Question 1

What permissions are required under the Queenscliffe Planning Scheme for the use of the subject land proposed in permit application 2022/044?

Answer

Permission is required under clause 52.15 of the Queenscliffe Planning Schee for the use of the land as proposed in permit application 2022/044.

Question 2

Having regard to the answer in Question 1, are matters arising under the Environmental Significance Overlay and other environmental matters raised in the responsible authority's amended grounds of refusal and the statement of grounds of the respective respondents to the proceeding relevant to the decision under review?

Answer

Those grounds that rely upon environmental matters or environmental impacts based on provisions or policies under:

1. the planning scheme:
2. Point Lonsdale Structure Plan: For the City of Greater Geelong and the Borough of Queenscliffe (Planisphere, April 2009, amended November 2011);
3. Council Plan: Borough of Queenscliffe 2021-2025;
4. Marine and Coastal Planning and Policy (Department of Environment, Land, Water and Planning March 2020;

are not relevant to the decision under review.

The question of whether the provisions of the Bellarine State Planning Policy are relevant to the Tribunal's determination in this proceeding is a matter to be determined by the Tribunal at the final hearing.

Question 3

Having regard to the answer in Question 1 and the exemptions from notice and decision requirements and rights of review set out in clause 44.06-7 of the Queenscliffe Planning Scheme, are matters arising under the Bushfire Management Overlay and other bushfire related matters relevant to the decision under review?

Answer

No.

Question 4

Are the potential impacts of the operation of helicopters other than during take off from and landing at the subject land relevant to the decision under review?

Answer

No.

1. In Ramsay 2024, I found that:
   • The proposed use is ancillary to the existing dominant use of the subject land for the purposes of a dwelling house.[1]
   • The proposed use does not require permission under cl 35.06-1 of the planning scheme. The only permission required under the planning scheme is that required under cl 52.15-1.[2]
   • The following provisions were not relevant to the consideration of the proposed use:
     • Clause 35.06 Rural Conservation Zone;
     • Clause 42.01 Environmental Significance Overlay and Schedules 1 and 2;
     • Clause 424.02 Significant Landscape Overlay and Schedule 1;
     • Clause 44.06 Bushfire Management Overlay;
     • Planning policies found in the planning scheme at:
       • Clauses 02.02, 02.03-2 and 02.03-3;
       • Clauses 11, 11.01-1L, 11.03-5S and 11.03-6S;
       • Clauses 12, 12.01, 12.01-1S, 12.02. 12.03. 12.03-1S. 12.5, 12.05-1S, 12.05-2S ad 12.05-2L;
       • Clauses 13, 13.01, 13.04, 13.04-1S, 13.05 and 13.05-1S;
       • Clause 18.01-3S
2. In Ramsay 2024, I also found that:
   • grounds based on environmental impacts or environmental matters could not be raised independently under cl 65 of the planning scheme or s 60(1)(e) of the PE Act for the detailed reasons given in Booth v Strathbogie SC [2023] VCAT 782 at [70]- [89];
   • the scope of discretion conferred under cl 52.15 does not extend to the consideration of the proposal on environmental values, including those matters that may arise under cl 65 of the planning scheme and s 60(1)(e) of the PE Act.
3. As a result of the determination in Ramsay 2024, there remains two key matters to be determined:
   1. whether to grant permission under cl F52.15-1 of the planning scheme for use of the subject land as a helicopter landing site; and
   2. whether the provisions of the Bellarine Peninsula Statement of Planning Policy ('BPSPP') are relevant to the Tribunal's determination in this proceeding.
4. A description of the subject land and its context is first set out below before consideration of the relevance of the provisions of the BPSPP to the Tribunal's determination in this proceeding will first be undertaken.

1. The subject land:
   • has a frontage of approximately 210m to McDonald Road;
   • is currently improved with an existing dwelling and outbuildings including a shed authorised under Planning Permit No. 2016/039 used to store the helicopter intended to be used in the proposal.
2. McDonald Road that provides single lane access to Burnt Point.
3. To the east of the subject land is 8 McDonald Road and 10 McDonald Road; both similarly developed for residential purposes with a dwelling and outbuildings.
4. Further east and to the north of the subject land, beyond Burnt Point, is part of the Port Phillip Bay (Western Shoreline) and Bellarine Peninsula Ramsar Wetlands site ('Ramsar site'). The following description of the Ramsar site is taken from the written submissions of the responsible authority to which no party took objection:

...The Ramsar Site covers a total of 22,650 hectares and comprises six distinct areas that include Point Cook/Cheetham, Werribee/Avalon, Point Wilson/Limeburners Bay, Swan Bay, Mud Islands, and the Lake Connewarre complex. The site includes freshwater wetlands, estuaries, intertidal shorelines, sub-tidal beds, inland saline wetlands and a wastewater treatment facility. The Swan Bay section of the Ramsar Site which is proximate to the Subject Land encompasses areas of coastal saltmarsh and seagrass. ...

1. In the broader physical context, the subject land is located:
   • to the north/north-west of the main residential areas of Point Lonsdale and Queenscliffe respectively; and
   • within a subdivision of 10 lots within the Rural Conservation Zone under the planning scheme all of which have frontages to Swan Bay and are predominantly developed with single dwellings.

1. On this issue, the Tribunal's order of 14 November 2024 directed that any party intending to rely upon the provisions of the BPSPP in its revised grounds were required to:
   1. identify the specific provision of the BPSPP relied upon;
   2. identify the alleged inconsistency said to arise from approval of the proposal with the identified provisions of the BPSPP;
   3. particularise the facts relied upon in support of the alleged inconsistency with the identified provisions of the BPSPP.
2. Any party relying on an alleged inconsistency with the provisions of the BPSPP was also required to provide written detailed submissions identifying the legislative provisions that require the Tribunal to comply with sections 46AZK of the PE Act when exercising its review jurisdiction.
3. The PLCA submitted that the proposed use is inconsistent with the following objectives of the BPSPP:
   • Objective 2: To conserve and enhance the significant biodiversity, ecological and environmental values and declared area.
   • Objective 3: To protect and enhance the identified landscape character, physical features, view corridors and natural and cultural values of the declared area's significant landscapes.
   • Objective 4: To achieve a zero-carbon future and support the resilience of the declared area's distinctive attributes by taking sustained measure to reduce greenhouse gas emissions, mitigate climate change and natural hazards risks and adapt to their impacts.
4. In addition, the QCA submitted that the proposed use is inconsistent with:
   • Objective 8: To plan and manage the sustainable development of settlements in the declared area consistent with the protection of the area's landscape significance, environment and biodiversity values, Wadawurrung living cultural heritage and historic heritage values and consistent with the unique character and hierarchy designation of each settlement.
5. Relying on the Tribunal's approach in Collins v Greater Geelong CC [2024] VCAT 7 ('Collins'), the QCA and the PLCA submitted that the Tribunal is required under s 84B of the PE Act to have separate regard to both the planning scheme and the BPSPP.
6. Council in its written submission submitted that the BPSPP is relevant to the Tribunal's determination of the proceeding on the following bases:

122.1 under s84B(1) of the Act, the Tribunal is required to have regard to any matter which Council was required to take into account of in making its decision in relation to the Permit Application; and

122.2 under s46AZK, Council (as RPE) was required to have regard to the BPSPP and ensure that its decision in relation to the Permit Application was not inconsistent with any binding provision therein.

