1. Pursuant to section 149(1)(a) Planning and Environment Act 1987 the application is allowed. The decision of the responsible authority is set aside. The Tribunal is satisfied that condition 2 in Permit P72/0268.09 be deleted.

1. Pursuant to section 149(1)(a) Planning and Environment Act 1987 the application is allowed. The decision of the responsible authority is set aside. The Tribunal is satisfied that condition 6 in Permit P91/7308.1 be deleted.

1. Costs reserved.
2. Any party that wishes to make an application for costs must file and serve such application and supporting submissions by not later than 12 October 2020. Any response must be filed and served by no later than 9 November 2020. Any party may request a hearing to consider any application for costs or the Tribunal may convene a hearing at its discretion.

Mr M Townsend, Barrister instructed by Mornington Legal

Declaration that the Peninsula Aero Club has existing use rights for the continued use of Tyabb airfield for take-offs and landings by aircraft between the hours of 9:30am and 10:30am on Sundays; and alternatively, to exercise discretion to remove the reference to the use of the airfield for take-offs and landings by aircraft between the hours of 9:30am and 10:30am on Sundays in condition 2 in Permit No P65/0002.09, condition 2 in Permit No P2/0268.09, and condition 6 in Permit No P91/7308.1.

Application under section 149A(1)(b) of the Planning and Environment Act 1987 - declaration

Application under section 149(1)(a) of the Planning and Environment Act 1987 - secondary consent

The subject land is irregularly shaped. It accommodates a sealed north-south runway and an unsealed east-west runway. The subject land has a frontage to Mornington-Tyabb Road of approximately 100 metres, a frontage to Stuart Road of approximately 200 metres, and an overall site area of 27.794 hectares.

The subject site is developed with infrastructure relating to use as an 'authorised landing area'.

1. Four applications have been lodged with the Tribunal by Peninsula Aero Club (PAC).
2. Application P913/2019 pursuant to section 149A(1)(b) of the Planning and Environment Act 1987 (PE Act) was lodged on 20 May 2019. The application seeks a declaration that the PAC:

... has existing use rights pursuant to section 6 of the Planning and Environment Act 1987 (Vic) and the Mornington Peninsula Planning Scheme to use the authorised landing ground at the Subject Land between 9:30am and 10:30am on Sundays for the purposes of aircraft departures and landings.

1. Applications P2425/2019, P2427/2019 and P2428/2019 pursuant to section 149(1)(a) of the PE Act were lodged on 20 December 2019. These applications relate to three permits[2]. Each permit contains a condition that provides that except in the case of an emergency, the Tyabb authorised landing ground shall not be used on Sundays between the hours of 9:30am and 10:30am unless with the written consent of the responsible authority. The relevant conditions are known as the 'church hour' conditions.
2. The applications arise as a result of Mornington Peninsula Shire Council (the council) refusing to delete the relevant conditions in each of the three permits by way of secondary consent.

1. As outlined in the applicant's statement of facts:

Tyabb airfield was originally constructed in conjunction with the subdivision of 4 ha lots fronting Mornington-Tyabb Road as an air park by D Thompson in early 1962 and use of the land as an airfield commenced in April 1963 (using the East-West runway).

PAC was formed in March 1964. In May of that year, Mr Thompson obtained approval from the Department of Civil Aviation (DCA) to use Tyabb airfield for flying training using the north-south runway only.

As certain minimum requirements could not be met, the DCA considered that Tyabb airfield could not be approved as a "licensed aerodrome" but accepted that it met the requirements for an "authorised landing area" (ALA).

1. PAC submits 'an authorised landing ground' is the same as 'an authorised landing area'. PAC submits an 'authorised landing area' is considered to be an unlicensed private aerodrome from which charter, aerial work, flying training, private flying and related aviation activities may be conducted using aircraft having a maximum take-off weight not exceeding 5,700kg (12,5000 lbs).
2. The council whilst providing a similar background submits:

The 'first aviation activity on what is now part of the land occurred in 1962 when land at the rear of a number of lots fronting the Mornington-Tyabb Road was acquired and combined to provide the east-west runway. Subsequently in around 1963 or 1964 Mr Thompson acquired more of what is now the land to the south and then established the north-south runway (in its original form). This the council says was completed and inspected by representatives of the then Department of Civil Aviation in February 1964.

