Gray v Minister for Energy, Environment & Climate Change
[2020] VSCA 121
•13 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0077
| JAMES GRAY | Applicant |
| v | |
| MINISTER FOR ENERGY, ENVIRONMENT & CLIMATE CHANGE & ORS (according to the attached schedule) | Respondents |
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| JUDGES: | TATE, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 May 2020 |
| DATE OF JUDGMENT: | 13 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 121 |
| JUDGMENT APPEALED FROM: | [2019] VSC 382 (Osborn JA) |
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TOWN PLANNING – Appeal to Trial Division from decision of Victorian Civil and Administrative Tribunal – Decision of Tribunal to refuse permit for proposed dwelling and works – Tribunal refused permit on grounds including lack of access to site, failure of plan to comply with environmental requirements and unacceptable bushfire risk – Whether judge erred in upholding finding by Tribunal that applicant did not have requisite access to site – Whether access track across unreserved Crown land adjoining site a public highway – Whether common law principles applicable to determine whether part of Crown land a public highway – Whether judge erred in concluding that section of Planning Scheme relating to bushfire risk applied to site – Whether judge erred in concluding that Tribunal correct in determining bushfire risk – Whether appeal futile if leave granted – Leave to appeal refused – Bass Coast Shire Council v King [1997] 2 VR 5 considered – Anderson v City of Stonnington [2017] VSCA 229 distinguished – Yarra Ranges Planning Scheme cls 13.02-IS, 13.05, 35.06.2, 44.06, 53.02, 65.01, 71.02.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gray in person | -- |
| For the First Respondent | Mr R Appudurai | Victorian Government Solicitor’s Office |
| For the Fourth Respondent | Mr I Munt | In house, Country Fire Authority |
TATE JA
BEACH JA
KAYE JA:
In late 2007, the applicant’s wife purchased a 3.6 hectare bush block at
585 Myers Creek Road, Healesville (‘the site’). In due course, the applicant made three successive applications for planning permits to enable the land to be used and developed as a dwelling. On each occasion, the Victorian Civil and Administrative Tribunal (‘the Tribunal’) determined that no permit should be granted. The applicant sought leave to appeal against the third decision made by the Tribunal,[1] pursuant to s 148 of the Victorian Civil and Administrative Appeal Tribunal Act 1998. The judge, who heard the application, refused the applicant leave to appeal against the decision of the Tribunal.[2] The applicant now seeks leave to appeal that decision to this Court.
[1]Department of Environment, Land, Water and Planning v Yarra Ranges SC [2019] VCAT 323 (‘Tribunal Reasons’).
[2]Gray v Minister for Energy, Environment and Climate Change [2020] VSC 382 (‘Reasons’).
The site is a vacant parcel of land that is generally rectangular in shape. It is located at the base of the Myers Creek valley with heavily vegetated, steep slopes rising in each direction. Myers Creek, which separates the site from Myers Creek Road, flows along the site’s eastern boundary. A tributary of the creek flows from west to east into and bisecting the southwest corner of the site. There is a dam located in a small cleared and benched area in the southwest corner of the site. The site is effectively landlocked. The only access to it, from Myers Creek Road, is via a 400 metre long access track (‘the access track’) that traverses unreserved Crown land. The adjoining property to the north, west and south of the site is a 61.1 hectare property which is densely vegetated.
The proposal, in respect of which the permit was sought, was to use and develop the site for a split-level, detached dwelling located in the southwest corner of the site. The dwelling was to comprise four bedrooms, a rumpus room, a cellar, a document storage room, bathroom/laundry facilities, two living rooms, a dining/kitchen area and a double garage.
The permit application, that was the subject of the proceeding in the Tribunal, was made to the second respondent, the responsible authority (Yarra Ranges Shire Council) in relation to the use and development of the site of a dwelling, outbuilding, swimming pool and vegetation removal. The first respondent (‘the Minister’) is responsible for the management of Crown land, including the parcel of unreserved Crown land which is traversed by the access track. The permit application submitted by the applicant relied on that access track for access to the site, but the Crown land was not part of the permit application.
