The application for review was struck out by the Tribunal under s.75 of the VCAT Act on the ground that it was misconceived.
The Tribunal's reasons in Adigrati do not assist the applicants because the finding of the Tribunal in that matter was based on the fact that the required further information was not provided by the lapse date. That finding does not support the proposition that a lapse date set out in a notice given under s.54A requires receipt of the required further information before the lapse date. In addition, for the reasons provided above, whether a permit application has lapsed prior to a purported decision being made is irrelevant to the enlivenment of the Tribunal's jurisdiction under s.48 of the VCAT Act because of s.4(2) of the VCAT Act. The operation of s.4 of the VCAT Act was not considered by the Tribunal in Adrigrati.
The applicants also rely on the Tribunal's previous decisions in -
B&K Consultancy Pty Ltd v Whitehorse CC[2017] VCAT 1172 ('B&K Consultancy'); and
Stuart J Castle Pty Ltd v Kingston CC[2011] VCAT 224 ('Stuart J Castle').
Huntingdale and Stuart J Castle involved proceedings commenced under s.79 of the P&E Act for a failure to grant a permit within the prescribed time.
The facts in Huntingdale involved:
The lapse date set out in the notice given under s.54 was 3 May 2019;
The permit applicant made a request for an extension of time on 1 May 2019;
The responsible authority did not give notice of its decision on the permit applicant's request for an extension of time; and
The permit applicant provided the required information to the responsible authority on 27 March 2020.
In Huntingdale, the Tribunal found that because the responsible authority had not made a decision on the permit applicant's request for an extension, the final lapse date for the purposes of s.54B was the lapse date provided for in the notice given under s.54 of the P&E Act, being 3 May 2019. There is nothing in the Tribunal's reasons in Huntingdale that deal with whether a notice provided under s.54A must specify that the required information must be provided before the new lapse date.
The facts in Stuart J Castle were:
A request for further information was made by the responsible authority on 18 August 2010 and the relevant notice stated that if the information was not provided before 18 October 2010, the permit application would lapse; and
On 13 September 2010, the permit applicant provided to the responsible authority the requested information bar one item. The permit applicant made it clear that it would not provide that information.
In Stuart J Castle, the Tribunal found that the permit application had lapsed under s.54B of the P&E Act because the permit applicant had not provided all the information required under the notice given under s.54 and as a result the responsible authority was not obliged to make a decision on the permit application within the prescribed time. Accordingly, as the responsible authority in Stuart J Castle did not fail to make a decision within the prescribed time, the application for review was misconceived and struck out.
There is nothing in the Tribunal's reasons in Stuart J Castle that deal with whether a notice provided under s.54A of the P&E Act must specify that the required information must be provided before the new lapse date set out in a notice given under s.54A of the P&E Act.
The proceeding in B&K Consultancy was commenced under s.149B of the P&E Act for a declaration as to whether the relevant permit application had lapsed. The facts in B&K Consultancy were:
The permit application was received by the responsible authority on 2 August 2016; and
On 31 August 2016, the responsible authority sought further information about the permit application from the permit applicant;
An extension of time to provide the requested information until 2 December 2016 was given by the responsible authority;
The permit applicant provided further information to the responsible authority on 18 November 2016; and
On 14 December 2016, the responsible authority informed the permit applicant that the permit application had lapsed because item 3 of the request for information had not been fully complied with.
In B&K Consultancy, the Tribunal found that the responsible authority's request for information was not made under s.54 of the P&E Act because it was made outside of the 28-day period prescribed under regulation 18 of the Regulations. As a result, the Tribunal found that the permit application had not lapsed and that it was open for the permit applicant to commence a proceeding under s.79 for the responsible authority's failure to grant a permit within the prescribed time.
The applicants submitted that paragraph 14 of the Tribunal's reasons is instructive because it describes what actions a permit applicant should take if they object to any aspects of the further information requested under s.54(1). I do not find the Tribunal's comments on the facts before it in B&K Consultancy instructive or helpful on the facts of this matter simply because the respondent in this matter, unlike the permit applicant in B&K Consultancy, did not object to any part of the RFI.
