Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works, other than a requirement in the Public Conservation and Resource Zone, does not apply to:

This does not apply if a permit is specifically required for any of these matters.

1. Under Clause 43.01-1 a permit is required to construct a building or construct or carry out works, including a fence. Thus the specific reference to the need for a permit to construct a fence in the Heritage Overlay means it falls outside the general exemption from the need for a permit set out in Clause 62.02-2.
2. However Clause 62.02-2 contains no exemption for a requirement in the scheme relating to demolition or removal of a building. Therefore, it has no application to the need for a permit under the Heritage Overlay for a permit to demolish or remove a building, which includes a fence.
3. Clause 43.01-3 sets out certain classes of development where an application is exempt from third party notice and review rights.[4] This includes:
   • Demolition or removal of a fence unless the fence is identified in the schedule to this overlay.

[Tribunal emphasis] 4. There is a similar exemption for the demolition or removal of an outbuilding unless the outbuilding is identified in the schedule to the overlay. 5. The schedule to the Heritage Overlay is set out in a series of columns. The first column is headed PS Map Ref, which relates to the planning scheme map reference such as HO114. 6. The second column is headed Heritage Place. This is where the heritage place is described. In the case of HO114, it specifies:

Richmond-Henty Hotel complex, including stone wall and outbuildings, 101 Bentinck Street, Portland.

1. There are then a series of four columns that refer to various specific permit requirements under Clause 43.01-1 or exemptions from notice and review rights in Clause 43.01-3. They are headed as follows:
   • External Paint Controls Apply?
   • Internal Alteration Controls Apply?
   • Tree Controls Apply?
   • Outbuildings or fences which are not exempt under Clause 43.01-3
2. There are then a further series of four columns that relate to other requirements in the Heritage Overlay, for example Clause 43.01-5 relating to use of a heritage place.
3. It is relevant to note the language used in each provision in the Heritage Overlay that relates to one of the columns. Each provision includes the words identified in the schedule to this overlay. Thus:
   • The column headed External Paint Controls Apply? relates to the requirement in Clause 43.01-1 that a permit is required to:
     • Externally paint a building if the schedule to this overlay identifies the heritage place as one where external paint controls apply.
   • The column headed Internal Alteration Controls Apply? relates to the requirement in Clause 43.01-1 that a permit is required to:
     • Internally alter a building if the schedule to this overlay identifies the heritage place as one where internal alteration controls apply.
   • The column headed Tree Controls Apply? relates to the provision in Clause 43.01-1 that requires a permit to:
     • Remove, destroy or lop tree if the schedule to this overlay identifies the heritage place as one where tree controls apply...
   • The column headed Outbuildings or fences which are not exempt under Clause 43.01-3 relates to the exemptions from third party notice and review rights set out in Clause 43.01-3 as follows:
     • Demolition or removal of an outbuilding (including a carport, garage, pergola, verandah, deck, or similar structure) unless the outbuilding is identified in the schedule to this overlay.
     • Demolition or removal of a fence unless the fence is identified in the schedule to this overlay.
4. Each of these provisions refers to a heritage place identified in the schedule to the overlay. The specific provision relating to demolition or removal of a fence unless the fence is identified in the schedule to this overlay is identical to the words used in Clause 92.04 - unless the fence is identified in the schedule to the Heritage Overlay.
5. These words relating to identification in the schedule to the overlay need to be contrasted to the introductory words used in Clause 43.01 of the Heritage Overlay, which describe the scope of the overlay. They provide as follows:

The requirements of this overlay apply to heritage places specified in the schedule to this overlay. A heritage place includes both the listed item and its associated land... [Tribunal emphasis].

1. I consider that the difference in the language used to describe the scope of the overlay, which uses the word specified in the overlay, compared to the control provisions, which use the word identified in the overlay, must be ascribed some meaning. I find that this difference in language results in the following interpretation of the provisions where it is used.
2. Where the planning scheme in Clauses 43.01-1, 43.01-3 and Clause 92.04 uses the words identified in the schedule to the overlay it means identified in one of the relevant columns in the schedule that describe a circumstance or pose a question relevant to the application or otherwise of specific requirements relating to use or development or the need for a permit, such as the column headed Outbuildings or fences which are not exempt under Clause 43.01-3.
3. On this basis, I find that although the heritage place for HO114 is described as including the stone wall and outbuildings at 101 Bentinck Street, Portland, this means the stone wall is specified in the schedule for the purpose of defining the scope of the overlay: it does not mean the stone wall is identified in the schedule to the overlay. It would only be identified in the schedule to the overlay if the word Yes was included under this column heading alongside the relevant heritage place. In the case of HO114, the word No appears under this heading. This means that it is not a fence identified in the schedule to the overlay.
4. Therefore, I find that if the stone wall is a fence, it would fall within the ambit of the VicSmart provisions pursuant to Clause 92.04. In other words, it is not a fence identified in the schedule to the Heritage Overlay.
5. Consequently, I find that as a VicSmart application, the permit application for demolition of the stone wall would have been exempt from third party notice and review rights pursuant to Clause 91.

1. The next question that arises is whether the stone wall in question is a fence. This raises the issue of whether the meaning of 'a fence' or the characterisation of something as 'a fence' for the purpose of the exemption from third party notice and review rights under the Heritage Overlay and the VicSmart provisions is the same in all cases or whether it depends on the facts and circumstances of the case.
2. In the case of Wedderburn Korong Vale RSL Sub-Branch Inc v Loddon SC[5], the Tribunal considered whether a fence forming a part of a memorial was properly characterised as a fence for the purposes of Clause 43.01-3. The fence and associated gates were erected at the Memorial Gardens at Wedderburn to perpetuate the memory, firstly of Australia's first Victoria Cross winner (Captain Albert Jacka VC) and to immortalise the victims of WW2. The Tribunal found that the fence and gate should not be regarded as separate items or as utilitarian items intended to mark a boundary or give access to a property. Rather, their design and purpose was ceremonial. In themselves they acted as a memorial and were intended to further compliment the memorial statue within the park.[6] The Tribunal concluded that:

[17] For these reasons, I find that the fence and gates surrounding the Soldiers Memorial Park at Wedderburn must be characterised together as a memorial, not separately as gates or as a fence. I find that the memorial requires a permit for demolition under the Heritage Overlay. I further find that demolition of this memorial is not exempt from notice and review pursuant to clause 43.01-3.