1. The Barwon Heads Association Inc. ('BHA') submitted that Council as a responsible public entity under s 46AZK of the PE Act was required to have regard to objective 2 of the BPSPP when making its decision on the permit application and also, relying on s 84B of the PE Act submitted that the Tribunal must now take into account this objective when making its final determination.
2. Neither Mr McLean nor Ms Abbott raised any alleged inconsistency with the provisions of the BPSPP in their respective final written submissions to the Tribunal.
3. Council submitted that on its merits, a decision to grant a permit for the proposed use would not be inconsistent with any binding provisions of the BPSPP because given the limited scope of relevant matters arising under cl 52.15 of the planning scheme, it is difficult to see how the grant of a permit in this case could be said to be inconsistent with any of the objectives called into question by the QCA and the PLCA.
4. A fair reading of the applicant's final written submission, leads me to the conclusion that the applicant accepts that Council's submission on this question is 'accurate'.[3]

1. To address the question of whether the provisions of the BPSPP are relevant to the Tribunal's final determination in this proceeding, it is necessary to consider the following:
   • The legislative regime under Part 3AAB - Distinctive Areas and Landscapes of the PE Act.
   • An examination of the BPSPP.
   • The review jurisdiction of the Tribunal in this proceeding.

1. Part 3AAB of the PE Act contains a regime for -
   • The declaration of distinctive areas and landscapes (Division 2; s 46AO - s 46AS).
   • The preparation and approval of statements of planning policy for distinctive areas and landscapes (Division 3; s 46AT - s 46AZA).
   • The amendment of a declared area planning scheme to give effect to a Statement of Planning Policy ('SPP') (Division 3; s 46AZB - s 46AZC).
   • The amendment of protected settlement boundary (Division 3; s 46AZD - s 46ZAZH).
   • The review of a Statement of Planning Policy (Division 3; s 46AZI).
   • The interaction between specific legislation and statements of planning policies (Division 4; s 46AZJ).
   • The duties of responsible public entities (Division 5; s 46AZK - s 46AZL).
2. The objects for Part 3AAB are set out in s 46AN of the PE Act as follows:

Section 46AN

The objects of this Part are -

(a) to recognise the importance of distinctive areas and landscapes to the people of Victoria and to protect and conserve the unique features and special characteristics of those areas and landscapes; and

(b) to enhance the conservation of the environment in declared areas including the unique habitats, ecosystems and biodiversity of declared areas; and

(c) to enable the integration of policy development, implementation and decision-making under Statements of Planning Policy; and

(d) to recognise the connection and stewardship of traditional owners in relation to land in declared areas.

1. Section 46AU of the PE Act provides that the purpose of a SPP is to:

...create a framework for the future use and development of land in the declared area to ensure the protection and conservation of the distinctive attributes of the declared area.

1. A SPP must:[4]
   1. set out a vision for a period of at least 50 years that identifies the values, priorities and preference of the Victorian community in relation to the distinctive attributes of the declared area, including preferences for future land use, protection and development; and
   2. set out the long-term needs for the integration of decision-making and planning for the declared area; and
   3. state the parts of the SPP that are binding on the responsible public entities and the parts that are binding on responsible public entities and the parts that are in the nature of recommendations to which responsible public entities are only required to have regard; and
   4. include a declared area framework plan in accordance with subsection (2); and
   5. set out Aboriginal tangible and intangible cultural values, and other cultural heritage values, in relation to the declared area.
2. In addition, a SPP must provide a framework for decision-making in relation to the future use and development of land in the declared area that-
   1. integrates environmental, social, cultural and economic factors for the benefit of the community and encourages sustainable development and identifies areas for protection and conservation of the distinctive attributes of the declared area; and
   2. may specify settlement boundaries in the declared area or designate specific settlement boundaries in the declared area.
3. Division 5 of Part 3AAB of the PE Act sets out the duties of responsible public entities as follows:

46AZK Responsible public entities not to act inconsistently with Statement of Planning Policy

A responsible public entity must not act inconsistently with any provision of the Statement of Planning Policy that is expressed to be binding on the public entity when performing a function or duty or exercising a power in relation to the declared area.

46AZL Principles

If a responsible public entity develops or implements policies or programs or makes decisions in relation to a declared area, the responsible public entity should -

(a) consult with all levels of government and government agencies that are relevant to the decision; and

(b) use best practice measures to protect and conserve the unique features and special characteristics of the declared area; and

(c) undertake continuous improvement to enhance the conservation of the environment in declared areas; and

(d) have regard to the principles prescribed to apply -

(i) to all declared areas; and

(ii) in relation to a particular declared area.

1. Section 3 of the PE Act defines the term 'responsible public entity' for the purposes of Part 3AAB as follows:

(b) in Part 3AAB, means any of the following in relation to a declared area -

(i) the Secretary (within the meaning of the Conservation, Forests and Lands Act 1987);

(ii) the water corporation responsible for the area in which the declared area is located;

(iii) a municipal council whose municipal district contains land in the declared area;

(iv) Parks Victoria established under Part 2 of the Parks Victoria Act 1998;

(v) the Victorian Planning Authority established under Part 2 of the Victorian Planning Authority Act 2017;

(vi) a Catchment Management Authority under the Catchment and Land Protection Act 1994 for a catchment and land protection region that contains land in the declared area;

(vii) the Head, Transport for Victoria within the meaning of the Transport Integration Act 2010;

(viii) Victorian Rail Track continued under section 116 of the Transport Integration Act 2010;

(ix) any committee of management or trustees under the Crown Land (Reserves) Act 1978 in relation to land in the declared area;

(x) any Traditional Owner Land Management Board established under Part 8A of the Conservation, Forests and Lands Act 1987 in relation to land in the declared area;

(xi) any other public entity prescribed to be a responsible public entity in relation to the declared area.