[2]
WHAT IS THE JURISDICTION OF THE TRIBUNAL IN THIS PROCEEDING?
[3]
The requirement for a permission under clause 44.04-2 of the LSIO is exempt from the notice and review rights of the PE Act. Clause 44.04-6 provides:
[4]
An application under this overlay is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act.
[5]
Further, cl 44.04-7 of the scheme provides for the referral of applications under the scheme and it provides:
[6]
An application must be referred to the relevant floodplain management authority under Section 55 of the Act unless in the opinion of the responsible authority, the proposal satisfies requirements or conditions previously agreed in writing between the responsible authority and the floodplain management authority.
[7]
During the assessment of the permit application by Council, the permit application was referred to Melbourne Water Corporation. In its referral response of 22 June 2022, Melbourne Water Corporation informed Council that it did not object to the proposal subject to the inclusion of the conditions contained in its referral response. The NOD includes those conditions.
Both Council and the respondent submitted that the Tribunal cannot 'go behind' Council's decision to grant a permit under the LSIO and the fact that this permit has been granted was a matter of weight for the Tribunal in arriving at its final determination in the proceeding.
Although the applicants did not provide a written submission addressing the issue of the Tribunal's jurisdiction in this proceeding, Mr Proctor conceded at the preliminary hearing that the applicants did not have the right to seek review of Council's decision to grant a permit under the provisions of the LSIO or clause 52.29 of the scheme. Nevertheless, Mr Proctor also submitted that the Tribunal may reconsider for itself the position taken by Melbourne Water Corporation and ascribe to it whatever weight is considers appropriate when arriving at its final determination. I reject that submission for the following reasons.
In Myers v Southern Grampians SC (Red Dot)[2022] VCAT 695 ('VCAT Myers Decision', I provided a legal opinion that considered, in part, the extent to which a matter exempted from notice and review under s.82(3) of the P&E Act is relevant to the Tribunal's consideration of a review application commenced under s.82(1) of the P&E Act.
That question arose in the context of an application for review commenced under s.82(1) of the P&E Act seeking review, in part, of the responsible authority's decision to grant a permit to construction a building or carry out work under Schedule 6 to the Design and Development Overlay (DDO6) of the Southern Grampians Planning Scheme. The requirement to obtain the permission under DDO6 was exempted from the notice and review provisions of the P&E Act.
In concluding that the Tribunal did not have jurisdiction to review the responsible authority's decision to grant a permit under DDO6, I stated at paragraph 89 -
[8]
On the facts of this matter, a 'tick' has been given by the responsible authority to all permissions required under the scheme for the proposal. Section 82(3) of the Act exempts from third party review, Council's decision to grant a permit under DDO6. The Tribunal does not have jurisdiction to review Council's decision to grant a permit to the respondent under DDO6. The Tribunal in considering the proposal overall must take the grant of a permit under DDO6 as a 'matter that has been established'. The weight to be given to the grant of a permit under DDO6 in the Tribunal's consideration of the 'cover-all' permit is a matter for the Tribunal.
[9]
The VCAT Myers Decision was appealed to the Supreme Court. In the reasons for dismissing the appeal, Justice Quigley held in Myers v Southern Grampians Shire Council[2023] VSC 658 -
I agree with the analysis set out in the Legal Opinion of the Tribunal and the application of the approach by the Tribunal in its merits decision. The Tribunal did not misconceive its jurisdiction nor err by failing to consider compliance with DDO-6. The consideration of 'compliance with DDO-6' was not ignored.
What this means in practical terms is that the Tribunal must accept there is a permission in respect of the DDO-6. This does not prevent the Tribunal receiving and considering evidence that may have been also relevant to matters raised under the DDO-6, if that evidence is relevant to the issues properly before the Tribunal in the review application. Given the planning controls and policies relevant to this proposal, there was inevitably some overlap, in particular in regard to the landscape and visual impacts of the proposal.
This is exactly what the Tribunal did do. It heard evidence from two expert witnesses whose evidence traversed all of the planning controls and policies. Correctly, it did not revisit the merits of the DDO-6 and in its final determination took into account the DDO-6 permission. The weight to be afforded the DDO-6 permissions was properly a matter for the Tribunal.
