The proceeding is listed for a compulsory conference and hearing as detailed below.

If there is any change to these details, the Tribunal will notify you.

VCAT Melbourne, 55 King Street, Melbourne, VIC 3000

19, 20 & 21 January 2026

10:00am - 4:30pm

VCAT Melbourne, 55 King Street, Melbourne, VIC 3000

Details of the location of the compulsory conference and hearing will be published on the Tribunal's website, under 'Upcoming Hearings' on the afternoon of the day prior to the hearing - www.vcat.vic.gov.au/upcoming-hearings

1. All parties must attend the compulsory conference either in person or by a representative who has permission to settle the proceeding on their behalf.

(Note: See more information in Appendix A of this order).

1. No later than 10 business days before the compulsory conference the respondent (permit applicant) must give all parties a copy of any amended plans it wants to discuss or rely upon at the compulsory conference.
2. No later than 5 business days before the compulsory conference the responsible authority must give the Tribunal and all parties a copy of draft permit conditions that may be discussed at the compulsory conference. A copy of the conditions must be brought to the compulsory conference in electronic Word format.
3. Any document to be relied on for the compulsory conference that is provided to the Tribunal must be clearly marked "For Compulsory Conference".

1. No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@courts.vic.gov.au
2. All expert evidence must be provided in accordance with the Tribunal's Practice Note PNVCAT2 Expert Evidence.

1. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

Ms Emily Marson, solicitor, of Best Hooper Lawyers.

Mr Graham Scott, town planner, of Mornington Peninsula Shire Council.

Ms Sarah Davison, town planner, of Eighth Street Planning.

1. VCAT Application P308/2025, VCAT Application P315/2025 and VCAT Application P321/2025 are each brought under section 82 of the Planning and Environment Act 1987 (Vic) ('PE Act') seeking review of the decision by the Mornington Peninsula Shire Council ('Council') to issue a Notice of Decision to Grant a Permit ('NOD') allowing the use and development of Residential hotel accommodation units.
2. The NOD pertains to land that is located within the area known as 'Moonah Links', which is a golf course, residential hotel accommodation, function space and residential housing development located in Fingal. The following annotated plan[2] shows the extent of Moonah Links.

1. The purpose of this preliminary hearing was to consider an application by Peninsula International Group Pty Ltd ('respondent') for strike out of each of these applications under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') on the basis that each is misconceived because it is contended that each applicant lacks the standing to bring their application.
2. For the reasons that follow, I have refused to strike out any of these applications.
3. As a consequence, each of these applications will proceed to the compulsory conference scheduled for 20 October 2025.

1. The subject land of these proceedings forms part of Moonah Links and has the street address of 20, 25, 30 and 55 Peter Thomson Drive, Fingal and is comprised in the following lots on Plan of Subdivision PS438599N: Lot S20, Lot S28, Lot S47, Lot S48 and Lot S57 ('Land').
2. The respondent is the registered proprietor of the Land.
3. The lots that comprise the Land are shown in the following title map,[3] where the lots correlate with the shaded sections numbered 2, 3, 5, 6 and 7:[4]

1. The Land is in the Comprehensive Development Zone - Schedule 1 'Moonah Links Comprehensive Development Plan' ('CDZ1') of the Mornington Peninsula Planning Scheme ('Scheme') and is subject to the Bushfire Management Overlay ('BMO') as to part.
2. Originally, Moonah Links was entirely comprised of the area that is in the CDZ1. Later, a parcel of land to the south that is in the Green Wedge Zone - Schedule 4 ('GWZ4') was acquired.
3. Moonah Links is shown in the following zoning map and aerial photographs,[5] where the later images are enlargements of the earlier. As can be seen, the vast majority of Moonah Links, including the Land, is in the CDZ1.

Figure 3 - zoning and aerial photographs of Moonah Links and the Land

Role of Moonah Links Comprehensive Development Plan in development of Moonah Links

1. Given its zoning in the CDZ1, the development of Moonah Links over time has occurred in the context of the Moonah Links Comprehensive Development Plan (May 1999) ('MLCDP'). This is because the purpose of Schedule 1 to the CDZ seeks for the Schedule 1 area to be established generally in accordance with the MLCDP, as follows:

To establish an integrated recreational, tourism and resort use and development focused on high quality golf courses generally in accordance with the Moonah Links Comprehensive Development Plan.

To provide for golf facilities and associated tourism, accommodation and resort development.

To provide for golf administration, major golf events, golf education and associated recreation facilities.

To ensure development is compatible with the landscape character of the area.

To ensure use and development has regard to natural values of the land or natural processes.

To ensure use and development has regard to the amenity of adjacent properties and the surrounding area.

1. The MLCDP is an incorporated document in the Scheme pursuant to Amendment C2 to the Scheme.
2. The introductory text in the MLCDP explains that the MLCDP comprises both text and an approved plan and that the responsible authority must take the MLCDP into account in making decisions, as required by the CDZ1.
3. The MLCDP states the following with respect to the preparation of 'Design Guidelines' and 'Environmental Management Plans' for Moonah Links:

Design Guidelines for the entire Moonah Links site must be prepared by the developer prior to any development within the area.

Environmental Management Plans must be prepared for each development or development stage and must be submitted to the responsible authority with applications for subdivision buildings and works.

The Design Guidelines and Environmental Management Plans will not be incorporated documents but must be referred to by the responsible authority in making decisions about development on the land.

[Tribunal emphasis]

1. As can be seen, the MLCDP clearly requires the preparation of Design Guidelines and Environmental Management Plans, which must be referred to by the responsible authority in making decisions regarding development in Moonah Links, but these documents will not be incorporated documents in the Scheme.
2. The MLCDP comprises both text and a diagrammatical plan, being the plan labelled as 'Figure 1' of the MLCDP. The area covered by the MLCDP has been divided into a number of precincts, which are detailed in the text and depicted in Figure 1. The Precincts are:
   • 1. Golf Course Precinct
   • 2. Hotel/Accommodation (Option 1) Precinct
   • 3. Clubhouse (& Hotel/Accommodation - Option 2) Precinct
   • 4. Golf Academy Precinct
   • 5. Resort Lots Precincts
   • 6. Vineyard Precinct
   • 7. Winery/Restaurant Precinct
3. In terms of the Precincts, the MLCDP states:

Moonah Links has been divided into a number of Precincts which are illustrated in Figure 1 - Moonah Links Comprehensive Development Plan (May 1999). Decisions about the location and layout of use and development including subdivision within the area should have regard to this plan.

The plan also details some specific requirements for the development in order to protect amenity of neighbouring land.

The preferred use and development outcomes in each Precinct are described below.

1. The MLCDP contains a textual explanation of the preferred use/s in each Precinct. Some Precincts explicitly envisage other uses that might be located within the Precinct although these are not expressed to be a preferred use.
2. The MLCDP details 'General Requirements' and 'Specific Requirements', where:
   1. the General Requirements deal with the preparation of Design Guidelines and Environmental Management Plans, as well as with subdivision and development; and
   2. the Specific Requirements address treatments to the eastern boundary interface with the adjoining property at Lot 2 on LP58459.
3. The MLCDP then contains the diagrammatical plan of Figure 1 that identifies where each Precinct is located in Moonah Links,[6] along with areas where the Specific Requirements apply.
4. Figure 1 of the MLCDP is as follows:

1. Over time, the development of Moonah Links has included the creation of a golf course and the construction of a clubhouse, Residential hotel accommodation units and single dwelling housing, noting that these items are all provided for in the MLCDP.
2. The historical development has occurred pursuant to numerous planning permits that have been issued over time for the various uses and developments comprising Moonah Links.
3. For instance, planning permits have been issued for:
   1. the use and development of golf course holes;[7]
   2. vegetation removal;[8]
   3. the clubhouse;[9]
   4. residential hotel accommodation;[10] and
   5. subdivision into residential lots for single dwellings.[11]
4. The use and development approved by the NOD is the most recent of the planning permit applications for Residential hotel accommodation.

