a BBQ and Camp Kitchen" being application no. PPA /255/99.
14. The Responsible Authority advised, that in light of the legal opinion it had received, the permit applicant would have to decide whether or not to proceed with both applications. Mr King was also informed, that following legal advice, a planning permit was required to construct a building or construct or carry out works, that the application would now be considered in light of the new format scheme, and that the matters raised in his submission would be considered when the Council considered the application. It appears there was some ongoing discussion between the Responsible Authority and the permit applicants.
15. The Responsible Authority proceeded to consider the original application, the objections received in relation to this application and determined to issue a notice of decision to grant a permit on 24 September 1999 to allow for Cabins and Infrastructure additions and alterations to the existing Caravan park.
16. The applicants for review raised the issue as to whether this decision of the Responsible Authority was valid having been made on what purported to be a withdrawn application. In the decisions of Traill v Rural City of Wodonga (1989) 3 AATR 107 and D & M Pekelman Pty Ltd & Ors ats City of Melbourne & Ors (1990) 4 AATR 246 the Tribunal has determined that an invalid decision gave rise to a factual decision sufficient to found jurisdiction in the Tribunal.
17. Clause 62 Schedule 1 Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) now provides:
The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and in doing so may determine to disregard the failure if the Tribunal considers it is in the interests of justice to do so.
18. The applicants for review were clearly objectors to the permit application and in all respects have been involved as parties. It is considered in the interests of justice that the Tribunal consider the issues raised by the applicant/objectors. The Tribunal disregards the failure if there was failure to reinstate the application upon which the Responsible Authority made its notice of decision to grant a permit and upon which the applicants now seek to review.
19. The application for review was lodged with the Tribunal on 18 October 1999. The application for declaration was lodged on 1 December 1999 and the application for an enforcement order was lodged on 31 January 2000. On 9 February 2000 the Tribunal determined, that an application for an interim injunction pursuant to section 123 VCAT Act and an application for an interim enforcement order pursuant to section 120 PE Act be disallowed.
20. At the commencement of the hearing Mr Callander sought to amend the application for permit, to as he put it, clarify and spell out the development concept. In this respect he sought to amend the description and the way the application states the land is used. The description of the proposed development, he stated, had originally come from the tender documentation for the caravan park. Mr Callander also indicated he wished to add a use provision, although he contended, there is no requirement for a permit for use because of the operation of the zone provisions and the reliance on existing use provisions.
21. The application was amended pursuant to clause 64 Schedule 1 VCAT Act as follows:
1. Amending the Proposal description to the attached "Amended Proposal Description for Proposed Development at Marengo Caravan park" and also adding "to use the land for the purposes of camping and caravan park", and
2. Amending the description of the way the land is used now to read: Accommodation - camping and caravan park" and
3. Adding to the material in support of the application for planning permit:
* Plans prepared by Chris Dance Land Design Pty Ltd (4sheets) drawing no's 00/824/LA01, LA02, LA03, and LD4.
* Plans (3 sheets) of the existing (units 1 and 2) Unregisterable mobile dwellings 04/2000.
* Plans (4 sheets) Orbit Solutions "Alterations to Existing Amenities Block and new Kitchen Rotunda" dated February 00 drawing no's A1, A2, A3 and A4.
22. The proposal was amended pursuant to clause 64 Schedule 1 VCAT Act as follows:
To undertake development and to construct buildings and carry out works as follows
(to the extent to which a permit is required under Colac-Otway Planning Scheme):
(a) addition of a pitched colour bond roof and verandah.
(b) Internal improvements including plastering, tiling, new vanity basin and fittings.
(c) Renovation and conversion of storeroom at north east corner into a disabled bathroom.
(d) Concreting/paving the existing pathway around the amenities building.
(e) Replumbing showers including the installation of water tempering devices.
(f) Installation of electrical components - new lights exhaust fans and heating.
Generally in accordance with existing conditions and demolition plan drawing No. A1, ground floor plan drawing no. A2 and east elevation plan drawing A3 date Feb 00 of Orbit Solutions.
2. Connection of park to upgraded three phase electrical supply:
(a) Replacement of overhead power lines ( and removal of power pole) with underground mains power cabling and installation of connector box.
(b) Connection of existing electrical cables running to all sites to the new connector box/switchboard.
(c) Provision of power heads with earth leakage protection and circuit breakers to existing risers.
(d) Installation of B & R main power board and current transformer (CT) in main switchboard room and upgrading the existing sub-board within amenities building.
(a) Minor adjustments to current plumbing throughout the park to facilitate proposed site reconfigurations.
(b) Installation of firefighting equipment (hose reels) at amenities building and camp kitchen.
(c) Extinguishers (office/ amenities building/camp kitchen),
Generally in accordance with the Country Fire Authority requirements.
(a) Seal the entrance road from Marengo Crescent to caravan park entrance.
Generally in accordance with Chris Dance Land Design Pty Ltd Landscape Concept Plan, and the Vegetation management Plan (the plan so described in the Applicant's "Tender Proposal").
(a) Installation of children's playground ( pine play fort with slide attached set of swings and merry-go-round style fixture) generally illustrated in figure 1.3 (brochure) accompanying planning permit application.
(a) replace current Marengo Caravan park identification/business sign near corner of Marengo Crescent with an upgraded illuminated sign to the requirements of the Responsible Authority.
Construct/install rotunda style building with BBQ and camp kitchen facilities generally in accordance with floor plan, drawing A4 date Feb 00 of Orbit solutions.
(a) Installation of boomgate system at park entrance (to replace metal swing gate).
(a) Placement of 21 tourist cabins (the cabins being unregisterable movable dwellings in conformity with Residential Tenancies Act 1997 and the regulations thereunder and being generally accordance with the designs described in the letter dated May 31, 1999 from the permit applicants to Colac Otway Shire providing further information and the attachments to that letter, and also, with respect to the three unregisterable movable dwellings placed or proposed to be placed on sites designated as site numbers 72, 73 and 74 generally in accordance with the floor plans and elevations (three sheets dated APR, 00 prepared by Shannon and Shannon Planning and Design Consultants) on the sites designated on the Chris Dance landscape Design Pty Ltd Landscape Concept Plan.
(b) Provision of duckbill tethering anchors for each cabin.
(d) Associated site landscaping including levelling/relevelling/reterracing.
(a) Installation of spa/hot tub generally in accordance with figures 1.7 and 1.3 accompanying the planning permit application.
(a) Generally in accordance with Chris Dance Land Design Pty Ltd Concept Plan.
Item 6 (vegetation management plan implementation - continuing)
Item 11 (tourist cabins - not less than a further 7 within this period)
23. The subject site is situated within a Public Conservation and Resource zone (clause 36.03) under the Colac Otway Planning Scheme and is subject to the Airport Environs Overlay (clause 45.02).
24. Under clause 36.03 `Camping and caravan park' is a section 1, as of right use within the zone subject to the following condition:
* Conducted by or on behalf of a public land manager under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975 or the Forest Act 1958.
* Conducted by or on behalf of Melbourne Parks and Waterways under the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.
* Specified in an Incorporated plan in a schedule to this zone.
25. Under clause 36.03-2 a permit is required "to construct a building or construct or carry out works.
26. The subject site is also affected by an Airport Environs Overlay. An application to use land for uses listed in the schedule to the Overlay must be referred to the relevant airport owner. A permit is required to subdivide land and new buildings must be constructed in accordance with noise and attenuation measures required by Section 3 of Australian Standard AS 2021 - 2000. The permit requirement provisions of clause 45.02 are not relevant to the matters under consideration.
27. Reliance is also placed on existing use rights dealt with in the planning scheme under clause 63.01 which states an existing use right is established if
* The use was lawfully carried out immediately before the approval date.
* Proof of continuance of the use for 15 years is established under clause 63.11;
* The use is a lawful continuation by a ...private body of a use previously carried on ... by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.
28. The applicants for review have raised a number of legal issues which they say should be considered and given great weight by the Tribunal. In this respect they allege, the lease is invalid because it permits the lease of reserved land namely the 1879 land that is not permitted to be leased, it incorporates land permanently reserved following a 1979 recommendation of the Land Conservation Council (LCC), accordingly the Tribunal is not able to authorise a permit that is in breach of the terms of a reservation. It is also alleged that consent by the Minister for Conservation and Environment to the proposal under the CM Act was not made within the required time frame and is therefore deemed a refusal and as it is deemed a refusal, the Responsible Authority and in turn the Tribunal, cannot pursuant to section 61(3)(b)PE Act grant a permit.
29. It is further alleged that under the zone provisions of the planning scheme the proposal is prohibited and that existing use rights cannot be relied upon as there has been a failure to comply with the conditions and restrictions imposed on the land over a number of years. The presiding member of the Tribunal who is a qualified legal practitioner considered each of these issues.
30. The lease, between the James and the Apollo Bay Foreshore Committee was entered into on 30 November 1998. The lease is for a period of 4 years with further options to renew. Under the terms of the lease the James as lessees are required to perform intended works specified in Schedule B to the lease.
