Mr Paul Connor of Counsel, instructed by Campagna, Gray and Mallinder

1

This is an application made under section 149B of the Planning and Environment Act 1987 seeking declarations regarding the validity of a development plan and planning permit affecting a 9.595 hectare site in Racecourse Road, Yackandandah. The declarations which are sought are as follows:

A. A declaration that no Development Plan is in existence for Lot 1 on Plan of Subdivision PS304905H.

B. A declaration that no Development Plan has been prepared for Lot 1 on Plan of Subdivision PS304905H which meets the requirements for a Development Plan set out at Clause 2 of Schedule 1 to the Development Plan Overlay which is to be found at Clause 43.04 of the Indigo Planning Scheme.

C. A declaration that the decision on 28 June 1999 to approve a Development Plan for the land known as Lot 1 on Plan of Subdivision PS304905H was invalid.

D. A declaration that the Applicant was required to be notified of Planning Permit application No PP03-373 in accordance with s.52 of the Planning and Environment Act 1987.

E. That Planning Permit No PP03-373 purported to be issued on 16 June 2004 is void and of no effect.

F. Such other declarations or orders as the Tribunal considers appropriate.

G. That the responsible authority pay the costs of this application.

2

The development plan in question was purportedly approved under the Development Plan Overlay in the Indigo Planning Scheme and planning permit PP03-373 was issued on 16 June 2004. It allowed a 54 lot subdivision of the subject land, on the basis that it was generally in accordance with the development plan.

3

The applicant for review is the Marcus Creek Association Incorporated. Members of this incorporated association are owners or occupiers of land surrounding the subject site. Fundamentally, the members of the Association consider that the proposed plan of subdivision, which is the subject of both the development plan and permit, will result in a poor planning outcome for the land. Specifically, the subdivision fails to adequately protect Marcus Creek, which forms the western boundary of the subject site, it fails to protect vegetation of conservation significance on the site and it will enable houses to be constructed on steep ridgelines.

4

The background to this matter is as follows.

5

The subject site has an area of 9.595 hectares and is located on the outskirts of the Yackandandah Township on Racecourse Road. It is a roughly triangular shaped parcel of land which can be characterised as of rolling hills sloping generally down towards Marcus Creek, which forms the western boundary. Native vegetation is located along the Creek whilst the bulk of the remainder of the site is largely cleared pasture with scattered trees.

6

The subject land is included in a Residential 1 Zone and a Development Plan Overlay under the Indigo Planning Scheme. Prior to introduction of the new format planning scheme for Indigo, the land was included in a Reserved Residential Zone in the Yackandandah Planning Scheme. Clause 24(1) of the Yackandandah Planning Scheme required, among other things, that all subdivision within this zone should be in accordance with an overall development plan.

7

Planning permit P98/262 was issued on 20 January 1999 for a two lot subdivision of the subject land. Lot 1 had an area of 6493.51m2 which contained an existing house, and Lot 2 contained the balance of the land. One of the conditions of this permit required the applicant to enter a section 173 agreement with the responsible authority to provide for the construction of roads and reticulated services in the event of the future subdivision of Lot 2 in accordance with the endorsed outline development plan pursuant to the permit. Two plans were endorsed under permit P98/262: one showed the proposed two lot subdivision and the other showed an outline development plan for Lot 2 of a 51 lot subdivision with road layout and certain other details indicated.

8

No notice of the application was given to adjoining or neighbouring land owners/occupiers for permit P98/262.

9

Mr Peter O'Dwyer was the Shire Planner at the time the permit P98/262 was issued and still occupies that position. He gave evidence that in light of the gazettal of the new format Indigo Planning Scheme on 28 January 1999, he proposed to approve the outline development plan, which was endorsed as part of permit P98/262, as a development plan for the subject land pursuant to the Development Plan Overlay under the new format Indigo Planning Scheme. He gave evidence that before doing so, he required additional information from Mr David Larkin of Civentech who was acting on behalf of the permit holder in respect of the subdivision of the subject land. He said the additional information he required was in order to meet the requirements of schedule 1 of the Development Plan Overlay. Schedule 1 sets out certain requirements that a development plan must include. The additional information was provided in the form of additional notations on two of the plans which had previously been provided in support of the permit application for the two lot subdivision P98/262.