1. The circumstances in this case are different. The stone wall was not part of some integrated ensemble of structures, which together placed them in a different category such as a memorial. In terms of purpose, the stone wall was, and at all times since its construction had been, a wall that marked a boundary.
2. Nevertheless, what the Wedderburn case stands for is that the facts and circumstances of each case must be considered in order to determine whether the structure in question can be appropriately characterised as a fence for the purposes of the planning scheme or whether it is more appropriately characterised in some other way. In the Wedderburn case, the important distinguishing factor was that the purpose of the fence and gates was to act as a memorial, rather than simply to define a boundary. In determining how to characterise the structure in question, it is therefore relevant to consider what the purpose of the structure was or may be.
3. The dictionary definitions of 'fence' are as follows:

1 a barrier or railing or other upright structure enclosing an area of ground, esp. to prevent or control access.

(The Australian Concise Oxford Dictionary, 4th Edition, 2007)

1 . an enclosure or barrier, usually of wire or wood, as around or along a field, garden, etc.

1. The dictionary definitions of 'wall' are as follows:

1 a a continuous and usu. vertical structure of usu. brick or stone, having little width in proportion to its length and height and esp. enclosing, protecting, or dividing a space or supporting a roof. b the surface of a wall, esp. inside a room (hung the picture on the wall).

2 anything like a wall in appearance or effect, esp.: a the steep side of a mountain. b a protection or obstacle (a wall of steel bayonets; a wall of indifference).

(The Australian Concise Oxford Dictionary, 4th Edition, 2007)

1. an upright work or structure of stone, brick, or similar material, serving for enclosure, division, support, protection, etc., as one of the upright enclosing sides of a building or a room, or a solid fence of masonry.

2. (usu.pl) a rampart raised for defensive purposes.

3. anything which resembles or suggests a wall; a wall of prejudice.

4. a wall-like enclosing part, thing, mass, etc.; a wall of fire; a wall of troops.

6. the external layer of structural material surrounding an object, as an organ of the body or a plant or animal cell.

1. Under the Planning and Environment Act 1987, the definition of building separately mentions fences and walls as being included in the definition.
2. The definition of fence in the Fences Act 1968[7] is:

fence means a structure, ditch or embankment, or edge or similar vegetative barrier, that encloses or bounds land, and -

(i) any gate, cattle grid or apparatus necessary for the operation of the fence;

(ii) any foundation or support built solely for the support and maintenance of the fence;

(ii) any wall that is part of a house, garage or other building;

1. It can be seen from the dictionary definitions of fence and wall that each are structures that can serve a similar function to enclose, divide or protect an area. The main difference in the definitions is the method of construction - a fence is a more lightweight structure, whereas a wall is of a much more solid construction. A wall can also serve other wider purposes than a fence - for example, wall of a building, or rampart or to retain water or earth. It is a term that can apply to many things that the term 'fence' could not be applied to.
2. It is worth noting that neither of the dictionary definitions of the terms includes the other. In other words, a fence is not defined to include a wall or vice versa. A wall and a fence may serve a similar function in terms of enclosing an area to prevent or control access but their physical characteristics are what distinguishes them.
3. Whilst the Fences Act 1968 serves a different purpose to the Planning and Environment Act 1987 and planning schemes, the distinguishing characteristic of what constitutes a fence for the purpose of that Act is that it encloses or bounds land. In the context of the Fences Act 1968, both a fence and a wall would be a structure that encloses or bounds land. Specific types of walls that serve a different purpose, such as a retaining wall or a wall that is part of a house, garage or other building, are excluded from the definition of fence.
4. The definition of fence in the Fences Act 1968 lends weight to my conclusion, based on the dictionary definitions of 'fence' and 'wall', that for the purposes of the planning scheme, use of the word fence refers to a structure whose purpose is to enclose, divide, bound or protect an area of land. It would include a wall which had this purpose, but it would not include a wall which had a different purpose, for example a retaining wall or the wall of a building or other structure.
5. Elsewhere in the planning scheme there are many references to walls, usually in a context of referring to walls of buildings or walls on boundaries. Where the term 'wall' is used in these instances, it will take its meaning from the context in which it is used. However, in my view, in such context it will have a different meaning to the term fence'.
6. Although the dictionary definitions of fence and wall include a common purpose of enclosing, dividing, protecting or bounding an area, the distinction in the definitions seems to depend more on method of construction with a wall being described as a solid structure of brick or stone. However, this is not a defining distinction because common experience reveals that there are many structures that would, in common parlance, be described as a brick fence, rather than as a wall. Equally, I note that the definition of wall in the Macquarie dictionary includes a solid fence of masonry.
7. I therefore find that no weight can be placed on materials or method of construction to conclude that a wall cannot be a fence. Rather, I find that a wall can be a fence when its primary purpose is to enclose, divide, protect or bound an area of land.
8. In the present case, I find that the purpose of the stone wall was to mark a boundary. I therefore find that it was a fence for the purpose of the planning scheme, in particular Clauses 43.01-1, 43.01-3, 92.04 and 93.07-2.
9. As a result, I therefore find that the stone wall was a fence in respect of which a VicSmart application could be made.

DID THE DECISION OF THE RESPONSIBLE AUTHORITY EXHIBIT WEDNESBURY UNREASONABLENESS?

What standard of decision making is required of a responsible authority?

