Valente v Monash CC [2023] VCAT 729

Is the land use proposed by planning permit applications TPA/53179 and TPA/53477 properly characterised as Extractive industry as defined in clause 73.03 of the Monash Planning Scheme?

The activities proposed in the planning applications TPA/53179 and TPA/53477 are not characterised as use of the land for extractive industry as defined in clause 73.03 of the Monash Planning Scheme. Further, the activities proposed in the planning applications TPA 53179 and TPA 53477 do not comprise use of the land under the Monash Planning Scheme.

Alexandra Guild of counsel, instructed by Hall & Wilcox

For William Curt Thompson, Oksana Murashova Thompson & Others

Use and development of the land for preloading of earth and construction of buildings and works (temporary landfill gas venting trench) and alteration of access to a Transport Zone

Applications under section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

1. On 20 December 2022, the Monash City Council (council) issued a Notice of Decision to Grant Planning Permit TPA/53179 (NOD) which allows the land at 1221-1249 Centre Road, Oakleigh South (land) for the:

Use and development ... for preloading of earth and construction of buildings and works (temporary landfill gas venting trench) and alteration of access to a Transport Zone 2

1. On 12 January 2023, Angelo Valente filed an application under section 82 of the Planning and Environment Act 1987 (Vic) (PE Act) seeking review of the NOD (Valente application).[2] Reference to the development of the land for this NOD will be referred to as the 'preloading of earth and temporary landfill gas venting trench'.
2. On 2 February 2023 council issued a NOD for TPA/53477 for the same land which allows:

The use and development of land for preloading of earth including buildings and works (drainage swales), the removal of native vegetation and alteration of access to a road in the Transport Zone 2.

1. On 27 February 2023, William Curt Thompson and others filed an application under section 82 of the PE Act (Thompson application).[3] Reference to the development under this NOD will be referred to 'preloading of earth for drainage swales'.
2. Both proceedings have been listed for a preliminary hearing to determine the following question of law:

Is the land use proposed by planning permit applications TPA/53179 and TPA/53477 properly characterised as Extractive industry as defined in clause 73.03 of the Monash Planning Scheme?

1. Both applications before the Tribunal allege the use is prohibited under the General Residential Zone (GRZ) of the Monash Planning Scheme (scheme) because both applicants assert the use is properly characterised as extractive industry.
2. The parties were required to file written submissions by order of the Tribunal.[4]
3. Having considered the submissions of the parties, I provide the following answer:

The activities proposed in the planning applications TPA 53179 and TPA 53477 are not characterised as use of the land for extractive industry because the activities do not comprise use of the land.

1. The council officer report sets out the history of use and development of the land. It provides the following, as relevant:[5]

1. The land is located on the eastern side of Huntingdale Road with an overall area of approximately 18.79 hectares. The land is zoned Special Use Zone 2 (SUZ2) and GRZ3 under the scheme with the eastern part of the land comprising a former quarry pit. Below is an extract of the current zoning map:

1. The land is divided into six domains that define areas of similar geotechnical characteristics. Below is an extract of the domain boundaries on the land, a term used by the geotechnical engineers involved in the application for planning permit and set out in the plans:[6]

1. That part of the land depicted in the red dashed line above was, according to council, preloaded during works that occurred between 2017-2019. Preloading is a ground improvement technique involving the placement of fill over areas of the ground to induce settlement of land.
2. The Valente application relates to works occurring in area shown as Domain 1 and the Thompson application relates to works in Domains 2a, 3a, 3b and 5. However, access for those works in the Thompson application is through Domain 1.
3. For completeness I set out the domain boundaries shown in the applications for planning permit:

1. The works proposed in Domain 1 include:
   1. construction of a temporary land fill gas trench - 196 metres in length and 4-5 metres below the current surface level, along the north east boundary. The green line on the image below shows the location of the landfill gas trench and the vent rises are depicted as red circles;
   2. importation of fill placed over the Domain 1 area (preloading) resulting in a height difference of 4 to 5 metre from existing site levels; and
   3. removal of fill at a later stage.

1. The proposed works in Domains 2a, 3a, 3b and 5 are:
   1. removal of vegetation;
   2. importation of fill to be placed over the area at three different levels; and
   3. construction of drainage swales.
2. On 16 August 2022, the Environment Protection authority (EPA) issued two Environmental Action Notices (EAN-00002879) and (EAN-0000878).
3. EAN-00002879 required the implementation of landfill gas monitoring as specified in the Construction Environmental Management Plan, Huntingdale Estate 1221 to 1249 Centre Road and 22 Talbot Avenue, Oakleigh South, Vic dated 11 May 2020 (CEMP).
4. EAN-00002878 requires the implementation of groundwater and leachate monitoring as specified in the Groundwater Quality Management Plan, Huntingdale Estate, 1221 to 1249 Centre Road and 22 Talbot Avenue, Oakleigh South, VIC" dated 21 August 2019 (GQMP), or as contained in subsequent versions provided to the EPA.