1. PAC submits that since at least 1964, a flying training school has continuously operated from the Tyabb airfield as well as commercial and charter operations, aviation fuel sales and aero club activities. PAC has relied upon various documents in this respect.[3]
2. In addition, other aviation businesses, including hangar garage and aircraft maintenance facilities continue to be operated on adjacent land by others in conjunction with the use of the Tyabb airfield.
3. In relation to what has been referred to as the 'church hour', PAC submits that the condition was introduced to accommodate the operation of Sunday Services at All Saints Church, 16 Mornington-Tyabb Road, Tyabb.
4. PAC further submits the church ceased operating as a church in 1978 and the property has not accommodated a church since 1991 and is now a café and reception centre. This was not disputed by the council.
5. Mr John Vevers, the current president of PAC gave evidence. He stated he had been flying to and from Tyabb airfield since 2006. Whilst Mr Vevers has only been a member since 2006, he stated, he had been informed by a Mr B Sorenson, a member for 55 years and Ms J Pay, a member since 1980 that the 'church hour' restriction had not been complied with, in Mr Sorenson's case for 45 years and Ms Pay since 1980.

1. The council submits the use of the land is currently prohibited under the provision of the Special Use Zone Schedule 3 (Airfield Development) (SUZ3). In this respect, the council submits the Tyabb airfield as an 'authorised landing ground' is an innominate use and does not fall within the section 2 use within SUZ3 of 'airport' nor does it fall within the provisions under section 2 of 'any other use not in section 1 or 3' given that these are conditional on the requirement in the SUZ3 that the airfield 'must be an airfield and or pilot training school used in accordance with an approved Airfield Master Plan'.
2. This is disputed by PAC:

For present purposes, PAC simply notes the incongruity of the remarkable suggestion that use for the purpose of an "airfield", "authorised landing ground", "flying school" or other constituent/ancillary component of use for the purpose of an "airport" is prohibited within the SUZ3 (Airfield development).

1. Based on its view the council has, following PAC lodging its application with the Tribunal on 20 May 2019, sent to PAC a 'directions to cease' in the form of a letter dated 29 May 2019. This is understood to form the basis of additional proceedings lodged by the council.
2. The application for declaration by PAC seeks to rely upon the provisions of clause 63 in the Mornington Planning Scheme (the Scheme) that relates to existing use rights. These provisions stem from section 6(3) of the PE Act:

(3) Subject to subsections (4) and (4A), nothing in any planning scheme or amendment shall -

(a) prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or

(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or

(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or

(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or

(e) require the removal or alteration of any lawfully constructed building or works.

1. The provision under the Scheme, provides as relevant:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

- The use was lawfully carried out immediately before the approval date.

- A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.

- A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.

- Proof of continuous use for 15 years is established under Clause 63.11.

1. The council submits the SUZ3 provides that all innominate uses (including 'Airfield') are prohibited on the subject land. The use of the subject land is therefore reliant on the first three permits referred to above with each permit including conditions that restrict the use of the authorised landing ground on Sundays between 9:30am and 10:30am.
2. For the purposes of this application for declaration the council has acknowledged that the use of the land for the purpose of an 'authorised landing ground' commenced prior to the approval date of the current planning scheme provisions, but submits, the use was commenced after the coming into force of the Hastings Interim Development Order[4] (Hastings IDO). Therefore, the council submits PAC is in breach of the relevant 'church hour' conditions in each relevant permit and pursuant to clause 63.05 of the Scheme PAC cannot establish an existing use right.
3. Clause 63.05 provides:

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

• No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
• Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
• The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right. [Tribunal underlining]

1. PAC acknowledges that for a period in excess of 25 years take-offs and landings by aircraft on the subject land have occurred and continue to occur during the 'church hour'. PAC acknowledges it has been and is in breach of the 'church hour' conditions in the relevant permits.
2. PAC submits that instead of relying on clause 63.05 it can rely upon the provisions of clause 63.11 in the Scheme to establish existing use rights.
3. Clause 63.11 provides:

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
• During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme. [Tribunal underlying]

1. The use was commenced and has continued under several permits:
   1. Permit P65/0002 granted on 30 April 1965 - this permit allows the use of the land for an 'authorised landing ground'. An application for the use of an 'authorised landing ground' was made in September 1964 to the Hastings Shire Council under the Hasting IDO. A review of the decision of the Hastings Council to approve the use was reviewed by the then Minister for Local Government, Rupert Hamer following which the permit was granted.
   2. Permit P72/0268 granted on 1 November 1972 - the operator of the 'Tyabb Airfield' sought permission to increase the size limit of aircraft able to use this land. The size was restricted under condition 1 of Permit P65/0002. Approval for this permit was required by both the Hastings Shire Council and the Western Port Regional Planning Authority (WPRPA). The Hastings Council refused the application and the WPRPA supported the permit. On appeal to the Town Planning Appeals Tribunal (TPAT) a permit was granted for:

... the use of the appeal land (in addition to the existing permitted use) for the purpose of the use of the existing aircraft landing ground facilities for the landing and take off of aircraft having an all up weight of between 4,500 and 12,500 pounds but not exceeding a maximum all up weight of 12,500 pounds.

1. Permit P91/7308 issued on 7 June 1991 - the Hastings Shire Council determined to grant a permit to develop the most southern part of the land now the north-south runway and use that part of the land for an authorised landing ground as per the first two permits. On appeal the Administrative Appeals Tribunal determined to grant the permit.

1. Permit P02/1629 granted on 25 July 2002 - this permit was granted by the Mornington Peninsula Shire Council for 'the development of works (sealing of existing north-south runway of Westernport Airfield, Tyabb) and associated works in accordance with endorsed plans.

1. On 27 September 2011, the Victorian Civil and Administrative Tribunal (VCAT)[5] amended Permit Nos P65/0002, P72/0268 and P91/7308 by adding secondary consent wording 'except with the written consent of the responsible authority' to each of the conditions in each of the permits that prevented the use of the authorised landing ground on Sundays between the hours of 9:30am and 10:30am.
2. Following this amendment, the council on 17 December 2013, 12 August 2015, 24 May 2017 and 12 September 2019 gave its consent under these provisions for various things to occur when the Tyabb Air Show took place in March 2014, 2016, 2018 and 2020.
3. As the use was permitted prior to the approval of the current planning scheme, PAC can rely upon existing use rights under clause 63 of the Scheme. The council, however, submits that pursuant to clause 63.05, the use of the subject land can only continue provided the conditions or restrictions to which the use was subject continue to be met. In other words, the use must comply with the provisions of the three permits that each contain the 'church hour' condition.
4. The council submits that as the conditions have been breached, PAC cannot rely upon the permits for their existing use rights as pursuant to clause 63.05, the conditions and restrictions have not been met.
5. Clause 63.01 provides various ways in which existing use rights can be established. One does not necessarily override the other.
6. As stated in Seers v Macedon Ranges SC[6]:

Fundamentally, the concept of existing use rights is one of fairness. It would be unfair if a use which was operating lawfully one day either under a planning scheme or permit could be rendered unlawful the next day because of an amendment to a planning scheme, which made the use prohibited or subject to conditions. For this reason, section 6(3) of the Planning and Environment Act 1987 provides that nothing in any planning scheme shall prevent: ... the continuous use of the land.

Clause 63 also goes beyond the ambit of protection directed by section 6(3) in terms that whilst section 6(3)(b) and (c) protect use of any building or works erected or constructed before an amendment for any purpose for which they were lawfully being used immediately before the amendment came into operation, clause 63 talks about existing use rights being established in respect of land, not just the use of buildings and works. It avoids the complications that might arise if the exact words used in section 6(3) were used in the planning scheme relating to use of buildings and works, rather than use of land, although it provides that a permit for any new buildings or works is required.

