Stephanie Mann of Counsel, instructed by Ruby Bell, Minter Ellison Lawyers

Application under section 149A(1)(a) of the Planning and Environment Act 1987 (Vic) to determine a matter related to the interpretation of the Brimbank Planning Scheme

Application under section 81(2) of the Planning and Environment Act 1987 (Vic) - to review the decision to refuse to extend time to provide more information in respect of permit application P331/2024

Clause 32.09-10 (construct buildings or construct or carry out works for a child care centre)

Clause 43.01-1 (part demolish a building and construct a building or construct or carry out works)

Clause 43.01-9 (use for a prohibited use in HO93)[1]

Clause 52.06-3 (reduction in car parking requirements)

The subject land is on the northwest corner of Church Street and Kennedy Street. It is rectangular in shape with a frontage of 25.15 metres and a depth of 40.23 metres and has an area of 1,012 square metres. The land contains the former Christ Church. The surrounding area is developed for suburban housing.

1. Salnando Superannuation Pty Ltd ('Salnando') wants to use and develop a former church at 36 Church Street, Keilor ('subject land') for a child care centre.
2. The subject land is in a Neighbourhood Residential Zone ('NRZ') under the Brimbank Planning Scheme ('planning scheme'). To use and develop land in the NRZ for a child care centre requires the permission of Brimbank City Council ('Council'). Salnando applied to the Council for that permission.[3]
3. The Council required Salnando to provide more information about the application.[4] At Salnando's request, the Council extended time on two occasions to provide that information. The consequence was that the application would lapse if the information was not provided by 4 December 2024.
4. Before that date, Salnando made a third request for an extension of time which the Council refused. The Council's main ground for refusing the third extension was that the subject land could not be used or developed for a child care centre because the effect of a provision of the planning scheme other than the NRZ (to which I will shortly refer) was that the use for that purpose was 'prohibited'.
5. Salnando has lodged two applications with the Tribunal.
6. First, it has applied to review the Council's refusal to extend time to provide more information.[5]
7. Second, it has applied for the following declarations:[6]

The use of 36 Church Street, Keilor for a child care centre is not prohibited by the Brimbank Planning Scheme.

Discretion exists for a planning permit to issue to use 36 Church Street, Keilor for a child care centre.

Such other declarations that the Tribunal deems appropriate or necessary.

1. The processing of Salnando's permit application has therefore stalled pending resolution of a legal issue about whether the Council has discretion to grant permission to use the subject land for a child care centre.

1. The issue arises because the subject land is affected by two overlays under the planning scheme - the Melbourne Airport Environs Overlay Schedule 1 ('MAEO1') and the Heritage Overlay Schedule 93 ('HO93').
2. The MAEO head clause provides:

Use of land

Any requirement in a schedule to this overlay must be met.[7]

Use of land

...

Land must not be used for:

...

1. In these reasons I will refer to this requirement as 'the MAEO1 requirement'.
2. A child care centre is nested under education centre,[9] and therefore the MAEO1 requirement is that the subject land must not be used for a child care centre.
3. For the moment, I will state that MAEO1 'requires' that the subject land 'must not be used' for a child care centre, rather than state a child care centre is a 'prohibited use' under MAEO1. The reasons for this distinction will become apparent in these reasons.
4. Clause 43.01-9 in the HO head clause provides:

Use of a heritage place

A permit may be granted to use a heritage place (including a heritage place which is included in the Victorian Heritage Register) for a use which would otherwise be prohibited if all of the following apply:

• The schedule to this overlay specifies the heritage place as one where prohibited uses may be permitted.
• The use will not adversely affect the significance of the heritage place.
• The benefits obtained from the use can be demonstrably applied towards the conservation of the heritage place.

1. In the schedule to the HO, HO93 identifies the former church on the subject land as a heritage place in which 'prohibited uses' may be permitted:

1. In these reasons I will refer to the combined effect of clause 43.01-9 and HO93 as the 'HO prohibited uses exemption'.
2. If the MAEO1 requirement is properly construed as a 'prohibited use' for the purposes of the HO prohibited uses exemption, is the MAEO1 requirement 'unlocked' and does the Council have the discretion to grant permission for a child care centre?
3. In other words, is there an apparent inconsistency between the MAEO1 requirement and the HO prohibited uses exemption and, if so, how should the planning scheme be read to resolve the inconsistency?

