Planning and Environment Act 1987 s 77; Buloke Planning Scheme cl 74; meaning of land-use terms; Maitreya Festival; whether music and arts festival incorporating accommodation and education elements is a 'place of assembly'; whether CHMP required; whether application futile given lack of consent of public land manager; whether application futile or not worthy of urgent hearing given number of other consents required in short space of time before scheduled 2016 Festival.

MAMF Functions Pty Ltd v Buloke SC (Red Dot) [2016] VCAT 289

1. This proceeding is listed for a further practice day hearing in accordance with the details set out in item A above. Any changes to the hearing details will be notified by further order of the Tribunal.
2. VCAT will publish a detailed schedule of hearing times and room numbers on its website at www.vcat.vic.gov.au at about 5pm the day before the hearing. As this hearing may be listed to a later time on the day, possibly in the afternoon, parties should consult the detailed schedule.
3. The practice day hearing will be held in conjunction with a practice day hearing in proceeding P403/2016 (the responsible authority's application for an enforcement order and interim enforcement order).
4. The purpose of the practice day hearing will be to consider the future conduct of the application having regard to the interlocutory decision comprised in these orders.

Orders on preliminary matters (from hearing on 26 February 2016)

1. The interlocutory application by the applicant, to amend the permit application and the application for review to change the description of the proposed use and development, is refused. The current description of the proposed use and development in the planning application (i.e. as a 'Place of assembly permit to hold Maitreya Art and Music Festival in the years 2016, 2017 and 2018') properly and adequately describes the use for planning purposes at both the general and specific level.
2. Despite accepting that the purpose of the use of the land for the Maitreya Festival is as a 'music and arts festival', that purpose of use is still properly characterised, for planning purposes, as a 'place of assembly' (as defined in the Buloke Planning Scheme) or as an innominate use still generally falling within the broader land use definition of a 'place of assembly', having regard to the hierarchy and nesting of land-use terms within the planning scheme. As such, a cultural heritage management plan (CHMP) is required if the applicant seeks to have the festival authorised through the grant of the planning permit (as opposed to seeking an exemption, using the process envisaged by clause 62.03 of the planning scheme).
3. In so far as the application for a planning permit, and the application for review to VCAT, relates partly to the proposed Maitreya Festival scheduled to be held at Wooroonook Lake from 11 to 15 March 2016, the proceeding will not be listed for an urgent merits hearing on 4 March 2016.
4. In so far as the application for a planning permit, and the application for review to VCAT, still relates partly to proposed festivals in 2017 and 2018, the proceeding will be listed for the further practice day hearing, so that the future conduct of the proceeding can be considered.
5. Costs reserved.

Nick Tweedie and Rupert Waters of counsel, instructed by LGS Legal Pty Ltd.

They called as a witness Lachlan Bell, a director of the applicant.

(John Larkins of counsel appeared in lieu of Mr Tweedie when the oral decision was given)

Maria Marshall and Robert Stilling, solicitors of Maddocks lawyers

1. Given the need for an urgent decision in this matter, these reasons are necessarily given in short form, as part of an oral decision, and do not necessarily comprise the totality of analysis and reasons for the orders that have been made. I nonetheless consider that they are sufficient to dispose of the main preliminary questions raised before me. I also note that, given the issues before me are essentially interim or interlocutory matters, formal reasons are not mandatorily required under the Victorian Civil and Administrative Tribunal Act 1998.
2. The applicant proposes to hold a festival, known as the Maitreya Festival, on public land comprised in four crown allotments at Wooroonook Lake, with Buloke Shire. It proposes to hold these festivals in each of 2016, 2017 and 2018.
3. Given that the event is intended to take place wholly on public land, clause 62.03 of the Buloke Planning Scheme would exempt the event from the need to obtain a planning permit for either use, or for the temporary buildings and works required for the event, if the event has been authorised by the public land manager or by the Council under a local law. Clause 62.03 was introduced into the planning scheme some years ago in an endeavour to avoid some of the difficulties that the applicant faces in this proceeding, through avoiding a duplication of process (and a potentially lengthy planning permit process) for events on public land. Interestingly, even if the applicant obtains a planning permit, it still requires the authority of the public land manager in order to undertake the event - either because the public land manager is the notional owner or manager of the land, or under other applicable legislation such as the Crown Land (Reserves) Act 1978. Accordingly, the planning permit process for a temporary event on public land may be theoretically redundant, and the issues canvassed on the preliminary questions before me may be somewhat academic. The applicant will either achieve public land manager consent or it won't. That will ultimately be the determining factor for this event.
4. In the absence of public land manager consent, the applicant has nonetheless applied for a planning permit in which it describes the proposed use and development as a 'Place of assembly permit to hold Maitreya Art and Music Festival in the years 2016, 2017 and 2018'. A 'place of assembly' is a defined land-use term in clause 74 of all VPP-based planning schemes, comprising:

