For the Responsible Authority Kingston City Council

Ms Jaclyn Murdoch, town planner and appeals advocate for the City of Kingston appeared for the responsible authority. She presented written and oral submissions

Various plans, photographs and other documents were tendered. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s 149(A) of the Planning and Environment Act 1987 for a declaration that:

"With respect to 6 Gnotuk Avenue, Aspendale, the 4.5m setback from the Foreshore Reserve boundary stated in DDO7[1] should be measured from the PPRZ[2] boundary."

Residential 1 Zone and subject to a Design and Development Overlay (Schedules 1 and 7) under the Kingston Planning Scheme

Irregular though rectangular area of land save that the frontage to the south side of Gnotuk Avenue which is in three segments on different alignments

Lot 8 on lodged Plan 6944 being the land in Certificate of Title Volume 4807 Folio 371

1. This case concerns an application for a declaration. It arises from a proposal to make some relatively minor extensions to an existing house on the subject site at 6 Gnotuk Avenue, Aspendale. It is necessary to understand the somewhat complex situation that exists in relation to this piece of land. It is located on the southern side, and at the eastern end, of Gnotuk Avenue. As such it is closer to Port Phillip Bay than any of the other properties in Gnotuk Avenue save for No. 5 which is in an equivalent position on the north side of the avenue.
2. In this locality the coast of Port Phillip Bay runs on a bearing of approximately north-northwest to south-southeast. However, for the purposes of these reasons it is convenient to regard the coastline as running north to south in this location.
3. The Nepean Highway, in this locality, runs approximately parallel to the coastline. It is a major road that runs north to south approximately 400m inland. Gnotuk Avenue runs to the west from "T" intersection with Nepean Highway to the Port Phillip Bay foreshore area. I here use the word "area" deliberately as there is controversy in this case as to the extent of a foreshore reserve.
4. There are residential properties along the northern and southern sides of Gnotuk Avenue. The subject site, at No. 6 Gnotuk Avenue, is located on the southern side of the avenue and is the western-most of the residential properties on the southern side of that street. It is in a Residential 1 Zone under the Kingston Planning Scheme. So are the other residential properties on either side of that street and indeed the others running to the north and south between the Nepean Highway and the western side boundaries of the western-most properties.
5. Gnotuk Avenue provides access to all the properties fronting its northern and southern sides including, of course, the subject site. No. 5 Gnotuk Avenue is located immediately opposite the subject site on the northern side of the avenue. It shares with the subject site the status of being one of the western-most residential properties in the street.
6. Gnotuk Avenue is not a dead end or cul de sac. Although it narrows at its western end it runs past the whole of the northern frontage of the subject site and the southern frontage of No. 5 to connect with the foreshore area. The foreshore area is between the residential properties in the Residential 1 Zone and the waters of Port Phillip Bay. Thus Gnotuk Avenue provides vehicle access to a substantial car parking area that has been developed on the foreshore area, apparently to provide vehicle accommodation for beachgoers. The car park area stretches several hundred metres to the north and south of Gnotuk Avenue with a central north-south driveway giving access to 90º car parking spaces on either of its sides.

