5m long x 0.9 wide grated outlet pit. Outfall flow will be pre-developed only grated pit will spread flows onto adjacent landowner

1. The words 'outfall flow will be pre-developed only' apparently means to convey the flow of water from the subject site onto Mr Love's land will be no greater than the flow which occurred before the development allowed by the relevant permit.

1. Solicitors acting for Mr Love filed the present application on 5 January this year. It sought a series of declarations pursuant to Section 149B of the Planning and Environment Act 1987. A 'revised' form was filed on 29 May 2009. It sought declarations that certain plans 'have not been endorsed under permit [709220]' and a declaration that Whittlesea City Council as responsible authority 'does not have the power to endorse the plans ...'. At the hearing Mr Peake of Counsel who appeared for Mr Love requested the deletion of certain of the plans referred to. The further revised list now stands as follows:
   • Drainage strategy plan by Coomes Consulting, Drawing No. 131663DO2 Revision C dated 13 August 2008
   • Drainage strategy plan Drawing No. 131663DO3, Revision B dated 13 August 2008
   • Drainage longitudinal section, Drawing No. 131663DO4, Revision B dated 13 August 2008
   • O'Herns Road crushing and batching plant concrete and batching plant DRG No. 131663GO1 Rev B dated 11/02/2009
   • Dust management plan by GHD - Aurora recycling and concrete batching plant at Epping undated
   • O'Herns Road crushing and batching plant detailed plan concrete and batching plant DRG No. 131663GO5 Rev B dated 11/02/2009.

1. Section 149B of the Planning and Environment Act 1987 empowers the Tribunal inter alia to make a declaration s to anything done by a responsible authority under that Act.
2. In setting out the role of the Tribunal in a proceeding such as this I take the liberty to quote from one of my own decisions to which I was referred in the course of the hearing by Counsel for the second respondent.

In truth there is no single test for whether declaratory relief should be given under Section 149B of the Planning and Environment Act 1987 where the purport of the application is that a particular action or determination is void. There are as many grounds for the Tribunal to make such a declaration as the general law on judicial review provides grounds for attack upon administrative action. Whole textbooks have been written on the subject. What is necessary is that a legal flaw must be found in what has been done. It is insufficient for an applicant for declaratory relief to persuade the Tribunal that had the Tribunal been 'standing in the shoes' of the decision maker it would have done otherwise. If the decision maker has acted legally and properly in making the impugned determination it cannot be declared invalid.

There is a well established principle in private law that the exercise of a right, for instance, to cancel a contract may later be defended in court upon a basis other than the one which the actor had in mind, even if the ground later relied upon was wholly unknown to him. Shepherd v Felt and Textiles of Australia [1931] HCA 21; (1931) 45 CLR 359.

MacMillan v Port Phillip City Council and Havercroft Pty Ltd [2005] VCAT 1793 [32], [35]

1. This private law principle operates similarly in the public arena as for instance in planning matters.

1. Mr Peake, Counsel for Mr Love relied on evidence from Mr Graeme Martin (an engineer specialising in quarries) to the effect that the crushing plant which has been constructed on this site is not a mobile crushing plant rather it is a fixed plant having an output capacity of 175 to 225 cubic metres per hour. Mr Peake also relied on evidence from Mr Morden who carried out an earlier photographic survey. This survey Mr Peake submitted demonstrated that the crushing area in its northernmost to its southernmost point covers 510m and the area used for crushing purposes is 70m at its narrowest. He said the crushing and stockpiling occupies an area of approximately 50,000 sq m. A large part of the stockpile area south of the leachate pond is constructed over the landfill cap and over the gas collection system associated with the landfill and the concrete batching plant has been constructed over the perimeter of the landfill cap drain.
2. According to Mr Peake in the relevant zone pursuant to Clause 32.01-4 a permit was required to construct a building or to carry out work. Mr Peake relied on the definition of building in Section 3 of the Planning and Environment Act 1987 as including 'a structure and part of a building or a structure ...'. As to what constituted a structure he referred to Poohawk Pty Ltd v Glen Eira City Council (2007) 27 VPR 182 and a decision of the Supreme Court of Victoria O'Brien v Shire of Rosedale [1969] VicRp 13; [1969] VR 112, 116-7. He noted the size of the crushing plant and the large number of semi-trailer vehicle loads necessary to deliver its components. He referred to photographs which show concrete fitting to which the plant items are affixed by 'embedded holding down bolts'. He said many days would be entailed in dismantling and disconnecting the plant presumably requiring the same number of semi-trailer loads to remove it.
3. Accordingly submitted Mr Peake, the crushing plant required a permit and no permit had been obtained. He said:

As buildings and works require a primary planning permission and there is no such planning permission, it is submitted that the .......... crushing plant cannot be the subject of a secondary consent approval.

1. Mr Peake said that the permit here should be construed 'having regard to its language and the plans referred to in Condition 1.' He also suggested that regard should be had to:
   • The permit application and application plans.
   • The amended application plans tendered at the hearing.
   • The evidence called in support of the application at the hearing.
2. He continued:

It is trite to say that a permit cannot be granted for a development that was not the subject of the planning permit application.

1. Reference to these materials he said would show that the application was 'based on the crushing being undertaken by a mobile crushing plant'. No permit was required for the crushing plant and only a crushing area was shown on the application plans. According to Mr Peak had a permanent structure been proposed:

It would have been sought as part of the permit application. It would have been detailed on the application plans as was the concrete batching plant.