10

Mr O'Dwyer specifically endorsed the outline development plan which had been endorsed under permit P98/262 as a development plan dated 28 June 1999. A copy of this plan was sent to Mr Larkin with a covering letter which stated as follows:

"Please find enclosed a re-endorsed copy of the outline development plan prepared prior to the introduction of the Indigo Planning Scheme and submitted in conjunction with Planning Permit 98/262.

I have re-endorsed the outline plan as a Development Plan in accordance with clause 43.04 of the Planning Scheme. This was considered necessary so that future subdivision applications can be considered in the context of this agreed plan pursuant to the provisions of clause 43.04.

Please note that approval of this Development Plan does not constitute a Planning Permit. Any subsequent planning application will be assessed having regard not only to this endorsed plan but also the zone and local planning policy provisions of the Indigo Planning Scheme.

Should you have any further queries regarding the above please contact the Yackandandah office."

11

However according to Mr O'Dwyer, what he regarded as the development plan which he approved pursuant to Clause 43.04-1 of the Indigo Planning Scheme consisted of the endorsed plan plus four other sheets comprising:

a

Locality plan with additional notations

b

Site analysis with additional notations

c

Plan showing proposed two lot subdivision (without contours)

d

An endorsed copy of the outline development plan

12

In his opinion, these 5 sheets together contained all the information required by schedule 2 of the Development Plan Overlay. Mr O'Dwyer approved the development plan as a delegate for the Council. It is his evidence that he considered the matters at clause 2.0 of Schedule 1 and was satisfied with them before approving the development plan.

13

A planning permit application for a 54 lot subdivision of Lot 2 generally in accordance with the development plan in four stages was received by the Council on 18 December 2003. Planning permit PP03-373 was issued on 16 June 2004. No notice was given of the permit application in reliance on clause 43.04-2 of the Development Plan Overlay, which exempts an application under any provision of the scheme that is generally in accordance with the development plan from notice and appeal.

14

Mr Mark Sheahan and Mr Thomas Dan, who are both members of the Marcus Creek Association, gave evidence that they became aware of the planning permit application in approximately February 2004. Mr Dan wrote to the Council seeking information about a variety of matters to do with the permit application for subdivision and the approval of the development plan. The Council replied to Mr Dan by letter dated 17 March 2004 from the CEO responding to his questions. The letter included the following statements:

The subdivision is currently undergoing an assessment under the ResCode provision as identified in clause 56 of the Indigo planning Scheme. As mentioned above as this application is exempt from public notification procedures it was not proposed to formally open the application up to public comment.

The plans are however available for public perusal and the Development Services Unit have indicated that they would take into account any written submissions received from third parties.

I urge you to take advantage of the fact that the plans of subdivision/development plans for this proposal are available for your perusal at the Yackandandah office.

15

Mr Sheahan met with Mr O'Dwyer on 5 April 2004 to discuss the proposed subdivision and the development plan. Neither Mr Sheahan, Mr Dan or any of the other members of the Marcus Creek Association made any submissions in writing to the Council about the proposed plan of subdivision before the permit was issued on 16 June 2004.

16

It was submitted on behalf of the applicant that the central issue in this case is whether the document regarded by the Council as the development plan can be described as a development plan at all. The applicant challenged the adequacy of the information contained in the development and claimed that certain of the requirements for a development plan set out in the Development Plan Overlay and Schedule had not been provided.

17

In presenting its submission, the Association focussed on what the members saw as the inadequacies of the proposed subdivision. However, the nature of the application made by the Marcus Creek Association Inc is not a merits review of the permit for subdivision or even the development plan, but rather a review of the decision by the responsible authority to adopt or to be satisfied with the development plan. The law concerning an application for declaration regarding the validity of development plans was considered by the Tribunal in Burnside Properties Pty Ltd v Melton City Council [2000] VCAT 2326. As Deputy President Bruce said in that case, such an application -

[62] ... invites the Tribunal to find not that the Council's decision to approve the development plans was wrong on the merits, but that it is invalid. The limitations on the remedy available to the Applicant under Section 149B mean that instead of the Tribunal reviewing the application for approval on the basis of the evidence before it and making the "correct or preferable decision" on that evidence, the Tribunal is required to consider the legal adequacy of the decision making process.