31. Clause 3.3.2 of the lease provides that the James must comply with all laws and the requirements of any authorities which have jurisdiction over the premises. The lease also requires at clause 16.2 that the lessee must keep and maintain that part of the foreshore opposite the sea frontage of the premises in good repair and in a clean and tidy condition. Clause 16.3 requires the Lessee to permit unrestricted pedestrian access across the premises by all persons bona fide crossing the premises apparently for the purpose of access to or from the beach or any other public land and for no other purpose.
32. The 1965 land, is the land upon which the existing camping ground and caravan park is located. The lease, however describes the premises, as the whole of the land shown on the map in Appendix A and known as the Marengo Camping Ground. Appendix A shows the area of land to be 1.526ha which appears to include both the 1965 and 1879 reservations.
33. The 1879 land, consists of a strip 150 links (approximately 30.172m) wide measured from the high water mark. This was reserved pursuant to the provisions of the Land Act 1869. Under section 6 of that Act, the Governor in Council could reserve from sale either temporarily or permanently any Crown Lands which in his opinion are required for any purposes whatsoever. Under section 102 of the Land Act 1869, the Governor, if he thought fit, could withhold or withdraw from sale, leasing or licensing any land.
34. The area of the 1879 reservation is outlined in the survey plan prepared by A. Rose. It is shown as encompassing an area at the southern end of the Marengo Caravan Park currently used for campers in tents and also the small area used as a public car park for access onto the rocks of Hayley's Point. Whilst the lease requires the James to maintain this area the proposed works to be carried out under the permit application do not appear to cover this area.
35. The 1879 land was reserved by Order in Council on 11 August 1879 and published in the Government Gazette in the following form:
In pursuance of the provision of the Land Act 1869 (33 Vict. No. 360, 6 & 9) and the education Act (36 Vict. No. 447, s.4): Notice is hereby given that the Governor, with the advice of the Executive Council, has reserved from sale, temporarily, and has also (unless where otherwise stated) excepted from occupation for mining purposes or for residence or business under any miner's right or business licence, and withheld from sale, leasing and licensing, in pursuance of the 6th and 102nd section of the said Land Act 1869 the lands hereinafter described, viz:
Bass' Strait and Southern Ocean - foreshore - The unappropriated Crown lands situated on the shore of Bass' Strait and the southern Ocean, within the limits indicated by red colour on plans marked respectively A, B, C, D, F, G, H, I and J attached to correspondence 78 P 6436, deposited at the Crown Lands Office, Melbourne, are temporarily reserved for public purposes.
36. In reading the preamble to the 1879 Government Gazettal, together with the passage referred to above, it would appear the Governor in Council has elected to temporarily reserve the land and withhold the land particularly from leasing. Section 63 Evidence Act provides, that the production of a copy of the Government Gazette purporting to contain an Order in Council is prima facie evidence of that order.
37. This Order in Council on the face of it precludes the grant of a lease that purports to include any part of the 1879 Land. Mr Finanzio submitted, that the notice published in the Government Gazette does not accurately represent the order actually made by the Governor in Council which he submitted did not contain the words in the preamble referring to the land being withheld from sale, leasing or licence.
38. It is accepted, that if only the gazettal notice is considered, the 1879 land is not able to be leased. Under section 17D CLR Act the Minister can approve the granting of a lease if satisfied that the purpose for which the lease is granted is not detrimental to the purpose for which the land is reserved.
39. The Tribunal does not have jurisdiction to consider whether the lease is a valid or invalid lease as contended by the applicants for review. The Tribunal's jurisdiction is set out in Division 1 of Part 3 VCAT Act. Both the Tribunal's review jurisdiction and original jurisdiction is pursuant to sections 42 and 43 VCAT Act conferred by or under an enabling enactment: No 2 Pitt Street Pty Ltd v Wodonga Rural City Council Authority and Weatheralls Wodonga Hotel Pty Ltd (1999) 2 VPR 338_._ Neither the PE Act, the CM Act or the CLR Act confer any jurisdiction on the Tribunal to determine the validity of a decision of the Minister for Conservation and Environment to give consent to the grant of a lease under section 17D(1) CLR Act.
40. Provided a person making an application for permit has either signed the application for permit, as owner of the land, or has declared that the owner has been notified of the application for permit, the PE Act does not require that the person making an application for permit have any legal interest, or entitlement to the land the subject of the application. In the present matter the consent of the Minister through her delegate to the grant of the lease and the consent under the CM Act is accepted as sufficient to satisfy the requirements of section 48(1) PE Act
41. The lease was granted pursuant to section 17D CLR Act. Section 17D(2) CLR Act imposes limitations on the power to grant leases under subsection (1) where the land in question is reserved for a purpose specified in paragraphs (l), (m), (n), (o), (w) or (ze) of subsection (1) of section 4, or is deemed by section 4(6).
42. Section 4(4) CLR Act states that every temporary reservation made or purported to have been made under the Land Act 1958 or any previous corresponding enactment shall be deemed to have been made under sub-section (1). Section 4(1) provides that the Governor in Council may by Order published in the Government Gazette reserve any Crown Lands which are required in his opinion for a public purpose. This may be done generally or by particular description. In this case, both parcels of land are temporarily reserved, generally for public purposes.
43. There has been no reference to the additional purposes listed in section 4(1) CLR Act and section 4(6) CLR Act has no application.
44. Section 46(1) PE Act indicates that planning schemes may apply to reserved land. Without limiting the operation of section 6 PE Act a planning scheme may regulate or prohibit the use or development of land which is permanently or temporarily reserved for any purpose under the CLR Act. Section 46(2) PE Act has no relevance in this matter as it refers only to permanently reserved land.
45. The applicants for review assert that there has been a contravention of a permanent reservation of land following the approval of the 1978 LCC recommendations. It is submitted that the land referred to in "J1" that is in "Section J, The Coasts, Land Conservation Council Final Recommendations 1978 for the Corangamite Study Area", includes the 1879 reservation, or part thereof. The contravention has occurred as no thought has properly been given to whether the leasing of this land, contravenes the purpose of the permanent reservation.
(e) the areas J1 and J2 be permanently reserved as coastal reserve (their seaward boundaries being low water mark) and managed by the department of Crown Lands and Survey ...
46. On 4 December 1979 the Governor in Council made the following order:
His Excellency the Governor of the State of Victoria combined with the advice of the Executive Council of the said State doth by this Order give notice to the Department of Crown Lands and Survey of the following recommendations: ...
And the Honourable William Vasey Houghton, Her Majesty's Minister for Conservation for the State of Victoria shall give the necessary directions here in accordingly.
47. What was gazetted, was the approval by the Governor in Council of the LCC Recommendations. There is nothing to indicate that this went further to include permanent reservation of the land described and included in "J1". Section 10(3) of the now repealed Land Conservation Act 1970 (LC Act) did impose a duty upon government departments to use " all diligence and dispatch to give effect to" the recommendations. Although the recommendations have been saved by section 26 of the Environment Conservation Council Act 1997, since the repeal of the LC Act, there has been no corresponding duty upon government departments to give effect to the recommendations. Mr Marshall indicated the department had regard to the LCC recommendations, there was however nothing presented to the Tribunal confirming that these recommendations have been given a higher status than merely approval of the recommendations.
48. The applicants for review allege, that there has not been any consent under the CM Act as required, or if there has been consent, it has been given contrary to law.
A person must not use or develop coastal Crown Land unless the written consent of the Minister has first been obtained.
50. Section 39 CM Act states, the Minister must make a decision within 28 days after receiving an application for consent, to use or develop coastal Crown land. If additional information is requested, then within 28 days after receipt of the additional information.
(a) must not decide to grant a permit to use or develop coastal Crown Land within the meaning of the Coastal Management Act 1995 unless the Minister administering that Act has consented under that Act to the use and development; and
(b) must refuse to grant the permit if the Minister administering that Act has refused or is deemed to have refused under that Act to consent to that use or development.
52. The Minister is deemed to have refused to consent, if the Minister fails to make a decision within the time required under section 39 CM Act. In this respect, DNRE submit Mr Marshall was contacted on 15 February 1999 by the James, by facsimile, seeking consent for works. On 10 March 1999, the James forwarded a revised application, after this date Mr Marshall spoke to the James on two further occasions in relation to the consent before forwarding a recommendation and draft letter of approval to the Regional Manager of the Department on 15 April 1999. On 3 May 1999, the Regional Manager, Paul Mainey approved the application for consent. This letter of approval accompanied the application for permit lodged with the Responsible Authority.
53. DNRE submits the Tribunal does not have jurisdiction to review the decision of the Minister or her delegates in respect of the actual grant of consent under the CM Act. The only question the Tribunal is required to consider is whether or not in fact the decision has been made and made within time.
54. Mr Molesworth QC submitted, that the consent dated 3 May 1999 and letter dated 15 April 1999 are not valid consents, as they were provided "out of time" and therefore amounted to a deemed refusal by the Minister pursuant to s 40(3) CM Act
55. The Regional Manager South West Region and Manager South West Region are the persons specified as delegates with authority to exercise the powers of consent on behalf of the Minister as delegated officers. Mr Marshall is not a delegated officer but Mr Mainey is. It was submitted that as Mr Marshall had no powers of delegation then it was not until Mr Mainey received the application on 15 April 1999 that the clock commenced to run and the letter of approval dated 3 May 1999, 18 days later, is within the required time.