1. Mr Peake said that since no planning permit had been sought for the crushing plant 'no planning permit has been granted for the rock crushing plant'. No development permit was required he said to bring a mobile plant on site.
2. According to Mr Peake, Council's letter to his client dated 8 August 2008 tacitly accepted Mr Love's contention that the permit required that the crushing plant be a mobile one.
3. Mr Peake referred to a number of authorities on the construction of planning permits Addicoat v Fox (No. 2) [1979] VicRp 37; [1979] VR 347, Marock v Bill Joy Pty Ltd [1981] VicRp 41; [1981] VR 413, 418; City of Springvale v Heda Nominees Pty Ltd (1982) 1 PABR 287; 57 LGRA 298.
4. He referred to a decision of the Full Court of the Supreme Court, BDL Cable and Electrical Co Pty Ltd v Brighton City Council (1990) 6 AATR 387 where the Court said it was permissible to look for instance at the permit application as an aid to construction of the permit but only if the permit were otherwise ambiguous or unclear.
5. According to Mr Peake the purport of the permit was clear and unambiguous. He referred to the introductory words and Condition 1. He said that when one had regard to the application plans and those substituted at the hearing, it was clear that 'what was permitted did not include a fixed rock crushing plant ...'. He submitted the expert reports relied on at hearing by the applicant also led to the conclusion that no fixed rock crushing plant was entailed in the application.
6. Mr Peake said that where a primary consent was required it could not be granted by way of secondary consent. He referred to Kitscone Pty Ltd v City of Doncaster and Templestowe (1993) 10 AATR 135 and Mentone Mansions Pty Ltd v Kingston City Council (2000) 6 VPR 128 where the Tribunal concluded that no secondary consent could be permitted which would amount to a transformation of the proposal cf Addicoat v Fox (No. 2) [1979] VicRp 37; [1979] VR 347. Accordingly said Mr Peake there was no application for a rock crushing plant permission and hence the permit allows no such thing. Only a primary consent could allow the rock crushing plant to be constructed.
7. In any event, even if this matter was proper for a secondary consent by the endorsement of plans on 8 February 2009 the later plans were so different that they could not be regarded as substantially in accordance with the plans referred to by the Tribunal in Condition 1. The crushing area as depicted in the originally endorsed plans were shown at 900 sq m (30m x 30m), three stockpiles each of 900 sq m showed a total area covered of 2,700 sq m. The crushing area and stockpiles were contained within an area of 0.55 hectares. The application depicted no crushing plant and included the statement:

The materials recycling activity is to be undertaken by a mobile crushing plant within the designated area.

1. In contrast the February endorsed plans he said showed a crusher with a length of 150m, 10m higher supplied by a loading ramp 8-9m high. There is a finished stockpile area of 30m x 70m and another stockpile area 35m x 50m. A third stockpile area 60m x 120m and a fourth stockpile area to the east of the gas collection system, the site of the leachate ponds at 25m x 130m. A final stockpile area for the rest of the gas collection ............... having dimensions of 25m x 130m, hence he said:

The stockpile areas occupy a total of 17,550 sq m as compared to 2,700 sq m as depicted in the application plans.

1. He submitted that these differences were so great that the February plans were not generally in accordance with the plans considered by the Tribunal. The increase in the size of the stockpiles had implications for traffic generation, noise and dust.
2. As to the drainage plan, the effect of Condition 13 was he said, to require all drainage waters to be retained on site. The plans endorsed relative to drainage providing for runoff onto Mr Love's property were in violation of the condition. He noted the statement at paragraph [95] of the Tribunal's decision:

The Tribunal finds the plan to locate a drainage storage basin adjacent to both the existing leachate dam and materials crushing facility is a practical way of preventing drainage entering the Love property and provides the opportunity for water re-use in either concrete batching operations or dust suppression measures.

1. As to the dust management plan, Mr Peake said it did not deal with the crushing plant 'other than at paragraph 3.1'. This paragraph, he said, assumed that what was proposed was a mobile crushing unit. Mr Peake said that the plan endorsed on 19 February 2009:

Shows only the internal roadways being area to be wetted down as per dust management plan.

1. He noted that the plan did not depict the stockpiles as being subject to wet down or indeed to depict the stockpiles at all. Hence Mr Peake submitted the dust management plan was such that no reasonable council acting as responsible authority could have approved that dust management plan as being in compliance with Condition 13. Accordingly said Mr Peake the declaration sought by Mr Love should be made.

1. Whittlesea City Council as responsible authority and respondent to this proceeding was represented by Mr Doyle of Maddocks assisted by Statutory Planner, Ms Johnston.
2. Mr Doyle did not deny that the rock crushing facility constituted a structure and that as such it required a permit or primary consent pursuant to the Planning Scheme. Inferentially this entailed the concession that consent to erect the structure could not lawfully be granted by his client pursuant to any secondary consent provided for in the existing permit conditions. He submitted nevertheless that the terms of the permit granting a development consent for the materials recycling facility constituted the necessary primary consent. Mr Doyle conceded that the facility as now constructed was not at all what Council had envisaged. Mr Doyle said his client did not concede that a mobile crusher which had been referred to in the permit holder's application and in the Tribunal's determination would not need a permit. Even moveable structures could require development permits. He instanced moveable dwellings. He took me to Section 47 of the Planning and Environment Act 1987 and Regulation 15 of the Planning and Environment Regulations relative to permit applications. Neither the Act nor the Regulations stipulated for the provision of plans. It was not uncommon he said for permits to be granted without plans. He gave an instance of rural dwellings. In the present case according to Mr Doyle, the entire development was not depicted on the plans which were placed before the Tribunal. This was reflected he said in paragraph (b) of Condition 1. The effect he said was to leave 'elbow room' for additional matters such as the present structure to be added without any further primary consent.
3. As to the drainage issue Mr Doyle contended first, that the sentence 'all drainage from the site should be contained within the site boundaries' contained 'an internal inconsistency'. He said:

If the intention was truly to ensure that no water drained from the subject land onto any other land, then it is difficult to understand the choice of the word 'from'. If all the runoff was to be contained within the site boundaries then there would be no drainage 'from the site' at all.

