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[2001] VCAT 818
procedural. Enforcement order application dismissed; review allowed and no permit granted on the basis that no permit was required for the works as carried out and as contemplated (Order: Application...
VCAT considered whether repair and improvement works to an existing, long-established walking track through Latrobe Reserve required planning permission and whether an enforcement order should restrain or reverse works already started. The Tribunal held the works (steps, drainage, defined path, short retaining wall and limited tree removal) were 'landscaping' and within Schedule 25's maintenance/management exception for established parks, so no planning permit was required. Because no contravention of the planning controls was established, the enforcement order was dismissed. The Tribunal emphasised public-safety and park-management considerations and noted it could have granted a permit on the merits had one been required (paras 31-39, 65-66).
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This case concerned repair and improvement works to an existing walking track through Latrobe Reserve, Dromana, a long narrow coastal park. The Dromana Foreshore Management Committee undertook works in early 2000 after being told by the Responsible Authority (Mornington Peninsula Shire Council) that no planning permission was required. The works involved clearing and trimming vegetation, the removal of some 26–27 ti-tree specimens, earthworks, drainage provision to local dispersion pits, installation of pre-formed wooden steps and handrails in steeper areas, a 20 metre retaining wall up to 0.9 m high in one place, and definition of the path to a width of about 1.2 m (paras 15–18, 22).
1 cited instrument linked from this judgment.
Complaints were made and the Council directed works cease. The Committee applied for a permit and Mr Warfe sought an enforcement order. The Council issued a Notice of Decision to Grant a Permit on 5 April 2000 (later subject to review). VCAT conducted a merits re-hearing, inspected the site, heard expert evidence (including geotechnical evidence), and considered statutory consent issues under the Coastal Management Act (paras 17–23, 23–24, 54–57, 58–63).
VCAT's essential findings were:
The Tribunal's decision rests on statutory interpretation of the planning scheme provisions and the specific schedule exception. The legal issue was whether the proposed works constituted 'works' requiring a permit, or whether they fell within one or more express exceptions.
Interpretation of 'landscaping' The Tribunal construed 'landscaping' broadly. It held that landscaping includes the planning and carrying out of works to improve a landscape or piece of scenery, and that improving a path for pedestrian passage, installation of steps, retaining walls, bridges or defined path surfaces, falls within that concept (para 31). The Tribunal rejected a narrower argument that construction of paths necessarily falls outside 'landscaping' (para 31).
Application of Schedule 25 to the Environmental Significance Overlay Schedule 25 contained an explicit exemption: a permit was not required for "The removal of vegetation in the ordinary course of the management of established parks or gardens or in the course of the repair or maintenance of any other works..." and for "Works for the establishment, maintenance, repair or removal of signs or other structures necessary for the safety or protection of the public including ... safety fences or railings" (para 34). The Tribunal found the reserve was an established park and that the tree removal and other works were part of ordinary management and maintenance of the path; the path in its present form was dangerous and the works were reasonably necessary for the safety and protection of the public (paras 35–38). That textual fit of fact to exception was determinative.
Enforcement order considerations Because an enforcement order requires establishing a contravention, the Tribunal held that absence of a contravention meant the enforcement application failed. The Tribunal also considered the practicality and propriety of orders sought (restoration to pre-works or pre-track condition) and found such remedies would be impractical and unsafe (para 21).
Procedural consent and discretion A statutory point was raised about Ministerial consent under the Coastal Management Act and potential effects of timing (s 39–40). The Tribunal noted there was actual consent on the evidence and observed, if necessary, that it could exercise the VCAT Act saved-jurisdiction power (Schedule 1, Clause 62) to disregard procedural non-compliance in the interests of justice (paras 58–63). The Tribunal did not need to resolve that question given its primary reasoning.
In short, a purposive and textually grounded interpretation of 'landscaping' and of the Schedule 25 exceptions led to the conclusion that the works required no permit; that conclusion defeated the enforcement application and disposed of the review.
Before this decision, planning schemes and overlays commonly required permits for works and vegetation removal in environmentally sensitive zones, but those instruments also often contained tailored exceptions for management of established parks and for maintenance of safety structures. This decision confirms two key points for Victorian practitioners:
After this decision, practitioners should expect careful textual analysis of the scheme and any overlay schedules. Where similar schedules exist, the case stands as an authority for treating safety-driven maintenance works as non-permit activities, provided the works fit the ordinary management/maintenance scope and are proportionate (paras 34–39).
Note: The Tribunal said it would have granted a permit on the merits if one had been required (para 41), so the decision is doctrinally confined to the scope of the exceptions rather than a robust policy endorsement of every such proposal.
Para 31 (landscaping definition): "Landscaping... includes improvements to a path, installation of steps and retaining walls." Plain English: 'Landscaping' is not limited to planting flowers; it includes building features that make the park usable and look better, including paths and steps.
Para 34 (Schedule 25 text): "Schedule 25 says you do not need a permit for removal of vegetation during ordinary park management and for repair or maintenance of works necessary for safety, including railings." Plain English: The overlay specifically exempts routine park care and safety-related repairs from needing permits.
