1. Whether the condition as proposed in paragraph 1 of the further material filed on behalf of the permit applicant on 16 May 2007 is lawful.

1. Whether the construction of the golf barrier can lawfully be included as a covenant in a section 173 agreement required to be entered into by a permit condition on a planning permit authorising the subdivision of land and the removal of vegetation.

Mr Stephen Jones of counsel, instructed by Minter Ellison.

1. The purpose of this hearing was to determine a question of law. Senior Member Sharkey and Member Read are the members of the Tribunal constituted to hear this proceeding. Deputy President Gibson has been nominated to decide the questions of law identified by the parties pursuant to clause 66(1)(b) of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.
2. The questions of law identified by the parties are as follows:
   1. Whether the condition as proposed in paragraph 1 of the further material filed on behalf of the permit applicant on 16 May 2007 is lawful; and
   2. Whether the construction of the golf barrier can lawfully be included as a covenant in a section 173 agreement required to be entered into by a permit condition on a planning permit authorising the subdivision of the land and removal of vegetation.
3. The permit application which is the subject of this proceeding is for subdivision of the subject land. There have been two previous, unsuccessful applications to subdivide the land, which abuts the Heidelberg Golf Course. The facts are set out in the Tribunal's interim decision dated 17 January 2007. One of the issues raised in the Tribunal's interim decision relates to the installation and landscaping of a golf ball barrier fence at the cost of the permit applicant. On this issue, the Tribunal said:

[71] The issue of protecting future residents from golf balls had been the subject of expert evidence at the earlier review. Evidence had been provided by Mr. R. Baird, consulting engineer with expertise in the design of golf courses. Mr. Baird had concluded that it would be possible for misdirected balls from the Heidelberg Golf Course's fourth tee or the related fairway to cross the boundary of lot 2A. His evidence concluded that a protective barrier should be provided, most appropriately constructed of "pole and net system" with the following characteristics:

My recommendation for the layout of a barrier ... is that it should commence on the western boundary rising to a peak height of 18m over a length of 20m and then to fall to 8m over the entire length, 100m approx, of the southern boundary.

[72] No party contested the credibility of Mr. Baird's evidence or conclusions, but limited submissions to raising questions about, or criticising, the appearance of such a barrier.

[73] Mr. Hooper submitted that the permit applicant was prepared to provide such a barrier and to also provide additional planting along the Golf Course's side of the barrier, so that its appearance would be substantially diminished. Mr. Cicero and Mr. Hooper each provided a draft of a condition requiring construction of such a barrier, that proposed by Mr. Hooper being based on the recommendation of Mr. Baird and including a specific requirement as to landscaping.

[74] We conclude that, in the circumstances of the uncontested evidence provided at the earlier hearing by Mr. Baird, such a barrier should be provided and that additional landscaping should be included. This would assist in screening the barrier in the longer-term and would add further to the vegetated character of the site's locality. Mr. Hooper's suggested condition appears appropriate.

1. The Tribunal gave directions granting the permit applicant an opportunity to submit amended plans and further information. The permit applicant took advantage of this opportunity. In further material submitted by the permit applicant dated 16 May 2007, two conditions were proposed relating to the golf barrier. They are as follows:

[1] Prior to the issue of a Certificate of Compliance a suitable barrier fence shall be constructed, at the expense of the Permit Holder, along the southern boundary of the subject land to prevent the intrusion of golf balls from the adjoining golf course to the south. Such fence shall comprise, inter alia, of a pole and net system commencing on the western boundary rising to a peak height of 18 metres over a length of 20 metres and then falling to a height of 8 metres over the entire length of approximately 100 metres of the southern boundary generally in accordance with the recommendations of R M Baird & Associates contained in the supplementary report dated 27 May 2003 filed in Application for Review No. P3394/2002, to the satisfaction of the Responsible Authority.

[2] A legally binding agreement under Section 173 of the Planning and Environment Act 1987 shall be entered into between the land owner and the Responsible Authority prior to the completion of the subdivision hereby permitted which requires by way of Owners Covenants -

Prior to the issue of a Certificate of Compliance a suitable barrier fence shall be constructed, at the expense of the Permit Holder, along the southern boundary of the subject land to prevent the intrusion of golf balls from the adjoining golf course to the south. Such fence shall comprise, inter alia, of a pole and net system commencing on the western boundary rising to a peak height of 18 metres over a length of 20 metres and then falling to a height of 8 metres over the entire length of approximately 100 metres of the southern boundary generally in accordance with the recommendations of R M Baird & Associates contained in the supplementary report dated 27 May 2003 filed in Application for Review No. P3394/2002, to the satisfaction of the Responsible Authority.

Prior to the issue of a Certificate of Compliance a Landscape Plan and Maintenance Schedule shall be submitted to the Responsible Authority to its satisfaction for its approval, which shall generally be in accordance with the Landscape Plan prepared by Mr Richard Dare, Landscape architect, and which shall include, inter alia:

Provision for screen planting along the barrier fence proposed to be constructed along the southern boundary of the subject land.

1. In order to allow more flexibility, the applicant now submits that the following words be added at the end of the appropriate condition and/or owner covenant

"and/or such other arrangements and/or means or protecting future residents from golf balls, acceptable to the Heidelberg Golf Club, and to the satisfaction of the Responsible Authority."