1. Secondly he said that sentence needed to be read 'in the context of the condition as a whole'. The condition required the drainage plan to include, inter alia:

The method of disposal of stormwater from all roofed, sealed and stockpiled areas, including the use of an on-site detention system (if required).

1. Mr Doyle said it was a well established principle that any permit condition 'should reasonably relate to the permission that has been given', that is it:

Should be interpreted in a manner which enables it to operate in a valid and reasonable way, rather than in a way which would be invalid or unreasonable (having regard to the nature of the permission being granted).

1. Mr Doyle said that to interpret the condition so as to preclude 'any flows from the subject site onto neighbouring land' would be remarkably onerous. Council's view was that:

Condition 13 should be confined to the need to drain any runoff water that is generated as a consequence of the use and development authorised by the permit.

1. This was consistent with the notation on the endorsed drainage plan 'outlet flow will be predeveloped only'.
2. As to the issue of secondary consents, Mr Doyle said that the test for a valid secondary consent was as set out in the Tribunal's decision Westpoint Corporation v Moreland City Council [2005] VCAT 1049. He said that given that the permit in its primary elements already allowed for development of a materials recycling plant:

Given the secondary consent power contained in Condition 8 the permit itself enables further permission to be granted for buildings and works of that nature.

1. As to the contention on behalf of Mr Love that the plans as endorsed were not generally in accordance with the plans produced to Council, Mr Doyle referred to Condition 8 and to the Tribunal's decision in 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637 where at paragraph [18] the Tribunal constituted by Morris J President as he then was said:

When it comes to determining consistency with a permit, it is necessary to consider not only the words used in the permit, but also the conditions of the permit.[1] In the present case, these conditions include condition 2. Hence this permit envisages that, once plans have been endorsed under condition 1, the development may be altered from that described on those endorsed plans if the responsible authority consents in writing. No doubt a point will be reached when the changes result in development that is outside the scope of what was contemplated by the permit and its conditions, but that point is not reached simply because the changes result in development that is not in accordance with the endorsed plans or, for that matter, that is not in accordance with plans which might be endorsed under condition 1.

1. He submitted that the plans as endorsed were generally in accordance with the plans because Condition 1(b) enabled the plans to be amended to depict the entire development, hence he said this authorised the addition of the further structure independently of paragraph [8] which he said granted an even wider power of amendment.
2. Mr Doyle said that the permit clearly permits materials recycling or crushing plant but does not attempt to regulate:

Either the type of crushing plant nor its appearance. This indicates therefore that there was no intention to be restrictive on this front.

From a planning merits perspective, Council is comfortable with the structure that has been assembled for the purpose of rock crushing. Visual amenity impacts are limited, having regard to the nature of the site and surrounds. Other amenity impacts can be adequately managed.

1. Mr Doyle contended that the allegation that no reasonable council could regard the dust management plan as complying with Condition 30 must be rejected. He observed that the plan was constituted by and Council placed reliance not only on a single paged plan or map which was the subject of criticism by Mr Peake but also on a written document which is to be read in conjunction with the plan. He referred to Unchain St Kilda Inc. v Port Phillip City Council [2009] VCAT 833. Council believed the dust management plan was satisfactory and had relied in making its decision on advice from the Environment Protection Authority. Mr Doyle produced correspondence from that Authority to this effect.
2. Mr Doyle said that Council supported submissions to be made on behalf of the permit holder that even if there were doubts as to the legality of the various endorsements, as a matter of discretion no relief ought be granted.

1. Mr Morris QC who appeared with Ms Bisucci said that he represented Stuart J. Castle Pty Ltd, consulting engineers and permit applicants, Simon Bros Construction (Vic) Pty Ltd and Winslow Constructions Pty Ltd, two residential builders and Aurora Construction Materials Pty Ltd, a joint venture company controlled by Simon Bros and Winslow. The area around Epping was, he said, affected by extensive residential development and hence generated a large volume of material suitable for recycling in materials recycling facility.
2. As to Condition 13, the drainage condition, Mr Morris submitted that:

The intent of Condition 13 is to collect uncontrolled stormwater discharge. Condition 13 cannot be interpreted to mean that no stormwater can be discharged beyond the site boundaries. Rather the condition means that stormwater flowing from the permitted uses should be contained before being allowed to flow from the site.

1. As to the meaning of the word 'contained', Mr Morris selected the following meanings from the Macquarie Dictionary:

1. The purpose of the condition he said was to contain the water so that it could be held within proper bounds 'so that only pre-development flows will continue to flow onto adjacent land'. Mr Morris referred to photographs depicting the drainage system in action. This showed a large settlement pond whose discharge or outlet pipes were above the level of the inlet pipes resulting in the water poured into the settlement tank being contained for an appreciable period of time to allow settlement. This process he said:

Achieves the outcome that water leaves the land at a rate and quality that would flow onto the adjacent land prior to the development.