1. The council says a permit is required for use and development of the land for 'preloading' (being an innominate use) under the GRZ.
2. The table of uses at clause 32.08 of the scheme provides that use of land for extractive industry is a prohibited use in the GRZ.
3. Clause 73.03 of the scheme provides as follows:

1. Thompson and others submit that I should answer the question in the affirmative because:
   1. the application for permit proposed the rehabilitation of the land to return it to a good condition, suitable for future use and/or development;[7]
   2. the land has a long history of sand quarrying requiring a geotechnical response to improve the ground conditions to enable future development;[8]
   3. the rehabilitation of the land is required because of the land's use for extractive industry;[9]
   4. restoring the land to its former health is consistent with the ordinary meaning of 'rehabilitation' and as understood in the specific context of the rehabilitation of extractive industry sites;[10]
   5. the carrying out of works and/or development can comprise a use of land;[11]
   6. use and development are indivisible in circumstances involving extractive industries because the definition of extractive industry at clause 73.03 of the scheme includes reference to rehabilitation;[12]
   7. the proposal is for the application of stockpiles for improving the geotechnical conditions of the land and for monitoring and is properly understood as proposing a use of the land;[13]
   8. where the real and substantial purpose is consistent with a land use term defined in the scheme, the proposed use is to be characterised by that defined term, if the land use in question, commonly or obviously falls within that defined term;[14] and
   9. extractive industry is a land use term defined in the planning scheme and is said to include rehabilitation of the land, thus the proposed use is for extractive industry.
2. Thompson and others rely on Barro Group Pty Ltd v Brimbank CC & Ors[15](Barro) to support their position that the rehabilitation of the land is both a use and development of land.[16]

1. The Valente submission provides a detailed account of the history of the land use which I briefly set out now.
2. In 2017 the land was subject to a rezoning request in Amendment C129 to the Monash Planning (C129) from GRZ3 and SUZ2 to a Comprehensive Development Zone. The report of the Planning Panel in C129 recommended the abandonment of the rezoning request for a variety of reasons including that an environmental audit had not been conducted and that further investigation regarding geotechnical issues, environmental issues and management of post risk during and post development.
3. An environmental audit was completed in May 2020 resulting in three Environmental Audits regarding sensitive uses namely medium and high density residential uses, recreation and opens space use, commercial and industrial uses. Valente says the Environmental Audit does not address the geotechnical issues associated with the land and the auditor does not have the requisite skills.
4. The Valente submission extracts parts of a report entitled 'Domain 1 Preload Design Report' (12 November 2021) which sets out the aim of the preloading that is to investigate the settlement properties of the backfilled quarry to inform the design of the ground improvement strategy for the land.
5. Valente draws my attention to amendments to clause 73.03 of the scheme which occurred in VC160 and introduced the definition of extractive industry that presently exists in the scheme.
6. Put simply, Valente says the aim of the proposed works is to rehabilitate the whole of the land which was previously used for the extraction of sand to facilitate a residential development sometime in the future. Thus, the proposed use of the land for rehabilitation is in fact use of the land for extractive industry which is prohibited in the GRZ3.
7. Moreover, the 1998 approved work plan provided that the land was rehabilitated for parkland and not for residential use.
8. Further, Valente says that because the term 'rehabilitation' is not defined in the scheme it is to be given its ordinary meaning. In this case, Valente submits the meaning of 'rehabilitation' in the context of the extractive industry should be adopted. Further, Valente relies upon a document published by Earth Resources entitled 'Preparation of Rehabilitation Plans, Guideline for Extractive Industry Projects' (March 2021). This document defines 'rehabilitation' as:

The return of disturbed land to a safe, stable, and sustainable condition capable of supporting the agreed end use. It broadly involves landform design, construction and shaping; materials characterisation, handling and placement; surface water management and revegetation

1. Further, the Mineral Resources (Sustainable Development) (Extractive Industries) Regulations 2019 define the words 'safe, stable and sustainable' as:

(a) is not likely to cause injury or illness; and > > (b) structurally, geotechnically and hydrogeologically sound; and > > (c) non-polluting; and > > (d) aligns with the principles of sustainable development.