1. The proceeding has been subject to two practice day hearings. It suffices to record the following main outcomes.
2. First, the Tribunal granted leave to Sam Sfameni (an individual related to Salnando) to withdraw a separate application to review the Council's refusal to extend time to provide more information on a separate but related permit application to use adjoining land at 36A Church Street, Keilor for a car park.[10]
3. Second, on an application by the Melbourne Airport operator (Australia Pacific Airports (Melbourne) Pty Ltd) ('APAM') to be joined to the proceedings, the Tribunal joined APAM only to Salnando's application for declarations.
4. Third, the Tribunal considered APAM's submissions that Salnando's declarations do not target the 'nature of the interaction' between HO93 and MAEO1 but the Tribunal refused APAM's request that Salnando be granted leave to amend the form of the declarations it seeks.[11]
5. Fourth, Salnando's two applications should remain as separate proceedings and should remain entered into the Tribunal's Planning and Environment List 'Fast Track' sub-stream but be heard and determined together.[12]

1. Finding the meaning and effect of the combined operation of the MAEO1 requirement and the HO prohibited uses is a matter of statutory interpretation.
2. These are not proceedings in which the parties disagree about the relevant statutory interpretation principles. Rather, the parties disagree about how they should be applied in these proceedings.
3. Salnando, the Council and APAM each drew to my attention to the relevant statutory provisions regarding interpretation and many of the leading interpretation authorities and the relevant principles from those authorities.[13]
4. At the risk of over-simplifying the principles, it suffices to state that the main principles relevant in these proceedings are:

(a) The starting point is the ordinary and grammatical sense of the words to be interpreted, having regard to context and purpose of the legislation (in these proceedings, the planning scheme) as a whole.

(b) Subordinate instruments (including the planning scheme in these proceedings) should be construed in light of practical considerations, having regard to use by practical people skilled in a particular industry.

(c) The meaning of words in a planning scheme is to be ascertained in their context, whether or not the relevant provisions raise an ambiguity or inconsistency.

1. There is no suggestion that either the MAEO1 requirement or the HO prohibited uses exemption is invalid. These proceedings do not therefore call for 'reading down' one of the provisions so as to 'give way' to the 'leading' provision in order to give effect to the purpose of the planning scheme as a whole.[14]

1. Salnando relies on Mr Beeston's evidence. Mr Beeston is an expert heritage architect. His ultimate opinions were that:

[T]he proposed adaptive reuse of the former [church] - currently a vacant building - as a [child care centre] would have the potential, subject to further architectural design resolution and refinement and the development/implementation of conservation works, to satisfy the intent and provisions of clause 43.01-9 ... of [the planning scheme].

...

[T]he proposed adaptive reuse of the former [church] as a [child care centre] has the potential to be compatible with its historic function as a place of worship. The benefit ... is that the community-oriented purpose would be sustained and consistent with its historical role. This outcome has clear heritage benefits.

1. Mr Beeston's opinions are of no assistance in determining the declaration application. The interpretation of a planning scheme is a question of law. Mr Beeston's opinions cannot assist in that task. Mr Beeston's opinions may be relevant if the merits of Salnando's permit application had to be determined by the Tribunal in the future.
2. I discern that Salnando relied on Mr Beeston's opinion out of an abundance of caution relating to the whole of clause 43.01-9. The clause fixes three requirements for the exercise of discretion to allow a prohibited use. The first requirement is that the HO schedule specifies that prohibited use may be permitted. As I have stated, that requirement is met. The second and third requirements are that:

The use will not adversely affect the significance of the heritage place.

The benefits obtained from the use can be demonstrably applied towards the conservation of the heritage place.

1. It might be said that the Council (and the Tribunal, on review) would only have jurisdiction to allow a use 'which would otherwise be prohibited' if satisfied on these two merits-based requirements.
2. Mr Beeston's opinions also do not assist if those two matters fall to be decided because Mr Beeston was not asked to (and did not) consider Salnando's child care centre permit application, did not expressly consider the second requirement, and accepted that the plans and details in the permit application required 'further refinement'.
3. Having regard to my findings in these reasons, the second and third requirements do not need to be decided and Mr Beeston's merits-based opinions do not need to be considered to determine whether permission may be granted under clause 43.01-9.

