Bayside City Council, Patricia & Susan Carden, Kathryn Millett, Elizabeth McQuire, Carolyn Briggs, Janice Bate, Scott Chapman, Alison Joseph.

Wertheimer v Bayside CC (No 2) [2019] VCAT 1689

1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following person is joined as a party to the proceeding:

1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting the following plans for the application plans:

A0-000 (dated 14.04.2019), A0-001 (dated 14.08.2019), A0-100 (dated 03.06.2016), A0-101 (dated 14.08.2019), A0-102 to A0-104 (dated 03.06.2016), A0-105 (dated 04.08.2017), A0-106 (dated 31.07.2017), A1-101 to A1-105 (dated 14.08.2019), A1-107 (dated 14.08.2019), A2-101 and A2-102 (dated 14.08.2019), A3-101 dated (04.08.2019) and A3-102 (dated 14.08.2019) (19 sheets)

1. In application P89/2017 the decision of the Responsible Authority is varied.
2. In planning permit application 5/2016/266/1 a permit is granted and directed to be issued for the land at 131-133 Esplanade, Brighton in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • Use of the land as a minor sport and recreation facility (life saving club), place of assembly (multi-purpose function space) and food and drink premises (café), the removal of native vegetation, partial demolition of non-heritage assets and new works within HO491 associated with the construction of the new forecourt, timber decking and rain garden, and alterations to access to a Road Zone, Category 1 in accordance with the endorsed plans.

For John Wertheimer and Others, Brighton Residents for Urban Protection Inc

Mr Chris Wren QC, of Counsel, instructed by Gadens Lawyers. He called the following witness:

• Mr John-Paul Maina, Traffic Engineer of Impact Traffic Engineering Pty Ltd.

Ms Kristin Stegley, in person. She relied on the expert witness statements prepared by:

• Dr Christina Dyson (heritage consultant of Context Pty Ltd) and
• Mr Con Livanos (disability access consultant of Think Access Pty Ltd)

Mr Terry Montebello, Solicitor, of Maddocks Lawyers.

Ms Susan Brennan, SC and Mr H R Hassan of Counsel, instructed by Maddocks Lawyers. They called the following witnesses:

• Mr Barry Murphy, Landscape Architect of Murphy Landscape Consultancy.
• Mr Graham Burrows, Project Architect of Jackson Clements Burrows Architects.
• Ms Anita Brady, Heritage Consultant of Anita Brady Heritage.
• Mr Rod Wiese, Principal Engineer of Storm Consulting Pty Ltd.
• Mr Stuart McGurn, Town Planner of Urbis Pty Ltd.
• Mr Jason Walsh, Traffic Engineer of Traffix Group Pty Ltd.
• Mr Tim Bolton, Finance Director of the Brighton Life Saving Club.
• Ms Mae James, Member of the Brighton Life Saving Club.
• Mr Andrew Monotti, President of the Brighton Bathing Box Association Inc.

Use of land for a minor sports and recreation facility (life saving club), place of assembly (multi-purpose function space) and food and drink premises (café); removal of native vegetation; partial demolition of non-heritage assets and new works within HO491; alterations of vehicle access to the Esplanade.

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

Vegetation Protection Overlay, Schedule 1 (VPO1).

Design and Development Overlay, Schedule 1 (DDO1).

Development Contributions Plan Overlay, Schedule 1 (DCPO1).

Clause 42.02-2 (remove, destroy or lop native vegetation in VPO1).

Clause 52.29 (alter or create access to a road in a Road Zone Category 1).

Clauses 11, 12, 13, 14, 15, 17, 18, 19, 21.02, 21.04, 21.05, 21.06, 21.07, 21.08, 21.09, 21.10, 22.05, 22.08, 36.02, 42.02, 43.01, 52.17, 52.29. 65, 71.02.

The review site forms part of the foreshore in the vicinity of the Brighton Life Saving Clubrooms and public toilet block and is broadly located between the Brighton Beach to the north and the Dendy Street Beach to the south. The review site is developed for a single storey, brick-clad life saving clubrooms, public toilet block, at-grade carpark adjacent the Esplanade, access track to the life saving club and beach, grassed areas, garden beds and scattered, taller indigenous vegetation.

An unaccompanied inspection was undertaken on Monday 28 October 2019.

1. These applications pursuant to section 82 Planning and Environment Act 1987 (PE Act) are brought by six individuals or groups seeking a review of the decision of the Bayside City Council to issue a Notice of Decision to Grant a Planning Permit (NOD) for land on the foreshore at 131-133 Esplanade, Brighton (review site).
2. The Bayside City Council (council) has the unusual dual role as both the applicant making the permit application and the responsible authority making the decision. On 22 December 2016, the council issued a NOD for:

Partial demolition and associated works to the existing bluestone sea wall, the removal of native/indigenous vegetation, a waiver of loading bay requirements and alterations to an access to a Road Zone, Category 1 in accordance with endorsed plans and subject to the following conditions.

1. When referring to the council in its capacity as the applicant for the permit it will be referred to as the permit applicant.
2. On various dates in January 2017, six applications for review were filed with the Tribunal.
3. On 6 April 2017, a preliminary hearing took place before a differently constituted Tribunal. On 19 May 2017, the Tribunal[2] made the following declarations under section 124 Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act):

1. The proposed development of the land associated with permit application No. 5/2016/266/1 would be a development by or on behalf of Bayside City Council as public land manager under clause 36.02-2 of the Bayside Planning Scheme and would not require planning permission for this aspect of the proposal. 2. The proposed use/s of the land associated with permit application No. 5/2016/266/1 would not be uses by or on behalf of the Bayside City Council as public land manager under clause 36.02-1 of the Bayside Planning Scheme.

1. If the use of the subject land is proposed for BLSC (or equivalent), a planning permit for this use of the land would be required under clause 36.02-1 of the Bayside Planning Scheme.

1. If the use of the subject land is proposed for Retail or Food and Drink Premises (café or kiosk), a planning permit for this use of the land would be required under clause 36.02-1 of the Bayside Planning Scheme (planning scheme), unless it was demonstrated to be an ancillary use of the subject land.
2. On 30 May 2017, the Tribunal amended the permit application to include approval for:

1. The use of the land as a minor sport and recreation facility (life saving club); 2. The use of the land as a place of assembly (multi-purpose function space);

1. The use of the land as a food and drink premises (café);

1. Partial demolition and/or works to the heritage bluestone sea wall; 2. The removal of native vegetation; 3. A waiver of a loading bay requirement; and 4. Alterations to access to a Road Zone Category 1.
2. As a result of these amendments, the Tribunal required further notice of the application.
3. On 16 August 2019, Heritage Victoria issued a Permit (Heritage Permit) for buildings and works, including the works required to part of the heritage bluestone sea wall to upgrade the stormwater outlet.
4. Several events occurred following the above orders with a final hearing proceeding before us some 33 months after the applications were initially filed with the Tribunal.
5. At the commencement of the hearing, we allowed a further amendment of the application to update the plans to reflect the built form that was approved by the Heritage Permit and remove reference to the loading bay requirement. The amendment of the application was not opposed by any party.
6. We emphasise that the ambit of our discretion is limited and that many of the buildings and works matters raised in submissions are exempt from planning approval or are regulated under other legislation (for example, clean-up of contamination pursuant to environmental legislation).
7. Having considered the submissions and evidence, we conclude that the proposal is an acceptable planning outcome, and that subject to some modifications to the conditions within the NOD, a permit should be issued. Our reasons follow.

1. The proposal comprises the following elements:
   1. The construction of a new building comprising a clubhouse for the Brighton Life Saving Club (BLSC) over two levels with a total floor area of approximately 1,100 square metres, inclusive of a multi-function space of 130 square metres on the top level.
   2. A café seating 60 patrons with a combined internal and external floor area of approximately 130 square metres.
   3. The construction of a new car park with a different layout and modified access to the Esplanade.
   4. Construction of new pedestrian and vehicle accessways to the beach.
   5. Upper and lower forecourt terraces.
   6. Removal of native vegetation and the planting of new trees, shrubs and groundcovers, including construction of a rain garden to treat stormwater from the wider urban catchment currently flowing directly to the beach.
2. Other than tree removal required to facilitate the above components and minor buildings and works for part of the stormwater treatment system, rain garden and lower terrace, no planning permission is required for the buildings and works associated with the proposal.
3. We have also found that a planning permit is not required for car parking.
4. Therefore, the application for consideration before us includes planning permission with respect to the uses sought and minor buildings and works outside the area for which the Heritage Permit has been granted.