Mr Proctor's submission that the Tribunal can interrogate the merits of the position reached by Melbourne Water Corporation in its referral response and then ascribe weight to what is concluded by the Tribunal about the correctness of that response is merely another means of inviting the Tribunal to independently review the merits of Council's decision to grant permission under the LSIO for the proposal.
Interrogating a referral authority's referral response, or the reasons for that response, or the material upon which that response was made, in respect of a permission that is exempt from review under s.82(3) of the P&E Act, is merely a means of revisiting the merits of the decision to grant that permission. By inviting the Tribunal to consider the bases for the referral response by Melbourne Water Corporation, Mr Proctor is inviting the Tribunal to exceed its jurisdiction.
The weight that the Tribunal may give to the existence of a grant of a permit under the LSIO in its final determination is a matter entirely for the Tribunal that presides over the final hearing. It is not a matter to be predetermined as part my determination of this preliminary hearing.
[10]
The determinations that I have made above on the issues the subject of the preliminary hearing impact on whether certain grounds of review should be considered at the final hearing. The respondent's application to strike out certain ground of review also requires determination. For efficiency, I will not set out the submissions of each party in respect of each ground but rather provide short reasons for my determination in respect of each ground of review. I have considered the written submissions and oral submissions on behalf of the applicants, Council, and the respondent making my determination regarding the striking out of the grounds of review.
Ground 1 is struck out because it is not the proper subject matter for a review application. In effect it seeks a declaration that previous applications together with current permit application should have been made as one application which is beyond the jurisdiction of the Tribunal in this proceeding commenced under s.82(1) of the P&E Act as limited by s.82(3) of the P&E Act. The ground is struck out because it is misconceived.
I am not satisfied that Ground 2 should be struck out. The respondent seeks to challenge the reason for referral of the permit application to Agriculture Victoria by Council as a basis for striking out this ground. The relevance of an opinion by Agriculture Victoria to whether the proposed dwelling is required for the proposed horse activities under the provisions of the FZ is a matter than can be considered at the final hearing.
I am not satisfied that Ground 3 should be struck out. The ground involves consideration of the size of the land to accommodate the proposal. The relevance of this ground can be determined at the final hearing.
Ground 4 alleges that the permit application has lapsed. As I have determined that the lapsing of a permit application is not relevant to an application for review commenced under s.82(1) of the P&E Act, Ground 4 is struck out because it is misconceived.
Ground 5 alleges that the advice of Melbourne Water Corporation (which I interpret as a reference to the referral response of 22 June 2022) was based on inaccurate and misleading AHD's and contour lines in the permit application plans. That ground impermissibly seeks to interrogate the merits of Council's decision to grant a permit under the LSIO and is struck out because it is misconceived.
Ground 6 alleges that the proposed use of the land for a dwelling is prohibited. The proposed use of the land for a dwelling is not prohibited under clause 35.07-2 or any other provision of the scheme. Ground 6 is struck out because it is misconceived.
Ground 7 raises a matter the relevance of which can be determined at the final hearing.
Ground 8 is struck out because the contents of the septic tank application (which is a separate application to the permit application the subject of the decision in this proceeding) is not a reviewable in a proceeding commenced under s.82(1) of the P&E Act and therefore the ground is misconceived.
Ground 9 is struck out. This ground does not raise any merits issue to be determined at the final hearing. At its highest, it alleges that there have been changes between the permit application plans as originally lodged and those that form part of the amended permit application. Even accepting that the statements contained in that ground are correct, the ground does not, as currently drafted, provide a reason for refusal of the permission required under the FZ. Ground 9 is struck out because it lacks substance.
Ground 10 raises a matter the relevance of which can be determined at the final hearing.
Ground 11 raises a matter the relevance of which can be determined at the final hearing.
Ground 12 involves consideration of the material before Melbourne Water Corporation as a referral authority under the LSIO. Ground 12 is struck out because it is misconceived.
Grounds 13 is struck out as it not a proper ground of review in a proceeding commenced under s.82(1) of the P&E Act. The nature of the proceeding is not a judicial review of the assessment of the permit application before Council. Ground 13 is struck out because it is misconceived.