1. The photographs also depicted a system of interceptors which are small pits operating to a limited degree as settlement facilities but also including metal grates intended to intercept solids. He concluded:

Commonsense dictates that, at least in some circumstances, water falling on the site will have to eventually leave the site. Any interpretation that flies in the face of this proposition should be rejected.

1. As to the endorsement of the plans, Mr Morris denied the suggestion that the plans and the developments which they depict require any separate planning permission 'beyond what has been approved under the permit'. Again, I did not understand Mr Morris to contend that the crushing facility was not a structure. Viewed separately he conceded it would require a primary consent by way of permit. He contended as had Mr Doyle however, that the permit granted at the direction of the Tribunal was sufficiently wide to encompass the crushing facility so that no further primary consent was required.
2. Mr Morris said that any contention that the plans endorsed on 19 February 2009 were not generally in accordance with the plans referred to in Condition 1 of the permit and the plans forming part of the application considered by the Tribunal should be rejected. He noted the applicant's contention was based upon the fact that the location of the crushing plant had been moved, its area was larger and that the configuration of the crushed stockpiles was different and the stockpiles were larger. According to Mr Morris the permit:

Clearly contemplates that there will be development that is, buildings or works, for or associated with a crushing facility.

1. The form of permit granted at the Tribunal's direction indicates where crushing is to occur:

But [according to Mr Morris] the permit does not confine crushing operations to this area. Rather it allows the endorsement of plans that are generally in accordance with the 2006 VCAT plan; and then allows amendment of these plans by the Responsible Authority.

1. Mr Morris noted that Council endorsed the amended plans with the notation:

Application No. 709220 (Cond No. 1 parts (b), (c), (d), (e), (f), (g), (h), (k), (l) and (o) *pursuant to secondary consent provisions of cond No. 8.

By the notation stated above, the Council is satisfied that the amended plan was generally in accordance with the relevant plans or was approved (as a secondary consent) under Condition 8.

1. Mr Morris referred to and relied upon the passage from my decision in Havercroft to the effect that a step purportedly taken under one power may after the event be justified by reference to another power which was not in contemplation at the time the step was taken.
2. As to the phrase 'generally in accordance with', Mr Morris referred to Canet v Brimbank City Council [2003] VCAT 13; Amber Vision Pty Ltd v Wyndham City Council [2007] VCAT 1297. The concept was he said:

A question of fact to be judged on the facts and circumstances of the case.

and further, the less detail and precision there was in the primary document:

The more flexibility is given by the phrase 'generally in accordance with'.

1. According to Mr Morris, the plan endorsed on 19 February 2009 included the same elements as appeared in the plan endorsed on 21 September 2007 viz. concrete batching plant, roads, accessways, a crushing area and areas for stockpiles. He noted that the later plans depicted the crushing operation in the same general area but larger. This did not mean he said, that the later claims were not generally in accordance with the plans produced to the Tribunal in 2006. The 2006 plan_:_

Contains further descriptions and details of the crushing facility. However none of these changes are inconsistent with the permit.

1. As to the dust management plan, Mr Morris submitted that it dealt with the issues required to be dealt with by Condition 30 of the permit and:

It is sufficient if the matters raised in Condition 30 are considered in some way, to the satisfaction of the Responsible Authority.

1. He said that in so far as Mr Love sought a declaration:

that no reasonable responsible authority could consider that the plan adequately dealt with the emission of dust from the rock crushing plant

reserved for decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have made them.

1. According to Mr Morris such a finding could not be made in the present instance particularly where Council had sought guidance and endorsement from the Environment Protection Authority.
2. As to the Tribunal's function and approach in dealing with applications under Section 149B, Mr Morris referred to and relied upon the passage from my decision in Havercroft which I quoted above. Referring to his own decision on the question of secondary consent, 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637 Mr Morris noted that this decision stipulated that no secondary consent could validly 'transform' a use or development approved by a permit. He noted that the decision also stated at [17]:

This does not mean that any non-transforming change to the endorsed development could be approved by the Responsible Authority pursuant to a condition such as Condition 2. Such a change must also be consistent with the permit ... because it would be illogical for a secondary consent to produce an outcome inconsistent with the primary consent (the permit) which created the right to give secondary consent.

1. The words quoted were his own, nevertheless he said he felt on further consideration it may be preferable to state this requirement as necessitating the secondary consent not going beyond the 'scope' of the permit.
2. The effect then was that whilst in the present case a secondary consent under Condition 8 could not authorise a change in the development which was inconsistent with one of the other conditions, it would be permissible for such a secondary consent to be inconsistent with one of the paragraphs of Condition 1. The reason for this he said was because Condition 1 carried within itself the proviso that the plans could be revised by secondary consent under Condition 8, hence there would be no inconsistency.
3. Mr Morris submitted that the meaning of the permit was to be judged by reference to the provisions of the permit itself. To resort to underlying documents and surrounding circumstances would he submitted, create an inappropriate uncertainty given that the permit needs to be read, understood and construed by parties other than those immediately involved in the process of seeking and issuing the permit, such persons include subsequent purchasers of the land, objectors and neighbours who wish to inform themselves as to the permit holder's entitlements in connection with the effect of those on their own property. Mr Morris noted that decisions of the Tribunal Grosios v Monash City Council [2003] VCAT 626 and Begonia v Frankston City Council (No. 2) [2007] VCAT 1718 which said that the plans were not part of the permit had been disapproved on that point by the learned President, Bell J in Lynton Vestey v Warrnambool City Council [2008] VCAT 963 and by Deputy President Dwyer in Zurek v Boroondara City Council [2007] VCAT 2174. Hence the view which I expressed in Havercroft that Grosios was correct must be taken as rejected. Mr Morris relied upon the statement by Bell J in Vestey that:

Interpreting permits ... requires discipline. The focus must remain on identifying the meaning of the words in the permit not on unincorporated underlying documents.