1. We heard extensive and detailed submissions by the parties and received evidence from a great many witnesses. However, given the limited ambit of our discretion, much of the material presented to us in submissions and evidence was of limited or no relevance. The key issues must, of necessity, be confined by the ambit of our discretion, and are framed by the following questions:
   • What is the relevance of the Brighton Land Vesting Act 1877?
   • Is a permit required for reduction in car parking pursuant to clause 52.06?
   • Are the proposed uses supported by the zone and policy framework?
   • Is the extent of vegetation removal acceptable?
   • Do the relevant buildings and works impact upon heritage?

1. At the commencement of the hearing we considered whether to join Ms Joseph and Mr Chapman who had both filed statements of grounds out of time. Having heard the submissions of the parties, we joined Ms Joseph as a party to the proceeding and allowed Mr Chapman to make submissions but did not join him as a party.

WHAT IS THE RELEVANCE OF THE BRIGHTON LAND VESTING ACT 1877?

1. The primary submissions with respect to the Brighton Land Vesting Act 1877 (Vesting Act) were made by the Brighton Foreshore Association Inc (BFA). These submissions were supported by other parties. The Vesting Act passed on 31 October 1877 states that it is:

An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation.

1. The land which is the subject of the Vesting Act is set out in the schedule, a copy of which is included in full in Appendix B.
2. The council owns the review site as set out in Certificate of Title Volume 11904 Folio 660. The Certificate of Title came into existence mid-2017 with a Registrar's Caveat (Caveat) being registered on 21 June 2018. The Caveat[3] applies to the review site and contained within Certificate of Title Volume 11904 Folio 659. It is recorded on behalf of Her Majesty Queen Elizabeth II and provides:

Folio of the Register volume 11904 folios 659 and 660

The land is not to be used otherwise than for public purposes as set out in Act 577 of 1877.

This Caveat will be removed only when the Register is satisfied that it is no longer required for the purpose of which it was recorded.

From and after the passing of this Act the lands described in Land vested in the schedule hereto shall vest in the Mayor Councillors and Burgesses of the Borough of Brighton for an indefeasible estate of fee simple from any easements rights or privileges which might otherwise be deemed to affect the same by virtue of dedication to" the public user express or implied grant or otherwise howsoever. And the Council of the said corporation shall have and may exercise over and in respect of the said lands the same rights and powers as if the said lands had been purchased by the said Council as a place of public resort or recreation in pursuance of section four hundred and eighty-three of the " Local Government Act 1874."

1. Section 483 of the Local Government Act 1874 (LGA 1874) provides:

PART XXIV - PLACES OF RECREATION ETC

1. The council may from time to time, by special order, purchase rent or otherwise provide lands grounds buildings or other places, either within the municipal district or at a reasonable distance therefrom not exceeding ten miles from the chief post-office, to be used as pleasure grounds public schools libraries museums gymnasiums gardens or places of public resort or recreation; and the council may from time to time level drain plant and otherwise lay out and may repair and improve any such public lands grounds or buildings, for the more convenient use and enjoyment thereof, and may afford the use and enjoyment thereof to the inhabitants, subject to such bye-laws as the council may make in that behalf.

1. The BFA submitted that:
   • The legislature created a 'statutory fee simple' which is 'unique';
   • In exercising its rights and powers over the review site including its use, the council must exercise such powers, as if the council had purchased the review site 'as a place of public resort and recreation';
   • The meaning to be attributed to the terms in the Vesting Act and the LGA 1874 'should be those that prevailed in the 1870s, when the Act was legislated';
   • There is no uncertainty as to the meaning of the Vesting Act or a term contained within it but if there is uncertainty 'it can be resolved by reference to the title of the...' and 'the preamble...' of the Vesting Act;
   • To ascertain the purpose of the Vesting Act, section 35 of the Interpretation of Legislation Act 1984 (IL Act) applies;
   • The built form and the proposed uses do not conform with the Vesting Act and the LGA 1874;
   • The Act and the planning scheme are subject to the Vesting Act and LGA 1874 and should be 'given effect and applied so that they do not contravene' the legislation; and
   • The granting of a planning permit in this application would result in breach of a registered restrictive covenant being the Caveat, and as such prevented by section 61(4) of the PE Act.
2. The BFA also submitted that the Registrar of Titles 'does not possess the power to issue' the Certificate of Title with respect to the review site. It is alleged that once the Registrar was made aware of section 1 of the Vesting Act, the Caveat was lodged. However, the BFA correctly concedes that until such time as the Certificate of Title is cancelled, withdrawn or otherwise, it is 'irrefutable evidence of the estate owned by the registered proprietor and the interests recorded in it'. This is consistent with section 41 of the Transfer of Land Act 1958 (TL Act).
3. Ms Joseph generally supported the submissions of the BFA and urged the Tribunal to follow the advice received by the Ministry for Planning and Environment dated 23 September 1988 by Mr Dreyfus (as he then was), relating to land at Green Point in Brighton, for use of that land for a restaurant.[4] Such advice is also referred to by Mr Lewis (as he then was) in his covering letter to the Ministry of Planning and Environment with respect to the same matter enclosing Mr Dreyfus' advice.[5] The advices will be collectively referred to as the 'Green Point advices'.
4. The council rejected the arguments that the proposed uses were inconsistent with the Vesting Act and that the grant of a planning permit would be prevented because it would be a breach of the Caveat. The council seeks to distinguish the Green Point advices on the basis that they dealt with land which was reserved under the relevant planning scheme at that time. Today, the review site is within the Public Park and Recreation Zone, which specifically contemplates the use of land for commercial purposes.
5. The permit applicant submitted as follows:
   • Properly construed the Vesting Act and the Caveat are not restrictions for the purposes of section 61(4) of the PE Act;
   • Even if the Caveat is construed as a restriction, the grant of a planning permit would not breach the terms of the Caveat;
   • The proposed uses and consistency with the Vesting Act is a relevant matter for the Tribunal pursuant to section 60 of the PE Act; and
   • The proposed uses are consistent with the purpose of the Vesting Act and the LGA 1874.

1. Whilst we received detailed submissions and eight questions of law with respect to the Vesting Act and the Caveat, these essentially raise the following two principal questions for our determination:
   1. Is the Vesting Act and/or the Caveat a registered restrictive covenant?
   2. Are the proposed uses consistent with the Vesting Act and the Caveat?
2. This approach is consistent with the way the submissions for the BFA were made, as they did not address each individual question of law.

Is the Vesting Act and/or the Caveat a registered restrictive covenant?

1. The first question set out above is a question of law and is determined pursuant to Clause 66(1)(b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 by Deputy President Bisucci being a Legal Member of the Tribunal constituted for the purposes of the proceeding.
2. In order to consider this issue, I must have regard to definitions in the relevant legislative regime, these are set out below.
3. Section 61(4) of the PE Act provides:
   1. Decision on application

(4) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

1. Section 3 of the Act defines 'registered restrictive covenant' as:

registered restrictive covenant means a restriction within the meaning of the Subdivision Act 1988;

1. Section 3 of the Subdivision Act 1988 defines a 'restriction' as:

restriction means a restrictive covenant or a restriction which can be registered, or recorded in the Register under the Transfer of Land Act 1958

1. The terms 'restriction' and 'caveat' are not separately defined in the TL Act. Generally, caveats forbid dealings with land, on a temporary basis. An exception to this is a caveat lodged by the Registrar.[6]
2. Section 106 of the TL Act provides:
   1. Powers of Registrar

(a) may record a caveat on behalf of the Crown, a minor or a person of unsound mind -

(i) to prohibit any transfer or dealing with any land registered in the name of that person; or

(ii) to prohibit dealing with any land in any case in which it appears that an error has been made by misdescription of that land or otherwise in any folio or folios of the Register; or

(iii) for the prevention of any fraud or improper dealing;

(2) The Registrar must not record in the Register a dealing with a folio on which a caveat has been recorded under subsection (1)(a) unless the Registrar is satisfied that the dealing is compatible with the purpose for which the caveat was recorded.