Ground 14 is struck out because it refers to conditions required to be imposed by Melbourne Water Corporation in its capacity as a referral authority for the permission required under the LSIO. Ground 14 is struck out because it is misconceived.
Ground 15 involves consideration of matters the relevance of which may be determined at the final hearing.
The third last sentence in Ground 16 is struck out because it does not raise a proper ground of review in a proceeding commenced under s.82(1) of the P&E Act. The proceeding does not involve a judicial review of the assessment of the permit application. This sentence is struck out because it is misconceived.
The second last sentence in Ground 16 is struck out because it questions whether the proposed elevated Horse Pen/Ground was referred to Melbourne water Corporation and that is irrelevant to consideration of whether a permit should be granted under the FZ. This sentence is struck out because it is misconceived.
Ground 17 is struck out because it does not raise any ground for refusal of a grant of permit under the FZ. Ground 17 is struck out because it lacks substance.
Ground 18 involves consideration of the permission sought under clause 52.29. At the preliminary hearing, the applicants withdrew that ground. The grounds of review are amended to remove ground 18.
At the preliminary hearing, the applicants also sought to delete reference to 'Clause 44.04 LSIO Schedule' and 'Clause 52.29 Land adjacent to Principal Road' in ground 19. Ground 19 will be amended accordingly.
[11]
[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[12]
[2] All the submissions provided on behalf of the applicants were provided to the Tribunal prior to 4.00pm on 5 April 2024 in accordance with the Tribunal's order of 1 March 2024.
[13]
[3] See email correspondence received by the Tribunal at 3.56pm on 5 April 2024.
[14]
[4] See email correspondence received by the Tribunal at 3.49pm (re attachment) and 3.55pm (submission)on 5 April 2024.
[15]
[5] See email correspondence received by the Tribunal at 3.47pm on 5 April 2024.
[16]
[6] See email correspondence received by the Tribunal at 3.54pm on 5 April 2024.
[17]
[7] All were received prior to 4.00pm on 19 April 2024 in accordance with the Tribunal's order of 1 March 2024.
[18]
[8] All references hereafter in these reasons to 'the parties' excludes Melbourne Water Corporation'.
[19]
[9] A permit for use of the land for a dwelling is required under the Table of Uses at clause 35.07-1 because the area of the land is less than 40 hectares.
[20]
[10] At the preliminary hearing, ground 18 in the document entitled 'Grounds of Objection' submitted with the application for review as withdrawn by the applicants' representative.
Parties
Applicant/Plaintiff:
Jordan
Respondent/Defendant:
Baw Baw SC [2024] VCAT 444
Legislation Cited (5)
Environment Act 1987
Civil and Administrative Tribunal Act 1998
Protection Act 2017
Legislation Act 1984
Environment Regulations 2015
Cases Cited (4)
Jordan v Baw Baw SC [2024] VCAT 444 (15 May 2024)
Application for review under s.82(1) of the Planning and Environment Act 1987 (Vic); Preliminary hearing; Consideration of Myers v Southern Grampian SC (Red Dot)[2022] VCAT 695; Land Subject to Inundation Overlay under Southern Grampians Planning Scheme; Application to strike out grounds of review; Proper parties to the proceeding; Lapsing of permit application under s.54B of the Planning and Environment Act 1987 (Vic).
The above definition of road although an inclusive one is confined by the nature of the examples given, none of which extend to include an internal private driveway or access track within the boundaries of premises (by operation of the maxim 'eiusdem generis rule').
On behalf of the applicants, it was contended that the words 'whether a thoroughfare or not and whether accessible to the public generally or not' operate in such a way as to extend the meaning of road to a private driveway on private premises. I reject that submission for the following reasons.
While it is accepted that a road does not have to be a 'thoroughfare' (that is providing access through one place to another) the nature of the examples given make it clear that what is covered by the term 'road' is a defined area of land providing a way by which the public by means of transportation as allowed (by vehicular, pedestrian, bicycle and the like) traverse from place to place. The concluding words 'whether by a thoroughfare or not and whether accessible to the public generally or not' merely recognises that some roads may not form a route between two places and some roads may not be generally open to the public. These characteristics of what may constitute a road do not operate to convert an internal private accessway or driveway from a property boundary to a dwelling into a 'road'. Put simply, the concluding words derive meaning from the context in which they appear and do not extend the meaning of the word 'road'.