1. It is apparent that this car park area is well above the present day high water mark or mean high water mark in relation to this part of the coast. Although it is obvious that this is the present situation, the evidence called in this case does not disclose whether that situation arises because of development works having changed the situation to provide for the car parking or whether the high water mark or mean high water mark was ever further east than it now is. Although the current day high water mark or mean high water mark is obviously to the west of the car park development, the evidence does not disclose where such lines are to be found, even today.
2. Interest in the high water mark arose in case it defined the extent of a foreshore reserve that is relevant. Ultimately it has not been clarified as to whether or not the reserve is defined in terms of the high water mark whether in terms of the present or some past time or times.
3. The land to the east of the Residential 1 Zone is in a Public Park and Recreation Zone (PPR Zone). This PPR Zone includes foreshore land, or at least land west of the Residential 1 Zone, including the area of the car park and land on either side of the elongated car park, as well as the beach area and land covered by Port Phillip Bay waters. For present purposes I need not go into how far the zone might extend out to sea.
4. There are several strange little lot boundary and zone boundary peculiarities. The town planners who appeared in this case favoured the word "anomaly".
5. The subject site is Lot 8 on Plan of Subdivision 6944. That plan of subdivision created eight lots, four on the northern side and four on the southern side of Gnotuk Avenue. Some of those original lots have since been further subdivided but that does not apply to the subject site or to No. 5. While the subject site is Lot 8 and No. 5 is Lot 4 on that Plan of Subdivision. The western side boundaries of both these lots are in alignment. In the case of Lot 4 (No. 5 Gnotuk Avenue) lot boundary is also the western edge of the Residential 1 Zone and its common boundary with the PPR Zone to its west. The same is not true in relation to the subject site.
6. That zone boundary continues south along the western side of No. 5 and across Gnotuk Avenue, but when it reaches the northwest corner of the subject site there is a distinct kink. The Residential 1 Zone boundary turns west at that point for approximately 3.4m before turning south again parallel to but at a remove of 3.4m to the west from the western boundary of the subject site. (In fact the Residential 1 Zone boundary is not quite parallel to the western side boundary of the subject site. The strip of land between them wides gradually as it runs to the south.) This intervening residential land is not contained within the residential allotment of the subject site. It continues further south so as to leave a gap of Residential 1 Zone between the PPR Zone to the west and the subject site, and also the adjoining Residential 1 Zone allotment on the southern boundary of the subject site. That situation continues along almost all of the western boundary of the adjoining property to the south. Then there is a small title hiatus, though it is not necessary for present purposes to explore that. The next residential property further again to the south has its western boundary common with the western boundary of the Residential 1 Zone which is the common zone boundary with the PPR Zone. In that respect it is like No. 5 Gnotuk Avenue but different to the subject site.
7. Thus there is a strip of Residential 1 Zone land that is not part of the title to the subject site, and which is at least 3.4m wide, located on the western boundary of the subject site and between it and the zone boundary of the PPR Zone. It appears from photographs that this strip of Residential 1 Zone land has some coastal vegetation on it and is not physically separated from the car park to its west. The dispute in this case turns on that unusual strip of land.
8. The researches of those who appeared in the case do not disclose how it has come about that this strip of Residential 1 Zone land should exist between the subject site and the PPR Zone. It might normally be anticipated that such a strip of land would be part of the subject site and, similarly, of the adjoining property to the south. Such researches do not disclose conclusively whether this strip of land is privately owned land or whether it is Crown land. It may be that it is alienated land[3] that has been left in the parent title at the time of the creation of Subdivision 6944 (or perhaps some earlier subdivision).
9. I have no means of knowing, on the evidence before me, whether that is the explanation. It may be that further title searches would disclose the situation in this respect. The town planner who appeared on behalf of the responsible authority had conducted a number of searches of title in an attempt to understand the situation, but she limited herself to the information that could be obtained electronically. I do not know whether a skilled and experienced title searcher, perhaps attending the Land Titles Office, might be able to discover more information in this respect.
10. Why does it matter? The question arises because of the terms of the Design and Development Overlay in cl 43.02 of the planning scheme and Schedule 7 thereto. The overlay provisions themselves are part of the Victoria Planning Provisions which appear in all Victorian planning schemes, whereas the schedule is a local Kingston provision.
11. Clause 43.02-2 relates to buildings and works and provides that a permit is required to construct a building or carry out works on land covered by the overlay. The subject site is subject to the overlay. There are a couple of exceptions in the clause but they do not apply here. (That is subject to what appears in paragraph 20 below).

"Buildings and works must be constructed in accordance with any requirements in a schedule to this overlay. A schedule may include requirements relating to:

• Building setbacks.
• Building height.
• Plot ratios.
• Landscaping.
• Any other requirements relating to the design or built form of new development."