1. The use and development that was approved through the NOD is the third iteration of the proposal. In brief, the proposal evolved as follows:

1. planning permit application P17/00479: 1. a proposal for the construction of 180 Residential hotel accommodation units within 32 separate buildings and the removal of native vegetation; 2. this application was advertised and then amended on 12 April 2018; and 3. this application was further amended on 12 August 2019 to separate it into two parts, 'Stage 1' and 'Stage 2', where: 1. Stage 1 became planning permit application P18/2598; and 2. Stage 2 became planning permit application P17/0079 (i.e. the planning permit application that is the subject of these proceedings); 2. planning permit application P18/2598: 1. a proposal for the construction of 70 Residential hotel accommodation units within 12 separate buildings and the removal of native vegetation; 2. this application was approved by the Council on 18 November 2019; and 3. this application is on land that is located to the west of the current proposal and was in both Precinct 3 'Clubhouse' and Precinct 1 'Golf Course Precinct' of the MLCDP; and

1. planning permit application P17/0079: 1. this application was further amended on 23 July 2020 to seek approval for 102 Residential hotel accommodation units within 15 separate buildings. This was advertised; and 2. this application was again amended on 27 October 2023 to its current form, seeking approval for 98 Residential hotel accommodation units within 15 separate buildings. This was advertised and was then approved through the NOD.
2. The planning report ('Tract Report') that accompanied the current version of planning permit application P17/0079 states that the proposal is for the construction and use of 98 Residential hotel units across 15 buildings.
3. The application plans that were used by the Council in making its decision include the following plans that identify:
   1. the location and proposed form of the Residential hotel accommodation units that are intended to be constructed on either side of Peter Thomson Drive (Groups A and B) and opposite resort lots/single dwelling residential lots (Group F); and
   2. the location of Stage 1 to the west, in blue shading:

Figure 5 - extracts from Site Development Plan (Stage 02 Area)

1. As an aside, I note that:
   1. the total number of Residential hotel accommodation units in the Group A, Group B and Group F tables (above) is 102 Residential hotel accommodation units, which is greater than the 98 proposed units stated in the summary table (also above); and
   2. the above layout is not entirely consistent with the plans in the Tract Report.
2. For the purposes of this preliminary hearing, nothing turns on either of these observations.
3. The Tract Report contains the following layouts for the three Residential hotel accommodation areas, being Group A, Group B and Group F.

1. Planning permit application P17/0079 was lodged in respect of the lots that comprise the Land as well as Lot S43, where Lot S43 correlates with shaded section number 4 in the plan extracted in Figure 2 of these Reasons. For the reasons that follow, the conditions imposed by the Council in the NOD resulted in Lot S43 not being part of the approved use and development. As such, the NOD does not include reference to Lot S43.

1. The Tract Report states that planning permission is required under the CDZ1 for the proposed use and for the proposed development.

1. Clause 37.02-1 of the CDZ refers to the schedule to the CDZ to inform which are section 1, section 2 and section 3 uses.
2. Use of the Land for a Residential hotel is a section 1 as-of-right use in the CDZ1 provided that the conditions in the Table of uses in clause 1.0 of Schedule 1 to the CDZ are met, these being:

1. Notwithstanding the content of the Tract Report, the respondent now says that permission for use of the Residential hotel accommodation units is not required because the conditions in clause 1.0 of Schedule 1 are met. That is, the respondent contends that:
   1. the proposal is generally in accordance with the MLCDP; and
   2. Moonah Links will not include more than 280 Residential hotel accommodation units when this proposal is constructed.
2. In support of its contention regarding the number of Residential hotel accommodation units, the respondent relies on the following summary table[15] of the number of Residential hotel accommodation units that have been approved for Moonah Links, and would be approved for Moonah Links if this application was constructed:

1. In the event that either or both of the conditions in the table to clause 1.0 of Schedule 1 are not met, the use of the Land for the purposes of a Residential hotel becomes a section 2, permit required use.
2. Clause 37.02-2 of the CDZ deals with the use of land.
3. Clause 37.02-2 enables an exemption from notice and review rights to be included in a schedule to the CDZ, as follows:

Exemption from notice and review

The schedule to this zone may specify that an application is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act.

[Tribunal emphasis]

1. Clause 2.0 of Schedule 1 to the CDZ contains the following exemption from notice and appeal:

Exemption from notice and appeal

An application to use land is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act if it is generally in accordance with the Moonah Links Comprehensive Development Plan (May 1999).

[Tribunal emphasis]

1. Accordingly, in the event that a planning permit is required for use of the Land for the purposes of a Residential hotel, if the application is 'generally in accordance with' the MLCDP, the application is exempt from the notice and decision requirements and the review rights under the PE Act.
2. As stated, the respondent contends that the proposal is generally in accordance with the MLCDP. As such, even if a permit is required for use due to the total number of Residential hotel accommodation units at Moonah Links, the respondent contends that such application is exempt from notice and review rights involving third parties.
3. In terms of the exercise of discretion where a planning permit is required, clause 37.02-2 of the CDZ and clause 2.0 of Schedule 1 to the CDZ each contain decision guidelines that a responsible authority must consider, as appropriate, in making a decision about a use application under the CDZ1.

1. Permission is sought for buildings and works under the CDZ and the respondent does not contend otherwise.
2. Pursuant to clause 37.02-4 of the CDZ, a permit is required to construct a building or to construct or carry out works unless the schedule specifies otherwise.
3. Clause 4.0 'Buildings and works' of Schedule 1 to the CDZ does not otherwise specify, meaning that a permit is required for the development of the Residential hotel accommodation units.
4. Clause 37.02-4 of the CDZ contains the following exemption from notice and review:

Exemption from notice and review

An application is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act if it is generally consistent with the comprehensive development plan.

The schedule to this zone may specify that other applications are also exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act.

[Tribunal emphasis]

1. Clause 4.0 of Schedule 1 to the CDZ does not specify any other applications to which this exemption from notice and review apply.
2. Accordingly, if an application for buildings and works is 'generally consistent with' the MLCDP, the application is exempt from the notice and decision requirements and the review rights under the PE Act.
3. The respondent contends that the proposal is generally consistent with the MLCDP. As such, the respondent contends that the application for buildings and works under the CDZ1 is exempt from notice and review rights involving third parties.
4. In terms of the exercise of discretion, clause 37.02-4 of the CDZ and clause 4.0 of Schedule 1 to the CDZ each contain decision guidelines that a responsible authority must consider, as appropriate, in making a decision about an application for buildings and works under the CDZ1.
5. Clause 4.0 of Schedule 1 to the CDZ provides as follows:

Decision guidelines

Before deciding on an application to construct a building or construct or carry out works, the responsible authority must consider, as appropriate:

• The contents and intent of the Moonah Links Comprehensive Development Plan (May 1999).
• The design guidelines prepared in accordance with the Moonah Links Comprehensive Development Plan (May 1999) affecting the land.
• Any comments of the Department of Natural Resources and Environment.
• The Environmental Management Plan submitted in accordance with the Application Requirements of this Clause.
• The protection and enhancement of the natural environment and the character of the area including the retention of vegetation and faunal habitat and the need to plant vegetation along waterways, gullies, ridgelines and property boundaries.
• The availability and provision of utility services, including sewerage (to buildings requiring wastewater disposal), water, drainage, electricity, gas and telecommunications.

1. Given the Land is partly subject to the BMO, and given 'Residential hotel' is a form of accommodation, permission is required for buildings and works pursuant to the BMO.

1. The proposal includes removal of native vegetation.
2. Planning permission for native vegetation removal is required under clause 52.17 of the Scheme.
3. The Tract Report contains a plan identifying the impacted vegetation for the purposes of an analysis of the strategic biodiversity score for that vegetation. The following extracts of that plan show the location of that impacted vegetation, with the image to the right being an enlargement of the location of the impacted vegetation as shown in the image to the left.

Figure 9 - extracts from Figure 7 of Tract Report showing location of impacted vegetation

1. On 14 March 2025, in response to planning permit application P17/0079 the Council:
   1. issued Planning Permit P17/0079A granting permission for the proposal under clause 44.06-2 of the BMO, being a permission that is not amenable to third party review; and
   2. issued the NOD with the application reference number P17/0079B, allowing the following:[16]

1. As can be seen, the NOD:
   1. issued permission for use of the Land as a Residential hotel under the CDZ1;
   2. issued permission for buildings and works for the Residential hotel under the CDZ1; and
   3. did not issue permission for native vegetation removal from the Land.
2. The Council's Planning Delegate Report explains that as a consequence of both amendments to the plans and the Council's decision to impose a condition removing the proposed car parking area on Lot S43 that is located in the north-eastern corner of Moonah Links, north of Peter Thomson Drive, the proposed native vegetation removal is no longer required.[17] As such, the Council did not issue planning permission under clause 52.17 of the Scheme, the Council having determined that this permission was no longer required.
3. At the preliminary hearing, the Council confirmed that there is no native vegetation removal permitted through the NOD, noting that the reference in condition 2 of the NOD to vegetation removal is in error and is not intended to refer to removal of native vegetation.
4. It is only the permissions in the NOD that are reviewable in these three proceedings lodged under section 82 of the PE Act; Planning Permit P17/0079A is not before the Tribunal in these proceedings.[18]