18

Such review is in the nature of a judicial review. The fundamental matters that the Tribunal must take into account when undertaking this type of review are whether:

•

the decision was not one which a responsible authority acting reasonably could have made;

•

in making the decision, the responsible authority took irrelevant matters into account;

•

the responsible authority failed to take relevant matters into account[1]

19

However, as the Tribunal said in Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38:

[25] The hurdle faced by a person alleging that a planning permit decision was not open is a high one, not only for the reasons articulated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited[2], but also because planning decisions are so broadly based that it will be very difficult to say that no responsible authority, acting rationally, could have made the decision in question.

20

Clause 43.04-3 of the Development Plan Overlay states that the development plan must describe:

•

The land to which the plan applies

•

The proposed use and development of each part of the land.

•

Any other requirements specified for the plan in a schedule to this overlay.

Clause 2.0 of Schedule 1 of the Development Plan Overlay in the Indigo Planning Scheme states:

• Describe the relationship of proposed development on the land to existing and proposed developments on adjoining land.

• Identify any sites of conservation, heritage or archaeological significance and how they will be proposed to be managed.

• Provide appropriate arrangements for the provision and funding of necessary physical and social infrastructure.

• List the staging and anticipated timing of development.

• Provide an overall scheme of landscaping and any necessary arrangements for the preservation or regeneration of vegetation.

• Provide suitable linkages between the site and urban areas for road, public, bicycle and pedestrian transport facilities.

• Require the provision of soil and water reports to accompany all applications demonstrating the capacity of infrastructure to service the development, treat and retard stormwater and reduce any downstream soil and water impacts of the development.

21

Whilst these matters are all described as "requirements" which the development plan must describe, identify or provide, a distinction needs to be drawn between those matters which are mandatory and matters which only require inclusion if they are relevant or are, in fact, proposed. If they are not relevant or proposed in the circumstances of a particular case, there is no need for the development plan to show them and their lack of inclusion will not thereby render the development plan invalid.

22

The Development Plan Overlay may apply to land in a wide range of different circumstances. It may cover an entire activity centre or new suburb where land is in multiple ownerships or it may apply to a single parcel of land in a single ownership, as is the case here.

23

Schedule 1 to the Development Plan Overlay in the Indigo Planing Scheme applies to all land in the Residential 1 Zone not just the subject land. Thus the requirements for a development plan set out in clause 2.0 of Schedule 1 are generic in nature and must be interpreted according to the nature of the land included in the specific development plan.

24

A similar situation was discussed by the Tribunal in Sweetvale in the context of considering an application under section 149B of the Act for review of a decision under a Design and Development Overlay. The schedule to the Design and Development Overlay contained a number of objectives and design outcomes, and specified certain material which a permit applicant must provide. In commenting upon whether the permit applicant must provide this information or should provide it, the Tribunal said:

The use of the word must does not necessarily mean that the parliament intended that a failure to comply with the requirement was intended to invalidate a decision under the instrument: see the discussion by the High Court of Australia in Project Blue Sky Pty Ltd v Minister (1998) 194 CLR 355. The context of clause 2.0 of Schedule 2 is one where a number of requirements are set forth. This is apt to be confusing. Generally a requirement is that which is required; a thing demanded or obligatory (Macquarie Dictionary, Third Edition). Sometimes a requirement is accompanied by the word must or the word should. Although the word must indicates obligation or necessity, the word should can also have this meaning. Depending on the context the word should may indicate obligation (I should visit my parents) or simply advisability (you should lock the car door when you get out). But whichever word is used, it is necessary to ascertain what was intended to be the consequences of non-compliance. I conclude that the failure to perform an obligation to provide information is not intended to invalidate a subsequent decision to approve a development.[3]

25

The same reasoning applies to the requirements of Schedule 1 of the Development Plan Overlay in the present case. Some information must always be provided whereas in other cases it should be provided if relevant. In a number of instances, the type of information required is not relevant and I do not consider that the consequence of not providing it was intended to invalidate the development plan.

26

I set out my views with respect to each item in clause 2.0 of Schedule 1 below. However, first I must decide what in fact constitutes the development plan.

27

A development plan under a Development Plan Overlay has no statutory or prescribed format. Clause 43.04-3 indicates it may consist of plans or other documents and may be prepared and implemented in stages. Under the Development Plan Overlay a development plan does not need to be "endorsed". It simply needs to be prepared to the satisfaction of the responsible authority. Therefore the fact that one plan may be "endorsed" as a development plan does not prevent the development plan from including other plans or documents which are not endorsed. In each case it will be a matter of fact as to what the development plan consists of.

