Application under section 79 of the Planning and Environment Act 1987.

Design and Development Overlay - Schedule 5 (Aviation Obstacle Referral Height Area No 2)

Adjoining land to the south and west (Centre Dandenong Road and Boundary Road) is in a Road Zone Category 1.

Construction of buildings and works within 100 metres from a Road Zone Category 1 under clause 35.04-5 of the Kingston Planning Scheme.

Land is located on the north-east corner of Boundary Road and Centre Dandenong Road, Dingley Village.

Land has been filled to a depth of approximately 9 metres in height. The greenhouses and site shed will be located on top of the fill.

1. This proceeding is an application under section 79 of the Planning and Environment Act 1987 against the failure by the responsible authority to grant a permit. According to the council, the permit application has lapsed pursuant to section 54B(1) of the Planning and Environment Act 1987. The council has applied to have the application for review struck out.
2. The applicant lodged an application for a planning permit with the council on 22 July 2010. The proposal was described in the permit application as follows:

The permit application is for building and works including establishment of greenhouses, a site shed, ancillary works, and site levels.

A permit will be required for these works as the works are to be located within 100m of a Road Zone Category 1.

The buildings and works will provide for 'Crop Raising' which is a Section 1 Use.

1. On 18 August 2010 the council wrote to the permit applicant and requested further information pursuant to section 54 of the Planning and Environment Act 1987. The request was made within time[1]. As required by section 54(1B) of the Act, the information request stated that if the information was not provided to council's satisfaction before 18 October 2010, the permit application would lapse.
2. Item 1 of the request for further information, which is in contention, was as follows:

In accordance with the decision guidelines of the Green Wedge Zone, please demonstrate whether the site is suitable for the proposed buildings. More specifically, council requires the location and nature of the filled area to be shown on the plans in relation to the proposed buildings on the site and whether the site is capable of supporting the proposed buildings. Evidence, such as soil tests outlining the precise nature of the fill materials and a report by a suitably qualified geotechnical engineer to this effect is required.

1. The correspondence went on to set out a number of concerns that the council had with the proposal. They included the following:

Filled area: Given that the site has been filled without a planning permit, council is concerned that the filled land may not be able to support the proposed buildings and works. Further, council is concerned as to what impact any water runoff from the crop raising use would have upon the filled material and subsequently the natural water course. Should the fill material contain prescribed waste, then this may have a detrimental impact upon the environment. Given that the site is located within close proximity to Melbourne Water's Old Dandenong Road drain, you are strongly advised to provide evidence that the proposed use will not adversely impact upon the watercourses in the area.

1. By letter dated 13 September 2010, the applicant responded to the council's request for further information. It provided further information about all the items except item 1. With respect to this item, the applicant advised as follows:

No additional information will be provided regarding the fill placed on the subject site beyond that which will be placed within the proposed Section 173 Agreement (refer planning submission report). The submitted plans provide accurate definition of the existing levels and are relevant to consideration of this application. It is not proposed to undertake testing to a standard that will enable technical definition of the nature of the fill. However the fill that is on site is clean fill.

1. In response to the council's issues of concern, the permit applicant responded as follows with respect to the filled area:

Filled Area. Your concern, relating to structures being able to be structurally supported on the fill are noted. Appropriate structural assessment will be undertaken prior to construction and submitted for building permit approval. This is not a planning matter.

There is no prescribed waste within the fill. There is no potential for run off for seepage from the site to adversely affect any nearby water course.

1. The council says that because the applicant did not provide the further information requested by the lapse date, the planning application has lapsed and accordingly, there is no jurisdiction for the Tribunal to consider an application for review against failure under section 79 of the Act.
2. For its part, the applicant says that the permit application has not lapsed because the information sought by the council was not information it was legally entitled to require. It says that:
   • The information is not relevant to the exercise of discretion to grant a permit in this case.
   • The requirement to provide information was in all the circumstances unreasonable.
3. With respect to the first of these issues, namely, whether the request for further information was ultra vires, the applicant submits that the proposed use of the land for flower growing falls within the definition of crop raising[2]. In the Green Wedge Zone, crop raising is a section 1 use and therefore permitted as of right. Under clause 35.04-5 of the planning scheme, no permit is required for buildings and works associated with a section 1 use except in certain circumstances, which includes a building within various setbacks. The relevant setback applicable in this case is a building within 100 metres from a Road Zone Category 1. Thus it is only those buildings within 100 metres of Centre Dandenong Road and Boundary Road, which are both in a Road Zone Category 1, that require a permit. The greenhouses outside this setback do not require a permit[3]. Whilst some levelling of the existing fill on the land will be required, this constitutes works and no permit is required for works within the setback.
4. It was submitted by the applicant that it is a basic principle of administrative law that a statutory discretion must be exercised for the purpose for which it is conferred, and only for that purpose[4]. In this case, the planning control regulates development in a Green Wedge Zone within 100 metres of a major road. It was submitted that the purpose of the control is to preserve appropriate sight lines on the road and protect the visual appearance of the land from the road consistently with the zone purposes to conserve and enhance scenic non-urban landscapes. Conversely, it was said that it is not a purpose of the control to remediate possibly contaminated land within the area of control. It was submitted that the power to require further information under section 54 of the Act is confined to information that is relevant to matters which the responsible authority must, or can, consider in determining particular application before it. The extent and nature of fill on that part of the land lying within 100 metres of the roads is not a matter that is relevant to the council's decision whether or not to grant a permit for the erection of greenhouses. Accordingly, the applicant submits that it is beyond power for the council to seek to utilise section 54 of the Act to attempt to obtain information about the fill on the land.
5. The applicant also submitted that the requirement to provide information regarding the nature of the fill on the land, and in particular the requirement for soil tests and a report from qualified geotechnical engineer, is ultra vires because it is unreasonable.
6. I do not accept the applicant's argument that item 1 of the council's request for further information in its letter of 18 August 2010 was ultra vires. I consider that the applicant's submissions about the reasonableness of the information requested and the amount of detailed evidence requested may be arguable if this was an application to review the request for further information under section 78(b) of the Act, but there is no such review before the Tribunal.
7. Under section 78(b), an applicant for a permit may apply to the Tribunal for review of a requirement by the responsible authority for more information under section 54. Section 85(1)(d) of the Act sets out what actions the Tribunal may take when determining an application for review of a requirement for more information under section 54. The Tribunal may:

(i) direct the responsible authority to consider the application for a permit as made under section 47; or

1. There are also opportunities under the Act for an applicant to apply for an extension of time to provide more information[5] and there is a right of review in respect of this too[6].
2. However, the applicant chose not to apply for a review of the council's requirement for further information about the location and nature of the filled area on the site. Instead, it simply refused to provide this information.
3. In Caladoukas v Moreland CC[7], Deputy President Dwyer, in the context of an application for review under section 78(b), summarised the principles relating to the operation of section 54 of the Planning and Environment Act 1987 as follows:

• the purpose of the power in s 54 is to enable a responsible authority to properly deal with a permit application -e.g. to clarify the application, or to overcome a deficiency in the application that prevents the responsible authority from understanding or resolving a key issue raised by the application that need to be assessed before a decision can be made.
• the further information required must relate to the potential planning impacts of the development or use proposed in the application, and the matters that the responsible authority must consider before making a decision on that application.
• importantly, the further information required must be proportionate to the scale and nature of the proposal, and the issues to be assessed.
• a requirement under s 54 must be a bona fide request for information. It should not be used to delay an application, or to effectively seek changes to the application. Nor should it seek generic information not directly related to the particular application under consideration, or information that would ordinarily be required only after a decision to grant a permit had been made - e.g. by way of a subsequent permit condition.

[5] On review, the Tribunal may confirm or change a requirement for further information, or direct the responsible authority to consider the application without the further information.

1. I consider it is arguable whether all the information requested by the council in item 1 could be justified based on these principles. However, I do not find that the request for this information was so unrelated to the purpose for which a permit is required that the request itself can be said to be ultra vires.
2. In my view, the council was entitled to request further information about whether the site is suitable for the proposed buildings. Information of this nature is potentially relevant having regard to the decision guidelines for the Green Wedge Zone. The guidelines include the following:
   • The capability of the land to accommodate the proposed use or development.
   • Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining land uses.
   • The need to minimise any adverse impacts of siting, design, height, bulk, and colours and materials to be used, on landscape features, major roads and vistas.
3. I consider it was open to the council to inquire about the location and nature of the filled area in these circumstances where it is proposed to locate a large number of greenhouses on fill that is elevated 5 metres above natural ground level adjacent to two major roads. I do not need to determine as part of this proceeding whether the geotechnical characteristics of the fill are relevant to the design of the proposed greenhouse buildings and shed nor whether the type of evidence about contamination of the fill materials as specified by the council is reasonable. They are matters going to the merits of the request for further information.
4. Matters pertaining to the reasonableness of the further information are open to challenge on their merits in an application for review under section 78(b). However, in the present case I only need to determine if it was reasonably open to the council to make a request for further information of the general type made and I find that it was.
5. Accordingly, as the further information requested under section 54 was not provided by the lapse date and the requirement was not changed or set aside by the Tribunal on review under section 78(b), I find that the permit application lapsed pursuant to the provisions of section 54B. Accordingly, with no valid permit application on foot, it is not open for the applicant to seek a review of the council's failure to grant a permit under section 79. The application for review is therefore misconceived and will be struck out. If the applicant wishes to pursue this proposal, it will need to make a fresh permit application.
6. Reference was made during the course of the hearing to a related proceeding for an enforcement order, which is due to be heard on 15 March 2011. This proceeding relates to the fill on the land. However, it is a separate proceeding and is not relevant, in my view, to the question of whether or not this permit application has lapsed. The arguments relating to the fill and the level of testing that the council is seeking as part of the enforcement proceeding are separate issues to those arising in the current proceeding.

[1] As required by Regulation 20 of the Planning and Environment Regulations 2005.

[2] Under clause 74 of the Kingston Planning Scheme, crop raising is defined as follows:

Land used to propagate, cultivate or harvest plants, including cereals, flowers, fruit, seeds, trees, turf, and vegetables.

[3] It was common ground that no permit was required under the Design and Development Overlay Schedule 5.

[4] National Trust of Australia (Vic) v T & G Neutral Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592

[5] Section 54A of the Planning and Environment Act 1987

[6] Section 81(2) of the Planning and Environment Act 1987

[7] [2010] VCAT 498