1. This preliminary hearing has been listed for each of the three proceedings, where:

1. VCAT Application P308/2025: 1. was lodged by Owners Corporation No. 1 PS438599 ('OC'); 2. the OC is the entity that oversees not just the common property in Moonah Links but is involved in overseeing development in Moonah Links to ensure that it meets the MLCDP and any Design Guidelines for Moonah Links, through its involvement in the Design Review and Approval process described in the Moonah Links Design Guidelines and Regulations (2019) ('2019 Design Guidelines'); and 3. this application for review contests the NOD on the basis of the proposal's failure to comply with the 2019 Design Guidelines; 2. VCAT Application P315/2025: 1. was lodged by Lakei Varveris, Patsy Montgomery & Others ('Varveris & Ors'); 2. Varveris & Ors are residents of the Kingston Heath estate and reside in the area of Moonah Links that is opposite the proposed Group F area buildings; and 3. this application for review contests the NOD on the basis of the proposal's failure to comply with the MLCDP and the 2019 Design Guidelines through its scale, setbacks and built form, parking, lighting and loss of facilities, and, non-compliance and aesthetic impact; and

1. VCAT Application P321/2025: 1. was lodged by William Payne & Jennifer Payne ('Paynes'); 2. the Paynes are the registered proprietors of the land at 464 Truemans Road, Fingal, being the property to the east of the MLCDP that is adjacent to the eastern boundary referred to in the Specific Requirements for the 'Eastern Boundary (Part A) Treatment' of the MLCDP; and 3. this application for review contests the NOD on the basis that the proposal is not generally in accordance with the MLCDP, is not consistent with the purposes of Schedule 1 to the CDZ, and is contrary to orderly and proper planning.
2. These proceedings were referred to a practice day hearing to consider:
   1. whether these proceedings should be heard and determined together pursuant to section 82 of the VCAT Act; and
   2. the respondent's request dated 4 June 2025 to strike out the proceedings under section 75 of the VCAT Act.
3. The respondent's pre-filed submissions for the practice day hearing explain its reasons for seeking a strike out of these three proceedings, as follows:[19]
   1. The Respondent submits that the proceedings should be struck out because applications P308/2025, P315/2025 and P321/2025 (Applications) are misconceived.
   2. As reflected in the Respondent's Statement of Grounds, it is submitted that:

The Proposal supports the purpose of schedule 1 to the Comprehensive Development Zone.

The Proposal is generally in accordance with the Moonah Links Comprehensive Development Plan (May 1999).

1. On this basis, it is submitted that the Applications are misconceived because the Permit Application for the Proposal was exempt from the notice requirements of Section 52(1)(a), (b) and (d), and the review rights of Section 82(1), of the Planning and Environment Act 1987, and the Applicants in these proceedings had no review rights available to them.
2. In order to examine whether or not the Proposal is generally in accordance with the Moonah Links Comprehensive Development Plan (MLCDP), as submitted above, the Permit Application, Proposal, Planning Controls, and the MLCDP are explored in detail below, as well as the concept of 'general accordance'.

1. The practice day hearing was held on 13 June 2025. In the Remarks accompanying the Tribunal's order dated 18 June 2025, the Tribunal stated that the reason for the preliminary hearing now before me is:

Prior to this Practice Day hearing, the Respondent sought to have the proceedings struck out on the basis that they are misconceived. No reasons were given for this, so the other parties did not know the basis for this request until the submissions were circulated. Hence, the parties all acknowledged that fairness was needed and that determining this may take some time. For this reason, the preliminary hearing has been arranged in August 2025.

1. In the Tribunal's order dated 18 June 2025, the Tribunal stated that the purpose of this preliminary hearing is:
   • To determine whether each proceeding should be struck out as misconceived for the reasons set out in the Respondent's submission to the Practice Day hearing held on 13 June 2025.
2. Pursuant to the Tribunal's orders dated 18 June 2025, the parties pre-filed submissions for the preliminary hearing.
3. The key issue before me in this preliminary hearing is whether each application should be struck out on the basis that each applicant lacked standing to bring their application for review because the proposal is generally in accordance with the MLCDP and therefore does not require use permission and/or is exempt from third party notice and review pursuant to the CDZ1.
4. In the following section I briefly address the parties' submissions before turning to my findings and reasons for refusing to strike out each application.

1. In effect, the respondent has applied for three separate applications for strike out under section 75 of the VCAT Act, one in respect of each of VCAT Application P308/2025, VCAT Application P315/2025 and VCAT Application P321/2025.
2. However, because each application for strike out is made on the same basis, the respondent's arguments apply to each application.
3. The respondent contends that the use in the proposal is 'generally in accordance with' the MLCDP and that the buildings and works in the proposal are 'generally consistent with' the MLCDP.
4. The respondent submits that:
   1. the phrase 'generally consistent with' in clause 37.02-4 of the CDZ that is utilised in relation to whether an exemption from third party notice and review is available for a permit for buildings and works; and
   2. the phrase 'generally in accordance with' in clause 1.0 and 2.0 of Schedule 1 to the CDZ that is utilised in relation to whether a permit is required for the use, or, whether an exemption from third party notice and review is available for a permit for use,

'mean the same thing and are interchangeable' having regard to the Tribunal's decision in Flytech Solutions Pty Ltd v Maribyrnong CC[20] ('Flytech').

1. The respondent relies on the approach to assessing 'general accordance' that was adopted by the Tribunal in TAG-Doreen Pty Ltd v Whittlesea CC[21] ('TAG-Doreen'), extracted as follows:

1. The respondent acknowledges that the principles that have emerged regarding what is meant by 'generally in accordance with' have occurred in the context of planning instruments that are different from the CZD1, e.g. the Development Plan Overlay.
2. The respondent acknowledges that the proposed Residential hotel accommodation units are 'largely located within an area that is designated as 'Championship Course (East Course)' in ...Figure 1'.[22] Notwithstanding, the respondent submits that when a detailed analysis is undertaken of the MLCDP as a whole, the proposal meets the general accordance 'test' because the proposal does not need to be located identical to Figure 1 of the MLCDP and the proposal is supported by the MLCDP as a whole.[23]
3. In terms of Figure 1, the respondent submits that Figure 1 'is not particularly precise (it is essentially 'blobs on a plan', as a loose concept)' and that 'the text of the MLCDP plays an arguably more important role in this context'.[24] To this end, the respondent submits that the proposal is in keeping with the 'vision' for the Land in terms of use and development.[25] The respondent describes the MLCDP, and Figure 1 in particular, as a high level, conceptual plan, noting the absence of a north arrow and any coordinates to enable alignment or identification on the ground.
4. In support of its conclusion that the proposal is generally in accordance with the MLCDP, when read as a whole, the respondent points to:
   1. the proposal's consistency with the objectives, the 'introduction' section, the third and fourth objectives and the general requirements and specific requirements of the MLCDP;
   2. a Residential hotel use being a key component of the overall vision for the site and that the proposal will not result in an exceedance of the 280 Residential hotel accommodation units limit contained in clause 1.0 of Schedule 1 to the CDZ;
   3. the proposal respecting the built form guidance in the MLCDP through, for instance, its height, limited extent of excavation, colours, landscaping, it not dominating the landscape and it being site responsive;
   4. the different Precincts only referring to 'preferred use and development outcomes' and that these outcomes are not required;
   5. the MLCDP stating that '[d]ecisions about the location and layout of use and development including subdivision within the area should have regard to this plan', meaning that the text is not so strict as to prohibit variations, noting that the word 'must' is not used;[26]
   6. the development of Moonah Links on the ground to date having occurred 'in a manner that has largely not aligned with the delineated precincts';[27] and
   7. the proposal being closely aligned with the description of Precinct 2 and Precinct 3 although it is located in an area that was not earmarked for those Precincts.[28]
5. The respondent focuses on what is envisaged by the MLCDP as opposed to the location of those uses:
   1. It is the Respondent's submission that no matter where the use (as distinct from buildings and works) occurs on the Subject Land, it is generally in accordance with the MLCDP because the MLCDP envisages a Residential hotel use and is quite explicit in this regard.
   2. The Respondent submits that the location of the use is not of particular importance in this instance, both because of the nature of the development as a whole, and the fact that the Subject Land has not been developed precisely in keeping with the Visual Plan/Figure 1 to date.
6. By contrast, the respondent submits that:[29]

72. ... If the Proposal was for some other use, not mentioned in the CDP at all, nor identified on CDP Figure 1 (e.g. a Amusement park, or Drive-in theatre), then it could not be said that such a use was generally in accordance with the CDP.