1. I did not consider the submissions of the BFA to go as far as to say that the Vesting Act is a registered restrictive covenant. However, the BFA submitted that the Vesting Act created a 'statutory fee simple' which is 'unique' might be argued to be some form of restriction preventing the grant of a planning permit.
2. Whilst I agree with the parties that the situation before us with respect to the Vesting Act is 'unique', the fact is that a Certificate of Title exists, its information (at the present time) is undisputed, leads to the conclusion that the review site is owned in fee simple by the council and nothing more. The Vesting Act is not referred to in the Certificate of Title and thus cannot be a registered restrictive covenant when one has regard to the definitions set out above. I note that this finding is consistent with the decision of Gibson DP in Gray v Colac-Otway SC.[7]

1. A caveat is a notice that a person possesses a proprietary right in land, which operates effectively as a statutory injunction to the Registrar by restraining the Registrar from registering any dealing, except with the caveator's consent.[8] This being the case, a caveat is a 'restriction' on the dealings that the Registrar may register.
2. However, that does not mean that a caveat is a registered restrictive covenant for the purposes of section 61(4) of the PE Act. The granting of a planning permit does not require a dealing to be recorded on the Register. In this case, the planning permit will authorise minor buildings and works and use of the review site, but it will not require any dealing to be entered into the Register, and thus the Registrar is not restricted, restrained or injuncted as there is no dealing to prevent.
3. Interestingly, the TL Act separately addresses dealings with respect to restrictive covenants.[9]
4. Accordingly, I find that the caveat is not a registered restrictive covenant for the purposes of preventing the issue of a planning permit pursuant to section 61(4) of the PE Act.

Are the proposed uses consistent with the Vesting Act and the Caveat?

1. The second question set out above is a question of fact, to which we find that the proposed uses are consistent with the Vesting Act. However, in order to arrive at a decision with respect to the proposed uses, determinations need to be made with respect to the Vesting Act. Those determinations are made by Deputy President Bisucci.

1. There is no debate amongst the parties that section 35 of the IL Act applies which states:
   1. Principles of and aids to interpretation

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

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

(b) consideration may be given to any matter or document that is relevant including but not limited to -

(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;

(ii) reports of proceedings in any House of the Parliament;

(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and

(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.

1. In relevant circumstances, for example, if ambiguity arises, the decision maker may have regard to extrinsic material, to aid in the interpretation exercise.
2. The purpose of the Vesting Act is set out earlier in these reasons. Neither the Vesting Act nor the LGA 1874 define the phrase 'as a place of public resort or recreation in pursuance of section 483 of the Local Government Act 1874'; accordingly, it must be given its ordinary and grammatical meaning.
3. In its written submissions, the BFA provided the definition of the words within the phrase from the Oxford English Dictionary as follows:[10]

'Public' - [in general, and in most of the senses, the opposite of private] (4) that is open to, or may be used by, or may or must be shared by, all members of the community; not restricted to the private use of any person, or persons; generally accessible or available ..."

'Resort' - [4] General or habitual repair of persons to some place or person

(c) In phr. Of (great, public, etc.) resort, applied to places.

'Recreation' - [3] the action of recreating (oneself or another) or fact of being recreated, by some pleasant occupation, pastime or amusement

(b) An instance of this; a means of recreating oneself; a pleasurable exercise or employment;

1. The permit applicant submitted that the Vesting Act is 'always deemed to be speaking and thus the statutory text is ambulatory, thereby embracing future change in the subject matter'. Before I can conclude that the legislation is 'always speaking', I must be satisfied that the words or phrases are being used in the general sense. This naturally requires an analysis of the words or phrase.
2. Section 1 of the Vesting Act provides for:
   • The vesting of the review site for an indefeasible estate of fee simple in the council;
   • The rights and power of the council over the vested land to be the same as if the council had purchased the review site for a place of public resort or recreation; and
   • The purpose of the relevant section of the LGA 1874.
3. The purpose of the Vesting Act is set out in, its preamble, and in section 1 which refer to 'public recreation' and 'place of public resort or recreation'. The Vesting Act also refers to section 483 of the LGA 1874 which refers to 'places of recreation etc'.
4. Having regard to the above reference, I conclude that the words and the phrases are being used in the general sense and refer to a class of activities. Hence, I am satisfied that the legislation is 'always speaking' and that the ordinary definition of the terms from the Macquarie Dictionary is appropriate. The following terms are:

1. of, relating to, or affecting the people as a whole or the community, state, or nation: public affairs.

2. done, made, acting, etc., for the people or community as a whole: a public prosecutor.

3. open to all the people: a public meeting.

4. relating to or engaged in the affairs or service of the community or nation: a public official.

5. maintained at the public expense, under public control, and open to the public generally: a public library.

1. a place frequented, especially by the public generally: a summer resort.

2. a large hotel with special facilities offered, as sporting activities, health and fitness equipment, gambling, etc.

3. a habitual or general going, as to a place or person.

4. a resorting to some person or thing for aid, service, etc.; recourse.

5. a person or thing resorted to for aid, service, etc.

1. refreshment by means of some pastime, agreeable exercise, or the like.

2. a pastime, diversion, exercise, or other resource affording relaxation and enjoyment.

1. The relevant uses are the: life saving club, multi-purpose function space and café.
2. BFA submits that the use/s:
   • must be open to or maybe used by or shared by all members of the community;
   • cannot be restricted to the private use of any person; and
   • cannot be regulated.
3. Ms Joseph supports the submissions of the BFA and added that the following two requirements must be met for the review site to be considered as being for 'public recreation and resort':
   • there must be access to the review site as of right; and
   • and it cannot be a source of private profit.
4. These submissions relied upon the High Court decision in Randwick Corporation v Rutledge[11] (Randwick Corporation decision) and the Green Point advices. The applicants submit that the three uses interfere with public access to the review site 'as of right'.
5. Turning to the Randwick Corporation decision, it must be distinguished on the basis that it deals with the meaning of 'dedicated', 'public reserve' and 'public purpose' for the rating of land. The second requirement that the use cannot be a source of private profit, is really at the core of the decision with respect to the rating of land and the purposes of that legislation. At page 88 Windeyer J states:

In principle, land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park - which is what the act contemplates (see, in addition to the definition ss.344-355) - to be on that account exempt from rating, two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit. As the first: it is not necessary for all members of the public to have free access to all parts of the land at all times. It is not incompatible with a public reserve that persons can be excluded from misbehaviour or for any similar sufficient reason. It is not incompatible with the place being dedicated for public recreation and enjoyment that its use be regulated, and that persons using it must use it having regard to the particular form of recreation and enjoyment which takes place there - whether, for example, it be a golf links, tennis court, ocean beach, zoological gardens or rifle range. It is not incompatible with a public park or reserve that at particular times, for example at night, the public are wholly excluded. And is not necessarily incompatible with the place being a place for public recreation and enjoyment that certain persons are allowed access at times when the general public is excluded or allowed into parts of the general public cannot go - for example research students may have special advantage in a public library, scientists in a public museum and so on. But, as Walsh J said in the Supreme Court, quite the enjoyment of special privileges by members of the club, differing in kind from any which the general public enjoy, is to be regarded as a material consideration in ascertaining whether the land is used for public purpose

As to the second requirement the land must not be a source of private profit. In the underlying theory of rating legislation, land in public occupation is exempt from rating because it does not produce rent or profits for its owner or occupier. If members of the public have to pay to enter the land it may still be a public reserve, provided that the moneys thus obtained are all devoted to its maintenance....