In April 2018, the second respondent issued a Notice of Decision to Grant a Permit for the use and development of the site, subject to a number of conditions. In May 2018, the Department of Environment, Land, Water and Planning (‘DELWP’) applied to the Tribunal for review of the council’s decision.
The proposal, on the basis of which the applicant sought the permit, in fact required ten separate permits under the Yarra Ranges Planning Scheme (‘the planning scheme’), namely:
(1)
to use land for a dwelling in Rural Conservation Zone 1 (‘RCZ1’)
(cl 35.06-1);
(2)to construct a building or construct or carry out works for a dwelling in RCZ1 (cl 35.06-5);
(3)to construct a building or construct or carry out works for a dwelling in Environmental Significance Overlay 1 (‘ESO1’) (cl 42.01-2);
(4)to remove, destroy or lop vegetation in ESO1 (cl 42.01-2);
(5)to construct a building or construct or carry out works for a dwelling in Environment Management Overlay (‘EMO’) (cl 44.01-2);
(6)to remove, destroy or lop vegetation in EMO (cl 44.01-3);
(7)to construct a building or construct or carry out works for a dwelling in Bushfire Management Overlay (‘BMO’) (cl 44.06-2);
(8)
to construct a building or construct or carry out works for a dwelling
(cl 51.03-3);
(9)to remove, destroy or lop vegetation (cl 51.03-3);
(10)to remove, destroy or lop native vegetation (cl 52.17-1).
The Tribunal was required to be satisfied that each of those permits was appropriate and that the proposal as a whole was acceptable. In reaching its conclusion that the permit not be granted, the Tribunal identified three key issues pertaining to the proposal, namely, issues relating to the lack of access from Myers Creek Road to the site, issues relating to the adequacy of the plans and the environmental impact of the proposal, and issues relating to the bushfire risk.
Reasons of the Tribunal
The Tribunal commenced by considering the status of the access track across the unreserved Crown land. The Tribunal referred to cl 35.06-2 which provided that, for a lot used for a dwelling:
Access to the dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles.
The Tribunal accepted that the adjoining land was unreserved Crown land and was not a Government Road.[3] The Tribunal noted that in 1996 an agricultural licence, for grazing, was issued to a previous owner under s 130 of the Land Act 1958 and a grazing licence was issued to the applicant and his wife for a five year term from 1 October 2014 (expiring in 2019). The grazing licence only covered a portion of the access track immediately abutting the site.[4] The Tribunal also noted that in September 2017 a licence had been issued, under s 138 of the Land Act, to the applicant and his wife in respect of that part of the unreserved Crown land abutting the site for ‘access, maintenance and [native vegetation removal]’.[5] However, that licence was terminated on 14 February 2019. Accordingly, the Tribunal found, the owner of the site had no general right of access over the access track on the Crown land.[6] The Tribunal considered that the right of the public to access the Crown land for recreational purposes was different to a general right of access by the public to use the land as a road.[7] The Tribunal rejected a submission made on behalf of the applicant that the access track is a public highway both within the terms of the Local Government Act 1989 and at common law.[8] Accordingly, the Tribunal concluded that, as the Crown allotment was unreserved Crown land, the access track was not a public road or public highway, and the owner of the site did not have a general right of access over it, it followed that the access track was not a ‘road’ for the purpose of the requirement in cl 35.06-2.[9]
[3]Tribunal Reasons [58].
[4]Ibid [61].
[5]Ibid [62].
[6]Ibid [65].
[7]Ibid [74].
[8]Ibid [76].
[9]Ibid [95]–[96].
The Tribunal then considered issues relating to the adequacy of the plans for the proposed development. It noted that the RCZ is a zone that is primarily concerned with protecting and conserving rural land for its environmental features and attributes.[10] The Tribunal concluded that the proposal failed to achieve an acceptable outcome in that respect. The Tribunal stated:
[W]e consider the proposed use of the site for residential use is not sufficiently subservient to the environmental values of the site. In other words, the proposal requires too much from the site in terms of change to its environmental condition to accommodate a dwelling and associated infrastructure and fails to protect or enhance the environmental values.[11]
[10]Ibid [118].