1. According to the Department's website, VicSmart is intended to be a simpler planning permit process. It offers a streamlined assessment process for straightforward planning permit applications. By removing certain categories of use and development from the normal planning scheme zone, overlay and particular provision controls and exempting them from third party notice and review rights, the VicSmart provisions are intended to speed up the decision-making process.
2. However, it should not be assumed by applicants or responsible authorities that the VicSmart provisions are a licence to approve anything applied for that falls within a VicSmart application category. The same standards of decision-making are required as for any application that is subject to the scrutiny that notice and review rights allow and invite. Exemption from notice and review provisions does not mean exemption from the rigours of properly applying decision guidelines or the requirement for the decision-maker to act lawfully. Decisions made under the VicSmart provisions are just as much required to meet the standards of lawfulness as any other decisions. They are equally open to scrutiny from a Wednesbury unreasonableness perspective. Indeed, in the absence of review rights on the merits, a declaration may be the only means of challenging a decision that is outside jurisdiction or so manifestly unreasonable as to be unlawful. As the High Court has said: "Every statutory discretion, however broad, is constrained by law."[8]
3. In Minister for Immigration and Citizenship v Li, the High Court considered the concept of Wednesbury unreasonableness in Australian law. On this issue, French CJ said:[9]

[25] As Professor Galligan wrote in 1986 in Discretionary Powers: A Legal Study of Official Discretion, the requirement that officials exercising discretion comply with the canons of rationality means, inter alia, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power. Those canons also attract requirements of impartiality and "a certain continuity and consistency in making decisions." They were reflected in the powers of the English Court of Chancery to control public bodies "if they proceed to exercise their powers in an unreasonable manner; whether induced to do so from improper motives or from error of judgment." They were acknowledged in the earliest years of this Court.

[26] The rationality required by "the rules of reason" is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.

[27] In Wednesbury Corporation, Lord Greene MR observed that the word "unreasonable" in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:

"If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'."

That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.

[28] Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider "they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it." In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

1. The High Court made the point that the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgement with which a Court disagrees even though that judgement is rationally open to the decision-maker.[10]
2. This is essentially the argument put by the Council. Mr Pridgeon submitted that when the VicSmart delegate report is considered, all relevant factors under the Clause 93.07-2 decision guidelines were considered.
3. However, whilst the Council says that all the boxes were ticked, this does not necessarily mean that the decision guidelines were properly considered. Their consideration must be reasonable having regard to the meaning of reasonableness as enunciated by the High Court in _Li'_s case.
4. When examining whether the Council's exercise of discretion was reasonable in this context, it is relevant to have regard to all the facts and circumstances of the case and the way in which it was handled by the Council. These are different considerations, which arise under an exercise of the Tribunal's original jurisdiction, compared to matters that must be considered when the Tribunal exercises its review jurisdiction. In a review application, it stands in the shoes of the original decision maker and makes a decision de novo. It is not concerned with the procedural aspects of how the original decision maker made its decision. However, when exercising what is, in effect, judicial review in an application for declaration under section 149B, the Tribunal is concerned with the way in which the responsible authority made its decision, rather than reviewing the merits of the decision.
5. In this respect, I have had regard to the communications and reports on the Council's file that were produced in evidence by the applicant consequent to my order that the Council must make available its file for inspection.
6. In my view, a consideration of this material and the VicSmart delegate report leads me to the conclusion that all relevant matters were not properly considered by the Council acting as responsible authority and that irrelevant matters were considered. I have had regard to the following matters in the course of reaching this conclusion:
   • The safety concerns about the wall were spurious and failed to provide an adequate need for the wall to be demolished.
   • The assessment of the heritage significance of the wall was misguided and failed to give proper weight to evidence and to the opinion of the Council's heritage adviser.
   • There was a manifest objective on the part of the owner to get rid of the wall for reasons that were not relevant to consider under a VicSmart assessment.
7. Before considering these matters, it is first appropriate to set out the background leading to the VicSmart application and the Council's decision, the heritage and other evidence available to the Council and the reasons set out in the delegate report for the decision to grant a permit to demolish the bluestone wall. It is then appropriate to set out the decision guidelines which must be considered when a responsible authority makes a decision in order to ascertain what matters are relevant to consider and what matters are irrelevant to consider.

Background to the decision made by the Council

1. On 22 April 2015, "someone"[11] reported that the bluestone wall at the front of Henty Hotel was starting to lean out and was in need of repair. Adam Manson, building inspector, Glenelg Shire Council, undertook a site inspection and noted that:

"Wall has got some movement, but is not at risk of falling over without notice. I would recommend that Council monitor the wall every three months. I will also make...owner aware of this."

1. On 28 April 2015, "someone" came to the counter enquiring if the bluestone wall could be removed. They were given some planning and building application forms and advised to seek advice from a structural engineer.
2. On 3 August 2015, Adam Manson undertook a further site inspection and noted:

"I have now inspected the wall on 2 occasions in the last 4 months. I can see maybe some small movements but it's very had to tell. There are areas of the wall that the mortar is dropping away and gaps are evident. I would recommend that the owner engage an engineer to monitor the wall and produce a report with recommendations. I feel no need for Council's building unit to issue a DN or an EO as the wall may have been in this state for years and does not pose an immediate risk to life, property or building. I will call owner and let him know. No further action to be taken."

1. On 7 September 2015, Stephen Turner, an engineer of PM Design Group, submitted a report to the Council on behalf of the owner on the structural adequacy of the stone wall. It describes the wall in the following terms:

RE: Existing bluestone wall, Bentick (sic) Street, Portland

...The bluestone wall is nominally 425mm thick and nominally 2.34 metres high. It runs along the street frontage for 46 metres. It returns at 90 degrees and runs along the adjoining property boundary for approximately 5 metres.

The wall has a lean outwards towards the street by 145mm in one location of height.

We have carried out a structural assessment of the wall and found that the wall is NOT structural adequate and is at risk of collapse at any time.

Therefore the wall should be barricaded off immediately to protect the public.

The wall should be demolished. Application should be made through the council for approval to do so.