Having regard to the fundamental reason why existing use rights should be protected and the scheme for doing so that is established under the Act and the planning scheme, I therefore return to the question previously posed as to why it is necessary in this particular case to rely upon clause 63.01 at all in establishing the Seers' right to continue to use the land for the purpose set out in the permit.

1. The council submitted that while finding that on the facts, the applicant in Seers did not need to rely on clause 63.01 with regard to the permit the subject of the application, the Tribunal provided a helpful analysis of clause 63.11 - the provision PAC must rely on to assert that its long-standing breaches of the first three Permits enlarge its existing use rights.
2. The council submits that in Seers the Tribunal found that there is a tendency for practitioners to conclude that once a use has been established for 15 years, clause 63.11 supersedes a right (or obligation) under a planning permit. DP Gibson held that this cannot be correct for it would render the provisions of clause 63.05 inapplicable:

Clause 63.11 is a very useful provision when it cannot be established that the use was lawfully carried out immediately before the approval date. This may be because the use commenced unlawfully without a permit or, through the effluxion of time, it may not be possible to establish when or in what circumstances the use commenced. Sometimes, though, there is a tendency on the part of practitioners to assume that once a use has been established for 15 years, even though it commenced lawfully pursuant to a permit or the provisions of the (then) planning scheme, the establishment of an existing use right under clause 63.11 supersedes an existing use right established under the first dot point of clause 63.01 (use lawfully carried out immediately before the approval date) or a right under an ongoing permit. One implication of this assumption is that this renders the provisions of clause 63.05 inapplicable. In other words, the implication is that even though a use commenced lawfully under a permit, once it has been going for 15 years, the conditions of the permit can be ignored because an existing use right is established under the alternative provision of clause 63.11.

This cannot be right. It would make a mockery of the whole scheme of the Planning and Environment Act 1987 which provides that planning permits granted under a planning scheme and in accordance with the Act are a key means of regulating the use and development of land in Victoria.

Clearly, there will be circumstances where a use has commenced lawfully under a permit but, over time, the use has expanded beyond what is allowed under the permit or has transformed into a different use. In those cases, the establishment of existing use rights may depend on either or both the first and fourth dot points of clause 63.01, depending on the characterisation of the use or uses. However, unless there is a reason for needing to rely upon clause 63.11 (15 years continuous use) in preference to the first dot point (the use was lawfully carried out immediately before the approval date), I do not consider reliance should necessarily be placed on clause 63.11 and the fourth dot point rather than the first dot point of clause 63.01 or, as in this case, on an existing valid permit.

1. The council submits that any rights established under clause 63.11 must be read subject to clause 63.05. This does not mean that clause 63.05 takes precedent over clause 63.11 which appears to be what the council is submitting. Rather as stated in Seers, it is preferable to rely upon a use lawfully existing prior to the approval date of the current planning scheme however if there is a need then clause 63.11 can be relied upon.
2. PAC submits that the use of the land for the purpose of an 'airport has never been prohibited'. It has lawfully been permitted as evidenced by the permits and the previous determinations of the Minister, the tribunals and the panel.
3. PAC relies therefore upon the provisions of clause 63.11 in relation to proof of continuous use for 15 years. PAC states that for more than 25 years, it has been operating at the Tyabb airfield on a Sunday between the hours of 9.30am and 10.30am. During that time there has not been any request to cease the use nor has there been any court or tribunal findings that PAC is in breach of its permits.
4. In considering an application to amend plans under Permit P17/1738.01 which allows for the development of a maintenance facility building to the south-eastern corner of the east-west runway, the council's delegate report noted:

It is important to recognise that the local planning context was significantly different when the airfield was originally established in 1965. When Tyabb Airfield was initially approved in the mid 1960's it was considered a small, local facility and the limited range of conditions imposed demonstrate that only a very basic level of planning control was considered necessary. Today, Tyabb Airfield functions more broadly as a General Aviation facility, supporting primarily recreational use but catering for a diverse mix of aviation uses including a flight school, charters, engineering services for aircraft, the restoration and maintenance of historic aircraft, and support for emergency-services. It also hosts the biennial Tyabb air show.

