REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

What is the correct approach in determining what is relevant and irrelevant when exercising discretion and how will this vary depending on the discretion? This decision discusses the principles in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 426, Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27; (2015) 49 VR 535 and Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191.

PLANNING SCHEME - interpretation or consideration of VPP provision

Application of clause 65.02 to decision made under Design and Development Overlay - Schedule 18.

POLICY - interpretation or application of policy

Application of clause 13.07-2S Major hazard facilities and clause 19.01-3S Pipeline infrastructure to decision made under Design and Development Overlay - Schedule 18.

ANALYSIS - exposition of how to assess an issue or matters to consider

What is the correct approach in determining what is relevant and irrelevant when exercising discretion and how will this vary depending on the discretion?

Viva Energy Australia Pty Ltd ('Viva') brought this application for review under section 82 of the Planning and Environment Act 1987 ('Act') seeking the Tribunal's review of the decision by the Greater Geelong City Council to approve the proposed two lot subdivision of the subject land.

Viva holds a pipeline licence to operate the Lara Liquid Petroleum Gas Pipeline, a high pressure gas pipeline located in the road reserve that runs along McManus Road on the western edge of the subject land. Viva also owns and operates the Lara LPG Terminal, which is located immediately west of the subject land across McManus Road. The terminal is licensed as a major hazard facility.

The Land is located in the Industrial 2 Zone ('IN2Z') of the Greater Geelong Planning Scheme ('Scheme') and is subject to Design and Development Overlay - Schedule 18 'Geelong Ring Road Employment Precinct' ('DDO18'). A planning permit is required for subdivision both under the IN2Z and the DDO18. It was common ground that the planning permission required under the IN2Z was exempt from third party notice and review rights.

Viva's concerns in relation to the proposed subdivision addressed safety and pipeline operational matters and it was submitted that the proposed subdivision was inconsistent with relevant policy provisions in the Scheme including clause 13.07-2S Major hazard facilities and clause 19.01-3S Pipeline infrastructure.

Heales Ventures Pty Ltd ('Heales') is the registered proprietor of the subject land and the proponent. Heales sought for the application for review to be summarily dismissed on the basis that it was misconceived and devoid of any planning merit.

This decision discusses the complexity that exists when an application for review is brought under section 82 of the Act in circumstances where third party notice and review exemptions are in effect for some, but not all, of the permissions sought.

This decision considers whether the grounds raised by Viva are properly to be considered in assessing the planning permission before the Tribunal for review; namely, the permission sought under the DDO18. In this regard, this decision discusses clause 65.02 of the Scheme and how what is relevant under that clause will vary depending on the lens of the discretion through which the decision-maker looks.

In the context of the case before me, I found that the grounds raised by Viva were irrelevant to the purpose of the discretion under the DDO18.

Given that Viva's grounds addressed matters that were irrelevant to the purpose of the discretion under the DDO18, and where this was an application brought under section 82 of the Act where the only permission before the Tribunal is that under the DDO18, I found that this application for review was misconceived in that Tribunal cannot take into account the matters agitated by the Applicant in the exercise of its discretion in this proceeding. Accordingly, the appropriate course of action was to summarily dismiss the proceeding.

Section 82 of the Planning and Environment Act 1987; Industrial 2 Zone; Design and Development Overlay - Schedule 18; clause 65.02 of the Greater Geelong Planning Scheme; safety concerns; planning policy; third party exemption from notice and review rights; summary dismissal.

Viva Energy Australia v Greater Geelong CC (Red Dot) [2022] VCAT 326

1 Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 VCAT Application P11488/2021 is summarily dismissed on the basis that it is misconceived.

2 The hearing scheduled for 14 June 2022 is vacated. No attendance is required.

1 The Applicant, Viva Energy Australia Pty Ltd, brings this application for review under section 82 of the Planning and Environment Act 1987 ('Act') seeking the Tribunal's review of the decision by the Greater Geelong City Council ('Council') to approve the proposed two lot subdivision of the land at 130 Heales Road, Lara ('Land'). No land use permission or permission for buildings and works was sought as part of this subdivision application. The subdivision is proposed by Heales Ventures Pty Ltd, the Respondent and registered proprietor of the Land.

2 The Land measures 403.86 metres by 301.91 metres with an area of 12.41 hectares. It is currently vacant. Hendy Street is also known as 'McManus Road' and is an unmade road. The Land is shown marked with the green pin in the following image.[2]

3 The Land is located in the Industrial 2 Zone ('IN2Z') of the Greater Geelong Planning Scheme ('Scheme') and is subject to Design and Development Overlay - Schedule 18 'Geelong Ring Road Employment Precinct' ('DDO18'). A planning permit is required for subdivision both under the IN2Z[3] and the DDO18.[4]

4 The proposed subdivision is shown in the following extract of proposed plan of subdivision PS328477S/S4, noting that access to both lots is to be from Heales Road.

5 The purposes of this preliminary hearing are to determine:

• whether the application for planning permit is exempt from the notice and review rights provided for in the Act;

• whether the Tribunal has jurisdiction to consider the application for review; and

• whether the application for review should be summarily dismissed.

6 With respect to the last purpose, summary dismissal can occur pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'), which states:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

7 The Applicant's statement of grounds[5] expresses its objections to the proposal as follows:

1. Viva Energy Australia Pty Ltd ('Viva Energy') holds a pipeline licence to operate the Lara Liquid Petroleum Gas Pipeline ('Pipeline'), a high pressure gas pipeline located in the road reserve that runs along McManus Road on the western edge of 130 Heales Road, Lara ('Land').

2. Viva Energy also owns and operates the Lara LPG Terminal on McManus Road in Lara ('Terminal'), which is located immediately west of the subject site across McManus Road. The Terminal is licensed as a Major Hazard Facility ('MHF').

3. Planning Permit Application PP-341-2021 ('Permit Application') was referred to Viva Energy by the City of Greater Geelong Council ('Council') on or about 21 April 2021 as a Determining Authority under clause 66.01 of the City of Greater Geelong Planning Scheme ('Planning Scheme').

4. Assuming this was a valid referral under clause 66.01, Viva Energy considers that there is no basis for the Notice of Decision by Council to grant the Planning Application ('NOD') in light of Viva Energy's objection, dated 11 May 2021.

5. Council also referred the Planning Application to Viva Energy as a Recommending Referral Authority under section 55, and separately under section 52 of the Planning and Environment Act 1987('P&E Act'). If these were valid referrals, Viva Energy considers that their objections have not been appropriately considered.

6. Viva Energy acknowledges the Council's proposed pipeline easement condition and agrees that it goes some way to addressing the risk to the Land posed by the Pipeline.

7. However, Viva Energy has concerns that the NOD does not appropriately consider and address the residual risk that is inherent with the Land's proximity to the Pipeline and the Terminal.

8. Viva Energy considers that the proposed subdivision does not adequately respond to safety and pipeline operational matters and is inconsistent with relevant policy provisions in the Planning Scheme including:

• Clause 13.07-2S (Major Hazard Facilities).

• Clause 19.01-3S (Pipeline infrastructure).

9. Viva Energy otherwise adopts the matters set out in its objection concerning the Permit Application dated 11 May 2021.

8 With reference to the last ground, the Planning Permit Assessment Report[6] contains an extract of the letter of objection sent by the Applicant to the Council, along with the Council's response.[7]

9 The proposed subdivision is located within 250 metres of the Lara LPG Terminal.

10 The Planning Permit Assessment Report also includes an extract of the response from Worksafe Victoria provided to the section 52 notice given to Worksafe Victoria. This is as follows:

Thank you for your letter of 27 May 2021 referring the above planning permit application to WorkSafe Victoria for our comment.

The referral concerns an application for a two lot subdivision of the above property. The scope of WorkSafe Victoria's comment is limited to providing advice and information about matters that could affect the health and safety of members of the community present at land surrounding the Viva Refining Pty Ltd (Viva) LPG Terminal located at 137-207 McManus Road Lara. The Viva facility is a licenced Major Hazard Facility (MHF), by virtue of the large quantity of dangerous goods that are stored and handled at the site.

As this development does not alter the population density in the vicinity of the MHF, WorkSafe Victoria does not advise against the granting of a planning permit for the proposed subdivision.

However, WorkSafe strongly recommends being consulted on any land use planning applications for the subsequent use of the sub-divided lots, as per Section 52 of the Planning and Environment Act. Additionally, should any land use planning applications fall within Clause 66.02-7 of the City of Greater Geelong Planning Scheme, the application must be referred to WorkSafe Victoria as the Referral Authority under Section 55 of the Planning and Environment Act.

11 This preliminary hearing was heard on the papers.

12 The Tribunal has received submissions from all parties.[8]

13 The following provisions of the Scheme include those that were referred to by the parties in their submissions.

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for manufacturing industry, the storage and distribution of goods and associated facilities in a manner which does not affect the safety and amenity of local communities.

To promote manufacturing industries and storage facilities that require a substantial threshold distance within the core of the zone.