1. The Bellarine Peninsula was declared a distinctive area and landscape under s 46A of the PE Act by order of the Governor in Council on 29 October 2019. That declaration came into effect on the same day.
2. The Bellarine Peninsula was redeclared a distinctive area and landscape by order of the Governor in Council on 16 September 2021. That declaration came into effect on 30 October 2021.
3. The BPSPP:
   1. was prepared by the Minister of Planning under s 46AT of the PE Act for the declared area of the Bellarine Peninsula;
   2. took effect when it was gazetted on 10 August 2023 and at that date formed part of the Victorian Planning Provisions ('VPP');
   3. does not, at the date of this determination, form part of the planning scheme;
   4. is not, at the date of this determination, a document which is incorporated into the planning scheme, under cl 72.04 of the planning scheme;
   5. is not, at the date of this determination, referred expressly to in the planning scheme.
4. Paragraph 1.3 of the BPSPP identifies that the BPSPP aims to:

protect the declared area's outstanding landscapes and coastal landforms, unique natural environment, rich Wadawurrung living cultural heritage and historic heritage, and important infrastructure and natural resources. These distinctive attributes qualified the declared area as a distinctive area and landscape, and they are listed in Table 1 and the order published in the Government Gazette.

1. Table 1 of the BPSPP identifying the attributes qualifying the Bellarine Peninsula as a distinctive area and landscape is set out below.

1. Section 1.4 of the BPSPP identifies three ways in which the BPSPP will be implemented:
   • through planning schemes;
   • by responsible public entities;
   • through review and monitoring of the SPP by the Minister for Planning.
2. Implementation of the BPSPP through planning schemes will occur when the Minister for Planning prepares and approves an amendment to planning scheme(s) to give effect to the BPSPP as required under s 46AZB of the PE Act.[5] As already noted, the Minister for Planning has not amended the planning scheme to give effect to the BPSPP.
3. Regarding implementation of the BPSPP by responsible public entities, paragraph 1.4.2 of the BPSPP states:

In addition to implementation through planning schemes, the Bellarine Peninsula SPP requires implementation by responsible public entities (RPEs) as the agencies or bodies responsible for managing land in the declared area.

In accordance with section 46AV(1)(c) of the PE Act:

• the objectives in this SPP are binding on RPEs
• the strategies in this SPP are not binding on the RPEs: they are recommendations to which RPEs must have regard.

Section 46AZK of the PE Act requires that 'A responsible public entity must not act inconsistently with any provision of the SPP that is expressed to be binding on the public entity when performing a function or duty or exercising a power in relation to the declared area.' Therefore, RPEs must not act inconsistent with the objectives of the Bellarine Peninsula SPP when developing or implementing policies or programs or making decision in relation to the declared area, including when performing their regular functions or duties.

1. The policy domains that underpin the long term protection and enhancement of the declared area's distinctive attributes are set out in Part 5 of the BPSPP. These policies domains are:
   • Aboriginal cultural heritage - Wadawurrung Country
   • Environment and biodiversity
   • Landscapes
   • Environmental risks and resilience
   • Historic heritage
   • Tourism, agriculture and natural resources
   • Strategic infrastructure
   • Settlements
2. With regard to the policy domains, the BPSPP provides:

The Bellarine Peninsula SPP includes eight policy domains that align with the objects for the declaration of the Bellarine Peninsula as a distinctive area and landscape in accordance with the PE Act.

The policy domains are to be read together as a whole. The long-term protection and enhancement of the declared area's distinctive attributes result from understanding the complex interactions between each of the eight domains. The objectives and strategies for each policy domain enable integrated decision-making and planning for the declared area.

1. The QCA, PLCA and the Barwon Heads Association Inc. submitted that the proposed use is inconsistent with Objective 2 of the BPSPP. To recap, Objective 2 states:

To conserve and enhance the significant biodiversity, ecological and environmental values of the declared area.

1. Objective 2 is binding on responsible public entities.[6]
2. The relevant policy domain for Objective 2 is 'Environment and biodiversity'. An objective reading of the general description for that policy domain and the specific descriptions under paragraphs 5.2.1 Waterways and marine environs and 5.2.2 Biodiversity habitats and biodiversity connections (biolinks) leads to the conclusion that the focus of this policy domain is the protection and enhancement of marine and terrestrial vegetation that are important to existing habitats within the declared areas. This conclusion is supported by the nature of the strategies recommended to further Objective 2.

1. The QCA and the PLCA submitted that the proposed use is inconsistent with Objective 3 of the BPSPP. Objective 3 states:

To protect and enhance the identified landscape character, physical feature, view corridors and natural and cultural values of the declared area's significant landscapes.

1. Objective 3 is binding on responsible public entities.[7]
2. Objective 3 supports the 'Landscapes' policy domain that focuses on the landscape character of the declared area. The Swan Bay landscape is identified as a landscape of regional significance. The subject land is proximate to Swan Bay.

1. The QCA and the PLCA submitted that the proposed use is inconsistent with Objective 4 of the BPSPP. Objective 4 states:

To achieve a zero-carbon future and support the resilience of the declared area's distinctive attributes by taking sustained measures to reduce greenhouse gas emissions, mitigate climate change and natural hazards risks and adapt to their impacts.

1. Objective 4 is binding on responsible public entities.[8]
2. Objective 4 supports the 'Environmental risks and resilience' policy domain. This policy domain focuses on climate change and its impacts on the natural and built environments (particularly impacts caused by rising sea levels, coastal erosion, storm surges, flooding, bushfires), water security and management of human impacts by directing urban development within designated areas.

1. The QCA submitted that the proposed use is inconsistent with Objective 8 of the BPSPP. Objective 8 states:

Responsible public entities are required to have regard to the following strategies to achieve the objective when performing a function or duty or exercising a power in relation to the declared area.

1. Objective 8 is binding on responsible public entities.[9]
2. Objective 8 supports the 'Settlements' policy domain. This policy domain identifies a preferred 'settlement hierarchy' and an overall objective that most future urban development will be concentrated within the settlement boundaries of district towns - within activity centres, substantial housing areas and future urban areas.
3. The subject land is located within a designated 'Green break area' under Map 3 to the BPSPP. The strategic objective for 'Green breaks and urban-rural interface areas' is expressed as follows:[10]

Maintaining green breaks and urban-rural interface areas

Maintaining green breaks between the declared area's settlements is important. As shown on Map 3, the green breaks together with the protected settlement boundaries will help conserve environmental and cultural heritage attributes, strategic infrastructure (such as water utilities), agricultural land and other natural resources from encroachment by urban development. Within the declared area, green breaks are mostly rural land zoned as Farming Zone, Rural Conservation Zone, Public Conservation and Recreation Zone or Rural Living Zone.

