1. VicRoads contended that the Tribunal should construe 'alter' widely so that it included:
   • 'A change of land use which would see an increase in the frequency and size of vehicles accessing the arterial road' at existing access points.
   • 'Works [on the land] that would accommodate more or different vehicles accessing the arterial road ... .'
   • A change in land use that involved closure of one or more existing access points to an arterial road, so that VicRoads could 'require any crossovers made redundant ... to be returned to kerb and channel'.
   • A new gate in a fence in a farming zone which is to be used only to convey stock along a road.
2. VicRoads relied on this construction being consistent with what it claimed was the purpose of the provision being 'to ensure appropriate access to identified roads in the context of the operation of the road and public safety'.
3. VicRoads therefore argued a permit would be required under cl 52.29 because:
   • the frequency of vehicle access to the Highway would be increased from the current estimate of 2 times per month to up to 10 times per day;
   • the angle at which a vehicle on the land enters the Highway from the southern access point changes to east west, and this changes what a driver could see as he or she enters the Highway; and
   • removes a row of trees that currently prevents the road from being accessed at what may be an unsafe location.

1. Clause 52.29 was introduced progressively into new format planning schemes in the late 1990s. Before that, the predecessor provision, in Metropolitan Region Planning Schemes was cl 17. It provided that 'a permit is required for land which abuts a Public Use Zone marked [Main Road] or a reserve for a main road to have ... [a]ny means of vehicle access between the land and the zone ... opened, constructed or altered'.
2. There is nothing in the explanatory material related to the introduction of the VPPs that sheds light on the purpose of the changes in drafting embodied in cl 52.29.[4]
3. I nevertheless make the following observations. First, the former provision concerned only vehicular access, hence tending to support the view that cl 52.29 includes access for other purposes such as pedestrians or conveying of farm stock. Second, the former provision referred to land being 'opened' for access, and the current provision refers to 'creating' access. To 'open' an access may be a wider notion than 'creating' an access because the former may more clearly include opening a disused but existing access. However, I do not need to consider this point because I only need consider whether the proposal alters access. Third, the former provision specifically referred to 'constructing' an access, which the current provision does not.

1. There is little case law on the meaning of alter in cl 52.29.
2. In Pioneer Concrete (Vic) Pty Ltd v Cardinia SC,[5] the Tribunal considered a secondary consent to amend endorsed plans under a permit for an extractive industry. The permit authorised a new 'access road' under cl 52.29 from the land to a Road Zone Category 1. The secondary consent proposed to relocate that access road to a location approximately 100 m away but still from the land to the Road Zone. The parties did not appear to disagree that the amendment was an 'alteration' to the proposed access. The Tribunal endorsed a cautious approach to construing cl 52.29 and held that a new permit was required and the new or altered access could not be authorised under a secondary consent.[6]
3. In The Regis Group Pty Ltd v Stonnington CC,[7] the Tribunal considered a permit that had been granted to construct a nursing home and use an existing access (shared with adjoining land) to new basement parking from an adjoining Road Zone Category 1. An amendment to the permit was proposed to relocate the access to a side street that abutted the land that was not in a Road Zone. VicRoads supported the amendment. The Tribunal held that the amendment did not trigger cl 52.29 and appears to have concluded the relocation was not an alteration to the access.
4. These cases do not greatly assist in this question of law.

1. The key aids to modern statutory interpretation are context and purpose.
2. The specified purpose of cl 52.29 is '[t]o ensure appropriate access to identified roads'. It is not, as VicRoads contended, '[t]o ensure appropriate access to identified roads in the context of the operation of the road and public safety'. The latter part of this formulation extracts part of the decision guidelines in cl 52.29.
3. There is a planning policy context for cl 52.29. An objective of the State Planning Policy Framework is '[t]o integrate land use and transport planning around existing and planned declared highways ...'.[8] A 'general implementation' measure is that '[n]ew uses or development of land near an existing or proposed transport route should be planned or regulated to avoid detriment to, and where possible enhance, the service, safety and amenity desirable for that transport route in the short and long terms'.[9]
4. Such measures are implemented in the scheme, in general terms, by land use provisions in zones and by specific provisions such as cl 52.29. In other words, the drafters of the scheme have given effect to this policy.
5. The Court of Appeal, in Popular Pastimes Pty Ltd v Melbourne City Council,[10] cited with approval the following passage from the High Court's judgment in CIC Insurance Ltd v Bankstown Football Club:

Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous ... [I]f the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. [11]

1. I see nothing in the context of the scheme that enables me to give 'alter' the broad construction contended by VicRoads. There are approximately 40 clauses or sub-clauses in the VPP that refer to 'alter' or 'alteration'. In all these provisions, the context is alterations to:
   • a building (externally or internally, including adding floor area);
   • a structure (such a fence), plant or equipment on land;
   • works (such a kerb or a footpath); or
   • natural features or the topography of land.