To keep the core of the zone free of uses which are suitable for location elsewhere so as to be available for manufacturing industries and storage facilities that require a substantial threshold distance as the need for these arises.

15 The decision guidelines for subdivision permission under the IN2Z are contained in clause 33.02-3 of the Scheme. This provision states:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• Any natural or cultural values on or near the land.
• Streetscape character.
• Landscape treatment.
• Interface with non-industrial areas.
• The suitability of the proposed lots for the types of industries and warehouses shown in the table to Clause 53.10.

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify areas which are affected by specific requirements relating to the design and built form of new development.

17 The permit requirement for subdivision in the DDO is contained in clause 43.02-3 of the Scheme, which states:

A permit is required to subdivide land.

This does not apply if a schedule to this overlay specifically states that a permit is not required.

Subdivision must occur in accordance with any lot size or other requirement specified in a schedule to this overlay.

A permit may be granted to subdivide land which is not in accordance with any lot size or other requirement in a schedule to this overlay, unless the schedule specifies otherwise.

18 The decision guidelines for the DDO are contained in clause 43.02-6 of the Scheme, which states as follows:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• The design objectives of the relevant schedule to this overlay.
• The provisions of any relevant policies and urban design guidelines.
• Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
• Whether the design, form, layout, proportion and scale of any proposed buildings and works is compatible with the period, style, form, proportion, and scale of any identified heritage places surrounding the site.
• Whether any proposed landscaping or removal of vegetation will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
• The layout and appearance of areas set aside for car parking, access and egress, loading and unloading and the location of any proposed off street car parking.
• Whether subdivision will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
• Any other matters specified in a schedule to this overlay.

19 Clause 1.0 of DDO18 contains the design objectives for the Geelong Ring Road Employment Precinct. These are:

To facilitate the development of the Geelong Ring Road Employment Precinct as a high amenity industrial area suited to the needs of advanced manufacturing and production support industries.

To provide a high level of amenity for workers on and visitors to the estate.

To ensure development provides an attractive frontage to the Geelong Ring Road.

To ensure development provides a high level of visual amenity when viewed from major transport routes and surrounding non-industrial land uses.

To promote best practise sustainable design including storm water quality and reuse measures.

20 Clause 3.0 deals with Subdivision and provides as follows:

• The provision of an appropriate range of lot types and settings.
• The provision of lot configurations that facilitate energy efficient site and building design.
• That no lots have a rear aspect to the Geelong Ring Road.
• The following minimum lot sizes within each precinct in the estate, as defined on the Geelong Ring Road Employment Precinct Framework Plan Map at clause 21.07-9 of this Planning Scheme:

Street Design

The design of new local streets within the estate should ensure:

• The provision of footpaths on both sides of every street.
• Generous street tree planting (clear-stemmed to 2 metres) in conformance with a consistent 'language' that reinforces the identity of the estate and specific precincts within it.
• The incorporation of on-street parking on as many streets as possible.
• The location of all services, including electricity supply, underground, wherever possible.
• The provision of sufficient lighting to ensure pedestrian security.
• The use of lights that minimise glare.

21 Clause 6.0 contains decision guidelines and states as follows:

The following decision guidelines apply to an application for a permit under Clause 43.02, in addition to those specified in Clause 43.02 and elsewhere in the scheme which must be considered, as appropriate, by the responsible authority:

• Whether the design and landscaping of the site contributes to the amenity of the Geelong Ring Road employment precinct
• The appearance of the site when viewed from adjacent major transport routes and surrounding non-industrial land uses.
• The performance of the development against the Sign Guidelines, City of Greater Geelong 1997 and the Geelong Ring Road Employment Precinct Urban Design Guidelines, July 2010.

22 This clause deals with approval of an application to subdivide land and states as follows:

Before deciding on an application to subdivide land, the responsible authority must also consider, as appropriate:

• The suitability of the land for subdivision.
• The existing use and possible future development of the land and nearby land.
• The availability of subdivided land in the locality, and the need for the creation of further lots.
• The effect of development on the use or development of other land which has a common means of drainage.
• The subdivision pattern having regard to the physical characteristics of the land including existing vegetation.
• The density of the proposed development.
• The area and dimensions of each lot in the subdivision.
• The layout of roads having regard to their function and relationship to existing roads.
• The movement of pedestrians and vehicles throughout the subdivision and the ease of access to all lots.
• The provision and location of reserves for public open space and other community facilities.
• The staging of the subdivision.
• The design and siting of buildings having regard to safety and the risk of spread of fire.
• The provision of off-street parking. The provision and location of common property.
• The functions of any body corporate.
• The availability and provision of utility services, including water, sewerage, drainage, electricity and gas.
• If the land is not sewered and no provision has been made for the land to be sewered, the capacity of the land to treat and retain all sewage and sullage within the boundaries of each lot.
• Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas.
• The impact the development will have on the current and future development and operation of the transport system.

This clause does not apply to a VicSmart application.

23 The Applicant specifically refers to this clause in its statement of grounds as being a relevant policy of the Scheme with which the proposal is inconsistent in terms of safety and pipeline operational matters.

24 The Objective of this clause is:

To minimise the potential for human and property exposure to risk from incidents that may occur at a major hazard facility and to ensure the ongoing viability of major hazard facilities.

Ensure major hazard facilities are sited, designed and operated to minimise risk to surrounding communities and the environment.

Consider the risks associated with increasing the intensity of use and development within the threshold distance of an existing major hazard facility.

Apply appropriate threshold distances from sensitive land uses for new major hazard facilities and between major hazard facilities.

Protect registered or licenced major hazard facilities as defined under Regulation 5 of the Occupational Health and Safety Regulations 2017 from encroachment of sensitive land uses.

26 The Applicant specifically refers to this clause in its statement of grounds as being a relevant policy of the Scheme with which the proposal is inconsistent in terms of safety and pipeline operational matters.

27 The Objective of this clause is:

To ensure that gas, oil and other substances are safely delivered to users and to and from port terminals at minimal risk to people, other critical infrastructure and the environment.

Plan for the development of pipeline infrastructure subject to the Pipelines Act 2005.

Recognise existing transmission-pressure gas pipelines in planning schemes and protect from further encroachment by residential development or other sensitive land uses, unless suitable additional protection of pipelines is provided.

Plan new pipelines along routes with adequate buffers to residences, zoned residential land and other sensitive land uses and with minimal impacts on waterways, wetlands, flora and fauna, erosion prone areas and other environmentally sensitive sites.

Provide for environmental management during construction and on-going operation of pipeline easements.

29 It was common ground between the parties that:

(a) the Applicant is not a referral authority so any objection or statement of grounds lodged is done so in response to the notice given to the Applicant under section 52 of the Act;

(b) a planning permit is required for subdivision under the IN2Z and the DDO18;

(c) pursuant to clause 33.02-3 of the Scheme, given the context of the Land the planning permission required under the IN2Z is exempt from third party notice and review rights; and

(d) there is no exemption from third party notice and review under DDO18.

30 Where the parties differ is as to the scope of any application for review that may be brought by the Applicant under DDO18.

31 The Council submits that the Tribunal does have jurisdiction to consider the application for review because:

While the matters raised by Viva Energy in their objection and statement of grounds do not relate to the subdivision of the land, they are within their rights to object against the Responsible Authority's decision and appeal that decision to VCAT.[9]

32 The Council referred to the decision guidelines under DDO18 that relate to subdivision, specifically:

...Whether subdivision will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area.[10]

33 However, after referring to the Applicant's statement of grounds, the Council then submitted that:

Given that the statement of grounds relates to the future development of the land and their concerns relate to the potential impacts to their facility to the west. It [sic] is considered that these matters cannot be addressed under the application for review as the proposed development only relates to the subdivision of the land.

It is therefore, the Responsible Authority's position that the matters raised by the applicant cannot be considered and the application for review should be summarily dismissed.[11]

34 The Applicant relies on the combination of clause 43.02-3, clause 43.02-6 and clause 65.02 to enable it to raise and be heard in respect of grounds concerning safety or otherwise going beyond the scope of the bullet points listed in the decision guidelines for DDO18.

35 The Applicant submits that clause 65.02 applies to all applications to subdivide land, irrespective of where the permit trigger is found, and that before deciding on an application to subdivide land 'the responsible authority must also consider, as appropriate' (Applicant's emphasis) the listed matters. Amongst those listed matters, the Applicant highlights the following:

• The suitability of the land for subdivision.

• The existing use and possible future development of the land and nearby land.

• ...

• The design and siting of buildings having regard to safety and the risk of spread of fire.

• ...

• The impact the development will have on the current and future development and operation of the transport system.

36 The Applicant submits that '[t]he matters emphasised above readily embrace and permit consideration of the grounds raised by'[12] the Applicant.

