REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

LEGISLATION - interpretation or application of statutory provision

Review Jurisdiction of the Tribunal - Sections 48 and 51(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); Sections 82(1) and 82(3) of the Planning and Environment Act 1998 (Vic)

APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

In the context of a review application under section 82(1), consideration of the following -

• Sweetvale Pty Ltd & Anor v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83.
• Sweetvale Pty Ltd & Anor v VCAT & Ors [2001] VSC 426.
• Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27
• 'de novo' hearing.

The decision is of interest because it addresses the following two important related matters -

1. The extent of the Tribunal's jurisdiction in an application for review under s.82(1) of the Planning and Environment Act 1987 (the Act) having regard to s.82(3) of the Act.

2. The extent to which a matter exempted from notice and review under s.82(3) of the Act is relevant to the Tribunal's consideration of a review application commenced under s.82(1) of the Act.

As the Tribunal's review jurisdiction can only be invoked in the ways described in s.48 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), the Tribunal does not have jurisdiction in a review commenced under s.82(1) of the Act to consider part of an applicant's review application challenging a decision of a responsible authority that is exempted under s.82(3) of the Act.

In a review application commenced under s.82(1) of the Act -

• The 'issues to be determined' are limited by s.82(3) of the Act to issues that are subject to third party review.
• In conducting such a review as a 'de novo hearing', the Tribunal, 'when standing in the shoes' of a responsible authority, is confined to review only those decisions properly raised under s.82(1) of the Act and does not have jurisdiction to consider the whole of the permit application that led to the specific decisions under review.
• Nothing in clause 71.02-3 of the VPPs, or the concept of 'integrated decision making', confers jurisdiction on the Tribunal to review decisions excluded under s.82(3) of the Act.

The decision is also of interest as to how the legal opinion has been factored into the overall decision. In this case, because the Tribunal determined to grant a permit under two of three other permit triggers, the fact that the council determined to grant a permit under the third trigger which contains the exemption from third party notice and review rights, added weight to the Tribunal's decision to grant a permit.

Section 82 Planning and Environment Act 1987; Southern Grampians Planning Scheme; Rural Living Zone, Environmental Significance Overlay Schedule 3; Design and Development Overlay Schedule 6; Group Accommodation; Built Form Impact on Landscape; Exemption from Notice and Review.

Myers v Southern Grampians SC (Red Dot) [2022] VCAT 695

1 In application P789/2021 the decision of the responsible authority is varied.

2 In planning permit application TP/127/2020 a permit is granted and directed to be issued for the land at 135 Fairburn Street, DUNKELD VIC 3294 in accordance with the endorsed plans and the conditions set out in Appendix B. The permit allows:

• Use and development of the land for Group Accommodation and associated works.

Mr Ian Munt of counsel, instructed by Planning and Property Partners.

Mr Greg Tobin, lawyer of Harwood Andrews. He called expert evidence from the following witnesses:

• Mr Craig Czarny, urban design of Hansen Partnership.
• Mr John Glossop, town planner of Glossop Town Planning.

Use and development of the land for Group Accommodation.

Application under section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

Environmental Significance Overlay Schedules 2 and 3 (ESO2) (ESO3)

Vegetation Protection Overlay Schedule 1 (VPO1)

Design and Development Overlay Schedule 6 (DDO6)

Clause 02, clause 11, clause 12, clause 13, clause 14, clause 15, clause 16, clause 18, clause 19, clause 52.06, clause 65, clause 71.

Clause 35.03-1 - to use land for group accommodation.

Clause 35.03-4 to construct or carry out a building or works associated with a use in Section 2 of Clause 35.03-1.

Clause 43.02-2, a permit is required to construct a building or construct or carry out works.

Clause 42.01-2 to construct a building or construct or carry out works.

The land is located on the western side of Fairburn Street and on the north-western edge of the Dunkeld township.

The land is a rectangular shaped lot with a frontage of 52.81 metres to Fairburn Street, a length of 301.75 metres sloping down to the Wannon River, and an overall area of 1.594 hectares. The land straddles an escarpment with an elevated flat area towards Fairburn Street or eastern side. This flat, elevated landform on the eastern portion of the review site then slopes down to the Wannon River to the west, with a fall of approximately 12 metres over a distance of 42.85 metres, creating a slope angle of approximately 15 degrees (35% grade). Fairburn street itself is a gravel road located within a 59 metre road reserve.

The escarpment is scattered with exposed boulders with a patch of native vegetation, two large scattered trees and three small scattered trees were on the land. A second patch of native vegetation (containing trees) and one large scattered tree are located in the Fairburn Street road reserve adjacent to the site.

1 Victoria has spectacular natural features which people travel far and wide to experience. The Grampians National Park (also referred to as Gariwerd) comprises mountain peaks spread across a vast area, with two distinct ranges running in a north-south alignment, separated by a valley.

2 As one approaches Gariwerd from various directions, the ranges and peaks within the park set a stark contrast to the wider landscape of flat and gently rolling topography.

3 The review site is located in Dunkeld, a small town located at the southern end of the eastern range of Gariwerd.

4 This case concerns a proposal for group accommodation with the backdrop of Mt Sturgeon and Mt Abrupt, at the southern end of the Grampians National Park, and the winding Wannon River adjacent to the review site.

5 A permit application was lodged with the council for the use and development of the land for Group Accommodation, comprising four detached 'cabins' accommodating up to 10 people in total. An associated pool, sauna and works were also proposed.

6 As part of the assessment process the council advertised the application and three objections were received. The council subsequently determined to grant a permit, but an appeal has been lodged by original objectors.

7 At the hearing, the permit applicant sought to substitute the application plans for an amended proposal. This amended proposal was broadly for the same use and development but with amendments including reduced front setbacks, minor changes to the layout of the cabins, a consolidated driveway and parking arrangement and the consolidation of the sauna and plunge pool into one building, rather than being separate. Leave was granted for the substitution of plans, and these are the plans the parties based their respective cases on and which I have based my decision on.

8 This is a case where the matters in dispute revolve largely around the visual impact of the proposal in the setting of Mt Sturgeon and Mt Abrupt and the broader Gariwerd and surrounding environs, as well as the planning scheme context of the RLZ and ESO3 and related policy.

9 The review site is also affected by DDO6. DDO6 includes exemptions from third party notice and appeal rights. This matter was raised during the hearing and ultimately referred to a legal member for a legal opinion. That opinion is at Appendix A and my decision is in accordance with that opinion.

10 The primary submissions of the applicants were that the surrounding area has a distinct absence of development and that the proposal will be an unacceptable imposition upon the surrounding landscape.

11 However, I have found that the proposal is acceptable. My reasons are set out below.

12 During the hearing, the respondent (permit applicant) submitted that the applicants had no standing in relation to the DDO6, given this sets out an exemption from notice and review rights. This then raised the question of whether the Tribunal had jurisdiction to consider the DDO6 at all, given the exemptions but because this is solely a section 82 review.

13 As this was raised during the hearing, I issued interim orders following the conclusion of the hearing offering the parties the opportunity to make further submissions on this point, with further opportunity for reply submissions. The council and the permit applicant made further submissions, but no party made any reply submissions. The permit applicant also advised that it considered questions of law arose and requested that a legal member determine the questions.

1. Whether the Tribunal has jurisdiction to consider the application for review under Design and Development Overlay Schedule 6 of the Southern Grampians Planning Scheme having regard to the exemption from notice and appeal rights under that provision, and section 82(3) of the Planning and Environment Act 1987?
2. Is compliance with the built form requirement in the Design and Development Overlay Schedule 6 a relevant consideration for the Tribunal in reviewing Council's decision to grant a permit for buildings and works pursuant to the Rural Living Zone and/or Environmental Significance Overlay Schedule 3?