[11]Ibid [123].
The Tribunal noted that the environmental issues of most relevance concerned the impacts of the proposal on biodiversity from the loss of vegetation, on the erosion risk arising from the extent of earthworks and ground disturbance, and on the waterway. It considered that the proposed development constituted an unacceptable outcome to the biodiversity values and waterway function due to the following factors: the removal of vegetation; changes to biodiversity; uncertainties about the site plan, in particular in relation to the proximity of the tributary of Myers Creek to the location of the dwelling, effluent disposal fields, areas required for provision of defendable space and location of the internal driveway; and impact of the proposed development on the waterway function and protection.[12]
[12]Ibid [138], [176].
Finally, the Tribunal turned to the requirements of the BMO. Under cl 44.06-2 of the BMO, a permit was required to construct buildings and works associated with accommodation, which includes a dwelling. The Tribunal considered, for a number of reasons, that the proposal was not appropriate with regard to the bushfire risk and that it did not result in an acceptable outcome in that respect.[13] In that respect the Tribunal concluded:
The site is vacant, and it appears it has not been used for residential purposes for many decades. Allowing a dwelling on a site that is heavily vegetated and surrounded by forested areas, with reliance on a 400 metre long single lane track over Crown land for primary access (although there is no legal right of access by the owner or others), and with a permit applicant who has demonstrated a degree of non-compliance with an existing access licence, means that granting a permit is not appropriate.[14]
[13]Ibid [190]–[215].
[14]Ibid [217].
Finally, the Tribunal noted that the principles of integrated decision-making, set out in cl 71.02-3, required there be a balance between the bushfire protection measures and their impact on biodiversity. Applying those principles, the Tribunal concluded that the proposal also failed to achieve the objectives of net community benefit and sustainable development for the benefit of present and future generations.[15]
[15]Ibid [224].
Appeal to Supreme Court
In his notice of appeal under s 148 of the Victorian Civil and Administrative Tribunal Act, the applicant relied on nine grounds of appeal. The judge, who heard the appeal, condensed them into five points, namely:
(a) the authority of the officers of DELWP to object to the grant of a permit and to review the decision of the local council as responsible authority to grant that permit;
(b) the status of the access track over the Crown land;
(c) the finding by the Tribunal that the proposal was incompatible with native vegetation controls;
(d) the Tribunal’s decision with respect of the requirements of the BMO;
(e) the Tribunal’s consideration of works, other than buildings, when considering the environmental impacts on waterways on and adjacent to the site.
The judge’s reasons
The judge concluded that the first point had no reasonable prospects of success, and that DELWP had authority to object to the permit application and to appeal to the Tribunal in respect of it.[16]
[16]Reasons [23].
The judge then addressed submissions by the applicant in support of the proposition that he had a sufficient right of access over the access track for the purpose of cl 35.06-2 of the planning scheme. The applicant relied on three submissions to that effect. First, the applicant submitted, members of the public have a general right of access to unreserved Crown land, and accordingly he was entitled to use and maintain the access track. The judge rejected that submission. While the public had a right of access to the land, it did not follow that the applicant had an ongoing right to maintain and use the track across it for the purpose of accessing his own land.[17] Secondly, the applicant submitted that the evidence demonstrated that the access track was a public highway, so that he had an ongoing right to use it. The judge held that the Tribunal correctly rejected that submission. The access track, on the unreserved Crown land, had not been proclaimed or reserved as a roadway in accordance with s 25 of the Land Act. Having referred to the judgment of Winneke P in Bass Coast Shire Council v King,[18] his Honour noted that reservation or proclamation is the customary method in this State for the Crown to dedicate land as a public highway. The absence of such a reservation or proclamation reinforced the conclusion by the Tribunal that the access track was not a public highway.[19]
[17]Ibid [28].