The green breaks will also help protect the character and significance of the open, rural landscapes between the Bellarine Peninsula's settlements, the coastal wetlands bordering Barwon Heads, Ocean Grove, Point Lonsdale and St Leonards and the undulating landscape of the central and northern peninsula. They help to establish a sense of arrival and a unique identity for each settlement aera by containing their outward growth and avoiding settlement areas coalescing.

Development at the periphery of settlements has the potential to impact environmental and cultural heritage attributes and the rural land uses contained within the green breaks. It can greatly change the character of the surrounding landscape of the Bellarine Peninsula and must be carefully designed to achieve a successful urban-rural interface. Providing for a soft-edge transition between urban and rural areas may be achieved through the siting, scale and appearance of development.

Lower density development with additional space around buildings for vegetation, open and rural type perimeter fencing, smaller building footprints with substantial vegetation, or a generous vegetated buffer to obscure residential and other development on the town's edge can minimise the visibility of development. Materials and finishes that temper visibility (such as darker materials and materials that weather naturally) should also be used.

1. In addition to the Tribunal's decision in Collins, the provisions of Part 3AAB of the PE Act have been the subject of past consideration by the Tribunal in the following decisions:
   • St Leonards Property Holdings Pty Ltd v Macedon Ranges SC [2022] VCAT 26 ('St Leonards Property Holdings');
   • Kyneton Project Management Pty Ltd v Macedon Ranges SC [2022] VCAT 825 ('Kyneton Project Management No.1'); and
   • Kyneton Project Management Pty Ltd v Macedon Ranges SC [2022] VCAT 844 ('Kyneton Project Management No.2').
2. In St Leonards Property Holdings, Kyneton Project Management No.1, and Kyneton Project Management No.2, the Tribunal considered whether in making a final determination on a permit application the Tribunal was bound to give effect to the objectives of the Macedon Ranges State Planning Policy. At the time of each of the relevant determinations of the Tribunal, not only did the Macedon Ranges State Planning Policy form part of the Victorian Planning Provisions, in addition the Macedon Ranges Planning Scheme had been amended under s 46AZB of the PE Act.
3. While not required to determine the issue of whether the Tribunal was a responsible public entity in St Leonards Property Holdings, Deputy President Bisucci observed:
   1. Section 3(1)(b) of the PE Act provides that a Responsible Public Entity (RPE) in Part 3AAB of the PE Act means:

(b) (i) ...

...

(iii) a municipal council whose municipal district contains land in the declared area.

1. Notably, under section 3 of the PE Act, the Tribunal is not listed as a RPE. Council says that in the review jurisdiction of the Tribunal, where hearings are 'de novo', the Tribunal stands in the shoes of the RPE, in its capacity as the responsible authority and is thus the RPE. However, other than this general statement, council does not provide any authority or further analysis to justify its position.

1. Given the ultimate findings of the Tribunal, and the lack of fulsome submissions on this issue, I do not need to determine it in this proceeding, and I simply make the following observations:
   • Section 3 of the PE Act, does not include the Tribunal as an RPE;
   • Part 3AAB of the PE Act provides a process for the Minster (sic) and/or the RPE. The Tribunal does not have any role to play in decisions under Part 3AAB of the PE Act;
   • Section 46AZB of the PE Act requires the preparation of an amendment to the planning scheme to give effect to the approved SPP. This appears to have occurred by Amendment VC185 where several clauses in the planning scheme were amended to give effect to the MRSPP;
   • Section 46AZK of the PE Act states that the RPE must not act inconsistently with any provision of the Statement of Planning Policy that is expressed to be binding on the public entity when performing a function or duty or exercising a power in relation to the declared area. Unfortunately, public entity is separately defined under section 3 of the PE Act as: has the same meaning as in the Public Administration Act 2004. It is likely that public entity refers to RPE in section 46AZK of the PE Act; and
   • The choice of term RPE in clause 51.07 rather than responsible entity is unfortunate and causes confusion. This may raise issues with the applicability of clause 51.07 of the planning scheme in decisions before the Tribunal.
2. As I observed in _Kyneton Proper_ty Management No.1:
   1. As can be seen from the definition of 'responsible public entity', the inclusion of a 'municipal council' as a responsible public entity is not dependent on the particular statutory function or role conferred on a municipal council; the mere fact that a declared area is within its municipal district is all that is required.