1. The respondent relies on the Tribunal decision in Goldsmith v Mildura Rural SC[30] as being a 'somewhat similar case'.[31] The respondent also relies on the Tribunal decisions in Ritchie v Bass Coast SC,[32] Ryman Healthcare (Australia) Pty Ltd v Monash CC[33] and Autumn Care Properties Pty Ltd v Casey CC[34].
2. In terms of the 'Design Guidelines' provided for in the MLCDP, the respondent:
   1. accepts that the 2019 Design Guidelines are the 'Design Guidelines' for the purposes of the MLCDP;
   2. observes that neither the Design Guidelines nor the Environmental Management Plans form part of the MLCDP, nor are either incorporated into the Scheme;
   3. submits that the 2019 Design Guidelines have largely been written for the purpose of guiding private lot residential development (i.e. the resort lots) and as such, are not relevant to this proposal;
   4. submits that to the extent that the 2019 Design Guidelines are relevant to this proposal, the proposal is in keeping with the 2019 Design Guidelines;
   5. states that the Design Guidelines for Condominiums and Golf Villas dated August 2002, approved under planning permit P02/1179 on 6 December 2002 ('Condominium Design Guidelines') are not part of the 2019 Design Guidelines but are a separate document;
   6. submits that the Condominium Design Guidelines are potentially applicable to the proposal although this is not clear from its drafting, nor is it clear what a 'condominium' is given this term is not defined in the Condominium Design Guidelines. The respondent submits that in the context of a golf course development like Moonah Links, condominiums are golf villas that are scattered around the golf course, so in this sense they are like resort lots; and
   7. submits that to the extent that the Condominium Design Guidelines apply to this assessment, the proposal complies with the Condominium Design Guidelines.
3. Whilst the Tract Report stated that the proposal was not generally in accordance with the MLCDP given its intended location in Moonah Links, the respondent submits that this was incorrect.
4. In summary, the respondent submits that:
   1. the proposal is generally in accordance with the MLCDP as the MLCDP does not need to be slavishly followed and the proposal does not need to be identical to Figure 1;
   2. the proposal is supported by the MLCDP as a whole and the vision of Moonah Links as provided for in the MLCDP is largely realised;
   3. use permission is not required because the conditions in clause 1.0 of Schedule 1 to the CDZ are met; and
   4. the buildings and works are generally consistent with the MLCDP and, as such, no third party notice and review rights apply, meaning that each of these VCAT applications are misconceived and should be struck out.

1. The Council submits that approval of the proposed 98 Residential hotel accommodation units will result in there being a total of 252 accommodation units at Moonah Links, which is 28 Residential hotel accommodation units less than the section 1 threshold in clause 1.0 of Schedule 1 to the CDZ.
2. The Council refers to Planning permit P01/2573 that allows use of the land at 450 Truemans Road, Fingal (being Lot 2 on PS337058) for a Residential hotel with up to 280 accommodation units. The Council says that this permit did not authorise any buildings and works and that the approved use is for the area of future permits P02/1179 and P04/2641. The Council says that the NOD will not result in more than 280 Residential hotel accommodation units being approved for Moonah Links because Planning permit P01/2573 expired under its condition 5.
3. The Council submits that when the MLCDP refers to there being '[o]nly one hotel enterprise' this means that there can only be one management of the hotel operation of Moonah Links, which is satisfied on the facts.
4. The Council submits that the MLCDP created an expectation of what was to occur in Moonah Links, which included creating a separation between the larger built forms of Residential hotel accommodation units and clubhouse and the resort lots. The Council identifies the considerable separation that exists between the Residential hotel accommodation units, resort lots and clubhouse, as shown in Figure 1 of the MLCDP.
5. However, the Council submits that none of the proposed Residential hotel accommodation units are in either of the two Precincts designated for the hotel/accommodation use, nor is there any overlap between the location of the proposal and the approved locations for the Residential hotel accommodation units in the MLCDP.
6. The Council asserts that the diagrammatical plan of Figure 1 is fundamental in this assessment. To this end, the Council submits that:[35]
   1. It would be inappropriate to endorse plans as part of a planning permit as being generally in accordance with the assessed plans if the development as shown on the plans was not in the same location, or even the general location, as assessed in the application process.
   2. Council says that it is equally inappropriate to say that a development is generally in accordance with a Comprehensive Development Plan when the development is not proposed in the same location, or even the general location as shown on the Comprehensive Development Plan.
7. In short, the text and the diagram of the MLCDP should be read in conjunction with each other and Figure 1 has to be given meaning in the reading of the MLCDP. The Council describes Figure 1 as a visually powerful element in understanding the MLCDP and Figure 1 has to be as important as the text in understanding the MLCDP, if not more so.
8. In the circumstances, the Council contends that the use of the Land for the proposal is not generally in accordance with the MLCDP. Accordingly, a planning permit is required for use of the Land for the purposes of a Residential hotel and third party notice and review rights apply.
9. The Council submits that it is appropriate for notice and review rights to apply to the proposal because the proposal is not consistent with what is shown in the MLCDP.
10. The Council submits that in terms of the text, Precincts 2 and 3 speak to each other in that it is envisaged that there might be Residential hotel accommodation units in each of those Precincts. However, the MLCDP does not contemplate that the Residential hotel accommodation units can be located outside of Precinct 2 or Precinct 3.
11. Whilst the Council has approved the proposal through the NOD, the Council submits that the scale of the area occupied by the Residential hotel accommodation units has extended significantly compared with what is envisaged in the MLCDP, along with the size of the built form; i.e. the Residential hotel accommodation units built form will take up a lot more of the Moonah Links site as compared with under the MLCDP. This will result in an impact to persons greater than envisaged in the MLCDP, meaning that it is appropriate for those persons to have a say in the assessment of the proposal, notwithstanding that the Council is supportive of the proposal.
12. The Council submits that neither the 2019 Design Guidelines nor the Condominium Design Guidelines are particularly relevant to assessing whether the proposal is generally in accordance with, or generally consistent with, the MLCDP and whilst the Council utilised these documents in assessing the proposal, this was in terms of the merits of the proposal. That is, in assessing whether the proposal was generally in accordance with, or generally consistent with, the MLCDP, the Council looked substantially at Figure 1 of the MLCDP and the intent of the MLCDP as evidenced by its text. The Council says that this is also how planning permit application P18/2598 was assessed.

1. Varveris & Ors submit that the proposal is not generally in accordance with the MLCDP because the proposal is not consistent with the MLCDP or the 2019 Design Guidelines.
2. Varveris & Ors submit that:
   1. the proposal will result in Residential hotel accommodation units with multiple bedrooms, which will result in a scale of Residential hotel accommodation that far exceeds what was originally envisaged in the MLCDP;
   2. the objectives of the MLCDP require consideration be given to the landscape character and amenity of the surrounding area and that the development of the proposal's Group F area buildings opposite their residences will have a significant impact on them, noting that their present outlook is over grassed open areas and not built form;
   3. the intent of the MLCDP was for there to be a buffer between the residences and the Residential hotel accommodation units, and this will not be achieved by the proposal - it was never the intent of the MLCDP for that amount of built form to be located next to the resort style homes; and
   4. the Group F area buildings have a disproportionate footprint compared with the adjoining resort style homes.
3. Varveris & Ors submit that the proposal fails to respect the MLCDP and that they feel like they need to be heard by the Tribunal.

1. The OC explained its role in overseeing and approving development in Moonah Links prior to building permits being issued.
2. In this context, the OC refers to the Additional Owners Corporation Rules for Moonah Links Residential Estate dated June 2023 and states that because the respondent is a lot owner, it is bound to comply with these rules.
3. The OC asserts that it is not against development or the proposal, per se; it is just that the OC wants development of Moonah Links to proceed with the appropriate controls.
4. The OC submits that the proposal does not comply with the MLCDP or the 2019 Design Guidelines. The OC submits that the 2019 Design Guidelines form part of the assessment of whether the proposal is 'generally in accordance with' the MLCDP because the Precinct 2 text refers to any hotel/accommodation facilities being 'in accordance with the Design Guidelines for Moonah Links'.
5. The OC submits that the proposal cannot be generally in accordance with the MLCDP because the OC has not been provided with the level of detail in the permit application material to assess compliance with the 2019 Design Guidelines.
6. If the appropriate design guidelines under the MLCDP are the Condominium Design Guidelines, the OC submits that it has also not been provided with sufficient detail to assess compliance with those to know whether the proposal is generally in accordance with the MLCDP.