56. There was considerable discussion and debate before the Tribunal regarding whether the consent was made within time or whether it was made out of time and therefore deemed a refusal. Mr Callander submitted that a considerable number of discussions took place between the James and Mr Marshall regarding the information to be provided in relation to the application for consent. In this respect he submitted, there was no formal application prepared or lodged by the James. The James prepared considerable material and the formal application was prepared by Mr Marshall in the form of a Coastal Approval Report. It was submitted that the fax Mr Marshall received from the James dated 15 February 1999 was not an approvals application. The application was the Coastal Approval Report finalised by Mr Marshall on 15 April 1999, therefore the approval by Mr Mainey dated 3 May 1999 was within time.
57. As a result of the amended application at the commencement of the hearing the permit applicant made application for consent under the CM Act to the Department on the 28 July 2000 in respect of this amended application and on the 8 August 2000 consent was given by the Regional Manager South West Region. This is sufficient to indicate to the Tribunal that the Minister was consenting to the proposed works.
58. At the time the permit application was made 10 May 1999 the letter from DNRE dated 3 May 1999 indicating consent to the proposal was also provided to the Responsible Authority. Under section 61 PE Act, the Responsible Authority is required, not to decide to grant a permit unless the Minister has given consent under the CM Act, this suggests that if the Minister has not given consent and then does so the Responsible Authority can then decide. Under section 61(3)(b) PE Act, if the Minister has refused consent, or is deemed to have refused consent, then the Responsible Authority must refuse to grant a permit.
59. In the present matter it is considered s 61(3)(a) PE Act is relevant, in that the Minister had given consent, evidenced by the letter dated 3 May 1999, which was included with the application for permit. The Responsible Authority was therefore, not required to look further at the time of the application, or to question whether the consent had been given within time, or out of time. Accordingly, the Responsible Authority on the face of the information provided to it at the time of the permit application was able to consider whether it would grant a permit, as consent had been given by the Minister.
60. It was clear on the face of the correspondence of 3 May 1999 that consent was being given. Further under the provisions of clause 36.03-3 of the planning scheme an application for permit by a person other than the public land manager must be accompanied by the written consent of the public land manager. The letter dated 3 May 1999 from the delegate of the Minister being the public land manager complied with the application requirements. The Responsible Authority issued a notice of decision to grant a permit and it is this decision upon which the applicants have founded their application for review to this Tribunal.
61. The Minister has been consistent in expressing consent for the proposed use and development, as evidenced in the later letter indicating consent, dated 24 June 1999 and following amendment to the permit application at the commencement of this hearing, the letter of consent from the Minister regarding the amended application dated 8 August 2000.
62. Even if as the applicants for review allege the consent was given out of time the Tribunal has power by virtue of clause 62, Schedule 1 VCAT Act to disregard the "failure to comply with the planning enactment or any other enactment" - Barry J Rumpf v Mornington Peninsula Shire Council, Department of Natural Resources and the Environment and Rosebud and District Lifesaving Club [2000] 6 VPR 314.
63. The lease whether valid or invalid is not a matter that can be considered by the Tribunal. On the face of the information presented to the Tribunal the land the subject of the application for permit is temporarily reserved for public purposes. Nor has the Tribunal jurisdiction to consider whether the consent by the Minister to the original application for permit was given in or out of time. The Tribunal accepts as did the Responsible Authority that the letter provided with the application for permit giving consent was a valid consent, if not, the Tribunal relies on clause 62, Schedule 1 VCAT Act and disregards the failure to comply. The Tribunal does so because it considers that it is in the interests of justice to do so. The matters in issue relate to the continued use of the land as a camping and caravan park which are matters that fall squarely within the matters contemplated under the planning scheme and warrant consideration of the merits within planning terms.
65. The applicants for review recognise that the site is used as a camping ground and submit that it is better described as "an unpowered camping site". That as such the use does not fall within the definition of "Camping and caravan park" within the planning scheme rather the use is described as an existing use. Clause 63.02 refers to the characterisation of use:
If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.
66. Mr Molesworth QC stated there is no evidence of any previous permit in existence in relation to the land. Clause 63.02 embodies the principles enunciated in Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529:
First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that precise manner of use for that purpose may alone continue, but that use generally for that purpose may continue. The application of the ... law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. The question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorised ... whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree ... and for that reason borderline cases will inevitably arise in which opinions differ. [Tribunal underlining]
66. The designation of purpose is a question of fact to be determined by asking "what according to ordinary terminology is the appropriate designation of the purpose being served by the use of the premises." Mr Callander submitted the land was used at 5 August 1999, the gazettal date of the new format Colac Otway Planning Scheme and is still being used as a "caravan park" or "camping and caravan park" as generally understood in ordinary terminology within the community and within the caravan park industry. The dictionary definition of "Camping Ground" is a "supervised site, often with amenities, on which tents may be erected and caravans parked for holiday occupation". It is he submitted of the same nature and effect as the scope of the definition of "Camping and caravan park" used in the planning scheme that is "land used to allow accommodation in caravans, cabins, tents or the like". He made the following observations:
Camping and caravan park is a use the purpose of which is to provide serviced and unserviced sites suitable for non permanent occupation in any of , or a combination of tents, moveable dwellings (whether registrable such as most caravans or unregistrable such as "cabins" on chassis with or with[out] provision for wheels), vehicles with an accommodation component (such as campervans and converted buses and trucks), together with the provision of amenities facilities (such as ablutions block, laundry facilities, barbecue facilities and playground facilities) and with a manager and with some degree of formality in terms of layout.
67. This concept of a caravan park as described was referred to by a number of the witnesses including Mrs Gough, who indicated camping was formalised on the land in 1983/84, Mr O'Carroll, who indicated that by 1981 there was regular camping on the land, Mr Corlett who indicated camping had occurred on the site since 1982, Mr Marshall who adopted Mrs Gough's evidence, Mr Williamson, Mr Dance, Mr Redmond, Mr Allen, Mr S M Harrison, Mr James and Mr Grant. The Tribunal was also referred to the description of caravan parks, particularly tourist parks, on page 4 of the Tourism Victoria publication, "Victoria's Caravan and Tourist Park Industry Tourist Development Plan, 1998-2004".
68. The Responsible Authority submitted the use of the site is that of temporary tourist accommodation which can be in a range of forms including tents, caravans, onsite caravans, campervans or other non-permanent forms of accommodation.
69. Mrs Gough in her evidence described how she had attended what was known as the Marengo Camping reserve in 1960 with her family. At that time, the Camping reserve was located along the strip of foreshore reserve between the road and water between Marengo and Apollo Bay. In 1981 she became the manager of the Marengo Camping reserve where it is presently located.
70. Documentary evidence submitted is that the present site was gazetted in 1965 for public purposes and was used by some for camping. The amenities block was constructed in January 1974, although at this time the site works were never completed and the camping area not fully utilised. The road to the camping ground was constructed across the foreshore land in 1975.
71. It is understood that camping along the foreshore officially ceased along the foreshore in 1984 and it was at this time that a Commonwealth Employment Grant was used to upgrade the camping area enabling some 100 sites to be powered, a new toilet block to be constructed and an extension to the sewerage. Mr Michael Harrison indicated that since April 1984, the land had been improved with road works including concrete guttering, connection to a sewerage service and town water made available. Electrical cables were installed with connection points to most of the sites at this time.
72. It is considered that immediately prior to the relevant date, 5 August 1999, the land was used for public purposes as a caravan and camping ground with unpowered camping sites and is considered to be a "camping ground".
73. The applicants for review assert that the introduction of cabins amounts to a change in activities and the cabins will damage the amenity of the area. DNRE submit the introduction of cabins is not a change in the activities beyond the purpose for which the land is used. There is presently nothing which prevents the use of every site on the land from being used to accommodate a caravan and there is nothing to stop this use occurring all year although given the siting of the land it is not well patronised during the colder months of the year. The introduction of cabins on the land for temporary tourist accommodation, such cabins found in numerous other caravan and camping grounds is not considered to be a change in the use of the land for the purposes of a camping ground rather it is considered to be an intensification of the existing use; Norman v Gosford Shire Council (1975) 132 CLR 183, Rockdale Municipal Council v Clark (1982) 47 LGRA 159 and Nunawading CC v Harrington [1985] VicRp 64; (1985) 55 LGRA 139 esp 144.
74. Caravans, tents and campervans have been commonly placed on this land for a period upwards of 15 years. If it is accepted that this use does not fall within the use of "Caravan and camping ground" as defined within the planning scheme then this use is prohibited and the permit applicant must rely upon its existing use rights to enable it to seek a permit for the proposal it wishes to carry out.
75. Under clause 63.05 a section 3 prohibited use for which existing use rights are established may continue provided:
* No buildings or works are constructed or carried out without a permit. A permit must not be granted unless the buildings or works complies with any other building or works requirement in the Planning Scheme.
* Any condition or restriction to which the use was subject and which applies to the use in Section 2 of the zone continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
* The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.