1. As a starting point, I find there is an 'apparent inconsistency' between the MAEO1 requirement and the HO prohibited uses exemption.
2. The reason, simply put, is that the effect of the former is to prohibit use for a child care centre and the effect of the latter is to allow, subject to permission, a use which would otherwise be prohibited.

(4) If there appears to be an inconsistency between different provisions of a planning scheme -

(a) the scheme must, so far as practicable, be read so as to resolve the inconsistency; and

(b) subject to paragraph (a) -

(i) the State standard provisions prevail over the local provisions; and

(ii) a specific control over land prevails over any strategic plan, policy statement, code or guideline in the planning scheme.

1. In my opinion, what paragraph (a) requires is that a decision maker must read the planning scheme as a whole so as to resolve the apparent inconsistency, provided that the resolution is 'practicable'.
2. In carrying out that task, if the inconsistency is between the provisions described in paragraph (b), the consistency must be resolved in the manner set out in that paragraph.
3. Paragraph (b)(i) is not engaged because both the MAEO1 requirement and the HO prohibited uses exemption are an amalgam of State standard provisions and local provisions.
4. Paragraph (b)(ii) is not relevant because I characterise both the MAEO1 requirement and the HO prohibited uses exemption as a 'specific control'.

1. The apparent inconsistency is not resolved by either an express provision that the MAEO1 requirement prevails over the HO prohibited uses exemption or an express provision that the HO prohibited uses exemption does not apply if the prohibition arises under the MAEO1 requirement.

1. In interpreting a planning scheme, a document that is relevant may be considered.[15] An explanatory report prepared for a relevant amendment to a planning scheme may be a relevant document.[16]
2. Salnando submitted that the explanatory report for Amendment VC30 is relevant because that Amendment introduced the MAEO into the planning scheme in 2007. Salnando drew my attention to the following passage in that explanatory report:

Schedule 1 of the MAEO applies to areas where high levels of noise are forecast. As a result, some residential development and "sensitive" uses, such as a child care centre, are prohibited.

(Tribunal emphasis)

1. Salnando said the specific reference to a child centre being 'prohibited' supports its submission that a child care centre should be construed as a prohibited use under MAEO1.
2. This submission does not have significant weight because (as I will explain shortly in these reasons) the reference properly refers to an 'effect' rather than the legal status of the use.
3. In addition, the relevant planning authorities have not been consistent in relevant explanatory reports. The explanatory report for Amendment VC173 is also relevant because it applied MAEO1 to the subject land in 2021. The following passages appear in that explanatory report:

Properties included in the MAEO may be impacted by aircraft nose and frequency. However, this will be reduced in the future by requiring new development to provide noise attenuation measures. In addition, the future intensification of development within the MAEO will be restricted. These measures balance the protection of the Melbourne Airport as a significant asset and minimise the potential impact of aircraft noise.

...

The Amendment restricts the encroachment of intensive development and noise sensitive uses within the MAEO area.

(Tribunal emphasis)

1. The planning authority has chosen the word 'restriction' in these passages, which more accurately reflects the words in MAEO1.
2. Salnando also relies on the Government's practice note relating to applying the HO. It drew my attention to the following passage relating to clause 43.01-9:

This provision should not be applied to significant areas because it might result in the de facto rezoning of a large area. The provision should only be applied to specific places. For example, the provision might be used for a redundant church, warehouse or other large building complex where it is considered that the normally available range of permissible uses is insufficient to provide for the future conservation of the building.[17]

(Tribunal emphasis)

1. This passage supports the application of the first requirement in clause 43.01-9 to the subject land, but does no more than that. It does not assist in finding the meaning and combined effect of the HO prohibited uses exemption and the MAEO1 requirement.

The Council has accepted a child care centre is a prohibited use

1. In its refusal of Salnando's third request to extend time to provide more information dated 20 November 2024, the Council stated:

... the Child Care Centre as it relates to the controls applicable to 36 Church Street Keilor is also a prohibited use based on the correct interpretation of the HO (including HO93) wording vs the MAEO (including MAEO1) wording.