It is clear that today the use of the airfield has since evolved and is very different to what is[t] was in 1965. Given the evident increase in intensity and diversity of activity occurring on the land, and the lack of additional regulation, Council officers argue that any future development must be considered cohesively and in conjunction with the use and future development of the site as a whole. This argument is supported by the very purpose of the Special Use Zone Schedule 3 (SUZ3); to provide for the coordinated use and development of land in the vicinity of the Tyabb Airfield. Clause 65.01 of the Planning Scheme (Approval of an Application or Plan) also requires that before deciding on an application the Responsible Authority must consider as appropriate and amongst other things, the orderly planning of the area and the effect on the amenity of the area from both a use and development perspective.

1. PAC in its submissions to the Tribunal provided details of past history and encouraged the Tribunal in making the requested declaration, to consider in the present circumstances the characterisation of the use being carried out on the subject land. Certainly, the first three permits recognise that the subject land is an authorised landing ground. It is described by PAC as use of the subject land as an 'airport' as it consists of various components that include the taking off and landing of aircraft, a flying school or pilot training, commercial and charter operations and associated aero club activities/purposes.
2. The council submits this characterisation is not necessary as making such findings would enlarge the declaration. The consideration of the characterisation of the use beyond that of an authorised landing ground goes beyond the declaration that has been requested. The council submits the declaration application is limited to what has been requested, namely that PAC:

...has existing use rights pursuant to section 6 of the Planning and Environment Act 1987 (Vic) and the Mornington Peninsula Planning Scheme to use the authorised landing ground at the subject land between 9.30am and 10.30an on Sundays for the purposes of aircraft departures and landings.

1. PAC simply notes the incongruity of the remarkable suggestion that use for the purpose of an "airfield", "authorised landing ground", "flying school" or other constituent/ancillary component of use for the purpose of an "airport" is prohibited within the SUZ3. PAC submits, the undisputed facts of the actual use of Tyabb airfield over several decades establishes use of the airfield, at all relevant times, for the purpose of an "airport" pursuant to the permits.
2. In part the council seeking to limit the declaration application is due to its serving on PAC on 29 May 2019, that is nine days after PAC lodged the application for declaration, a letter with 'directions to cease'. Council acknowledges this 'directions to cease' is not effective in relation to the matters the subject of the declaration.
3. Currently there is a proposed Amendment C233 to the Scheme. This amendment was submitted to the Department of Environment Land Water and Planning (DELWP) on 5 March 2020.The amendment is awaiting a decision by the Minister for Planning.
4. The amendment affects the land within SUZ3 and proposes a Design and Development Overlay Schedule 28 - Tyabb Airfield Environs. The amendment proposes:
   • To correct current anomalies in the SUZ3 provisions, which prevent the consideration of applications for the use of the land as an airfield, for pilot training and other airfield related uses that are not related to the transport of goods and passengers;
   • To introduce appropriate planning scheme provisions to guide and manage land use and development at the Tyabb Airfield and on surrounding land in accordance with the strategic directions of the Planning Policy Framework and the adopted Tyabb Airfield Precinct Plan 2017.

1. It appears from the extract above of the Council Officer's report to amend plans under Permit P17/1738.01 that the council has a clear view of what has occurred over a long period of time in relation to the Tyabb airfield. For the purposes of this declaration application, I do not consider it necessary to characterise the use as sought by PAC that I expect will be the subject of discussion in future proceedings.
2. For the purposes of this declaration application the issues are relatively narrow. There are three permits that allow the taking off and landing of aircraft at the Tyabb airfield. This permitted use under the three permits contains a restriction on the use in a condition in each permit referred to as the 'church hour' condition.
3. It has been acknowledged by PAC and not disputed by the council that PAC has been breaching the 'church hour' condition for in excess of 15 years without being called to account for the breach.
4. I find in the circumstances of this application; PAC has established existing use rights pursuant to clause 63.11 for a period of 15 years. It is the efflux of time, the continued breach of the conditions, and that the underlying protection of the conditions, that is the operation of All Saints Church has not existed since 1978.
5. In the terms of clause 63.11, an existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period. In the present case the permits in place indicate the use was being lawfully carried out, but for the 15 years prior to the lodging of the application for declaration, the 'church hour' condition on the three relevant permits were being breached. PAC indicates that the conditions have in fact been breached for at least 25 years which would go back to 1994 at which time the All Saints Church was not operating as a church.
6. The other hurdle to establishing existing use rights referred to in clause 63.11 is that unless either:
   • At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
   • During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.
7. Whilst the council has now served a letter directing operations to cease, the council acknowledges that this was served after the lodging of the declaration proceedings with the Tribunal. Therefore, for the purposes of clause 63.11, for the time before or after the commencement of the 15 year period, the use has not been held to be unlawful by a court or the tribunal. Nor has there been a clear and unambiguous written direction by the council for the use to cease.
8. I make the following declaration:

The Peninsula Aero Club has existing use rights for the continued use of the 'authorised landing ground' and 'aircraft landing ground' at the subject land (Tyabb airfield) between the hours of 9:30am and 10:30am on Sundays for the purposes of aircraft departures and landings.

SHOULD THE RELEVANT CONDITION IN EACH PERMIT BE DELETED?

1. PAC made application on 5 December 2018 under section 72 of the PE Act to delete the 'church hour' restrictions from the 1965, 1972 and 1991 permits.
2. Whilst there was a recommendation to approve the request, there was consideration that additional conditions should be added with the substitution of the 'church hour' restriction to prohibition of the use of Tyabb airfield between '... sunset Saturday and 9.00am Sunday' and the requirement for the entering into of a section 173 agreement requiring PAC to amongst other things submit a master plan and noise management plan under which the use of the Tyabb airfield would be regulated.
3. Not surprisingly, PAC withdrew the applications and applied under the secondary consent provision of section 149 (1)(a) of the PE Act for the conditions to be deleted from each permit to allow for ongoing and open-ended consent.
4. On 10 December 2019, the council refused the applications for secondary consent. In refusing, council officers considered it would be more appropriate to apply under section 72 of the PE Act to amend the permits and allow for all relevant considerations to be assessed including the ability to give notice. In respect to this view, the council referred to the statement by the Tribunal in the Tyabb & District Ratepayers' decision which approved the inclusion of the secondary consent phrase in each of the conditions:

The primary permission given by each of these permits is to use the land as an airfield, or as is put, an authorised landing ground. The conditions work to control how that use will then operate, i.e. they set boundaries or limits on the use. The amendments do not change these boundaries. In fact, the amendments do not change the operation of these conditions at all. What the amendments do is to afford the PAC an opportunity to apply for variations to those limits from time to time, for whatever reason that it might feel is justified.