Land where people congregate for religious or cultural activities, entertainment, or meetings.

1. The 2016 Festival is scheduled to be held from 11 to 15 March 2016 - i.e. in less than two weeks, and is expected to attract about 8000 people. Apart from a significant hurdle posed by the fact that the applicant does not yet have the consent of the two public land managers, the applicant faces an additional hurdle. If the proposed use is correctly characterised as a 'place of assembly', or falls broadly within that use (as defined), such a use comprises a high-impact activity for the purposes of the Aboriginal Heritage Regulations 2007, and a cultural heritage management plan (CHMP) would be required before any planning permit could be granted in time for the 2016 festival. There is insufficient time for that to occur.
2. Amongst other things, the applicant has therefore sought to re-characterise the use to be described as a 'music and arts festival', and to amend its application accordingly. It also seeks an urgent hearing of the merits of its planning permit application, tentatively scheduled (but not yet formally listed) for this Friday 4 March 2016.
3. I find that the real and substantial purpose of the proposed use of the land for the Maitreya Festival is as a 'music and arts festival' - as the applicant contends. However, the purpose of the use of the land for the Maitreya Festival as a 'music and arts festival' is nonetheless still properly characterised, for planning purposes, as a 'place of assembly' (as defined in the Buloke Planning Scheme) or as an innominate use still generally falling within the broader land use definition of a 'place of assembly' having regard to the hierarchy and nesting of land-use terms within the planning scheme.
4. In my opinion, the current description of the proposed use and development in the planning application (i.e. as a 'Place of assembly permit to hold Maitreya Art and Music Festival in the years 2016, 2017 and 2018') adequately describes the use for planning purposes. Shortening the description to being an application just for a 'music and arts festival' is not problematic in itself but, in the circumstances of this proceeding, serves no useful purpose. It will not obviate the need for the applicant to obtain a CHMP if it seeks to have the festival authorised through a planning permit process (which is a statutory authorisation for the purposes of the Aboriginal Heritage Act 2006).
5. Whilst a use of land may be described at an appropriate level of specificity for the purpose of considering the grant of a planning permit (e.g. as a 'music and arts festival'), the specific but innominate nature of that purpose and description does not mean that the use may not still fall within a more generally defined land-use term (e.g. a 'place of assembly') at a higher level in the hierarchy of land-use terms for planning purposes. It is a matter of properly characterising the use. The parties referred me to a number of the usual authorities that bear upon this issue, and to the differences in characterising the purpose of a use for the purposes of a planning permit application, as opposed to the ascertainment of existing use rights. In addition to the principles in those authorities, I must also have regard, amongst other things, to clause 74 of the VPP-based planning schemes - including the introductory clauses to clause 74 that precede the table of specifically defined land-use terms.
6. The proposed purpose of use here, as a music and arts festival, still fits comfortably within the VPP-based definition of a 'place of assembly' as 'land where people congregate for religious or cultural activities, entertainment, or meetings'. That general definition of a 'place of assembly' includes a wide variety of more specific land uses - some defined and some innominate - that meet the general definition. These include such matters as a carnival, circus, cinema, drive-in theatre, exhibition centre, function centre, concert hall, library etc. The common factor for planning purposes is the congregation of people for cultural or entertainment activities etc.
7. In practical terms, a responsible authority is unlikely to grant a permit at a very general level of specificity. It would not necessarily grant a permit for the Maitreya Festival in which it simply described the permitted use as a 'place of assembly', because it would not want to grant a general permission that also effectively allowed the land to be used as a circus or carnival, or as a convention centre, or as a museum or library etc. (being other purposes of use that are also a 'place of assembly'). A responsible authority would more commonly issue a permit for a 'place of assembly (music and arts festival)' or often just as a 'music and arts festival'. In the latter event, this does not mean that the purpose of the use described is not also still a 'place of assembly'. It is simply describing the use at an appropriate level of specificity for the permit being granted. The nesting of land-use terms within planning schemes clearly contemplates a hierarchy of use, with some more specific uses (defined or innominate) potentially being included within others at a more general level.