(Tribunal emphasis)

1. Salnando submitted I should give weight to the Council's opinion that the child care centre is a prohibited use.
2. The Council's opinion and the way it was expressed is not determinative, particularly as, for the purposes of these proceedings, that is not the Council's position. I also prefer to view the expression in the Council's refusal as a reference by its author (the Council's relevant planning officer) to effect rather than legal status.[18]

1. The authors of the planning scheme deliberately chose the word 'restrict' in the purpose of MAEO1 and chose the expression '[l]and must not be used' as the description of the relevant 'restriction' in relation to land use. They must be taken to have deliberately chosen to not use the word 'prohibit' and to not state that specified uses (including, in effect, a child care centre) were 'prohibited uses'.
2. Even though the effect under the MAEO1 requirement is a restriction that prohibits use for a child care centre, that does not mean that a child care centre is a 'prohibited use' or 'a use which would otherwise be prohibited' for the purposes of clause 43.01-9.
3. This distinction in choice of words might appear at first to be semantic, but on careful analysis it is not semantic. The distinction is consistent with the interpretation principle of giving effect to the words actually used. It leads to the conclusion that the authors had something else in mind other than a 'prohibited' use in MAEO1.
4. The word 'prohibited' in relation to a prohibited use is not defined in the planning scheme.
5. The context of the planning scheme in relation to a prohibited use is found in provisions for the operation of zones. Clause 71.03 of the planning scheme relevantly provides:

Operation of zones

In each zone and schedule to a zone which contains a table of uses, the controls over the use of land are divided into three sections.

...

Section 3 uses

A use in Section 3 is prohibited.

1. A prohibited use is created under planning schemes through a provision in each zone known as a 'Table of Uses' in which uses that are prohibited are listed in 'Section 3 - Prohibited'. This approach is mandated by legislated direction.[19] There are limited exceptions,[20] but they do not derogate from this drafting principle.
2. The provision relating to the operation of an overlay also does not expressly refer to a 'prohibited use'.[21]
3. In relation to purpose, it is relevant that the purpose of the MAEO head clause does not include to 'prohibit' specified uses and that the purpose of MAEO1 is to identify areas that are or will be subject to high levels of aircraft noise. In relation to 'use of land', the head clause refers to meeting a 'requirement' in a schedule and MAEO1 refers to 'land must not be used' for specified uses.
4. The purposes of the HO head clause includes:

To conserve specified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.[22]

1. The expression 'a use that would otherwise be prohibited' mirrors that in clause 43.01-9 and does not therefore connote a 'prohibited use' in the manner I have referred to in relation to the operation of zones.
2. Considering 'purpose' at a broader level, there is also no overlap in purpose or subject matter between the HO and the MAEO. There are also no decision guidelines which require heritage considerations to be taken into account in decisions under the MAEO or airport-related considerations to be taken into account in decisions under the HO.

1. I have also considered interpretation principles relating to specificity and timing.
2. On one level, the HO prohibited uses exemption is more specific than the MAEO1 requirement because it only applies to the subject land. However, on another level, the HO prohibited uses exemption has a wider remit in that it also applies to all uses prohibited under all zones across the planning scheme and MAEO1 has a narrower remit in its application to specified areas near the airport.
3. Specificity does not therefore assist with resolving apparent inconsistency.
4. In relation to timing, MAEO1 was introduced into the planning scheme on 14 May 2007 but on that date did not apply to the subject land. On 26 October 2021, MAEO1 was applied to the subject land.[23]
5. On the other hand, clause 43.01-9 was part of the planning scheme when it commenced in 1999.[24] However, HO93 was not introduced into the schedule to the HO until 16 February 2006.
6. In other words, the MAEO1 requirement applied to the subject land after the HO prohibited uses exemption applied to the subject land. On that basis, timing does not provide support for Salnando's submissions.

1. In resolving an apparent inconsistency I have also considered the practical consequences of determining that a child care centre is a prohibited use for the purposes of clause 43.01-9 based on the effect of the MAEO1 requirement. If the MAEO1 is correspondingly 'read down' (ie the restriction has no effect), an absurd outcome arises under MAEO1.
2. If the restriction in MAEO1 that land must not be used for a child care centre has no effect because of clause 43.01-9, no permission would be required under MAEO1 to develop land for a child care centre. The reason is that MAEO1 relevantly provides:

A permit is required to construct a building or construct or carry out works for a use in Clause 1.0.

