The development of a dwelling, vegetation removal, bundary re-alignment and associated works, in accordance with the endorsed plans.

1. By order dated 18 September 2013[1], the Tribunal, comprising Member Bennett, set aside the decision of the responsible authority to grant a permit in respect of permit application P12/0042 and directed that no permit is granted.
2. The subject land is located in an undeveloped and vegetated section of land at the western end of the RACV Cape Schanck Resort. It is adjacent to the 15th hole and has frontage to the eastern side of The Cups Drive. The permit application sought permission for:
   • Subdivision of the land to realign the boundaries of two existing lots, so that one was effectively subsumed within the broader Cape Schanck Golf Course and a lot (fronting The Cups Drive) was carved out of the Cape Schanck Golf Course;
   • Development of the land for a single dwelling; and
   • The removal of native vegetation.
3. The land is within the Green Wedge Zone (GW24) and subject to various Environment Significance Overlays (ESO16, ESO223, ESO24 and ESO28), the Significant Landscape Overlay (SLO6) and the Bushfire Management Overlay (BMO). The land is also subject to the native vegetation controls in clause 52.17.
4. The extent to which these provisions apply to the land is curtailed by the operation of the incorporated document entitled National Golf Course and Cape Schanck Resort Development, October 2003, which both forms part of the Mornington Peninsula Planning Scheme and is specifically referenced in the schedule to clause 52.03. This document exempts each of the controls listed above other than the BMO (in full), the Green Wedge Zone (in part) and clause 52.17.
5. Whilst the applicant/objectors raised various issues about the proposal, in his decision Member Bennett found that the ambit of his discretion was limited. He said:

[5] Whilst I accept that these are all genuine concerns and matters may (sic) ordinarily would be subject to consideration by the Tribunal in a Section 82 application for review[2], in this particular proceeding the issues able to be reviewed by third parties are very confined.

[6] Except for matters concerning native vegetation removal, either no permit is required for the subdivision (boundary realignment) and development or there are no third party rights of review under the Bushfire Management Overlay. Of the eight points listed above, only item v is open to assessment as part of the application for review.

1. The item referred to by Mr Bennett relates to grounds arising under clause 52.17. It provides:
   1. Is inconsistent with the 'avoid' provisions in the Planning Scheme because the subdivision and development will require the removal of significant amounts of native vegetation rated as of 'Very High Conservation Significance'.
2. Member Bennett's decision focused on native vegetation clearance and the provisions contained in relevant state policy and clause 52.17[3]. Member Bennett was most concerned about the Very High Conservation rating of the vegetation to be removed. He concluded that:

[32] Clause 10.04 of the Planning Scheme requires me to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

[33] Policy gives very strong support to the retention of native vegetation and, as a priority, avoiding the removal of vegetation. In the case of vegetation of Very High Conservation Significance, there is even greater emphasis on not allowing clearance other than in exceptional circumstances. I am not persuaded that allowing the subdivision and development of land containing vegetation of Very High Conservation Significance does achieve a net community benefit.

1. Based on this conclusion, Member Bennett determined to set aside the decision of the responsible authority and direct no permit issue.
2. Brandwill contends that in crafting its order, the Tribunal made a slip in terms that it ordered that the entirety of the decision of the council to grant a planning permit be set aside and that no permit issue. Having correctly disaggregated the different permissions sought by Brandwill for the purposes of determining the application for review, the order of the Tribunal should have been similarly limited to the sole permission that was the subject of review, namely removal of native vegetation. Because the permission granted by the council in respect of the subdivision of the land and the proposed buildings and works were not capable of being the subject of review, the Tribunal's order could not properly relate to those permissions. Brandwill seeks a correction order under section 119 of the Victorian Civil & Administrative Tribunal Act 1998 that the orders, which were made on 18 September 2013, should read as follows:
   1. The decision of the Responsible Authority to grant permission pursuant to clause 52.17 is set aside.
   2. In permit application P12/0042 no permit is granted for the removal of native vegetation pursuant to clause 52.17.
3. Brandwill submits that the consequence of the correction being made will be that a planning permit will issue in respect of the subdivision of the land and for the proposed buildings and works. Whereas the permission for subdivision will be capable of being acted upon immediately, the permission granted for buildings and works will only be capable of being acted upon if permission is subsequently granted in respect of the removal of native vegetation from a different portion of the land.
4. Brandwill relied upon the decision of the Supreme Court in Sweetvale Pty Ltd v VCAT & Ors[4], affirmed by the Court of Appeal in Sweetvale Pty Ltd & Ors v Victorian Civil & Administrative Tribunal & Ors[5] in support of this contention.
5. Sweetvale stands for the proposition that whilst a single permit application may be made, it may embody a series of applications with respect to particular planning controls and that a decision to grant a permit represents a discreet decision in respect of each of those controls which require the grant of a permit.