8. As I have said, the applicant has therefore correctly described the proposed use in its current application as a 'place of assembly to hold Maitreya Art and Music Festival ...'. There is no need to change the descriptor.
9. Having regard to the decision in Cascone v Whittlesea City Council (1993) 11 AATR 175, the combination of activities comprised in the proposed Maitreya Festival (including education activities, and accommodation by way of camping, in addition to the cultural and entertainment activities) does not serve to necessarily or automatically attract the appellation of an innominate use at the more general level of the description of land-use. As indicated in Cascone, the combination of activities may not in that circumstance reveal a new type of use, but may rather reveal that there is a further or additional use also proposed to be undertaken on the land. This additional purpose of use may be an ancillary use or a separate use of the land. The characterisation of the real and substantial purpose of a use for planning purposes does not ordinarily require each and every activity within the use to be analysed in order to ascertain that purpose.
10. To the extent the Maitreya Festival includes activities related to 'education', those activities are part of the identified purpose of use, or a separate but ancillary use. The education activities proposed at the festival may perhaps be considered analogous to education activities at a 'convention centre' or at an 'art gallery' or 'museum' or 'library' - all of which are land-use terms at a specific level in VPP-based planning schemes that still expressly fall within the more general land-use term of a 'place of assembly'. The nature of the education activities for the Maitreya Festival does not change the characterisation of the underlying purpose of the use as a 'music and arts festival', nor take it beyond the more general land-use term of a 'place of assembly'.
11. To the extent the Maitreya Festival includes the proposed use of the land for camping, the activity of camping is either part of the identified purpose of use or, given its extent, reveals a separate use of the land as a 'campground' (i.e. a form of 'accommodation') that is either ancillary to the dominant use of the land as a 'music and arts festival' or a distinct use that requires a separate and additional planning permission. The inclusion of camping at the Maitreya Festival is not integral to the characterisation of the purpose of use as a 'music and arts festival', and does not reveal a new innominate purpose of use that takes the proposal outside of the broadly defined land-use term of a 'place of assembly'. A 'music and arts festival' could be held with or without accommodation.
12. To the extent that the applicant contends in its affidavit and evidence that the inclusion of camping is integral to this particular festival, this appears to be on the basis of having like-minded people gathering together for the duration of the festival and for an overall immersive experience. Accordingly, although the camping/'accommodation' may not itself comprise the 'congregation' of people per se, the provision of camping as part of the festival appears here to be intended to serve the primary purpose of having people congregate on the land for cultural activities or entertainment - matters that fall clearly within the defined land-use term of a 'place of assembly'.
13. The fact that about 90% of the 8000 people expected to attend the 2016 Maitreya Festival are expected to camp at the venue also simply reflects the fact that the festival is being held in a remote location where no alternative accommodation is available.
14. The combination of the music and arts festival and camping does, or the supposedly unique characteristics of the Maitreya Festival, does not create a new or unusual or emerging concept of innominate land-use for planning purposes - either generally or for the specific proposal. The analogy, for example, with the principles that led to a separate characterisation of land as a 'service centre' in Typhoon Pty Ltd v Macedon Ranges Shire Council [2004] VCAT 913 is not made out.