1. This report was sent to Daniel Pech, development liaison co-ordinator, at Glenelg Shire Council.
2. On 9 September 2015, an emergency building order was issued by the Council requiring public access within the proximity of the bluestone wall be restricted by installing integrity security fencing.
3. On 9 September 2015, Daniel Pech sent a copy of the PM Design report to Kate Paterson of Flight Path Architects, who is the Council's heritage adviser. The purpose of the briefing was to "inform your pre-application advice for the proposed deconstruction of the stonewall at 110 [sic] Bentinck Street, Portland".
4. On 11 September 2015, the temporary fencing having been provided around the stone wall, the emergency order was cancelled.
5. On 10 September 2015, Kate Paterson provided the Council with a heritage adviser report. This report identifies the heritage value of the stone wall recorded in the 1981 Portland Urban Conservation Study, which states:

The stone walls surrounding the Richmond Henty Hotel and the stone outbuilding at the rear of the Hotel are all that survive of the original Stephen Henty residence and as such, are an important historical feature of Portland.

While not the first fence bounding the Bentinck Street frontage of the original Henty residence (originally timber picket), the bluestone wall appears to be of mid- to late 19th Century origin. It appears that some of the wall has been reconstructed or altered, but the details of this are not apparent without inspection and have not been provided....

...From Flight Path's experience and this desk top analysis, it is evident that the wall is not beyond repair and that the lean can be repaired and reconstructed. It has been suggested that the owner wishes to retain only a sample of the wall if they have to, however this will have a substantial impact on the presentation and significance of the place.

Demolition of part or the entire wall would have varying impact on the identified significance of the place, depending on the heritage integrity. In line with the Decision Guidelines of Section 43.01-4 of the Planning Scheme for a place of local heritage value, the retention, stabilisation and conservation of the wall should be encouraged and is the preferred outcome. The wall is a prominent feature of HO114 and HO156 and is associated with the story of development of Portland and, particularly, the pre-eminent Henty family.

1. Ms Paterson then identifies various techniques commonly used for rectification and stabilising stone walls and concludes:

Subject to inspection of the wall to confirm is (sic) heritage integrity and value, it is recommended that, as the wall forms part of a significant Local Heritage Place, it is retained, stabilised and conserved.

A suitably qualified engineer is consulted to advise on appropriate method of remediation and cost estimates to undertake the work.

That, if possible, an inspection of the wall be made by the Heritage Advisor at the next visit on the 28th September 2015, prior to approval of any demolition works.

1. On 30 September 2015, Kate Paterson provides a further heritage adviser report following an inspection of the wall. She expands on the heritage significance of the wall and then comments on its structural integrity. She is critical of the PM Design report and notes that the report does not indicate the likely cause of the movement, nor give recommendations for addressing the movement other than complete demolition of the wall. She states that:

...From experience, the wall does not appear to be beyond reasonable repair...

...As previously advised, and subject to professional engineering advice on the cause of the wall's rotation from engineers experienced in heritage fabric, and their advice on the best method for the type of construction of this wall, there are many techniques commonly used for rectification and stabilisation of rotating stone walls, which may include or a combination of the following:

• Removing soil behind wall
• Install base wall drainage
• Assessment and reconstruction of footings or underpinning
• Installation of temporary props/rams to stabilise and realign existing structure
• Reconstruction of unstable sections including piers reusing original stone
• Repointing with appropriate mortar
• Ensuring top of wall has an appropriately structured capping to shed water

Physical inspection confirms the heritage integrity and value of the wall and it is recommended that it is retained, stabilised and conserved in consultation with suitably qualified heritage engineering advice.

If the existing wall cannot be realigned and conserved insitu (sic), then it is recommended that it is recorded, deconstructed and reconstructed using the existing stone to match the original form and extent.

1. This report, dated 30 September 2015, was sent by Kate Paterson to Daniel Pech on 1 October 2015, with a covering email, which stated as follows:

As you will see, it is my belief that the engineering report is inadequate and does not give substantive evidence of the wall's stability. As outlined, there are a number of options for stabilisation and conservation, including partial rebuilding if required.

1. Kate Paterson sent a further email to Daniel Pech on 27 October 2015, which stated as follows:

Further to our conversation yesterday, I am writing to confirm our discussion regarding the proposed demolition of the bluestone wall at the Richmond Henty Hotel.

The proposal to retain only two of the eight courses of stonework is not an acceptable outcome from a heritage perspective; the heritage value of the wall will be severely compromised with the loss of most of the heritage fabric.

As per my previous referral advice, I recommend that the stability of the wall is assessed accurately by an engineer with appropriate heritage experience and, following this, that one of the suggested conservation actions be undertaken to stabilise and/or reconstruct the wall as required. I confirm that appropriate works would be eligible for Council's Heritage Grant.

1. On 26 November 2015, Daniel Pech sent an email to the owner of the Richmond-Henty Hotel/Motel providing advice about "the plan of attack we discussed (a while ago now) and again on Tuesday to help you organise the work to be completed leading up to your planning permit application." The advice sets out a number of steps. With respect to step 1, Mr Pech advises:

Council's Heritage advisor has provided options for you to consider and exhaust as part of your optioneering for works to repair the wall. The quote you have sourced only covers off one of these options (deconstruction and full reconstruction and partial reconstruction).

If you wish to peruse (sic) an alternative option that does not involve retaining the wall in its entirety as per Council's Heritage Advisors (sic) advice, you must be able to demonstrate/produce evidence that all other options have been exhausted and are considered unviable.

The following items are listed in the Heritage Advisors (sic) pre-application advice (dated 30 September 2015) as options to be explored (note: this was not intended to be an exhaustive list):

• Removing soil behind wall. (not investigated)
• Install base wall drainage. (not investigated)
• Assessment and reconstruction of footings or underpinning. (partially investigated)
• Installation of temporary props/rams to stabilise and realign existing structure. (not investigated)
• Reconstruction of unstable sections including gpiers reusing original stone. (not investigated)
• Repointing with appropriate mortar. (not investigated)
• Ensuring top of wall has an appropriately structured capping to shed water. (not investigated)

The cost of works represented in each option are wide ranging and give you flexibility from a financial perspective. The selected option will need to be deemed suitable by a qualified structural engineer with experience in heritage fabric.

1. With respect to further steps 4 and 5, Mr Pech says:

If you intend to refer an option that deviates from the Heritage Advisors (sic) advice (ie. retaining the wall), you will need to provide evidence that you have exhausted the options listed by the Heritage Advisor and evidence which demonstrates that they are unviable.