1. Other cases relied upon by Ms Joseph qualify the 'as of right' access by the public including contemplation that some types of recreation may require the exclusion of the public from parts of the reserved land.[12] It may be appropriate to allow for construction of facilities for public use such as public toilets or for areas to be fenced, or to control public access at various times provided these acts were consistent or incidental to the purpose of the relevant public purpose.[13]
2. I agree with the permit applicant that one must exercise caution when seeking to apply principles that are distilled from cases that deal with statutory construction under different legislative regimes.
3. I also note that notwithstanding I have distinguished the Randwick Corporation decision, because it dealt with the rating of land, it does clearly state that to be open to the public generally, as of right, does not mean that it is necessary for all members of the public to have free access to all parts of the land at all times. The use can be regulated and at times, the public can be excluded.
4. We now consider whether the proposed uses are consistent with the Vesting Act, as a matter of fact. No cases have been provided that deal with the Vesting Act.
5. If the terms 'public recreation' and 'place of public resort and recreation' are to be given a wide meaning, because they are general and do not refer to a class of activities then these will have different meanings to different individuals.
6. In fact, BFA says that the use/s must provide an opportunity to the public to recreate by engaging in some pursuit that may restore the public to a healthy state and in doing so renew the public by allowing participation in some pleasant pastime, occupation or amusement.
7. We find that the presence of a café is consistent with the BFA's summary of a use that is consistent with 'public recreation' and 'place of public resort and recreation'. The ability to purchase a cold drink, ice-cream, coffee or food is consistent with the definition of 'recreation' including a pastime, amusement or pleasant occupation. The use of the review site for a café is not only consistent today but would have been consistent with the Vesting Act in 1877. We readily conclude that the purchase of a refreshment or snack as one promenaded along the foreshore would be consistent with 'recreation'.
8. The BLSC is a use that we consider to be consistent with and incidental to the purpose of the Vesting Act. The BLSC provides a valuable service to the public that frequents this part of the foreshore. Notwithstanding that this part of the Bay is not a rugged and dangerous coastline, it is difficult to argue that a life saving club is not integral to Australian beach culture. The BLSC provides a safe environment for the review site through patrols, education and training. This in turn allows for the public to frequent the review site and enjoy it, in the knowledge that the BLSC is undertaking surveillance and that individuals have a safe environment. That enhances use of the review site for recreation.
9. We have not characterised the multi-purpose function space as a function centre but as part of the overall operation of the BLSC including training for its members. As such we do not make separate remarks or findings with respect to this and its consistency with the Vesting Act.
10. We find that both the BLSC and the café enhance the ability for the review site to be used for public recreation and as a place of public resort.
11. The café and BLSC are not open at all times but this does not mean that the uses are inconsistent with the Vesting Act. It simply means that very small parts of the review site cannot be used by the public at certain times. It does not prevent the review site in its totality from being used for public recreation and as a place of public resort.
12. The applicants also claimed that the BLSC is not available to the community but only to members of the BLSC. That is correct. However, all members of the community would be entitled to become members with the payment of a modest sum. Again, simply because a payment is required to become a member, and only members would be entitled to access the BLSC building, does not mean that the use is inconsistent with the purpose of the Vesting Act.
13. The submission advanced by the applicants that all the review site must be available to the public at large, always, would, if taken to its logical conclusion mean that no buildings, structures, fences, railings, walls or vegetation could ever be placed on the review site, as these would interfere with free access.
14. It is also integral to understand that section 483 of the LGA 1874 is referred to in the purposes of the Vesting Act and contemplates buildings such as schools, libraries, museums, gymnasiums, as well as gardens and pleasure grounds. Buildings are contemplated by the purpose of the Vesting Act and the buildings and places referred to therein are 'places of recreation' because that is the title of that section of the LGA 1874. These buildings would impede free access and would only be accessed at certain times.
15. Therefore, the purpose of the Vesting Act itself, contemplates that the public at large will not always have free and unimpeded access of the review site. Further, attending the activities conducted in such buildings may attract a fee for entry which is similar to the payment of a membership for the BLSC.
16. The Caveat refers to the use of the land for public purpose as set out in the Vesting Act and therefore we conclude that the proposed uses are consistent with the Vesting Act and the Caveat.
17. Our findings differ from those set out in the Green Point advices, and we agree with the submissions of the council that seek to distinguish the Green Point advices on the basis that they dealt with land which was reserved under the relevant planning scheme at that time. In fact, these advices deal with land that was reserved as 'Open Space - Public Existing' and not land in the public park and recreation zone. Further, the advice and the cases referred to therein, refer to the term 'public purpose' which is different to the terms set out in the Vesting Act. The term 'public purpose' is used in the Caveat but that is qualified by the Vesting Act. To the extent there is any inconsistency between this decision and the Green Point advices, the Tribunal respectfully disagrees with those advices.

IS A PERMIT REQUIRED FOR REDUCTION IN CAR PARKING PURSUANT TO CLAUSE 52.06?

1. The fundamental dispute with respect to car parking relates to whether a planning permit is required under clause 52.06 of the planning scheme. The second dispute relates to the number of car spaces provided for the uses.
2. Clause 52.06 applies to a new use, an increase in the floor area of an existing use and an increase to an existing use by the measure specified in column C of table 1.[14] If clause 52.06 applies, then the number of car parking spaces required under clause 52.06-5 must be provided to the satisfaction of the responsible authority either on the land or in accordance with a permit under clause 52.06-3.[15]
3. A reduction in the number of car parking spaces required under clause 52.06-5 requires a permit under clause 52.06-3. However, a permit is not required to reduce car parking spaces required for a new use of land if the number of car parking spaces currently provided on the land in connection with the existing use is not reduced after the new use commences. This is a matter we will return to later.
4. Table 1 at clause 52.06-1 does not provide a car parking requirement for the minor sports and recreation facility (life saving club) or food and drink premises being the café. This means that the car parking for these two uses must be provided to the satisfaction of the responsible authority.[16]
5. We understand that the BLSC requires a larger and dedicated space for training and other purposes including use by other groups such as community groups. Hence, permission is sought for a place of assembly (multi-purpose function space). We have not understood the submissions by the permit applicant to say that this space will be utilised as a separate, standalone function centre notwithstanding that on occasions functions may be held in that space. This understanding is consistent with the town planning evidence relied upon by the permit applicant.[17] On that basis, the multi-purpose function space is not a use listed at Table 1 at clause 52.06-1 therefore, car parking spaces must be provided to the satisfaction of the responsible authority.
6. On our analysis, the three uses all require car parking to be provided to the satisfaction of the responsible authority. The permit applicant submits that there is no right of review by third parties on that issue. In support of this proposition, the permit applicant relies upon two decisions of the Tribunal that considered clause 52.06-6.[18] Both decisions concluded that the Tribunal lacked the jurisdiction to consider car parking because no planning permit was required under clause 52.06. In Miller v Yarra CC, the Tribunal correctly states in paragraph 16 of its Opinion on Question of Law:[19]

This is not a decision which results in the grant of a planning permit/amended planning permit under clause 52.06. Rather, it is a decision of the responsible authority under the Scheme in respect of a matter that the Scheme says must be done to its satisfaction.

1. We concur with the legal ruling in Miller v Yarra CC and find that no planning permit is required for car parking under clause 52.06 of the planning scheme.
2. We also conclude that no planning permit is required under clause 52.06-3 because there is no reduction of car parking spaces being considered for the new uses, rather the number of car parking spaces is to the satisfaction of the responsible authority. Therefore, clause 52.06-3 does not apply to this application.
3. To that end, if the responsible authority is satisfied with the number of car parking spaces for the new uses, the evidence of the traffic engineers with respect to car parking numbers is not a matter we need to consider any further.
4. In any event, given the evidence before us, we prefer the evidence of the permit applicant as that evidence adopts the most restrictive or conservative approach that is, if there is a reduction in the existing provision of car parking on the review site, then all uses are to be characterised as new uses and the totality of the car parking must be provided on the review site. In this application, 52 car spaces are required according to the permit applicant's evidence and are to be provided in the new car park on the review site.
5. We also note that whilst the traffic evidence of the applicants employed a different analysis when arriving at the required number of spaces, that number was less than that required by the permit applicant's evidence. The applicant's evidence however, concludes that the number of car spaces required for the new uses is in addition to the existing spaces required for the users of the beach and visitors to the Brighton Bathing Boxes. The submissions supporting the evidence of the applicants relies upon clause 52.06-3 which we have already found not to be relevant in this matter.
6. The Angelatos' argue that whilst the car parking spaces will be on the review site, they are not 'provided' because they are not 'available' during peak times and thus a permit is required. For the reasons articulated earlier, we do not consider this is a matter before us because the car parking spaces are provided to the satisfaction of the responsible authority.
7. In any event, we also find that the word 'provide' is not synonymous with 'available'. The Macquarie Dictionary[20] defines these words as follows:

1. suitable or ready for use; at hand; of use or service: available resources

1. It is clear from the definition that 'provide' has a different meaning to 'available' and had the drafters of clause 52.06 required car spaces to be available that would have been the word that would have been used.
2. Accordingly, no planning permit is required under clause 52.06 of the planning scheme.
3. The applicants were concerned with the layout of the carpark and we heard submissions with respect to disabled spaces and inefficient vehicle movement. Clause 52.06-8 deals with car parking plans, layout, accessways and the like. It too requires the car park layout to be to the satisfaction of the responsible authority. Therefore, no planning permit is required for car parking layout and we cannot make findings in respect of the layout. The changes to the car park layout that are required by us are only necessary to require the retention of trees for which planning permit is required.
4. There was also discussion regarding the ingress and egress of large buses to and from the review site. The applicants tendered photographs of buses crossing the centre line when exiting the review site. That is an existing situation, and we note that the Roads Corporation (Vic Roads) did not raise any concerns with the proposed ingress and egress.

DO THE ZONE AND PLANNING POLICY FRAMEWORK OFFER SUPPORT FOR THE PROPOSED LAND USES?