I do not accept the applicants' submission that the Tribunal's reasons in Rizza v Wellington SC[2013] VCAT 1475 ('Rizza') should be relied upon to support the proposition that the first requirement of clause 35.07-2 should be interpreted as requiring an internal driveway or accessway to a dwelling to meet the requirements of an 'all weather road'.
While in Rizza the relevant scheme provision (clause 32.06-2 of the Wellington Planning Scheme) was similarly worded, the Tribunal's reasons (without detailed knowledge of the submissions considered by the Tribunal) -
Do not examine, by reference to accepted statutory interpretation methods, whether the meaning of 'all weather road' in clause 32.06-2 extends to an internal driveway or internal accessway. It appears that the Tribunal accepted, without consideration, that an internal driveway was a 'road' and moreover required to be an 'all weather road' for the purposes of that clause.
Do not deal with the consequences of failing to comply with the requirements of clause 32.06-2 - that the permit application is therefore prohibited and cannot proceed to assessment. It appears that the Tribunal proceeded on the basis that the pre-requisite existence of an all weather road, as distinct from an all weather accessway or driveway as part of the proposal, internal to the relevant land was a consideration relevant to the merits of the permit application as was the existence of the exemption from the need to obtain a permit for 'roadworks' under clause 62.02-2.
As stated above, a notice given by a responsible authority under section 54A(4) of the P&E Act is not required to comply with the requirements of a notice given under s.54. Accordingly, the new lapse date set out in Council's letter of 14 July 2022 was not required to state that the permit application would lapse if the further information requested under the RFI was not received before 12 September 2022.
On the facts of this matter the final lapse day is 12 September 2022 because it is the new lapse date set out in Council's correspondence of 14 July 2022 which constitutes a notice under s.54A and none of the circumstances described in ss.54B(2)(c) or (d) apply. Therefore, the respondent was required to provide the further information requested under the RFI by 12 September 2022 because that is what was required by Council's letter of 14 July 2022.
On the facts of this matter, the permit did not lapse because the further information provided by the respondent to Council in two tranches on 9 August 2022 and 12 September 2022 was not received by Council before 12 September 2022.
I reject the applicants' submission that the level of detail provided in the respondent's response to the RFI was not sufficient to meet the description of the information set out in the RFI. On the facts, Council attained the requisite level of satisfaction regarding the sufficiency of the information provided by the respondent in response to the RFI. Any challenge to whether it was reasonable for Council to be so satisfied is not a matter that can be collaterally challenged in a proceeding commenced by way of an application for review under s.82(1) of the P&E Act.
Finally, the applicants relied on previous decisions of the Tribunal in support of their contention that the permit application lapsed on 12 September 2022. I now consider those decisions.
Adigrati v Whittlesea CC[2009] VCAT 67 ('Adigrati') involved consideration of an application for review brought under s.77 of the P&E Act. On the facts of that matter, the responsible authority refused to grant a permit on the sole ground that insufficient information had been provided to enable the responsible authority to decide the application. In its reasons, the Tribunal stated at paragraph 4:
Appears to reason that the operation of the exemption under clause 62.02-2 of the scheme results in a piecemeal approach to the consideration of the permit application as 'per the principles of Pioneer Concrete' without acknowledgement that this outcome is not because of the contents of the permit application but rather the adopted interpretation of clause 32.06-2.
Finally, I do not accept the applicants' submission that what is required by the term 'all weather road' is a road that must be passable by vehicles during all events of inundation. On the fact of this matter, access to the dwelling is via the Koo Wee Rup-Longwarry Road, included in the Transport 2 Zone and part of the identified principal road network for the municipality. I accept that the Koo Wee Rup-Longwarry Road is a fully sealed, constructed road that is passable and usable during both wet weather and dry weather conditions and that for the purposes of clause 35.07-2 is an 'all weather road'.
In conclusion, the permit application is not prohibited under clause 35.07-2 of the scheme.