15 As a result, this was referred to a legal member. The opinion of that legal member is attached at Appendix A.

1. the Tribunal has no jurisdiction to consider the application for review against the provisions of DDO6, where it is a section 82 review alone, given the DDO6 includes an exemption from third party notice and appeal rights; and
2. it is a relevant consideration for the Tribunal to take into account the compliance with the DDO6 but it is beyond the Tribunal to independently consider whether the application for review complies with the DDO6. Further, this opinion also states that it is a matter for the Tribunal as to what weight to give to the decision of the council in it approving the proposal (by virtue of the Notice of Decision to Grant a Planning Permit), inclusive of its approval of the proposal under the DDO6.

17 I have made my decision in accordance with that opinion.

18 The proposal involves the use and development of the review site for Group Accommodation comprising four detached 'cabins', in a linear formation and arranged side-by-side in an east-west alignment. A separate fifth building comprising a plunge pool and sauna is proposed to the south-west of Cabin D.

19 It is only the front, or east, portion of the review site that is to be utilised for the proposal.

20 All cabins sit detached from one another, with a more substantial gap between cabins B and C. Car parking is proposed in this 10 metre separation for three vehicles, plus an additional space adjacent to the east façade of Cabin A. Access is to be provided to a compacted all weather gravel driveway from the existing access point in the north-east corner of the site.

21 The facades of each are curvilinear in design, with the rear elevation having a 'scalloped' or concave design with a deck. Towards the front of each cabin is an internal courtyard, shielded by the timber clad curved facades.

22 All cabins are to be single storey in scale and range from 2.867 metres to 4.609 metres in height.

Proposed east/Fairburn Street elevation

23 Materials include unpainted vertical timber cladding, galvanised roof sheeting and dark coloured metal flashing.

WILL THE PROPOSAL HAVE AN UNACCEPTABLE VISUAL IMPACT?

24 There was no dispute that the review site could accommodate some form of tourist accommodation. In fact, the applicants said the following:

52 The Subject Land offers an extraordinary opportunity to foster a high quality tourism facility that takes advantage of peerless views in a quiet and beautiful rural setting.

25 It follows that I am satisfied that the use of the land is acceptable. They key issue in this case was the manifestation of the built form on the review site, the extent of cut and fill required and the limited landscaping opportunities to assist in integrating the proposal into the landscape.

26 The applicants submitted that the proposed use and development of the proposal is not sited, scaled and designed acceptably for the role that the review site plays in planning for Dunkeld under the Scheme. It said that the proposal is an overdevelopment of the review site, evidenced by the significant amount of cut and fill required in order to site the proposed cabins and that the landscaping proposed is insufficient for the size of the task it has been allotted.

27 The planning scheme does not prohibit this type of use and development. Indeed, the RLZ zoning and the application of the DDO6 imply that built form of sorts will likely occur on the review site.

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for residential use in a rural environment.

To provide for agricultural land uses which do not adversely affect the amenity of surrounding land uses.

To protect and enhance the natural resources, biodiversity and landscape and heritage values of the area.

To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.

29 Insofar as the decision guidelines of the RLZ are relevant to this case, they provide guidance in respect of considering the impact a proposal will have on physical and natural and landscape features and vistas, amongst others.

• To implement the Municipal Planning Strategy and the Planning Policy Framework.
• To identify areas where the development of land may be affected by environmental constraints.
• To ensure that development is compatible with identified environmental values.

31 The statement of environmental significance for the ESO3 is:

The Wannon River and the notable escarpment that defines its floodplain to the north and west of Dunkeld is an important environmental and landscape asset. This escarpment is relatively steep and any development on this escarpment has the potential to impact negatively on the Wannon River floodplain. The impact of increased and potentially contaminated overland flows as a result of residential development is to be avoided. It is a critical foreground to the panorama of Mount Sturgeon and Southern Grampians' profile and plays a significant role in the visual amenity and landscape setting of Dunkeld. Given the environmental character of the escarpment, its relationship to the floodplain and visual prominence, the management of land adjacent to this waterway is necessary to reduce erosion, maintain vegetation and habitat, improve water quality and to ensure development is not visually intrusive.

Salt Creek is an ephemeral waterway partly regulated by the Dunkeld reservoir. It is characterised by a well-vegetated riparian corridor extending from the Arboretum to the town edge. The riparian vegetation buffer becomes sparse from the town edge to the Wannon River. The creek has high community and tourism values as it is extensively used for recreational activities such as fishing, walking and community events.

• To ensure development reflects the environmental constraints of the Wannon River escarpment.
• To maintain water quality.
• To prevent erosion of land adjoining Wannon River and the siltation of watercourses, drains and other features.
• To protect and encourage the long term revegetation of flora and fauna habitat on the escarpment.
• To prevent increased surface run-off or concentration of surface water run-off leading to erosion or siltation of watercourses.
• To encourage siting, design and landscaping of buildings and works that are responsive to the environmental and landscape values of the escarpment.
• To ensure that the siting and design of buildings and works addresses other environmental hazards, including erosion, fire and flooding.
• To maintain vegetation as an important element of the escarpment landscape.

• The control of the density of buildings and subdivision in areas of scenic value.
• The availability of reasonable alternative sites, alternative building designs or alternative construction practices for proposed buildings and works that would better meet environmental and landscape character objectives of this schedule, having regard to the size and topography of the land and the form and nature of the proposed buildings and works.
• The benefit of conditions requiring the landscaping of buildings and works, while also having regard to the maintenance of existing viewlines.

34 The applicants submitted that there are three broad strategic directions in the scheme for the review site insofar as this proposal is concerned.

47. First, the RLZ2, the DDO6, the ESO2, and a suite of policies: a. identify that the Subject Land makes a critical contribution to the landscape setting and hence the environmental, cultural and economic values of Dunkeld;

b. emphasise that, for this reason, the Subject Land is sensitive to adverse impacts to these values from development;

c. call for the protection of the landscape values at the Subject Land; and thence

d. require the Tribunal to have regard to a detailed list of considerations relevant to the siting, scale, and design of any proposed development at the Subject Land.

48. This latter outcome is intended to be accomplished by allowing only low rise - single-storey - and low-density development, composed of only appropriate materials, sited discreetly off or by the ridgeline, and nestled amongst landscaping respectful of the existing vegetation at the Subject Land and in the broader landscape. This does not mean that development should be invisible from the public realm or nearby dwellings. Rather, it should adopt a subordinate relationship to the landscape and hence should constitute a minimal and unobtrusive visual presence across the extraordinary viewlines from Dunkeld towards the Grampians.

49. Second, the RLZ2, the DDO6, the ESO2, VPO1, the BMO and certain policies seek to direct all forms of development away from the Wannon River, out of the floodline, and away from existing copses of native vegetation. The reasons for this are self-evident.

50. Third, and finally, the RLZ2 and certain policies encourage low-density rural living or low density tourism uses at the Subject Land. This would strengthen the economic basis of the town and contribute to its role as a tourist destination.

35 Both Mr Glossop and Mr Czarny stated that the review site was in a visually sensitive location and that any development must respond to this.

36 Mr Czarny's evidence was that the proposed cabins would not be visually intrusive given the profile and height of the cabins as would be visible within any viewshed.

37 Mr Glossop shared a similar opinion stating that the buildings have a low profile, and the flat roof form responds to the visual sensitivity of the location and the setbacks, as well as the unusually wide road reserve reducing impact to the east.

38 It was also Mr Czarny's evidence that the proposal will:

"...minimise visual intrusion and to complement the important environmental and scenic context of the Wannon River escarpment and Southern Grampians threshold. It is abundantly clear that the scenic highlight of Dunkeld's north-west fringe (and indeed the broader Ranges panorama) is the towering and linked profile of Mount Sturgeon, the Piccaninny and Mount Abrupt. While the proposed cabins will enjoy aspect across the valley to these features, they are discrete in their siting, height, profile and materiality and will not affect an appreciation of the significance of the setting."

39 I find that the proposal will not be an unacceptable visual intrusion on the landscape, both in the immediate and also the broader surrounds.