1. Although the ambit of our discretion is confined to those relatively few matters for which a permit is required, it is necessary to consider those policies and decision guidelines which are of relevance to our determination.

Municipal Planning Strategy and Planning Policy Framework

1. Melbourne's population has exploded over the past 70 years from approximately 1.5 million in 1949 to 5 million today; it is projected to almost double to 9 million people in another 40 years.
2. One of the consequences of that enormous growth in population is the increased pressure on and usage of environmental assets in and around the metropolitan area. The coastline around Port Phillip Bay is no exception and the various impacts on the Brighton/Dendy Beach foreshore outlined to us by long term residents such as Ms McQuire and Mrs Bates are indicative of the pressures arising from population growth.
3. Those impacts will be magnified as population and beach visitation increases. They are irreversible but they can and must be managed if the foreshore is to retain the fundamental characteristics so highly valued by the community. It is because of the need to manage those impacts that council has prepared studies referred to us during the hearing. These include the Bayside Coastal Strategy 1997, the Bayside Coastal Management Plan 2014, the Dendy Street Beach Master Plan 2013, the Beach Road Corridor Strategy 2011 (with VicRoads and Kingston City Council) and Dendy Street Beach Tourism Hub Business Plan 2015.
4. Relevant documents prepared by other organisations include the Victorian Coastal Strategy 2014 (State Government of Victoria), Draft Marine and Coastal Policy (State Government of Victoria) and the Establishment of a Hospitality Business at the Brighton Life Saving Club Inc ('Eldred report').
5. These documents provide guidance in implementing relevant policies and controls in the planning scheme. We do not recite the content of all these documents but summarise them as seeking to achieve a balance between protecting and conserving the coastal environmental values and attributes and allowing activities that respond to and are sensitive to that environment. They by no means suggest that the foreshore is to be retained, or returned to, a previous natural state or an idealised past when the way people used the foreshore may have been very different, and when Melbourne was a much less populated place.
6. The Victorian Coastal Strategy 2014 recognises that urban coasts are different to non-urban breaks and notes that the metropolitan and urban coastline around Melbourne and Geelong has been substantially developed and is highly modified in many areas with intensive levels of demand. It is also noted that they play important functions as community open space, a social and cultural gathering place along with the conventional role of city and suburban beach. Although we received comments about whether the BLSC could be classified as a recreation or activity node as defined on page 56 of the Coastal Strategy, we are not persuaded that either applies given recreational nodes are stated as being located on coastal Crown land and activity nodes are adjacent to activity centres identified in planning schemes. Neither applies to the review site at Dendy Beach.
7. Parties referred to the list of buildings/activities at section 3.1 of the Strategy to support their cases for and against the BLSC redevelopment and the three uses subject to planning permission. Apart from the fact that the proposed uses are not located on coastal Crown land, the redevelopment of the BLSC building to allow continued use for life saving purposes is directly related to the coast and recreational activities on the coast. The BLSC use occupies by far the greatest floorspace and in that sense, the use of space for the café and meeting room are of relatively minor consequence. They are secondary to the use of the review site for a life saving club.
8. The documents focussing on the foreshore in Bayside, and Dendy Beach in particular, provide guidance about what might be anticipated for the Brighton/Dendy Street beach. The Dendy Street Beach Master Plan applies to the stretch of foreshore between Middle Brighton Baths to the north and Green Point to the south. The study area centres on the Brighton Bathing Boxes and the BLSC but extends to the north and south and includes consideration of broader open space and urban contexts.
9. The Dendy Street Beach Master Plan was subject to extensive community consultation. The results of the consultation included broad agreement about a new, larger two level BLSC building designed to be sympathetic with the environment, general but not unanimous agreement for a limited commercial activity such as a kiosk/café, support for new public toilets/changerooms, carpark capacity should not be increased but improved, improved stormwater management, upgrading to beach access paths and improvements to the Bay Trail. The Dendy Street Beach Master Plan included recommendations on each of these matters with two scenarios put forward for the BLSC building and associated buildings and works.
10. To the extent that the community consultation offered support for a kiosk/café, it was submitted to us that such support was based on a very small kiosk/café and not a 60 seat café as now proposed. While that may be the understanding of parties opposing the 60 seat café, we can find no material that seeks to limit the size or type of food or drink premises in the manner suggested in submissions. Instead, the Dendy Street Beach Tourism Hub Business Plan is suggesting a 50-60 seat café plus a kiosk at beach level. While the Business Plan has a focus on the financial aspects of a café/kiosk, it nevertheless remains the case that these documents provide support for the café use on the review site.
11. While café is not specifically mentioned in policies in the planning scheme, there is recognition of the need to provide recreational opportunities, provide for a range of leisure experiences appropriate to the character facilities and environmental capacity of the foreshore, to meet the changing needs of the community and to reinforce the focus of individual precincts identified in the Bayside Coastal Management Plan 2014. The plan identifies 11 precincts and the Dendy Street Beach and Brighton Dunes are in Precinct 3. Strategic directions listed are redevelopment of the BLSC including a commercially viable café, community room and public toilets which are all identified as high priority projects. The Master Plan also identifies major and local nodes and Dendy Street is a local node. Table 13 list priority activities/functions for each node and Dendy Street Beach includes water based recreation, dog exercise and socialisation, passive recreation, club facilities, vegetation conservation and protection, cultural geological and heritage asset conservation and protection, commercial facilities and services. These actions are elaborated upon in section 4.4 of the Master Plan.
12. Based on our assessment of the numerous studies referred to us by parties, we consider that the redevelopment of the BLSC building and the inclusion of a relatively small café is consistent with the outcomes sought. We recognise that the parties opposing the redevelopment and inclusion of the café may disagree with the recommendations of these documents, and that there was not unanimous support for a café or other commercial activity arising from the community consultation program.

1. In addition to the generic objective requiring implementation of the Municipal Planning Strategy and Planning Policy Framework which we have already referred to, the other three purposes of the Public Park and Recreation Zone seek to recognise areas for public recreation and open space, protect and conserve areas of significance where appropriate and provide commercial uses where appropriate.
2. The BLSC, associated multi-purpose function space and the café can all be contemplated as uses within the zone given their broader categorisation as minor sports and recreation facility, place of assembly and food and drink premises respectively. We consider that to different degrees, these three uses are consistent with the zone purposes to recognise areas for public recreation and to provide for commercial uses where appropriate.
3. We do not accept any suggestion that the three uses undermine the purpose to protect and conserve areas of significance where appropriate. We observe that it is the extensively vegetated escarpment and dune area to the south of the current access track which is the primary area of environmental significance. While we recognise that there is mature vegetation located north of the access track, it is already affected by the car park and other activities associated with the existing BLSC, and of lesser significance. As we later discuss, although eleven trees are being removed, they are being replaced by up to 70 new indigenous trees, together with shrubs and ground cover.
4. The BLSC has existed in this location in its current form for approximately 60 years and the club has been in operation for nearly 90 years. Based on its longevity and submissions made, it is performing a valued and important function for the community. A life saving club is an integral part of Australian beach culture and none of the submissions or evidence sought to dismiss or diminish the role played by the BLSC in providing a life saving role at Dendy Beach.
5. On that basis alone, we consider that the continued use of the review site for a life saving club unremarkable and uncontroversial despite an intimation that the main BLSC building could be located away from the foreshore, with just an observation structure provided on the foreshore. Apart from the inefficiencies arising from separating the two functions, we consider such a separation impractical given the need for members to be on hand, and for equipment to be easily and readily available when required.
6. We therefore support the continued use of the review site for a minor sports and recreation facility (life saving club) including very generous hours for its operation which at present are unrestricted. We discuss the hours of operation (and that of the other uses) later in our reasons.
7. The inclusion of a cafe and multi-purpose function room introduce commercial uses where they have not existed before and are the most contentious aspects of the proposal as they relate to the ambit of our discretion.
8. We reiterate that the zone purposes specifically contemplate commercial uses where appropriate. The decision guidelines do not provide any guidance as to what an appropriate location may be and so it is necessary to have recourse to the policy and documents we have referred to previously.
9. Although the application seeks approval for a place of assembly (multi-purpose function space) the plans refer to it as a multi-purpose/training room with a floor area of 130 square metres. It is not a function centre and we consider it is unfortunate that it has been characterised in that way by some of the parties. We emphasise that there is no intention that it be a function centre in the normally understood way where weddings, etc are conducted.
10. It is a relatively small space and is a room with dimensions of approximately 10.5 metres by 11.5 metres. In order to appreciate what that means in practice, Room G1 at 55 King Street where the hearing was conducted has approximate dimensions, excluding the bench, of 9.5 metres by 11.5 metres for total area of 110 square metres. The ground level 'hall' in the existing BLSC building has an area of approximately 140 square metres.
11. On our inspection we were able to inspect the training room on the mezzanine level of the existing BLSC building. Based on the plan tendered at the hearing, it has dimensions of 4.82 metres by 4.55 metres and an area of approximately 21.9 square metres. To describe it as inadequate for training and meeting purposes would be an understatement. While the ground floor hall is much larger, it is partly used for storage and is also a thoroughfare for people and equipment. We can understand why the BLSC requires a larger and dedicated space for training and other purposes and support the provision of such a use.
12. We also support its availability by other groups such as the Brighton Bathing Box Association and community groups. Not only will it make more efficient use of the space when not required by the BLSC, but it will also enliven and activate the building when it otherwise might be unoccupied. We consider there are consequential benefits for public safety if the building is occupied more frequently and we contrast this favourably with the existing situation where the building is often closed and unoccupied.
13. Earlier in our reasons we observed that the use of the review site for a cafe/kiosk is consistent with several of the studies undertaken by council. We consider that a café occupying just 130 square metres of foreshore land, as part of a two level building with a total floor area of over 1,100 square metres, represents a modest new use where none exists at present. While it may not be a type of recreation that has existed at Dendy Beach before, we consider it complements and adds variety to the beach experiences that have been enjoyed by past and present community members.
14. Despite submissions to the contrary, we are not persuaded that it will undermine or detract from the environmental, scenic or amenity features of Dendy Beach which are so valued by the local community. We therefore support the use of the review site for a modestly sized café catering for up to 60 patrons.
15. Although Ms Stegley is concerned that approval of the café use may be some form 'trojan horse' and cited the example of a café at the Seaford Life Saving Club where a café approved by the Tribunal with 20 patrons has since been enlarged to 60 patrons, we can only make our decision based on the proposal before us.[21] If a later application seeks to enlarge the café then it will need to be assessed on its merits at that time, bearing in mind the limited permit requirements that apply.
16. In considering the acceptability of these three uses, we have also been mindful of the proposed operating hours and whether they would result in adverse off site impacts including a loss of amenity to other beach users and nearby residents.
17. The application proposes the following hours of operation:

Life saving club and multi-purpose function space (high season)

Low season - April to October; High season - November to March.

1. During the hearing the permit applicant offered to modify these hours to the following:

On no more than 6 occasions, multi-purpose function space (low season)

On all other occasions, multi-purpose function space (low season)

On no more than 12 occasions, life saving club and multi-purpose function space (high season)

On all other occasions, life saving club and multi-purpose function space (high season)

Low season - May to October; High season - November to April.

1. We note that the revised hours have been reduced so that the latest closure for the life saving club and multi-purpose function space is 11pm rather than midnight and the café hours on all days have been limited to 10pm rather than midnight. We acknowledge that April is now included in the high season but we consider this change realistic given Daylight Saving Time now extends into April.
2. At present, the life saving club has no time restrictions and in principle we would not object to that circumstance continuing. However, we recognise that the inclusion of a larger multi-purpose function room, even if largely confined to life saving training purposes, does have the potential to generate off site impacts in terms of the noise of people coming and going to the building.
3. We have earlier in our reasons commented about the surveillance and security benefits of enlivening and activating the building late into the evening, and consider that the revised hours provide an acceptable balance between limiting potential amenity impacts while allowing the building to be effectively utilised by the life saving club and other community groups.
4. We have earlier discussed why we support the café use and why we are not persuaded that it will undermine or detract from the environmental, scenic or amenity features of Dendy Beach. We do not consider the proposed hours of operation excessive and they will allow food to be served throughout the day, including evening meals up until 10pm. The locational attributes are such that we would expect the café to attract patrons seeking to dine and enjoy the view over Port Phillip Bay into the early evening. As with the other two uses, allowing the café to operate until 10pm will enliven and activate the area and improve surveillance and the sense of safety for all users of the beach and foreshore. Permit conditions will ensure that the café does not morph into some form of late night dining and entertainment venue.

IS THE EXTENT OF VEGETATION REMOVAL ACCEPTABLE?

1. A permit is required to remove vegetation under both the Vegetation Protection Overlay Schedule 1 (VPO1) and Clause 52.17.
2. We deal with the VPO1 first. As part of the pre application assessment an Arborist report was prepared by Homewood Consulting Pty Ltd in April 2015.
3. A total of 54 trees and vegetation within 12 garden beds was assessed. The report noted that most of the vegetation is indigenous to the area, although it is likely that a significant percentage has been planted by council or friends' groups, rather than being remnant. The dominant trees are Coastal Banksia, Drooping She-oak, Coastal Tea-tree and Paperbark. Garden species are Boobialla, Seaberry Saltbush, Grey Saltbush, Native Fuchsia, Bower Spinach, Hop Goodenia and Coast Spear-grass.
4. Of the 54 trees, 26 were assessed as worthy of retention, 22 were assessed as worthy of retention if possible and 6 were assessed as not worth retaining. A subsequent report in June 2016 assessed a further five trees of which 3 were assessed as worthy of retention if possible and 2 were assessed as not worthy of retention.
5. Mr Murphy prepared two witness statements and attended the hearing to give his evidence. In his second witness statement, he refers to 55 trees rather than the 59 assessed in the Arborist report. Tree 56 is a Drooping She-oak (to be retained if possible), Tree 57 is a Boobialla shrub (not worth retaining), Tree 58 is a Coastal Tea-tree (to be retained if possible) and Tree 59 is Drooping She Oak (to be retained if possible). We plotted these trees on the plan showing the boundary of the works area and it is our understanding that only Tree 55 (a group of Wattles) will require removal in order to allow construction of the rain garden. Tree 56 is right on the boundary of the works area and could be retained given it has a Tree Protection Zone (TPZ) of 3.96 metres.
6. Mr Murphy's Table 1 (summary of tree status) lists 55 trees and notes that with the removal or imminent death of Trees 2, 7, 12, 35 and 36 there are 50 viable trees within the works area. Seventeen of these have no encroachment into their TPZ, 10 have an encroachment less than 10% in accordance with the relevant Australian Standard (AS4970). Twelve trees have a TPZ encroachment greater than 10% but Mr Murphy has recommended changes to decking and pavement material in the vicinity of the carpark to overcome this encroachment. Mr Murphy also observes that the existing impervious pavement near Trees 9-21 is to be reduced which will significantly improve growing conditions.
7. The result is that a total of 11 trees are to be removed, of which 4 are environmental weeds. These trees to be removed are as follows:
   1. Tree 8 - Coast Banksia.
   2. Tree 33 - Coast Tea-tree.
   3. Tree 34 - Coast Tea-tree
   4. Tree 41 - Drooping She-oak.
   5. Tree 42 - Giant Honey Myrtle (environmental weed).
   6. Tree 50 - Showy Paperbark (environmental weed).
   7. Tree 51 - WA Willow Myrtle (environmental weed).
   8. Tree 52 - WA Willow Myrtle (environmental weed).
   9. Tree 53 - Coast Tea-tree.
   10. Tree 54 - Coast Tea-tree.
   11. Tree 55 - Wattle spp.
8. Of the seven indigenous trees to be removed, we do not support the removal of Tree 8. Tree 8 is an 8 metre high Coast Banksia which has been assessed as making a high landscape contribution and being individually significant. During the hearing we discussed the possibility of retaining Tree 8 with both Mr Murphy and Mr Walsh. It is our observation that the northern access drive is proposed to be relocated further from the trunk of Tree 8 with benefits to soil aeration for the tree. It is also our observation that the proposed northern most car space to the south of Tree 8 will encroach significantly into the TPZ. Relocation of the Bay Trail to the east may also have an impact.
9. Given our finding that Tree 8 must be retained and provided with the greatest chance of survival, we consider the proposed northern most car space should be deleted. Although it removes an additional car space, along with the one removed in accordance with Mr Murphy's recommendations to reduce encroachment into TPZs, we consider that the retention of Tree 8 outweighs any benefit in providing the extra car space.
10. We do not agree with the permit applicant that retention of Tree 8 should be subject to further investigation. The tree is assessed as significant and the car park design and Bay Trail alignment must be adjusted to allow for the viable retention of this tree. We have included an appropriate condition in Appendix A.
11. Clause 52.17 requires a permit to remove, destroy or lop native vegetation. A Biodiversity Assessment was prepared by Biosis addressing the requirements of Clause 52.17 which identified that the vegetation to be removed is within the low or moderate risk pathway and no offset is required due to the small area and condition of vegetation to be removed.
12. While the removal of indigenous vegetation is not a step to be taken lightly, we consider that the opportunity to remove environmental weeds and undertake significant revegetation consisting of indigenous species is, on balance, a positive aspect of the proposal before us. The landscape proposal includes the planting of approximately 70 trees together with vegetated garden beds, all comprising coastally appropriate species.
13. To the extent that submissions opposed the removal of vegetation because of loss of habitat, we consider that the new landscaping will offer a far more suitable and extensive environment for local fauna given the extensive use of indigenous species. While it will take time for the vegetation to grow, we anticipate that the landscape and environmental values of this part of the foreshore will be greatly enhanced as the new vegetation establishes and starts to grow towards maturity.

