1 Provided that the permit is varied so as to make it explicit that the notes are for information only, the tribunal does not otherwise have jurisdiction to order that the content of the notes be varied.

REASONS (given orally at the hearing and subsequently revised)

1 Port Phillip City Council (the council) has issued three planning permits pursuant to the Port Phillip Planning Scheme (the scheme) permitting the development of land in Carlisle Street, St Kilda. The applicant for the permit has sought to review certain conditions to which the permits were subject. In the course of these proceedings the applicant also raised a challenge to a note which was included on each of the permits. The relevant note reads:

The owners and occupiers of the development allowed by this permit will not be eligible for council resident or visitor parking permits.

2 As the question of whether an applicant for review could challenge notes on a permit is a question of law Mr Cimino, before whom the case was listed, referred the matter to me for determination.

3 Essentially the applicant contends that the powers available to the tribunal, in particular those in section 51(1) and 51(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 empower the tribunal to vary the permit so as to delete the note. The council responds by saying that the note has no formal planning function, cannot be enforced by the planning process and is simply there for reasons of information. Consequently, it says that the content of any note is beyond the power of the tribunal to control.

4 The starting point must be the provisions of the Planning and Environment Act 1987 that relate to the grant of permits. Section 62 of the Act provides that in deciding to grant a permit the responsible authority must include certain conditions, must not include certain other conditions and may include yet other conditions. There is no specific provision in the Planning and Environment Act for the insertion of notes on permits.

5 Further a permit is required to be in the form prescribed by the Planning and Environment Regulations. That form sets out the framework for a permit but, once again, makes no reference to notes.

6 The application for review before the tribunal is made under section 80 of the Planning and Environment Act. This allows an applicant for a permit to apply to the tribunal for review of any condition in a permit which the responsible authority has issued. There is no specific provision that would empower an applicant for a permit to seek review of a note in a permit.

7 Section 85(1)(e) of the Planning and Environment Act then provides that after hearing an application for review, the tribunal may direct that a permit must or must not contain any specified condition. Once again, there is no specific power in that section that relates to notes.

8 By contrast, section 51 of the VCAT Act is cast in general language and generally provides that the tribunal has all the functions of the decision maker and, in determining a proceeding for review of a decision, the tribunal may by order vary the decision under review.

9 It needs to be said at the outset that if a note effectively imposes a condition upon the permission that is granted by the permit, this would constitute a condition for the purposes of the Planning and Environment Act and hence be subject to all the provisions that apply to conditions and the review of conditions. Thus it is not possible for a responsible authority to avoid the scrutiny of the appeal process by describing what is effectively a condition as a note.

10 If the form of a note is such that it can only be realistically be regarded as a condition, then clearly it is a matter subject to review. But if the note is advisory only, and does not purport to constitute a condition, then I agree with the comment of Justice Debelle in Pathline Australia Pty Ltd v Environment Protection Authority [2002] SASC 37; (2002) 118 LGERA 434 at 449 when he said:

Finally planning authorities should realise that notes to applicant of the kind included in this development authorisation do not in any respect constitute an obligation on a developer which is capable of being enforced.

11 I believe it is desirable, if notes are to be included on a permit which are not intended to constitute an obligation or condition, that they be signposted in such a way as to make it abundantly clear to any reader of the document that the matters set out in the notes are not intended to be conditions. For example words might be added along these lines:

These notes are for information only and do not constitute part of this permit or conditions of this permit.

12 Turning to the note in the present case I conclude that there is some ambiguity as to whether it purports to be a requirement or merely advice. As I indicated earlier, if it is a requirement and, hence, a condition of the permit it is subject to review. But the council has made it clear in its submission that it intends the note to be merely advisory. It would be possible to give unambiguous effect to that submission by simply adding the words which I previously set out, namely that the notes are for information only, etc.

13 Given that it would be possible for the tribunal to order that such words be added into the permit, I believe I should then proceed on the basis that those words are there and that the note is unambiguously intended to be for information only and not constitute part of the permit or a condition of the permit. On that basis it seems to me that the content of the note cannot be regarded as part of the decision of the responsible authority pursuant to the permit application and, hence, not part of the decision under review. That being so the tribunal does not have power to vary the note because its power under section 51(2)(b) of the VCAT Act is confined to varying the decision under review. I believe such conclusions are also consistent with the provisions of the Planning and Environment Act which make no provision for notes to be included in permits, or for appeals to be made in respect of notes, or for the tribunal to direct that permits must or must not contain notes.

14 I cannot leave this matter without making some brief observations about the content of the note itself. The note relates to the manner in which the council as a council, as opposed to a responsible authority, proposes to exercise its powers in the future in relation to parking permits. That is a power that is not subject to review pursuant to the Planning and Environment Act, although it may well be the subject to review or challenge in other lists before this tribunal. When the council approaches its task under the Local Government Act in relation to these matters, it is important that council operates fairly. Fairness will not always be achieved by simply dividing landowners into those who are already there and those who are proposing to be there. One can readily see that there would be much fairer ways, as well as more efficient and environmentally appropriate ways, of adopting far sighted policies under that local government legislation in relation to parking on public streets. There is no right to use a public street as a garage; it is a privilege. A usual approach in this situation is to charge those who wish to take advantage of the privilege at a rate that reflects a market rate.

15 My conclusion on the question of law is, provided that the permit is varied so as to make it explicit that the notes are for information only, the tribunal does not otherwise have jurisdiction to order that the content of the notes be varied.

For Responsible Authority: Mr P Beard, Planning Officer