Alternative options will require a more robust justification compared with the options advised of by Council's Heritage Advisor (ie. retaining the wall).

In any event, I suggest you forge ahead with your preferred option, as some of the matters you need to address cannot be done without the work which is required as part of the planning permit application report (see below).

I would suggest you engage a planning consultant at this stage to give you some additional independent advice about the planning pathways you should pursue.

I have previously provided you with a list of heritage planning consultants. I strongly recommend you engage a heritage planning consultant, as they will make the process more expeditious and will help you craft a planning rationale around your selected/preferred option (beyond what assistance I can provide).

1. Also on 26 November 2015, Daniel Pech sent an email to Greg Burgoyne, chief executive officer of Glenelg Shire Council, updating him on the Richmond-Henty Hotel complex bluestone wall in which he states:

To date, we have sourced heritage advice, options for quotes and tradesman/professionals, drawn up potential options onto plans and have advised of planning pathways which place lesser weight on heritage considerations and remove requirements for public notice and third party appeal.

1. On 15 December 2015, a VicSmart application accompanied by a planning report by Bernie Wilder and Associates, dated 14 December 2015, was made to the Council. The report placed considerable emphasis on the safety of the stone wall and states that "collapse of the wall is imminent". The report also notes that:

The wall in its current location and condition presents an eyesore and constitutes commercial blight and is having a serious adverse effect on tourism and commercial viability of the owner's business.

The wall presents a commercial issue for exposure of the business to the street. The owner has plans to better present the business and make entry more inviting. Demolition of the wall in part is proposed by leaving 2 courses of the original wall and storing the stone for future use in some interpretive work. Capping of the remaining wall is proposed to prevent further deterioration as is repointing with limes mortar as is reinstalling the 2 capitals as shown on the plans.

1. There is a so-called "swat analysis" of various options, which are all dismissed for various reasons except the option to demolish the wall as proposed. Apart from the PM Design report no other expert or technical assessment is provided to support the rejection of options to repair, stabilise or rebuild the wall as recommended by the heritage adviser, Kate Paterson, in her reports. No robust justification compared with the options advised by the Council's heritage adviser of retaining the wall or to demonstrate they are unviable, as advised by Daniel Pech in his email of 26 November 2015 is provided. The Bernie Wilder report contains nothing other than assertions.
2. One quote is provided by Graham and Julie Riley Builders, dated 23 November 2015, for costs associated with three options to completely remove and replace the wall ($72,050); remove five courses, repoint and re-cap ($27,947.85) and remove four courses, repoint and re-cap ($25,490.75).
3. It is not clear from the Bernie Wilder report which option represents the initial proposal to leave two courses of the original wall. However, this option was subsequently changed (apparently in discussion with the council officer as there is no formal amendment of the permit application on file) to provide for total demolition and no reconstruction of the wall, which was what the permit was ultimately granted for.
4. On 16 December 2015, Matthew Berry, planning manager at Glenelg Shire Council, sent an email to Kate Paterson attaching the application lodged for 101 Bentinck Street to demolish the bluestone wall. It stated:

The CEO has requested that he be able to make a decision on this by Monday (which means I need to get paperwork done by Friday).

If you are able to please provide comment on this proposal that would be great. I can send a separate email with the plans more clearly than in this report. Essentially it is to demolish and rebuild to 750mm. I don't believe there is any new information other than the planning consultants report (ie. no new engineers report), in this application.

1. This email was sent on Wednesday, 16 December 2015, but no opportunity was provided for the heritage adviser to respond because a decision was made the following day on Thursday, 17 December 2015 to issue a permit.
2. On Friday, 18 December 2015, Kate Paterson sent an email to Matthew Berry stating:

Thank you for the phone call this morning explaining the status of the above-mentioned permit application; I am sorry to hear of the outcome.

I acknowledge receipt of the planning report prepared by Bernie Wilder and Associates this week, however my position remains that the decision to demolish the bluestone wall is not founded on sound heritage practice or adequate engineering advice and has likely been made in haste.

My pre-application reports recommended that, in the first instance, accepted monitoring techniques should be used to assess the structural condition of the wall. I also recommend a number of options for rectification, conservation and reconstruction works which could be employed following the assessment and I don't feel that any of these options have been explored adequately.

I hope that Council's decision does not impede the integrity of the Heritage Advisory Service in relation to future applications for demolition applications.

1. The VicSmart delegate report dated 17 December 2015, prepared by Matthew Berry and checked by Greg Burgoyne, notes with respect to existing conditions that:

...At the time of the report temporary security fencing surrounding the wall due to concerns of collapse. At [sic] building notice was issued for this in response to an engineering report received indicating movement of the wall.

1. The report notes that the Council's appointed heritage adviser does not support the proposal, no consideration is given to the details of the heritage adviser's report recommending rectification, conservation and reconstruction, or her opinion that there is no adequate engineering advice to support demolition of the wall. There was no reference in the delegate report to the reasons for demolition except to say that "to completely remove it opens up the appearance and allows for a new modern interpretation and evolution on this site."

What matters are relevant or irrelevant in making a VicSmart decision?

1. Clause 91 limits the matters that the responsible authority may consider. It must only consider the decision guidelines specified for the relevant class of application in Clause 92 or the schedule to Clause 94. It is exempt from considering the following matters:
   • The requirements of Section 60(1)(b), (c), (e) and (f) and (1A) (b) to (h) and (j) of the Act.
   • The State Planning Policy Framework and the Local Planning Policy Framework unless the decision guidelines in Clause 93 or the schedule to Clause 95 specify otherwise.
   • The decision guidelines of the relevant zone, overlay or particular provision unless the decision guidelines in Clause 93 or the schedule to Clause 95 specify otherwise.
   • The decision guidelines in Clause 65.
2. In deciding an application for review in relation to a VicSmart application, the Tribunal is exempt from the matters specified in section 84B(2)(b) to (g) and (i) to (ja) of the Act.
3. The relevant decision guidelines under Clause 93.07-2 I find are as follows:

• The significance of the heritage place and whether the proposal will adversely affect that significance.
• Any applicable statement of significance, heritage study and any applicable conservation policy.
• Whether the proposal will adversely affect the character or appearance of the building or heritage place.
• Whether the proposal meets any relevant local heritage policy set out in the scheme.