1. The expression 'a use in Clause 1.0' must refer to a use in clause 1.0 for which a permit is required. It would not make sense that it also refers to a use specified in the list that 'land must not be used for'. It makes no sense to require buildings and works permission for a use subject to that restriction. It would also be contrary to the general provision of the planning scheme that:

Land must not be developed unless the land as developed can be used in accordance with this planning scheme.[25]

1. If no permission for buildings and works for a child care centre was required under MAEO1:

(a) The obligation for a building to comply with specified noise attenuation measures would not apply because the obligation only applies to 'any building for which a permit is required'.[26]

(b) The Council could not consider the impact of aircraft noise or the operation of the airport (being just two of the MAEO head clause decision guidelines)[27] in deciding whether to grant permission for buildings and works under clause 32.09-10 or clause 43.01-1.

1. This consequence cannot have been intended by the authors of the planning scheme.

1. Having regard to the above considerations, I find that the resolution of the apparent inconsistency is to read the planning scheme so that the MAEO1 requirement and the HO prohibited uses exemption apply independently and have separate effect. In other words, they both apply as to their terms.
2. I do not consider there is anything unusual about this finding. If two or more provisions of a planning scheme apply in particular circumstances, a responsible authority must apply each of the provisions. If one provision is more restrictive than another provision, the more restrictive provision must be met and may determine the relevant outcome of an 'omnibus' application.[28]
3. These are practical considerations, having regard to administration of a planning scheme by planning staff employed by responsible authorities.
4. In these circumstances, after applying both provisions as to their terms, clause 43.01-9 does not apply because a child care centre is 'prohibited' neither by MAEO1 nor the NRZ.

(a) There appears to be an inconsistency between the MAEO1 requirement and the HO prohibited uses exemption.

(b) After reading the planning scheme so as to resolve the apparent inconsistency, both the MAEO1 requirement and the HO prohibited uses exemption apply as to their terms.

(c) A child care centre is not a 'prohibited use' (or more specifically is not a use 'which would otherwise be prohibited') under clause 43.01-9.

(d) No permission to use the subject land for a child care centre is required under clause 43.01-9.

(e) The subject land must not be used for a child care centre under MAEO1 and this prevents the grant of permission to use the subject land for a child care centre, even if there were no grounds to refuse permission having regard only to the NRZ.

(f) If the subject land cannot be used for a child care centre, permission to develop the subject land for a child care centre under the NRZ and HO must not be granted.

1. The Tribunal has jurisdiction to determine the declaration application because:

(a) Salnando is the owner of the subject land is therefore a 'specified person';[29]

(b) the issue of whether there is discretion to grant permission to use the subject land for a child care centre is a matter that relates to the interpretation of the planning scheme;[30] and

(c) Salnando may therefore apply to the Tribunal for the determination of the matter.[31]

1. The Tribunal has broad powers to make a declaration.[32]
2. The Council submitted that no declaration should be made because the dispute is not of 'practical importance' and the declaration sought by Salnando is not of 'practical use'.[33]
3. It submitted the issue is 'ultimately academic and of no utility' because it is 'highly unlikely' that permission would be ultimately granted to use the subject land for a child care centre having regard to various factors including the policy framework relating to protecting airport operations and restricting sensitive uses in its environs.
4. These grounds are unpersuasive.
5. Whether there is an inconsistency between the MAEO1 requirement and the HO prohibited uses exemption is a novel question according to the parties that has not yet been subject to Tribunal or Court consideration.
6. As well, the resolution is critical to the outcome of Salnando's permit application, and has relevance to what the parties confirmed were other heritage places in MAEO1 for which clause 43.01-9 currently applies.
7. APAM submitted that it would not oppose the making of Salnando's first declaration because a child care centre under the MAEO1 requirement is not a 'prohibited use'. However, APAM opposes the grant of its second declaration having regard to the effect of the MAEO1 requirement.
8. In my opinion, I should declare that the correct interpretation of the planning scheme is that:

(a) a child care centre is not a prohibited use for the purposes of clause 43.01-9 having regard to the NRZ and the meaning and effect of MAEO1; and

(b) the subject land must not be used for a child care centre under MAEO1.

