Victorian Civil and Administrative Tribunal|2013-01-08

The Applicant challenges Condition 8 on the grounds that:

A section 173 is costly, cumbersome and unnecessary for all of the items listed in the permit. Conditions 8d and 8e are not relevant to this property. Conditions 8g and 8i are covered by existing laws. Conditions 8a, 8b, 8c and 8f are better controlled by current and future Council rules and rate reduction schemes, Conditions 8h and 8j are unnecessary.

During the hearing of this matter, I was advised that several of the disputed conditions in this matter have been imposed in accordance with an "interim policy" adopted by the council that mandates the imposition of conditions on permits for "rural dwellings" in the Green Wedge Zone. It is my understanding that the council has sought authorisation to exhibit a planning scheme amendment to include the interim policy in the planning scheme. Authorisation has not been received. The planning scheme amendment does not therefore constitute a seriously entertained planning proposal, and it is not a matter I am prepared to accord any weight. The interim policy has however been adopted by council and it is a matter I may have regard to under (1) (a) (g) of the .

The permit holder shall responsibly manage farming practices including spray drift so as not to impact on neighbouring properties farming practices.

Delete Conditions 8(i and k), as they are now unnecessary.

For these reasons, with the attached Order, I will direct that the permit to be modified and for Condition 8 to be deleted.

Section 109(2) of the Victorian Civil and Administrative Act 1999 empowers the Tribunal to order a party to pay all or part of the costs of another party in a proceeding. The Tribunal's discretion in granting such an order for costs is guided by section 109(3). Before the Tribunal can make an order that Council pay the Applicant's costs, the Tribunal must be satisfied that it is fair to do so[5].
Proper care needs to be taken before the Tribunal will employ a Section 173 Agreement as the primary mechanism for the control of land use and each matter before the Tribunal needs to be considered on its own facts. I am satisfied that this matter required extra time to ensure that the Tribunal was fully informed on all of the State and local policy and legal issues relevant as to whether Condition 8 of the planning permit should proceed. The additional hearing gave all parties the opportunity to put to the Tribunal any relevant submissions and evidence. I am satisfied, on balance, that this provided the Tribunal with the opportunity to be better informed as to whether a section 173 Agreement is necessary in this matter. It is for these reasons why I do not consider it necessary to make a costs order against the Council and accordingly, there will be no costs order with each party to bear their own costs of the proceeding.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] See, for instance, Feingold v Mornington Peninsula SC [2012] VCAT 1143, O'Keefe v Mornington Peninsula SC [2012] VCAT 583, Targett v Mornington Peninsula SC [2011] VCAT 888, Lyons v Mornington Peninsula SC [2011] VCAT 1761.

[4] During the proceedings, the Tribunal was referred to numerous cases by the parties including the following: Allegos v Mornington Peninsula SC [2011] VCAT 1188; Beagley Pty Ltd v Mornington Peninsula SC [2012] VCAT 297; Brown v Mornington Peninsula Shire Council [2010] VCAT 92; Dickson v Mornington SC (unreported VCAT 1 May 2012); Feingold v Mornington Peninsula SC [2012] VCAT 1143; Lyons v Mornington Peninsula SC [2011] VCAT 1761; Miglioranza v Mornington Peninsula SC [2011] VCAT 1552; O'Keefe v Mornington Peninsula SC [2012] VCAT 583; Proctor v Mornington Peninsula SC (unreported VCAT 24 July 2012; Proctor v Mornington Peninsula SC (unreported VCAT 30 July 2012);Ratio Consultants Pty Ltd v Mornington SC (unreported VCAT 14 June 2011); Targett v Mornington Peninsula SC [2011] VCAT 888.

[5] Section 109(3) Victorian Civil and Administrative Act 1999.

Environment Act 1987

Veterinary Chemicals (Control of Use) Act 1992

Civil and Administrative Act 1999

Rose v Mornington Peninsula SC [2013] VCAT 38 (8 January 2013)

Allegos v Mornington Peninsula SC [2011] VCAT 1188; Beagley Pty Ltd v Mornington Peninsula SC [2012] VCAT 297; _Brown v Mornington Peninsula Shire Coun_cil [2010] VCAT 92; Cleine v Mornington Peninsula SC [2012] VCAT 1851; Dickson v Mornington SC (unreported VCAT 1 May 2012); Feingold v Mornington Peninsula SC [2012] VCAT 1143; Lyons v Mornington Peninsula SC [2011] VCAT 1761; Miglioranza v Mornington Peninsula SC [2011] VCAT 1552; O'Keefe v Mornington Peninsula SC [2012] VCAT 583; Proctor v Mornington Peninsula Shire Council (unreported VCAT 24 July 2012; Proctor v Mornington Peninsula Shire Council (unreported VCAT 30 July 2012); Ratio Consultants Pty Ltd v Mornington SC (unreported VCAT 14 June 2011); Targett v Mornington Peninsula Shire Council [2011] VCAT 888.

Rose v Mornington Peninsula SC [2013] VCAT 38

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (4)

Cases Cited (2)

Rose v Mornington Peninsula SC [2013] VCAT 38 (8 January 2013)