DO THE RELEVANT BUILDINGS AND WORKS IMPACT UPON HERITAGE ASSETS?

1. In August 2018, the Brighton Bathing Boxes and Dendy Street Beach were added to the Victorian Heritage Register (VHR, H2369). The area included in H2369 includes most of the proposal before us with the result that a separate permit is not required for development (building and works) under the Planning Scheme.[22] Importantly, VHR2369 incorporates that part of the sea wall where the existing stormwater outlet is to be modified.
2. However, a relatively small length of the sea wall north of H2369 is affected by Heritage Overlay, Schedule 491 (HO491) and any buildings and works falling within the mapped HO491 require approval by us.
3. HO491 applies to the sea wall and the Building Citation in the City of Bayside Heritage Review assesses it as having historical and aesthetic significance. It includes the following description:

The sea wall along the foreshore reserve is a low retaining wall along the foreshore of Port Phillip Bay, extending from Brighton to Black Rock. The wall is constructed of dressed bluestone and has a moulded concrete projection at the upper level and curved concrete capping.

1. As discussed at the hearing, HO491 depicted on the Planning Scheme map does not have a consistent width along the seawall with the result that only two discontinuous parts of the proposed forecourt and rain garden are affected by HO491. We observe that none of the proposed works affect the seawall structure which will remain intact as described in the previous paragraph.
2. Although there will be no physical impact on the sea wall, it is conceivable that removal of the existing concrete footpath east of the sea wall and its replacement with a paved forecourt may expose some of the wall base. The rain garden is east of the existing promenade, is not being removed, and construction will not physically impact on the sea wall.
3. Given the proposed works are east of the sea wall and do not require any modifications to it, we consider that to the limited extent relevant, a permit be granted for construction of the rain garden, forecourt and associated works. However, removal of the existing concrete footpath on the east side of the sea wall could cause damage if not undertaken carefully and we consider it prudent to include a condition requiring expert supervision when works are undertaken and reinstatement to original condition should any damage occur.

1. Although buildings and works within the area covered by the Heritage Permit are not subject to our discretion, Mr Wren QC made a submission about various design aspects of the life saving clubrooms which he suggested were inconsistent with development guidelines published by Life Saving Victoria (Life Saving Facility of the Future (A Community Asset) Development Guidelines May 2018) (Guidelines). In particular, he was critical of the location of the first floor life saving observation room and demonstrated that views southwards to Dendy Beach would be blocked by the intervening café structure. He submitted that this did not allow an unobstructed view of the area under observation by lifesavers, was therefore contrary to the requirements for observation rooms set out in the Guidelines and arose because of the priority given to establishing the café. He was also critical about the design of the first aid room which he submitted did not allow for appropriate and convenient access.
2. Whilst we do not disagree with his submission about these design issues, we are not persuaded they are so fundamental that they prevent the use of the review site for a life saving club. The guidelines are not mandatory requirements, but we acknowledge that some later modifications could be made, if required, to the building layout to address these and other design issues. However, these concern buildings and works for which no permit is required.
3. To the extent that pedestrian safety and traffic movements into and out of the Esplanade were raised in submissions opposing the application we make the following comments.
4. Firstly, VicRoads as the road management authority for the Esplanade has given its conditional support for the proposal. Despite submissions to the contrary, including photos of turning buses, we have no evidence to suggest that access to and from the redesigned carpark will be so unsafe that the changed layout should be rejected.
5. Mr Maina's evidence largely focussed on what he suggested was a shortfall in car parking and the impact on nearby streets to accommodate overflow parking. Given our finding that a permit is not required for parking and that there are no third party rights to review where parking to the satisfaction of the responsible authority, it would be inappropriate for us to comment about parking and traffic movements in nearby streets.
6. Secondly, pedestrian movement across the Esplanade in the vicinity of the car park is already occurring in an uncontrolled way and has not yet caused warrants to be issued for construction of pedestrian operated signals. Mr Maina discussed the factors which would guide a warrant being given based on the VicRoads Supplement to the Austroads Guide to Traffic Management, Part 6 (2013). A signalised crossing exists to the south at Dendy Street. If pedestrian movements reach a level where an additional crossing is required, for example near Keith Court or Wellington Street, then approval can be sought in concert with VicRoads at that time.
7. Parties also raised a concern that the substituted plans still included the word 'bar' in the first floor kitchen of the BLSC. While we do not consider the word necessarily means a bar serving alcoholic drinks, we have nevertheless included a condition to delete the word 'bar' given the application has been amended to exclude permission for a liquor licence.

1. Revised draft conditions were circulated to parties during the hearing and were the subject of discussion towards the end of the last day. Some witnesses were also asked to comment on draft conditions during their appearance at the hearing.
2. We do not itemise all the changes we have made but the conditions contained in Appendix A reflect our decision based on the comments made by parties.

1. Clause 65 asks us to decide whether a proposal will produce acceptable outcomes and Clause 71.02 requires us to balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
2. Despite the limited ambit of our discretion we consider that the proposal has produced an acceptable outcome and that it does provide a net community benefit and sustainable development.
3. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

Use of the land as a minor sport and recreation facility (life saving club), place of assembly (multi-purpose function space) and food and drink premises (café), the removal of native vegetation, partial demolition of non-heritage assets and new works within HO491 associated with the construction of the new forecourt, timber decking and rain garden, and alterations to access to a Road Zone, Category 1 in accordance with the endorsed plans.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans numbered A0-000 (dated 14.04.2019), A0-001 (dated 14.08.2019), A0-100 (dated 03.06.2016), A0-101 (dated 14.08.2019), A0-102 to A0-104 (dated 03.06.2016), A0-105 (dated 04.08.2017), A0-106 (dated 31.07.2017), A1-101 to A1-105 (dated 14.08.2019), A1-107 (dated 14.08.2019), A2-101 and A2-102 (dated 14.08.2019), A3-101 dated (04.08.2019) and A3-102 (dated 14.08.2019) (19 sheets), prepared by Jackson Clements Burrows Pty Ltd Architects but modified to show:
   • (a) The proposed steps adjacent to the existing bluestone wall to be constructed of a different material to ensure the steps are easily distinguishable from the existing bluestone wall;
   • (b) The deletion of the word 'bar' in the northern building at first floor shown on plan A1-104;
   • (c) Detailed engineering drawings which demonstrate the repairs to the existing bluestone sea wall including the materials and finishes to be used to be consistent with the existing bluestone wall. Such detail must be provided at a scale of 1:20 to the satisfaction of the Responsible Authority;
   • (d) The trees to be retained and their TPZ's;
   • (e) The retention of Tree 8 and any necessary modifications to the car park, access way to ensure its retention;
   • (f) The kerb to the rear of the accessible car spaces realigned to provide a level shared area;
   • (g) The bus bay widened to a width of 3 metres;
   • (h) The Bay Trail realigned to ensure the retention of:
     • (i) Tree 1 which is located at exit of the carpark;
     • (ii) Tree 3; and
     • (iii) Tree 8;
   • (i) Any changes required by the landscape plan;
   • (j) A detailed landscape plan generally in accordance with the landscape concept plans prepared by Site Office Council date stamped 7 August 2017 that is drawn to scale with dimensions and three copies must be provided. The plan must show:
     • (i) Details which accord with condition 1 of this permit;
     • (ii) The western edge of the carpark relocated 400mm to the east to reduce the impact on the TPZ's of Trees 9 and 10;
     • (iii) The stormwater pipe to be relocated under the pavement of the carpark in order to limit the impact on the TPZ of Tree 21;
     • (iv) Changes to the concrete paving and decking between the carpark kerb line and the building to allow water and air intake to the soil to existing trees including Trees 9, 13, 16, 17, 20 and 21;
     • (v) The relocation of the southern stairs to minimise impact on the TPZ of Tree 22;
     • (vi) The relocation of the landscape gardens in the lower forecourt to allow vehicles to turn without interference with the vegetation;
     • (vii) Removal of indigenous vegetation to be replaced with a similar extent of indigenous coastal vegetation;
     • (viii) Removal of native vegetation to be replaced with a similar extent of indigenous coastal vegetation;
     • (ix) Removal of non-native vegetation to be replaced with native or indigenous coastal vegetation of species likely to provide habitat for native and indigenous fauna;
     • (x) Removal of exotic vegetation to be replaced with native or indigenous coastal vegetation of species likely to provide habitat for native and indigenous fauna;
     • (xi) A survey, including, botanical names of all existing trees and vegetation to be retained on the site;
     • (xii) A planting schedule of all proposed trees and shrubs, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant. Plantings must be 80% indigenous by species and count;
     • (xiii) Landscaping and/or planting within all areas of the site not covered by buildings or hard surfaces;
     • (xiv) Details of surface finishes of pathways and driveways.
   • (k) A Tree Management Plan in accordance with Condition 10 of this permit;
   • (l) The Arboricultural Report prepared by Arbor by Design dated 4 April 2017 updated to include an assessment of Tree 34 as listed on LA121 Revision 04 of the landscape plan drawings prepared by Site Office;
   • (m) Any other changes to be in accordance with all conditions in this permit;