1. He also referred to His Honour's endorsement of a statement by Wilcox J in Hubertus Schuetzenverein Liverpool Rifle Club v Commonwealth [1994] FCA 1161; (1994) 51 FCR 213, 222 where His Honour said that in approving the words of a permit approval it is appropriate and legitimate to look at the plans which are incorporated by reference.
2. Mr Morris submitted that even if contrary to his earlier contention, the basic requirements for the grant of relief to Mr Love were made out, no such declarations as sought should be made as a matter of discretion.
3. First, said Mr Morris, the Planning and Environment Act allowed for a suite of relief provided for in the wake of the controversial Doug Wade litigation in the 1980s. A more appropriate way for Mr Love to prosecute his case he said, would be to seek an enforcement order under Section 114 of the Planning and Environment Act 1987. Moreover, since Member Martin had found that Mr Love had 'missed the boat' with his application under Section 87, it would be wrong now after that finding to entertain an application for declaratory relief.

1. I deal first with the drainage issues. Condition 13 is unambiguous. The condition states, inter alia:

All drainage from the site shall be contained within the site boundaries.

1. These words therefore negate any entitlement of the permit holder to discharge any drainage onto Mr Love's land. I reject the contention that an entitlement to discharge drainage is to be regarded as implicit in the phrase 'drainage from the site'. If a visitor to this complex were to ask someone involved in its operation what the settlement pond was, the site operator could quite naturally and legitimately say, this is 'drainage from the site' without implying that since falling from the sky onto the subject property this water had left the site at any time. I also reject Mr Morris' contention that as a matter of reason and reality there must be an ability to discharge the water from the site at some time. This is a large site with relatively limited hard surfaces, therefore there is a large area into which drainage water may soak. The nature of the use permitted provides copious opportunities to employ drainage water for wetting down dust, cleaning plant and the like. There is ample space to construct holding ponds if they are required. Metropolitan Melbourne is now into its 13th year of what according to previous records is a drought and there is no immediate indication that things are going to change.
2. In any event I am not concerned in this proceeding to judge the wisdom of the condition which has been imposed. The condition is clear and unambiguous. Had the Tribunal intended to provide for the regime which Council and the permit holder now advocate which would limit drainage outflow to pre-development levels, no doubt it could have selected language to convey that thought. It has not done so.
3. Nor am I persuaded that to interpret the condition according to its plain meaning would result in the conditions not reasonably relating to the use and development permitted. Aside altogether from questions of the quantity of runoff, the use and development clearly has an effect upon the quality of runoff. Certainly the settlement ponds and interceptor arrangements that have been specifically provided for in the balance of paragraph 13 and catered for in what has been constructed are calculated to mitigate water quality affects. It would nevertheless be quite competent for the Tribunal to regard those measures as being less than 100% effective and therefore to stipulate for no drainage discharges at all as indeed it has done.
4. Subject to any discretionary considerations the ground for making the declaration sought relative to the drainage plan has been made out.
5. Next, I turn to the issue whether via the mechanism of secondary consent the substantial rock crushing facility now erected is authorised by the permit by virtue of the endorsement of the plans on 19 February. The rationale for the inclusion of provisions such as Condition 8 allowing for secondary consent is to be found in the Tribunal's determination in Cope v Hobsons Bay City Council (2004) 19 VPR 96, 107 [49].

In the present case, the permit allowed the development of the land with a building and provided that the development, as shown on endorsed plans, must not be altered without the written consent of the responsible authority. This form of permission contemplates the possibility that the development will be altered from that shown on the endorsed plans. It is arguable that the permit might be regarded as only contemplating the possibility of written consent being given if this occurred before the development commenced or, at least, before the development was completed. But common experience tells us that development is sometimes carried out in a manner different than that permitted, yet the differences are such that it is still reasonable to consent to them after the event. Why should a permit expressly allowing the possibility of consent being given for the alteration of the development be interpreted to as to exclude this reasonable possibility? Further, it is also commonplace that once development is carried out the owner may wish to effect minor changes to the development. Why should a permit expressly allowing the possibility of consent being given for the alteration of the development be interpreted so as to deny this possibility in every circumstance simply because the development has been carried out?

1. In Mentone Mansions Pty Ltd v Kingston City Council (2000) 6 VPR 128 the Tribunal stated the test for informal consents or secondary consents as requiring that the amendment not transform the original application and that it be:

Inconsequential having regard to the primary purpose of the planning controls which created the need for the primary permission.