• Whether the outbuilding to be demolished contributes to the significance, character or appearance of the building or heritage place.

• Whether the fence proposed to be demolished contributes to the significance, character and appearance of the building or heritage place.

Were the safety concerns justified or relevant?

1. I find there was clear evidence available to the Council before it made its decision that the engineering advice provided by PM Design, which was relied upon to establish that the wall was unsafe and should be demolished, was inadequate. Initial inspections by the Council officer did not reveal any concern. It was only the PM Design report that raised this concern. However, the heritage adviser advised on more than one occasion that the report was inadequate and did not justify demolition. No professional engineering advice as recommended by the heritage assessor was provided and no evidence was produced as recommended by Daniel Pech to demonstrate that the options recommended by the heritage adviser had been considered.
2. Whilst not evidence available to the Council at the time it made its decision, there was evidence given on behalf of the applicant at the hearing by Gordon Stokes and Ken MacLeod to support Kate Paterson's assessment that the engineering assessment was inadequate and to support the alternative conservation measures she recommended. Specifically, Ken MacLeod questions the calculations in the PM Design report as "counterintuitive" and Gordon Stokes notes that it failed to consider the effect of the returns on the stability of the wall and assumes incorrectly that all wall sections are freestanding. According to Ken MacLeod, who makes comments on possible strategies for structural interventions:

It is noted that the bluestone fence has endured wind loads since its construction some 100+ years ago. The calculations suggest that the wall never was competent in sustaining wind loads, as the computed overturning moment exceeds the self-weight stabilising moment. This seems somewhat counterintuitive.

The reported lean in the wall could be addressed by removing retained soil from behind the wall and adding stiffening pillars on the inside face of the wall, attached to the wall and founded on new footings. The deterioration of the mortar within the wall could be addressed by low pressure mortar injection, to re-fill the cavities within the body of the wall with lime-cement grout.

Repointing of a bluestone wall of this age is to be expected, as the probably lime based mortar will have degraded due to aging and moisture. The removal of the retained soil will assist in reducing the moisture within the lower parts of the wall, and therefore attenuate the deterioration of the remnant mortar.

1. When assessing a VicSmart application to demolish or remove a fence in a Heritage Overlay, relevant decision guidelines requires the responsible authority to consider the significance of the heritage place (in this case the stone wall[12]) and whether the proposal will adversely affect that significance. I will deal more specifically with heritage significance later, but if the heritage place, in this case the fence or wall, is to be entirely removed, it is self-evident that the demolition will adversely affect its significance.
2. In my view, it is inherent in this decision guideline that in such cases a consideration of this guideline will require consideration of whether it is possible to avoid or ameliorate the adverse effect on the significance of the heritage place that demolition or removal will have. The need for this type of assessment is canvassed in the advice given by Daniel Pech in his email dated 26 November 2015. In my view, the Council has totally failed to do this. It has given no consideration to the advice of the heritage adviser. I find that this was a relevant consideration that the Council failed to consider.
3. I further find that to the extent that the Council relied upon the advice in the PM Design report about the safely of the fence or wall as providing justification for its demolition, without the type of independent assessment by an engineer with appropriate heritage experience recommended by the heritage adviser and identified as necessary by Daniel Pech, the Council has relied upon an irrelevant consideration.
4. In any event, the matters it is open to a responsible authority to consider when assessing a VicSmart application are limited - see Clause 91 Operation and Matters to be considered. The matters to be considered do not include safety considerations or cost factors. In other circumstances they have been considered to have been relevant matters and may have legitimately been able to be taken into consideration, but not in respect of a VicSmart application. Clause 91 explicitly provides that in considering a VicSmart application, the responsible authority is exempt from considering the following the following matters:

The requirements of Section 60(1)(b), (c), (e) and (f) and (1A) (b) to (h) and (j) of the Act.

1. Thus, even if matters of safety or cost factors were relevant, they were exempt from consideration. To the extent that these matters were considered, they were irrelevant considerations.

Was there a failure to properly consider heritage significance?