76. The applicants for review submit that when considering to what extent an existing use has been operating then the legislative and public land management context must be considered, particularly when considering the usage of Crown land. In this respect if there have been conditions or restriction that have curtailed the use then the use must be defined by reference to and incorporation of those restrictions.
77. The applicants for review submit that the existing use rights cannot be relied upon as they must be a lawful existing use at the approval date being 5 August 1999 and there has been a failure to comply with a number of conditions or restriction imposed not only under the planning scheme but also other Acts and must have been entirely consistent with the laws and regulations applicable to the Crown land in question.
78. In this respect the applicants for review submitted that as the land was Crown land the rights only arise out of the grant from time to time. The reference to lawful in s6(3) PE Act and in clause 63 it was submitted did not only relate to planning, therefore the exceeding of restrictions and limitations placed on the reserve by Minister after Minister resulting in 1984 in Minister McKenzie sacking the foreshore committee, the use of the site contrary to Health Regulations in 1985, disregard of instructions to remove vans in the off season, were it was said, among numerous instances where there had been blatant breaches of controls and restrictions over many years.
79. Mr Molesworth QC referred to the decision of Eames J in Royal Park Protection Group V Urban Camp Melbourne Cooperative & Anor [1998] VSC 161; (1998) 101 LGERA 381, in which Eames J decided "a planning scheme cannot authorise a use inconsistent with a reservation under the CLR Act". He submitted that to grant a permit would be inconsistent with the 1879, 1965 and 1979 reservations, the CM Act and the Victorian Coastal Strategy and that the existing use must be considered in light of any restriction or conditions placed on the land by these different controls.
80. Eames J was considering the application of s46(2) PE Act in relation to permanently reserved land. This land is temporarily reserved. There is nothing proposed that is inconsistent with the reservation for public purposes. It is considered that the question of alleged contravention of the 1879 reservation goes to the question of land tenure and not to land use. It is considered that even if the lease is held to be invalid the lawfulness of the land use for public purposes is beyond doubt.
81. Clause 63.11 provides for proof of continuous use and specifically refers to an existing use right being established even " if the use did not comply with the scheme" in other words was unlawful, that is unless a Court or tribunal has held the use to be unlawful, or a Responsible Authority has indicated in writing that the use does not comply with the planning scheme:
If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.
An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period unless either:
* At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
* During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.
82. Whilst the word "_unlawfu_l" and the wording "did not comply" are often intermixed, the reading on the face of the clause is that a use that fails to comply with the planning scheme results in the use being unlawful. This is different to a failure to comply with permit conditions or conditions or restriction, such failure to comply does not render the use unlawful, it merely shows that there has been an inability to comply with the conditions or restrictions.
83. There are a limited number of cases supporting the view that "lawfully" means "not prohibited by planning law" and it was submitted they refer to private not public land: Sydney CC v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186, Northern Territory Planning Authority v Murray Meats Northern Territory Pty Ltd [1983] FCA 105; (1983) 48 ALR 188 and White v Ballan Shire Council & Kelly (1986) 4 PABR 272.
84. Mr Molesworth QC sought to rely on the contrary view put in Shire of Flinders v TW Maw & Sons (Quarries) Pty Ltd [1971] VicRp 62; [1971] VR 484 at 498-501 that the non-conforming use was not protected by s 17(1D) Town & Country Planning Act in circumstances where the existing use was not lawful because it required a licence under the Extractive Industries Act 1966 which had not been obtained. Maws Case certainly stands for the proposition that the lawfulness of the purpose for which land was used must be determined by reference to laws concerning land use.
85. The Responsible Authority submitted that for the purposes of clause 63.05 the only relevant conditions or restrictions are those imposed by planning controls and there is no evidence of any conditions or restrictions on the subject use imposed by or under town planning legislation: Ferntree Gully Abattoirs (Aust) Pty Ltd v MMBW & Ors (1984) 3 PABR 15.
86. There is now a provision in the planning scheme in the form of clause 63.11 and if applied, it is irrelevant as to whether a permit was previously required under the former planning scheme or that if so required no permit existed. It is accepted that since sometime as early as 1965 the land has been used for camping and certainly since 1984, that is 15 years prior to the commencement of the action, the use has existed and it has been used continuously as a camping ground, a public purpose in line with the Crown grant. There has been no action taken in that time by the Responsible Authority that indicates that the use has been required to cease because it is unlawful nor any decision of a court or tribunal.
87. Lawful it is considered relates to lawful in planning terms and in particular to compliance with the planning scheme in force at the time. This view is supported by the wording of clause 63 particularly at clause 63.01. An existing use relates to the use of land under the planning scheme and is established if the use was lawfully carried out immediately before the approval date that is the date of the new planning scheme. Clause 63.11 relates specifically to planning, it clearly makes references to " non-compliance with the scheme'; "did not comply with the scheme". The issue is whether land used for a particular purpose was done so lawfully not whether the land tenure arrangements are lawful. In all respects the wording refers to and is in the context of planning and the planning scheme.
88. It is accepted that the land has been used for a considerable period of time as an area for camping either in tents, caravans or motorised homes. An amenities block has been provided and the area has been supervised. The existing use is that of a camping ground.
89. It is submitted that the use falls within the current planning scheme definition of "Camping and caravan park" found in clause 74. DNRE describes the land in the lease as a "camping ground".
90. If it is accepted that the use is that of "Camping and caravan park" as defined within the planning scheme, to be as of right, such use must meet the Public Conservation and Resource zone conditions opposite the use in section 1 of clause 36.03-1.
91. The applicants for review submit the proposal is prohibited because the conditions cannot be met, as it is not being "conducted by or on behalf of the public land manager". If it is considered that it is conducted by or on behalf of the public land manager, then it is still prohibited, as it is was not conducted by or on behalf of the Minister under the Crown Lands Reserves Act as the Foreshore Committee granted a lease under s17CLR Act which was only approved by the Minister through a delegate. This approval was not given prior to but at the same time as the lease was executed. Further, that the delegate was not the named delegate and the delegate had failed to take into account policy matters that if they had been taken into account would have resulted in the delegate being prohibited from approving the lease under delegation, namely that it was inconsistent with policy.
92. It is accepted that the Minister for Conservation and Environment is the public land manager of the land but that the Minister is not a public land manager under any of the Acts specified in the first dot point in the condition to be met opposite "Camping and caravan park" in clause 36.03-1. The first dot point therefore cannot be satisfied. Nor can the second or third dot points, as the use is not conducted by Melbourne Parks and Waterways and there is no Incorporated Plan in the schedule to the zone.
93. The applicants for review submit that if s6(3) PE Act did not exist which recognises existing use rights then the James would be prohibited from proceeding further because section 3 to the table of uses confirms that if a section 1 or section 2 condition cannot be met then the use to which it relates is prohibited. There are it was submitted no section 2 uses specified, accordingly the proposal constitutes a section 3 use for the purpose of the planning scheme.
94. Clause 31 of the planning scheme deals with the operation of zones. It states that a use in section 1 does not requires a permit. Any condition opposite the use must be met. If the condition is not met, the use requires a permit unless the use is specifically included in section 3 as a use that does not meet the section 1 condition. A use in section 3 is prohibited.
95. As the condition opposite the use in section 1 of clause 36.03 cannot be met then pursuant to clause 31, the use requires a permit unless the use is specifically included in section 3. "Camping and caravan park" is not included in section 3, therefore if the use is characterised as a "Camping and caravan park" as defined under the planning scheme, then a permit is required under clause 36.03.
96. The use as characterised as a camping and caravan park does not it is considered fall within the definition of "Camping and caravan park" found in the planning scheme. Although the James submitted there is no essential difference between what exists and the defined use within the planning scheme it is considered that there has never been any use of cabins on the site and the use does not fall within the term as defined in the planning scheme rather the existing use is that of a "camping ground".
97. The use "camping ground" as characterised does fall within the description "any other use not in section 1 or 2" within clause 36.03-1. This is a section 1, as of right use, subject to in this case conditions identical to that opposite "Camping and Caravan park". As previously stated, these conditions cannot be met therefore pursuant to clause 31, a permit is required, unless there is a specific reference in section 3 to the condition not being met. In this case there is a specific reference. Section 3 clause 36.03-1 refers to "any other use not in section 2 or 3 - if the section 1 condition is not met". Therefore pursuant to clause 31.02 the use as a "camping ground" is prohibited.
98. Whether the use is being conducted for or on behalf of the public land manager is irrelevant as the relevant public land manager in this case does not fall within the matters referred to in the conditions opposite, either the use of "Camping and caravan park", or in "any other use not in section 1 or 2".
99. The use is prohibited and the provisions of clause 63 in relation to existing use rights must be relied upon. A permit is required pursuant to clause 63.05 for buildings and works.
100. In considering such an application the requirements of clause 36.03-2 are required to be considered because within the zone in which the land is located, a permit is required to construct a building or to construct or carry out works and under clause 63.05 " a permit must not be granted unless the building or works, complies with any other building or works requirement in this scheme".
101. Apart from the cabins which is dealt with under the sub-heading Declaration in this determination, to what extent do the other works proposed require a permit.?