40 Although the cabins are relatively closely spaced together, particularly when view from Fairburn Street, they are relatively modest buildings, with a maximum height of between 2.867 metres and 3.255 metres.

41 When viewed from Fairburn Street, the buildings appear separated, with a more significant separation between cabins 2 and 3 of 10 metres, with landscaping proposed in between. Further, the cabins all have a curvilinear form to the Fairburn Street elevation as well as vertical natural timber cladding. The width of each cabin will also be a maximum of 5.83 metres (Cabin A). These features, in my view, ensure that the proposed cabins will have a minimal impact on the streetscape and surrounding landscape.

42 When viewed from Fairburn Street, the cabins will also have the partially cleared backdrop of the southern rise of the ranges, where the topography starts to rise up towards Mt Sturgeon, with a prominent ridgeline evident. From this perspective, the visibility of this ridgeline beyond will be largely maintained with the proposed cabins not significantly protruding above this, at least when viewed from the public realm. To the extent that there may be some protrusion, it would be minimal and only be to the lower slopes, rather than obscuring any part of the higher elevations, particularly Mt Sturgeon.

43 From the south along Fairburn Street, the review site will be mostly screened by foreground vegetation, either on private property or within the road reserve. The combination of the low-scale design, materials and setback from the site frontage result in a design response that will have minimal, if any, visual impact from the south along Fairburn Street.

44 From further afield to the south, such as along Merewether Lane, again, the dominant feature of vegetation provides a backdrop which will be maintain as distinctly higher than the height of the cabins. Whilst the cabins will be visible in the foreground of this vegetation, the low-rise appearance and materials will have minimal visual impact on the surrounding landscape.

Image extracted from Mr Czarny's evidence, page 18.

45 From the west, including from the summit of Mt Sturgeon and its southern slope, I find the proposal will not be un unacceptable visual intrusion on the landscape.

46 From Mt Sturgeon, built form in the township of Dunkeld is currently visible. Whilst it is generally interspersed with vegetation, there is no doubting that the township and accompanying buildings is evident. The zoning of the land and other applicable controls, envisage that this landscape will change, with the introduction of built form, albeit not significant growth nor significant built form impositions.

47 I accept that the extent of existing built form both within and on the outskirts of the town dissipates into a more rural and vegetated environment the further one casts their eyes from the centre of the town and that the proposal will introduce built form into an area that is currently largely devoid of such features. However, the planning scheme recognises that this will likely occur and has set provisions and policy to manage this.

48 The modest extent and scale of the proposal, coupled with the muted materials proposed, will ensure that the visual impact of the proposal as seen from Mt Sturgeon will be minimal. Further, it will be much less than other existing buildings, particularly those which have a greater combined footprint and/or materials that more starkly contrast with the natural environment than what is proposed as part of this development.

View from Mt Sturgeon, approximate location of review site noted (Tribunal annotation).[3]

49 The views from the west, further downslope towards the review site will obviously change the angle of view. However, with this also introduces a transition of scale of existing vegetation and topography of the township area. This results in the vegetation surrounding the cabins becoming more evident and more prominent than from the summit of Mt Sturgeon.

50 Again, I find no unacceptable impact with respect to these lower elevation views from the west, given the background vegetation and the modest scale, extent and materials proposed. The scale of the buildings will clearly be greater from this direction, however, so too are the background features within which the proposal will blend.

51 In terms of the density of the built form, the applicants submitted that the proposal comprises too much built form over a large extent of the developable area of the site, being that area above the escarpment.

52 The respondent submitted that the total area of the cabins and pool/sauna building is akin to that of a dwelling and associated outbuildings that would likely be constructed if the site were developed for one dwelling.

53 Although from some angles, particularly oblique angles along Fairburn Street, close to the review site, the extent of form will appear as being more of an accumulation, rather than four distinct smaller buildings, I am not persuaded that this will be an unacceptable outcome.

54 I agree with the respondent that the extent of form is not inconsistent with what might occur if a single dwelling were to be constructed, even when taking into account the area of the review site that sits above the escarpment. Notwithstanding, it is an acceptable degree of built form that will be softened by the proposed vegetation.

55 Whilst there is a degree of cut and fill, I am not persuaded that this is an unacceptable degree. The length of the buildings is not substantial, and the majority of works required to accommodate the buildings is excavation which will assist in nestling the buildings within the site, as opposed to them sitting more proud, in the case where more filling is proposed.

WEIGHT TO BE GIVEN TO THE COUNCIL'S DECISION TO APPROVE THE PROPOSAL UNDER THE DDO6

56 In accordance with the legal opinion attached to this decision, the existence of a grant of a permit under the DDO6 by the council[4] is lawful and binding on this Tribunal. Further, that opinion sets out that I am not reviewing the decision of the council to grant a permit under the DDO6 when considering the application for review.

57 However, that opinion also sets out that it is a matter for the decision maker in the review application as to the weight to be given to the council's decision to grant a permit under the DDO6, as per paragraph 89 of the attached opinion:

89 The weight to be given to the grant of a permit under DDO6 in the Tribunal's consideration of the 'cover-all' permit is a matter for the Tribunal.

58 In this case, as I have been persuaded that a permit should be granted under the RLZ and ESO3, the council's decision to grant a permit under the DDO6 only adds weight to my determination to grant a permit.

59 An existing Carob Tree is located on the slope of the escarpment of the review site which was originally proposed to be removed. The council submitted that this tree was one which was exempt from a permit to remove it under the ESO3. However, the council and the respondent both later conceded that this tree was not exempt, and a permit is required to remove it. The permit application to the council did not include the removal of vegetation and the removal of this tree is not required in order to allow the development to occur.

60 During the hearing, the respondent requested that this tree be retained and that if it wished to remove it, it would address this as a separate matter with the council. I have therefore included a condition to require an annotation on the plans to be amended to show this tree to be retained.

61 It was also Mr Czarny's evidence that replanting of grass should be undertaken with a native seed mix. On this basis, I find that given the natural setting of the site and the ESO3, an indigenous seed mix should be used. I have included a condition accordingly.

62 The review site, and the proposal, are both dwarfed by the distraction of the rising Mt Sturgeon and towering Mt Abrupt, seemingly not coincidentally named so. The development will not be an unacceptable intrusion and nor will it dominate the surrounding landscape, particularly Mt Sturgeon and the surrounding Grampians ranges.

63 For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

CLAUSE 66(1) OF SCHEDULE 1 - VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 (VIC) [5]**

1 On 12 April 2021, Southern Grampians Shire Council (Council) issued a notice of decision to grant a permit in respect to land situated at 135 Fairburn Street, Dunkeld (the land) for the use and development of the land for Group Accommodation.

2 The applicants are persons who lodged objections against the grant of the permit and who, on 5 May 2021, lodged with the Tribunal an application under s.82(1) of the Planning and Environment Act 1987 (Vic) (the Act) against the grant of the permit (the review application).

3 The respondent is the permit applicant who seeks the benefit of the permit.

4 The hearing of the applicants' review application was scheduled for hearing on 6 December 2021 over three days. During the course of that hearing, jurisdictional questions arose regarding the Tribunal's jurisdiction to consider the permit application under the Design and Development Overlay Schedule 6 - Dunkeld Larger Lot Residential Areas (DDO6) of the Southern Grampians Planning Scheme (the scheme) having regard to clause 2 of DDO6 that exempted an application to construct a building or construct or carry out works from the notice requirements of s.52(1)(a), (b) and (d), the decision requirements of s.64(1), (2) and (3) and the review rights of s.82(1) of the Act.

5 On 23 March 2022, I was nominated under clause 66(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) to provide an opinion on the following questions of law arising from the hearing of the review application - [6]

1. Whether the Tribunal has jurisdiction to consider the application for review under Design and Development Overlay Schedule 6 of the Southern Grampians Planning Scheme having regard to the exemption from notice and appeal rights under that provision, and section 82(3) of the Planning and Environment Act 1987?