1. The Paynes were involved in Amendment C2 to the Scheme, withdrawing from the Panel hearing following negotiations with the then-developer of Moonah Links for certain changes to be made to the MLCDP.
2. The Paynes submit that, notwithstanding the information provided by the Council and the respondent, it is not clear that the proposal does not exceed the 280 Residential hotel accommodation unit limit for Residential hotel use to be as-of-right in the CDZ1. In this respect, the Paynes refer to the Residential hotel use for 'up to 280 accommodation units' that is authorised by planning permit P01/2573.
3. Irrespective, the Paynes submit that the proposal is not 'generally in accordance with' the MLCDP and as such, the use of the Land for a Residential hotel is not as-of-right and neither the use nor the development of the proposal enjoys an exemption from third party notice and review.
4. The Paynes refer to various Tribunal cases in support of the principles to apply when determining whether an application is generally in accordance with a document, acknowledging that none of the cases are factually analogous to the CDZ1. The cases cited themselves refer to the Tribunal's comments in TAG-Doreen that were extracted earlier in these Reasons.
5. The Paynes do not dispute the approach of the Tribunal in Flytech in terms of the meaning of the phrase 'generally consistent with'.
6. Among other things, the Paynes submit that:
   1. the text of the MLCDP directs consideration to Figure 1 of the MLCDP;
   2. whilst no plan has been prepared that overlays the proposal with Figure 1, it appears that the Land is located in Precinct 1 of Figure 1;
   3. the text for Precinct 1, Precinct 2 and Precinct 3 indicates that Residential hotel use is not directed to occur within Precinct 1, which is limited to the golf courses and ancillary works;
   4. any submission by the respondent that the proposal is generally in accordance with the MLCDP simply because the MLCDP envisages a Residential hotel, irrespective of its location, should be rejected because it renders obsolete the text within the MLCDP referring to Figure 1, the different Precincts and the layout in Figure 1;[36]
   5. the MLCDP nominates distinct and separate uses and outcomes[37] and is not 'just 'blobs on a plan' or a 'loose concept'';[38]
   6. the MLCDP provides 'substantial detail and guidance in respect to the layout of uses envisaged for Moonah Links'[39] and is not a development plan that is expressed in broad terms or that lacks specific directions in respect to the uses and/or built form contemplated;[40]
   7. whilst the MLCDP should be read holistically, the respondent's approach ignores the cumulative effect of the text and Figure 1;[41]
   8. previous permit applications and what was decided in relation to whether they were 'generally in accordance with' the MLCDP are not before the Tribunal in these proceedings;
   9. with respect to previous permit applications, given the decision guidelines in the CDZ1 are broader than just whether an application is generally in accordance with the MLCDP, it does not follow that the granting of a planning permit equates to the application being generally in accordance with the MLCDP;
   10. the MLCDP envisages limited built form, and limited alteration to the terrain, on the Land given it is intended to be a golf course area, and the proposal is clearly inconsistent with those limited works;
   11. the proposal is inconsistent with the 2019 Design Guidelines in numerous respects;
   12. they are unaware of the respondents taking issue with the public notice given of this permit application until the VCAT Applications were lodged with the Tribunal;
   13. the wording of the MLCDP affords consideration of the 2019 Design Guidelines and the Environmental Management Plans in the exercise of discretion on an application, as opposed to whether an application is generally in accordance with the MLCDP;
   14. as the 2019 Design Guidelines do not form part of the Scheme, it is not open to the Tribunal to take the 2019 Design Guidelines into account in determining whether the proposal is generally in accordance with the MLCDP; and
   15. the CDZ1 sets out expectations that any application that deviates significantly from what is contained in the MLCDP will not be exempt from notice and review rights.

1. The purpose of this preliminary hearing was to determine whether each of VCAT Application P308/2025, VCAT Application P315/2025 and VCAT Application P321/2025 should be struck out under section 75 of the VCAT Act on the basis that the applicant in each proceeding does not have standing to bring the application because the CDZ1 exempts third party notice and review rights for the proposal and/or because no permission is required for use.
2. In order to determine the application for strike out, I need to first determine whether the respondent's proposal is exempt from third party notice and review and whether permission is not required for use. This in turn requires assessment of whether the proposal is generally in accordance with, or generally consistent with, the MLCDP.
3. For the reasons that follow, I have determined that:
   1. the proposal is not generally in accordance with the MLCDP;
   2. the proposal is not generally consistent with the MLCDP;
   3. permission for use of the Land for the proposal is required under the CDZ1;
   4. neither the use permission nor the building and works permission is exempt from third party notice and review, having regard to the CDZ1 provisions;
   5. the applicant in each of VCAT Application P308/2025, VCAT Application P315/2025 and VCAT Application P321/2025 has standing to lodge their application; and
   6. none of VCAT Application P308/2025, VCAT Application P315/2025 or VCAT Application P321/2025 will be struck out under section 75 of the VCAT Act on the basis of the applications being misconceived for lack of standing due to the operation of the exemption from third party notice and review rights under the CDZ1.
4. Before turning to each of the above issues, I address two matters.
5. First, I observe that given the limited purpose of this preliminary hearing, some of the submissions made by the parties were not of assistance in my determination because those submissions, in effect, addressed the merits of the proposal. It will be for the Tribunal that ultimately hears these proceedings (if they are not resolved at the scheduled compulsory conference) to deal with the merits of the proposal.
6. Second, some of the parties requested that I undertake a site inspection of the Land in order to inform myself of various matters prior to making a decision on the purpose of this preliminary hearing (and noting that some parties regarded a site inspection unnecessary in the circumstances). I have not undertaken a site inspection because I consider that the material before me, including the plans, mapping and the various photographs, provides me with sufficient information to determine the matters in dispute in this preliminary hearing.

Is the proposal generally in accordance with, or generally consistent with, the MLCDP?

1. In order to determine whether the proposal is generally in accordance with the MLCDP, I first need to understand what the MLCDP envisages for the Land.
2. This is a different exercise to understanding what the MLCDP provides for in relation to Moonah Links as a whole.
3. I accept that the MLCDP envisages that in Moonah Links, as a whole, there will be a variety of uses and developments including a golf course, a clubhouse, resort lots with single dwellings and Residential hotel accommodation units.
4. However, I find that an integral part of the MLCDP is Figure 1 and its identification of where in Moonah Links it is envisaged that the various uses and developments will be located. This is because the text and Figure 1 are interrelated, with the text providing detail regarding the Precincts and then specifically referring to the Precincts that are illustrated in Figure 1.
5. Whilst I have not been provided with a plan that overlays Figure 1 with the permit application plans, it appears to me, and it is accepted by the respondent and the other parties, that the area of the Land in which the Residential hotel accommodation units are intended to be located is largely in the area identified as 'Championship Course (East Course)', which forms part of the '1. Golf Course Precinct' in the MLCDP.
6. Precinct 1, Golf Course Precinct is described in the text of the MLCDP as follows:
   1. Golf Course Precinct

Areas for the golf courses are designated on the CDP Plan. The precinct accommodates two 18 hole golf courses of championship standard (West Course and East Course). It also accommodates a practice range.

The preferred use of the golf courses is recreational golf, golf competition, major golf events, practice range, golf related car parking and any uses ancillary to golf.

The use of the golf course for a major event which exceeds the car parking capacity of the site, requires a Transport Management Plan for the event to be approved by the responsible authority.

1. As can be seen from the above extract, the MLCDP specifically states:
   1. Precinct 1 accommodates two 18 hole golf courses and a practice range;
   2. the preferred use of the golf course is recreational golf, golf competition, major golf events, practice range, golf related car parking and any uses ancillary to golf; and
   3. if the use of the golf course for a major event will exceed the car parking capacity of the site, a particular type of plan needs to be prepared for the event and approved by the Council.
2. Notably, there is no reference in the text describing the preferred use and development outcomes for Precinct 1 to there being 'other preferred uses' in Precinct 1 or that Precinct 1 may also support other uses.
3. I say that this is notable because in other Precincts, allowance is made for other preferred uses or for the Precinct supporting other uses.
4. For instance, Precinct 2 specifically envisages other preferred uses in addition to its key purpose, as follows:

2. Hotel/Accommodation (Option 1) Precinct

This precinct is located in the northern part of the site adjoining Browns Road. Its key purpose is to accommodate a mix of golf and tourism related uses including hotel, conference facilities and the Golf Hall of Fame museum.

Other preferred uses of this precinct are, resort lots, functions, provision of food and drink, entertainment, recreation (eg. pool and tennis courts), convenience shop, tourist retail and ancillary car parking.