102. Under the provisions of both clauses 36.03-2 and 63.05 a permit is required to construct a building, or construct or carry out works. The carrying out of items of renovation to the amenities block being the addition of a pitched roof and verandah, the conversion of the storeroom to a disabled bathroom and concreting the existing pathway around the amenities building, connection to the three phase electricity supply including the replacement of overhead power lines , installation of the children's playground; installation of the BBQ and camp kitchen, installation of the spa/hot tub are all considered to require a permit as they fall within the criteria of construction of a building or carrying out of works.
103. Under clause 62 there are within the planning scheme exemptions with regard to buildings and works:
Any requirements in this scheme relating to the construction of a building or the construction or carrying out of works does not apply to:
* The internal rearrangement of a building or works provided the gross floor area of the building, or the size of the works, is not increased.
* Repairs and routine maintenance to an existing building or works.
* The removal destruction or lopping of trees and the removal of vegetation.
This does not apply if a permit is specifically required for any of these matters.
104. Under clause 36.03-2 there is also an additional exemption for "planting" and
"landscaping". The applicants for review contend that the requirement to apply for a permit under clause 63.05 is wider than an application under the zone provisions and does not include the exemptions in clause 62. As a result the exemptions of planting and landscaping in clause 36.03-2 cannot be relied upon if the only reason the permit applicants are able to apply for a permit is the reliance upon their existing use rights.
105. In particular in relation to the proposed landscaping it was contended that it is proposed to form with the planting in accordance with the Dance Landscaping plan enclosures for the cabins to provide them with a degree of privacy and protection as such this is ancillary to what is proposed and a core part of the development.
106. If relying upon their existing use rights, the permit applicants are required under clause 63.05 to obtain a permit to "construct a building or to construct or carry out works". In this respect clause 63.05 states that "a permit must not be granted unless the building or works complies with any other building or works requirement in this scheme." The permit applicant is therefore required to comply with the requirements of the scheme in relation to buildings and works this includes being able to rely upon clause 62 for exemptions and reliance upon clause 36.03-2 exemptions for planting and landscaping.
107. With respect to landscaping, giving it its ordinary meaning, it is considered to be the art of arranging plants, trees, paths etc to produce a picturesque visual effect. "Works" is defined within s3 PE Act to include "any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil". The carrying out of excavation or levelling works that changes the natural topography of the land amounts it is considered to more than the carrying out of landscaping and requires a permit. Some earthworks in the form of digging or levelling but not the removal of topsoil would fall within the exemption of gardening under clause 62. It is therefore considered that the carrying out of planting in the form proposed by Mr Dance is the carrying out of planting and landscaping and is therefore exempt under the provisions of the planning scheme and no permit is required.
108. The Tribunal, in considering whether a permit should be granted can consider the placing of a condition on the permit that relates to landscaping. The exemption from the requirement that a permit is required does not prevent the Tribunal from requiring a condition in relation to landscaping if it considers that it would not be able to grant a permit unless it could impose such a condition.
109. Under clause 62 there is also an exemption for roadworks. The evidence provided to the Tribunal indicated that the external road to the camping ground is situated on Crown land as is the caravan and camping ground. It is considered that the proposed sealing of this referred to external road and the sealing of the internal road do not require a permit as they fall within the exemption of roadworks under clause 62 and there is no specific requirement under clause 36.03-2 for a permit for roadworks.
110. It is considered that the proposal to use a boom gate at the entrance to the camping ground to regulate the entry and exit of vehicles is not dissimilar to any other form of gate and is the replacement of an existing gate which has fallen into disuse. The erection of the boom gate does not require a permit. The boom gate will not prevent the entry of the public, it is considered it will merely assist in the regulation of vehicles entering the land. It is noted that a term of the lease requires free access to the public.
111. The Responsible Authority has sought a declaration that no permit is required in relation to the placing of the cabins on the land. In this respect they refer to the cabins in the terminology used within the caravan and camping industry as "unregistrable movable dwellings". They submit that the mere placement of these cabins on concrete blocks which are not fixed to the ground or poured insitu on the sites that are presently serviced with power and sewer connection does not require a permit under the planning scheme. This is distinguished from the requirement that the placement of the cabins on such sites may require some earthworks and if this is so then a permit would be required.
112. The Responsible Authority submitted that it is the act of construction or carrying out of buildings or works that requires a planning permit not the buildings or works themselves. The simple placing of a cabin which has been constructed elsewhere on a site is not the construction of a building on the subject site.
113. Mr Callander submitted that the only requirement in the planning scheme for a permit was the construction of a building, no buildings were being constructed, the cabins were only being placed on the land, therefore no permit was required.
114. Clauses 36.03-2 and 63.05 indicate that under the planning scheme a permit is required to construct a building or construct or carry out works. It was accepted that the cabins are constructed away from the site and are brought to the site for placement on the site.
115. The Responsible Authority indicated that there had been a level of excavation undertaken in the early 1980s and to the extent that there would need be any such excavation for the placement of the cabins would require a permit. The information provided to the Responsible Authority, at the time of the permit application indicated it was considered the cabins did not require the sites to be excavated, where the sites are sloping the cabins could be placed on concrete blocks. The use of anchoring devices was not considered to in any relevant sense alter the topography or natural condition of the ground and if it did it would be considered de minimus.
116. Mr Allen, the manufacturer of the cabins indicated that he had placed a cabin on concrete pads 600mm above ground level, the raising of a cabin to 1140mm to the axle (1590mm) to the cabin floor was allowable. He explained that the duckbill pegs used to anchor the cabins were hammered into the soil like tent pegs and the cabins connected by ties. The ties connected to the pegs, he stated could be cut off and the peg left in the ground if the cabin is removed without any soil disturbance, alternatively the pegs could be dug out with minimum disturbance. Although there was no requirement that the duckbill anchor be used, they were provided as cabins could rock in the wind. Given the location of the site in his view it would be advisable to use them.
117. The James submitted that it was possible to place the cabins on the sites without earthworks and without hard connecting services although they did submit that it would be preferable to undertake some topographical changes and hard connect services as a more desirable outcome. With regard to the services for the cabins Mr Callander submitted whether via connectors or by hard wiring both are exempt because they do not involve the carrying out of works or because the works are so minor that they should be regarded as de minimus. With respect to the anchors he submitted they are a minor device similar to a tent peg and cannot be said to change the condition or topography of the land.
118. The applicants for review whilst conceding that the cabins were constructed away from the site submitted there are works required in relation to the installation of the cabins. Three areas or sites on the land have already been excavated and two cabins already placed on two of the areas. As a result topsoil was removed. Mr Salt's evidence was that excavation works would be required and indicated that in some areas the removal of more than 1m of soil would be required.
119. Under clause 72 of the planning scheme, general terms are defined. A "movable building" is defined under this section as:
A structure, other than a tent, caravan, or vehicle, which is designed to be moved from place to place on more than one occasion.
120. It is considered the cabins described by the parties as "unregistrable movable dwellings" fall squarely within the definition of "movable buildings" within the planning scheme. The unregistrable movable dwelling is designed similarly in many respects as a caravan, built on a chassis, it is noted that the definition of "movable building" recognises this aspect but specifically exempts caravan. Mr Allen indicated that the use of this type of onsite accommodation was taking over from caravans due to the costs of towing a caravan and storage problems. Mr Redmond, the President of the Victorian Caravan Parks Association agreed that the cabins were becoming increasingly common in caravan parks. He submitted that on average they take up 15% of sites in caravan parks and are found in 95% of caravan parks in Victoria.
121. Within s3 PE act a "building" is defined as a "structure". Within this section "development" is defined to include "the placing ... of a building ... on land."
122. The placement of the movable building on the land is a form of development and in the carrying out of this development changes it is considered will occur to the existing conditions of the land as well as possibly to the existing topography of the land. Within s3 PE Act "works" is defined to " include any change to the natural or existing condition or topography of land".
123. The land has been described under the subheading "subject site" at paragraph 4. It is a vacant open area in terms of structures, save for the existence of an amenities block and since the grant of a permit the manager's residence, also an unregistrable movable dwelling/movable building but which required excavation and levelling works to be carried out to place the cabin on its site.
124. It was the accepted view of both the James and the Responsible Authority that excavation works if required would need a permit but that some levelling or earthworks may not. In this respect the applicants for review submitted that the works required did not fall within the term "landscaping" which is exempt from the requirements of a permit under clause 36.03-2. Mr Callander submitted that in the context of a caravan park landscaping includes levelling works and other alterations to the topography of the land. In the context of a caravan park it is inappropriate to regard levelling works as only for the purposes of the particular structure proposed to be placed on the site because the works are also intended to create the overall landscape effect for the caravan park.
125. It is considered that the placement of the cabins/unregistrable movable dwellings/movable buildings on the land will change the existing condition of the land. Therefore whether the cabins are placed on concrete blocks or not, anchored or not, hard connected to services or not it is the mere placement of the cabins on the site that is considered to be the carrying out of works.