2. Is compliance with the built form requirement in the Design and Development Overlay Schedule 6 a relevant consideration for the Tribunal in reviewing Council's decision to grant a permit for buildings and works pursuant to the Rural Living Zone and/or Environmental Significance Overlay Schedule 3?

• Four single storey self-contained cabins.
• A sauna located west of the cabins.
• Vehicle access and four car parking spaces (on all weathered gravel).

7 Relevantly for my purposes, the land is included in the Rural Living Zone - Schedule 2 (RLZ2) and is affected by the -

• DDO6; and
• Environment Significance Overlay 3 - Wannon River Escarpment Protection.

8 To develop the land as proposed a permit is required -

1. under clause 35.03-1 for a Section 2 use, Group Accommodation, of land in the RLZ2.
2. under clause 35.03-4 to construct a building or carry out works associated with a Section 2 use on land in the RLZ2.
3. under clause 42.01-2 to construct a building or construct or carry out works and to remove, destroy or lop any vegetation, including dead vegetation.[7]
4. under clause 43.02-2 to construct a building or carry out works on land affected by DDO6.

9 Clause 2 of DDO6 directs that an application to construct a building or construct or carry out works is exempt from the notice requirements of s.52(1)(a), (b) and (d), the decision requirements of s.64(1), (2) and (3) and the review rights of s.82(1) of the Act.

10 In the review application, the applicants stated the following reasons for applying to the Tribunal for review of Council's decision -

1. The proposal fails to comply with Clause 35.03 of the Southern Grampians Planning Scheme, as it fails to appropriately protect the landscape values of the area;

2. The proposed fails to comply with Clause 35.03 of the Southern Grampians Planning Scheme, as it fails to limit the impact on the flora and fauna of the locality;

3. The proposal fails to comply with Schedule 6 of Clause 43.02 of the Southern Grampians Planning Scheme, as it fails to appropriately achieve design objectives and outcomes; and

4. The proposal fails to comply with Schedule 3 of Clause 42.01 of the Southern Grampians Planning Scheme, as it fails to encourage buildings and works that are responsive to the environmental and landscape values of the escarpment.

11 It is necessary to set out the applicable legislative framework to answer the questions posed.

12 The Act establishes a framework for the use, development and protection of land in Victoria.[8]

13 The objectives of that planning framework are set out in s.4(2) of the Act and include -

(f) to provide a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

(i) to ensure that those affected by proposals for use, development or protection of land or changes in planning policy or requirements receive appropriate notice;

(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

14 Section 6(2) of the Act sets out the matters that a planning scheme can provide for and included in these matters are the following -

(kc) set out classes of applications for permits exempted wholly or in part from section 52(1) and set out notice requirements (if any) to apply in place of the requirements of that subsection;

(kcb) set out the classes of applications for permits that are exempted wholly or in part from the requirements of section 60(1)(b) to (f), (1A) and (1B);

(kd) set out clauses of applications the decision on which are exempted from the requirements of section 64(1), (2) and (3) and section 82(1);

(1) If a planning scheme requires a permit to be obtained for use or development of land or in any of the circumstances mentioned in section 6A(2) or for any combination of use, development and any of those circumstances, the application for the permit must -

(a) be made to the responsible authority in accordance with the regulations; and

(ab)if the permit is required to undertake development, state the estimated costs of the development for which the permit is required; and

(b) be accompanied by the prescribed fee; and

(c) be accompanied by the information required by the planning scheme; and

(d) if the land is burdened by a registered restrictive covenant, be accompanied by a copy of the covenant; and

(e) if the application is for a permit to allow the removal or variation of a registered restrictive covenant or if anything authorised by the permit would result in a breach of a registered restrictive covenant, be accompanied by -

(i) information clearly identifying each allotment or lot benefited by the registered restrictive covenant; and

(ii) any other information that is required by the regulations.

16 Section 52(1) of the Act makes provision for the giving of public notice of a planning application to certain persons, however a planning scheme may, under s.52(4), exempt any class or classes of applications from all or any of the public notice requirements, including those set out in s.52(1).

17 Any person affected by the grant of a permit may object to the grant of the permit under s.57(1).

18 When making a decision on a planning application, a responsible authority must consider the matters set out in ss.60(1) and (1B) of the Act and may consider the matter set out in s.60(1A). Relevantly for present purposes, s.60(1)(c) requires that a responsible authority must consider "all objections and other submissions which it has received and which have not been withdrawn".

19 Where, however, no notice is required to be given of a permit application under s.52(1), s.57B of the Act or under the relevant planning scheme, the responsible authority is not required to consider any objection or submission received in respect of the application before deciding the permit application.[9]

20 Section 64 of the Act deals with what must be done by a responsible authority if it decides to grant a permit where there are objectors.

21 Section 64(1) requires a responsible authority to give to the applicant and each person that objected under s.57 a notice in the prescribed form of its decision to grant a permit.[10] The prescribed form contains information for the applicant and for objectors (entitled to receive the notice in prescribed form) about applying to the Tribunal for review of the decision.

22 Where however, a planning scheme exempts a decision on an application from the requirements of s.64(1), (2), (3), or s.64(5), the responsible authority must simply give a copy of the decision to each person that objected under s.57. Presumably the requirement in s.64(5) is to ensure that those objectors who are not required to be given a notice of a decision under s.64(1), nevertheless are informed of the grant of the permit.

23 Section 82(1) of the Act enables an objector to apply to the Tribunal for review of a decision of the responsible authority to grant a permit. A planning scheme may however, under s.82(2) set out classes of application for permit, the decision on which are exempted from s.82(1). Where a planning scheme exempts a decision of an application for a permit from s.82(1), an application for review cannot be made under that subsection in respect of that decision (s.81(3)).

24 Section 83A of the Act provides that a person who objected to the grant of a permit under s.57 is entitled to notice of an application by the applicant for the permit for review, but this does not apply if under the planning scheme the person who made the objection is not entitled to apply to the Tribunal under s.82 for review of a decision to grant the permit.

1. Contemplates that an applicant for a permit may lodge a single application for a permit for a use or development or for a combination of use(s) and development(s).[11]
2. Provides for the giving of notice of permit applications to certain persons but also to those persons a responsible authority considers that the grant of the permit may be cause material detriment .[12]
3. Provides for the receipt by the responsible authority of objections to a permit application from persons who may be affected by the grant of a permit, including but not limited to persons who received notice of the permit application under s.52 of the Act.[13]
4. Does not require a responsible authority, when considering a permit application that is exempt from the notice requirements under s.52, to consider the objections and other submissions which it has received.[14]
5. Does not require the giving of notice of a decision to grant a permit in the prescribed form to objectors where the planning scheme exempts a responsible authority from doing so under s.64(1). This is significant, because a notice in the prescribed form advises the recipient of that person's rights to seek review of the decision of the responsible authority to which the notice relates.

Whether the Tribunal has jurisdiction to consider the application for review under Design and Development Overlay Schedule 6 of the Southern Grampians Planning Scheme having regard to the exemption from notice and appeal rights under that provision, and section 82(3) of the Planning and Environment Act 1987?

27 Mr Munt (on behalf of the applicants) submitted that -

1. The Tribunal does not have jurisdiction to consider whether a permit should issue under the DDO6 and as a matter of logic a permit should have issued just under the DDO6 given that there is no right of review in respect to that trigger for a permit.
2. To the extent that the Tribunal would consider any of the matters in DDO6, the Tribunal would consider them only as they would be considered relevant to any of the matters considered relevant under the RLZ, the ESO or both.
3. Taking this approach, the Tribunal is not considering a disaggregated or segregated permit; the Tribunal makes an integrated decision and issues one permit for the proposal.

28 The respondent's submission on the first question can be summarised as follows -

1. The review application was not able to be brought in respect of Council's decision to grant a permit pursuant to DDO6 for buildings and works.
2. It follows that the Tribunal does not have jurisdiction to consider the application for review of Council's decision to grant a permit for buildings and works pursuant to DDO6.