2. The reason the land was excised from the work authority was only for the agreed end use that is, for open space. The proposed use is seeking to rehabilitate land containing in situ putrescible waste, uncontrolled fill and slimes for residential redevelopment - something that has never been done in Australia.
3. Valente relies on the definition of use at section 3 of the PE Act that follows:

use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed

1. Valente says:
   1. the land has been used for the extraction of sand, which is an extractive industry use;
   2. with the exception of Domain 4, the land has been partially rehabilitated for open space being the agreed end use in the Reclamation Plan;
   3. council does not want the land because it is contaminated;
   4. there are no permits for the development of the land, except for the work plan requiring Domain 4 to be rehabilitated for open space;
   5. the purpose of the proposed use is to commence to rehabilitate some of the geotechnical and environmental issues as a result of the previous extractive industry use; and
   6. if the land was used for extractive industry namely the extraction of sand, and those operations ceased many years previously, any subsequent applications to rehabilitate the land would still fall within the definition of extractive industry.
2. Valente relies upon Jasbe Petroleum v Baw Baw Shire Council[17] as follows:

Finding of Tribunal - need for caution (in characterising an activity) with utilising an innominate use ahead of a suitable defined land use term

1. In the context set out above, the Tribunal finds that in a 'characterisation' dispute such as this, caution should be applied to potentially utilising an innominate use to characterise the activity in question, instead of a suitable Victoria Planning Provision (VPP) defined land use term.
2. The key reason for this is that the text from Clause 73.03 (as quoted at paragraph 27 above) expressly provides this strong guidance. I say 'strong' in that at the third line of this clause, the term 'must' is used, rather than say 'may' or 'should'. The choice of the word 'must' indicates not merely a loose preference, but rather a real desire by the author(s) of this Clause 73.03 text that stakeholders in the Victorian planning system where possible utilise defined land use terms, if the activity in question commonly or obviously falls within the meaning of such a defined land use.
3. Putting this another way, I read this Clause 73.03 text as indicating that where there is a credible case that the activity in question can be characterised as falling within the meaning of a defined land use term, that this should be the default position (which should not be lightly overlooked in favour of an innominate use).
4. This basic finding is reinforced by the convincing submissions made by Ms Marcus that since the Typhoon case was handed down, other more recent 'characterisation' Tribunal decisions have given priority to using defined land use terms as per the relevant Clause 73.03 text, rather than utilising an innominate land use term (see further discussion of this point further below).

1. Council says I should answer the question in the negative because:
   1. properly characterised the use of the land is an innominate use and is either 'preloading' or in the alternative 'rehabilitation' for future development of the land; and
   2. the proposed use is not for 'rehabilitation' of the land for the purposes of 'extractive industry' as in that context, rehabilitation is ancillary to the use of land for extractive industry required under a work authority. The rehabilitation of the land following the extractive industry has already occurred.
2. Council relies on principles of statutory construction that are well established, and which apply to planning schemes as subordinate instruments. Referring to Anderson v Stonnington City Council[18] (Anderson), council highlights:

1. The principles of statutory construction are well established and apply to statutory instruments such as planning schemes as well as statutes. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ said:

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

1. The plurality of the High Court emphasised the importance of context in SZTAL v Minister for Immigration and Border Protection:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

1. In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.

1. These principles are consistent with s 35 of the Interpretation Act, which requires that when interpreting a subordinate instrument, a construction that would promote the purpose or object underlying the instrument is to be preferred to a construction that would not promote that purpose or object.