37 The Applicant submits that the contention that an objection made under clause 43.02 must be confined to 'the design objectives, relevant requirements and decision guidelines contained in DDO18 and [c]lause 43.02'[13] is 'wrong for at least five reasons'.[14]

38 As to those reasons, the Applicant submits as follows.

39 Firstly, there is nothing in the text of DDO18, clause 43.02 and clause 65.02 that suggests that those provisions should be interpreted as though they are 'hermetically sealed from one another'.[15]The Applicant states that the unduly narrow constructional approach adopted by the Respondent is contrary to the scheme under the Act, which provides a generous invitation to third parties to participate in planning decisions which affect their interests.

40 Secondly, clause 43.02-6 expressly stipulates that the guidelines set out there are to be considered 'in addition to the decision guidelines in Clause 65',[16] evidencing an 'express textual (and, therefore, contextual) link between the considerations relevant under clause 43.02 and those relevant under clause 65.02'.[17] Further, the express terms of clause 43.02-6 state that the decision guidelines in that clause 'are intended to be supplementary to those in clause 65.02',[18] as well as clause 6.0 of DDO18 'which expressly refers to decision guidelines elsewhere in the scheme which must be considered'.[19]

41 Thirdly, the Applicant's position in this case is not contrary to the comments of the Supreme Court of Victoria in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal ('Sweetvale')[20] because in the present case the matters in clause 65.02 of the Scheme are expressly required to be considered in assessing the permission required under DDO18. As to the reference in clause 65.02 to 'as appropriate', the Applicant states:

...that qualification simply denoting that there is a discretion that is to be exercised having regard to the matters relevant to that discretion, the relevance of matters having been established by the issues raised before the responsible authority (and now the Tribunal);[21]

42 Fourthly, the Respondent adopts an 'unduly narrow approach to clause 65.02 by asserting that the matters that are to be considered under that clause are limited to those matters relevant under DDO18'[22] and that that 'is not an approach that finds any support in the text of clause 65.02 or the ambit of the qualifying phrase "as appropriate" as that phrase appears in clause 65.02'.[23] The Applicant agrees that the phrase 'as appropriate' requires the responsible authority to consider the matters relevant to the exercise of its discretion. However, the Applicant contends that the 'Respondent's approach confines that "discretion" to the matters specifically listed in the DDO18 and excludes entirely the application of policy. There is no justification for this narrow interpretative approach'.

43 The Applicant goes on to reason as follows:

The flaw in such an approach can readily be discerned by considering its application in real terms. Could it be said, for example, that a decision to grant a permit to subdivide would be liable to be set aside if a responsible authority considered a matter specified in clause 65.02 merely because, apart from reference in the chapeau, that matter is not referred to in the decision guidelines in the clause containing the relevant permit trigger? This approach undermines and jettisons the purpose of clause 65.02, which is to supplement the specific decision guidelines in other parts of the Scheme and to confer a broad discretion upon a responsible authority as to the matters properly to be taken into account when considering an application to subdivide. Those matters must presumably extend to include matters raised in objections and should not be confined merely to matters specifically listed in other decision guidelines.

Were it otherwise, clause 65.02 would serve no purpose. Put another way, if it was intended that any consideration in the present circumstances should be limited only to those matters in the bullet points to clause 43.02-6, it could reasonably be expected that the clause would provide as much. It does not so provide. Indeed, it provides the converse by clarifying that the decision guidelines in clause 43.02-6 are to be considered "in addition" to those in clause 65.02. The Respondent elides the two so as to effectively confine clause 65.02 to the matters specified in the bullet points to clause 43.02-6. This approach is contrary to the principles set out above.

44 Fifthly, the Applicant submits that the Respondent's approach to the relationship between clause 43.02 and clause 65.02 is inconsistent with the principle of integrated decision-making; considerations relevant under clause 43.02 should not delimit the scope of discretion under clause 65.02 because that is not how a responsible authority is to assess an application that triggers a need for a permit under clause 43.02. The Applicant refers to the words in the chapeau of clause 43.02-6 that those decision guidelines are to be considered 'in addition to the decision guidelines in Clause 65' , and cites the decision of the Supreme Court of Victoria in Boroondara City Council v 1045 Burke Road Pty Ltd ('1045 Burke Road').[24]

45 The Applicant contends that there is no warrant for summary dismissal of the application for review. The Applicant contends that its statement of grounds are 'justiciable' in the Tribunal because the Applicant has standing to bring the application under DDO18 and can raise the matters it does pursuant to clause 65.02.

46 Secondly, with respect to the safety consequences raised by the Applicant, clause 65.02 is expressly directed to consideration of matters that are prospective in nature and:

It is difficult to see how, given the terms of clause 65.02, it can be said that legitimate planning concerns should be characterised as being "devoid of merit" simply because they may be seen as being relevant to future development and uses facilitated by the subdivision, rather than directly flowing from the act of subdivision itself. Certainly, the grant of permission for the subdivision is properly to be seen as the first step in the causal link and cannot be divorced and separate from any future development or use.[25]

47 Further, the Applicant submits that the Tribunal is being asked to undertake on a summary basis the 'invidious task of examining the merits of the grounds raised by Viva Energy in order to conclude that those grounds are beyond hopeless but are entirely devoid of merit'.[26]The Applicant submits that 'to say that a concern may be premature is very different from establishing that the concern is absent any merit at all'.[27]

48 The Respondent asserts that the application for review should be summarily dismissed on the basis that it is misconceived and devoid of any planning merit.

49 The Respondent submits that the notice and review rights that are available pursuant to DDO18 address the design and built form of new development and do not contemplate or permit an objection brought on safety grounds. That is, 'the relevant permit trigger does not confer jurisdiction on the Tribunal to consider the risk and safety issues agitated by the Applicant'.[28]

50 The Respondent refers to the decision guidelines within DDO18 that apply in addition to those specified in clause 43.02 and must be considered 'as appropriate' by the responsible authority. Amongst these are decision guidelines that deal with design, landscaping, the appearance of the site and signage. The Respondent then submits that:

Having regard to the nature of the control, it is not surprising that the decision guidelines address matters related to physical aesthetics including design, landscaping, site appearance and the provision of signage. It is very clear that the DDO is not imposed to regulate or consider safety and risk issues. That is properly the task of the zone control in this context.[29]

51 The Respondent contends that the risk and safety concerns are directly relevant to the decision made under IN2Z and that they are not matters to which the Tribunal can properly have regard in the context of the review of the permit trigger associated with DDO18. Rather:

The content and nature of the matters which the Tribunal can properly have regard to in the context of the permit trigger associated with DDO18 are informed by the design objectives, relevant requirements and decision guidelines contained in DDO18 and Clause 43.02 of the Planning Scheme. These matters are outlined in detail above. They address matters of aesthetics associated with site layout and built form and design which clearly accords with the overlay appearing in the suite of controls titled 'Heritage and Built Form Overlays'.

The contents of DDO18, like all design and development overlays, are directed at controlling built form outcomes within the area, and the associated matters of neighbourhood character, landscape character and amenity. There is simply no scope for considering the alleged safety and risk issued raised by the Applicant under the DDO.

Even those aspects of DDO18 which do relate to subdivision do not extend to permit consideration by the Tribunal of the issues agitated by the Applicant. This is reflected in, and confirmed by, the decision guidelines associated with the DDO Schedule.[30]

52 The Respondent refers to the decision guidelines at clause 43.02-6 that must be considered before deciding on an application and in addition to the decision guidelines in clause 65. The Respondent submits that:

The decision guidelines in Clause 65.02 which arise in the context of the Respondent's permit application, and which must be considered as appropriate, do not and cannot, be construed so as to create a permit trigger that does not exist.

It is well accepted that permit triggers (or their absence) confine or otherwise set the parameters for the exercise of discretion. The DDO in this case informs the decision maker as to the discretions that are enlivened which are subject to third party scrutiny.

As to the application of policy:

The Tribunal must only consider the policies at state and local level that are relevant to the exercise of the discretion it has to determine.

While the DDO head clause contains the ubiquitous objective to "implement the Municipal Planning Strategy and the Planning Policy Framework", this does not mean that in this case, all policy (including any policy in relation to safety) will be relevant. This is clear from the decision guidelines for the DDO and the reference in clause 65.02 to various decision guidelines to be considered as appropriate.

Policy guides the exercise of discretion and if no discretion exists which is amenable to third part [sic] rights of review, there is no role for policy to play.[31]

53 The Respondent refers to Brunswick Investment Project Pty Ltd v Moreland CC[32] ('Brunswick Investment'), a decision of Quigley J sitting in the Tribunal and determining a question of law, in which Her Honour commented upon the role of policy in decision making and in the context of the planning permissions required.

54 The Respondent asserts that the Applicant's approach misconstrues the reach of clause 65.02 in the circumstances of this case and seeks to give it a far broader application than is appropriate. Whilst agreeing that the decision guidelines in clause 65.02 have potential application for all subdivision applications '[t]his does not mean that all of the decision guidelines listed in Clause 65.02 will be applicable in all situations'[33] and that the relevant decision guidelines are informed by the permit trigger.