29 In short, Council's submission on the first question was that the effect of the existence of the exemption in clause 2.0 of DDO6 is that no application can be made under section 82(1) by a third party for review of Council's decision to grant a permit under DDO6.[15]

As an application for review under section 82 cannot be brought in respect of the permit required under DDO6, Council's decision to grant a permit under DDO6 is not reviewable by the Tribunal. This is a decision favourable to the Permit Applicant and one that the Tribunal must accept as having been established. The effect of the Exemption is that the Tribunal is only vested with jurisdiction to consider Council's decision to grant a permit under RLZ2 and the ESO3.

32 The Tribunal is a creature of statute, and this fact has the following consequences.

33 The jurisdiction of the Tribunal is derived entirely from statute.[17]

34 Section 40 of the VCAT Act confers on the Tribunal two kinds of jurisdiction - original jurisdiction and review jurisdiction.

35 The review jurisdiction of the Tribunal is conferred by, or under, an enabling enactment to review a decision made by a decision-maker.[18]

36 Section 48 of the VCAT Act provides that the review jurisdiction of the Tribunal is invoked -

(a) by a person who is entitled to do so by or under an enabling enactment applying to the Tribunal in accordance with section 67 for review of a decision under that enactment; or

(b) by a decision-maker referring a decision to the Tribunal under an enabling enactment in accordance with section 69 for review of the decision; or

(c) in any other way permitted or provided for by the enabling enactment.

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other function conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review the Tribunal may by order -

(a) affirm the decision under review; or

(b) vary the decision under review; or

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

(3) Subject to subsection (4), a decision of a decision-maker as affirmed or varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a decision-maker -

(a) is deemed to be a decision of that decision-maker; and

(b) subject to any contrary order by the Tribunal, has, or is deemed to have had, effect from the time at which the decision under review has or had effect.

(4) Subsection (3)(a) does not apply for the purposes of -

(a) an application to the Tribunal for review of the decision; or

(b) an appeal under Part 5.

(5) If an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the decision.

38 In the context of an application for review by objectors, the specific enabling provision conferring an entitlement on objectors to commence a review of a decision made by a responsible authority in respect of the permit application, is s.82(1) of the Act.

39 As is clear from s.82(3) of the Act, if a planning scheme exempts a decision of an application for a permit from s.82(1), an application for review cannot be made under that subsection in respect of that decision.

40 In the Victorian Court of Appeal's decision in Sweetvale Pty Ltd & Anor v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83 (Sweetvale [2003]), Warren CJ (referring to s.47(1) of the Act) held -

In my view the wording of s.47(1) of the Act is plain and clearly contemplates that an applicant for a permit may lodge a single application for a permit for a use of development or for a combination of use(s) and development(s). The applicant acted appropriately in the present case in lodging a single application notwithstanding that it proposed a number of components to facilitate a particular planning outcome. Once the application was lodged, the Minister, as the responsible authority, was bound under s.60 to consider certain matters including objections as required under s.60(1)(a)(i) of the Planning and Environment Act. However, s.60(3) of the Act specifically provides that "despite sub-s.(1)(a)(i), if no notice is required", then "the responsible authority is not required to consider any objection or submission received in respect of the application before deciding the application." The Tribunal, in exercising its review jurisdiction exercises the functions of the responsible authority as the decision maker. It follows that no right of review to the Tribunal lies where an exemption is imposed. Any review is limited to those parts of the application for the permit to which the appellants were able to object in accordance with the Act and the Scheme.

41 In what is a complete answer to the first question of law (and for the reasons set out later in this opinion - also a complete answer to the second question of law), in Sweetvale [2003] Warren CJ further held - [19]

The Tribunal, in exercising its review jurisdiction exercises the functions of the responsible authority as the decision maker. It follows that no right of review to the Tribunal lies where an exemption is imposed. Any review is limited to those parts of the application for the permit to which the appellants were able to object in accordance with the Act and the Scheme.

42 Thus, on the facts of this matter, the applicants' entitlement to seek review of a decision made by Council in respect to the permit application made by the respondent is conferred under s.82(1) of the Act and limited by s.82(3) of the Act.

43 The consequent impact of clause 2.0 of DDO6 is that the applicants have no right of review to the Tribunal in respect of Council's decision to grant to the respondent a permit under clause 43.02-2 of the scheme to construct a building or carry out works on land affected by DDO6.

44 As the Tribunal's review jurisdiction can only be invoked in the circumstances described in s.48 of the VCAT Act, the Tribunal does not have jurisdiction in this proceeding to consider that part of the applicants' review application challenging Council's decision to grant a permit to the respondent a permit under clause 43.02-2 of the scheme to construct a building or carry out works on land affected by DDO6.

Is compliance with the built form requirement in the Design and Development Overlay Schedule 6 a relevant consideration for the Tribunal in reviewing Council's decision to grant a permit for buildings and works pursuant to the Rural Living Zone and/or Environmental Significance Overlay Schedule 3?

46 The applicants' submission on the second question can be summarised as follows -

1. A planning permit " 'application' functions as an omnibus express of discrete application each of the relevant planning controls requiring a permit."[20]
2. The Tribunal's review is in fact considering discrete permissions under each of the provisions of a planning scheme requiring a permit.
3. Clause 65 and 71.02-3 requires the responsible authority, and the Tribunal in its shoes on review, to make decisions in an integrated way.
4. Citing the Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27 (1045 Burke Road), 'integrated decision making' requires each of the discrete permissions required to be satisfied or 'ticked'.
5. Whilst the provisions of DDO6 does not have 'direct relevance' to the permissions required under the scheme, in order to make an integrated decision consistent with its obligations under clauses 65 and 71.02-3 of the scheme and the decision in 1045 Burke Road, the Tribunal must be positively satisfied that the proposal adequately responds to the provisions of DD06.

47 The respondent submitted that because the Tribunal's role in an application for review is to consider the permit application 'de novo', the Tribunal reviews the original decision in light of the evidence placed before the Tribunal and reaches the correct or preferable decision in light of that evidence.

48 Relying on s.51(1) of the VCAT Act, the respondent submitted that the issues in a proceeding brought under s.82 of the Act "will not necessarily be limited to those raised by the applicant for review". In support of this proposition the respondent relies on the decision of the Tribunal in Derek Phang v City of Darebin & Ors [2001] VCAT 1350 (Phang), in which the Tribunal stated when considering the extent of the issues before it (in an application for review commenced under s.82(1) of the Act) - [21]

25. Although the grounds of review cover a broad range of matters in his brief oral submission on behalf of the Applicant for Review Mr Ching focussed upon only a few of them - principally the overshadowing and visual bulk as a result of the proposed double storey dwelling (Unit 1) in the south east corner of the site. Nevertheless, the issues in this application are not restricted to those focussed upon my (sic) Mr Ching. An application for review represents a hearing de novo or a fresh assessment of the application for permit.

49 Referring to the direction to the Tribunal contained in s.84B of the Act, the respondent submitted that it "is therefore open to the Tribunal, in considering the permit application de novo, to take into account the planning scheme in its entirety."[22]

50 The respondent, relying on the Court of Appeal's decision in 1045 Burke Road, submitted that compliance with DDO6 is a relevant consideration before the Tribunal as a matter that was properly before the Council and the weight to be given to compliance with DDO6 is a matter for the Tribunal.

51 In its oral submission on the final day of the hearing, Council stated that it had no issue with the Tribunal considering compliance with DDO6 as part of the 'integrated whole of the planning controls that apply'[23] to the site and it is necessary to do so in order to assess the built form. Council otherwise formally adopted the respondent's written submissions on the second question.

52 It is clear to me that all the parties accept that the applicants cannot seek review, under s.82(1) of the Act, of Council's decision to issue a permit under DDO6, and as a result of s.82(3) of the Act, the Tribunal does not have jurisdiction to review Council's decision to issue a permit under DDO6.