126. The mere placement of the cabins/unregistrable movable dwellings/movable buildings on the land is considered to be the carrying out of works and under clauses 36.03-2 and 63.05 a permit is required to "carry out works". Any excavation or levelling works required will it is considered change the topography of the land and is also the carrying out of works requiring a permit.
127. The application for declaration in the form requested is refused. The following declaration is made:
An unregistrable movable dwelling is a movable building as defined within the planning scheme. The placement of a movable building on land is the carrying out of works where referred to in the planning scheme.
128. Having regard to the findings on the legal issues with respect to the need for a planning permit for works pursuant to clause 63.05, it is now necessary for the Tribunal to assess the consequences of those works in accordance with the requirements of clause 63.05 and the decision guidelines of clause 63.12.
129. The requirements of clause 63.05 have been detailed previously but require that (inter alia) a permit must not be granted unless the building or works complies with any other building or works requirement in the scheme. In this respect a permit is required to carry out works under clause 36.03-2 of the Public Conservation and Resource zone. Decision guidelines under clause 36.03-5 contain the matters which must be considered in deciding on an application to carry out works under clause 36.03-2, and are as follows:
Before deciding on an application to use or subdivide land, construct a building or construct or carry out works, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:
* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* The comments of any public land manager or other relevant land manager having, responsibility for the care or management of the land or adjacent land.
* Whether the development is appropriately located and designed, including in accordance, with any relevant use, design or siting guidelines.
130. The decision guidelines under clause 63.12 require consideration of the decision guidelines in clause 65 and any other requirements of the Act, and the extent to which compliance can be achieved with all scheme requirements that can reasonably be met.
131. The decision guidelines under clause 65.01 are as follows:
* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* The purpose of the zone, overlay or other provision.
* Any matter required to be considered in the zone, overlay or other provision.
* Factors likely to cause or contribute to land degradation, salinity or reduce water quality.
* Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.`
* The extent and character of native vegetation and the likelihood of its destruction.
* Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
* The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.
132. In summary therefore we must assess the consequences of those works which require a permit in terms of their achievement of acceptable planning outcomes under the State and Local Planning Policy Frameworks, and the specific requirements and decision guidelines under clauses 63.05, 63.12, 36.03.5 and 65.
133. In forming our view that the proposal, subject to the changes we have required to be made, does achieve acceptable planning outcomes with respect to the relevant and applicable provisions of the planning scheme, we have reached the following conclusions on those matters which we consider to be the principal issues:
* The application of the relevant provisions of the policy framework in its entirety, lends support to the proposal to upgrade and enhance the camping and caravan facilities on this site, but that in doing so, careful consideration needs to be given to the design, siting and location of structures and the provision of landscaping, in order to ensure that the characteristics and qualities of the site's coastal location is appropriately respected. It is on this basis that we have imposed conditions requiring a reduction in the number of cabins to be placed on the site.
* The off site amenity impacts associated with the proposal, including the loss of private views from the adjoining residential area, are in our view acceptable and the upgrading of the site, in terms of both the works to be carried out and the formalising of management arrangements, will contribute to an enhanced amenity.
134. During the course of the hearing, a wide range of matters were raised by the parties, primarily by the applicants for review, which are in addition to or which are peripherally related to the principal policy and amenity considerations we have identified above. Prior to turning to a detailed consideration of those principal issues, we think it is appropriate that we record our findings with respect to these additional matters, as follows:
* We are not persuaded by Mr King's evidence that the Rufous Bristlebird (which is listed in Schedule 2 of the Flora and Fauna Guarantee Act) inhabits the site. The bird's natural habitat is described in the documentation provided by the applicants for review (Flora and Fauna Guarantee Action Statement 49) as follows:
Rufous Bristlebirds are often found in coastal thickets, and in the Otways they (sic) occur in forested valleys generally a short distance inland.
This description bears no resemblance to the features of the site upon which the works are proposed, and the likelihood of the bird inhabiting the site is remote.
* Aboriginal Affairs Victoria has confirmed that no midden or other archaeological material would be disturbed by the proposed works, and we are satisfied by this advice.
* The restriction on access to the existing informal car park is a practical necessity associated with the upgrading of the existing use, and is required in order to facilitate appropriate management of the site. Public, pedestrian access through the site will be retained as a condition of the permit and, we were advised, the car park will be relocated in any event. We do not think the minor inconvenience to those who use the car park is sufficient to warrant a refusal of the application.
* With respect to the submissions concerning the status of the vehicular access to the site as a public highway, this is a matter about which we do not need to make a finding. We note the DNRE's submission that the access is internal to the Crown land and associated with its use as a camping and caravan site, and that any use of the access by the public not residing on the site, could only be unauthorised and resulting from the informal management arrangements which previously characterised the use of the site.
* The review site is not zoned Public Park and Recreation under the relevant planning scheme and submissions that the proposed works will contribute to a loss of open space cannot therefore be sustained. Notwithstanding the fact that residents and others may have used the site on occasions for informal recreational activities, it is not and has never been zoned for that purpose. We find Mr Harrop's evidence that the site ought to be preserved to provide access to local open space for residents, to be especially unconvincing. Mr Harrop's evidence made no reference to the fact that the site is not zoned for that purpose, and nor was there a balanced analysis of the relevant policy framework and planning scheme provisions leading to his conclusions that activities on the site ought to be consistent with its role as public open space.
* The works for which a planning permit is required will not contribute to increased traffic on the street network which would be of a magnitude to warrant refusal of the application. We were advised that the council is investigating alternative sites for the relocation of the car park which is located within the review site, and objectors expressed concerns regarding the traffic implications associated with this relocation. Issues in relation to the proposed location of that car park are not matters about which we are able to make a finding.
* We do not find Mr Williamson's evidence that the proposal will have an adverse impact on the availability of low cost tourist accommodation to be convincing and we find Mr James' evidence in this respect to be based on more rigorous and comprehensive research and therefore more persuasive.
* We are satisfied that, based on the issue of the CM Act consent and the submissions made to the Tribunal on behalf of the DNRE, the proposal enjoys the support of the public land manager.
* The recommendations of the LCC are relevant to the Tribunal's considerations, however they do not have the effect of removing the discretion to grant a permit for the proposed works. The recommendations for the areas designated "J1" which applies to the review site, at least contemplates the use of coastal reserves for camping provided they are not located on sensitive sites or areas of importance for nature conservation. The LCC recommendations are significant in that they provide an important background and base from which subsequent policy has emerged. In our view the LCC recommendations are not inconsistent with the applicable policy framework which we discuss subsequently in this decision.
* The Airport Environs Overlay which applies to the review site does not require formal referral of the application under section 55 PE Act as the application is not for the use of land for any of the uses listed in the schedule to the overlay.
135. We intend to deal with the policy and site design issues together because we think that in the application of the policy framework there is a strong reliance on the achievement of policy objectives through the application of site design principles.
136. With respect to the State and Local Planning Policy Frameworks, all parties provided us with a very detailed analysis of the relevant planning scheme provisions and of the supporting documentation which underpins that framework. The following clauses and related documents are relevant:
Siting and Design Guidelines for Structures on the Victorian Coast - 1997
137. A number of other documents were referred to us as being relevant to our consideration pursuant to s 60 (1)(b)(ii) PE Act, including Colac Otway Shire Strategic Development Master Plan, 2000, Great Ocean Road Tourism Development Plan, Tourism Victoria Strategic Business Plan 1997 - 2001, and Landscape Setting Types for the Victoria Coast, May 1998.
138. It was the Responsible Authority's submission that, to the extent that a permit is required, the proposal achieves an outcome contemplated and supported by the planning scheme. Mr Pitt said:
It is the submission on behalf of the Council that the proposal is an outcome contemplated by tourism policy in the LPPF and that therefore the substantive town planning issue to be resolved is whether those works requiring permission will have or cause an adverse impact upon the significance of the coastal area such as to warrant a refusal of permit
It is the Council's submission that the Respondent's proposal, which are to give effect to their obligations under their agreement with the Department, reflects a reasonable balance between the tourism policies embodied in the Planning Scheme and respect for the natural significance of the of the coastal area, which can be reinforced by appropriate conditions.
139. Mr Morris QC and Mr Finanzio submitted that the review site is a prime location for the achievement of the council's tourism policy objectives and that because of the site's substantially altered condition and its limited environmental qualities, the proposal is appropriate in terms of achieving a sustainable use of coastal resources.
140. Mr Callander adopted the submissions of the Responsible Authority and DNRE, and also relied on the evidence of Mr Dance and concluded that the proposal does enjoy policy support under the planning scheme.
141. The applicants for review urged us to apply the relevant policy framework and the precautionary principle which is encompassed within the Victorian Coastal Strategy (VCS), to protect this site from "a serious and permanent negative impact on coastal or marine processes". Mr Molesworth QC and Mr Lucarelli QC submitted that the VCS requires the application of a decision making process based on a hierarchy of priorities as follows:
142. It was their submission that because it is impossible to sustain and protect a resource which has been destroyed by inappropriate development, the principles of "sustain" must prevail over those of "develop" and this is reflected in the VCS hierarchy and flows through to all the relevant policy documents. On that basis, it was submitted that a proposal to locate a camping and caravanning park of the type proposed, on the review site is not consistent with the VCS and the policy framework.