[18][1997] 2 VR 5 (‘Bass Coast’).
[19]Reasons [32]–[41].
The third way in which the applicant sought to assert a right to use the access track was based on the licence that he had previously held to use and maintain the access track for the purpose of accessing the site. The judge rejected that submission, as the Tribunal had found that the applicant did not have an existing licence entitling him to use the access track at the date of the hearing.[20]
[20]Ibid [44].
The judge next rejected the submission by the applicant that the Tribunal had erred in failing to conclude that vegetation loss and offsets had been comprehensively dealt with by the Permitted Clearing of Native Vegetation Biodiversity Assessment Guidelines 2013 (‘the 2013 Guidelines’). The judge held that the 2013 Guidelines did not themselves purport to cover the field. Further, the guidelines were incorporated into the planning scheme by cl 52.17-5, which made it clear that the decision of the Tribunal was not exclusively governed by the 2013 Guidelines.[21] The judge further noted that the site was also subject to an ESO1 and EMO, under which separate permits were required for the removal of native vegetation. His Honour held that it was open to the Tribunal to conclude that by reason of relevant policy and the application of ESO1, the extent of required clearing of native vegetation would have unacceptable environmental impacts.[22]
[21]Ibid [65]–[74].
[22]Ibid [78]–[79].
Finally, the judge rejected the submission made by the applicant that the Tribunal had erred in failing to conclude that the permit application met all the BMO requirements in the planning scheme. The judge considered that the Tribunal was entitled to have regard to the State Planning Policy Framework including the Bushfire Planning Policy set out in cl 13.02, and further, to cl 71.02-3, which required planning authorities to prioritise the protection of human life, over all other policy considerations, in bushfire affected areas. The judge noted that the applicant’s case focussed on the adequacy of the access track for emergency access. However, the Tribunal took into account the evidence that established broader risks. In particular, the Tribunal considered that it was not possible to sufficiently mitigate the bushfire risk arising from the surrounding landscape that was outside the site. His Honour considered that the Tribunal was correct to conclude that the policy under cl 13.02-1S, including the strategy under protection of human life, was unequivocal to direct that development be confined to low risk locations. The Tribunal found, on the evidence, that the site was not a low risk location.[23]
[23]Ibid [81]–[86].
Proposed grounds of appeal
The applicant seeks leave to appeal from that decision on four grounds, namely:
(1)His Honour’s finding that the Applicant did not have relevant access to the subject site, for the purposes of cl 35.06-2 Yarra Ranges Planning Scheme, was in error because it was premised upon the incorrect conclusions that:
(f) the public does not enjoy a general right of access to unreserved Crown land at common law;
(g) the access track is not a public highway at common law;
(h) the agricultural licence held by the Applicant does not include the right of access.
(2)His Honour erred in concluding clause 13.02-1S planning scheme in relation to bushfire risk applies to existing subdivisions rather than proposed subdivisions.
(3)His Honour erred in concluding there was ‘nothing wrong’ with the reasoning of the tribunal in relation to bushfire risk.
(4)His Honour erred in finding the Applicant breached his licence conditions, issued by DELWP, as referred to in [57] of the decision below.
On this application, the first respondent (the Minister) addressed each of those four proposed grounds. The fourth respondent (the Country Fire Authority) confined its submissions to ground 2. The other two respondents (the Yarra Ranges Shire Council and Melbourne Water) chose not to participate.
Futility
Before turning to each of the four proposed grounds of appeal, it is relevant, first, to consider a submission made by each of the first respondent and fourth respondent which, it was contended, constitutes an insuperable impediment to the success of this application for leave to appeal.
In essence, it was noted that the Tribunal concluded that the proposed development of the site would not produce an acceptable planning outcome. That conclusion was fatal to the success of the application for the planning permit. The applicant did not seek to impugn that conclusion by the Tribunal on appeal before the primary judge, nor on this application for leave to appeal. Thus, it was submitted, success by the applicant on this application would be futile, as it would not result in the issue to him of the permit to develop the site.