53 Despite accepting that the Tribunal does not have jurisdiction to review Council's decision to issue a permit under DDO6, the applicants and the respondent advocate that in reaching an 'integrated decision', the Tribunal must consider for itself whether or not the proposal complies with DDO6, and that consideration must be factored into the overall decision made by the Tribunal in this proceeding.

54 The applicants' submission on this question is essentially that while DDO6 does not have 'direct relevance', the Tribunal must be 'positively satisfied' that the proposal adequately responds to the provisions of DDO6.

55 The respondent, relying on the 'de novo' nature of a review application under the VCAT Act coupled with the direction to the Tribunal in s.84B of the Act, submitted that the Tribunal is not confined to the issues raised in the review application and may consider the entire planning scheme when making its determination in this proceeding.

56 All the parties submitted, through various expressions, that the Court of Appeal's decision in 1045 Burke Road, has an impact on the way the Tribunal discharges its obligation to deliver integrated decision making in its determination of this review application.

57 I will deal with each submission in turn, but first I will answer the second question.

58 To the extent that the second question requires the Tribunal to independently consider whether the proposal complies with the requirements of DDO6 in its determination of the review application, my answer is - No.

59 Clause 71.02-3 of the scheme is a Victorian Planning Provision common to all Victorian planning schemes. It provides -

Victorians have various needs and expectations such as land for settlement, protection of the environment, economic wellbeing, various social needs and proper management of resources and infrastructure. Planning aims to meet these needs and expectations by addressing aspects of economic, environmental and social wellbeing affected by land use and development.

The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.

Planning authorities should identify the potential for regional impacts on their decision making and coordinate strategic planning with their neighbours and other public bodies to achieve sustainable development and effective and efficient use of resources.

60 The directive given to responsible authorities, and the Tribunal in its review jurisdiction, is to endeavour to integrate the range of planning policies "relevant to the issues to be determined" as well as balance conflicting objectives in favour of net community benefit and sustainable development.

61 In a review application commenced under s.82(1) of the Act, the 'issues to be determined' are limited by s.82(3) to issues identified in a review application arising from the requirements for permits that are subject to third party review.

62 In addressing the integrated decision making and balancing exercise then contained in clause 11 of Victorian planning schemes in the context of the s.82(1) review application before him, Ashley J in Sweetvale Pty Ltd and Anor v VCAT and Ors [2001] VSC 426 (Sweetvale [2001]) stated - [24]

70 I must next refer to the applicants' submission that if decisions on certain applications were quarantined against review it was likely that the review process would produce a distorted decision not reflecting all relevant planning considerations. In this connection counsel contended that the balancing exercise required by cl.11 of the Scheme would be prejudiced, if not rendered impossible.

71 I accept that, in consequence of the view I take as to the application of the exemptions, the ambit of permissible enquiry on review in a case such as the present would be confined. The Tribunal will be obliged to take certain matters as having been established. But that does not mean that remaining planning issues cannot be fully explored. It does not mean that in such exploration evidence will not be receivable which is pertinent to such issues because it would also be relevant to a matter which must be taken to be established. Finally, if and insofar as the view I take would have a tendency to produce a decision not reflecting all relevant planning considerations, that is what, in my opinion, is plainly dictated by the legislation.

63 Justice Ashley's reference to the Tribunal being obliged to "take certain matters as having been established" can only, on the facts before him, be a reference to a discrete decision of a responsible authority to grant a permit that is exempt from third party review.

64 In this matter, if it is accepted, as it must be, that the Tribunal does not have jurisdiction to review the decision of Council to grant a permit under DDO6, then this grant of permit is a matter that the Tribunal must take as "having been established" for the purpose of this review application.

65 What this means practically is that the Tribunal cannot, in reviewing Council's decision to grant permits under other clauses of the scheme, undertake an independent consideration of whether or not the proposal complies with DDO6 and factor this determination in the review of the decisions properly subject of the review application.

66 The Tribunal must accept that there is in existence a grant of permit under DDO6, that is lawful and binding, when discharging its obligation to deliver integrated decision making in this proceeding. This does not prevent the Tribunal in receiving and considering evidence that may be relevant to matters raised under DDO6 if, that evidence is relevant to the planning issues properly before the Tribunal in the review application.

67 The categorisation of the nature of the review undertaken as a 'de novo hearing' does not lead to a different conclusion than what I have expressed above.

68 In a 'de novo' hearing, the court or tribunal reviewing the decision begins afresh and exercises for itself, (subject to any rules to the contrary) upon the calling of any fresh evidence, any relevant discretion exercised by the original decision maker.[25] Accordingly, the fact that a review application under the Act is a 'de novo hearing' does not permit the Tribunal to consider and determine matters that are excluded from review under s.82(3) of the Act.

69 It follows that I do not agree with the Tribunal's comment in Phang (and the respondent's submission that relies upon that decision)[26] that a review application represents a de novo or fresh assessment of the 'permit application'.

70 Unfortunately, the loose use of the description 'de novo' and the phrase 'standing in the shoes of Council' when considering the jurisdiction of the Tribunal in review can lead to outcomes that overlook the specific statutory provisions that confer the Tribunal's review jurisdiction. Neither one of these phrases singularly, or together, confer jurisdiction on the Tribunal; nor are they in fact found in the Act or Victorian planning schemes.

71 In all the provisions relevant to the Tribunal's review jurisdiction under the VCAT Act, the foci of those provisions are 'the decision' under review.

72 In particular, s.51(1) makes it abundantly clear that the review jurisdiction conferred is one 'in respect of a decision'.

73 Section 51 and the other provisions in Part 3 of the VCAT Act dealing with the Tribunal's review jurisdiction are general provisions that must be read in the context of any enabling enactment under which the right to lodge a review application is conferred on a person.

74 Section 82(1) of the Act does not operate only upon a single indivisible decision to grant a permit, but rather is to be applied on the basis that a notice of decision issued by a responsible authority may be notice of several discrete decisions upon applications for the grant of a permit in respect of multiple planning controls. [27]

75 Therefore, in the case of a review application commenced under s.82(1) of the Act, the phrase 'in respect of a decision' appearing in s.51(1) of the VCAT Act is properly interpreted as the specific decision or decisions to grant a permit that is properly the subject of that review application. It would be a mistake to interchange the words 'in respect of a decision' with the words 'the permit application' because to do so would not confine the review within the jurisdiction conferred under s.51(1) of the VCAT Act.

76 Therefore, where a review application is commenced under s.82(1) as confined by s.82(3) of the Act to exempt certain decisions from review by third parties, the Tribunal is confined in a 'de novo hearing' when 'standing in the shoes of the responsible authority' to those matters in the review application properly raised under s.82(1) of the Act and does not have jurisdiction to consider the whole of the permit application that led to the specific decisions under review.

(1) In determining an application for review under this Act, the Tribunal must -

(a) take into account any matter which the person or body in respect of whose decision the application is made -

(i) properly took into account of in making in its decision; or

(ii) was required to take into account of in making its decision; and

(b) have regard to any matter which the person or body in respect of whose decision the application for review is made -

(i) properly had regard to in making its decision; or

(ii) is required to have regard to in making its decision.

(2) In determining an application for review under this Act, in addition to the matters referred to in subsection (1), the Tribunal -

(a) must take into account any relevant planning scheme;

(b) must have regard to the objectives of planning in Victoria;

(c) must (where appropriate) take into account of the approved regional strategy plan under Part 3A;

(d) must (where appropriate) take into account of the approved strategy plan under Part 3C;

(da)must (where appropriate) take into account of the approved strategy plan under Part 3C;

(e) must take account of any relevant environment reference standard within the meaning of the Environment Protection Act 2017;

(ea)must take account of the any Order made by the Governor in Council under section 156 of the Environment Protection Act 2017;

(f) must (where appropriate) take account of the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and in fact did participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit;

(g) must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review was determined, approved by the Minister or the planning authority;

(h) must (where appropriate) have regard to any agreement made pursuant to section 173 affecting the land the subject of the application for review;

(i) must (where appropriate) have regard to any amendment to the approved strategy plan under Part 3A adopted under this Act but not, as at the date on which the application for review is determined, approved by the Minister;

(j) must (where appropriate) have regard to any amendment to the approved strategy plan under Part 3A adopted under this Act but not, as at the date on which the application for review is determined, approved by the Minister;

(ja) must (where appropriate) have regard to any amendment to the approved strategy plan under Part 3A adopted under this Act but not, as at the date on which the application for review is determined, approved by the Minister;

(jb) must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect.