Para 38 (safety finding): "The path is dangerous now and the proposed structures are necessary for public safety." Plain English: The Tribunal inspected the track and agreed it was hazardous; the improvements are reasonably needed to protect people.
Para 39 (conclusion on permit requirement): "Although permits are generally required for works, the exceptions apply, so no permit is needed here." Plain English: Normally you need permission to change the land, but the planning rules themselves say you do not here, because these are ordinary park maintenance and landscaping tasks.
Para 65 (disposition): "We allow the review and refuse to grant a permit, not because the proposal is bad, but because no permit is required." Plain English: The Tribunal agreed the works are acceptable, but ruled that the works fall outside the permit system.
This decision will be directly relevant where:
By contrast, the decision is less applicable where works are large-scale new development, where vegetation removal is extensive or remote from any maintained track, or where schedule exceptions do not exist or are expressed narrowly.
This deep dive is grounded solely in the VCAT reasons. The judgment itself cites Haydon v Kent County Council for definitions of 'repair' and cites the Supreme Court decision in Rumpf for the Tribunal's saved-jurisdiction point (paras 36, 63). The present reasons do not canvass later appellate consideration of the precise point about 'landscaping' in Victorian schemes. Practitioners should check citators and subsequent decisions for how courts and tribunals have applied or distinguished Warfe since 2001 before relying on it for contested borderline works. The Tribunal itself emphasised its pragmatic, site-specific assessment based on the planning-scheme text and the facts (paras 31, 38–39, 65).
Borderline works and viewing platforms: The Tribunal expressly left open whether viewing platforms would be within 'landscaping' once those features might be regarded as vantage points looking outward rather than elements forming part of the landscape (para 32). Where works are principally 'lookout' structures rather than safety-led park management, application of the exception may be less secure.
Scale and cumulative effect: The decision involved relatively modest works and limited tree removal (26–27 trees). It remains open how far a 'management/maintenance' exception will stretch where cumulative works significantly alter topography or result in substantial vegetation loss across a reserve.
Independent consent under coastal legislation: The Tribunal avoided deciding the Ministerial-consent timing issue under the Coastal Management Act (paras 58–63). While the Tribunal suggested it could exercise the VCAT Act saved-jurisdiction power to cure procedural non-compliance, the precise limits of that discretion remain fact-sensitive and uncertain without further appellate authority.
Interaction with overlay schedules in other municipalities: The judgment's reliance on Schedule 25 is fact- and text-specific. Different overlay schedules with different wording could produce different results; there is no automatic transferability without close textual comparison.
Evidentiary threshold for safety necessity: The Tribunal accepted expert geotechnical evidence and its own inspection. The precise evidentiary standard required to satisfy 'necessary for the safety and protection of the public' within an overlay exception remains practical and fact-driven.
Practical takeaway Carefully read both zone provisions and overlay schedules. Where works are modest, safety-motivated and limited in vegetation impact, and where the overlay contains a maintenance/management exception, there is a realistic prospect the works will not require a permit. Nevertheless, prudent practice remains to obtain clear advice from the responsible authority and to document expert support, because findings are site-specific and depend on scheme wording and the scale of works (paras 31–39, 54–58).
1. Application 2000/13274 for an enforcement order is dismissed and no enforcement order is made.
2. Application for Review 2000/31350 is granted and no permit is granted, but on the basis that no permit is required.
____________________ ___________________
Mr Rodney Wee, town planner of the Shire of Mornington Peninsula, appeared for the Responsible Authority. He presented written and oral submissions.
Mr Peter Smith of the Department of Natural Resources and Environment, appeared for that Referral Authority. He presented written and oral submissions.
Ms Maryanne, Gassert, barrister, appeared on the instructions of the Victorian Government Solicitor for the Respondent Dromana Foreshore Management Committee Inc. She presented oral submissions and written submissions in two documents, the first in relation to the application by the Southern Peninsula Tree Preservation Society Inc. for review of the decision of the Responsible Authority to grant a permit and the second in relation to the application by Mr Warfe seeking an enforcement order. She also called two witnesses namely Steven Douglas Buffinton, Managing Director of Civil Test Pty Ltd, Soil Testing and Geotechnical Consultants and Anthoney Rhys Owen, Ranger of the Dromana Foreshore Management Committee Inc. These witnesses gave oral evidence in addition to presenting a written report and a written witness statement respectively.
Mr A Southall QC, barrister, appeared on the instructions of the Environmental Defenders Office for Mr Warfe and the Southern Peninsula Tree Preservation Society Inc. He called four witnesses. The first was his client Mr Warfe, who is also President of the Southern Peninsula Tree Preservation Society Inc. who gave oral evidence and referred to part of a written submission prepared by Mr Warfe but used as a witness statement. He also called Don Raisbeck, geotechnical engineer and Mr Garrique Pergl, natural systems planner of the Responsible Authority. In addition he called Mr Anthony Edward Hooper QC. Mr Raisbeck presented a written report and Mr Hooper a written witness statement, although only parts of the Hooper statement were relied upon.
Various plans, photographs and other documents were tendered in evidence. The evidence and submissions presented in documentary form have been retained on the file of the Tribunal.
Since the hearing we have inspected the land and locality.
Application under s.82 of the Planning and Environment Act 1987 (PE Act)
Application under s.114 PE Act for an enforcement order.