55 The Respondent refers to the words 'as appropriate' in clauses 43.02-6 and 65.02 as establishing that a consideration of the decision guidelines in clause 65 is 'inexorably linked both textually and conceptually to the relevant permit trigger'.[34] Clause 65.02 cannot 'rise above the relevant permit trigger/s and allow consideration of matters beyond the scope of the trigger in question'.[35]

56 The Respondent reasons:

It cannot be the case that in a circumstance where the Tribunal is reviewing a decision under the relevant zone and the DDO that Clause 65.02 will have the same effect or embrace the same considerations when compared with a review where the relevant DDO is being considered alone (as is the case here as a consequence of the absence of third party rights of review associated with the zone control).[36]

57 The Respondent submits that this approach did not offend the principles of statutory interpretation or undermine integrated decision making, as it ensured that clause 43.02-6 and clause 65.02 worked harmoniously to ensure that 'only those considerations which are pertinent to the review in question are considered by the relevant decision-maker'.[37]

58 Finally, the Respondent contends that:

Irrespective of whether the Applicant can even agitate the matters it alleges before the Tribunal, the objection is totally devoid of any planning merit. There is no prospect that the proposed two lot subdivision of the land, providing for two very large parcels and with no change to the boundary arrangements fronting McManus Road, could possibly give rise to safety concerns. In truth, and as the Applicant's objection states, it is the potential future use and development of the land with which the Applicant is truly concerned.[38]

59 The Respondent submits that the Applicant is concerned with issues that are 'inexorably linked to the subject site's future use and development, rather than its subdivision'[39]and that '[w]hilst the Objection suggests that the concerns raised are the consequence of the proposed subdivision, they are in fact potential consequences of a future use or development application which will be considered if and when planning permission is sought'. The Respondent submits that the proposed subdivision on its own does not and cannot give rise to the risks raised by the Applicant.

60 The Respondent criticises the Applicant for not articulating how or why the proposed subdivision creates any of the safety risks raised in its statement of grounds. The respondent acknowledges that whilst the subdivision might be a decisive act that 'sets a pattern for future development and use',[40] the Applicant has 'failed to articulate the way in which this proposed subdivision sets the future development and use of the subject land on a course which is characterised by a lack of safety'[41]and states that this is because the Applicant simply cannot do so. The Respondent reasons that the proposed subdivision 'does not alter the status quo in any material sense'[42] and that:

...The IN2Z clearly permits industrial land uses within 250 metres of the MHF. This is not a circumstance that has been created or exacerbated by the proposed subdivision.[43]

NATURE OF SECTION 82 APPLICATION FOR REVIEW**

61 I will deal with each of the purposes of this preliminary hearing, in turn. However, before I do so I wish to address a broader matter.

62 The proposed subdivision requires planning permission under more than one provision of the Scheme. As was said by Warren CJ in 1045 Burke Road, each permission requires separate assessment as well as an assessment being made of the proposal as a whole:

36. Whether an overarching permit application is made for an entire proposal or the required permits are applied for separately is a matter of form rather than substance. In either situation, the triggered permit requirements must each be considered by the responsible authority, in the context of the overall proposal. For a cover-all permit to be granted, the responsible authority must be satisfied that in the context of the overall proposal, a permit should be granted in respect of each permit requirement triggered by the proposal, and also that the cover-all permit which is sought should be granted.

37 Put another way, the overall proposal is taken into account in the consideration of each permit requirement triggered by the proposal, and also as a final check before the project permit is granted. The individual permit requirements that are triggered are not to be considered in isolation or sequentially; instead each must be considered with regard for the other triggered permit requirements and the overall proposal.

(footnotes omitted)

63 This proceeding discloses a complexity that exists when an application for review is brought under section 82 of the Act in circumstances where third party notice and review exemptions are in effect for some, but not all, of the permissions sought.

64 In the 'ordinary' circumstances of a section 82 application for review, the Tribunal will decide afresh the planning permit application that had been approved by the relevant responsible authority. That process involves assessing all permissions sought in the context of the overall proposal and undertaking the exercise of integrating planning policies and balancing conflicting objectives in favour of net community benefit and sustainable development, as required by clause 71.02-3 of the Scheme.

65 However, where a section 82 application for review involves more than one permission, some of which are not amenable to third party review and some of which are, then a complication occurs; that being, the decision that has been made by the relevant responsible authority is only partially before the Tribunal for review. As such, the usual task of assessing all permissions individually and then together as a whole proposal, while integrating policy and balancing conflicting objectives, is not undertaken by the Tribunal as it was by the relevant responsible authority because not all of the permissions sought are before the Tribunal for review.

66 This situation was discussed in Sweetvale, with Ashley J making the following comments:

70 I must next refer to the applicants' submission that if decisions on certain applications were quarantined against review it was likely that the review process would produce a distorted decision not reflecting all relevant planning considerations. In this connection counsel contended that the balancing exercise required by cl. 11 of the Scheme would be prejudiced, if not rendered impossible.

71 I accept that, in consequence of the view I take as to the application of the exemptions, the ambit of permissible enquiry on review in a case such as the present will be confined. The Tribunal will be obliged to take certain matters as having been established. But that does not mean that remaining planning issues cannot be fully explored. It does not mean that in such exploration evidence will not be receivable which is pertinent to such issues because it would also be relevant to a matter which must be taken to be established. Finally, if and insofar as the view I take would have a tendency to produce a decision not reflecting all relevant planning considerations, that is what, in my opinion, is plainly dictated by the legislation.

67 As such, where a permission is not before the Tribunal for review, the Tribunal is obliged to take certain matters related to that permission as having been established. However, there might be some matters that are relevant to more than one permission and in that instance, the Tribunal can consider those matters in the context of the decision before it, notwithstanding that those matters might have been used in relation to the permission not before the Tribunal. Equally, there might be some issues that are properly taken into account in assessing one permission but not in assessing another, and where that permission is not before the Tribunal that issue will not be open to the Tribunal to take into account. Whether these situations arise in any given section 82 application depends on the permissions sought, the exemptions in play and the issues being agitated.

IS THE APPLICATION FOR PLANNING PERMIT EXEMPT FROM THE NOTICE AND REVIEW RIGHTS PROVIDED FOR IN THE ACT?

68 Having regard to the context of the Land, I agree with the parties' common position that the application for planning permit:

(a) is exempt from notice and review rights with respect to the permission sought under the IN2Z; and

(b) is not exempt from notice and review rights with respect to the permission sought under the DDO18.

69 As such, any issues agitated under the Applicant's statement of grounds need to properly arise in relation to the permission sought under the DDO18, being the permission that is available for review in this application brought under section 82 of the Act.

DOES THE TRIBUNAL HAVE JURISDICTION TO CONSIDER THE APPLICATION FOR REVIEW?

70 Whilst the Applicant has standing to bring an application under section 82 of the Act due to it being a person who objected to the Council in relation to the planning permit application, the real question is whether the Applicant can bring the application for review on the grounds that it has.

71 Put another way, in the context of the case before me I see this question as asking:

Are the safety issues agitated by the Applicant irrelevant or not able to be taken into account in this proceeding given that it solely involves the permission sought under the DDO18?

72 The Respondent contends that safety matters are not matters before the Tribunal because they are properly taken into account in assessing the permission sought under the IN2Z, which is not available for third party review.

73 The Applicant agrees that the permission sought under the IN2Z is not available for third party review but relies on the permission sought under the DDO18 to enable consideration of safety issues, via the decision guidelines in clause 65.02.

74 The Respondent then submits that the matters to be taken into account in the assessment of the permission under the DDO18 are to be viewed through the lens of the DDO18 and these matters cannot be broadened via clause 65.02 in the manner suggested by the Applicant.

75 If the grounds agitated by the Applicant are irrelevant or not available to the Applicant to advance in this application, that may be a reason to summarily dismiss this application for review.

76 In the alternative, if not irrelevant, the Respondent contends that objection is totally devoid of any planning merit. If this is the case, again, this may be a reason to summarily dismiss this application for review.

77 As such, firstly I need to determine whether the safety matters are irrelevant or not able to be taken into account in this proceeding. The second determination is whether, in any event, the objection is totally devoid of any planning merit. The question that follows is then whether the proceeding should be summarily dismissed.

78 The Applicant and the Respondent each referred to various cases in support of their positions. Before turning to the above questions, I briefly discuss two of the cases that address the ambit of the discretion.

79 Garde AJA in 1045 Burke Road confirmed that the National Trust principle remains a sound proposition:

121 The National Trust Case stands for the principle that a discretion cannot be exercised for a purpose other than that for which it is granted. This principle continues to have underlying validity. However, identification of the purposes for which the discretion is granted is undertaken by reference to the Act and the Scheme and not by reference to preconception or speculation as to what those purposes must be.

80 His Honour referred to principles of statutory construction as being equally applicable to statutory instruments such as planning schemes, and that:

124 ...the factors that a decision-maker is bound to, or may consider in making a decision are principally determined by the construction of the statute conferring the discretion.