1. Having regard to all the evidence, I find that the heritage significance of the wall was that it was part of a residential and commercial complex established by the pioneering Henty family during the economic flourishing of the first decades of Portland as a town and centre of a rapidly expanding agricultural area. The wall was associated with the Henty development of the site, which evolved as a large, walled enclave over a large portion of Section 4 of the township. The heritage place that is included in HO114 is only part of the Henty complex. It is the site of Stephen Henty's house, Richmond House, which became a hotel in 1879. This was demolished in 1963 and the current complex of buildings, which have been added to and remodelled over the years, was built. Only the stone wall and an outbuilding remain.[13]
2. The description of the heritage place in HO114 in the Glenelg Planning Scheme identifies the site as the Richmond-Henty Hotel complex, including stone wall and outbuildings, 101 Bentinck Street, Portland. The stone wall and outbuildings are the only extant physical fabric of the Henty complex remaining on the site. Thus it is the stone wall itself which comprised (in part) the heritage place. Therefore, it is the heritage significance of the stone wall as the heritage place that must be considered under the decision guidelines of Clause 93.07-2.
3. The heritage evidence, the heritage assessment of the heritage adviser, and the statement of significance in the 1981 Urban Conservation Study all relate to the stone wall in the context of it having been part of the larger Henty complex. Its heritage significance is entirely unrelated to whether it was the original fence surrounding Richmond House or a later construction, albeit one dating from the mid-1850s.
4. References in the Bernie Wilder report to the fact that the wall has little significance because it was a later addition and assertions that the original, demolished picket fence would have had more significance than the wall, are entirely irrelevant, inconsistent with the heritage evidence that was available to the Council, and have no basis in fact so far as the heritage significance of the wall is concerned.
5. In my view, reliance in the delegate report on this assessment by Bernie Wilder (who has no heritage qualifications) in preference to the heritage adviser's assessment was wrong. I find the delegate report misrepresents the expert heritage advice that the Council had received from its heritage adviser and failed to properly consider this assessment and advice. For this reason, I find that the Council failed to consider a relevant matter.
6. In this context, it is not relevant that the planning scheme itself does not contain a fulsome description of the heritage significance of the heritage place. The inclusion of a place in a Heritage Overlay recognises that the heritage place has heritage significance. Discerning the nature of that significance is a separate exercise that a responsible authority must undertake before being able to properly exercise its discretion to consider a permit application where relevant decision guidelines require it to consider the significance of the heritage place and whether the proposal will adversely affect that significance.
7. The guideline in Clause 93.07-2 to consider the significance of the heritage place and whether the proposal will adversely affect that significance is a separate decision guideline to the following guideline, which requires the responsible authority to consider any applicable statement of significance, heritage study and any applicable conservation policy. The fact that such documents may not exist in respect of the particular heritage place in question does not deprive the heritage place of significance. Such statements or documents may assist in identifying what the significance is of the heritage place, but they do not create that significance. The significance of the heritage place exists independently of such statements, studies or policy. They may be evidence of this significance but other evidence is equally valid and, on occasions, may be necessary to be adduced in order that a responsible authority can properly consider the significance of the heritage place and whether the proposal will adversely affect that significance.
8. In the present case, I find that the evidence of the heritage adviser was the best evidence available about the significance of the heritage place, namely the stone wall, and whether the proposal to demolish it would adversely affect that significance. Her unequivocal advice was that the demolition would adversely and irrevocably affect that heritage significance.
9. I further find that by dismissing or failing to place any weight on the heritage adviser's evidence and opinions about the significance of the stone wall and the fact that its heritage value would be severely compromised by the loss of most or all of the heritage fabric, there was a failure by the Council to consider a relevant consideration.
10. Equally, I find that the weight placed on the contention that the wall was not original and was of lesser heritage significance than the original picket fence, was an irrelevant consideration. The heritage significance of the wall had nothing to do with whether or not it was the original fence surrounding Richmond House.

Were the owner's reasons for getting rid of the wall relevant?

1. Having regard to an overall view of the evidence, I conclude that the owner has wanted to get rid of the wall from the time when the first enquiry about its removal was made in April 2015. I consider that the production of the PM Design report was intended to raise safety concerns as a means of justifying the wall's removal. It is further evident from the Bernie Wilder report that the owner has redevelopment plans for the site and that retention of the wall was seen as inhibiting these and the commercial prospects of the site.
2. However, the owner's reasons for wishing to demolish the wall are not relevant matters to consider either under the Heritage Overlay or the VicSmart provisions. Further, issues of streetscape are not relevant. To the extent that they have been considered by the Council in the VicSmart delegate report, they are irrelevant considerations.
3. Having regard to the provisions of Clause 91, there is no scope for the Council to have considered streetscape related matters or increased passive surveillance and interaction with the street for the reasons previously set out in the context of safety concerns and the operation of Clause 91 to exclude the operation of section 60 of the Act.
4. The delegate report concludes its discussion of the Clause 93.07-2 decision guidelines with the following statement:

Ultimately as the bluestone wall is not the original feature of this site it is considered that its removal will not adversely affect the appearance of this heritage place.

As previously noted, it is considered that its removal will not adversely affect the appearance of this heritage place.

1. The decision guidelines in Clause 93.07-2 distinguish between whether the proposal will adversely affect the significance of the heritage place and whether it will adversely affect the character or appearance of the heritage place. In the present case, the removal of the stone wall affected both its heritage significance and its appearance.
2. As previously noted, the heritage significance of the stone wall is not related to whether it is an original feature of this site. Nevertheless, as a listed item, the stone wall is part of the heritage place and was the dominant physical feature of the heritage place. Its removal therefore both adversely affected its heritage significance and its appearance. Thus, there was no logical basis for saying in the conclusion in the delegate report that its removal will not adversely affect the appearance of the heritage place. Whilst the significance of the stone wall is not related to its appearance, it is self-evident that its removal must affect the appearance of the heritage place. The stone wall was an integral part of the heritage place: it was not just a contributory element to the appearance of the heritage place. This conclusion therefore misconceives the nature of the heritage significance of the stone wall and is a conclusion that no reasonable responsible authority acting reasonably could have reached.
3. Because of the mandatory nature of Clause 91 and the ambit of the decision guidelines set out in Clause 93.07-2 as the only matters that may be considered, it is therefore not relevant what the owner's reasons were for wishing to demolish the stone wall. Nor does it matter that there appears from the tenor of remarks made in communications on the council file to have been support on the part of at least some Council officers for the owner's objective of getting rid of the wall. Indeed, it would be entirely improper if the owner's objectives and any officer's support for those objectives were to influence the proper consideration of the matters to be considered under the planning scheme. This would constitute bias leading to a discretion being exercised for an improper purpose.
4. Thus, I consider Daniel Pech was wrong and potentially exhibiting bias when he advised the CEO, Greg Burgoyne, in his email dated 26 November 2015 that:

To date, we have sourced heritage advice, options for quotes and tradesman-professionals, drawn up potential options into plans and have advised of planning pathways which place lesser weight on heritage considerations and remove requirements for public notice and third party appeal. [Tribunal emphasis].

1. In fact, the only factors upon which weight can be placed in the decision-making process for demolition or removal of a fence under the Heritage Overlay pursuant to Clause 92.04 are heritage considerations. The rigour to be applied to those heritage considerations is no less than the rigour to be applied were those heritage considerations to arise under any other provisions of the planning scheme or in circumstances where there are public notice and third party appeal rights.

1. For these reasons, I have reached the conclusion that the Council exhibited Wednesbury unreasonableness when it decided to grant a permit for the demolition of the stone wall at 101 Bentinck Street, Portland. This was a decision so unreasonable that no reasonable responsible authority acting reasonably could ever have come to it. It was a decision reached by reference to considerations that were irrelevant and in disregard of relevant considerations. Consequently, I find that it was a decision made beyond power.