Rebuilding existing walking track through the Latrobe Reserve to connect Latrobe Parade to the Point Nepean Road.
Partial reconstruction of existing walking track and the removal, destruction or lopping of trees and the removal of vegetation for that purpose without a planning permit alleged to be required under the Planning Scheme.
Crown land in relation to which the Department of Natural Resources and Environment is the public land manager.
Public Conservation and Resources Zone and subject to Environmental Significance Overlay under the Mornington Peninsula Planning Scheme.
"1. Due processes were not followed prior to works commencing.
2. A number of conditions of the proposed permit cannot be complied with because of the pre permit unauthorised works.
3. Works and proposed works are not in accordance with advice provided in the report entitled "Slope Stability Assessment" carried out by CIVIL TEST PTY LTD dated 10th Sept 1998.
4. Site is unsuitable for a walking trail due to the topography, steepness and instability of the cliff face.
5. Importation of materials to the site will cause the introduction of pests and disease.
6. The proposed works will increase the risk of land slippage, as it has been identified as a high risk zone in geological time terms."
1. This case concerns an existing walking path through the Latrobe Reserve at Dromana. The Latrobe Reserve is a park near the shore of Port Phillip Bay. The coastline of the bay, at this point, runs almost east-west, although in reality the general line of the coast is from a little south of west to a little north of east. Nevertheless, for the purposes of this description we have not bothered with that degree of accuracy and we content ourselves with saying that the shore line runs generally east to west with the waters of the bay to the north and the foreshore to the south.
2. In fact the Point Nepean Road runs approximately parallel to the coast through the foreshore area. Thus it also, within the directions we have adopted, runs east to west. It is, of course, a wide and busy road. Although the Point Nepean Road runs over a relatively flat foreshore area, the land rises quite sharply on its south side.
3. The Latrobe Reserve is located on this south side of the Point Nepean Road. It is a long narrow reserve that runs east to west parallel to the Point Nepean Road. It is about 1.5 kilometres long and only approximately 100m wide. It has an area of approximately 9 hectares. It has been reserved as a public park since 1891. The reserve has a substantial covering of coastal vegetation comprised mostly of Ti-tree and She Oaks although various weeds and other species not indigenous to the area are also to be seen.
4. A street known as Latrobe Parade runs along the southern (higher) side of the Latrobe Reserve. It generally runs parallel to the Point Nepean Road. To the south of Latrobe Parade, for perhaps 300m, there is a developed residential area between Latrobe Parade and the Mornington Peninsula Freeway which again runs approximately east to west and approximately parallel to Point Nepean Road and the coastline. Land further to the east and west of the reserve, within the corridor between the Point Nepean Road and the Mornington Peninsula Freeway, is also residential land. Mr Warfe lives in Foord Lane, just west of the reserve. His house is approximately above a cliff-like escarpment and rocky area known as Anthonys Nose, a short distance west of the reserve. South of the reserve, at its western end is the Heronswood historic site which was apparently once the home of Mr Justice Henry Bournes Higgins, famous in legal circles, amongst other things, for the Sunshine Harvester Wage Case in the early days of Australian Federation.
5. Further to the south, on the south side of the Freeway, is the Arthur's Seat State Park and the mountain of Arthur's Seat itself. Latrobe Parade has access to the Arthur's Seat State Park via the Matthew Flinders Bridge over the Freeway.
6. Apart from the Bunurong track and Arthur's Seat Road, there are a number of walking tracks within the Arthur's Seat State Park. Two important walking tracks, The Bay Track and the Two Bays Track (the latter connecting with Cape Schanck) connect with the Latrobe Reserve and the Dromana Foreshore via Latrobe Parade.
7. There are in existence some eight walking tracks through the Latrobe Reserve from Latrobe Parade to the Point Nepean Road. This is, perhaps, hardly surprising. People living in the residential streets to the south are very likely to make and use tracks across this long narrow reserve in travelling between their homes and the beach and foreshore. After all, with the reserve extending parallel to the beach for approximately 1.5 kilometres, it would occasion pedestrians a very considerable detour to walk around the end of it in seeking to reach the beach.
8. The track we are concerned with in this case is towards the western end of the reserve, something between one-fifth and one-third of the way along from the western end, depending where that western end is located. The track is approximately 150m long. It passes over the width of the reserve estimated at 100m. The extra distance is accounted for by twists and turns in the track as it follows contours and seeks to find an easier and more convenient route through the, at times fairly dense, vegetation and the at times quite steep terrain. It is an attractive walk, although a fairly short one, through coastal bushland with views of the vegetation and land forms, and at times partly screened views of the coast and the bay.
9. It is an old track. All the evidence, except that of Mr Hooper, suggests that it has been in existence for 100 years or more. It is suggested that Higgins J frequently used it, although evidence to support that contention was not elaborated before us. The suggestion of existence for 100 years came from various sources including Mr Warfe. Mr Hooper's only reason for doubting the notion is that he does not recall this track from his adventures in the reserve as a boy in the 1950s. It is not necessary, for present purposes, to resolve this question as, on all accounts, the track has been in existence for a long time, running to at least several decades. It is obvious from the appearance of the track that it has been in existence for a considerable time. All in all, we are not persuaded that Mr Hooper's doubts about the existence of the track before the 1950's would justify us in coming to that conclusion.