In each case, these references connote alterations in the nature of 'buildings and works'. They do not connote alterations to a land use, including a change of use or an intensification of an existing use.[12]

1. There is nothing in the history of cl 52.29 that suggests the mischief it was designed to address included the breadth of matters now contended by VicRoads.
2. There may be considerable inconvenience if I endorsed the construction proposed by VicRoads. It would significantly increase the circumstances in which a permit was required under cl 52.29 in this and other schemes beyond what I understand is current practice. For example:
   • There would be uncertainty about what level of increase in frequency in vehicles accessing the arterial road from an existing use would trigger a permit. How would the frequency be measured? Might it include the number of cars owned and used by residents of a dwelling abutting an arterial road?
   • There would be uncertainty about what type of change of vehicle would trigger a permit. Would it include light delivery vehicles starting to use an existing employee car park at a business? Would it include replacing three motorbikes parked at a dwelling with an existing access with three cars?
   • There would be uncertainty about the scope of works accommodating more or different vehicles. Would it include altering a loading bay on the land so that a larger delivery vehicle could enter the land via an existing access? Would it include enlarging a residential garage to accommodate an extra vehicle?

1. The permit applicants propose to upgrade the two existing accesses by carrying out works to install a new electric gate at each access point. The works will involve new gate posts and ancillary fencing. Both the northern and southern accesses will be straightened between approximately 1 m and 2 m so that the gates are located on the property line and are no longer at a small angle to it.
2. The realignment of the access gates are works that constitute an alteration to the access, albeit relatively minor, in the necessary legal sense.[13]
3. A permit is therefore required under cl 52.29 for the proposed access alterations. Consequently, the application was required to be referred to VicRoads under cl 66.
4. However, a permit is not required under cl 52.29 to:
   • change the use of land from vacant to a dwelling, thus increasing the likely frequency of vehicle access to the Highway from the two existing accesses;
   • change the type of vehicles accessing the land to cars and cars towing boats; or
   • construct new driveways or new vehicle storage facilities (ie a double garage and a car/boat shed) on the land from which vehicle may traverse the land to and from the existing access points;

because none of these changes constitute an alteration to an access.

1. There is no implication in this answer that there is no merit in VicRoads' contentions. If VicRoads considers a permit under cl 52.29 should be triggered by the range of circumstances it contends, it may seek appropriate amendments to cl 52.29. I make no comment about the merit of such amendments as that is a matter of policy.

1. We have decided the planning merits of the application together.

1. The land is zoned GWZ3 and is subject to ESO1. The land is within an approximately 1.5 km long green break along the Nepean Highway between Mount Eliza and Mornington. The suitability of this land for residential land use needs to be considered having regard to the planning policy framework and the context of the land itself.

1. The purpose of the GWZ3 includes conserving the character of open rural and scenic non-urban landscapes. Decision guidelines emphasise the need for land use to relate to rural land use, to maintain agricultural production, and to minimise building impacts on landscape features, major roads and vistas. ESO1's statement of environmental significance also acknowledges this area as being of strategic landscape importance, defining the rural edge to the townships of Mount Eliza and Mornington. Its objectives include protecting the landscape values, and promoting the siting and design of building and works that are responsive to the open rural landscape character.
2. The SPPF contains an objective to locate metropolitan growth into defined areas and protect primary production, major sources of raw materials and valued environmental areas.[14] One of the strategies to achieve this is to support development in the green wedge that provides for environmental, economic and social benefits. This policy theme is continued into the LPPF:
   • The MSS acknowledges the strong commitment to maintain the established township boundaries, including the green break at the edge of Mt Eliza.[15]
   • The MSS seeks to stabilise expectations regarding future residential development of rural land and protect areas of environmental or landscape significance, which includes the area between Mt Eliza and Mornington.[16]
   • The MSS seeks to protect rural areas from residential encroachment and ensure agricultural land of strategic importance[17] remains available.[18]