1. More recently in Westpoint Corporation Pty Ltd v Moreland City Council [2005] VCAT 1049 the Tribunal provided a somewhat more elaborate formulation:
   • It does not result in a transformation of the proposal.
   • It does not authorise something for which primary consent is required under the planning scheme.
   • It is of no consequence having regard to the purpose of the planning control under which the permit was granted.
   • It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.
2. In postulating these tests the Tribunal (Mrs Gibson and Mr Liston) denied that to be a permissible a matter for secondary consent must be minor or of a small scale. In Westpoint the Tribunal was considering not the validity of a secondary consent given by the Responsible Authority but rather determining for itself on a review application pursuant to Section 149(1)(a) of the Planning and Environment Act 1987 made by the permit holder whether secondary consent should be given. The question whether a matter is the subject of a secondary consent of the type under discussion or a primary consent by way of permit application is of significance in a number of respects. So far as the present proceeding is concerned, the relevance is that first secondary consent does not require any notice to be given to neighbouring land owners in contrast to a permit application and secondly does not generate any automatic right of third party review application by a neighbouring objector.
3. I turn first to consider whether the endorsement of the new plans on 19 February 2009 constituted a 'transformation'. The concept of 'transformation' derives from a decision of Brooking J as he then was in Addicoat v Fox (No. 2) [1979] VicRp 37; [1979] VR 347. His Honour was there considering the power of the then Town Planning Appeals Tribunal to issue a permit departing from what was the subject of the initial application. The Town Planning Appeals Tribunal had no express power to amend applications and used its power to issue permits on condition to achieve that power of amendment. The question considered by His Honour was the propriety of this course. He considered that the Tribunal's power to act in the manner described is co-extensive with the Responsible Authority's power. He said:

In my opinion, a power to grant a permit subject to conditions authorizes the responsible authority to grant a permit for a use or development which differs from the use or development the subject of the application for a permit, provided that the difference is not so radical as to enable it to be said, viewing the matter broadly and fairly, that to grant a permit on the supposed conditions would not be to grant the permit applied for with modifications, but to grant a different permit. This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without necessarily bringing it about that the permit granted is a different as opposed to a modified permit. Whether more may be countenanced by way of limiting the development or use, as opposed to extending it, before the point is reached at which alteration ceases to be modification and becomes transformation, is a question which I find it unnecessary to decide. On this question fairness and convenience may point towards one conclusion and logic towards another.

1. His Honour's formulation has customarily been applied since as drawing the distinction between amendments on the one hand and transformations on the other. In the case before him His Honour concluded that since the permit application as he construed it was an application for land use only, the Tribunal did not have power to direct the issue of a permit for use and development. This Tribunal as ultimate successor to the Town Planning Appeals Tribunal in contrast to that Tribunal has an express power to amend applications (Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998). That power is a much wider one than the one considered in Addicoat v Fox (No. 2) as the learned editors of Pizer Victorian Administrative Law [VCAT AS 1.64.20] note 1-3602 (Update 110):

The clause is not limited to amending the name of the applicant. It specifically allows an amendment to the application to include a use or development different from the use or development mentioned in the application. It even enables an amendment to the land. In allowing a different use and/or a different development it allows 'quite radical changes' that might well amount to transformations in terms of Addicoat v Fox (No. 2) [1979] VR 357.

1. The concept of 'transformation' now survives in this different context having been superseded in its original one.
2. Given that the permit in this case expressly provides a permit for development of a materials recycling facility I am not satisfied that the secondary consent purportedly given by the endorsement of the revised plans in February 2009 was so extensive as to amount to a transformation.
3. It is asserted by Mr Love and conceded by the permit holder and by the Responsible Authority that the rock crushing plant is a structure and does require a permit under the scheme.
4. Next can it be said that the amendments embodied in the revised endorsed plan are of:

No consequence having regard to the purpose of the planning control under which the permit was granted.

1. At paragraph [62] of its principal decision on the permit review application the Tribunal noted as follows:

The third objective of the SUZ4 zoning is "To encourage land management practice and rehabilitation that minimises adverse impact on the issue and development of nearby land". We make several comments here. First, the requirement here is that any adverse impacts be minimised, rather than the test being that there are no adverse impacts. Second, what constitutes a reasonable degree of "minimisation" depends in part upon the level of sensitivity associated with the other uses occurring on the nearby land.

1. The Tribunal proceeded to refer to a number of neighbouring uses as 'hardly ... pristine activities'. Other uses for instance, Northpoint Business Park were in the Tribunal's view 'some distance away'. The Tribunal then proceeded to elaborate why the proposal before it was in its view, not inconsistent with the quoted objective in the zoning. It may be that upon a full scale merits review application a similar conclusion would be reached with respect to the development depicted in the revised plans endorsed in February. It is however going altogether too far to say that the additional considerations relative to the third objective of the SUZ4 zone is 'of no consequence'. Failure to meet this requirement would if the Westpoint Corporation formulation is treated as ruling on this point, lead to the conclusion that subject to any discretionary circumstances the declaratory relief sought by Mr Love should be granted with respect to the rock crushing plant. The February plans would not it seems offend the fourth of the Westpoint dot points in any way.
2. Mr Morris suggested that the last three dot points as postulated in Westpoint should be regarded as comprised in his formulation asking whether the amendments were 'within the scope of the permit'. This formulation as at present enjoys no support from any Supreme Court or Tribunal decision, however the requirement that the amendment to be permissible under a secondary consent be 'inconsequential having regard to the primary purpose of the planning controls' was postulated by the Tribunal in the Mentone Mansions case. In Cope's case the Tribunal consisting of Morris J as he then was and Mrs Komesaroff said:

In our opinion, the decision of the Tribunal in Mentone Mansions Pty Ltd v Kingston City Council (2000) 6 VPR 128 correctly sets out relevant principles in relation to the amendment of endorsed plans using an informal consent mechanism.

