For Healesville Environment Watch Incorporated & Bill Boerkamp

1. At the practice day hearing, Mr Morris, acting on behalf of Healesville Environment Watch Incorporated and Bill Boerkamp, submitted that there had been a failure by the responsible authority to give notice of the permit application to the National Trust of Australia (Victoria) and to consider the views of the National Trust before deciding on the application as required by clause 4.0 of Schedule 1 to the Significant Landscape Overlay under the Yarra Ranges Planning Scheme.
2. The subject land is included in SLO4 - Upper Yarra River and Environs under the Significant Landscape Overlay. The decision guidelines in Schedule 1 of the Significant Landscape Overlay provide that before deciding on an application, the responsible authority must consider, as appropriate:
   • The views of the National Trust of Australia (Victoria) if the land is within a 'classified' National Trust Landscape. The following landscapes are 'classified' by the National Trust:

1. Mr Morris submitted that the council's failure to give the National Trust notice meant that the Tribunal should, pursuant to section 51(2)(d) set the decision to grant a permit aside and remit the matter for reconsideration by the responsible authority in accordance with any directions or recommendations of the Tribunal.
2. I was advised that although the council had not required formal notice to be given to the National Trust under section 52 of the Planning and Environment Act 1987, the National Trust was aware of the permit application and wrote to the council a letter dated 8 June 2010 as follows:

The National Trust of Australia (Vic) has been contacted by Gadens Lawyers regarding a planning application for a golf course and associated activities at 215-217 Victoria Road, Yering. Due to its potential to compromise the heritage values of this place as a site of early European occupation, this development is of concern to the National Trust and its members. The Trust believes that a decision by the Yarra Ranges Shire to grant a permit for the development may impact on the natural and cultural heritage values of the place.

Although the place does not fall within a landscape classified by the Trust, the proposed development is within Significant Landscape Overlay 4 of the Local Planning Policy Framework. We also note that the property is listed on the Victorian Heritage Inventory (VHI). The inclusion of the VHI provides statutory protection of historical archaeological sites. It is an offence to knowingly damage, disturb or excavate these without obtaining the appropriate consent from the Executive Director of the Heritage Victoria. As such we endorse the suggestion by the Executive Director of Heritage Victoria, and by Archaeological Heritage Management Services, that a historical archaeological assessment or survey report be commissioned and peer reviewed. Due to the limited resources of the Trust we are unable to undertake further assessment at this time but are willing to assist with this review if required.

1. The contents of this letter raise an anomaly in the planning scheme because it appears that contrary to clause 4.0 of the decision guidelines under Schedule 1 of the Significant Landscape Overlay, the subject land in SLO4 is not a classified National Trust landscape.
2. Notwithstanding this, I find that the National Trust was aware of the permit application before it was decided by the council and that it expressed views about the application before it was considered by the council.
3. Nevertheless, to put the issue beyond doubt, I consider it would be in the interests of justice to exercise my discretion under clause 62 of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 to disregard any failure, if indeed there has been a failure, to seek the views of the National Trust and to formally consider those views before making a decision as required under the Significant Landscape Overlay.
4. I do not consider that there is any need to remit the matter for reconsideration by the council. In an application for review, the Tribunal stands in the shoes of the responsible authority and must consider the permit application de novo. The Tribunal has the opportunity to give notice of the permit application and these applications for review to the National Trust and to seek and consider its views (if any) before making a decision in order to ensure that the decision guidelines of the Significant Landscape Overlay are addressed. Remitting the matter to the council to reconsider would only serve to delay a decision and would be contrary to the spirit and intent of sections 97 and 98(1)(d) of the Victorian Civil & Administrative Tribunal Act 1998.
5. Consistent with the views I expressed in Waraglen Developments Pty Ltd v Maroondah CC[1], clause 62 is one of a number of powers given to the Tribunal to cure various failures, defects in procedure, expiration of time limits, prematurely or the like, which might otherwise deprive the Tribunal of jurisdiction to hear and determine a proceeding on its merits. I therefore find it is appropriate to exercise power under clause 62 in the circumstance to ensure that there is no impediment to the Tribunal considering these proceedings on their merits.

[1] [2008] VCAT 1608 at [26]