1. Section 46AZK imposes one function only on responsible public authorities (sic) and that is not to act inconsistently with any provision that is expressed to be binding on the public entity when performing a function or duty or exercising a power in relation to the declared area.
2. At its simplest, this is a direction to a responsible public entity to their usual function, discharging their usual duties, exercising their usual powers in whatever statutory capacity has been conferred on them but to do so in such a way that it is not inconsistent with those parts of the SPP said to be binding on a responsible public entity.
3. Compliance with this duty does not involve the construction of a new decision-making framework or a parallel decision-making framework for the sole purpose of considering the consistency of a permit application with the objectives of the MRSPP that are binding on Council as a responsible public entity for the following reasons-
   1. Very simply, nothing in Part 3AAB or any other part of the Act so provides.
   2. Section 46AZK contemplates that the responsible public entity will be obliged to observe its duty under that section when it is performing an existing function, duty or exercising an existing power in relation to the declared area. By so doing, the existence of the duty does not displace or alter the under the underlying statutory function the responsible public entity may be performing, but rather requires the responsible public entity to check that the outcome of that performance (whether it be a decision of a planning application or adoption of a strategic plan or the like) or is not inconsistent with any binding parts of a SPP.
   3. Section s.46AZK (sic) does not create a new statutory function or role for responsible public entities; it imposes a new duty when carrying out the entity's existing function or role.
4. I endorsed the observations of Deputy President Bisucci in St Leonards Property Holdings that the definition of 'responsible public entity' in s 3 of the PE Act does not extend to include the Tribunal in any capacity and that the Tribunal has no role at all in the process described under Part 3AAB of the PE Act. Had Parliament intended otherwise, it would have been incumbent on the legislature to expressly provide for such a capacity to be conferred on the Tribunal in s 3, Part 3AAB or otherwise in the PE Act. I therefore find that the Tribunal is not a 'responsible public entity' for the purposes of Part 3AAB of the PE Act and the duties of responsible public entities set out in s 46AZK of the PE Act do not directly apply to the Tribunal.
5. In addition, it is significant that the definition of responsible public entity for the purposes of Part 3AAB does not include 'responsible authority'.
6. Clause 72.01 of every Victorian planning scheme specifies who is the 'responsible authority' for the purposes of the relevant planning scheme and the PE Act.
7. Notably:
   • clause 1.0 of Schedule 1 to cl 72.01 provides that the Queenscliffe Borough Council is the responsible authority for administering and enforcing the planning scheme except for matters specified in cl 72.01-1 and matters otherwise listed in Schedule 1;
   • clause 4.0 of Schedule 1 to cl 72.01 provides that the Chief Executive Officer of the Queenscliffe Borough Council is the responsible authority for considering and determining:
     • VicSmart applications to which cl 71.06 applies;
     • any application to which cl 53.24 (Future Homes) applies;
     • any application that the notice and review exemption in cl 52.10-2 (Reconstruction after an emergency) applies;
   • clause 72.01-1 provides (subject to the exceptions set out in that clause) that the Minister for Planning is the responsible authority under Divisions 1, 1A, 2 and 3 of Part 4 and endorsement of, approval of or being satisfied with matters required by a permit or the scheme to be endorsed, approved or done to the satisfaction of the responsible authority, in relation to the use and development of land for a:
     • Energy generation facility with an installed capacity of 1 megawatt or greater.
     • Utility installation used to transmit or distribute electricity; or store electricity if the installed capacity is 1 megawatt or greater.
     • Industry to manufacture hydrogen gas with a minimum production capacity of 410 kilograms of hydrogen per day, and any land use or development in conjunction with this use.
     • Primary school or secondary school, or education centre that is ancillary to, carried out in conjunction with, and on the same land or contiguous land in the same ownership as, a primary school or secondary school, if any of the following apply:
       • - There is no existing primary school or secondary school on the land.
       • - The estimated cost of development is $3 million or greater.
     • Primary school or secondary school for which an application was made to the Minister for Planning prior to the approval date of Amendment VC180.
     • A use or development, other than the subdivision of land, carried out by or on behalf of the Head, Transport for Victoria or the Secretary to the Department of Transport and Planning.
     • Use or development to which cl 52.20 (Government funded house development) applies.
     • Development of 10 or more dwellings to which cl 53.20 (Housing by or on behalf of Homes Victoria) applies.
     • Construction or extension of an apartment development to which cl 53.20 (Housing by or on behalf of Homes Victoria) applies.
     • Construction or extension of a dwelling in or forming part of an apartment development to which cl 53.20 (Housing by or on behalf of Homes Victoria) applies.
     • Use or development to which cl 53.22 (Significant economic development) applies.
8. This is significant because when an application commenced under the PE Act enlivens the Tribunal's review jurisdiction under s 51 of the VCAT Act, the Tribunal is reviewing the decision of a responsible authority, not the decision of a 'municipal council' nor any decision of any entity referred to in the definition of 'responsible public entity' in s 3 of the PE Act.

Is the Tribunal required to take into account or have regard to the BPSPP when making its determination?

1. In Collins, the Tribunal stated:
   1. The Tribunal decision of Kyneton Project Management Pty Ltd v Macedon Ranges SC [2022] VCAT 825 provides much guidance as to what weight to give to a Statement of Planning Policy, and how to perform the planning assessment that was required of that Tribunal. However, that decision was dealing with a framework where the Macedon Ranges Statement of Planning Policy had been inserted in the Macedon Ranges Planning Scheme. That is not yet the case with the BPSPP and the Greater Geelong Planning Scheme. Therefore, while the decision of Kyneton Project Management Pty Ltd v Macedon Ranges SC [2022] VCAT 825 concludes that the consideration of the Macedon Ranges Statement of Planning Policy can be achieved by reference to the Macedon Ranges Planning Scheme (at paragraphs 193-195 of that decision), I cannot rely on such an approach. Instead, I will need to have separate regard to both the Greater Geelong Planning Scheme and the BPSPP, in order to comply with s84B(1) of the Planning and Environment Act 1987 (Vic).
2. In Kyneton Project Management No.1, I did not undertake a detailed consideration of whether the Tribunal is under a duty to take into account or have regard to the relevant State Planning Policy under s 84B(1) of the PE Act because I found that the applicable planning scheme had been amended to give effect to the Macedon Ranges State Planning Policy, and any decision made under the applicable planning scheme on the proper exercise of discretion conferred on the Tribunal would not be inconsistent with the objectives of the Macedon Ranges State Planning Policy.
3. The Tribunal in Collins also did not undertake a detailed consideration of the application of s 84B of the PE Act to its determination and appears to have proceeded on the basis that the Tribunal was obliged to have separate regard to the BPSPP in order to comply with s 84B(1) of the PE Act.
4. As noted earlier in these reasons, in Kyneton Project Management No.1, compliance with the duty imposed on a municipal council under s 46AZK of the PE Act does not involve the construction of a new decision-making framework for permit applications for the sole purpose of considering the consistency of a permit application with the objectives of a State Planning Policy that are binding on a municipal council.
5. I confirm my view that the duty imposed on responsible public entities under s 46AZK of the PE Act does not involve the construction of a separate new decision-making process for the purpose of determining permit applications made to responsible authorities involving land within a declared area (under Part 3AAB of the PE Act).
6. On further consideration, I am of the view that there is considerable doubt that s 84B(1) of the PE Act imposes on the Tribunal the duty imposed on responsible public entities under s 46AZK of the PE Act when determining a review application for the following reasons:
   • The duty imposed under s 46AZK of the PE Act is imposed only on responsible public entities.
   • A responsible authority is not a responsible public entity under s 3 of the PE Act.
   • The decision under review is one made by a responsible authority. Section 84B(1) of the PE Act properly interpreted refers to matters that:
     • the responsible authority took into account or was required to take into account as a responsible authority not those matters required to be taken into account as a responsible public entity; and
     • the responsible authority had regard to or was required to have regard to as the responsibly authority and not those matters required by responsible public entity to take into account when making a decision.
   • The fact that a municipal council may be a responsible authority under cl 72.01 of a planning scheme is not a sufficient basis to apply the requirements s 84B(1) of the PE Act broader than to those matters properly taken into account or to be taken into account by a responsible authority for the purposes of deciding a permit application.
   • Application of s 84B(1) of the PE Act leads to different outcomes depending on who is the specified responsible authority under cl 72.01 of a planning scheme. Where the responsible authority is a municipal council then the collateral obligation under s 46AZK of the PE Act arises. Where the responsible authority is the Minister for Planning or the Chief Executive Officer of a municipal council, then no such obligation under s 46AZK of the PE Act arises because neither the Minister for Planning nor the Chief Executive Officer of a municipal council is a 'responsible public entity' under s 3 of the PE Act for the purposes of Part 3AAB of the PE Act. This would be an absurd outcome that is contrary to the decision-making framework applicable to the Tribunal in its review jurisdiction which, once enlivened, is not dependent on the identity of the original decision maker.
7. Further, the nature of the duty imposed under s 46AZK of the PE Act is at fundamental odds to the discretionary nature of the decision-making under s 84B(1) of the PE Act. While certain things must be either taken into account or regard given to them by the Tribunal under s 84B(1) of the PE Act when arriving at a determination, nothing in s 84B directs a certain outcome be arrived at by the Tribunal in its final determination. To the contrary, s 46AZK imposes a duty on a responsible public entity not to make a decision or perform a function that is inconsistent with a binding objective under a State Planning Policy. If this is the outcome that Parliament sought to impose on the decision-making framework applicable to the Tribunal then it has failed to unambiguously give such a direction to the Tribunal in the PE Act.
8. The above conclusion is supported by the equally important, but less often quoted, requirements of s 46AZL of the PE Act that sets out how a responsible public entity should discharge its obligations or implement policies or programs or make decisions in relation to a declared area.
9. If regard is given to the principles set out under s 46AZL of the PE Act, one can readily conclude that the types of decisions referred to cannot include decisions on individual permit applications as it would not be possible to comply with the cumulative principles within the existing statutory framework applicable to the assessment and determinations of permit applications under Part 4 of the PE Act.
10. One can also readily conclude that none of the principles set out in s 46AZL of the PE Act can reasonably be applied in the Tribunal's review jurisdiction. For example, surely in arriving at the preferable decision on review the Tribunal would not be required to 'consult with all levels of government and government agencies that are relevant to the decision'. There is no stated process for a responsible public entity to consult with all levels of government and government agencies when making decisions on permit applications; there is a defined process for referral of permit applications to referral agencies under Part 4 of the PE Act. Does the process of referral of permit applications under Part 4 of the PE Act suffice to satisfy this principle applicable to decision making by responsible public entities?
11. Even if I am wrong in my analysis above and s 84B(1) of the PE Act applies to oblige the Tribunal to take into account or have regard to the binding objectives of State Planning Policies made under Part 3AAB of the PE Act, as I observed in _Kyneton Project Management No._1:[11]