(k) must take account of any other matter which the Tribunal is required by the provisions of this Act or any other Act to take account of in determining the application for review.

(3) If an application for review is of a class that is exempted by a planning scheme wholly or in part from the requirements of subsection 2(b) to (jb), the Tribunal is not required to take into account or have regard to the exempted matters in determining the application.

78 One does not need to look further than the opening words of s.84B(1) and (2) - "in determining an application for review under this Act" - to see that the direction to the Tribunal contained therein is confined by the nature and content of the application for review and the decision the subject of that application for review.

79 There is nothing in s.84B that requires the Tribunal to consider the whole of the planning scheme when determining an application for review. The provisions of a planning scheme required to be taken into account is dependent on the decision under review. [28]

Boroondara City Council v 1045 Burke Road Pty Ltd & Ors[29]

80 Reference was made by the parties to the Victorian Court of Appeal's decision in 1045 Burke Road regarding the role of integrated decision making in determination of permit applications under the Act.

81 The majority of the Court of Appeal in 1045 Burke Road addressed two primary questions arising from the matter on appeal -

'whether, before the permit could be granted, the respondent (as the applicant for the permit) needed to satisfy or "tick" every permit requirement that applied to the proposal'

Where there are multiple triggers for a planning permit for a proposal, may a permit be granted for that proposal only if there is a favourable decision or outcome (being the grant of a permit either with or without conditions) in respect of each permit trigger?

82 The Court of Appeal unanimously answered both questions affirmatively.

83 Referring to the decision of Ashley J in Sweetvale [2001], Warren CJ stated in 1045 Burke Road -

1. The high point of Ashley's decision in Sweetvale is that a decision to grant a permit represents - [32]

...a discrete decision favourable to the applicant in respect of each of those building controls which required [the] grant of a permit.

1. Sweetvale stands for the proposition that - [33]

...a single permit for an overall development proposal cannot be granted unless the responsible authority considers each permit requirement that applies to the proposal, and would grant a permit in relation to each such requirement. If the responsible authority is not satisfied that a demolition permit should be issued in the context of a proposal that would involve relevant demolition work, then it must not grant a global permit for that proposal.

1. In her view, it was not open to read the Act in such a way that individual permit requirements may become optional in the context of an overarching '_Sweetvale-_type' permit application.[34]

1. (referring to the proposition extracted in paragraph (b) above) "The Sweetvale proposition is valid, but it must be understood in the context of the integrated decision-making required under the Act."[35]
2. (describing how integrated decision making occurs in a 'Sweetvale-type' permit application) - [36]

When an overarching permit application is made for an entire proposal or the required permits are applied for separately is a matter of form rather than substance. In either situation, the triggered permit requirements must each be considered by the responsible authority, in the context of the overall proposal. For a cover-all proposal to be granted, the responsible authority must be satisfied that in the context of the overall proposal, a permit should be granted in respect of each permit requirement triggered by the proposal, and also the cover-all permit which is sought to be granted.

84 In his reasons Garde AJA recognised that the second question before the Court in 1045 Burke Road was considered by Ashely J in Sweetvale [2001] in the following paragraph - [37]

I can and do accept some of the applicants' submissions. But I do not accept their centrepiece, that is, that in determining the operation of exemptions the Tribunal was bound to treat the application for grant of a permit as being for all relevant purposes singular. In my opinion, correctly understood, although the application was singular in form, it embodied a series of applications with respect to particular building controls. That this was the fact of the matter could not be doubted. Further, although the decision to grant a permit was in singular form, it represented a discrete decision favourable to the applicant in respect of each of those building controls which required a grant of permit. That this was the fact of the matter again could not be doubted. It is true that in deciding to grant a permit it was necessary for the responsible authority to consider the matter overall, as well as or in the course of considering the individual permissions which the permit applicant had to obtain. But that does not mean that the applications made with respect to each of those controls did not have to be the subject of individual determination. Indeed, the decision guidelines, which varied from one control to the other, dictated that an individual determination did have to be made in the case of each control.

(footnote omitted)

85 The detailed consideration given by the Court of Appeal in 1045 Burke Road to the decision of Ashely J in Sweetvale [2001] and to the concept of 'integrated decision making', does not provide any basis to conclude that the Court of Appeal's decision in 1045 Burke Road, directly or indirectly, disagreed with Ashley J's finding that in a s.82 review application, the ambit of permissible enquiry on review will be confined and that the Tribunal will be obliged to take certain matters as having been established.

86 Further, Ashley J's finding that on a s.82 review application, the Tribunal will be obliged to take certain matters as having been established is entirely consistent with the exercise of the Tribunal's review jurisdiction under s.51 of the VCAT Act and the enabling provision for such a review in s.82 of the Act.

87 Nothing in clause 71.02-3 of the Victorian Planning Provisions (found in all Victorian planning schemes) can confer jurisdiction on the Tribunal where the jurisdiction does not exist because fundamentally the only way in which the Tribunal's review jurisdiction can be invoked is by one of the three means described in s.48 of the VCAT Act. Accordingly, the Tribunal has such jurisdiction as conferred on it by legislation, either expressly or by implication, but no more.[38]

88 There is nothing irreconcilable with the approach to integrated decision making described by the Court of Appeal in 1045 Burke Road and the opinion I have expressed above as to how the Tribunal should proceed to a determination in this review application.

89 On the facts of this matter, a 'tick' has been given by the responsible authority to all permissions required under the scheme for the proposal. Section 82(3) of the Act exempts from third party review, Council's decision to grant a permit under DDO6. The Tribunal does not have jurisdiction to review Council's decision to grant a permit to the respondent under DDO6. The Tribunal in considering the proposal overall must take the grant of a permit under DDO6 as a 'matter that has been established'. The weight to be given to the grant of a permit under DDO6 in the Tribunal's consideration of the 'cover-all' permit is a matter for the Tribunal.

90 In conclusion, the words of Ashley J in Sweetvale [2001] when addressing the consequence of the application of the exemption of third party review rights on the extent of permissible enquiry by the Tribunal on a review application under s.82(1) of the Act is worth recalling again - [39]

Finally, if and insofar as the view I take would have a tendency to produce a decision not reflecting all planning considerations, that is what, in my opinion, is plainly dictated by the legislation.

• Use and development of the land for Group Accommodation and associated works.

1 Before the use or development 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 generally in accordance with the plans prepared by Edition Office, Revision D dated 21 October 2021 but modified to show:

(a) The Carab tree to be retained.

(b) A notation that the existing post and wire fence is to be replaced with new post and wire fencing.

(c) the point of connection to reticulated sewerage required by condition 13.

2 The use/development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 The external finishes of the development (including walls and roof materials) must be constructed in muted, non-reflective materials and tones which blend in with the landscape of the area to the satisfaction of the Responsible Authority.

4 This permit does not allow the removal of any native vegetation (including grasses) without the prior written consent of the Responsible Authority.

5 The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

(a) transport of materials, goods or commodities to or from the land;

(b) appearance of any building, works or materials;

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or otherwise;

(d) presence of vermin.

6 Waste recycling storage areas must be provided on the site. A sufficient number of watertight receptacles with close fitting lids for the reception of garage, green waste and reuse arising from the premises must be provided. The contents of such waste and reuse receptacles are to be disposed of at least once in every seven consecutive days. The proprietor must not allow the waste or refuse to become a nuisance at any time.