The design of the hotel/accommodation facilities must be in accordance with the Design Guidelines for Moonah Links. These Guidelines must state that generally the hotel and associated accommodation should be no more than 3 storeys high unless it can be demonstrated that no significant visual intrusion is caused by higher development. It is envisaged that a component of the hotel accommodation will be in the form of self contained condominiums which may be independently owned on separate titles.

Only one hotel enterprise is provided for, however, some of the hotel facilities may be located in the Clubhouse (& Hotel/Accommodation-Option 2) precinct. The maximum number of hotel accommodation units at Moonah Links is 280.

[Tribunal underlining emphasis]

1. As another example, in Precinct 3 whilst the preferred use is for certain, specified uses, the description envisages that Precinct 3 may support some other uses, as follows:

3. Clubhouse (& Hotel/Accommodation-Option 2) Precinct

The preferred use of the Clubhouse precinct is for the administration of the golf course and golf events, bar and restaurant, pro shop, car parking and any other ancillary uses to golf.

The club house is to include its own car park nearby. A heliport will also be located in this precinct near the car park.

The Clubhouse precinct may be shared with hotel/accommodation uses as detailed above in the Hotel/Accommodation (Option 1) Precinct. The precinct may also support some golf academy uses as described below.

[Tribunal underlining emphasis]

1. In Precinct 4, it is envisaged that a restaurant and convenience shop may be included:

4. Golf Academy Precinct

The Golf Academy is designated near the practice range on the CDP plan.

The preferred use of the golf academy area is for golf education and accommodation relating to golf education. A restaurant and convenience shop may be included. The facility may have a secondary use in association with the conference/function uses at Moonah Links.

[Tribunal underlining emphasis]

1. In Precinct 5 it is envisaged that recreational facilities servicing the resort lots may also be located in the Precinct, as follows:

5. Resort Lots Precincts

The area developed for resort lots (excluding roads connecting the precincts) should be no more than approximately 10% of the overall Moonah Links site area. The maximum number of these lots is 250.

Resort lot development will include themed housing comprising a single dwelling on each lot subdivided. The majority of dwellings will have views of the golf course. Areas surrounding each lot may be communal areas governed by a body corporate or owned and managed by the golf course.

A sufficient number of dwellings on resort lots should be available to the resort management to enable the proper functioning of the resort as an integrated recreational and conference facility.

The design and siting of all dwellings on these lots will be guided by the Design Guidelines for Moonah Links which will require dwellings to be no more than 8 metres high unless it can be demonstrated that there will be no significant visual intrusion caused by higher dwellings.

Recreational facilities servicing the resort lots may also be located in this precinct.

[Tribunal underlining emphasis]

1. As can be seen, through taking a holistic view of the text of the MLCDP, it is clear that in Precincts 2, 3, 4 and 5 whilst there are preferred uses, there are other uses that the MLCDP envisages could occur in these Precincts.
2. By contrast, in Precinct 1 it is not envisaged that any other uses will occur. This does not mean that no other use can occur or be permitted; it is just that this is not envisaged in the MLCDP.
3. This distinction is important because in the CDZ1 a permit can be issued for uses and developments that are not generally in accordance with, or generally consistent with, the MLCDP; it is just that, in those instances, third party notice and review rights will exist.
4. However, where a use or development is generally in accordance with, or generally consistent with, the MLCDP either a use permission will not be required at all, or third party notice and review rights will not apply.
5. Based on the material before me, which includes the parties' submissions, I find that the Land is located largely in Precinct 1 of the MLCDP.
6. Based on the MLCDP, I find that in Precinct 1:
   1. it is envisaged that the Precinct 1 area will be used and developed for golf courses and a practice range; and
   2. the preferred use of the golf courses is recreational golf, golf competition, major golf events, practice range, golf related car parking and any uses ancillary to golf.
7. Based on the material before me, the proposal to use and develop the Land for 98 Residential hotel accommodation units is not use and development of the Land for any of the preferred uses specified in Precinct 1. That is, I find that the proposal is not for use of the Land for recreational golf, golf competition, major golf events, practice range, golf related car parking and any uses ancillary to golf.
8. Further, given Precinct 1 does not envisage any other uses and development occurring in Precinct 1, it is not the case that this Residential hotel proposal is otherwise a use or development that is contemplated by the MLCDP could occur in Precinct 1.

'Generally in accordance with' and 'generally consistent with'

1. Following the approach in Flytech, the parties accepted that the phrases 'generally in accordance with' and 'generally consistent with' have the same meaning.
2. In Flytech, the Tribunal was dealing with the Comprehensive Development Zone - Schedule 3 of the Maribyrnong Planning Scheme, so in this sense the provisions in these two cases are aligned. In Flytech, the Tribunal stated:
   1. There are many Tribunal decisions that consider the meaning of 'generally in accordance' with respect to development, incorporated and/or precinct structure plans. Whilst the wording in these provisions is 'generally consistent', it is sufficiently similar to general accordance to consider the principles established with respect to that term.
3. The Tribunal in Flytech then turned its attention to the principles established with respect to the phrase 'generally in accordance with', including the passage from TAG-Doreen that is extracted earlier in these Reasons.
4. As stated, no party before me contested the interchangeability of the two phrases or challenged the notion that the principles that have been established with respect to the phrase 'generally in accordance with' equally apply to the phrase 'generally consistent with'.
5. It gives me pause that the Scheme has elected to utilise a different phrase - 'generally consistent with' - from the oft-utilised 'generally in accordance with'. This is because it is often the case that when a different word or phrase is utilised, this is done for a reason; i.e. to differentiate from the other word or phrase.
6. However:
   • in circumstances where this issue was not pursued by any party; and
   • noting the logic of the Tribunal's comments in Flytech;
   • mindful of my own cursory consideration of the phrases as utilised in their particular contexts - that is, in effect, the conformity or consistency between the proposal and the MLCDP;

I am content that these two phrases are 'sufficiently similar' (to quote from Flytech) that I can consider the principles established for 'generally in accordance with' to apply to the 'test' of 'generally consistent with'.

What is meant by these phrases when applied to the present circumstances?

1. There was also no dispute between the parties as to the principles to apply in determining whether the proposal is generally in accordance with or generally consistent with the MLCDP.
2. In short, I find that these principles, as applied to the present proceedings, mean that:
   1. whether planning permit application P17/0079 is 'generally in accordance with' or 'generally consistent with' the MLCDP is a question of fact;
   2. it is contemplated that there will be a degree of flexibility employed, such that the MLCDP need not be slavishly adhered to by planning permit application P17/0079 but that the intent of the MLCDP and what is envisaged by the MLCDP will be reflected in what is proposed in planning permit application P17/0079;
   3. the MLCDP should be considered as a whole when assessing whether planning permit application P17/0079 is generally in accordance with, or generally consistent with, the MLCDP, mindful of the objectives and purposes of the MLCDP and its overall content.
3. In effect, the principes derived from cases such as TAG-Doreen result in the detail of a development plan and the flexibility applied to its interpretation being inversely proportional; that is, the less detail in a development plan, the more flexibility is afforded in interpreting what is 'generally in accordance with' that development plan.
4. I do not accept the respondent's submission that the MLCDP lacks detail and, at least in relation to Figure 1, is merely 'blobs on a plan'. Rather, I find that when the MLCDP is read holistically, and which importantly includes what is illustrated in Figure 1, it contains a reasonable amount of detail. This detail includes the MLCDP providing for:
   1. the creation of different and distinct Precincts;
   2. the location of those Precincts across Moonah Links;
   3. the preferred use and development of those Precincts and, in the instances specified above, the nomination or identification of other uses that are envisaged could be accommodated in those Precincts;
   4. objectives of the MLCDP;
   5. overall design and land management principles for implementing the objectives, which it is stated (in the MLCDP) will 'form the basis of more detailed Design Guidelines and Environmental Management Plans';
   6. the preparation of 'Design Guidelines' and 'Environmental Management Plans' against which the merits of proposals for use and development are to be assessed;
   7. general requirements in relation to subdivision that deal with the undergrounding of electricity cables, building envelopes, setbacks and subdivision occurring in accordance with the 'Design Guidelines' and 'Environmental Management Plans';
   8. general requirements in relation to development in terms of reticulated sewerage and development occurring in accordance with the 'Design Guidelines' and 'Environmental Management Plans';
   9. specific requirements relating to the interface of Moonah Links with adjoining properties to the east to protect the amenity of those properties;
   10. road connections, as illustrated in Figure 1; and
   11. the proposed location of a helipad, as illustrated in Figure 1.
5. I accept that Figure 1 does not contain a north arrow or coordinates or measurements to align what is illustrated with the precise location on the ground of Moonah Links. However, I do not regard these omissions to result in the MLCDP lacking overall detail or constituting a 'loose concept'.
6. By contrast, I find that there is sufficient detail in Figure 1 of the MLCDP that one can orient themselves 'on the ground' to broadly understand the location of the various Precincts and the components illustrated in Figure 1.
7. Given the above, while it remains appropriate for the content of the MLCDP to be applied with a degree of flexibility, I find that regard must still be given to:
   1. what is illustrated in Figure 1, as representing the intended location of the various Precincts;
   2. the preferred uses and developments in each Precinct, as expressed in the text of the MLCDP; and
   3. whether what is being proposed aligns with the text of the MLCDP and the plan in Figure 1.
8. When I consider my earlier findings as to:
   1. the Land's location in Precinct 1 of the MLCDP;
   2. what the MLCDP envisages for Precinct 1;
   3. what, therefore, the MLCDP envisages for the Land; and
   4. the use and development that is proposed for the Land through planning permit application P17/0079,

it is clear to me that what is proposed in planning permit application P17/0079 is neither generally in accordance with, nor generally consistent with, the MLCDP. Rather, I find that what is proposed in planning permit application P17/0079 is entirely different to what is envisaged for Precinct 1 in the MLCDP.