1. In the circumstances therefore and even despite the slightly different context in which the Westpoint decision was made, I believe its formulation should be applied. The plans endorsed on 19 February 2009 fail the Westpoint formulation on one of the four points.
2. I now turn to the question whether the February plans are to be regarded as 'generally in accordance with the relevant plans relied upon at the 2006 VCAT appeal ...' as required by Condition 1 of the permit. Mr Morris' submission correctly conveyed the effect of the Tribunal decisions to which he referred, namely Canet v Brimbank City Council and Amber Vision Pty Ltd v Wyndham City Council. I respectfully adopt the formulation from those cases enunciated by Deputy Presidents Horsfall and Gibson respectively.
3. The contention both by the Responsible Authority and on behalf of the permit holder was that paragraph (b) of Condition 1 which states:

The entire development, including the carparking, office, silos, conveyors, all roads including existing and proposed access ways, all stockpiles and all settlement ponds, depicted on one plan.

means that there is an ample authorisation to the permit holder to 'fill in blanks'. The permit holder and the Responsible Authority therefore have done no more than was precisely contemplated by Condition 1. Leaving scope to add matters of detail, the terms of Condition 1(b) gave the permit holder and Responsible Authority ample 'elbow room' for the permit holder to propose and Council to accept and endorse the revised development as depicted in the February plan.

1. In contrast, Mr Peake on behalf of Mr Love submitted that Condition 1(b) did no more than require for the purposes of endorsement the consolidation on a single plan of what had been produced to Council on two plans. Condition 1(a) which states:

The extent of the development site in the context of the whole lot of which the development site forms part, being the lot with the street address of No. 335 O'Herns Road in Epping (ie Lot 4 P/T:TP PLN:805492A) which includes the existing municipal dog pound and gas extraction area activities.

required that that single plan place the development in its appropriate context.

1. I accept Mr Peake's submissions on this point. The hearing which led to the Tribunal's determination lasted for no less than five days. The Tribunal directed a permit to issue consisting of lengthy conditions and permit notes extending to no less than 31 conditions. The conditions and notes occupy the Tribunal's determination from pages 2 to 13. There are then no less than 16 and a half single spaced pages of the Tribunal's reasons. The overall effect is that the elements of the use and development on this site were the subject of detailed and painstaking examination in the course of the Tribunal hearing and were subjected to a detailed and painstaking decision making process. It plainly was not a decision which said in effect:

Here is a permit to build what you have already depicted and fill in the blanks however you feel like.

1. I reject the contention that the permit construed as a whole left large 'blanks' to be covered in. The permit itself does not refer to a 'mobile crushing plant' albeit that this is specifically referred to in the Tribunal's reasons for decision at paragraph [26]. As the authorities referred to and relied upon by Mr Morris and Mr Doyle on behalf of the Responsible Authority show, generally these reasons cannot be used for the purpose of construing the purpose and affect of the permit. Once rejecting the view advanced that the plans placed before the Tribunal had large blanks in them, by depicting a small crushing area 30m x 30m and by describing three relatively modest sized stockpiles, the original plans depicted something very different from what is depicted in the February 2009 plans and what has been constructed. It is unnecessary for me to repeat the various figures of heights, areas and so forth relied upon by Mr Peake. I am conscious as the Tribunal in Westpoint stressed, that this is not a matter merely of scale. In the end however I am forced to the conclusion that the materials recycling facility depicted on the February 2009 plans is vastly different from the one proposed to the Tribunal and depicted on the original endorsed plan. These second endorsed plans are not in my view generally in accordance with the plans put to the Tribunal.
2. Finally I turn to the issue of the dust management plan. I accept the submission put by the Responsible Authority and the permit holder that this plan must be viewed not only by reference to the map but also the accompanying narrative. I also accept that establishing illegality or invalidity based upon unreasonableness requires an applicant to leap a very high hurdle indeed.
3. In the end I think it inappropriate to make any declaration with respect to the dust management plan. The two criticisms which Mr Peake made of it were first, by reference to the limited areas that according to the map section were to be wetted down in accordance with the plan. Secondly he was critical of the plans failure to deal with the materials recycling plant.
4. As to the latter matter it must be thought that the situation was somewhat fluid. I propose making two of the declarations sought by Mr Love. My determination may be subject to appeal. There may be a retrospective permit granted authorising what has been built either in precisely its present form or in some modified form. Precisely what will be regarded as appropriate or what might be regarded as so inappropriate as to be unreasonable as a compliance with Condition 30 will be materially affected by the outcome relative to the recycling plant. Clause 3.1 of the plan states inter alia:

The recycling plan includes an area in which the mobile crushing unit operates, an adjacent stockpiles were the crushed material.