1. Based on my findings on the declaration application, the Council cannot grant permission in respect of permit application P331/2024 to use the subject land for a child care centre.
2. In respect of its application to review the Council's decision to refuse to extend time to provide more information, Salnando submitted that if the Tribunal found the Council cannot grant permission to use the subject land for a child care centre, Salnando would be likely to seek leave to withdraw its application. If the Tribunal were to grant such leave, the permit application would lapse and the Council's processing of the permit application would end.
3. I will frame orders for the extension of time application so that Salnando has three weeks to file an application for leave to withdraw the application.
4. After considering this order, Salnando may decide to seek other orders to dispose of the application. I will allow the parties to file consent orders to dispose the application within the same time frame, provided the orders do not conflict with the final orders for the declaration application.
5. If Salnando or the parties do not file in accordance with these alternatives, I will proceed to consider issuing final orders to strike out the application on the grounds it is misconceived.

(a) I will make declarations in a form different from that sought by Salnando in its declarations application; and

(b) I will give leave for either Salnando to file an application to withdraw its extension of time application or the parties to file consent orders to finally dispose of the application.

[1] The applicant submitted permission could be granted under this clause. Whether permission could be granted under this clause is the focus of Application P1419/2024.

[2] The written and oral submissions and evidence of the parties, the documents the parties filed before the hearing, and the filed statements of grounds have all been considered in the determination of these proceedings. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] The permissions required under the planning scheme are specified in the Information Section in this order.

[4] It is unnecessary to set out the details of the information that the Council sought.

[5] Planning and Environment Act 1987 (Vic) ('PE Act') s 81(2).

[10] The consequence of withdrawal was that the permit application lapsed.

[11] As a matter of record, APAM's appropriate form of the declarations was that '[t]he operation of clause 43.01-9 of the [HO], by allowing permits to be granted in some circumstances for prohibited uses of land, allows a permit to be granted for a use that is designated under clause 1.0 of [MAEO1] as one for which land "must not be used"'.

[12] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 82(1)(b).

[13] The relevant statutory provisions are s 35 of the Interpretation of Legislation Act 1984 (Vic) ('IL Act') and s 7 of the PE Act. The relevant authorities were numerous and it is unnecessary to set out their citations.

[14] Kain v Yarra Ranges SC [2013] VCAT 1908 [37].

[17] Department of Environment, Land, Water and Planning 'Applying the Heritage Overlay' (Planning Practice Note 1, August 2018) p 5.

[18] Salnando also submitted that it was not made aware of the Council's position that the use was 'prohibited' at either the pre-application stage or when the first and second extensions of time were granted. If that is correct, the delay is unfortunate but is not relevant to the issue in these proceedings.

[19] See Ministerial Direction 'Form and Content of Planning Schemes' (August 2018) cl 3 - mandatory application of relevant zones in the Victoria Planning Provisions.

[20] See eg cl 51.02-2 of Victoria Planning Provisions relating to 'Metropolitan Green Wedge Land: Core Planning Provisions'.

[23] As an aside, APAM drew my attention to the fact that immediately before MAEO1 was introduced into the planning scheme in 2007, the subject land was subject to the 'Airport Environs Overlay Schedule 1' ('AEO1'). The relevant 'requirement' AEO1 at that time was:

Despite the provisions of the zone land must not be used and a permit must not be granted to use the land for any of the following uses:

No permit may be granted for a use that is prohibited under the zone.

I agree with the parties that the drafting of the AEO1 appears to provide better clarity than the MAEO1. However, the drafting of the AEO1 has not assisted in reading the planning scheme to resolve any apparent inconsistency.

[24] On commencement of the planning scheme, the clause was numbered as cl 43.01-6 but, except for the expression '(including a heritage place which is included in the Victorian Heritage Register)' it remains in an identical form.

[28] A person may lodge an 'omnibus' application for permit that seeks permissions under more than one provision of a planning scheme - see eg Sweetvale Pty Ltd v VCAT [2003] VSCA 83 at [17]; Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27; and Myers v Southern Grampians Shire Council [2023] VSC 658 at [3]. An 'omnibus' permit may be granted only if it is found that permission can or should be granted under each relevant provision.

[33] These are two of the principles in Central Highlands Region Water Authority v Ballarat CC [2007] VCAT 1698 at [6], which are principles that have been regularly applied by the Tribunal.