1. In my decision dated 18 May 2016 when I refused the application by the responsible authority to strike out or dismiss the application pursuant to section 75 of Victorian Civil and Administrative Tribunal Act 1998, I said:

[6] The Tribunal has commonly held that the following principles should guide the exercise of the power to make a declaration[14]:

• There must be a dispute in existence.
• The jurisdiction is not available if the issue is purely theoretical.
• The issue must not only be an existence but must be attached to facts.
• The dispute must be real, not hypothetical, and must be of practical importance.
• The making of a declaration must be of practical use.

[7] In the present case, there is a dispute attached to real facts, namely whether the council properly exercised its powers under the VicSmart provisions of the planning scheme. The issue is not purely theoretical. It relates to past actions of the council and is therefore attached to facts. The fact that the actions of the council occurred in the past is not a reason for refusing to consider them in the context of an application. The fact that the permit has been acted upon and the wall/fence demolished, does not diminish the significance of the issues raised by the applicant about the council's interpretation of the provisions. A consideration of the facts and the interpretation made in the present case may have relevance in the future interpretation of these provisions in other cases, but I am not persuaded that this alone should bar the applicant from seeking a declaration about the particular facts and circumstances of this case. It will be a matter for argument as to what declaration, if any, is made. Because the issue is arguable, I do not consider it proper to summarily dismiss or strike out the proceeding.

1. Having regard to these principles, I consider that this is a proper case in which I should make a declaration.
2. In my view, it is appropriate to make declarations about the interpretation of the VicSmart provisions as they relate to the demolition of a fence under the Heritage Overlay (which will also be relevant to the demolition or removal of an outbuilding). Whilst they are not the declarations or interpretation that the applicant contended for, section 149B of the Planning and Environment Act 1987 nevertheless enables the Tribunal to make any declaration it thinks appropriate in the circumstances.[15]
3. Section 149B(1)(b) enables a person to apply to the Tribunal for a declaration concerning anything done by a responsible authority under this Act. The power to make a declaration under this provision about a decision or an action of a responsible authority in circumstances where there may be no other avenue to test the merits of a proposal, either because third party notice and review rights are excluded or for some other reason, is an important safeguard of the integrity of decision-making by responsible authorities. It operates as a safeguard against the type of arbitrary or capricious decision-making, or decision-making that abandons common sense, which was referred to by the High Court in Li's case.
4. In my view, it does not matter that the outcome of the decision (should the decision fall into this category) has resulted in actions that cannot be undone. In such case, it is all the more important to identify where the decision maker has erred in order to encourage future decision makers not to fall into the same error.
5. In the present case, the Council considered irrelevant matters. It failed to adequately consider relevant matters. It made a decision that no reasonable responsible authority acting reasonably could have made. This is not a case of just disagreeing with the decision. It represents a failure on the part of the Council as responsible authority to properly discharge its duties.
6. Having found that the Council's decision to grant a permit to demolish the stone wall was a decision that was beyond power because it suffered from Wednesbury unreasonableness, I find it is appropriate to make a declaration to this effect.

1. The implications of this decision beyond the facts of the present case are twofold.
2. First, in terms of my interpretation of the VicSmart provisions of the planning scheme so far as they relate to fences, it raises the possibility that important heritage items, which can be characterised as fences, are at risk of precipitate demolition unless they are identified in the column in the schedule to the Heritage Overlay headed Outbuldings or fences which are not exempt under Clause 43.01-3 with a Yes. If a No is included in this column, then the demolition of such fences (or outbuildings) can be considered by way of a VicSmart application and will be exempt from any third party notice and review rights.[16]
3. For example, in the Glenelg Planning Scheme, there are other walls that fall into this category, such as in HO118 (Wall, former gaol, 2 Glenelg Street, Portland) and various heritage places where outbuildings are specifically described as being part of the heritage place, such as HO111 (Shop and rear outbuildings 98 Percy Street, Portland), none of which are identified in this column in the schedule to the Heritage Overlay.[17]
4. All councils, in their capacities as planning authorities, should therefore scrutinise the schedules to their Heritage Overlays to ensure that appropriate entries are included in the column headed Outbuldings or fences which are not exempt under Clause 43.01-3 in respect of heritage places where fences or outbuildings may be specified in the description of the heritage place.
5. Second, it seems counterintuitive that a fence or outbuilding specified in the description of a heritage place in the schedule to a Heritage Overlay could be the subject of a VicSmart application. Nevertheless, that is the consequence of the drafting of the planning scheme provisions as I have interpreted them. If this outcome was not intended, then the VicSmart provisions (and possibly the provisions of Clause 43.01-3) need to be amended to exclude from these provisions any items specified in the schedule to the Heritage Overlay, not just identified in the schedule to the Heritage Overlay.

[1] Wednesbury unreasonableness refers to the principles established in the case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, which sets out the standard of unreasonableness of public-body decisions that would make them liable to be quashed on judicial review.

[2] 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.

[3] Wednesbury unreasonableness refers to the principles established in the case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, which sets out the standard of unreasonableness of public-body decisions that would make them liable to be quashed on judicial review.

An application under this overlay for any of the following classes of development 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.

[5] [2016] VCAT 1278.

[6] [2016] VCAT 1278 at [13].

[7] Section 3 Fences Act 1968

[8] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [23].

[10] [2013] HCA 18 at [30].

[11] It is unclear who this person was as their name has been redacted on the copy of the file note made available under FOI legislation.

[12] Bearing in mind that pursuant to Clause 43.01 a heritage place includes both the listed heritage item and its associated land.

[13] Victorian Heritage Inventory H7221-0026, included as Exhibit 2 Affidavit of Ken MacLeod dated 27 January 2017.

[14] Hill v Campaspe SC [2005] VCAT 1128 at [11].

[15] Section 149B(2) Planning and Environment Act 1987.

[16] Equally they will be exempt from third party notice and review rights under Clause 43.01-3 of the Heritage Overlay even if not subject to a VicSmart application.

[17] In fact, from my observation there is not one heritage place where a Yes is included in this column in the Glenelg Planning Scheme.