1. One of the dot points below is headed 'Transfer Points and Mobile Crusher'. There might be much to be said for the view that a plan which directs itself to a mobile crusher, pictures of which were placed before me by Mr Martin (expert engineer called by Mr Love) is thoroughly inappropriate and perhaps so inappropriate to be an unreasonable response to the requirement to manage dust from the unit which has been constructed, a unit which Mr Martin's evidence including his cross-examination by Mr Morris demonstrated was at most moveable rather than mobile. On the other hand precisely what the future will be for that complex is unclear. Accordingly as a matter of discretion I decline to adjudicate upon the issue of the dust management plan in the present state of uncertainty.
2. I turn then to the general discretionary considerations which were urged upon me by Mr Morris.
3. As appears from the narrative already given Mr Love has availed himself of the full 'suite' of remedies provided for a neighbour in circumstances in which he finds himself in the Planning and Environment Act. In addition to these declaratory proceedings he has brought proceedings for enforcement orders and also by way of a request to amend the permit. Mr Peake submitted and neither Mr Doyle nor Mr Morris denied, that these declaratory proceedings come on alone and without the enforcement order proceedings at the request of the permit holder. It would not have been competent for Mr Love to have proceeded with enforcement proceedings alone. In Kantor v Murrindindi Shire Council (1997) 18 AATR 285 Ashley J as he then was considered an application for inter alia declaratory relief to the effect that a permit or the extension of a permit was invalid. He made the declaration but refused to grant an injunction which was also sought. One of the arguments pressed upon His Honour was that the Court ought not entertain the application but rather should see it as appropriately dealt with in the Planning Division of the Administrative Appeals Tribunal which according to amendments to the planning legislation which had been introduced in 1987 was to be regarded as the 'one stop shop' in these matters. It was suggested that the matters for which relief was being sought could have been dealt with in the Tribunal by a declaration application pursuant to Section 14 of the Planning Appeals Act 1980. Section 14(1) of the Planning Appeals Act as it then stood provided that a person might make application to the Planning Division of the Administrative Appeals Division:

Concerning any matter which the person may refer to the Tribunal for determination by the Planning Division.

1. It followed therefore that the Planning Division was not at large to make declarations on any subject matter which was brought to it but only as to matters which could otherwise be raised before that Division. It was argued by the respondents in Kantor's case that since an application for an enforcement order could have been brought in the Planning Division then declaratory relief could have been sought under Section 14. His Honour rejected this argument. He said:

Without recourse to authority I would have said that s.114 of the Planning Act is not attempting to deal with the type of situation now under discussion. The structure of the Act, as well as the verbiage of the section, suggests that the reference in sub-s.(1) to "contravention of the Act" is not addressing a contravention alleged to exist because an extension or amendment proper on its face might be successfully attacked as involving a wrong exercise of discretion in the decision to extend or amend. The difficulty of making s.114(1) apply to such a case was highlighted, I consider, by the necessary recourse, in the submissions of counsel for the Shire, to s.14(1) of the Appeals Act as the source of jurisdiction to create the very contravention or prospective contravention which is the sine qua non of the availability of s.114.

(1997) 18 AATR 285, 298

1. Whilst His Honour did not put it in quite these terms, in substance I take him to mean that it would not be possible under the guise of enforcement proceedings to mount a collateral attack upon a permit granted by a responsible authority or the endorsement of plans under such a permit. It would be necessary before obtaining enforcement orders to obtain an authoritative adjudication that the permit or the endorsement was invalid,. Hence as regard enforcement proceedings Mr Love has proceeded as he was obliged to do though absent the submission put by the permit holder, the enforcement order application could have been heard concurrently with the application for declaration.
2. The present situation inevitably invites comparison with the Doug Wade litigation which was referred to in passing by Mr Morris. See Thorne v Doug Wade Consultants Pty Ltd [1985] VicRp 48; [1985] VR 433. In the Doug Wade case Mr Wade's company constructed a rear extension to a Victorian terrace house in Parkville. Neighbours contended that the circumstances in which the permit was granted for the erection of this extension rendered it void. They further alleged that the permit holder, Mr Wade's company was guilty of fraud and sought an order that the extension be demolished. An application for urgent injunctive relief during the construction was refused and the matter came on for hearing before O'Bryan J following the completion of the extension. His Honour declined to find that the permit holder was guilty of any fraud. He concluded that the process for the grant of the permit was illegal and void but as a matter of discretion declined to make an order requiring demolition or to grant a declaration that the permit process had been void. An appeal to the Full Court was dismissed. As to the unsuccessful declaration application the Court reasoned that it would achieve nothing but merely place a blot on the Wade title.
3. The situation here, aside from the very different legal context in which the present proceedings have been brought, is quite different. The permit holder proceeded to construct something vastly different from what was contemplated by the Responsible Authority or one would suppose the Tribunal as constituting the materials recycling plant. In doing so it did not rely on any permit or any plan endorsement. In truth it simply 'chanced its arm'. Moreover as the evidence adduced from Mr Martin, expert engineer by Mr Morris in cross-examination indicated that whilst the removal of the extension to the rear of the Wade household would simply destroy that extension and probably damage the fabric of the original house as well, the materials recycling facility here is moveable in the sense that albeit at great expense and with great trouble, its components can be dismantled and usefully employed on another site. Moreover, there remains another possibility which does not appear to have been considered by the Courts in the Wade litigation that a retrospective permit might be granted for what has been erected either in exactly the form in which it now finds itself or in some modified form. In those circumstances I do not believe that granting the declarations sought here would be futile.
4. Again, whilst there has been delay on the part of Mr Love, it seemed far less inexcusable where as here all that has been done by the permit holder has been done before receiving any formal approval by the Responsible Authority albeit that it had received some sort of informal 'go ahead' from Council.
5. The declarations as to all matters except the dust management plan should be made.

[1] Gant v Greater Geelong City Council (2003) 15 VPR 230.