1. None of the parties suggested this land is of high agricultural value. It is a relatively small parcel of land that is surrounded by the highway, the water storage and a residential lot of a similar size. The Applicants' case focussed upon this area being an 'iconic green break'. This green break has previously been described as a 'scenic, semi-rural ... landscape [that is] a bucolic setting albeit one which is not conventionally rural'.[19] Having inspected this area, we find the land is located within a definable green break between urban townships. It is acknowledged in the policy basis of cl 22.06,[20] that the distinctive Peninsula character is, in part, defined by a number of relatively vulnerable streetscape landscapes that includes rural areas between townships. We find this green break is one of these vulnerable streetscape landscapes.
2. The west side of this green wedge break along the Nepean Highway between Mount Eliza and Mornington is used for agriculture, largely grape production. It retains an open landscape character with distant views to the Bay. We acknowledge the east side is more diverse. North of the subject land, the lots are larger and used for a horse stud, a vineyard and an aged care facility (the George Vowell Centre on an 8 ha site, formerly owned by Vision Australia). The subject land is one of two small lots, both approximately 0.4 ha, sandwiched between the Nepean Highway and the Melbourne Water reservoir. South of the subject land is a mixture of uses on smaller lots, including two function centres. The open landscape character is not as predominant south of the land, but it does still exist. Unfortunately, the deterioration of the green break begins immediately next door, to the south at 1226 Nepean Highway. The design and siting of the dwelling on that land is unsympathetic, there is minimal landscaping and there is a solid timber paling fence on the Highway frontage. In our opinion, the existence of this poor response is a demonstration of the vulnerability of the streetscape landscape. Further, the existence of a poor response does not negate the need for the subject land to protect its existing contribution to the landscape character of the green break.
3. The Applicant argued the subject land should not be used for a dwelling on policy grounds. We agree that a dwelling will make little contribution to agriculture values, but using green wedge zoned land for the purpose of a dwelling is clearly contemplated by the fact that it is a section 2 (permit required) use.[21] It is the only vacant small lot along the Nepean Highway in the green wedge. The land is therefore an infill site, and approval of a dwelling will not lead to pressure for other dwellings on small lots within this green break.
4. We agree with the Applicant that the land does contribute to the landscape character of this green break. Allowing a dwelling on the land creates, in our view, the opportunity to maintain some of the existing vegetation (even that that does not require planning permission to be removed), to plant new landscaping and to ensure such vegetation (overall) is maintained for the long term. The important question is whether the design and siting of the dwelling can be as sympathetic as possible to its context, which is the question we now turn to.

1. There are a range of problems with the design and siting of the dwelling.

1. The shed is a large barn-style construction. Our inspection shows its location makes it largely out of view from the north (as it is behind the telephone tower and electricity substation on adjoining land) and south (because of the Highway design). No change in its design or siting is therefore required.
2. The dwelling is to be located only 23 m from the Highway at the south of the land. It is very close to the rear boundary so little improvement could be made, unless the axis of the dwelling was oriented north south instead of east west.
3. We do not consider it necessary or reasonable that a contemporary two-storey dwelling be rejected in the pursuit of a single storey design of a more rural design eg incorporating verandahs. The more important question is whether the dwelling can be recessed into the landscape.

1. The dwelling is located behind a line of approximately 19 mature cypress pines extending in a southeast direction from the front fence at the southern access point. The permit application indicates that those pines are to be removed. No permit is required to remove them.
2. The Applicant contended the pine trees contribute to the landscape character of the area. If all the pine trees were removed it submitted it is unlikely adequate screening could or would occur, thus the Highway would be left with the cumulative impact of two tall buildings (the dwelling and the shed) plus the single storey house next door, to the south. We agree such an outcome would be contrary to the planning policy framework of the scheme but those trees could be removed at any time without a permit.
3. As the permit applicants propose to remove all of the pine trees, significant new landscaping would be required to be planted along the front and southern side boundaries of the site to help restore the landscape values (over time) and to recess the dwelling into the landscape. A landscaped area of densely planted medium sized shrubs and canopy trees to a depth of 10 metres along the land's frontage and to a depth of 5 metres along the southern side boundary would be required. The extent of planting required is far greater than that proposed by the Council in its draft conditions. The need for this is because of the importance of protecting the landscape character of this green break and because we find the proposed front fencing is inappropriate.