1. I would read this provision as meaning that a local schedule can contain requirements as long as they relate to one or more of the above dot points. I would not read it as meaning that the schedule can impose any requirements relating to anything. I think the schedule must be regarded as subsidiary to the overlay and that what it may contain is controlled by the overlay provisions.
2. I have mentioned that there are exceptions to the overlay requirements for a permit for buildings or works and that they are not relevant but there is an important exception to the effect that no permit is required if a schedule to the overlay specifically states that it is not required.
3. The relevant schedule in this case is Schedule 7. Schedule 7 has two design objectives in its cl 1. They read:

" ● To protect and enhance the visual and aesthetic appearance of the foreshore area.

• To encourage new buildings and works that are sympathetic to the surrounding foreshore environment."

1. Clause 2 of the schedule deals with buildings and works. It provides that a permit is not required as follows:

"A permit is not required to construct or carry out any of the following buildings or works within 4.5 metres of the foreshore reserve boundary:

• Eaves up to 500mm.
• A fence.
• A clothes line.
• A clothes hoist.
• A swimming pool.
• A change to the existing conditions or topography of the land."

1. It seems to me that there is a problem in relation to the drafting of Schedule 7. The expression "foreshore reserve boundary" proves to be important in what has just be quoted, and even more important in a subsequent provision in cl 2 of the schedule. The difficulty is that the foreshore reserve boundary is not defined. The use of the expression implies that there is a foreshore reserve but it gives no clue as to its nature or extent or when and by what authority it was created or whether its extent has varied from time to time for example by accretion or movement in high and low water marks or by virtue of developments. It may be that the extent of a foreshore reserve is defined by the legislation creating it or in instruments made under that legislation. To determine that it is necessary to know when the reserve was created, how its boundaries were defined and whether they have changed over time or from time to time. None of this is ascertainable from the evidence that has been tendered in the present case. It may well be that the boundary of whatever foreshore reserve is in question has nothing to do with high water marks or mean high water marks or any other water marks. It is possible that there is some coincidence between the eastern boundary of the foreshore reserve in this locality and the zone boundary between the Residential 1 Zone and the PPR Zone. It is also possible that there might be coincidence with the land title boundary of the subject site. It is further possible that the eastern boundary of the foreshore reserve does not coincide with either of these lines. It may be further to the west. It may relate to high water marks or mean high water marks. These high water mark lines may have varied over time. It is likely that the reserve with its fixed or moveable boundary was created long before the imposition of the zones under the planning schemes or, for that matter, the creation of the boundaries of the subject site.
2. There is another arguable complication in seeking to interpret cl 43.02-2 with Schedule 7 of the overlay. The last paragraph of cl 43.02-2 reads:

"A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement of a schedule to this overlay, unless the schedule specifies otherwise."

1. Clause 43.02-2 creates a rule that a permit is required for buildings or works. It contains exceptions to the rule. It enables the schedule to specify exceptions to the rule. It does not appear to me to authorise the schedule to prohibit buildings or works. It authorises the schedule to impose requirements as to building setbacks, height, plot ratio, landscaping and matters of design and built form but its last paragraph enables a permit to be granted under cl 43.02-2 to overrule any such requirement.
2. Schedule 7, in its cl 2 and under a subheading that reads "Permit requirements", does not purport to impose the requirement for a permit, but rather purports to prohibit the grant of a permit in certain circumstances. I do not see where cl 43.02 authorises such a prohibition. In any event, the particular provision reads as follows:

"A permit must not be granted to construct a building or construct or carry out works within 4.5 metres of the foreshore reserve boundary."