143. We do not agree with this submission. The VCS provides a policy framework the purpose of which is outlined in the foreword to the document as follows:
".............to ensure that Victoria's coastal and marine environment will continue to be a well managed and used asset for the future. The Strategy outlines how this will be achieved."
144. The four principles underpinning the Strategy are also conveniently summarised in the foreword as follows:
"First, there must be long term ecological sustainable use of the coastal and marine environment so that the inherent values are preserved for current and future use.
Second, there must be adequate protection and restoration of significant sites, areas and features of the coast - be they natural, cultural, historic, visual or built.
Third, there must be clear direction on how the coast is to be used in the future, and where the most appropriate locations for various uses are.
And last, there needs to be a strategic outlook for where development - be it for tourism, commercial or conservation purposes - can and should occur."
145. The Strategy is intended to be applied in its entirety and while the long term, ecological sustainable use of the coastal environment is sought to be achieved, so too is tourism, commercial and other uses and developments contemplated and encouraged. A key element of the VCS therefore is that, in order to sustain and protect the significant features of the coast, direction must be provided as to the most appropriate location for various uses and developments.
146. A primary focus of the VCS is the identification of "activity nodes" and "suitable existing footprints" within which appropriate development is encouraged. The VCS identifies at a very broad level, Apollo Bay as an activity node, but also refers to the following process for the identification of activity nodes:
The definition of Activity Nodes, including a guide to appropriate use and development within nodes, will be coordinated and lead by the Regional Coastal Boards in conjunction with relevant local municipalities, either through:
* Existing planning frameworks, where these adequately provide for the desired development outcomes for the Node; or
* Coastal Action Plans, prepared under the Coastal Management Act 1995 in consultation with the community.
147. The Colac Otway Strategic Development Master Plan - Coastal Action Plan - Skene's Creek to Marengo (May, 2000) (CAP) was prepared in accordance with the CM Act_,_ and is intended to provide a key mechanism for the implementation of coastal strategies and to enable broad principles to be developed and applied at a sub regional or issue based level.
148. The CAP contains a section specifically on Marengo Township Sector (Section 7.1) and the stated objective for the Sector is:
"To protect and enhance the scenic and historical values of the coastal environment at Marengo by containing urban development and limiting inappropriate development, and enhance the opportunities for passive recreation on the Marengo coast."
149. A series of issues are identified for the Sector including protection of Rufous Bristle - bird habitat, pest plant invasion, impacts of coastal urban development on coastal landscape, impact of pedestrian traffic on coastal vegetation. Recommendation 7.1.5 provides for the maintenance of "formalised camping at Point Hayley and at the Marengo Camping reserve."
150. We think it is also significant that the objective for the Mounts Bay Sector (which directly abuts Marengo and separates it from Apollo Bay) (Section 7.2) is to "protect the non - urban coastal character of Mounts Bay and the coastal dunes, while providing for a range of safe, passive recreational activities." We think this is significant because it reinforces our view that the CAP, read in its entirety, clearly seeks to protect the existing non urban coastal character of the stretch between Apollo Bay and Marengo by directing development to appropriate sites within Marengo and Apollo Bay
151. Our review of the CAP and its recommendations establishes to our satisfaction that the identification of the review site as a preferred location for "formalised camping" is consistent with the broad policy objectives of the VCS to direct development to designated activity nodes or suitable existing footprints and that this in turn is consistent with the objectives to sustain and protect the environmental qualities of the coast.
152. Our assessment of the provisions of the VCS and the CAP is consistent with the evidence of Mr Marshall with respect to the basis upon which DNRE had supported the proposal through the issue of the CM Act consent.
153. We agree with Mr Molesworth QC and Mr Lucarelli QC that any support offered by the policy framework for the provision of upgraded and enhanced facilities on the review site, must be balanced by the application of those provisions which have the effect of discouraging inappropriate use and development which would negatively impact on the State's coastal environment. By this we mean that in the event that a use or development for which a permit is required, can be demonstrated to have "a serious and permanent negative impact on coastal or marine processes" the provisions of the planning scheme may lead to a conclusion that the proposal does not achieve acceptable planning outcomes, notwithstanding its location within an activity node or a "suitable existing footprint".
154. We do not think however, that the proposal before us falls into this category. It is very clear to us that the works for which planning permission is required will not contribute to any significant, permanent negative impact on coastal ecology or marine processes. It is a significant factor in forming our conclusions on this matter that the review site, notwithstanding its many qualities resulting from its coastal location, is not in a pristine condition and its environmental integrity has been significantly affected by human activity over many years. This activity includes quarrying and for the last 20 years or so camping and caravanning, and activities associated with the site's location on the edge of an area which has undergone substantial urban development. We note in this respect that some of the objectors stated that they used the site for recreational activities and that they regarded it as their local open space. This use of the site does not sit comfortably with other and in some cases the same objector's submissions that the development of the site ought to be severely constrained in order to protect its environmental qualities and integrity.
155. The works for which a permit is required are well removed from any part of the site or its abutting coastal environs which may be sensitive to site disturbance. The proposed works are in any event not of a scale or nature which would negatively impact on coastal ecology. To the extent that the application of the precautionary principle ought to be applied to our assessment of the works which do require a permit, we think that the proposal in the form approved by us, is acceptable.
156. The extent to which increased levels of activity on the site resulting from the proposed works will pose a threat to the coastal environment are negligible. During our two inspections of the site we observed well defined tracks which provide access from the site through the coastal vegetation to the shore line. These tracks are, on our observations, well used and are similar to a multitude of tracks which serve an identical function along the coast. We have no reason to believe they will not continue to serve that function and that the coastal vegetation will be in any way threatened by increased use of them.
157. Notwithstanding our findings that the proposal to upgrade the existing facilities on the site are supported by the policy framework of the planning scheme, there is also a strong emphasis in the scheme on the need for careful consideration to be given to the design, siting and location of structures and the provision of landscaping, in order to ensure that the characteristics and qualities of the site's coastal location is appropriately respected. As we have stated previously in this decision, a balancing of the relevant policies is needed in order to arrive at an acceptable planning outcome, and the documents Landscape Setting Types for the Victorian Coast (May 1998) and Siting and Design Guidelines for Structures on the Victorian Coast (May 1998), are intended to provide guidance on site design issues.
158. Mr Molesworth QC and Mr Lucarelli QC relied on the evidence of Mr Williamson with respect to the visual impact of the proposal. It was Mr Williamson's evidence that, using a technique known as the Victorian Visual Management System (VMS) which is used to analyse scenic qualities and public sensitivities to those qualities, he had concluded that the proposed structures would be relatively well screened by foreshore vegetation from most outside viewpoints, with the exception of near foreground views. In the event that foreshore vegetation was, for whatever reason, lost or removed, it was Mr Williamson's evidence that the structures would be plainly visible from most of the middleground and foreground viewpoints.
159. The principal impact of the proposal from a visual perspective was described by Mr Williamson in the following terms:
The principal impact barring loss of foreshore vegetation, however, would be the loss of significant green space from the foreground views of residences adjacent to Marengo Camping Reserve along Harrison Street........Instead of predominantly green grass, the immediate foreground view would be predominantly taken up with roof tops of cabins and any permanent or long term caravans located in the proposed annual lease area. This would mark a significant change to the scene, as is demonstrated by the two cabins already installed near the existing amenities block.
160. It was Mr Williamson's evidence that this visual impact is undesirable and would have an adverse impact not only on the enjoyment of Marengo Point by abutting residents, but also on users of the site itself and users of the adjacent beach and foreshore area immediately north of the reserve entrance.
161. Mr Dance's assessment of the visual impact of the proposal is that it will contribute to a significant enhancement of a site which is currently highly exposed and largely denuded of vegetation. He said:
It seems to me this proposal is characterised by good news. The revegetation program will return to this landscape an element of its pre - settlement visual landscape character, with shade and shelter being provided by the new plantings, not just for the benefit of campers and locals, but for visitors and tourists and outside the reserve. Furthermore, because this revegetation program will extend beyond the leasehold area, it will provide a new and considerable habitat area for a range of flora and fauna. Additionally, the proposed 21 cabins have both landscaping and vehicular impact reduction benefits.
162. Mr Dance's evidence that the effects of the proposal are largely positive, is reliant on the provision of the landscaping to offset the visual impact of the cabin structures. While it was his evidence that views of the site from the public domain are limited, and that the proposed landscaping would further obscure those already limited views, he did acknowledge that Marengo is identified as a critical viewpoint in the document Landscape Setting Types for the Victorian Coast and that development of the site ought to be consistent with the objective of enhancing the coastal landscape, not just for the benefit of users of the site but also for locals, visitors and tourists outside the site.
163. We agree with Mr Dance's evidence in this respect and it seems to us that there is a degree of concurrence between the evidence of both Mr Dance and Mr Williamson to the extent that they are both of the view that the opportunity to experience the Victorian coast at this point, should not be prejudiced by inappropriate development. Where the witnesses diverge in their evidence is that Mr Dance is of the view that the present experience will be enhanced by the proposal (primarily as a consequence of the landscape treatment), while Mr Williamson is of the view that the proposal will fundamentally and detrimentally change that experience because of the magnitude of the change, predominantly as a consequence of the visual impact of the 21 cabins.