...the existence of the duty does not displace or alter the underlying statutory function the responsible entity may be performing, but rather requires the responsible public entity to check that the outcome of that performance ... is not inconsistent with any binding parts of a SPP.

Is the BPSPP a relevant consideration under clause 65 of the planning scheme?

1. The simple answer to this question is - no.
2. As the sole permission required under the planning scheme arises under clause 52.15 of the planning scheme, I repeat and rely on the following paragraphs of the preliminary hearing determination limiting the relevant considerations under clause 65 of the planning scheme and s 60 of the PE Act to those matters that are directly relevant to the permissions required under the planning scheme:
   1. When viewed through the lens of the purpose of clause 52.15 the scope of the discretion conferred does not extend to the consideration of the impact of the proposal on environmental values, including those matters that may arise under clause 65 of the planning scheme and s 60(1)(e) of the PE Act. This is consistent with the approach in Booth and the Supreme Court in Viva Energy Australia Pty Ltd v City of Greater Geelong & Anor [2023] VSC 586 ('Viva').
   2. I also note the observation of Forbes J in Viva at [110]:

The fact that the objection is before the responsible authority does not make it relevant to the purpose of the particular discretion. Nor does the fact that it may also fall with (sic) cl 65.02 of itself bring it within the relevant purpose.

1. Both these observations are apposite to the grounds relied by the QCA, PLCA and Barwon Heads Association Inc. reliant on alleged inconsistencies with the BPSPP.

1. Clause 52.15 of the planning scheme controls the use of land within the municipality for a helicopter landing site or a heliport. The purpose of cl 52.15 is:

To ensure the amenity impacts of a heliport and a helicopter landing site on surrounding areas is considered.

1. Clause 52.15-2 of the planning scheme sets out the following application requirements:

An application to use or develop land for a heliport or a helicopter landing site must be accompanied by the following information, as appropriate:

• A site plan, including:
  • - Site boundaries and dimensions.
  • - The current land use.
  • - The existing siting and layout of buildings and works.
  • - The proposed siting and layout of the buildings and works.
  • - Existing vegetation and proposed vegetation removal.
  • - Vehicle and pedestrian access.

An application to use land for a heliport or a helicopter landing site must be accompanied by the following information:

• A location plan, including:
  • - The siting and use of buildings on adjacent properties.
  • - The direction and distance to any building used from a sensitive use (accommodation, child care centre, education centre and hospital) that is not associated with the helicopter operation and is located within 500 metres of the proposed heliport or helicopter landing site.
• A written report which:
  • - Demonstrates a suitable separation distance between the landing point of the helicopter or helicopter landing site and any building used for a sensitive use that is not associated with the helicopter operation by either:
  • - Locating the proposed heliport or helicopter landing site at least 150 metres for helicopters of less than 2 tonnes all-up weight, or 250 metres for helicopters of less than 15 tonnes all-up weight, or
  • - Providing an acoustic report by a suitably qualified consultant.
  • - Includes details of the proposed frequency of flight movements.
  • - Includes the proposed hours of operation.

1. The decision guidelines to clause 52.15 require that before deciding on an application to use land for a heliport or helicopter landing site, in addition to the decision guidelines in cl 65 of the planning scheme, consideration must be given, as appropriate to the following matters:
   • Whether the proposal achieves a suitable separation distance from a nearby sensitive use, having regard to the Noise Control Guidelines (Environment Protection Authority, 2008) ('Noise Control Guidelines').
   • The effect of the proposal on nearby sensitive land uses in terms of the proposed frequency of flight movements and hours of operation.
2. The sole planning scheme control applicable to the proposed use on the subject land is the requirement to obtain a permit under cl 52.15 Heliport and Helicopter Land Site.
3. When regard is given to the purpose and decision guidelines of cl 52.15 of the planning scheme, the most relevant planning policy guidance is found at cl 13.05-1S Noise Management and cl 13.07-1S Land use Compatibility.
4. The strategies supporting cl 13.05-1S Noise Management relevantly include:

Ensure that development is not prejudiced and community amenity and human health is not adversely impacted by noise emissions.