1. As I have said, I do not see where cl 43.02 in relation to Design and Development Overlay authorises such a provision. If it was a "requirement" under cl 43.02-1 the last paragraph of cl 43.02-2 appears to authorise a permit to override it. That all appears to be rather circular.
2. The case before me was presented on the basis that the sentence under "Permit requirement" in cl 2 of Schedule 7 quoted in paragraph 26 above prohibits a permit from being granted for a building within 4.5m of the foreshore reserve boundary and that consequentially building within that limitation is prohibited. Whether that is correct or not, it makes no sense, or at least is unable to be applied, unless the foreshore reserve boundary can be determined.
3. The question arises because the applicant wants to add a couple of bay windows and some other bits to the western side of the house that exists on the subject site. Are such additions prohibited because of being within 4.5m of the foreshore reserve boundary?
4. The responsible authority takes the view that the eastern boundary of the foreshore reserve is on the western title boundary of the subject site and thus that the reserve includes the strip of Residential 1 Zone land, whether it is alienated and in private ownership or remains as Crown land. This strikes me as possible but unlikely. The proposed works would be within 4.5m of the western title boundary of the subject site. As a matter of fact, the existing building on the land comes within that limitation.
5. It is said on behalf of the responsible authority that it "submits" that the foreshore reserve boundary is on the western boundary of the title. A submission that is not supported by evidence or law or both does not seem to me to establish the point contended for.
6. It is submitted on behalf of the applicant that the boundary of the foreshore reserve is on the zone boundary between the Residential 1 Zone and the PPR Zone. Although this may be more likely, the evidence presented in this case does not support that proposition either. They might well both be wrong.
7. The advantage, from the point of view of the applicant, is that if the present setback of the house from its title boundary is taken into account in addition to the 3.4m strip of residential land, then the existing house and the proposed additions will be beyond 4.5m from the zone boundary and thus, according to its submission, more than 4.5m from the foreshore reserve. Actually, the western boundary of the foreshore reserve might well be further again to the west.

Chelsea Lands Act 1981

1. I was referred to the Chelsea Lands Act 1981 (the Act) by the responsible authority. That Act contains a lengthy preamble. The Act does not enact the propositions that appear in the preamble. Rather, the preamble sets out the problem situations that have given rise to the need for the Act. The problems arise because there is uncertainty about the extent of land holdings in the area covered by the Act.
2. The Act does not refer to or define any foreshore reserve or the boundary of any foreshore reserve. Rather it is defining the extent of privately owned land that has been alienated from the Crown. The preamble, if anything, serves to show how doubtful the situation was before that Act and the problems that existed as to the extent of alienated land before its enactment. It rather creates more doubt than clarity as to any foreshore reserve or foreshore reserve boundary are concerned. It provides no clarification as to such matters.
3. The preamble reads:

"WHEREAS certain lands of the Crown (hereinafter called the "alienated lands") in the Parish of Lyndhurst were granted in fee simple in the years of 1865 and 1866:

AND WHEREAS the alienated lands were described in the relevant Crown grants as being bounded on the east or north-east (as the case may be) by a road (now known as Nepean Highway) and on the west or south-west (as the case may be) by a reserve 100 feet wide on the east side of Port Phillip Bay (hereinafter called the "foreshore reserve"):

AND WHEREAS it appears that the position of the foreshore reserve was determined by reference to the high water mark of Port Phillip Bay at the time of the relevant Crown grants:

AND WHEREAS by Order in Council dated 12 November 1872, the foreshore reserve was permanently reserved for public purposes:

AND WHEREAS the alienated lands have been subdivided and re-subdivided into smaller allotments:

AND WHEREAS it appears from the dimensions shown in the certificates of title to certain allotments created by subdivision or re-subdivision of the alienated lands that the certificates of title and the plans of subdivision on which they were based were prepared on the view that the location of the foreshore reserve was required to be determined by reference to the high water mark of Port Phillip Bay at the time of any relevant subdivision or re-subdivision:

AND WHEREAS the high water mark of Port Phillip Bay has generally been receding along the material portion of its shore:

AND WHEREAS in reliance upon the dimensions shown in certificates of title of the alienated lands portions of the foreshore reserve are occupied by the registered proprietors of adjoining lands:

AND WHEREAS it is expedient to provide that the alienated lands shall be deemed always to have included the lands occupied in reliance upon dimensions shown in certificates of title issued in respect of portions thereof:..."