10. The condition of the track, as a walking track, before 2000 and now, is and has been less than satisfactory. In parts overgrown, in parts worn, in parts eroded and eroding, in parts spreading out to affect nearby bushland and in parts difficult and dangerous; it was and is ripe for reconstruction and repair. In places the track has spread to a width of 2.7m and in some places a combination of steepness and/or erosion has rendered the track difficult and dangerous. There are areas of significant erosion where water channelling and pedestrian traffic has created quite a deep channel. Exposed tree roots and unevenness, as well as steepness add to difficulty and danger. People are likely to trip and fall, they are also likely to grasp and use surrounding vegetation to help them on their way in difficult sections.
11. The Management Committee has planned for a number of years to improve and repair this track. According to Mr Owen's evidence, such plans have been in existence since at least 1995. They are reflected in a number of policy planning documents relating to the area that were referred to in the course of the hearing. These policies have been arrived at after a good deal of consultation and support form individuals and interested local organisations.
12. This is not surprising. There are a number of considerations in favour of this track including its convenience as a link between the Arthur's Seat State Park and the walking tracks to the south with the Dromana Foreshore. It is, in fact, shown on the Melways Street Directory map, at least in some of its editions, where other tracks across the reserve do not appear. The bottom of the track opens onto a flat grassy area beside the southern margin of the Point Nepean Road. There is a toilet block on this area, and sufficient space for cars to stop, at least to drop or pick up pedestrians. There is parking in the vicinity, as well as to the north at the intersection of Latrobe Parade and Bunurong track. Of course the parking in the vicinity of the foreshore will be heavily used, and frequently parked out, during the summer holiday period. There is the Dromana Foreshore camping area in this locality between the Point Nepean Road and the beach as well as the Peninsula Power Boat Club launching ramp and a nearby water ski access lane.
13. Apart from repairing and improving this track, the plans of the Foreshore Committee of Management also envisage closing some of the other tracks and having them revert to bushland. It proposed to plant 450 indigenous trees. This would concentrate pedestrian traffic on this track but lead to an overall increase in the area supporting coastal bushland vegetation.
14. We think it is quite important to bear in mind that it is not our function, or the function of the Council as Responsible Authority in relation to the planning legislation, to take responsibility for the management of this foreshore park out of the hands of the Management Committee. For example, we are not called upon to consider the comparative merits of the repair and improvement of this path as compared with the other seven, but rather whether there is any valid objection, on the basis of the relevant planning controls and policies, for refusing this proposal. In spite of some contention on this point initially, this became common ground and was specifically agreed to by Mr Southall on behalf of Mr Warfe and the Southern Peninsula Tree Preservation Society.
15. The proposal is to repair, maintain and improve the existing walking track. This is to include pre-formed wooden steps and hand rail in steeper areas with such steps and the track generally to be provided with appropriate drainage. This drainage would be to local dispersion pits along the course of the track. The track would also be defined with a width of approximately 1.2m to discourage people from straying from it into the bushland with adverse affects on the bushland. A retaining wall 20m long and up to 0.9m high is proposed in one place. Rubbish bins, perhaps at the toilet block and at the uphill beginning at the track would discourage rubbish being deposited through the reserve.
16. Initially the proposal also contemplated the construction of two viewing platforms with short side accessways leading to them. That aspect of the proposal has now been abandoned in circumstances we will mention hereunder.
17. In early 2000 work commenced on carrying out this project. This was pursuant to an assurance from the Responsible Authority that no planning permission was required. Some 26 or 27 ti-trees were removed and there was some cutting back of growth in some points. Also earthworks were undertaken.
18. Shortly afterwards work ceased at the direction of the Responsible Authority. The explanation for this change of view, so far as disclosed in its relevant letter, was that it had been realised that the proposal went beyond "maintenance". This was not explained in any greater detail, in the correspondence or at the hearing. We presume it must relate to the proposal to construct viewing platforms. Apparently this direction was given as a result of complaints by Mr Warfe. The Foreshore Committee applied for a planning permit and Mr Warfe applied for an enforcement order.
19. The enforcement order was initially applied for on the 22 February 2000. However, the application was in a quite unsatisfactory form and an amended application was lodged at a Directions hearing on the 15 June 2000 after the inadequacies of the original had been explained and after the Environment Defenders Office had been engaged to assist Mr Warfe.
20. The amended enforcement order application seeks an order that the works not recommence and that the land be restored as nearly as practicable to its condition immediately before the works and vegetation removal started by replacing the indigenous tree species and stabilising the land.
21. That is what the enforcement order application seeks although in the course of the hearing it appeared that Mr Warfe really seeks to have the land closed to be something like an environmental reference area where no one can come and go. Also there were arguments about restoring the land, not to its condition prior to the commencement of works, but to its condition prior to the creation of the track, whenever that might have been. These ideas go far beyond what s 119 PE Act enables the Tribunal to require by way of enforcement order. They are also contrary to the notion that this area is, after all, a park. That implies a place where people can come and go and enjoy the land, no doubt subject to suitable restraints. We are of the view that to prohibit a recommencement of works would be to leave the land in an unsatisfactory and unsafe state, and to restore it to its condition prior to the commencement of works would be to restore it to an even more unsafe and unsatisfactory condition. We do not regard either of these propositions as leading to a satisfactory outcome and we doubt the feasibility of the latter (given the nature of works that have been undertaken to date).