For the reasons that follow, that submission is correct. Accordingly, it follows that, regardless of the outcome of the grounds relied on by the applicant, the application for leave should be refused.
The requirement, that the proposal produce an acceptable outcome, is contained in cl 65 of the planning scheme. That clause, which is entitled ‘Decision Guidelines’, provides:
Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.
Clause 65.01 specifies a number of matters which the responsible authority must consider before deciding on an application or approval of a plan. They include: the Municipal Planning Strategy and the Planning Policy Framework; the purpose of the zone, overlay or other provision; the orderly planning of the area; the effect on the amenity of the area; factors likely to cause or contribute to land degradation, salinity or reduce water quality; the extent and character of native vegetation and the likelihood of its destruction; the degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.
The weight, and significance, to be accorded to each of those considerations (and the other considerations enumerated in cl 65.01) are essentially a matter for the relevant planning authority. As such, the decision of the authority, in relation to the acceptability of the proposal under cl 65, is akin to a discretionary judgment by it.
In Boroondara City Council v 1045 Burke Road Pty Ltd,[24] Garde AJA (with whom Warren CJ and Santamaria JA agreed) adopted the following passage from the judgment of Osborn J in Rozen v Macedon Ranges Shire Council, in which his Honour summarised the manner in which the competing considerations enumerated in cl 65 are to be evaluated:
The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. An outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others.
The weight to be given to the various considerations which may be relevant on the one hand, and to particular facts bearing on those considerations on the other hand, is not fixed by the planning scheme but is essentially a matter for the decision maker.[25]
[24](2015) 49 VR 535, 559–60 [95].
[25][2010] VSC 583, [171]–[172].
In the present case, as the primary judge noted,[26] none of the proposed grounds, on which the applicant sought to impugn the Tribunal’s decision, were directed to the conclusion by the Tribunal that the proposed use of the site, for a dwelling, was unacceptable. That conclusion by the Tribunal, was expressed as follows:
The proposal for a dwelling relates to use and development. To use land for the purposes of a dwelling is a change of use that has permanent ramifications. We consider the RCZ is a zone that does not support the use of land for a dwelling unless the impacts from an environmental perspective are minimal and the use is subservient to the zone’s purpose, which is to protect and enhance environmental values. In this case, we consider the proposed use of the site for residential use is not sufficiently subservient to the environmental values of the site. In other words, the proposal requires too much from the site in terms of change to its environmental condition to accommodate a dwelling and associated infrastructure and fails to protect or enhance the environmental values.
Our view in this regard is reinforced by the changes to policy that have occurred with both environmental issues under clause 12.01-1S – Protection of biodiversity and clause 12.03-1 – River corridors, waterways, lakes and wetlands and with respect to bushfire risk under clause 13.02-1S – Bushfire planning. The changes to these policies have, if anything, heightened the need for the proposal to address, to an acceptable level, their outcomes. We consider this has not been satisfactorily achieved in this instance.[27]
[26]Reasons [94].
[27]Tribunal Reasons [123]–[124].
As the primary judge correctly noted, that conclusion, by the Tribunal, was fatal to the permit application. As such, it was fatal to the success of the application for leave to appeal the decision from the Tribunal to the primary judge. Equally, that conclusion, by the Tribunal, would render success by the applicant, on any or all of the proposed grounds of appeal to this Court, futile.
We would add to the foregoing that there is a second reason why success by the applicant, on any or all of the proposed grounds of appeal, would nevertheless be of no avail to the applicant.
As we have noted, in order to be granted the requisite permit, the applicant needed to satisfy the requirements, specified in the planning scheme, for each of the ten permissions that we have already outlined. The applicant failed to satisfy any of those requirements before the Tribunal, for a number of reasons. In particular, his application before the Tribunal failed due to (inter alia) the Tribunal’s adverse conclusions concerning the environmental issues involved in the application, including the impact of the proposal on biodiversity from loss of vegetation, on the erosion risk arising from the extent of the required earthworks, and on the waterway. Some of those findings were the subject of the appeal by the applicant from the decision of the Tribunal to the primary judge. His Honour’s conclusions, rejecting those grounds of appeal,[28] have not been challenged on the application for leave to appeal to this Court. It follows that the Tribunal’s conclusions, that the application for the planning permit failed to comply with relevant environmental requirements, including those specified in cl 42.01, cl 44.01, cl 51.03 and cl 52.17, would constitute an insuperable obstacle to the grant of the relevant permit to the applicant.