81 In terms of the matter before the Court of Appeal in 1045 Burke Road, Garde AJA referred to the decision guidelines in the Heritage Overlay control contained in clause 43.01-4 that incorporated the decision guidelines in clause 65 of the planning scheme.[44] In assessing the permissions sought under the Heritage Overlay, Garde AJA considered the Tribunal's approach as to what it took into account and made the following comments:

142 In reaching its decision, the Tribunal did take into account considerations extending beyond strictly heritage considerations. Those considerations included the architecture of the proposed building, neighbourhood character policy, development on main roads, the physical and strategic context, and the interfaces of the site.

143 All of these considerations were relevant considerations in an application under the Heritage Overlay having regard to the provisions of the Act and the Scheme. So too are considerations such as urban consolidation, housing diversity, sustainable development and urban design. The weight to be given to these considerations is fundamentally for the decision-maker and not for the Court to determine.

144 The Tribunal was entitled to have regard to considerations other than heritage considerations provided that the considerations it took into account did not stray beyond those authorised by the Act and the Scheme. Boroondara has not shown that any consideration taken into account by the Tribunal was extraneous to those that the Tribunal was entitled to take into account.

82 More recently Quigley J in Brunswick Investment considered the comments of the Court of Appeal in 1045 Burke Road in the context of that case, which was brought under section 79 of the Act and concerned use and development permission for a proposed Bunnings store. In that case, car parking in excess of the statutory rate was to be provided and the question arose as to whether the Tribunal could refuse a permit or impose a condition requiring the reduction of car parking on the basis that provision of such levels of car parking was inconsistent with sustainable transport policy in the planning scheme. All parties accepted that no permit was required under clause 52.06 and that the parking to be supplied exceeded the statutory rate.

83 Quigley J referred to the council's submissions, including the proposition that the purpose and decision guidelines of the relevant Industrial Zone, being the IN3Z, resulted in consideration of State and local planning policy in relation to sustainable transport, car parking and traffic being relevant, irrespective of whether permission was required under clause 52.06. By contrast, the applicant submitted that clause 52.06 'covered the field' in terms of car parking provision and that:

54. ...As there was no reference to sustainable transport policy in the IN3Z (other than by reference more broadly to all state and municipal policies which was not a proper analysis of the purpose for which the discretion was to be exercised) such considerations were irrelevant to the Tribunal's consideration.

84 Quigley J found that the Tribunal must only consider the policies at State and local level that are relevant to the exercise of the discretion it has to determine and that as there was no permission required under clause 52.06, no question arose as to the exercise of discretion in respect of the quantum of car parking.[45]

85 Her Honour then summarised the principles which should be applied as follows:

• It is only the statutory requirement for a permit that triggers an exercise of discretion under the Act and the Scheme. Policy cannot expand the purpose for which the discretion is to be exercised beyond the realms of the control itself.
• A decision maker may only exercise a discretion for the purpose for which it is conferred.
• The purpose will be identified from the words of the control itself, including the decision guidelines and from its context.
• The decision maker can look at the other aspects of the planning scheme to ascertain the context in which the discretion has been provided and the possible basis of the discretionary provision.
• Only those aspects of the Scheme relevant to this context will assist in the ascertainment of the purpose. The requirement for a permit does not open up the broad range of policy considerations or other matters which are not directed to the purpose for which the discretion is being exercised.
• In exercising discretion, the decision maker must only take into account relevant considerations. The ascertainment of what is relevant is primarily deduced from the words of the control itself as it is the starting point to identification of the purpose for which the exercise of discretion is to be undertaken.
• In the circumstances where the permit triggers are a single issue eg heritage considerations or flooding, the relevant considerations are more easily identified.
• Where there are multiple permit triggers and hence multiple planning considerations, considerations of synthesising the potential conflicting policy issues, giving them respective weight and the expectations of integrated decision making arises.[46]

86 Quigley J acknowledged that the Court of Appeal in 1045 Burke Road viewed the policy considerations in that case to be broader than heritage considerations alone, encompassing matters such as urban consolidation, urban design and neighbourhood character. Quigley J drew a distinction between the two cases, noting that 1045 Burke Road was a case involving potentially conflicting permit requirements whereas Brunswick Investment involved no permit being required for the quantum of car parking.

87 Quigley J stated that:

74 The considerations relevant to the exercise of discretion under the IN3Z do not enliven the consideration of policies relating to transport or sustainability. Examination of the purpose of the zone, in the context of the planning scheme overall compels this conclusion.

75 The Tribunal's task is to make a decision on the permit application taking into account all relevant considerations called up by the permit triggers set out in the Scheme.

76 The ambit of the discretion to be exercised is constrained by the purpose for which it is generated. Policy of itself is not a trigger for the exercise of discretion but provides the guidance and strategic context for decision-making once a decision has to be made under the planning scheme provisions.

77 The role of policy is not the same as the role of the provisions which trigger the need for a permit. Policy at this statutory point is the servant not the master.

(footnotes omitted)

88 In addressing submissions put regarding the comments of the Court of Appeal in 1045 Burke Road, Her Honour stated:

79 Council and the respondent argued that the approach to the exercise of discretion after the Court of Appeal decision in 1045 Burke Road meant that a very broad approach to consideration of policy was the correct approach. It was highlighted that the first purpose of each zone and overlay control was the implementation of state and local policy and that an integrated decision making approach as set out in clause 71.02-3 required all relevant policy including that of sustainable and transport policy to be taken into consideration.

80 The issue is not that all relevant policy ought to be taken into account. In that position, all parties were agreed. Rather, what is to be identified is what is relevant in the context of the controls which set the ambit of the decision to be made.

81 Planning law after 1045 Burke Road is still constrained by a limitation of what is relevant in the context of the decision to be made. Integrated decision making and what is relevant is not so broad that every conceivable policy consideration is open. The National Trust principle still has work to do.

89 In determining what are the relevant considerations for a decision-maker, Quigley J held that the primary question must be 'is a permit required'. In the case before Her Honour, the key control in respect of car parking - being clause 52.06 - was not engaged as no permit was required. Whilst the IN3Z referred to traffic and parking in its various provisions, this was not considered to extend to an assessment of the quantum of car parking. Further, in this respect:

88 The conclusion that 'some matters listed in a planning control as matters for consideration may not be material in the individual case' has been confirmed by the Court of Appeal and applied by the Tribunal. This approach is said to be consistent with the general principle that the factors that a decisionmaker may or must consider in making a decision are determined by the construction of the statute conferring the discretion.

(footnotes omitted)

90 Quigley J quoted Garde AJA in 1045 Burke Road as regards what might be relevant under a particular planning control, as follows:

90 ...In Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council, Walsh J observed that the scope of the purpose of "the implementation of planning policy" was to be derived from the Act and from relevant provisions of the ordinance, and not from some preconceived general notion of what constitutes planning. The same principle applies to the scope of considerations to be taken into account under specific planning controls. In determining the scope of considerations that may be taken into account in deciding whether a permit should be granted, the objectives, purposes and decision guidelines found in the Act and in the applicable planning control will ordinarily be decisive.

(footnotes omitted)

91 It is therefore necessary to discern the purpose of the discretion under the IN3Z by reference to the text, structure and context of the Act, the planning scheme and the planning control in question. The fact that the Scheme contains sustainable transport policy is not sufficient to render that policy a purpose of all discretions exercisable under the Scheme nor a relevant consideration.

92 I am bound by the reasoning in 1045 Burke Road. The question to determine is the purpose of the discretion to be exercised in the context of any planning permission required. Put another way, what are the permit triggers and what considerations are relevant to exercising that discretion to grant a permit under that trigger, and if granted, on what conditions.

93 The principle of integrated decision making embedded in the Scheme requires a synthesis of competing factors, not all of which are relevant for all permit triggers. A particular matter may not be relevant under a particular permit trigger but may be relevant under another.

(footnotes omitted)

119 I agree that the question is not answered simply by referring to the references to the MPS and PPF in the IN3Z purpose and decision guidelines, clause 65 and clause 71, and observing that the MPS and PPF contain sustainable transport policy, including policy to reduce the amount of car parking provided. Such an approach is overly simplistic in the context of the Victoria Planning Provisions, where permit requirements are established under specific controls and all of the references to policy are subject - either explicitly or implicitly - to the qualification "as relevant".

Are the safety issues agitated by the Applicant irrelevant or not able to be taken into account in this proceeding?

What permission is the subject of this proceeding?

93 Consistent with what was held in 1045 Burke Road and Brunswick Investment along with the National Trust principle, the starting point is to ascertain the permit trigger.

94 The proposal requires permission under both the IN2Z and DDO18 although as stated earlier, a particular complexity in the case before me is that only the permission under DDO18 is available for third party review. Consistent with what was said in 1045 Burke Road, '[a] particular matter may not be relevant under a particular permit trigger but may be relevant under another'.