1. Council says the starting point for considering land use characterisation is to ask:
   1. what is the real and substantial purpose for which the land will be used?
   2. how does that purpose fit within the defined land use terms in the planning scheme?
2. Further, council submits that the principles are well accepted and succinctly summarised in Japara Holdings Pty Ltd v Bayside CC[19] (Japara) as follows:
   1. Before addressing that submission in detail, it is appropriate to set out the established principles of characterisation that are relevant to my task -
      • In planning law, a use must be for a purpose.
      • The purpose of a development is objective in the sense that it is the end to which land is seen to be served by the carrying out of the development, not subjective in the sense that it is the object in the minds of the persons carrying out the development.
      • In determining whether land is used for a particular purpose, it is necessary to enquire into how that purpose can be achieved.
      • A use of land can be for two or more purposes. It may be necessary to enquire if one purpose is subservient to another purpose.
      • The task of characterisation involves questions of fact and degree.
      • The appropriate characterisation of the use should be described at a level of generality and not approached through a meticulous examination of the details or processes or activities.
      • The task of interpretation/characterisation ought not be answered, particularly in a town planning context, by reference to something proposed not within the designated purpose, but by reference to the 'real and substantial purpose' of the use of the land in question.
   2. Importantly, none of the above principles, nor the canons of statutory construction, stand for the proposition that when assessing an application, the decision maker should employ a 'best fit' or 'better fit' test to characterisation of the use to be assessed.
   3. Where an application is made for a particular use (or development), the focus of enquiry must be whether the application before the decision maker satisfies the definition of the use (or development) nominated in the application. If, by applying orthodox legal principles, it is found that the application is for the nominated use, then application must be assessed accordingly.
   4. It is not for the Tribunal to engage in 'judicial intuition' by importing into its consideration of land use definitions, the Tribunal's own experiences or preferences, or the community's expectations, when characterising the proposed use the subject of the application. Accordingly, I reject that in approaching the characterisation of the proposed use under consideration here that I do so with the view of choosing which land use definition the Southern wing 'best fits' or 'better fits'.

1. Lastly, council submits that the principles for interpreting planning permits are uncontroversial. In Vestey & Ors v Warrnambool CC[20] (Vestey) Bell J stated:
   1. A planning permit is not a legislative instrument which can be interpreted by reference to extrinsic materials showing its object and purpose in the first instance. To repeat the words of Morris J in Gant v Greater Geelong City Council, a "permit should speak for itself and any person reading it should be able to deduce its meaning and act upon that meaning." However, extrinsic materials can be used to interpret a permit when it is ambiguous or unclear and the materials might logically assist in resolving the issue of how the permit should be properly interpreted. Again, this is Morris J:

Where permits are ambiguous, it certainly is correct that one can look at a permit application in order to discern what is meant by the permit; and, in this situation, one could also legitimately look at material before an appeals tribunal. Indeed in the Becton case, I held that one could look at a previous planning scheme provision where that was effectively the antecedent of the permit in issue.

...

1. It is a fundamental principle - one directly relevant in the present case - that the extrinsic materials or evidence of surrounding circumstances, if reference to them is warranted at all, must be confined to what can be objectively ascertained. In Codelfa Construction Pty Ltd v State Rail Authority of New South Wales, Mason J considered this question in connection with the interpretation of contracts. Here is his Honour's classic statement of the rule in that context:

The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

(footnotes omitted)

1. Council says that what each NOD allows is not ambiguous but that if I consider there is ambiguity or clarity regarding the permissions, I could consider extrinsic material including the application material.
2. This material discloses the desire of the respondent to find an appropriate end use for the land and in essence comprise remedial and preparatory works necessary to allow the possibility of future land uses.
3. Further, this material makes it clear that the real and substantial purpose of the proposed use is to facilitate future redevelopment of the land and that any associated works derive from the Environmental Audit. These works are not because of the use of the land for rehabilitation because the land is being used for extractive industry.
4. In response to the respondent's submission that no permission is sought to use the land at all, council considers that 'preloading of earth' is use and development of land. Council relies on various documents before it to conclude works are to be carried out in support of the use.
5. Council disagrees with the submissions of the applicants that the proposed use of the land properly characterised is use for extractive industry.
6. Council says simply because the need to remediate the land arises from former land uses including extractive industry and landfill, does not mean the proposed use is for that purpose.
7. Further, properly construed 'rehabilitation' as a land use is ancillary to the dominant use of the land for extractive industry and refers to rehabilitation required under a separate legislative regime. Rehabilitation should not be understood by reference to its ordinary dictionary definition. Council extracts the Macquarie Dictionary definition of 'rehabilitation' as follows:

1. Neither should rehabilitation be understood as the term is generally used in the scheme such as in clause 13 and 14.02-2S. Council says the context is derived from the meaning of rehabilitation found in clauses 52.08 and 52.09 of the scheme and the Mineral Resources Sustainability Act 1994 (Vic) (MRSD Act).
2. Considering these provisions of the scheme and the MRSD Act, council says:
   • it is the approved work plan that includes provision for rehabilitation;
   • the rehabilitation is to ensure the affected land can be returned to a form or use compatible with natural systems or visual appearance of the surround area or for a beneficial use to the community; and
   • the MRSD Act governs the requirements of the rehabilitation plan including a bond.
3. Therefore, rehabilitation is best understood as an integrated aspect of extractive industry and as a land use is understood as ancillary to use of the land for extractive industry.
4. The rehabilitation directly related to the extractive industry has been carried out on the land. This occurred many years ago and nothing further is required under the MRSD Act to further rehabilitate the land.
5. Council relies upon the fact there is no extant work authority for the land as confirmed by the Joint Statement of the Earth Resources Regulation Branch (EER branch) and council put to the panel for C129.
6. The council highlights the following extracts of this Joint Statement to support is submission that the proposals in each NOD are not rehabilitation for the purposes of extractive industry:[21]