28

The VPP Practice Note on applying the Incorporated Plan and Development Plan Overlays (January 2003) provides guidance to responsible authorities about identifying the content and application of development plans and changes to them. Mr O'Dwyer gave evidence that the Indigo Shire Council has now adopted a system for better identifying and recording development plans but that when the development plan for the subject land was approved there was no such guidance. The new format Indigo Planning Scheme was one of the first new format planning schemes to be prepared and gazetted. At the time there was little experience or guidance available about the way in which the VPP's were intended to operate. He admitted that with the benefit of hindsight all the sheets which he regarded as consisting of the development plan should have been endorsed not just the sheet labelled "outline development plan."

29

In deciding what the development plan consists of, I consider it is relevant to take account of what the responsible authority regards as constituting the development plan and the way in which information required to be shown on a development plan under the overlay or schedule has been presented to the responsible authority for its satisfaction.

30

In my view, the development plan in the present case consists of the 5 sheets referred to. I make this finding on the basis that this is what the responsible authority regards as the development plan and that together the 5 sheets contain all the information or requirements for a development plan set out in the Development Plan Overlay and Schedule 1.

31

I am satisfied that the plan labelled outline development plan adequately describes the land to which the plan applies and indicates the proposed use and development of each part of the land as required by clause 43.04-3. The use and development of land is for a residential subdivision.

32

I consider that all of the relevant requirements set out in clause 2.0 of Schedule 1 are addressed in the plans which consist of the development plan for the following reasons.

Describe the relationship of proposed development on the land to existing and proposed developments on adjoining land.

33

I am satisfied that the notations on the locality plan meet this requirement.

34

Note 3 on the site analysis plan under the heading "buffers" states:

i

Adjoining developments are large rural living parcels - no buffer required.

ii

Provide streamside reserve to protect Marcus CK.

35

I am satisfied that this notation meets the requirement to identify proposed buffer areas. There is no need to specify a buffer if none is required or proposed.

Identify any sites of conservation, heritage or archaeological significance and how they will be proposed to be managed.

36

This was the requirement that the applicant emphasised most and submitted had not been met. A notation on the site analysis plan refers to "relatively intact streamside vegetation" and there is a further notation on the outline development plan to "retain existing streamside vegetation in linear creek reserve". Existing large trees are shown and, where possible, included in road reserves on the subdivision plan. However, according to the applicant this is insufficient to meet this requirement.

37

Ms Gillian Earl gave evidence on behalf of the applicant that the land contains some significant vegetation. However, she acknowledged that its significance would not have been apparent to anyone who was not an expert botanist. The point was also made by Council that Ms Earl's evidence relies on tests and material which were not in existence at the time when the decision about the development plan was made in 1999.

38

There are no identified sites of conservation, heritage or archaeological significance on the subject land identified under the Indigo Planning Scheme or in any other public register. There is no requirement under the Development Plan Overlay or in the schedule to provide an expert report for assessment of the environmental significance of the land as part of the development plan. I therefore interpret this provision of the schedule, which refers to "identified" sites of conservation, heritage or archaeological significance, as meaning sites that have been previously identified in some way such as in the planning scheme, possibly by means of a Vegetation Protection Overlay or Environmental Significance Overlay, or in some other publicly accessible register, list or the like. In other words, the significance of any sites must be known. If there are no known sites of conservation, heritage or archaeological significance then I do not consider that the development plan needs to identify them or how they will be managed.

39

The development plan identifies the conservation significance of existing trees and indicates how they will be managed. I consider this is adequate to meet this requirement. I do not I consider that the failure to identify other sites of significance not known when the development plan was prepared does not invalidate the development plan.

Provide appropriate arrangements for the provision and funding of necessary physical and social infrastructure.

40

The land is included in a Residential 1 Zone and is on the outskirts of the existing township of Yackandandah. It is reasonable to assume that the subdivision will take advantage of the social infrastructure provided within the town and that no additional social infrastructure will be required.

41

The Council has not considered that the provision of social infrastructure is necessary in connection with this development plan.

42

The provision of physical infrastructure in the form of roads, proposed easements for power supply and stormwater treatment facility are shown on the outline development plan. It is not necessary to show how they will be funded as they will be the responsibility of the subdivider (see condition 13 in planning permit PP03-373).