95 Here, the Council has determined that the proposed subdivision is an acceptable planning outcome under the IN2Z and the DDO18. Following Sweetvale, given this is an application under section 82 of the Act and given the operation of the third party exemption as regards the IN2Z permission, the Tribunal is obliged to take certain matters related to that permission as having been established. But there might be matters relevant to both permissions and to the extent that there is a matter relevant to the DDO18 permission, that is properly before the Tribunal to consider in making the decision regarding the DDO18 permission.

96 At this point, I wish to make the following broad observations about the difference between a subdivision permission sought under a zone and a subdivision permission sought under an overlay, a matter to which I will return, later.

97 At a high level, whether a permit should be granted for subdivision under a zone control will likely take into account different matters to whether a permit should be granted for subdivision under an overlay control.

98 I say this because a zone control is imposed over land in order to broadly categorise what the planning authority views to be the appropriate types of use, development and subdivision of the land that is located within that zone. Within this decision of the planning authority may be considerations of physical attributes and constraints on areas of land, as well as setbacks from land used and developed for different purposes and located in other zones. Use of land is regulated by its zoning. As such, questions that go to the suitability of a site (in terms of its physical characteristics) for a particular use, or the appropriateness of a proposed use as regards the site's interface with other land, might arise.

99 By contrast, an overlay control is imposed in order to identify land that, due to physical or locational characteristics, is to be subject to an additional level of planning management that is directed at addressing a specific issue. For instance, heritage matters for the Heritage Overlay, environmental values and constraints for the Environmental Significance Overlay, flooding matters for the Floodway Overlay or design and built form matters for the DDO.

100 In each of those overlays, a permit is required to subdivide land and in each instance the decision guidelines are to be considered in addition to the decision guidelines contained in clause 65. But for each of those overlays, the matters that would be appropriately taken into account in making a decision regarding a permission would be different. This is the case because the purpose of each overlay - and the discretion under the overlay - is different.

101 Having regard to the different purposes of zone and overlay controls, it is conceivable that a proposed subdivision might be an acceptable planning outcome under one control but not under all relevant controls. However, it is also conceivable that a proposed subdivision might be an acceptable planning outcome under all relevant controls, notwithstanding their different purposes.

102 In Brunswick Investment Quigley J reiterated the relevance and role of the National Trust principle in decision-making; that is, the notion that a discretion cannot be exercised for a purpose other than that for which it is conferred.

103 The first question to ask is what is the purpose for which the discretion under the DDO18 has been conferred? The purpose will be identified from the words of the control itself, including the decision guidelines and from its context. Only those aspects of the Scheme relevant to this context will assist in the ascertainment of the purpose.

104 As a broad comment, I observe that in imposing the DDO18 over land in the Geelong Ring Road Employment Precinct, this area has been identified as an area which is affected by specific requirements relating to the design and built form of new development.

105 The stated purposes of the DDO are two-fold, the first being the broad '[t]o implement the Municipal Planning Strategy and the Planning Policy Framework' and the second the more specific '[t]o identify areas which are affected by specific requirements relating to the design and built form of new development'.

106 Although the first purpose of the DDO refers to the Municipal Planning Strategy and the Planning Policy Framework, I am mindful of not drawing the 'overly simplistic' link referred to by Quigley J in relation to this broad first purpose. That is, just because policies exist in the Scheme, that of itself does not provide justification for those particular policies being taken into account in determining the purpose of the discretion under the DDO18.

107 The design objectives in clause 1.0 of Schedule 18 focus on providing a high level of amenity within the precinct and when viewed from major transport routes and surrounding non-industrial land uses, providing an attractive frontage to the Geelong Ring Road, and facilitating the development of the Geelong Ring Road Employment Precinct as a high amenity industrial area suited to the needs of advanced manufacturing and production support industries.

108 The requirements in clause 3.0 deal with lot size and orientation along with aspects of street design.

109 The DDO18 details those specific requirements relating to the design and built form of new development and then seeks to ensure that any proposal that triggers the need for permission under the DDO18 is assessed accordingly.

110 Given there is no use or development proposed, and the Land is vacant, it is not a situation where the design and built form of new development is in issue. Irrespective, permission is still required under the DDO18 for the subdivision: subdivision is specifically called up in clause 3.0 of Schedule 18, logically, because the size of lots and their configuration, layout and aspect will have an impact upon their possible future use and development. In this respect, one might consider whether the proposed subdivisional lots will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area, having regard to one of the decision guidelines contained in clause 43.02-6.

111 Consideration of all of these aspects of the DDO18 leads me to conclude that the purpose of the DDO18 is to regulate the appearance of built form on the Land so as to ensure consistence with the design objectives contained in clause 1.0 of Schedule 18. In terms of subdivision, the discretion exists for the purpose of assessing whether the subdivision is acceptable in light of the Land's location in the Geelong Ring Road Employment Precinct.

112 It is appropriate to view the subdivision permission required under the DDO18 through the lens of the purpose of that provision.

What must be considered in making a decision under the DDO18?

113 The permit requirement for subdivision under the DDO18 is found in clause 43.02-3 of the head clause and requirements are contained in clause 3.0 of the DDO18.

114 When making a decision under the DDO18, one looks to the decision guidelines in both the applicable clause of the DDO head clause (clause 43.02-6) and in clause 6.0 of Schedule 18. Each clause contains a chapeau and then a list of decision guidelines.

115 The chapeau of clause 43.02-6 of the DDO head clause states as follows:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

116 The chapeau of clause 6.0 of Schedule 18 states as follows:

The following decision guidelines apply to an application for a permit under Clause 43.02, in addition to those specified in Clause 43.02 and elsewhere in the scheme which must be considered, as appropriate, by the responsible authority:

117 Two things may be observed about these chapeaus. Firstly, the decision guidelines that follow each chapeau are to be applied 'as appropriate', suggesting that there may be instances where not all of the decision guidelines are appropriate or relevant to the permit in question. Secondly, each chapeau refers to the decision guidelines as being 'in addition to' other things that are referred to in the chapeau: for the head clause, the decision guidelines in clause 65; for clause 6.0, the decision guidelines specified in the head clause and 'elsewhere in the scheme'.

118 Clause 65 is referenced in clause 43.02-6. Clause 65 of the Scheme contains the following chapeau:

Before deciding on an application to subdivide land, the responsible authority must also consider, as appropriate:

119 I make three observations about these words. Firstly, it is clear that this clause is to be taken into account before a decision is made on an application to subdivide land and that this clause does not, of itself, create a separate permit trigger. To the extent that the Respondent argues that clause 65 cannot create a separate permit trigger, it is correct, although I did not understand that to be suggested by the Applicant.

120 Secondly, the decision guidelines that follow must 'also' be considered, suggesting that it is the intention of this clause 65.02 to broaden the matters that are taken into account in making a decision regarding a proposed subdivision, where the permit trigger is sourced elsewhere in the Scheme. To the extent that this contention is put by the Applicant - that clause 65 is intended to supplement the specific decision guidelines in other parts of the Scheme - I agree that the reference to clause 65 in this manner has the effect of broadening the matters to be considered beyond those in the decision guidelines of the head clause and Schedule 18.

121 And thirdly, there is again the reference to the responsible authority considering the decision guidelines 'as appropriate', suggesting that while the clause will broaden the matters to be taken into account, there must still be a consideration of whether a particular decision guideline is appropriate.

122 I agree with the Applicant that the phrase 'as appropriate' requires the responsible authority to consider the matters relevant to the exercise of its discretion but that this should not result in only matters specifically listed in the DDO18 being taken into account, otherwise the reference to clause 65 would serve no purpose.

123 When I look at the decision guidelines that are contained in clause 65.02, two things are apparent.

124 Firstly, clause 65.02 is broad and applies to all conceivable subdivision applications made throughout Victoria. It stands to reason that not all of the decision guidelines in that clause will be appropriate to consider in all instances. Many of the listed matters will not be appropriate to take into account for a subdivision because they do not arise on the facts. For instance, the decision guideline that refers to the functions of any body corporate will not be appropriate to take into account where the subdivision does not result in the creation of a body corporate. Similarly, the decision guideline referring to the staging of the subdivision (where there is no staging) or the provision and location of public open space reserves (where none are created). This lends weight to the Respondent's contention that not all of the decision guidelines listed in clause 65.02 will be applicable in all situations.

125 Secondly, many of the listed matters might not be things that are otherwise directly taken into account in decision guidelines elsewhere in the Scheme. For instance, the existing use and possible future development of the land and nearby land, and, the impact that the development will have on the current and future development and operation of the transport system. This lends weight to the Applicant's contention that the matters that are appropriately taken into account in clause 65 should not be unduly constrained by the wording of the decision guidelines elsewhere in the Scheme.

Are the safety issues raised by the Applicant irrelevant or not able to be taken into account in this proceeding?

126 Having ascertained the purpose of the DDO18 and having considered the decision guidelines to which regard should be given, I now have to determine whether the safety issues raised by the Applicant are irrelevant or not able to be taken into account in this proceeding. This is done through the consideration of those decision guidelines.