164. We think that the most acceptable planning outcome, having regard to all the relevant policies, lies somewhere between the views of the two witnesses. While we agree that the proposed landscaping will make a positive contribution to the coastal landscape at this location, we do express reservations about
the number and siting of the cabins because we think they will tend to dominate the site rather than integrate with the landscape treatment. Our views in this respect are reinforced by the highly exposed nature of the site and the difficulties associated with establishing vegetation, and the type of vegetation proposed around the cabins which is primarily ground covers and hedge planting. We are also influenced by our inspections of other caravan and camping sites along the Great Ocean Road in which cabins have been placed. The visual impact of the placing of cabins in relatively confined clusters or in rows with little separation between each cabin, is not particularly appealing and a similar impact on the review site would be undesirable. The policy framework of the planning scheme calls for a more sensitive approach to caravan park design on the review site than that which we observed in other, less sensitive locations. We also observed the limited success of low level landscaping, in softening the visual impact of the cabins on these sites.
165. We do not think that our concerns in this respect are likely to be overcome by amending Mr Dance's landscape treatment, which we think is appropriate, but rather by reducing the number of cabins and by creating more substantial distances between them in order to reduce their visual dominance. To this end we have imposed a condition requiring the submission of an amended plan reducing the number of cabins on the site to 11. This is to be achieved by deleting 4 cabins from the western boundary and each of the cabins on the eastern side of the internal road. We did give consideration to specifying a maximum number of cabins and allowing their siting to be determined by the applicant in consultation with the council, however we think that in the context of this case, it would be preferable for us to specify both the maximum number of cabins and their siting. We have attached to the order a plan showing the approved siting of the cabins.
166. Subject to the modifications to the proposal outlined above, we are satisfied that the proposal achieves acceptable planning outcomes having regard to the applicable policy framework.
167. It was the evidence and submissions of several of the objectors that the proposal would contribute to an unacceptable loss of views of the coast and environs which they currently enjoy from their dwellings in Harrison Street abutting the western boundary of the review site. The submissions and evidence by the objectors on this matter were summarised by Mr Molesworth QC and Mr Lucarelli QC in the following terms:
In this case, the evidence of the objectors has established that they have all so designed their houses and developed a lifestyle which makes the most of superb views available to them. In the spirit f sharing, they have willingly accepted as their near neighbour a "traditional" camping ground - active in the season, quiet out of season. They have looked over and been looked at from the Marengo Camping Ground from its commencement. Both have, in effect, coexisted in harmony. So the views of the Marengo Township have been "affected" throughout by the foreground of campers, they have not demanded the reinstatement of pristine views of a natural coastline with a camping ground. This was balance, this was tolerance, this was a sharing of the coastal resource. In the context of the Camping Ground being a Crown reserve, one can add that what has occurred in the past was also consistent with an expectation, a legitimate expectation of neighbours adjoining a public reserve.
168. Mr Molesworth QC and Mr Lucarelli QC referred to a number of authorities to establish the principle that although there is no legally enforceable right to a view, the protection of an existing view is considered to be a relevant town planning consideration in the context of a planning scheme requirement to take into account the impact of a proposal upon the amenity of an area. Mr Molesworth QC and Mr Lucarelli QC's submissions in this respect were not disputed by the other parties. Mr Pitt and Mr Scally, and Mr Callander however submitted that while the proposal will curtail views, its impact is acceptable . Mr Callander relied on the evidence of Mr Dance, who prepared a cross section analysis to assess the impact of the proposal on private views. Based on this analysis Mr Dance described the existing private views into the site in the following terms:
These generally occur from adjoining houses along the southern and western boundaries.
Most of these houses enjoy dramatic views from south - east through north across the ocean and north - west to the hills. Almost all Harrison Street dwellings would have the park as the foreground to these vistas and whilst there is some planting along the north - east boundaries of these allotments, there is a clear indication (from the way these neighbours manage their landscapes), that anything, (including vegetation)that challenges their panoramic views is unacceptable.
169. Mr Dance assessed the impact of the proposal on the existing views enjoyed by the Harrison Street residents as acceptable and said that:
The north - west, south - east cross sections show how dwellings on Harrison Street west occupy an elevated position over the subject site and enjoy magnificent northerly views. At the eastern end of Harrison Street, the slope descends and at its end the street is at a comparable level to the subject site. This means that views to the north are more difficult to achieve for these residents, because the viewer is close in elevation to the foreground with its existing trees and shrubs. These evergreen trees tend to obscure any first floor view - being at 4-5 metres along the south - west boundary.
170. Mr Dance advised that he had been instructed in preparing his landscape concept for the site to take into account the interests of neighbouring properties and that he has done this by limiting the height of vegetation along particular site lines.
171. We have been assisted in forming our conclusions on this matter by our inspection of the site which included a viewing from the Harrison Street properties. The inspection confirmed the evidence of the objectors, Mr Williamson and Mr Dance that each of these properties enjoy magnificent, panoramic views, taking in the ocean, Mounts Bay and the hills. These views are primarily obtained from elevated positions above the review site, and the views make a significant contribution to the amenity enjoyed by the residents of these properties.
172. As a consequence of the proposed works for which a permit is required, the panoramic nature of the long distance views will not be obscured or curtailed. We acknowledge that the nature of the foreground view over which the long distance views are obtained will change because that foreground view will contain cabins on a (effectively) permanent basis, and vegetation, instead of the temporary or intermittent use of that part of the site by camping facilities during a concentrated period of the year. The effect of that change is in our opinion, relatively minor and certainly not of a magnitude which would disrupt the amenity of the area to a degree which would warrant a refusal of the application. The proposal will not result in the views presently enjoyed by the objectors being "blocked", as was submitted to us.
173. We acknowledge that the change to the foreground view will impact differently on each of the Harrison Street properties, and indeed on different rooms within those properties. We are satisfied however that the existing panoramic views enjoyed from the upper levels of each of the abutting properties will not be significantly affected, and it is on that basis that we have concluded that the proposal will not contribute to an unacceptable loss of amenity as a consequence of curtailment of views.
174. In addition to concerns about the loss of views, we also received submissions to the effect that the proposal will increase the intensity of the use of the site and this will lead to a range of adverse amenity impacts on neighbours, including glare from lighting, noise, increased traffic and reduced aesthetics
175. In our view, the amenity impacts associated with the existing use, which the objectors submitted were such that a harmonious coexistence had until recently prevailed, are likely to be further reduced by the combination of improved management of the site and of those who use it for holidaying, upgraded maintenance of the existing facilities and the proposed landscaping.
176. For these reasons we are satisfied that the works for which a permit is required will contribute to an enhanced amenity.
177. The applicants for review also made application under section 114 PE Act seeking orders that the two cabins be removed from the land and the three areas excavated in or about October 1999 be reinstated to a condition as close as possible to the condition they were in prior to the excavation work.
178. It was submitted the excavation works took place in or about October 1999 and the two cabins were installed in December 1999. That since there installation the James have derived income from the cabins. It was contended the cabins were installed by the James with full knowledge of the applicants for reviews' objections, that at all times the James had every intention of installing them having pre- ordered the cabins. That the James installed the cabins despite the request from DNRE to not undertake further works and before the Tribunal had clarified whether a permit was or was not required.
179. It has been the finding of the Tribunal that a permit is required for the placement of the cabins on the land. Therefore the placement of the two cabins on the land was done without approval and is a breach of the planning scheme.
180. Whilst the placement of the two cabins has been found to be in breach of the planning scheme as a result of the Tribunal's determination in the application for Declaration, the Tribunal has considered the siting of the two cabins in the context of the overall consideration of the review process and has concluded that the two cabins do not result in any amenity impacts or detriment in relation to the positions they are currently located. The Tribunal in granting a permit for the placement of 11 cabins on the land has included the two existing cabins within the areas marked for the location of the cabins on the plan attached to this determination.
181. The Tribunal has considered that the James at the outset applied to the Responsible Authority for a permit, that at the time the cabins were placed on the land there had been an indication from the Responsible Authority supported by legal advice that no permit was required, which was also supported by the legal advice obtained by the James. It was certainly clear at the time the cabins were placed on the land that there were a number of objections and the application for review had been lodged with the Tribunal. As the Tribunal has now considered it appropriate to grant a permit and has included the two cabins within the permit the Tribunal does not consider that in the circumstances it is necessary to require the James to remove the cabins. The Tribunal will therefore exercise its discretion in relation to the application for an enforcement order and refuse the request.
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John King & Ors
Colac-Otway SC [2001] VCAT 2009
(1964) 110 CLR 529
(1975) 132 CLR 183
(1998) 101 LGERA 381
(1983) 48 ALR 188
The Council’s decision was varied. The Council was directed to issue a permit for specified works and up to 11 unregistrable movable dwellings, subject to conditions. The Tribunal declared that an unregistrable movable dwelling is a movable building and its placement on land is carrying out works where the planning scheme refers to works. The enforcement application was refused, with costs reserved.