1. A secondary consent request does not attract third party participation or rights of review. Changes can be quite substantial provided the criteria in relation to secondary consent is considered. The criteria for determining whether to grant secondary consent can be found in Westpoint Corporation Pty Ltd v Moreland CC[7]:
   • it does not result in a transformation.
   • It does not authorise something for which primary consent is required under the planning scheme.
   • It is of no consequence having regard to the purpose of the planning control under which the permit was granted.
   • It is not contrary to a specific requirement as distinct from an authorization within the permit, which itself cannot be altered by consent.
2. PAC submits, the 'church hour' condition is redundant. Removing the condition in each of the three permits would not result in a substantial change to what is otherwise allowed. As the conditions have been breached for a period in excess of 15 years, the deletion of the conditions would not result in any change in the conduct of flying operations during the 'church hour'. In continuing to do what has been occurring for over 15 years would not change the existing amenity of the area.
3. Whilst there was some agreement that in granting secondary consent it would not result in a transformation, nor does it authorise something for which primary consent is required, the council submitted, it does not comply with the third and fourth dot points in Westpoint. While the permit conditions contain the ability for secondary consent to be granted, as noted above, the nature of the request is such that, if consent is granted, it will indefinitely and permanently remove the effect of the Sunday morning flying curfew conditions contained within these permits. This is not appropriate for consideration under secondary consent. The council also submits that amending by secondary consent could have a significant impact on the amenity of the area.
4. It is difficult to see that there are or have been any amenity impacts as it is understood that aircraft having been taking off and landing during the one-hour period on a Sunday morning for the last 25 years. There was no indication by the council that there had been complaints and even if there has been, there was no indication by the council that in its capacity as the enforcer of the planning scheme and seeking compliance of permit conditions, it had taken any steps to ensure that the conditions were met.
5. The council referred to the Tyabb & District Ratepayers' decision in support of the retention of the condition and referred to the concerns expressed in that matter regarding impacts on the amenity of the area. The relevant 'church hour' condition was not highlighted within the decision, rather the concerns expressed appeared to relate more to other conditions which would allow for larger aircraft to take off and land at the airfield.
6. PAC submits, the request was, and is, capable of being the subject of the exercise of secondary consent. PAC submits the granting of the request would be of no consequence having regard to the purpose of the planning control under which the permit was granted; and would not be contrary to a specific requirement as distinct from an authorization within the permits, which itself cannot be altered by consent, in circumstances in which the respective conditions provide for such consent (as acknowledged in the delegate's reports).
7. Mr Vevers in his evidence stated that typically flights conducted by PAC's flying school commence at 9am on Sundays. If the 'church hour' is imposed, in his view there will be a greater intensity of take-offs and landings with take-offs likely to commence at 7.30am to enable flights to return by 9.30am. He also indicated that if pilots were unable to land prior to 9.30am then aircraft could fly in a holding pattern over the township. Mr Vevers indicated that as there are no air traffic controllers at Tyabb airfield, pilots are required to self-regulate their movements using the Common Traffic Area Frequency (CTAF). If required to maintain a holding pattern, this could lead to low fuel reserves which in turn could lead to may-day calls due to less than planned fixed fuel reserves of 30/20 minutes for small aeroplanes and trigger a full emergency response.
8. As found above the 'church hour' condition has been breached for over 15 years, the underlying reason for the imposition of the condition has ceased to operate for a considerable period of time resulting in the condition being redundant. Even if there has been complaints regarding impacts on the amenity of the area there is no indication that during the last 15 years the council has in anyway attempted to enforce the requirements of the condition. It is difficult to see what argument a third party could put.
9. The condition relates specifically to a one hour period on a Sunday. Imposing the condition as an amenity condition could as indicated by Mr Vevers, lead to an unforeseen increased impact on the amenity of the area, rather than deleting the condition which would acknowledge the existing conditions.
10. In concluding above that PAC has existing use rights to take off and land at the airfield during 9.30am and 10.30am on a Sunday leads to a conclusion that retaining the condition in each of the three permits would be incongruous. I see no reason having reached the above conclusion in the declaration application that PAC should be required to go through the process of seeking to amend each permit to delete the 'church hour' condition merely to allow for third parties to participate in such an application. Such a process is in the current circumstances unnecessary.
11. I determine that pursuant to section 149 (1)(a) of the PE Act the decision of the responsible authority is set aside. Condition 2 in Permit P65/0002.09; condition 2 in Permit P72/0268.09; and condition 6 in Permit P91/7308.1 should be deleted.

[1] 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 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] P65/0002.09 - condition 2; P72/0268.09 - condition 2; P91/7308.1 - condition 6

[3] Turbulence over Tyabb - A History of airports and aviation in the Shire of Hastings, DM Thompson, 1985; Letter to Thompson - 3 Aug 1964; Letter Department of Civil Aviation Aug 1964; Minister for Local Governments decision - 1967; DCA letter to Honourable P Lynch, May 1971; PAC's submission to Minister for Planning - Nov 1982; Department of Aviation Letter to PAC - 20 Sep 1982; Shire's submission to Panel - 1983; Vowell Air Services Brochure; Panel Report Amendment Co 8 1983; AAT Decision 1991

[5] Tyabb & District Ratepayer's Business & Environment Group Inc v Mornington Peninsula SC [2012] VCAT 1475

[6] (Red Dot) [2016] VCAT 1198

[7] [2005] VCAT 1049