1. Whilst I accept that what is proposed in planning permit application P17/0079 is of a nature that is contemplated by the MLCDP to occur in Moonah Links overall, the proposed use and development is not contemplated to occur in the location of the Land. Rather, that use and development is envisaged to occur in Precinct 2 and Precinct 3. The Land is not located in Precinct 2 or Precinct 3.
2. I do not accept the respondent's submissions that it does not matter where the use and development occurs in Moonah Links, so long as it is of the nature of use and development that is contemplated in the MLCDP overall. This is because to approach the interpretation of the MLCDP in this way would be, as submitted by the Paynes, to render Figure 1 obsolete. This is not the correct approach when the text clearly requires the text and Figure 1 to be read together.
3. I accept that the text refers to 'preferred use and development outcomes' and that the MLCDP directs that decisions about the location and layout of use and development 'should have regard to' Figure 1. I find that this wording does not require slavish adherence to the text of the MLCDP or to what is shown in Figure 1 when an ultimate decision is made on the merits of the planning permit application.
4. However, there is a difference between the ultimate decision on the merits and the determination of whether an application is generally in accordance with, or generally consistent with, the MLCDP for the purposes of the use permission in the CDZ1 and the exemption from third party notice and review rights in the CDZ1.
5. The MLCDP states that the ultimate decision on the merits 'should have regard to' Figure 1. This is consistent with the decision guidelines in clause 2.0 and clause 4.0 of Schedule 1 to the CDZ stating that the responsible authority must consider, as appropriate, the contents and intent of the MLCDP. This does not require the ultimate decision to be 'generally in accordance with' or 'generally consistent with' the MLCDP, which makes sense given that the CDZ1 does not require a permit to be generally in accordance with, or generally consistent with, the MLCDP. This is in contrast to other provisions of the Scheme that do require a permit to be generally in accordance with a development plan; for instance, the Development Plan Overlay.
6. However, the utilisation of the words 'should' and 'preferred use and development outcomes' in the context of the MLCDP should not be viewed as warranting an approach to interpreting Figure 1 that minimises its importance in assessing whether an application is 'generally in accordance with' or 'generally consistent with' the MLCDP. This is because, properly understood, those words in that context still have work to do in guiding the discretion exercised in the ultimate decision-making process, rather than diluting the meaning of whether an application is 'generally in accordance with' or 'generally consistent with' the MLCDP.
7. Accordingly, for the above reasons, I do not accept the respondent's submissions on how the MLCDP, and Figure 1 in particular is to be interpreted, and the conclusion reached by the respondent that what is proposed in planning permit application P17/0079 is generally in accordance with, and is generally consistent with, the MLCDP.
8. As such, I find that the condition in clause 1.0 of Schedule 1 to the CDZ that requires use for the purposes of a Residential hotel to be generally in accordance with the MLCDP if it is to be as-of-right in the CDZ1 is not met. As such, use of the Land for the purposes of a Residential hotel as shown in planning permit application P17/0079 requires planning permission under the CDZ1.
9. Given my finding that the use of the Land for the purposes of a Residential hotel as shown in planning permit application P17/0079 is not generally in accordance with the MLCDP, it follows that the exemption from notice and appeal that is contained in clause 2.0 of Schedule 1 to the CDZ and applies to planning permit applications for use also does not apply to this application.
10. For the same reasons as given above, I similarly find that the buildings and works proposed in planning permit application P17/0079 are not generally consistent with the MLCDP because they are intended to be located in Precinct 1, and where the MLCDP does not envisage buildings and works of this nature in Precinct 1. As such, it follows that the exemption from notice and review that is contained in clause 37.02-4 of the CDZ does not apply to planning permit application P17/0079.
11. In summary, these findings result in the use and development permissions sought through planning permit application P17/0079 not being exempt from third party notice and review rights.
12. Whilst not the reason for the above findings, I observe that this outcome aligns with the expectations created by the operation of the CDZ1 in concert with the MLCDP. By this I mean that it is expected through the CDZ1 and the MLCDP that if an application is generally in accordance with, or generally consistent with, the MLCDP that third parties will not be given notice of the application or have the right to review the subsequent decision. This is because notice was given of the use and development envisaged in the various Precincts of the MLCDP when the MLCDP was incorporated into the Scheme through Amendment C2 to the Scheme. It follows that when use and development occurs generally in accordance with, or generally consistent with, the MLCDP, all that is occurring is what is shown in the MLCDP, which was already subject to public notice and consultation. However, when a use and development application diverges from what is envisaged in the MLCDP, through it not being generally in accordance with, or generally consistent with, the MLCDP, it is appropriate for third parties to be consulted about that application and to have the right to challenge the ultimate decision. And this is what has occurred through these three proceedings.
13. In making my findings, I have not needed to consider why the Precincts are arranged the way that they are in the MLCDP, notwithstanding the submissions made by some parties. Rather, my findings are based on content of the text and Figure 1 of the MLCDP and a comparison between what is shown in the MLCDP and the content of planning permit application P17/0079.
14. Finally, the respondent asserts that what has developed on the ground at Moonah Links might not entirely align with what is depicted in Figure 1 and the MLCDP. For the purposes of the question before me, this is not relevant. In any event, given that use and development can occur under the CDZ1 in a manner that is not generally in accordance with, or generally consistent with, the MLCDP, it was always possible for this to eventuate. In saying this, given that some of the Precincts envisage other uses and development in addition to the preferred or key use and development, it may be that what has eventuated on the ground is not actually misaligned with the MLCDP. However, none of that is before me in this preliminary hearing.

1. Given the above findings, I do not need to make any finding about whether planning permit application P17/0079 will result in there being more than 280 Residential hotel accommodation units at Moonah Links. This is because my findings have resulted in the proposed use not being a section 1 as-of-right use in any event.

2019 Design Guidelines and Condominium Design Guidelines

1. Given the above findings, I also do not need to make any finding about the consistency or otherwise between planning permit application P17/0079 and the 2019 Design Guidelines and/or the Condominium Design Guidelines. This is because I have found that the buildings and works that are proposed in planning permit application P17/0079 are not generally consistent with the MLCDP having regard to the text of the MLCDP and what is illustrated in Figure 1.
2. Based on the material before me, it appears to me that, in any event, neither the 2019 Design Guidelines and/or the Condominium Design Guidelines are relevant to the question before me for determination, even if one or both of those documents is applicable to the assessment of planning permit application P17/0079 (which I acknowledge is a live issue between the parties).
3. This is because, on my reading of the MLCDP, neither the 2019 Design Guidelines nor the Condominium Design Guidelines forms part of the MLCDP.
4. The detail contained in the 2019 Design Guidelines and the Condominium Design Guidelines exceeds the detail contained in the MLCDP, as is expected by the MLCDP. The MLCDP requires the design and siting of the resort lots to be guided by the 'Design Guidelines', and that the design of hotel/accommodation facilities must be in accordance with the 'Design Guidelines'. This level of detail is perhaps understandable for the ultimate planning or building assessment of a proposed use and development but is not required to determine whether a proposed development is generally consistent with the MLCDP. This is because all that is required to make that determination is a comparison between the elements of a proposed use and development and their intended location and what is envisaged in the MLCDP.
5. In this respect, I note that the decision guidelines in clause 4.0 of Schedule 1 to the CDZ that apply to a permission sought for buildings and works require a responsible authority to consider, as appropriate, the design guidelines prepared in accordance with the MLCDP, as well as the environmental management plan submitted with a permit application. This supports the notion that the detail contained in the 2019 Design Guidelines and the Condominium Design Guidelines is appropriately taken into account in assessing a planning permit application but need not be part of the determination of whether a proposed development is generally consistent with the MLCDP.