Minimise the impact on human health from noise exposure to occupants of sensitive land uses (residential use, child care centre, school, education centre, residential aged care centre or hospital) near the transport system and other noise emission sources through suitable building siting and design (including orientation and internal layout), urban design and land use separation techniques as appropriate to the land use functions and character of the area.

1. The relevant strategies supporting cl 13.07-1S Land use compatibility include ensuring that use or development of land is compatible with adjoining and nearby land uses.
2. I have considered both these planning policies in arriving at my determination.

Does the proposal achieve a suitable separation distance from nearby sensitive uses?

1. Clause 52.15-2 of the planning scheme defines 'sensitive uses' to mean 'accommodation, child care centre and hospital'. It is a closed definition and not an inclusive one. I have adopted this definition for the purpose of considering whether the proposal achieves a suitable separation distance from nearby sensitive uses.
2. The respondents submitted that the proposal is not properly separated from nearby sensitive land uses. Some of the respondents submitted that the applicant had not demonstrated that the helicopter landing site was more than 500 metres from a sensitive use and therefore the proposal should be refused.
3. There is no requirement under the planning scheme or the Noise Control Guidelines that mandates a separation distance or buffer of 500m between a helicopter landing site and a sensitive use.
4. It is the case the general exemption in the Table of exemptions for use set out in cl 52.15-1 exempts helicopter landing points located more than 500m from a sensitive use from the requirement to obtain a permit under cl 52.15 but this does not translate to a requirement that all helicopter landing sites or heliports must be at least 500m from sensitive uses.
5. As recounted in the preliminary hearing decision,[12] the area of the subject land on which the applicant proposes to land the helicopter (and take-off from) is to the south of the existing shed (described as a hangar). That location is within 500m of a dwelling on adjacent land, hence the reason why a permit is required under cl 52.15-1 of the planning scheme.
6. Section 16 of the Noise Control Guidelines set out the following three separate components that together are the relevant noise level criteria that are to be used by municipal officers when resolving complaints involving helicopter noise:
   • The measured LAeq,T (measured over the entire daily operating time of the helipad) shall not exceed 55dB(A) for a residence.
   • The measured maximum noise level LA max shall not exceed 82dB(A) at the nearest residential premises (See Note below).
   • Operation outside the hours between 7 am and 10 pm shall not be permitted except for emergency flights.
7. The note to s 16 of the Noise Control Guidelines states:

Note: These levels will generally be met by a separation between the land site and the residential premises of 150 m for helicopters of less than two tonnes all-up-weight, and 250 m for helicopters of less than 15 tonnes all-up-weight.

1. The applicant submitted that the helicopter to be used is less than two tonnes in all-up weight and the setback from the proposed helicopter landing point to the nearest residence is greater than 150m and therefore the maximum levels prescribed for the average sound level and the maximum noise level under the Noise Control Guidelines are expected to be met.
2. In addition, the applicant relied on the expert witness evidence of Mr Ross Leo who prepared an acoustic report for the purposes of this hearing. I accept that Mr Leo, whose qualifications include a Bachelor of Applied Science (Applied Physics) and whose experience as an expert witness is known to the Tribunal, is appropriately qualified and experienced to have undertaken an environmental noise assessment for the purposes of cl 52.15 of the planning scheme.
3. Mr Leo considered the proposed use within the following parameters:
   • The proposed helicopter will be an Enstrom 280FX with an all-up weight of less than two tonnes.
   • Up to eight flights per month between 7.00am and 10.00pm.
   • Flight paths that accord with those set out in appendix C of his written statement that included flight paths in a north-westerly direction, a north-easterly direction, south-easterly directions and south-westerly directions.
4. Noise monitoring in accordance with the requirements of the Noise Control Guidelines was undertaken at the direction of Mr Leo on 9 August 2022 from positions that generally accord with the locations of 4 McDonald Road, 5 McDonald Road, 8 McDonald Road, Murray Road, Queenscliffe (opposite the subject land across Swan Bay) and King Street, Queenscliffe (south of the Queenscliffe Londsdale Yacht Club).
5. Mr Leo's evidence, in summary, was that:
   • A helicopter take off and landing in a full day period (i.e., between 0700-2200 hours) would achieve the 55dB LAeq 15-hour threshold by a margin of at least 14dB. A total of 46 helicopter movements in a full day period (i.e., between 0700-2200 hours) would need to occur before the helicopter noise levels equalled the 55dB LAeq 15-hour threshold.
   • The highest measured helicopter noise did not exceed 82dB LAmax threshold at any of the measurement locations.
6. Mr Leo was cross examined at the hearing, but his evidence was not seriously challenged and I am satisfied that his assessment shows that the noise from the helicopter is within the levels contemplated by the Noise Control Guidelines that are called up by cl 52.15-2.
7. I accept that when taking-off and landing on the subject land the noise made by the helicopter will be audible; however mere audibility is not a test to be applied under the planning scheme. I accept Mr Leo's evidence that the amenity impacts from the proposal on nearby sensitive uses are within the limits and guidance of the Noise Control Guidelines called up by cl 52.15-2.
8. When both the averaged measured noise levels and the maximum measured noise levels are considered in the context of a relatively small number of flight movements per month (16) and the confined hours of 7.00am to 7.00pm (not opposed by the applicant) I am satisfied that the noise generated by the use of the subject land as a helicopter landing site would not give rise to any sleep disturbance or otherwise to any unreasonable detrimental impact on the amenity of nearby sensitive uses.

1. QCA relied on the written and oral evidence of Dr Bill Pring who conducts a general adult psychiatric practice within the greater Melbourne area.
2. Dr Pring's written evidence focussed on three areas:
   1. the issue of amenity;
   2. the mental health effects of allowing a helicopter landing site on the subject land; and
   3. the expectations a community has of government, legal or semi-legal processes, such as those at the Tribunal.
3. After hearing from Dr Pring at the hearing and further considering his written statement of evidence, I make the following comments and findings.
4. I agree with the general proposition that Dr Pring appeared to be attempting to describe in his evidence that the concept of amenity may include matters that are not merely measurable by technical standards or objectives. In town planning language, amenity is sometimes referred to as describing a sense of place. However, a community's expectations as to the level of amenity that can reasonably be expected regarding a particular land use on particular land is derived in Victoria largely from the requirements of the PE Act and planning schemes.
5. I give little weight to Dr Pring's evidence on the mental effects on individuals in the surrounding area of allowing a helicopter landing site on the subject land.
6. Dr Pring's evidence in this regard was based on the collation of his discussions with local residents conducted without any rigour or transparency. Expert witnesses, while permitted to give their expert opinion within their area on expertise at hearings before the Tribunal, are required to fully and clearly set out the methodology used to arrive that those opinions. This process includes, where necessary describing not only the research methods undertaken by the expert but also all the results obtained so that an independent consideration of the material used by an expert to arrive at their opinions can be undertaken by the ultimate decision maker, in this case the Tribunal. The shortcomings in Dr Pring's written evidence was not overcome by his oral evidence at the hearing.
7. Dr Pring's evidence as to the community's expectations of how government entities and the Tribunal will act in response to the permit application the subject of this proceeding is rejected. Putting aside the appropriateness of such evidence, and whether it is a matter that can be the subject of any expert opinion evidence, this Tribunal will do no less than perform the functions conferred on it under the VCAT Act in accordance with the requirements of the PE Act, the planning scheme and the VCAT Act.