127 Firstly, whilst the decision guidelines in clause 43.02-6 (DDO) refer to the Municipal Planning Strategy and the Planning Policy Framework, and clauses 13.07-2S (Major hazard facilities) and 19.01-3S (Pipeline infrastructure) relied upon by the Applicant form part of the State policy, it is not the case that just because something is included in State policy, it is relevant to a decision under the DDO18. That is, for a policy to be relevant to a particular decision there needs to be something more than just the fact that the policy is contained in the Scheme.

128 Secondly, in terms of the decision guidelines contained in the head clause, none of the listed matters go to safety let alone the safety risks raised by the Applicant. Rather, the decision guidelines go to matters involving the design and appearance of the site. This is unsurprising in light of the specific second purpose of the DDO. I note that the decision guidelines do again refer to the Municipal Planning Strategy and the Planning Policy Framework, as well as to '[a]ny other matters specified in a schedule to this overlay'.

129 Thirdly, the three decision guidelines in clause 6.0 of Schedule 18 go to matters involving the design and appearance of the site, and not to safety.

130 So there is no direct reference in DDO18 to issues of the nature raised by the Applicant.

131 The Applicant relies on the following decision guidelines in clause 65.02:

• The suitability of the land for subdivision.

• The existing use and possible future development of the land and nearby land.

• ...

• The design and siting of buildings having regard to safety and the risk of spread of fire.

• ...

• The impact the development will have on the current and future development and operation of the transport system.

132 The Applicant contends that these decision guidelines readily embrace and permit consideration of the safety concerns raised by the Applicant. These safety concerns include an assertion that the Council's decision to approve the proposal did not consider and address the residual risk that is inherent in the Land's proximity to the Lara Liquid Petroleum Gas Pipeline and the Lara LPG Terminal, and, did not adequately respond to safety and pipeline operational matters and is inconsistent with relevant policy provisions in the Scheme including that of clauses 13.07-2S and 19.01-3S.

133 For the Applicant's contention to be correct, the identified decision guidelines would firstly need to be sufficiently broad to cover the safety issues raised by the Applicant, a query that requires an appreciation of what is addressed by clauses 13.07-2S and 19.01-3S. Assuming this to be the case, those safety issues would then need to be matters that can appropriately be considered under the DDO18.

134 As to the first question, clause 13.07-2S Major hazard facilities has the objective:

To minimise the potential for human and property exposure to risk from incidents that may occur at a major hazard facility and to ensure the ongoing viability of major hazard facilities.

135 The first and third strategies are directed at where major hazard facilities are located. Given the Lara LPG Terminal is an existing facility, these strategies are not relevant. However, the second and last strategies are of potential application:

Consider the risks associated with increasing the intensity of use and development within the threshold distance of an existing major hazard facility.

...

Protect registered or licenced major hazard facilities as defined under Regulation 5 of the Occupational Health and Safety Regulations 2017 from encroachment of sensitive land uses.

136 Clause 19.01-3S Pipeline infrastructure has the objective:

To ensure that gas, oil and other substances are safely delivered to users and to and from port terminals at minimal risk to people, other critical infrastructure and the environment.

137 The first, third and last strategies are directed at the location of pipeline infrastructure and given this infrastructure exists, are not relevant. The second strategy is of potential application:

Recognise existing transmission-pressure gas pipelines in planning schemes and protect from further encroachment by residential development or other sensitive land uses, unless suitable additional protection of pipelines is provided.

138 To the extent that these strategies refer to 'sensitive land uses', in light of the Land's location in the IN2Z it is unclear whether the future use and development of the Land following the subdivision would result in 'sensitive land uses'. I observe that there are a variety of uses in the IN2Z that are either as-of-right or allowable with a permit that do not necessarily evoke images of 'industrial' land use but nor are they suggestive of 'sensitive land uses'.

139 To the extent that these strategies refer to increasing the intensity of use and development, whilst this is not an application for use or development permission under the DDO18, I agree with the Applicant that the grant of permission for the subdivision is properly to be seen as the first step in, and to this extent associated with, the future use and development of the Land.

140 So are the referenced strategies in the policy and the broader safety concerns regarding the residual risk inherent in the Land's proximity to the Lara Liquid Petroleum Gas Pipeline and the Lara LPG Terminal matters that come within the identified decision guidelines in clause 65.02?

141 Those decision guidelines are broad and direct attention to whether the Land is suitable for the subdivision proposed, as well as to the nature of the existing use and development of the Land and of nearby land. In my mind, this could include consideration of interface issues.

142 As a general comment, I accept that the proximity of land to a major hazard facility and liquid petroleum gas pipeline, and the risks that might be posed by a nearby major hazard facility and liquid petroleum gas pipeline as regards the future use and development of the Land, come within the concepts of whether the Land is suitable for subdivision, and, the existing use and possible future development of the Land and nearby land. In this respect, one might consider whether a subdivision should be permitted where the consequence of such subdivision might be the introduction of a separate land use and development and associated persons to the Land on the additional lot that is being created.

143 So yes, I regard the identified decision guidelines in clause 65.02 to be sufficiently broad to cover the safety issues raised by the Applicant.

144 The next question is whether those safety issues are matters that can appropriately be considered under the DDO18.

145 Just because the safety issues raised by the Applicant conceivably fall within the identified decision guidelines of clause 65.02, that does not mean that those safety issues are relevant to this decision being made under the DDO18.

146 This is in light of the National Trust principle. The discretion exercised under the DDO18 must be exercised for the purpose for which it was conferred. I have already found that the purpose of the discretion under the DDO18 goes to the appearance of built form on the Land so as to ensure consistence with the design objectives contained in clause 1.0 of Schedule 18, and, in terms of subdivision, whether the subdivision is acceptable in light of the Land's location in the Geelong Ring Road Employment Precinct. That is, will the proposed subdivision enable the Land to be developed in a manner consistent with the design objectives of DDO18?

147 I cannot see how the safety matters raised by the Applicant go to that purpose. They do not in any way relate to the design matters to which this clause is directed. I cannot see how the concerns raised by the Applicant regarding the potential for increased numbers of persons on the Land and the possible effect on the Lara LPG Terminal and the Lara Liquid Petroleum Gas Pipeline relate to what is a rather confined purpose of discretion under the DDO18.

148 As a separate matter I observe that there are currently a number of buildings in the vicinity of the Land and the Lara LPG Terminal and a variety of land uses. As such, there may already be a risk to persons posed by the presence of the Lara LPG Terminal and the Lara Liquid Petroleum Gas Pipeline. It is unclear on the material before me how any existing level of risk might be exacerbated by the addition of another lot to the area, even one that will be located opposite the Land.

149 However, even putting the Applicant's case at its highest and allowing that the subdivision might exacerbate any existing risk inherent in the Land's proximity to the Lara LPG Terminal and the Lara Liquid Petroleum Gas Pipeline and that it might, for instance, unduly compromise safety and pipeline operational matters, this still does not result in these safety issues becoming relevant considerations under the DDO18.

150 Rather, if a decision-maker was to take those safety matters into account in exercising its discretion under the DDO18, I think that they would be exercising the discretion for a purpose other than that for which it was conferred. As such, this would lead the decision-maker into error.

151 That is not to say that these matters will not be taken into account in relation to the permission sought for subdivision; it is just that they will not be taken into account in relation to the permission sought for subdivision under the DDO18.

152 The Respondent contends that these matters are properly addressed in the IN2Z. This warrants some discussion although I observe that the permission under the IN2Z is not before the Tribunal and I make no findings in relation to the Respondent's contention.

153 Firstly, on its face the IN2Z deals with safety considerations. However, these pertain to what is intended to occur on the Land and the off-site impacts of this to other land. For instance, the purposes of the IN2Z include '[t]o provide for manufacturing industry, the storage and distribution of goods and associated facilities in a manner which does not affect the safety and amenity of local communities', with this safety consideration directed at the nature of the proposal on the review site and any safety concerns arising from that as regards surrounding properties.

154 What is in issue here is the potential safety consequences of potentially bringing more people and development to the Land given its proximity to the adjacent Lara LPG Terminal and the Lara Liquid Petroleum Gas Pipeline; effectively the reverse of the IN2Z purpose.

155 In addition, the decision guidelines in clause 33.02-3 of the Scheme for the IN2Z include '[t]he suitability of the proposed lots for the types of industries and warehouses shown in the table to Clause 53.10'.

156 Clause 53.10 is headed Uses and Activities with Potential Adverse Impacts and has as its purpose:

To identify those types of uses and activities, which if not appropriately designed and located, may cause offence or unacceptable risk to the neighbourhood.

157 The table contained at clause 53.10-1 identifies threshold distances, being the shortest distance from any part of the Land to land in particular zones or uses for particular purposes; the intention being that some types of use or activity require a greater threshold distance from particular zones or uses than other types of use or activity. As such, the focus of this clause is on the separation required between the proposed use or activity on a review site and the nearby zoning or land use. Again, this clause is effectively dealing with the reverse scenario of what is raised by the Applicant.