All changes to the plans must be to the satisfaction of the Responsible Authority.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Bayside Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. Noise emanating from the subject land must comply with State Environment Protection Policy (Control of Music Noise from Public Premises) No. N‑2, to the satisfaction of the Responsible Authority.
3. Any works required to ensure and maintain the noise levels (from the plant and equipment area and loading bay or specify other as relevant) must be completed prior to the commencement of the use or occupation of the site and maintained thereafter, all to the satisfaction of the Responsible Authority.
4. Except with the prior written consent of the Responsible Authority the land uses may operate only between the following hours:

On no more than 6 occasions, multi-purpose function space (low season)

On all other occasions, multi-purpose function space (low season)

On no more than 12 occasions, life saving club and multi-purpose function space (high season)

On all other occasions, life saving club and multi-purpose function space (high season)

Low season - May to October; High season - November to April.

1. External lighting must be designed, baffled and located to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority.
2. All loading and unloading of goods to occur between 6am and 10am Monday to Saturday and 8am-10am on Sundays.
3. No external sound amplification equipment or loudspeakers are to be used for the purpose of announcement, broadcast, playing of music or similar purpose, unless for the purposes of public safety.
4. The use and development authorised by this permit must be managed so that the amenity of the area is not detrimentally affected, through the:
   • (a) Transport of materials, goods or commodities to or from the land;
   • (b) Appearance of any building, works or materials;
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and
   • (d) Presence of vermin.

1. Before the development starts, including any related demolition or removal of vegetation, a Tree Management Plan (report) and Tree Protection Plan (drawing), to the satisfaction of the Responsible Authority, must be submitted to and be endorsed by the Responsible Authority.

The Tree Management Plan (report) must be specific to the site, be in accordance with AS4970-2009, prepared by a suitably qualified arborist and provide details of tree protection measures that will be utilised to ensure all trees to be retained remain viable post-construction. Stages of development at which inspections are required to ensure tree protection measures are adhered to must be specified.

The Tree Management Plan (report) must be designed in accordance with AS4970-2009, be drawn to scale, and provide details of:

(a) The Tree Protection Zone and Structural Root Zone for all trees to be retained on the site as shown on the endorsed plans, and all trees adjoining the subject land where any part of the Tree Protection Zone falls within the subject land;

(b) Protection methods to be utilised and instruction on how to deploy them;

(c) When the protection measures are to be deployed;

(d) When the protection methods can be modified;

(e) The process that will be followed if any damage occurs to a tree;

(f) The process that will be followed if construction works result in the alteration to protection measures outlined in the report;

(g) The timing and extent of tree inspections; and

(h) The location of all tree protection measures to be utilised.

If tree protection measures are proposed to be changed during the development, an updated tree protection plan must be submitted.

1. All protection measures identified in the Tree Management Plan and Protection Plans must be implemented, and development works undertaken on the land must be undertaken in accordance with the Tree Management and Protection Plans, to the satisfaction of the Responsible Authority.

1. Before the occupation of the development the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
2. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

1. Where works occur adjacent to the seawall, if previously unexposed elements of the seawall are exposed, a photographic record of the previously unexposed seawall must be undertaken, and any damage to the seawall minimised, to the satisfaction of the responsible authority.
2. Any demolition of the promenade and any new works occurring adjacent to the seawall must be supervised by and under the direction of an experienced Heritage Consultant.

1. Prior to the commencement of use or occupation, both entry and exit access crossovers at property boundary must be sealed with the edges of the crossover angled at 60 degrees to the road reserve boundary, at least for the first 3 metres from the edge of the road must be constructed to the satisfaction of the Responsible Authority (RA) and at no cost to VicRoads or the RA.
2. The cross overs must have a corner splay or area at least 50 per cent clear of visual obstructions extending at least 2 metres along the frontage road from the edge of an exit lane and 2.5 metres along the exit lane from the frontage, to provide a clear view of pedestrians on the footpath of the frontage road. The area clear of visual obstructions may include an adjacent entry or exit lane where more than one lane is provided, or adjacent landscaped areas, provided the landscaping in those areas is less than 900mm in height.
3. Prior to the commencement of the use or occupation of the development, all disused or redundant vehicle crossings must be removed and the area reinstated to the satisfaction of the Responsible Authority (RA) and at no cost to VicRoads or the RA.
4. Prior to the commencement of the use or the occupation of the buildings or works hereby approved, the access crossover and associated works must be provided and available for use.
5. The vehicles must enter and exit the land in a forward direction at all times.
6. The level of the footpaths must not be lowered or altered in any way to facilitate access to the site.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit;
   • (b) The development is not completed within four years of the date of this permit;
   • (c) The use is not commenced within four years of the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

All that piece of land being part of the five thousand one hundred and twenty acres in the parish of Moorabbin in the county of Bourke known as Henry Dendy's special survey, commencing at a point on the western side of St. Kilda street one chain west of the angle formed by the junction of the north side of Park street with the east side of St. Kilda street and which point of commencement is in a line with the said north side of Park street; thence northerly along the west side of St. Kilda street twenty chains fifty links; thence westerly to the Port Phillip Bay; thence southerly along the Port Phillip Bay to the southern boundary of the said special survey; thence east along the southern boundary of the said special survey to the junction of Beach terrace with the centre of the South road; thence along the western side of Beach terrace north-westerly and northerly to the commencing point; which said piece of hind is generally known as the Brighton Beach Reserve. And also all that piece of land being other part of the said five thousand one hundred and twenty acres known as Henry Dendy's special survey, commencing at a point on the southern boundary of a street or road two chains wide called the North road (which point is distant west eleven chains eight links from another point forming the junction of the southern boundary of another street one chain wide called St. Kilda street); thence from the said point of commencement south seven chains twelve links; thence west to the Port Phillip Bay north to the North road; and thence along the said North road east to the point of commencement.

[1] The submissions and evidence 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] Wertheimer v Bayside CC [2017] VCAT 726.

[3] contained within dealing no AR1554454D.

[4] Copy of advice contained in the Joseph submission - Exhibit O12.

[5] Cover letter containing advice dated 8 November 1988 and contained in the Joseph submission - Exhibit O12.

[6] See Section 90 Transfer of Land Act 1958.

[7] (Red Dot) [2005] VCAT 2266.

[8] See Section 90(1)(b) of the Transfer of Land Act 1958.

[9] See Section 88 of the Transfer of Land Act 1958.

[10] See pages 9 -10 of Brighton Foreshore Association Inc submission - Exhibit O2.

[11] [1959] HCA 63; (1959) 102 CLR 54.

[12] Attorney-General for New South Wales v Cooma Municipal Council (1962) LGRA 111.

[13] Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2012] NSWCA 358; (2012) 84 NSWLR 219.

[17] See Stuart McGurn - statement of town planning evidence page 13 at [65].

[18] Save Our Seat v Mornington Peninsula SC (Includes Summary) (Red Dot) [2014] VCAT 1494 & Miller v Yarra CC [2019] VCAT 493.

[19] [2019] VCAT 493.

[21] Kuhl v Frankston CC [2006] VCAT 2511.

[22] Clause 43.01-3 - fourth dot point.