22. So far as replanting indigenous tree species is concerned, the overall plan of the Management Committee envisages the replanting of some 450 such trees. The 26 or 27 ti-trees already removed are, on the evidence, all the removals necessary to carry out the proposed maintenance and improvement works.
23. So far as the application for a permit is concerned, the Responsible Authority made a decision and gave a Notice of Decision to Grant a Permit on the 5 April 2000. This permit was for vegetation removal and works on the track. It contained 13 conditions. These included conditions required by the Department of Natural Resources and Environment as referral authority. The referral authority did not oppose the granting of a permit. Conditions also require modified plans to include the elimination of the viewing platforms and the inclusion of specified management arrangements. The Applicant has accepted the exclusion of the viewing platforms, and those features are not excluded from the proposal. It is also notable that witnesses called on behalf of Mr Warfe, excluding Mr Warfe himself, recognised that the track should not be left in its present condition or its condition immediately prior to the commencement of works and that the proposed management arrangements meet the various reasonable concerns about the track and its maintenance.
24. However, there is a prior question in relation to both these proceedings, and that is whether a planning permit is required under the planning scheme for this proposal, at any rate now that the viewing platforms are no longer involved. Mr Warfe must establish a contravention of the planning controls as the foundation for any enforcement order, and there must be a discretion created in the planning scheme pursuant to which a permit can be granted before the Responsible Authority or this Tribunal has power to grant a permit.
25. This then takes us to the control provisions in the planning scheme. Insofar as this discussion involves legal questions, they are the responsibility of the presiding member who is legally qualified, although we will continue to use plural pronouns as we are in fact in agreement in relation to them.
26. The control provisions in relation to the Public Conservation And Resource Zone, which is the zoning of the land, are found in Clause 36.03 of the planning scheme.
27. No new use of the land is proposed in this case so the use controls in Clause 36.03-1 do not arise. However, Clause 36.03-2 provides that a permit is required to construct a building or to construct or carry out works. We do not doubt that the proposal in relation to the improvement of the track, including some alterations to the existing topography, amount to works within the meaning of Clause 36.03-2.
28. However, the requirement of a permit for constructing or carrying out works is subject to several exceptions. The first is that the requirement of a permit does not apply to "planting or landscaping". The question then arises as to whether anything here proposed falls outside that exception.
29. There is no doubt that planting is planting. The question is whether "landscaping" covers the rest. Ms Gassert referred us to the Macquarie Dictionary in this connection. It defines landscape as:-
"1. a view or prospect of rural scenery, more or less extensive, such as is comprehended within the scope or range of vision from a single point of view. 2. a piece of such scenery. 3. a picture representing natural inland or coastal scenery. 4. such pictures as a category ... 6. to improve the landscape. 7. do landscape gardening as a profession."
30. The dictionary also defines landscape architect as one whose profession is to adapt an area of land to give a particular visual effect and landscape gardening as "the art of arranging trees, shrubberies, paths, fountains, etc., to produce picturesque effects".
31. It was suggested by Mr Raisbeck that the construction of paths fell outside the concept of landscaping. We are unable to agree with this contention. Landscaping means the planning and carrying out of works to improve a landscape or piece of scenery. This may be close or distant and the area involved may be small or large. It is common to talk of landscaping of the grounds of a house, but landscaping in Royal Park during the last 10 years has been over very extensive areas with the creation and elimination of parking areas and playing fields on the one hand and new topography and plantings on the other. It includes improvements to parks and reserves. It would include improvements to formal parks and gardens like, say the Botanical Gardens or the Zoological Gardens in Melbourne, but also a more natural park like this one. The planning and carrying out of improvements to a path giving pedestrian passage through the park, in our view, comes within the concept. It includes the building of a path, the installation of steps and, if necessary, a bridge or retaining wall. Mr Raisbeck might be correct in saying that such works, in some places, require the assistance of an engineer to ensure that the steps, retaining wall, bridge or whatever will be structurally sound, but it is nevertheless landscaping to plan what steps, walls, paths or bridges should be introduced, notwithstanding that the assistance of other occupations and professions like engineer, arborist, labourer, mason, bricklayer or carpenter might be involved. Removing a tree here, adding one there, and cutting back one somewhere else are certainly within the concept. Bearing in mind the work of one of Australia's most famous landscapers, namely Ms Edna Walling, it is clear from a consideration of her work that her concept of landscaping includes paths, walls, bridges and such structures, as well as the laying out of plantings and possible alterations to topography, however much she valued natural bushland. She would certainly look to have such features fit suitably into the "landscape" so as to be part of the scene rather than discordant with it. We are unable to identify an aspect of these works that does not come within the concept of landscaping as ordinarily understood and as applied in this situation. This is the improvement of a walking path through a public park to enable enjoyment of the park along the way and views within and without whilst going along.