1. The preamble recites that the foreshore reserve is 100 feet wide and that it has been permanently reserved for public purposes. It does not refer to the actual location of the 100 foot wide reserve. It talks of high water marks at varying times and notes that the high water mark has moved from time to time. None of this fixes the boundary of the reserve. To ascertain that would require further research into old Crown grants and high water marks at the time of such grants. The Act itself is not concerned to define the reserve but rather the extent of alienated land.
2. Section 2 of the Act seeks to clarify, or rather to make certain for the future, the extent of certain private lands. Subsection (g) is said to contain what is relevant to the present case. It reads:

"(g) the land delineated on the plans in parts 1 to 4 of Schedule Seven shall be deemed to have been the land respectively comprising Crown allotments 7, 8, 9, and 10 (which subject to any inclusions or excisions are now respectively known as Crown allotments 7A, 8A, 9A and 10A), Parish of Lyndhurst, granted by Crown grant entered in the Register Book Volume 177 Folio 35398;"

1. Section 2(g) refers to Schedule 7 of the Act and to plans 1-4 thereof. The part said to be relevant is Part 3 of Schedule 7. That plan depicts the Nepean Highway but not Gnotuk Avenue. However, it does depict Roycroft Avenue. Roycroft Avenue is a little street parallel to Gnotuk Avenue that runs between the Nepean Highway and the foreshore area. According to current maps, it is the next such street to the north of Gnotuk Avenue. Accordingly it should be possible, from the plan in Part 3, to determine the present day extent of the alienated land of which the subdivision and the subject site are part. There is even a kink in the western boundary of the plan on Part 3 although that kink does not appear to me to be in the correct position to be the kink that I have previously referred to. I may be incorrect in that. The scale of the Part 3 map as it appears in the Act is such that it is impossible to clearly define the extent of the alienated land from it. That would be, I fear, a task for a surveyor. No such evidence is before me. It is, perhaps relevant to this extent; that it is unlikely that any foreshore reserve extends onto alienated land.

1. I was also referred to the Crown Lands (Reserves) Act 1978 and to a page or two from the Coastal Management Act 1995. The Crown Lands (Reserves) Act, as its name suggests, relates to reservations of Crown land and deals with an area of law previously covered by the Lands Act 1958 and other forerunners of that Lands Act going back to at least the Lands Act 1869.
2. I have been given a somewhat indistinct photocopy of a page of a printed notice over the hand of JJ Casey, Minister of Lands and Agriculture, and President of the Board of Land and Works, care of Land and Survey Office, Melbourne. This notice is headed "LANDS PERMANENTLY RESERVED FROM SALE". Although not disclosed on its face as such, this is page 1059 of the Government Gazette of 26 May 1873.
3. It commences by stating:

"In pursuance of the provisions of The Land Act 1869 (88 Vict. No. 360, s 6 and 8), and in fulfilment of intention duly notified, the Administrator of the Government, with the advice of the Executive Council, has reserved from sale, permanently, the lands hereinafter referred to, pursuant to notice given in the issue of the Government Gazette mentioned in each instance and in subsequent issues thereof, viz. :-"

1. The notice then goes on to set out two items under a central subheading that reads "Reserved by Orders of 26 May 1873." The second of these items reads:

"Shore of Port Phillip Bay - Site for Public purposes. See Gazette, 20 March 1873."

1. There are some indecipherable manuscript notations below and in the margin beside this item.
2. I have not been provided with a copy of the Government Gazette for 20 March 1873 and I cannot be sure what light (if any) it might throw upon present concerns or what reserves for public purposes it might have created, or what such purposes were or what their boundaries might be. However I think the Government Gazette of 26 May 1873 creates a Shore of Port Phillip Bay reserve in accordance with that of 20 May 1873 but without defining its extent or boundaries.
3. I have also been provided with a partly completed copy of a license under the Crown Land (Reserves) Act 1978 in relation to land referred to as Site 4 Gnotuk Avenue, Chelsea whereby the Kingston City Council has granted a license to Steve Nicolaou for a mobile food van on a portion of a Chelsea foreshore public purpose reserve reserved by an order in council dated 26 May 1873 (Government Gazette 1873 page 1059). However, I do not think that this license document assists me in determining the extent, location or boundaries of any reserve.