1. The respondent's primary position is that the preliminary question should be answered in the negative. Further, it says that no planning permission is required for use because no use of the land is proposed or occurring.
2. If I agree with the respondent that no planning permission is required for the use of the land, the respondent submits the answer to the question ought to be:

The activities proposed in the planning applications are not characterised as use of the land for extractive industry because the activities do not comprise use of the land.

1. In addition to the material relied upon by the other parties in respect of the historical context, the respondent highlights the following.
2. The land is subject to three statements of Environmental Audit (Audit statements) under the Environment Protection Act 1970. These Audit statements confirm the land is suitable for sensitive uses, commercial operations and recreational open space. However, those land uses are subject to extensive conditions relating to management of landfill gas and groundwater, capping etc.
3. The respondent says because of the historical use of the land, if there is to be future use of the land for urban purposes such use is conditional upon:
   1. the implementation of recommendations in the Audit statements; and
   2. extensive ground improvement works.
4. In support of its position that no permission is required for use of the land, the respondent refers to the definitions of 'use', 'development' and 'works' at section 3 of the PE Act.

development includes -

(a) the construction or exterior alteration or exterior decoration of a building; and

(b) the demolition or removal of a building or works; and

(c) the construction or carrying out of works; and

(d) the subdivision or consolidation of land, including buildings or airspace; and

(e) the placing or relocation of a building or works on land; and

(f) the construction or putting up for display of signs or hoardings;

development agency - see section 46GA;

...

works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil;

1. The respondent says there is no dispute that permission is required for the development of the land and contends the appropriate description is 'earthworks' which is defined at clause 73 of the scheme as:

Land forming, laser grading, levee banks, raised access roads and tracks, building pads, storage embankments, channel banks and drain banks and associated structures.

1. However, the respondent submits that land is not always used and in these applications the land is for a 'one-off' development to improve the land and not for the purpose of using the land.
2. The respondent acknowledges that it accepted council's characterisation of the use of the land for 'preloading' and that it had previously advanced an argument to the panel in C129 that similar works would be an innominate use for rehabilitation or similar.
3. Nonetheless, the respondent now says, there is no use of the land proposed as part of the earthworks on the land.
4. If, however, I find there is a use of land proposed in the applications for permit, the respondent says the approach to the characterisation of use is settled and recently summarised in Kingston City Council v Mobius Materials Recovery Pty Ltd & Anor[22] (Kingston) where the Supreme Court of Victoria (Court) stated:

In deciding whether a proposed use falls within a specified land use it is necessary for the decision maker to determine the real and substantial purpose of the activity. This determination is 'not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.'[23] In Cascone v Whittlesea Shire Council,[24] Ashley J summarised the relevant principles:

(1) In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.

(2) Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.

(3) It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that is so where there is provision for innominate uses in the scheme.

(4) The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely falls within a defined use. The extent to which it does not may be so trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.

(5) The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is 'yes', and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. But if the answer to the first question is 'no', each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.

(6) In resolving the problems of characterisation raised in the preceding pars (1) to (5) the preferable view, in my opinion, is that the adjectival phrase 'real and substantial' qualifying 'use' will always be nominally present. But it is unlikely to be of practical importance in many cases. It will always serve to emphasise that there is a distinction between 'purpose of use' and 'use' in the sense of activities, processes or transactions. It should not be used to cloud the potential for more than one purpose being revealed. It should not be thought to provide a basis for treating a combination of activities, processes or transactions as necessarily attracting the appellation of 'innominate use'. It is likely to be of practical importance in cases falling within pars (4) and (5) above.[25]

1. The respondent says there is no extraction occurring on the land, nor is there any processing or sale of a resource from the land. Further, there is no business or activity being carried out on the land that can be described as quarrying.
2. The definition of extractive industry at clause 73.03 of the scheme includes rehabilitation of land. However, rehabilitation is not defined in the scheme, PE Act nor the Interpretation of Legislation Act 1984 (Vic) (IL Act) thus, arguably it is to be given its ordinary meaning.
3. The respondent refers to the definition of 'rehabilitation' in the Macquarie Dictionary as:

restoration to former health

restoration of rights, privileges or reputation

1. However, the respondent submits that these definitions 'provide no assistance' and the term must be considered in its context. Only when read in context does the meaning of rehabilitation become clear.
2. Thus, reading the term rehabilitation in the context in which it appears at clause 730.3 of the scheme, the respondent submits:[26]