15. Whilst not determinative, I am comforted by the fact that the characterisation of the purpose of use expressed above is also consistent with many other cases decided at VCAT over the years, where music and arts festivals have commonly been characterised as falling within the general land-use term 'place of assembly' (albeit with some variation in the nature of specific activities, without any detailed analysis, and sometimes being also characterised as music festivals at a more specific level). The characterisation is also consistent with the conduct of the applicant in this case who has applied for a planning permit for a 'place of assembly' for the 2016 Maitreya Festival, and for similar festivals in previous years.
16. Given that the 2016 Maitreya Festival is properly characterised as falling within the general land-use term 'place of assembly', albeit being for the purpose of a 'music and arts festival' at a more specific level, a cultural heritage management plan (CHMP) is required under the Aboriginal Heritage Act 2006 and the Aboriginal Heritage Regulations 2007 in respect of the activity comprised in the festival. A 'place of assembly' is a high impact activity, and it is common ground that the other triggers under the Act and Regulations are met - e.g. the land is also in an area of cultural heritage sensitivity. A CHMP is required before a statutory authorisation (i.e. in this case, a planning permit) can be granted. There is insufficient time for that to occur before the scheduled 2016 Maitreya Festival, which is scheduled between 11 and 15 March 2016. I note in passing that, if the camping activity is a separate use of land, a 'Caravan and camping park' is also a high impact activity.
17. As I have said, if the applicant is still able to obtain the authorisation of the public land managers or the authorisation of the Council under a local law, clause 62.03 would operate to exempt the 2016 Maitreya Festival from the requirement for a planning permit for either use or development. [In such event, this proceeding may become redundant.] Moreover, without finally deciding the issue, it would appear that the authorisations of the public land manager and/or Council in such event may not be a 'statutory authorisation' for the purposes of the Aboriginal Heritage Act 2006. In the absence of a requirement for a planning permit for the festival, a CHMP may not necessarily be required.
18. In the absence of the applicant being able to rely upon clause 62.03, and having regard to the fact that a CHMP is therefore required, an urgent hearing of the merits of the application for review on 4 March 2016 would be largely futile.
19. In addition, given that the two public land managers do not consent to the use of the land for the 2016 Maitreya Festival, and that a number of other consents are unlikely to be obtained in the two weeks until the scheduled festival, an urgent hearing of the merits of the application for review on 4 March 2016 would also be largely futile. In particular, the relevant public land manager for Crown Allotment 67D has indicated that, even if it was to reconsider its refusal to give consent to the use of that land for the festival, it would be required to give 28 days clear notice to the registered aboriginal party for native title purposes, in order to ascertain its views before any consent was given. There is insufficient time for that to occur.
20. The Council asserts, and the applicant concedes, that several aboriginal artefacts have been found on the Crown allotments where the festival is proposed to be located. Quite apart from the issue of whether a CHMP is required, this issue may be relevant to the merits of whether a planning permit should be granted. Moreover, Crown Allotment 67D is also apparently a wildlife reserve, and there does not appear to be any evidence yet provided by the applicant on the potential impacts of the festival in that reserve, or which would presumably be ready quickly for a merits hearing later this week. The relevant public land manager and the responsible authority would need time to consider any such material in advance of the final merits hearing. There is insufficient time for that to occur.
21. The applicant indicated that, if Crown Allotment 67D was not available, it would simply not use that allotment, and the festival would be conducted on the other three Crown allotments for which the Council is the public land manager. Given I understand that a track across Crown Allotment 67D forms part of the traffic management proposal for the festival, any such change to the proposal would necessarily require alternative traffic management arrangements to be considered by the Council as part of any contested hearing at VCAT. There is insufficient time for that to occur.
22. For all of these reasons, I do not consider that is appropriate to grant the applicant an urgent merits hearing later this week, and to tie up the resources of the Council and VCAT in that regard, when there is no reasonable prospect of the matter being ready for such a hearing - and certainly not on the basis that gives procedural fairness to other parties or affected persons.