Victorian Civil and Administrative Tribunal|2004-05-07|Before: Stuart Morris J

Lewand v Hepburn SC [2004] VCAT 834 (7 May 2004)

Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act I summarily dismiss the application for review.

1 On 31 March 2004 the Hepburn Shire Council decided to grant a permit for the development of a single storey dwelling on land at 128 Main Road, Hepburn Springs. Prior to making this decision the application had been advertised and an objection had been lodged by Ms Viesha Lewand. On 15 April 2004 Ms Lewand made application to the tribunal to review the decision of the council. The grounds upon which the appeal were made essentially related to amenity issues and issues concerned with the protection of the historic quality of Hepburn Springs.

2 The subject land is contained in a Residential 1 Zone pursuant to the Hepburn Planning Scheme (the scheme). Within this zone the use of land for a dwelling is a section 1 or as of right use. The land is also affected by the Environmental Significance Overlay under the scheme. Pursuant to this overlay the land is identified as being in both a proclaimed Catchment Protection Area and a Mineral Springs and Groundwater Protection Area. Essentially these environmental significance overlays are directed at ensuring the protection of water catchments and groundwater and, in particular, the protection of these natural assets from the impacts of waste disposal and drainage.

3 The permit applicants have now applied to the tribunal to have the proceeding summarily dismissed. This application is essentially predicated upon the contention that the application for review is misconceived or is hopeless because it is based upon considerations which are outside of the scope of permissible considerations under the Environmental Significance Overlay. That overlay requires a permit to construct a building. It contains decision guidelines (in clause 42.01-3 of the scheme) which focus upon the environmental significance of the land specified in the schedule to the overlay. However these guidelines also make general reference to clause 65 of the scheme and State and local policies.

4 Mr Sullivan, who appeared on behalf of Ms Lewand, contended that the general references to policies and to clause 65 in the decision guidelines for the environmental significance overlay brought into play matters in the scheme in relation to amenity and the impact of the proposed dwelling on the historic ambience of Hepburn Springs. This argument has some superficial appeal in the light of the words in clause 42.01-3 of the scheme. However in Victorian National Parks Association Inc v Illuka Resources Limited[1] of the principle identified by the Full Court of the Supreme Court of Victoria in National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited, the range of relevant considerations was confined to the matters identified in the specific provisions pursuant to which a permit was required. In that case I compared clause 65 of the scheme with the former clause 5A of the Melbourne Metropolitan Planning Scheme and concluded that it is the intention of the scheme that clause 65 and policies be relevant not in every sense, but rather insofar as they apply to the purpose of the particular provision.

5 I provided a copy of the Victorian National Parks Association Inc case to Mr Sullivan who has read it. I also invited further submissions which he has made. Not unsurprisingly, I do not change my view from that expressed in the VNPA case. This is an issue of great importance to the tribunal. It is important that, not only is the law applied correctly, but also that it be applied consistently. In writing the Victorian National Parks Association Inc decision I was conscious of the need to closely and carefully analyse the law and form a view as to the correct position. I am not persuaded to change that view. I intend to apply it. Applying it means that the case to be raised by the objector is misconceived, as it is not within the parameters of a permissible appeal in the context of the only need for a permit being the Environmental Significance Overlay.

6 I might add that the way in which the council officer appeared to deal with the matter in preparing the report on the matter may have created the impression that a broader range of issues was relevant. Further, this is a complex area and I have no reason to doubt the bona fides of Ms Lewand in pursuing the matter. But in a sense her real complaint, as I find it, is not about a matter that is within the scope of the discretion available to the tribunal under the ESO, rather it is a complaint that the provisions of the Residential 1 Zone should contain a provision which would ensure that houses that are built respect the heritage ambience of the area and have regard to amenity considerations.

Lewand v Hepburn SC [2004] VCAT 834

At a glance

Court

Decision date

Before

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Judgment (11 paragraphs)

Lewand v Hepburn SC [2004] VCAT 834 (7 May 2004)

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