1. A 1.8 m high brush fence with brick piers is proposed along the 104 m frontage to the Highway. Relief in the length of this fence is afforded by a 17 m long section at the mid point that is recessed 3 m. We consider the proposed fencing is inappropriate in this green wedge break. In our view, the material (brush fencing) does not sufficiently compensate for the fact that the visual impact of the fence is solid. We find the impact would not be sufficiently better than the visual impact of the solid paling fence next door. Although this fence exists, we find it is inappropriate and should not be repeated on this land. In line with many of the properties to the north and on the opposite side of the Highway, an appropriate response is to densely plant the frontage with a mix of medium sized shrubs and canopy trees around a rural post and wire or post and rail fence.
2. In our view, if a quality landscaping of the land is achieved, the vulnerable streetscape landscape of this green break will be protected and enhanced. As stated earlier, the landscape plan required by the Council's draft condition 1(a) is inadequate. More bushy shrubs and canopy vegetation must be planted along the frontage to create a dense screen. A bond or bank guarantee is needed to ensure the landscaping is both satisfactorily established and maintained.

1. VicRoads requested a condition requiring closure of the northern access.[22] As this access is close to the intersection with Sunnyside Avenue, and having regard to the speed of traffic travelling along this section of the Highway, we support the inclusion of this condition.
2. VicRoads have also requested a condition requiring a relocated gate and driveway at the southern access to its satisfaction. Given we have found a rural type of fencing is required, we are also of the view the style and height of any gate access needs to be reconsidered. We support the gated access being indented further onto the land, and we have included conditions requiring the gate and driveway details to be to the satisfaction of VicRoads and the Responsible Authority.

1. In general terms, we have no concern with the use of the land for the purpose of a dwelling and will issue a permit for this use. We also have no concern with the development of the dwelling and shed proposed subject to these buildings being recessed into the landscape. We are not persuaded the draft permit conditions go far enough to achieve the necessary outcome, and so we have modified the conditions to facilitate a landscaped streetscape.

Use for a dwelling and construction of buildings and works and altering access to a road in Road Zone Category 1 in accordance with the endorsed plans.

The permit must contain the following conditions:

1. Before the developments starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application, as amended by the plans prepared by Simonds Homes Melbourne Pty ltd dated 24 April 2009 job number AN/MB 20562-PQ sheet numbers 1.1, 1.2, 2.1, 2.2, 3.1, 3.2, 3.3, 3.4, 4.1 and 4.2 but modified to show:
   • (a) Deletion of the 1.8 m high brush fence with brick piers along the frontage of the land;
   • (b) The matters set out in condition 15.
2. The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.
3. The materials and colour of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.

1. Before the development starts, a landscaping plan must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to a professional standard and to scale with dimensions and three copies must be provided. The plans must show:
   • (a) Any trees and shrubs proposed to be removed.
   • (b) All trees and shrubs to be retained.
   • (c) That part of the land within 10 m along the frontage of the land (except for driveway leading to and including the southern access) and within 5 m of the southern boundary set aside for landscaping.
   • (d) The landscaped area in paragraph (c) densely planted with medium sized shrubs and canopy trees to the satisfaction of the Responsible Authority.
2. The landscaping works shown on the endorsed landscaping plan must be carried out and completed to the satisfaction of the Responsible Authority before the use commences. Those works must thereafter be maintained at all times to the satisfaction of the Responsible Authority.
3. No part of the landscaped area in condition 4(c) may developed for the dwelling or for associated buildings and works, except for the driveway leading to the southern access point and for reticulated services.
4. A $10,000 bond or bank guarantee must be lodged with the Responsible Authority to ensure the completion and maintenance of the landscaped areas. The bond or bank guarantee must be refunded or discharged in the following manner:
   • (a) Half refunded or discharged after the landscaping has been carried out to the satisfaction of the Responsible Authority; and
   • (b) Half refunded or discharged after two years from the date of (a) above if the landscaping areas have been maintained to the satisfaction of the Responsible Authority.
5. All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.