32. The originally proposed viewing platforms may be more doubtful. They were intended to provide a vantage point for viewing landscapes and sea scapes beyond the reserve; to look, out rather than things to be viewed in themselves. However, we don't need to decide that point as they are no longer proposed.
33. The other control provision in the planning scheme applicable to this land is the Environmental Significance Overlay in Clause 42.01. Clause 42.01-2 provides that a permit is required to construct or carry out works subject to the exception that this does not apply if a schedule to the overlay specifically states that a permit is not required. There is a relevant schedule. Clause 43.01-2 also provides that a permit is required to remove, destroy or lop any vegetation subject to the exception that this does not apply if a schedule to this overlay specifically states that a permit is not required.
34. Both exceptions lead us to the relevant schedule, which is Schedule 25 under the Overlay. Clause 3 of that Schedule provides that a permit is not required for, amongst other things,
"The removal of vegetation in the ordinary course of the management of established parks or gardens or in the course of the repair or maintenance of any other works including firebreaks.
Works for the establishment, maintenance, repair or removal of signs or other structures necessary for the safety or protection of the public including ... safety fences or railings."
35. Commencing with the first of these exceptions (being the one in relation to the removal of vegetation) this is an established park and has been for a long time. It is no less a park because it is in a more natural condition than, say, the Treasury Gardens in Melbourne, or because it supports indigenous coastal vegetation in a fairly natural form. Where a small number of trees are removed, and some branches removed, as in this case, to enable a walking track or pathway to be safely and conveniently used, that comes within the concept of maintenance and management. It may be otherwise for the removal of vegetation remote from and not related to such a pathway.
36. Furthermore, Ms Gassert, in her second written submission took us to the concepts of repair and "to maintain" and in doing so cited Haydon v Kent County Council [1978]2 WLR 485 at 498 and 491. From page 491 she quotes Lord Denning M.R. to the effect that:-
"[r]epair means making good defects in the surface of the highway itself so as to make it reasonably passable for ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition."
37. The notion of making good defects does capture the essence of repair. The Macquarie Dictionary refers to restoring to a good or sound condition after decay or damage and to mending, as well as to restore, to renew by any process of making good, strengthening, etc. and to remedy, and so on. Ms Gassert also cites Haydon's case for the proposition that "to maintain" is a wider concept that can include repair and means to keep something in existence in a state which enables it to serve the purpose for which it exists. The first paragraph from Clause 3 quoted in paragraph 34 above refers to the repair or maintenance of other works, not limited to firebreaks. Works here includes the path as an alteration to the natural condition or topography of the land. Removal of vegetation as part of maintaining the path to enable it to serve the purpose for which it exists thus comes within the exception.
38. The second paragraph quoted from Clause 3 in paragraph 34 again refers to repair and maintenance, with the addition of the establishment of structures necessary for the safety and protection of the public. In our view this encompasses the works to the path including the establishment of steps and the retaining wall in addition to the maintenance and repair of the pathway necessary for the safety and protection of the public. The path is at present steep, rough, eroded and subject to obstructions like roots, etc. likely to cause people to slip, trip, fall and hurt themselves. We consider that the evidence, confirmed on our inspection, establishes that this path in its present form is dangerous with the danger being greater in some places than others. The existence of the path is an invitation to the public to use the path to traverse the public park and the structures proposed are, in our view, reasonably to be regarded as necessary for the safety and protection of the public. The exception in Clause 3 also specifically includes "railings".
39. We are of the view that planning permission is prima facie required under Clause 36.03-2, 43.01-2 of the planning scheme and Clause 3 of Schedule 25 to Clause 42.01, but that planning permission is not required in this case because the proposal comes within the exceptions to those permit requirements.
40. On this basis the enforcement order application fails because of failure to establish a contravention of the planning laws, and no permit is granted because no permit is necessary for these works as carried out to date and as contemplated in the permit application (with the viewing platforms excluded).
41. In these circumstances it is not necessary for us to come to a view on the merits of the proposal. However, if we had found that a permit was required in the circumstances, we would certainly have granted one. We would have granted a permit on the basis of the conditions in the Notice of Decision to Grant a Permit subject to some tidying up of those conditions which we will refer to hereafter.
42. In coming to this conclusion in relation to the merits of the proposal, we have considered all the policy considerations and provisions that we were referred to in the course of the hearing, including the purposes of the relevant Zone and Overlay. It is not necessary to deal with them in detail in the circumstances.
43. However, we do offer some comments about some aspects of the case that were contested in the course of the hearing.
44. Mr Hooper contended that it is unsuitable to improve this track because its northern outlet near the toilet block is at a point on the Nepean Highway that he considers to be dangerous having regard to the behaviour of motorists driving along that road.
45. It is convenient that the path should pass the toilet block and that it should link the foreshore with the other trails and the State park to the south. So far as the danger consideration is concerned, we are unimpressed. We think the sight lines are good and that this is not an unreasonable place for the track to end or for users of the track to cross the road. The Responsible Authority has access to its own traffic engineers for advice on such points, and it has not been concerned to oppose the proposal on these such grounds. Furthermore, if thought necessary, devices could be installed to enhance safety from this point of view. In the meantime, we are not surprised to find that the Responsible Authority has not found such steps to be necessary now, or in the past.