... that the meaning of rehabilitation in the context of extractive industry generally and in the context of the cl 73.03 definition is to be understood in the context of industry usage and the regulatory regime for extractive industries: rehabilitation means what ERR says it means. Either extractive industries rehabilitation is intended to have a 'technical' meaning informed by industry usage and the extractive industries regulatory regime, or that the 'ordinary meaning' of extractive industries rehabilitation is informed by industry usage and the regulatory regime.

This contention is borne out by consideration of the history of the definition of Extractive Industries...

1. The respondent refers to the Explanatory Report for Amendment VC160 (VC160) and submits that the intention of this amendment was to align with the MRSD Act and to ensure that rehabilitation normal or ancillary to land use for extractive industry was included within the definition. Thus, the intention is that rehabilitation be undertaken as part of, or ancillary to extractive industry operations.
2. The respondent says it is important to consider what the MRSD Act requires in terms of rehabilitation. At paragraph 81 of its submissions the respondents says:

Rather, the MRSD Act:

(a) requires the preparation of rehabilitation plans;

(b) requires implementation of rehabilitation plans;

(c) prescribes the content of rehabilitation plans; and

(d) requires a bond to secure rehabilitation.

1. Therefore, the respondent submits that rehabilitation as used in the definition of extractive industry means rehabilitation required to be undertaken as a condition imposed on extractive industry.
2. Rehabilitation as a consequence of the extractive industry has been undertaken in accordance with the Reclamation Management Plan (RM Plan). This RM Plan set out what was required to achieve a reclamation of the land for a reserve including recreation facilities. This reclamation or rehabilitation has occurred except for Domain 4.
3. The proposed works are for land improvement, landfill gas management, drainage and access and not for extractive industry.
4. The respondent relies on the findings in Barro that rehabilitation of a quarry for an end use can be a separate and innominate land use. To the extent, I find the proposals to constitute a use of land it should be characterised as 'preloading of earth' or 'land improvement'.

1. Clause 73.03 of the scheme sets out how the table is to be interpreted and provides that a term listed in the first column, under the heading 'Land use term' has the meaning set out beside that term in the second column, under the heading 'Definition'.
2. Notably, extractive industry as a land use term is defined in the second column - Definition, and includes rehabilitation. Further, extractive industry has a term listed beside it in the fourth column, under the heading 'Included in', that is, Earth and energy resources industry. According to clause 73.03 of the scheme extractive industry is included in the land use term Earth and energy resources industry.

1. The term 'rehabilitation' is not defined and according to clause 73.03 of the scheme is to be given its ordinary meaning. The ordinary meaning in the Macquarie Dictionary[27] is:

1. In Conlan v Kingston CC[28] the Tribunal stated:
   1. To ascertain the ordinary meaning of a term, recourse to the dictionary definition of a word may be of assistance, however caution should be exercised to ensure that in resorting to dictionary definitions for the meaning of words one does not overlook that words and phrases take their meaning, including their 'ordinary meaning', from the context in which they appear. This approach is endorsed by the High Court in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at 672 -

Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that "the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated...) is to be preferred to each other interpretation" is in that respect a particular statutory reflection of a general systemic principle. For:

"it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."

1. In ascertaining the ordinary meaning of a word that does not have a statutory definition, the Tribunal is not bound, either by the planning scheme or common law, to adopt a dictionary definition of that word where the context suggests otherwise.
2. Section 35(a) of the IoL Act is in similar terms to s.15AA of the Acts Interpretation Act 1901 (Cth) and provides -

In the interpretation of a provision of an Act or subordinate instrument-

a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

1. A further caution to the use of dictionary definitions was added by Leeming JA in Tai Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439 at paragraph 80 -

Dictionary definitions may assist in identifying the range of possible meanings a word may bear in various contexts, but will not assist in ascertaining the precise meaning the word bears in a particular context.