1. Section 119 of the Victorian Civil & Administrative Tribunal Act 1998 provides as follows:
   1. Correcting mistakes

(1) The Tribunal may correct an order made by it if the order contains -

(b) an error arising from an accidental slip or omission; or

(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or

(b) on the application of a party in accordance with the rules.

1. The purpose of section 119 is to enable mistakes to be corrected. It does not provide an opportunity to change what the Tribunal intended. If a party considers that what the Tribunal intended to order was wrong, its remedy is to appeal to the Supreme Court on a question of law[6].
2. The ambit of section 119 was considered by the Tribunal in Stahle v Camberlea Properties Pty Ltd[7] where the Tribunal made the following comments:

[23] As a general rule, once an order has issued, in a form which correctly expresses the intention with which it was made, the court or tribunal that made the order has no jurisdiction to review, vary or set it aside. It can only be varied or set aside on appeal. This rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to re-hear a matter decided after a full hearing. On the other hand, the need for finality in litigation is balanced with a recognition that mistakes are made from time to time by judges and the parties or their advisers which can and should be corrected without resort to appeal so that justice may be done. See Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 539 per Gibbs, J; Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd [1993] FCA 471; (1993) 45 FCR 224 @ 235-6.

[24] Section 119 effectively enacts the `slip rule'. The scope of the slip rule is not unlimited. The slip rule in terms permits to be corrected an error in a judgment or order arising from an accidental slip or omission. An error in a judgment or order which is the product of a deliberate decision is not within the rule. If the judge has made a mistake in his decision, the remedy is appeal; and if no appeal be brought, or if the appeal be dismissed, the litigants are bound by the decision, even though wrong. See Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 210 (Federal Court of Australia). To that extent, the scope of the rule is limited.

[25] However, within the scope of the rule there is a surprising breadth. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But is also authorises the court to make an order which it fails to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended. The slip rule applies to an accidental omission of the court to provide for something which ought to have been provided for, and which would have been provided for if the attention of the court had been directed to it at the time. See R v Cripps; ex parte Muldoon (1984) QB 686 at 695; L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 594-5:

In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (1892) AC 547 at 558, if the matter had been drawn to the Court's attention would the correction at once have been made?

Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453, per McHugh JA.

1. In the present case, we find that none of the circumstances outlined in section 119 arise. There has been no clerical mistake; there has been no accidental slip or omission; there has been no material mistake in the description of any matter; and there has been no defect of form.
2. In making his order to set aside the council's decision and direct that no permit was granted, Member Bennett intended to do just that. He did not intend to direct simply that no permit for the removal of native vegetation should be granted, but rather that there should be no permit granted for subdivision or development either. It is evident from the reasons set out in the order that Member Bennett considered the subdivision and construction of a dwelling had a direct bearing on how much vegetation was to be removed, and concluded that this did not achieve a net community benefit.
3. There was no argument at the hearing that the permissions granted by the council in its Notice of Decision should be disaggregated in the manner discussed in Sweetvale or that the Tribunal lacked jurisdiction to refuse to grant a permit for the proposal as a whole, as distinct from the single component of native vegetation removal. Apart from the limitations on what section 119 can be used for, it would be contrary to natural justice to suggest that the Tribunal's order should be changed to reflect what Brandwill contends without all parties having an opportunity to make submissions on the issue. To do that would entail reopening the case. This is not a course open to the Tribunal. Once made, the Tribunal's order is final and binding unless set aside upon appeal to the Supreme Court.

1. For these reasons, we make no comment on the substance of Brandwill's submissions about whether Member Bennett had power to make the order that he did or on the submissions by other parties in response. Our role is to determine whether this is an appropriate case in which a change to the final order can be made under the provisions of section 119 of the Victorian Civil and Administrative Act 1998. We find that it is not appropriate because none of the circumstances set out in section 119(1) apply. Rightly or wrongly, Member Bennett intended to make the order that he did and to direct that no permit should be issued for the proposal as a whole.
2. The arguments raised by Brandwill may arise to be determined by the Tribunal in the future. However, in the present case the application to correct the Tribunal's order dated 18 September 2013 is refused.

[1] Jonson v Mornington Peninsula SC [2013] VCAT 1634

[2] Section 82 of the Planning and Environment Act 1987 - A review by objectors of a decision by the Responsible Authority to issue a Notice of Decision to Grant a Permit.

[3] [2013] VCAT 1634 at [9]

[4] [2001] VSC 426

[5] [2003] VSCA 83

[6] Section 148 Victorian Civil & Administrative Tribunal Act 1998

[7] [2000] VCAT 1883