46. It may be that more people will use the track if it is repaired and improved. It may be used by locals in preference to other tracks and by others coming to the area. This is not, in itself, a bad thing. On the contrary, it is a good thing if such facilities, including parks like this one, are used and enjoyed by the public. That is their purpose. We have little sympathy with Mr Warfe's view which seems to be directed to preventing people from doing so.
47. Overall the management plans of the Management Committee will lead to an increase and enhancement of the park and its useability and of the indigenous vegetation therein. The area of the total path at approximately 300m2 is tiny compared to the area of the reserve as a whole, and the 26 or 27 trees lost are tiny in comparison to the number that survive, to say nothing of 450 to be planted. Overall a significant gain in vegetation and reduction in path area would be achieved. No area under bush will be lost as this path already exists. It is unrealistic to think that all paths through this reserve can be eliminated. If the existing ones are all closed with obstructions, some of them will be reopened or obstructions of them would be by-passed or new ones will be opened.
48. There was a great deal of debate about the suitability of the drainage arrangements. It was suggested that a "Rolls Royce" drainage system with pits and PVC piping right down the slope would be preferable to short lengths pipe to local dispersion pits. We do not agree. Such an arrangement would be very expensive, but it would also leave PVC piping exposed to view and vandalism. We think the contemplated dispersion pits more appropriate and adequate in the circumstances.
49. We also think that the steps as designed and proposed are suitable and adequate. Facilities of this sort are common and satisfactory in bushwalking paths of this sort. They call for some maintenance from time to time, but that is not, of itself, a valid objection.
50. The case against the proposal as presented in the submissions of Mr Southall at the conclusion of his evidence really boil down to warning us that this is a sensitive bushland area in relation to which care should be taken. We agree with this observation, although we do not agree with the notion that it is pristine or unique or such that people should not be allowed into it. There are some dangers of erosion and slippage, and it is for these reasons that it has been appropriate for the Committee of Management to consult engineers and Geotechnical experts. We regard the resulting proposal as an appropriate and satisfactory one that takes suitable account of the sensitivity and fragility of the environment.
51. So far as the application for review of the decision of the Responsible Authority to grant a permit is concerned, the Applicant relied on the six grounds set out above. We will briefly traverse them.
52. The first claims that due processes were not followed prior to the works commencing. So far as the merits of whether a planning permit should be granted, this is beside the point. The review by this Tribunal is a re-hearing, and provided that due processes are followed here in relation to whether or not a permit is granted, it does not really matter if there were undue processes at an earlier stage. This alleged ground does not bear on the merits of whether a permit should be granted or if so on what conditions.
53. The second ground suggests that a number of conditions of the proposed permit cannot be complied with because of the pre permit unauthorised works. The conditions in question are not specified and the reasons why they cannot be complied with have not been expounded. If some modification to conditions might be called for, in the event of a permit being granted, this could be undertaken. This ground does not amount to a reason for refusing to grant a permit on the merits of the proposal.
54. The third ground suggests that the works and the proposed works are not in accordance with the advice provided in the report entitled "Slope Stability Assessment" carried out by Civil Test Pty Ltd dated 10 September 1998. As to this, we have heard the evidence of Mr Steven Buffinton, the Managing Director of Civil Test and his evidence has been subjected to cross-examination. The evidence does not support the proposition that a permit should be refused on the merits. On the contrary, the evidence supports the grant of a permit subject to suitable conditions.
55. The fourth ground is that the site is unsuitable for a walking track due to topography, steepness and instability of cliff face. As to this, it has been a walking track in the order of 50 years and probably much more. Its condition is such that it requires repair and maintenance work and improvement, but subject to properly planned and designed works, the site, and this part of it, are suitable for continued use as a walking track. The proposal is to carry out such works.
56. The fifth ground is that the importation of materials to the site will cause the introduction of pests and disease. As to this, it is possible to introduce weeds or other pests by importing materials. They would join existing weeds, etc. at present onsite. Such a result would be undesirable. It is not an essential result of carrying out the proposed works, although care needs to be taken in relation to the nature and quality of any materials brought onto the land. A condition was proposed in relation to this potential problem. That would be appropriate, rather than mere refusal of the application. In any case, as we stated earlier, we noted extensive infestations of the park with exotic weeds, including areas close to this path. These weeds will require the park managers to undertake significant maintenance efforts and these should readily encompass any additional effects resulting from the proposed works or additional foot traffic.
57. The sixth and last ground is that the proposed works will increase the risk of land slippage as it has been identified as a high risk zone in geological time terms. As to this, geological time extends beyond the scope of planning decisions. The nature of the land does call for investigation and planning of works as carried out by Civil Test and engineers engaged by the Management Committee. The nature and condition of the land is not such that the proposal should be refused, although it is such that due care, planning and preparation should be undertaken. That has been done and would be reflected in the plans and conditions in relation to a permit if one was to be granted.