43

I therefore find that the development plan has made appropriate arrangements in the circumstances for the provision of infrastructure.

List the staging and anticipated timing of development.

44

The staging is shown on the outline development plan. It is not relevant to show the anticipated timing of a development such as this.

Provide an overall scheme of landscaping and any necessary arrangements for preservation or regeneration of vegetation.

45

No overall scheme of landscaping is shown but I do not consider this is necessary on a development plan for a site of this size which is in single ownership. A landscaping plan would normally be required as part of a planning permit condition, and one has been required in this case - see conditions 5 and 6 of planning permit PP03-373. I am satisfied that the outline development plan makes arrangements for the preservation of vegetation by noting that existing streamside vegetation should be retained in Marcus Creek Reserve and by including some of the existing trees within a road reserve and the creek reserve. I acknowledge that the applicant does not consider these arrangements are sufficient or appropriate but, I consider that these provisions in the development plan are adequate to constitute necessary arrangements for the preservation... of vegetation.

Provide suitable linkages between the site and urban areas for road, public, bicycle and pedestrian transport facilities.

46

Roads are shown on the development plan which service the proposed subdivision and link into the public road network external to the site. The locality plan shows the network of surrounding roads and the relationship of the site to them. It also shows potential pedestrian/cyclist links to Butson Park, Power Street and Hobbs Close. Condition 10 of Planning Permit PP03-373 relates to shared footpaths/bike paths and provides as follows:

(i)

Provision of shared walking/bicycle path along Parkes Street from Ridge Street to provide internal connection to the Marcus Creek/Butson Park/Racecourse Road walking/bicycle paths.

(ii)

Provision of shared walking/bicycle path along Racecourse Road to link the development to Isaacs Avenue Council to contribute 50% of the cost of works between Albert Street and Isaacs Avenue. Path surface to be all weather with a minimum standard of 30mm asphalt.

47

It was submitted by the applicant that whilst the plan identifies a linkage (other than the road network), namely a pedestrian link from Hobbs Close to Butson Park, this is not a "suitable linkage" in as much as it cannot be achieved without compulsorily acquiring land to create it:

It is not workable and even a cursory examination of the area would have given rise to that conclusion.

48

I do not consider it is necessary for a development plan to show all the concluded details of matters such as pedestrian and bicycle linkages or to demonstrate how those linkages will be achieved. This is the role of the planning permit. It is not unusual or unreasonable that the details of concepts included in a development plan may change between the time when the development plan is prepared and the time when a planning permit may be issued. In the current circumstance, condition 10 of planning permit PP03-373 indicates that creating the link from Hobbs Close to Butson Park has not been feasible and therefore the Council has required a pedestrian/bicycle path to be provided along the road network. I do not consider this is a significant departure from the development plan or one that would lead to the conclusion that the plan of subdivision is not generally in accordance with the development plan. One of the reasons why permits are only required to be generally in accordance with the development plan is to retain the flexibility to accommodate changes which become necessary to implement the objectives of a plan after it is prepared.

49

In terms of the level of detail that is required on a development plan of this nature, I consider that the proposal to "develop pedestrian/cyclist link from Hobbs Close to Butson Park" was reasonable and adequate and meets the requirements of this aspect of the schedule. I note that two 5 metre footways have been provided to link the internal road network to the creek reserve thereby protecting the long term possibility that this link may be provided in the future.

Require the provision of soil and water reports to accompany all applications demonstrating the capacity of infrastructure to service the development, treat and retard stormwater and reduce any downstream soil and water impacts of the development.

50

Note 4 on the site analysis plan provides as follows under the heading "drainage and erosion control":

i

Roads to follow gully/along contours to minimise earthworks and site disturbance and allow for major storm flows.

ii

Stormwater treatment area can be used as a sedimentation trap initially and a retarding basin after development has occurred.

iii

Comprehensive subdivision proposals will require soil and water reports.

51

I consider this notation meets the requirements of this part of Schedule 2. Soil and water reports are required to accompany the application for planning permit. They are not required to form part of the development plan itself. Such reports were included as part of the clause 56 report prepared by Civentech for the Yackandandah Heights residential subdivision dated May 2004 and submitted with the planning permit application.