1. I was also given a copy of Local Law No. 4 of the City of Kingston which is known as Foreshore Reserves Local Law 4. It contains some definitions including a definition of "Foreshore Reserve". That definition appears in cl 8 of the bylaw in the following terms:

""Foreshore Reserve" means the area in the municipal district known as the Chelsea Foreshore Reserve as described in the Lands Department correspondence Rs.5000 marked A/17.11.20, and the Mentone and Mordialloc Beach Park as described in Lands Department Correspondence Rs.1819 and Plan marked M/24.11.75."

1. I do not see that this definition assists me in the absence of the Lands Department correspondence referred to in it. The following definition in cl 8 of the bylaw reads as follows:

""Foreshore Reserve Extension" means the area of foreshore between the high-water mark corresponding to the boundary of the Foreshore Reserve and the low water mark from time to time generally westward of that high-water mark."

1. This definition does not seem to be relevant.
2. This may mean that the current Council of the City of Kingston is the Committee of Management for that reserve. It does not assist in relation to its boundaries.
3. I have also been given a copy of page 3644 of the Victorian Government Gazette for 8 December 1920. I understand this to be related to the local law. It has a notice in relation to "COMMITTEES OF MANAGEMENT OF RESERVES". This notice recites a power in the Governor in Council for the Board of Land and Works to appoint committees of management pursuant to s 184 of that Act in relation to specified Crown land reserved temporarily or permanently for any the purposes set out in s 10 of the Land Act 1915. The notice includes the following appointment:

"PORTION OF A RESERVE FOR PUBLIC PURPOSES IN THE PARISH OF LYNDHURST.

The Council of the Borough of Carrum to be a Committee of Management of such portion of the Reserve for Public Purposes in the parish of Lyndhurst as is indicated by pink tint on the plan marked A/17.11.20, attached to Lands file C.71841.−(C.71841.)"

1. I have been given a plan said to be relevant to this. It bears a notation in pink or red reading "A/17.11.20". This may be a handwritten notation. It shows a strip of Port Phillip Bay coastline with a narrow pink line apparently between the water's edge and privately owned land on its inland side. It is a section of coast south of Mordialloc Creek. Such privately owned land appears between the water and the Melbourne and Frankston railway. There are five or six words in the pink line. They are so indistinct that I find that I cannot read them except that I think the fourth and fifth of them appear to be "THE PUBLIC" and the sixth may be "reserve" or "reserves", and may not.
2. Whatever this may be, I think a larger or at least clearer copy would be required, and perhaps the assistance of a surveyor, to make any sense of it. It certainly does not assist me to determine the eastern boundary of any foreshore reserve referred to in Schedule 7 of the Design and Development Overlay in the Kingston Planning Scheme.

1. A declaration is a decision of a court or tribunal that states authoritatively the legal position in relation to a question or situation. In this case, I am asked to make a declaration that the boundary of the foreshore reserve referred to in Schedule 7 of the Design and Development Overlay in the Kingston Planning Scheme is on the eastern boundary of the PPR Zone so far as the land at and near 6 Gnotuk Avenue is concerned, and that the 4.5m setback from such boundary is to be measured from that zone boundary.
2. For the reasons given I do not know and am unable to declare that this is the situation. Equally, and perhaps moreso, I am unable to declare that the eastern boundary of the reserve proximate to 6 Gnotuk Avenue is on the title boundary of that land. Although either proposition may be correct it is quite likely that neither is correct. I consider that I am not in a position to make a declaration.
3. It may be that further investigations, perhaps with the assistance of experienced title searchers or land surveyors, may clarify the situation. In the meantime, no declaration is made.

[1] This expression is an abbreviation for Design and Development Overlay (Schedule 7) under the Kingston Planning Scheme

[2] This expression is an abbreviation for Public Parks and Recreation Zone under the Kingston Planning Scheme

[3] That is alienated from the Crown so as to be private land and no longer Crown land.