7 Before any use commences of the pool and sauna, a water quality risk management plan must be submitted and be made available for use to the satisfaction of the Responsible Authority.

8 Before any use commences or any building is occupied, scaled floor plans with dimensions and use for each room must be submitted to the satisfaction of the Responsible Authority. In this regard, toilets, basins, showers and maximum number of guests accommodated in each room must be provided to the satisfaction of the Responsible Authority.

9 The number of occupants on the site must not exceed 8 adults at any one time.

10 Before the development starts, a landscape plan must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions provided and must show:

(a) a survey (including botanical names) of all existing vegetation to be retained and/or removed;

(b) details of surface finishes of pathways and driveways;

(c) a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, sizes at maturity, and quantities of each plant. It is required that the species are native and indigenous to the Southern Grampians Shire. The Plan must not include the use of any environmental or declared noxious weeds;

(d) Any grass to be planted from seed to be of indigenous species;

(e) details of all Tree Protection Zones (including fencing) to be provided around any native vegetation on site. Full details of all native vegetation is to be provided.

All species selected must be to the satisfaction of the Responsible Authority and in accordance with Section 173 Agreement AS139417M as registered on title.

11 Unless otherwise approved in writing by the Responsible Authority, no trenching, soil excavation, storage or dumping of equipment or waste is to occur within areas of existing native vegetation on the site.

12 All stormwater discharge from the development is either to be connected to the Legal Point of Discharge to the satisfaction of the Responsible Authority (Stormwater Management Plan is to be provided) or retained within the site without causing nuisance to the neighbouring properties.

13 Before any use commences or any building is occupied, the development must be connected to reticulated sewerage. All sewage and sullage must be discharged to the reticulated sewerage system to the satisfaction of the Responsible Authority.

14 Before the development starts, a properly prepared Stormwater Management Plan (SWMP) with computations to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will endorsed and will then form part of the permit. The SWMP must be in accordance with the Infrastructure Design Manual and must include:

(a) how the land will be drained;

(b) underground pipe drains conveying stormwater to the Legal Point of Discharge;

(c) measures to enhance stormwater discharge quality from the site and protect downstream waterways;

(d) a maximum discharge rate from the site;

(e) documentation demonstrating approval from the relevant authority for the Legal Point of Discharge;

(f) any existing or proposed easement;

(g) evidence showing rainfall occurring form 1% AEP will not affect downstream properties.

15 Before the use begins and/or the buildings are occupied, all works constructed or carried out must be in accordance with those plans to the satisfaction of the Responsible Authority.

16 Before commencement and during construction for each stage of the development including any preliminary site preparation and establishment, the construction management works must be to the satisfaction of the Responsible Authority:

(a) Measures to control noise, dust, mud and water;

(b) Prevention of silt or other pollutants from entering into the Council's drainage system or road network;

(c) The location of where building materials are to be kept during construction;

(d) On site parking of vehicles associated with construction of the development;

(e) Details of public safety, amenity considerations and site security;

(f) The permit holder must use appropriate site management practices to prevent the transfer of mud, dust, sand or slurry from the site into drains or onto nearby roads and properties. In the event that a road, drain or adjoining property is affected, the owner must upon direction of the Responsible Authority take the necessary steps to clean the affected portion of road or drain to the satisfaction of the Responsible Authority.

17 Before the use and/or development starts, the proposed crossover must be designed and constructed according to Infrastructure Design Manual Standard Drawing to the satisfaction of Responsible Authority:

(a) Before the commencement of the development, the redundant vehicular crossing must be reinstated to the satisfaction of the Responsible Authority.

(b) Satisfactory clearance should be provided to any stormwater pit, power or telecommunications pole, manhole cover or marker, or street tree.

(c) It is a requirement of the Southern Grampians Shire Council that a Works within Road Reserve Permit must be obtained prior to works commencing for any works being conducted within the road reserve.

18 Before the commencement of the use or occupation of the development, a car parking plan with all dimensions to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority. The plan must:

(a) Ensure servicing of the drainage and maintenance of car parking;

(b) Be line marked to indicate each car space and all access lanes (for seal finish) OR appropriately marked to indicate each car space (for other surface finish).

19 Before the development is occupied or the use commences, a bushfire emergency plan (BEP) must be prepared. The BEP must clearly describe the emergency management arrangements that will be implemented to reduce the risk of bushfire and should address the following matters:

(a) Describe property and business details.

(b) Identify the purpose of the BEP stating that the plan outlines procedures for:

1. Closure of premises on any day with Fire Danger Rating of Code Red.
2. Evacuation (evacuation from the site to a designated safer off-site location).
3. Shelter-in-place (remaining on-site in a designated building).

(c) Review of the BEP:

1. Outline that the plan must be reviewed and updated annually prior to the commencement of the declared Fire Danger Period.
2. Include a Version Control Table.

(d) Roles & Responsibilities

20 Detail the staff responsibilities for implementing the emergency procedures in the event of a bushfire and the triggers for acting. For example, when the facility will be closed and the circumstances under which guests and patrons will shelter in place or evacuate.

(a) Emergency contact details

(b) Emergency access and firefighting water supply

(c) Defendable space-managing vegetation on site to reduce the fire risk

(d) Bushfire monitoring procedures

1. Details the use of radio, internet and social networks that will assist in monitoring potential threats during the bushfire danger period.
2. Describe and show (include a map) the area to be monitored for potential bushfire activity.

21 This permit as it relates to use will expire if the use does not commence within two (2) years after the development has been completed.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.

22 This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the issue date of this permit.

(b) The development is not completed within four years of the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] All appearances were via an online platform.

[2] The submissions and any evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Source: Respondent material provided during the hearing.

[4] The Notice of Decision to Grant a Planning Permit dated 12 April 2021.

[5] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the provision of this opinion. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[6] By Instrument of nomination of Deputy President Teresa Bisucci dated 23 March 2022.

[7] A permit is required under this clause because of the construction of a building and works and not for the removal, destruction or lopping of any native vegetation or the removal of any vegetation addressed by Vegetation Overlay Schedule 1.

[10] The prescribed form for a notice of decision is found at Form 5 of Schedule 1 to the Planning and Environment Regulations 2015 (Vic).

[11] Sweetvale Pty Ltd & Anor v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83.

[15] See [10] of Council's written submission dated 16 December 2021.

[16] See [11] of Council's written submission dated 16 December 2021.

[17] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559, 564 [19].

[20] See [3] of the 'Submissions on behalf of the Applicants for Review' of 14 April 2022.

[21] See [14] of the Respondent's written submission dated 16 December 2021.

[22] See [16] of the Respondent's written submission dated 16 December 2021.

[23] Quote taken from oral submission of Ms Kennedy on behalf of Council on 8 December 2021.

[25] See Builders Licensing Board v Sperway Constructions Pty Ltd & Anor [1976] HCA 62; (1976) 135 C.L.R. 616, per Mason J at p.620 and Jacobs J at p.629; Harris v Caladine [1991] HCA 9; (1990-1991) 172 C.L.R. 84 per Dawson J at p.11.

[26] See 'Further written submission on behalf of Dunkeld Property Holdings Pty Ltd' dated 16 December 2021 at [14].

[28] Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191 at [69]- [71].

[29] [2015] VSCA 27.

[30] 1045 Burke Road per Santamaria JA's formulation of the substantial question as identified by Warren CJ at [54].

[31] 1045 Burke Road per Garde AJA's at [115].

[34] Sweetvale Ors [2003] at [35].

[37] Sweetvale [2003] at [147] referring to Sweetvale [2001] at [60].

[38] McKechnie v VCAT & Anor [2020] VSC 454 at [113]; Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559 at [19] per Warren CJ and at [284] per Weinberg JA.

[39] Sweetvale [2001] VSC 460 at [71].