1. I disagree with the respondent that the ordinary meaning of rehabilitation is not helpful. Rather, the ordinary meaning assists in the understanding of the term in the context in which it is found.
2. The term 'rehabilitation' or restoration of the land to former health is to be understood relative to the first part of the definition that is, the extraction or removal of stone from the land for commercial use or for use in building, construction, road or manufacturing works. Thus, rehabilitation in the context of the extractive industry means restoring the land to the health or condition that existed prior to the extraction and or removal of the stone. That will involve the filling of the void created by the extraction or removal of stone to restore the land to its former condition and may include returning the land to former site level. The filling could be achieved in many ways.
3. In other words, there is a nexus between the extraction or removal of stone from the land and its rehabilitation or restoration to its former health or condition. To that end, I agree with the submission of Thompson that use and development are indivisible in circumstances involving extractive industries because the definition of extractive industry at clause 73.03 of the scheme includes reference to rehabilitation. However, that does not mean that all rehabilitation works, or restoration works are forever to be defined as land used for extractive industry. The question of what works constitute rehabilitation for the purposes of extractive industry, in this case can be ascertained from the relevant facts and circumstances.
4. Domains 1, 2a, 3a, 3b and 5, have been rehabilitated by the filling of the quarry voids to restore the land to its former health and/or conditions. In fact, after the extraction or removal of sand occurred, the quarry pit in Domain 1 was used as putrescible landfill. The rehabilitation of the land post extraction and removal of sand and filling with waste occurred many years ago pursuant to the RM Plan. Much emphasis has been placed on the end use set out in the RM Plan and what was necessary to achieve that end use. In my view, the end use is not directly relevant to the question of whether rehabilitation has occurred for purpose of extractive industry under clause 73.03 of the scheme. The two uses that is, the end use and extractive industry are different and maybe unrelated.
5. In clause 73.03 of the scheme rehabilitation is part and parcel of the extractive industry use, the standard of rehabilitation of the land for a future end use provides the detail for how rehabilitation is to be achieved. Whilst the end use may drive the process and detail of rehabilitation, it does not change the fact the rehabilitation is for extractive industry and not for the purpose of the end use.

1. The nature of the proposed works as set out in each application for permit has been set out earlier in these reasons.
2. There is no proposal to extract or remove stone of any kind from the land. However, the applicants say the land was used for extractive industry and having regard to the definition of use in the PE Act and the development as proposed which is to rehabilitate the geotechnical and environmental issues resulting from the former use of the land, the proposed use is also extractive industry.
3. I reject these submissions. The extraction or removal of the stone (or sand) and the rehabilitation of the land has already occurred as a matter of fact. Moreover, whilst the definition of use in the PE Act refers to the 'purpose for which the land has been ... developed' it also refers to the 'purpose for which the land ... may be developed'.
4. The Audit states that the 'Reason for Audit' is because of the EAO and a change to more sensitive land use (residential).[29]
5. Further, the Audit states:

1. Each Statement of Environmental Audit permitting the sensitive uses is subject to detailed conditions including the need for a gas venting system, gas migration system, gas protection system some of which are to be constructed prior to any preloading activities.
2. Notably, EAN-00002878 states:[31]

1. The requirements of EAN-00002878 include the implementation of groundwater and leachate monitoring.
2. EAN-00002879 requires the respondent to implement gas monitoring as specified in the CEMP. There are four stages of construction identified in the CEMP, Stage 1 being 'Preloading activities in Zone 1, Filling of the Zone 4 quarry void'.
3. The requirements set out in both EAN are because of the future redevelopment of the land notwithstanding this monitoring emanates from past uses of the land.
4. Having regard to the material before me, including all the documentation that accompanied the application for planning permit, the real and substantial purpose of the works is to prepare the land for the potential future development of the land for residential uses. That is, the works are preparatory, and do not in my view constitute a use of the land.
5. I note the following from Barro:
   1. We accept from the evidence of Mr Moschini that 'works' (as that term is defined by the Planning and Environment Act 1987) were being carried out well after two years from the date of the permit. Given that 'development' is defined in the Planning and Environment Act 1987 as including the "carrying out of works", the council submits that as the permit includes development and the development has not been completed within two years of the date of the permit, the permit has therefore expired.
   2. We do not agree with this analysis. We consider that the concept of rehabilitation as it applies to this land involves both use and development. The use of the land involves ongoing activities that constitute development in the form of works. Thus, the preparation of the quarry for the purpose of receiving fill and subsequent filling of the quarry void all require works, in the sense that the existing condition and/or topography of the land is being changed.
   3. In our view, the use of land for rehabilitation can be likened to other defined uses of land that involve ongoing works, such as crop raising, mineral extraction or stone extraction. With respect to these uses of land, the activities that constitute the use might also be separately characterized as the carrying out of works (i.e. development). However, the fact that activities in the form of ongoing development (i.e. the constant carrying out of works) are occurring does not mean the land is not being used for the purpose for which the development is being carried out.
   4. The use of land may involve "activities, processes or transactions". We consider there are some uses of land where the activities constituting the use will involve ongoing development in the form of the carrying out of works that will continue until the use ceases. The definition of use recognises this when is says: "use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed".
   5. We consider that where activities involving ongoing works are inextricably tied to the use of the land, what is occurring is both use and development of the land, but the development cannot be sunsetted until the use ceases. In these circumstances, we consider there is an implied time limit in the permit for development to continue until the use ceases or is finished.
   6. We find the permit in this case, which allows for rehabilitation...of the land upon completion of the current extractive industry operation, falls into this category. It is a permit for the development and use of land for the purpose of rehabilitation. Rehabilitation is an innominate use, which includes preparation, filling and final landscaping of the land to a form whereby it is suitable for the end use of the land for recreation/open space. The development (i.e. the carrying out of works) associated with this use must continue until rehabilitation is complete, which is when the use will cease.
   7. Unless a permit to use and develop land for this use, or other similar use, such as for the purpose of a landfill (which we have determined to grant in application P2385/2010) or stone extraction or the like, is interpreted as enabling ongoing development for so long as the use continues, absurd results would ensue. Attempting to apply a literal interpretation of section 68 by saying that works of filling or excavation, which involve changes to the natural or existing condition or topography of land, constitute development that must be completed within two years of issuing a permit, would make a mockery of any permit issued for the use of land for such purposes.