58. Initially Mr Warfe sought to raise another ground based on s 61(3) PE Act and Division 4 of the Coastal Management Act 1995. Division 4 contains sections 37 to 40 of that Act. Section 37 provides that a person must not use or develop coastal Crown land unless the written consent of the Minister has first been obtained. This reserve is coastal Crown land within the meaning of the Act. Section 38 provides for an application for such consent to be made to the Minister and also that, if the Department of Natural Resources and Environment is a referral authority and a copy of an application for a permit to use or develop coastal Crown land is referred to it under PE Act, then that application is deemed to be an application under s 38 for consent unless such consent has already been given. Section 39 provides that the Minister must give a decision within 28 days of the application (subject to a right to seek further information) and s 40(3) provides that if the Minister fails to make a decision within the time required by s 39 the Minister is deemed to have refused to consent to the use or development.
59. In this case there is absolutely no doubt that the Minister does in fact consent to the proposed development. There are several documents evidencing this. However, Mr Warfe suggested that they, or at least the first of them, was not given within the period of 28 days in accordance with s 39 and therefore, in spite of actual consent, refusal must be deemed by s 40(3).
60. Section 61(3) PE Act provides that the Responsible Authority must not grant a permit to develop coastal Crown land unless the Minister administering the Coastal Management Act has consented to such development. The Responsible Authority must refuse to grant a permit if the Minister has refused or is deemed to have refused consent.
61. In these circumstances the argument was that s 61(3) constituted a bar against the Responsible Authority, or this Tribunal on review, granting a permit. The parties before us supporting the grant of a permit have a case for saying that consent under the Coastal Management Act was duly given within time so that the deeming provision in s 40(3) of that Act has no relevance or effect. It appears that this might be a strong case, but in the circumstances it is unnecessary for us to determine this point.
62. In any event, having regard to the actual consent of the Minister, there would be a strong case, if necessary, for us to exercise the power granted to the Tribunal by Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure to comply with such relevant enactment as was not complied with in the circumstances, and to exercise the jurisdiction saved by that clause to determine the case on its merits. The Tribunal can do that if it is in the interests of justice to do so. We do not doubt that it would be in the interest of justice to do that, if necessary, in the circumstances of this case.
63. The power to do this is borne out by the Supreme Court decision in Rumpf v Mornington Peninsula Shire Council, Department of Natural Resources and Environment and the Rosebud & District Lifesaving Club [2000] 6 VPR 314. A copy of the reasons of the Supreme Court in that case was furnished to Mr Southall on the first day of hearing. At the commencement of the second day of hearing he specifically abandoned this point.
64. We mentioned earlier that, if a permit was required we would grant one on the merits subject to conditions in the Notice of Decision to Grant a Permit issued by the Responsible Authority on the 5 April 2000. We also mentioned that, in that event, we would be minded to "mend" the wording of those conditions to some extent. We will simply note those points:-
(a) In condition 1(a) we would change the requirement of satisfaction of the Council's Engineering Department to read as requiring the satisfaction of the Responsible Authority. The Responsible Authority can consult its Engineering Department in deciding what it will be satisfied with. Also we would give the "Conservation Department" its full correct name.
(b) At the end of condition 1, after sub-condition (H) there is a sentence indicating an intention to refer something to various departments for comment prior to approval and endorsement. We would need to consider whether a "Management Plan" can be imposed by means of a condition like condition 1, or whether a condition requiring an agreement under s 173 PE Act might be more appropriate. In any event, we would insert "Note:" before this sentence to make it clear that the intention to refer is in fact no more than that. The recording of this intention may be useful, but it is not actually part of the condition.
(c) We would replace condition 2 with a condition requiring the works to be carried out in accordance with the endorsed plans. The question of "use" would not arise.
(d) In conditions 6, 7 and 8 we would refer to the Department of Natural Resources and Environment, not just "Natural Resources and Environment".
(e) Condition 10 says that the conditions of the consent for use and development of Coastal Crown Land issued by the Department of Natural Resources and Environment (18 February 2000) under s 40 of the Coastal Management Act "shall be complied with in carrying out the development and use". It is undesirable for a condition to seek to impose constraints without specifying what they are within its own terms. Sometimes that may be unavoidable, but it is not unavoidable here. Rather than referring to the conditions in the consent document issued by the Department, we would recite the particular conditions as conditions in the planning permit. In doing so it would be necessary to consider the terms in which such conditions should be imposed. Some of the ones in the document of 18 February 2000 are obsolete in that they refer to the viewing platforms that are no longer part of the proposal.
65. We propose to allow the review and refuse to grant a permit, not because of the merits of the proposal, which we regard as acceptable, but because of our finding that no permit is required under the planning scheme. It follows that the Committee of Management is free to resume and complete the works in accordance with its application for a permit, without having such a permit.
66. So far as the enforcement order application is concerned, we refuse it because we find that no contravention has been established. In any event, we would not make an enforcement order on the merits, and certainly not one requiring the land to be restored to its condition before works were undertaken or before the track started to be formed. We approve of the works carried out and proposed as appropriate, and would not make an order restraining their continuance and completion.
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Warfe Leonard Ian
Mornington Peninsula SC & Anor [2001] VCAT 818
Enforcement order application dismissed; review allowed and no permit granted on the basis that no permit was required for the works as carried out and as contemplated (Order: Application 2000/13274 dismissed; Application for Review 2000/31350 granted; no permit granted as none required) (orders and paras 39-40, 65-66).