1. Before the development starts, the owner must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987 to provide that any new fencing located on the front boundary of the land (abutting the Nepean Highway) or parallel to that boundary and within 10 m of the Nepean Highway must be rural-style post and open wire or post and rail fencing to the satisfaction of the Responsible Authority.
2. Before the development starts, application must be made to the Registrar of Titles to register the Section 173 agreement referred to in Condition 9 above on the title to the land under Section 181 of the Planning and Environment Act 1987. The owner must pay the reasonable costs of the preparation, execution and registration of the Section 173 agreement.

1. During construction of the development approved by this permit site controls are to be installed to reduce the potential for sediment transport to the Mornington Reservoir to the satisfaction of the Responsible Authority.
2. Surplus building materials shall not be placed on the adjacent reserve during and upon completion of the construction of the building to the satisfaction of the Responsible Authority.
3. Prior to the initial occupation of the dwelling approved under this permit connection must be made to the reticulated sewerage system to the satisfaction of the Responsible Authority.
4. No polluted waters and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

1. The amended plans to be submitted to the Responsible Authority for endorsement in accordance with condition 1 must show:
   • (a) Closure of the northern access and replacement of the gate with a fence.
   • (b) Design and construction of the southern access to the Nepean Highway to the satisfaction of the Responsible Authority and VicRoads.
   • (c) The gate at the southern access to the Nepean Highway set back from the property boundary to the satisfaction of the Responsible Authority and VicRoads.
   • (d) An all-weather driveway between the shed/barn and the southern access to the Nepean Highway to the satisfaction of the Responsible Authority.
2. Before the use commences, the driveway and crossover at the southern access point must be designed and constructed to VicRoads' satisfaction to ensure that a vehicle towing a trailer and boat can enter and exit the carriageway in a safe and efficient manner.
3. Before the use commences, the northern access must be closed, the gate removed and a fence erected to prevent access at this point.

1. This permit will expire if one of the following applies:
   • (a) The development is not started within two years of the date of this permit.
   • (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the above periods if a request is made in writing before the permit expires or within the following three months.

[2] A permit is also required to create or alter access to a Public Acquisition Overlay if the purpose of acquisition is for a Category 1 road, and to subdivide land adjacent to a road in Road Zone Category 1 or to land in a Public Acquisition Overlay if the purpose of acquisition is for a Category 1 road. These requirements are not relevant in this case.

[3] VicRoads submitted that an access for pedestrians and not vehicles would still be an access for the purposes of cl 52.29. I tend to agree with this, but do not need to decide the point as the proposal does not include purely pedestrian access points.

[4] For example, there is nothing in the Report of the Advisory Committee on the Victoria Planning Provisions (August 1997) to the Minister for Planning and Local Government.

[5] [2004] VCAT 1339.

[6] Pioneer Concrete (Vic) Pty Ltd v Cardinia SC [2004] VCAT 1339 at [31].

[7] [2008] VCAT 2428.

[10] [2007] VSCA 188.

[12] A similar conclusion may be drawn from the s 3 (definition of development) and s 6(3) of the PE Act where alteration is in a context of alterations to buildings or works.

[13] The permit conditions required by VicRoads' (see paragraphs 60-61 of these reasons) would confirm that access is to be altered. However, this is a different question as to whether there is an alteration to access in the permit application and whether a permit and referral to VicRoads is required.

[17] Strategic importance in terms of achieving conservation, recreation, settlement pattern and port development objectives

[19] Defenders of the South East Green Wedge v Mornington Peninsula SC [2007] VCAT 2356 at [64].

[20] Development on highways, main roads and tourist routes local planning policy

[21] It is reasonable to infer that the inclusion of dwelling as a section 2 use reflects a deliberate decision by those who drafted the Green Wedge zone to allow the opportunity for this land use to be considered on its merits - a similar finding was referred to in Dromana Tourist Park Holdings Pty Ltd v Mornington Peninsula SC [2005] VCAT 1439 at [33].

[22] If the Responsible Authority had determined that a permit was required under cl 52.29 (as Member Code has found) and that the application should have been referred to VicRoads, the condition would have been required to be included in the notice of decision.