1. I highlight the following differences in the factual scenario in Barro and that before me:
   • the use of the land in Barro for extractive industry including for rehabilitation was operating pursuant to a permit. The Tribunal ultimately found that permit to be extant. In this proceeding there is no active permit for extraction or removal of sand or stone or for rehabilitation;
   • in this proceeding, the proposed works are not inextricably linked to the former use of the land for extractive industry or landfill but rather for a future potential use or uses; and
   • the works in Barro were ongoing in nature with a temporal relationship to the extractive industry, they are not occurring some 30 or more years later.
2. Therefore, there is no inconsistency between my finding that no use is proposed in the applications for planning permits and the findings in Barro.
3. To that end, my answer to the question of law is:

The activities proposed in the planning applications TPA 53179 and TPA 53477 are not characterised as use of the land for extractive industry as defined in clause 73.03 of the Monash Planning Scheme. Further, the activities proposed in the planning applications TPA 53179 and TPA 53477 do not comprise use of the land under the Monash Planning Scheme.

1. At the preliminary hearing I asked the respondent if clause 62.02-1 of the scheme was relevant to my consideration. Clause 62.02-1 of the scheme provides:

1. I understood the response of the respondent to be that neither EAN require works to be undertaken only monitoring and reporting. That may be so but it is unclear to me how such monitoring could occur without the necessary infrastructure to facilitate such monitoring.
2. I also note section 274(5)(a) of the EP Act states:

(5) An environmental action notice applies notwithstanding anything to the contrary in -

(a) the Planning and Environment Act 1987 or any regulations, planning scheme or permit made, approved or granted under that Act;

1. I make no determination on the matters set out in this section of my reasons and simply note these by way of context.

1. Having determined the question of law, I consider it appropriate to schedule an administrative mention in these two proceedings.

[1] The submissions of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[4] The date for compliance was extended at the commencement of the hearing.

[5] See report to council on 31 January 2023 at pages 13-15 in relation to the preloading of earth for drainage swales.

[6] See report to council on 31 January 2023 at page 18.

[10] See Thompson submission at [16].

[11] See Thompson submission at [18].

[13] See Thompson submission at [24].

[14] See Thompson submission at [28].

[17] [2019] VCAT 392.

[18] [2019] VSC 453.

[19] [2022] VCAT 390 at [101-104].

[20] [2008] VCAT 963.

[21] See council submission at [65 and 65].

[22] [2022] VSC 588 at [23].

[23] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 535 (Kitto J); [1964] HCA 37.

[24] (1973) 11 AATR 175.

[25] Ibid 190, quoted in Stanley Rural Community Inc v Stanley Pastoral Pty Ltd (2017) 54 VR 676, 694-5 [79] (the Court); [2017] VSCA 385.

[26] See respondent's submissions at [73-74].

[28] [2023] VCAT 654 at [58-61].

[29] See page ix - Executive Summary of Audit.

[30] See page xii - Executive Summary of Audit.