158 On this analysis, it is not apparent that the safety issues raised by the Applicant would be picked up by the above provisions. However, clause 65 also needs to be taken into account in assessing an application under the IN2Z and, in my mind, the same rationale that lead me to conclude that the safety matters raised by the Applicant could come within the identified decision guidelines of clause 65.02 would apply here. But unlike the situation under the DDO18, I think that the purpose of the discretion under the IN2Z would permit consideration of these matters.

159 I say this in light of my earlier comments regarding a zone being of broader purpose than an overlay and a zone going to matters of land use and interfaces with other land. Specifically in relation to the IN2Z, it is perhaps arguable that because safety is already addressed in the IN2Z, and separation distances are taken into account (albeit in the reverse scenario) it is appropriate to deal with broader safety concerns under the IN2Z.

160 As such, whilst the safety issues that conceivably come within the decision guidelines in clause 65.02 are not appropriately taken into account in the exercise of discretion under the DDO18, they might appropriately be taken into account in the exercise of discretion under the IN2Z.

161 The effect of the approach that I have adopted is that the matters that may be taken into account under clause 65.02 will vary depending on the discretion being exercised. That is, the same decision guideline of clause 65.02 might be used in different ways, to bring in different policies or considerations, depending on the discretion being exercised. This approach is consistent with the reference to 'as appropriate' in the chapeau of clause 65.02.

162 Contrary to submissions by the Applicant, this approach does not confine the applicability of the decision guidelines in clause 65.02 to those matters specifically listed in the DDO18. Rather, clause 65.02 still serves a purpose - it still conceivably broadens the scope of considerations beyond those specifically listed in the DDO18, just not to the extent of taking into account matters that are outside of the purpose for which the discretion was conferred.

163 This approach does not interpret the DDO18, clause 43.02 and clause 65.02 as if they are hermetically sealed from each other. Rather, this approach recognises that these provisions, combined, form the decision guidelines to be taken into account in exercising a discretion under the DDO18. As such, this approach is consistent with the integrated and interrelated nature of these provisions, as discussed above, but where the appropriateness of the broad decision guidelines in clause 65.02 is viewed through the lens of the purpose of the DDO18. The ultimate question of what may be taken into account through clause 65 in relation to a particular discretion is to be answered by looking through this lens. And when that is done for DDO18, the safety matters raised by the Applicant are irrelevant to the purpose of the discretion under the DDO18.

164 As a separate matter, I acknowledge that just because a matter is properly considered under one discretion that is not a reason why that same matter could not arise under another discretion; I accept that there might be an overlap between matters relevant to each decision. However, this would be contingent upon such matter being relevant to the purpose of each discretion. For the reasons that I have explained, I do not consider that to be the case here with respect to the safety issues raised by the Applicant.

165 Further, to be clear, and it should be apparent from my reasons, I do not make this decision on the basis of these considerations being premature.

166 I do agree with the Respondent that the Applicant's concerns potentially address consequences of a future use or development and it may well be that these policy and safety considerations arise at the time that a planning permit is sought for use and development.

167 To this end, I observe that:

(a) the proposed subdivision of the Land creates two very large parcels, with no change to boundary arrangements fronting McManus Road, being the road on which the Lara LPG Terminal and in which the Lara Liquid Petroleum Gas Pipeline is located;

(b) the Land is currently vacant, and of itself, the proposed subdivision will not change this situation (although, obviously, the vacant state of the Land following any subdivision, might change);

(c) there are a limited range of uses that are as-of-right in the IN2Z and for which the Land could presently be used without a planning permit needing to be obtained under the IN2Z. These will not change as a consequence of the proposed subdivision. For some of those as‑of‑right uses a planning permit is still required under the IN2Z for buildings and works; this also will not change as a consequence of the proposed subdivision; and

(d) a permit is required under the DDO18 for buildings and works, both now and following the proposed subdivision.

168 However, in saying this I also regard the Applicant's concerns to potentially relate to the subdivision of the Land that is now sought. I say this because allowing the proposed subdivision will create a second parcel of land, able to be separately disposed of and used and developed separately to the other parcel of land. That is, the act of subdivision potentially creates the opportunity for additional persons, land uses and development to occur on the Land, potentially over and above what might have occurred if the Land remained as one undivided parcel.

169 In short, one does not necessarily preclude the other. That is, it might be appropriate to take these policy and safety considerations into account at both the time that land is sought to be subdivided, and, when an application is sought for use and development. Again, whether it is appropriate to take these matters into account comes down to the purpose of the discretion.

170 I accept that what the Applicant seeks to have taken into account in assessing the permission under DDO18 is not something that is the subject of a particular provision or control that is directed to regulation of that matter and that deals with that matter comprehensively. As such, this case is distinguishable on its facts from Brunswick Investment because in that case the matter of sustainable transport and car parking quantum was already addressed in a clause of the scheme that was found to 'cover the field' on that particular topic; here, there is not an analogous control in the Scheme that deals with the safety matters raised by the Applicant. As was said by Quigley J in that case:

96 Reading the Scheme as a whole, where a particular provision is directed to regulation of a particular matter and that particular provision deals with the subject matter comprehensively, it is not the purpose of another provision to duplicate regulation of that same subject matter.

171 For this reason, I agree with Applicant that the comments in Brunswick Investment were made in a different and particular context. In saying that, I regard the broader comments of Quigley J as to the role and relevance of policy in decision making to be applicable; just that the case before Her Honour was decided in a different context. It is for this reason that I have relied upon Her Honour's comments in that case.

172 For the above reasons, I regard the safety issues raised by the Applicant to be matters that are irrelevant to the permission being sought under the DDO18 and not able to be taken into account in this proceeding.

SHOULD THE APPLICATION FOR REVIEW BE SUMMARILY DISMISSED?

173 I agree with the Respondent and the Applicant that it is a high bar to meet before a proceeding will be summarily dismissed.

174 For the reasons set out above, I am of the view that the grounds agitated by the Applicant are irrelevant and not able to be pursued in this application under section 82 of the Act.

175 In circumstances where the grounds raised by the Applicant all go to matters that are not relevant to the purpose of the discretion under the DDO18, and where this is an application brought under section 82 of the Act where the only permission before the Tribunal is that under the DDO18, this application for review is misconceived in that the Tribunal cannot take into account the matters agitated by the Applicant in the exercise of its discretion in this proceeding.

176 Accordingly, the appropriate course of action is to summarily dismiss this proceeding pursuant to section 75 of the VCAT Act.

177 To be clear, I have not made an assessment of the planning merits of the permission sought under DDO18, nor have I made the decision to summarily dismiss this application on the basis of it being totally devoid of planning merit. I say this because I do not get to the point of assessing the merit (or otherwise) of the application, having found that it is misconceived.

178 As such, in light of the reason why I have found that it is appropriate to summarily dismiss this proceeding, I do not consider it necessary to address the submissions put by the Applicant in relation to summary dismissal as these largely go to issues that do not arise in the reason for my decision.

179 In light of the summary dismissal, the hearing dates will be vacated.

[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.

[2] Nearmap image dated 20 January 2022.

[3] Clause 33.02-3 of the IN2Z of the Scheme.

[4] Clause 43.02-3 of the DDO18 of the Scheme.

[6] For Planning Permit application number PP-341-2021 dated 18 August 2021 (although it is stated on page 1 that the report was prepared on 13 August 2021).

[7] Pages 4 to 8 of the Planning Permit Assessment Report.

[8] Observing that the Applicant acknowledged that its submission was filed outside of the required time pursuant to the procedural orders of the Tribunal dated 8 December 2021 and suggested that the Respondent should be given a commensurate extension of time.

[9] Submissions on behalf of the Responsible Authority at [30].

[12] Submissions on Behalf of Applicant in Support of Standing and Opposing Summary Dismissal by Stuart Morris QC and Roshan Chaile at [18].

[13] Ibid at [19], where the Applicant quotes from the Respondent's submissions.

[20] [2001] VSC 426.

[24] [2015] VSCA 27; (2015) 49 VR 535 at 546-547 [36]- [37] (Warren CJ).

[28] Respondent's Outline of Submissions for Preliminary Hearing (on the papers) by Paul Connor QC and Marissa Chorn dated 8 February 2022 at [17(a)].

[32] [2021] VCAT 1191.

[33] Respondent's Reply Submissions for Preliminary Hearing (on the papers) by Paul Connor QC and Marissa Chorn dated 28 February 2022 at [8].

[38] Respondent's Outline of Submissions for Preliminary Hearing (on the papers) by Paul Connor QC and Marissa Chorn dated 8 February 2022 at [16(c)(2)].

[40] Respondent's Reply Submissions for Preliminary Hearing (on the papers) by Paul Connor QC and Marissa Chorn dated 28 February 2022 at [21].