1. In summary, I have found that what is proposed in planning permit application P17/0079:
   1. is not generally in accordance with the MLCDP in terms of the proposed use, for the purposes of clause 1.0 of Schedule 1 of the CDZ, meaning that a planning permit is required for use of the Land for the purposes of a Residential hotel;
   2. is not able to rely on the exemption from third party notice and review contained in clause 2.0 of Schedule 1 of the CDZ because the proposed use is not generally in accordance with the MLCDP;
   3. is not generally consistent with the MLCDP in terms of the proposed buildings and works for the purposes of clause 37.02-4 of the CDZ; and
   4. is not able to rely on the exemption from third party notice and review contained in clause 37.02-4 of the CDZ because the proposed buildings and works are not generally consistent with the MLCDP.

1. The respondent seeks for each of VCAT Application P308/2025, VCAT Application P315/2025 and VCAT Application P321/2025 to be struck out under section 75 of the VCAT Act on the basis that the applicant in each proceeding does not have standing to bring the application because the CDZ1 exempts third party notice and review rights for the proposal and/or because no permission is required for use.
2. Given my findings, there is no warrant for striking out any of the VCAT Applications because I have found that:
   1. planning permission is required for use of the Land for what is proposed in planning permit application P17/0079; and
   2. planning permit application P17/0079 is not exempt from third party notice and review.
3. It follows that each applicant has standing to bring their application for review and that none of the applications for review are misconceived on this basis.
4. Accordingly, I refuse to strike out VCAT Application P308/2025, VCAT Application P315/2025 or VCAT Application P321/2025 on the basis that they are misconceived by reason of lack of standing of each respective applicant.

1. For the reasons given above, I refuse to strike out VCAT Application P308/2025, VCAT Application P315/2025 or VCAT Application P321/2025 under section 75 of the VCAT Act because I have found that:
   1. what is proposed in planning permit application P17/0079 is not generally in accordance with the MLCDP and is not generally consistent with the MLCDP;
   2. planning permission is required for use of the Land for the purposes of 98 Residential hotel accommodation units; and
   3. the exemptions from third party notice and review contained in the CDZ1 that apply to use and to buildings and works do not apply to the proposal the subject of planning permit application P17/0079.
2. Accordingly, each of VCAT Application P308/2025, VCAT Application P315/2025 and VCAT Application P321/2025 will proceed to the compulsory conference scheduled for 20 October 2025.

Information for all parties is available at the Tribunal's website www.vcat.vic.gov.au

For information about what happens after you make your application, visit

www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

To find out about the Tribunal's support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

A compulsory conference is a private meeting between the parties to the proceeding.

With the assistance of a Tribunal member the parties can explore options to reach an agreement on all or some of the matters in dispute. The parties should come with an open mind and flexibility in considering options that could resolve the case.

Unless all parties agree, evidence of anything said or done in the course of a compulsory conference (including any document provided to the Tribunal for the purpose of the compulsory conference) is not admissible in any hearing before the Tribunal in the proceeding.

More information about compulsory conferences is available on the Tribunal's website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 - Alternative Dispute Resolution (ADR).

If you are a party, you must attend the compulsory conference in person or by a representative who has written permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in an adverse way.

The Tribunal may make any of the following orders under the Victorian Civil and Administrative Tribunal Act 1998 (Vic):

• If you are the applicant, your application may be dismissed or struck out.
• If you are not the applicant, you may be struck out as a party. This means that you can take no further part in the proceeding, including the hearing.
• The matter may also be settled, approving the proposal with or without changes.
• You may be ordered to pay the costs of the other parties in certain circumstances.

Only parties to the proceeding may attend a compulsory conference.

A person is a 'party' to the proceeding if the person:

• lodged an objection to the planning application
• has given a completed Statement of Grounds form to the Tribunal by the due date and paid the fee
• has indicated in their Statement of Grounds form that they intend to participate in the hearing

The following persons are NOT a party to a proceeding:

• a person who did not lodge an objection to the permit application
• a person who did not give their Statement of Grounds form by the due date and/or did not pay the fee
• a person who has indicated on their Statement of Grounds that they do not intend to participate in the hearing

If you are not a party to the proceeding but wish to be heard, you can attend at the start of the compulsory conference and ask the Tribunal to join you as a party to the proceeding. You will need to explain why you should be joined as a party to the proceeding. Other parties will also be given the opportunity to tell the Tribunal whether they agree or disagree about you being joined as a party. The Tribunal will then make a decision to join you as a party or not.

If you are not joined as party, you cannot take any further part in the compulsory conference and the Tribunal may make a final order or make other orders that may affect you in an adverse way.

A party who is struck out because they do not attend a compulsory conference cannot participate in any further compulsory conference or hearing.

What happens if agreement is reached at the compulsory conference?

If the parties present at a compulsory conference reach agreement, the Tribunal may make a final order to give effect to the agreement without a hearing being required. This can include allowing the proposal with or without changes.

What happens if agreement is not reached at the compulsory conference?

If parties present at the compulsory conference do not reach an agreement, a hearing date/s will be confirmed. An order will be issued by the Tribunal.

What happens if a partial agreement is reached at the compulsory conference?

If the parties reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference.

What should you bring to the compulsory conference?

Parties should be come to the compulsory conference with a summary of their issues and solutions. This could include possible changes that could be made to the proposal in order to address your concerns or the concerns of other parties. The attached 'Summary of Issues and Solutions for a Compulsory Conference' may be used. The applicant for the permit should bring an extra copy of any relevant plans including elevations.

SUMMARY OF ISSUES AND SOLUTIONS FOR A COMPULSORY CONFERENCE**

It is suggested that each party identify key issues and potential solutions before the compulsory conference. This will help to clarify the key issues that the parties consider most important to them and possible solutions.

Most important issues in dispute from your perspective (including any legal matters) Use additional pages if required

What potential solutions would you consider? Use additional pages if required

[1] The submissions 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.

[2] Planning Report for Planning Permit Application Moonah Links Stage 2 (Groups A, B & F) prepared by Tract dated 21 February 2020, Figure 1.

[3] That forms part of the Tribunal file.

[4] Noting that the accompanying legend incorrectly designates 07 as being 'S38' when it should state 'S57'.

[5] Nearmap, 4 August 2025, where the pin is on '20 Peter Thomson Drive, Fingal' and the second aerial photograph is a composite image of two screenshots, meaning that some parts of the images are slightly misaligned.

[6] Noting that this is the part of Moonah Links that is covered by the MLCDP and is in the CDZ1 and does not include the part to the south that is in the GWZ4.

[7] For example, planning permits P99/1606, P00/1790 and P00/1791.

[8] For example, planning permits P00/2185, P02/0471 and P02/0472.

[9] For example, planning permit P01/0102.

[10] For example, planning permits P01/2573, P02/1179 and P02/2317.

[11] For example, planning permit P00/2502.

[15] Outline of Reply to Submissions for Preliminary Hearing on behalf of the Respondent, dated 21 August 2025, [49].

[16] Noting that 'CDP' appears to be a typographic error and it should refer to 'CDZ1'.

[17] Planning Delegate Report dated 26 February 2025, pages 30-32.

[18] Noting that no party has suggested otherwise.

[19] Outline of Submissions for Practice Day Hearing on behalf of the Respondent, dated 10 June 2025, [14]-[17].

[20] [2025] VCAT 207, [41].

[21] [2016] VCAT 1705, [11].

[22] Outline of Submissions for Preliminary Hearing on behalf of the Respondent, dated 6 August 2025, [41].

[26] Outline of Reply to Submissions for Preliminary Hearing on behalf of the Respondent, dated 21 August 2025, [66].

[27] Outline of Submissions for Preliminary Hearing on behalf of the Respondent, dated 6 August 2025, [61].

[29] Outline of Reply to Submissions for Preliminary Hearing on behalf of the Respondent, dated 21 August 2025, [72].

[30] [2014] VCAT 836.

[31] Outline of Submissions for Preliminary Hearing on behalf of the Respondent, dated 6 August 2025, [98].

[32] [2025] VCAT 292.

[33] [2020] VCAT 701.

[34] [2021] VCAT 54.

[35] Outline of Submissions to the Victorian Civil and Administrative Tribunal for Preliminary Hearing by the Responsible Authority, [39]-[40].

[36] Outline of Submissions on Behalf of the Respondent [sic] - Preliminary Hearing, dated 14 August 2025, [58].