1. I agree with the applicant that safety considerations are not raised under s 52.15 of the planning scheme.
2. I note that all the cases referred to in submissions relied upon to support the proposition that safety is a relevant consideration directly under cl 52.15 or s 60(1A) of the PE Act all precede the Supreme Court's decision in Viva.
3. As stated in the preliminary hearing decision, clause 52.15 consists of the totality of the planning considerations relevant to the use of land for a helicopter landing site on the facts of this matter.
4. It is clear from the terms of cl 52.15 that safety considerations are not directly required to be considered when determining whether permission should be granted under that clause.
5. Viewed through the lens of the purpose of cl 52.15, the scope of the discretion conferred does not extend to the consideration of operational safety matters (regarding the use of helicopters generally or the flight paths used) under cl 65 of the planning scheme or s 60(1) of the PE Act. It would be an absurd result that such consideration 'may' occur under s 60(1A) of the PE Act given that relevancy of the operational safety matters does not arise under cl 52.15 of the planning scheme.
6. Accordingly, operational safety considerations regarding the use of helicopters generally on the subject land or in the surrounding area are not relevant matters under cl 52.15. In regard to Dr Pring's evidence that some members of the local community expressed fear expressed arising from helicopters being used in the vicinity of their homes, workplaces or recreational places, I repeat that community expectations as to the level of reasonable amenity that can be expected in a particular locality are derived in Victoria largely from the requirements under planning schemes on land use and development.

1. Clause 71.02-3 of the planning scheme provides for 'integrated decision making' as follows:

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

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

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

1. Some of the respondents relying on the above clause submitted that the applicant is required to demonstrate the proposal results in a net community benefit. On the facts of this matter, the direction to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit simply does not arise for the following reasons.
2. The planning policies relevant to the issues to be determined are identified by consideration of the permissions required by the proposal. Here, there is only one permission required under cl 52.15 of the planning scheme. Following the reasoning in now a long line of Tribunal decisions including Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191 ('Brunswick'), the ambit of the discretion to be exercised is constrained by the purpose for which it is generated. 'Policy of itself is not a trigger for the exercise of discretion but provides guidance and strategic context for decision-making once a decision has to be made under the planning scheme provisions.'[13]
3. Therefore, the ambit of the discretion to be exercised by the Tribunal in this proceeding is constrained by the purpose for which it was generated, namely the purpose of cl 52.15. The purpose of cl 52.15 is:

To ensure the amenity impacts of a heliport and a helicopter landing site on surrounding areas is considered.

1. I accept that planning policy cl 13.05-1S of the planning scheme is relevant to the discretion to be exercised under cl 52.15 and that is because the stated objective of cl 13.05-1S is to assist the management of noise effects on sensitive land uses.
2. I also accept that planning policy cl 13.07-1S of the planning scheme is relevant to the discretion to be exercised under cl 52.15 to the extent that it seeks to protect community amenity while facilitating appropriate land use with potential adverse off-site impacts.
3. Clause 71.02-3 does not require, despite the submissions received by the Tribunal in this proceeding (and others), a responsible authority or the Tribunal to conduct an assessment of a proposal/land use/development against each and every policy that may be relevant to the discretion to be exercised. There is no such direction either expressly or directly in cl 71.02-3. What integrated decision making requires as described in cl 71.02-3 is the integration of planning policies that are relevant to the determination to be made and the 'balancing of conflicting objectives'. The objectives to be balanced are those that arise under the planning policies that are relevant to the issues to be determined.
4. When the objectives of the planning policies found at cl 13.05-1S and cl 13.07-1S are considered there is no reasonable basis for concluding that their respective objectives conflict; both objectives are in furtherance of ensuring the reasonable protection of amenity while facilitating appropriate land use. If there are no conflicting objectives arising under the relevant planning policies, then there is no requirement to balance any objectives in favour of net community benefit.

1. In conclusion:
   1. In determining the preferable decision in this proceeding -
      1. the Tribunal is not under the duty imposed on a 'responsible public entity' under s 46AZK of the PE Act;
      2. the Tribunal is not required either clause 65 of the planning scheme or s 60(1) of the PE Act to consider or assess the permit application against the requirements or objectives of the BPSPP;
      3. There are no conflicting objectives in the planning scheme policies relevant to the considerations, purpose and decision guidelines called up by cl 52.15 of the planning scheme; and
      4. I am satisfied for the reasons provided above that a permit should be granted under cl 52.15 for the use of the subject land as a helicopter landing site subject to the conditions set out in Appendix A to these reasons.
2. Further, I am satisfied that it is not appropriate to condition the direction of landing or take-off from the subject land given that the evidence of Mr Leo is that the noise generated by the helicopter during take-off and landing on the subject land meets the requirements of the Noise Control Guidelines called up by cl 52.15-3.

1. The helicopter landing and take-off shall only be associated with the helicopter model Enstrom 280 FX to the satisfaction of the responsible authority.
2. The number of helicopter flight movements must not exceed 16 per calendar month. On-ground testing of the helicopter is not included in the maximum number of helicopter flight movements to and from the land.

For the purposes of these conditions, a landing movement is one helicopter flight movement and a take-off movement is one flight movement.

1. Helicopter flight movements must only occur between the hours of 7.00am to 7.00pm on any day of the week.
2. A logbook must be maintained recording the dates and times that helicopter flight movements occur on the land and must be made available for inspection on request by the responsible authority.
3. The permit for use will expire if one the following circumstances applies:

(a) The use does not start within two years after the issue of this permit.

(b) The use is discontinued for a period of two years.

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

[3] See 'Outline of Submissions on Behalf of the Applicant' dated 31 January 2025 ('applicants written submission') at [48].