52

I have therefore reached the conclusion that the requirements of the Development Plan Overlay and Schedule 1 have been adequately addressed in the documents which constitute the development plan. I therefore find that there was a development plan in place that complied with the requirements of the planning scheme at the time the planning permit for the 54 lot subdivision of the subject land was issued

53

I also find that it was open to the Council to make the decision it did in terms of being satisfied with the development plan. I am satisfied that the Council delegate, Mr O'Dwyer, made the necessary inquiries about the matters required by Schedule 1 and that it was reasonable for him to be satisfied by the information provided and which is shown on the development plan.

54

In Burnside Properties Pty Ltd v Melton City Council [2002] VCAT 2326, the Tribunal said:

It follows from the nature of the proceeding that the law applied to determine an Application for a declaration under Section 149B of the Act is not the law as it stands at the date the Tribunal reaches its decision, which is a hallmark of the review jurisdiction; but the law as it stood when the decision was made.

55

The reasonableness of the Council's action must therefore be judged at the time when the decision was made, to approve the development plan under the overlay, ie in 1999. At that time, I find that the decision was one which a responsible authority acting reasonably could have made.

56

Whilst these findings and conclusions dispose of this application in a legal sense, it is worth making some observations about the expectations of people associated with the Marcus Creek Association in bringing this application. Comments were made during the hearing that the lots were too small, that the subdivision was turning Yackandandah into suburbia and that there was no adequate protection for the environmental qualities of the land. These sort of comments indicate that what people are really opposed to is the zoning of this land and the outcomes that such zoning is likely to produce, not just the subdivision in question.

57

There is no doubt that the proposed subdivision will change the character of this land in a way that some people do not want to see. However, the land is in a Residential 1 Zone and has been clearly earmarked for many years for future urban purposes in the current Indigo Planning Scheme and the former Yackandandah Planning Scheme. The type of subdivision now proposed is entirely in accordance with outcomes which might be expected to occur in a Residential 1 Zone. The lots are not small but range between 800 square metres and more than 3000 square metres. The larger lots have been located where slopes are greatest and in this respect respond to the topography of the land. The land can be reticulated with water and sewerage and, as noted in clause 2104-1-4 of the Indigo Planning Scheme, it is important to promote and support a compact urban form for Yackandandah which fully utilises existing and peripheral vacant residential areas where services are available. The Municipal Strategic Statement recognises that Yackandandah and its environs serves as a commuter area for Albury Wodonga. It acknowledges the township contains a number of existing residential zoned areas. One of the settlement and infrastructure objectives for Indigo Shire is to:

•

Encourage population growth to take place in the towns serviced by reticulated infrastructure to maximise existing infrastructure investment and create focussed demand for infrastructure improvement.[4]

58

Strategies relating to settlement and infrastructure include:

•

Prepare outline development plans for vacant residential areas to maximise existing urban infrastructure and provide for resubdivision of low density residential areas where they are supported with full services including sewerage.

•

Prevent the extension of residential zones until current land supply levels within each township is reduced to 10 years.

59

In overall terms, the Indigo Municipal Strategic Statement recognises the need to protect the special qualities of Yackandandah Township whilst catering responsibly for future growth. The subject land is one of the areas around the township earmarked for such growth. As that growth occurs, there will be inevitable changes to the landscape. Although the current application is not a review of the merits of this particular subdivision proposal, it is nevertheless a proposal that accords with the existing planning controls and policy framework.

60

With respect to the specific declarations I was asked to make, I find that:

•

A development plan is in existence for Lot 1 on Plan of Subdivision PS304905H.

•

A development plan has been prepared for Lot 1 on Plan of Subdivision PS304905H which meets the requirements for a development plan set out in clause 2.0 of Schedule 1 to the Development Plan Overlay of the Indigo Planning Scheme.

•

The decision of the responsible authority on 28 June 1999 to approve a development plan for Lot 1 on Plan of Subdivision PS304905H was valid.

•

The applicant was not required to be notified of planning permit application PP03-373.

•

Planning permit PP03-373 is valid.

61

For the reasons outlined above, the application is dismissed. There was no application for costs.

[1] See Kantor v Murrindindi (1997) 18 AATR 285 at 308-9 Burnside Properties Pty Ltd v Melton City Council [2000] VCAT 2326 para 57

[2] [1986] HCA 40; (1986) 162 CLR 24

[3] Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38, footnote 9