1. These are the conditions referred to the in questions of law.
2. Under the Environmental Significance Overlay Schedule 1, which applies to the subject land, a permit is required for buildings and works. It is common ground between the parties that a planning permit would be required for the golf barrier under the Environmental Significance Overlay. No application has been made as part of the permit application the subject of this proceeding for such a barrier. The permit applicant has declined the suggestion to amend the permit application to include permission for a golf barrier of the type described in the conditions. Questions have been raised about the impact of the proposed barrier on wildlife and visual amenity. To amend the permit application at this stage would involve delays which the permit applicant does not wish to incur. It was acknowledged unequivocally at the hearing by Mr Hooper on behalf of the permit applicant that a separate planning permit would be required for construction of the golf barrier and that the grant of such a permit would be a condition precedent to the completion of any subdivision that the Tribunal in the present proceeding may decide to grant a permit for if it includes the two proposed conditions in such permit.
3. Other parties contended that the conditions were not lawful because they purport to use a secondary consent mechanism to approve something that requires primary planning permission under the planning scheme.
4. It is a well established principle that a secondary consent mechanism cannot be used to gain primary planning permission.[1] However, I do not consider that this is what these conditions purport to do. They do not purport to authorise construction of the barrier fence; they simply require the barrier to be constructed to the satisfaction of the Responsible Authority prior to issue of the statement of compliance. It is the carrying out of the construction that must be to the satisfaction of the Responsible Authority. The conditions are silent about the steps to be completed before such barrier fence may be successfully and lawfully constructed. Such steps would involve the grant of a planning permit specifically for the barrier fence.
5. The proposed section 173 agreement simply contains a covenant that the owner will construct a fence to the satisfaction of the Responsible Authority at the owner's expense prior to the issue of a certificate of compliance. It does not purport to usurp the need for a planning permit and nor could it.
6. The need for condition 2 was explained by the applicant to be a "belt and braces" job It was to allay any concerns that if the subdivision was completed, the ongoing permit conditions, particularly those relating to landscaping and maintenance, might become unenforceable on the basis that once the subdivision was complete, the respective planning permits were "spent" and the conditions specified under the permit were therefore unenforceable.
7. I do not see the need for a section 173 agreement relating to construction of the barrier fence. If there is a permit condition requiring its construction prior to the issue of a certificate of compliance, there is no need for a section 173 agreement to the same effect. A section 173 agreement specifying responsibility for ongoing maintenance of both the barrier fence and landscaping would be appropriate.
8. However, so far as the lawfulness of the conditions are concerned, I find that they are both lawful. Any reference in the conditions to the barrier fence being to the satisfaction of the Responsible Authority, relates to the construction. Neither condition removes the need for a separate planning permit to be granted for the barrier fence before construction can commence.
9. My response to both questions of law is therefore "yes".
10. A supplementary issue raised was whether the Tribunal could grant a planning permit for the subdivision without a permit also being granted for the barrier fence.
11. I do not consider this is case falling within the principle stated by the High Court in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council[2] that when the use is a single use no piecemeal series of applications is permissible: that the use must be stated in appropriate detail in one application, and all the land involved must be the subject of that application. The Pioneer Concrete case involved the use of part of a piece of land as a quarry. The applicant proposed to construct an access road on part of an adjoining piece of land, but did not include that in its application or any advertising of the application. In the present case, the barrier fence is not proposed to be located on different land. It is not an integral aspect of the use and development applied for. Rather, it is a proposed means of protecting the subject land from use of adjoining land by the Heidelberg Golf Course. Issues associated with the grant of a permit for such a fence are quite separate and distinct to issues associated with subdivision of the subject land. There is no difficulty in understanding the nature of the application for the subdivision or being able to assess it and the need for some sort of barrier fence in the absence of a permit application for the fence. Once it is decided whether a permit for the subdivision should be granted and on what conditions, then the specific design applications of the fence can be determined. I therefore find it is appropriate for a permit application to be made for a barrier fence once the Tribunal has determined whether such a fence is necessary.
12. It is up to the Tribunal to decide whether a barrier fence is required and whether its construction should be a condition of the permit. Equally, it is for the Tribunal to decide when construction should occur. A number of issues were raised about the merits of the proposed conditions. They include:

1. There is no reference to responsibility for maintenance of the barrier fence in the section 173 agreement, which should be provided for. 2. Whether construction of a barrier fence along the southern boundary should necessitate a modification to the layout of the subdivision to ensure that the fence is on common property? This may be required to provide for access to it for the purpose of maintenance and to ensure that it is a body corporate responsibility.

1. Whilst construction may not be required until just prior to the issue of a certificate of compliance, whether approval should be required at an earlier stage. A concern was raised about what would happen if subdivision works proceeded and the vegetation was removed before a permit was granted for the barrier fence. In the event that no permit was granted, it would mean that the subdivision could not proceed and that the works would be wasted. Alternatively, completion of the subdivision works would create undue pressure to approve the fence.

1. The very specific description of the fence in the conditions means that if a permit was subsequently granted for something different, an amendment to the subdivision permit would be required.
2. Whilst these are legitimate concerns, in my view they go to the merits of the conditions and do not effect their lawfulness. They are matters that Senior Member Sharkey and Member Read must determine.

[1] See Kitsone Pty Ltd v City of Doncaster and Templestowe (appeal 1992/31062); Pisanelli v Yarra CC [2004] VCAT 2033

[2] [1980] HCA 1; 44 LGRA 346