[28]Reasons [64]–[79], [88]–[91].
Thus, if the applicant were to succeed on any or all of the proposed grounds of appeal, nevertheless the outcome of this application would not result in a reconsideration of his application for a permit by the Tribunal, or the grant of that permit. That is, success on this application would be of no utility to the applicant. For that reason alone, the application for leave to appeal must fail.
Notwithstanding that conclusion, we nevertheless consider that it is appropriate for us to deal with each of the proposed grounds of appeal, particularly in deference to the submissions that were presented in support of each of them by the applicant. We shall now proceed to do so.
Ground 1 — submissions
The applicant relied on three principal submissions in support of ground 1. First, he submitted that the conclusion by the judge failed to take into account that the applicant, as a member of the public, had a right of access to the unreserved Crown land. There is no statutory restriction on that public access. Further, he submitted, there is a longstanding custom or convention that the public had such a right of access. That right of access includes the right to drive a vehicle on the access track which is a made road. Further, it was submitted, that s 15 of the Land Titles Valuation Act 1994 confirmed the right of the public, including himself, to use that part of the unreserved Crown land for vehicular access.
Secondly, the applicant submitted that the judge erred in considering that the decision in Bass Coast had the effect of precluding the application of common law principles to the establishment of a public highway. He contended that s 25 of the Land Act does not purport to exclude the application of the common law principles to Crown land. Accordingly, he submitted, there is no reason in principle why the common law principles, discussed in Anderson v City of Stonnington,[29] do not apply to Crown land in the same manner in which they apply to private land.
[29][2017] VSCA 229 (‘Anderson’).
Thirdly, the applicant noted that at the relevant time he was in the possession of a five year agricultural licence which entitled him to graze cattle on a 20.1 metre strip of the Crown land that was located between the site and Myers Creek. The applicant noted that that licence would be of no utility if he did not, as a consequence, have a right to use the access track on which to convey cattle to that waterfront area, and to attend and supervise his cattle in that location.
In response, counsel for the first respondent noted that the right of access by members of the public to the unreserved Crown land was for the purpose of recreation. That right did not include a right to the applicant to use the access track for the purpose of providing access to the site. Counsel contended that the Tribunal, and the judge, had correctly concluded that the access track was not a public highway at common law. The Land Titles Validation Act did not expand any pre-existing rights, but, rather, was directed to preserving existing public rights following the recognition of native title rights in the decision of the High Court in Mabo v the State of Queensland [No 2] and the enactment of the Native Title Act 1993 (Cth). [30]
[30](1992) 175 CLR 1.
Counsel for the first respondent further noted that it was common ground that the access track had not been proclaimed or reserved as a roadway pursuant to s 25 of the Land Act, and accordingly the applicant could not establish that he had an ongoing right to use (and maintain) the access track to facilitate the use of the site for the purpose of a dwelling. Counsel submitted that the applicant’s contention that the principles stated in Anderson applied to the determination of whether Crown land has been dedicated as a public highway, is based on the misconception that land in that case, being owned by a statutory corporation, had not been alienated by the Crown.
Finally, counsel contended that the Tribunal was correct in its consideration of the limited scope of the agricultural licence held by the applicant under s 130 of the Land Act. In particular, the licence did not cover the balance of the unreserved Crown land, its specific purpose was for grazing, and it was subject to particular conditions.
Ground 1 — analysis and conclusion
In our view, there is no substance in the first point raised by the applicant. The circumstance, that the access track was located across unreserved Crown land, to which members of the public had a right of access, did not of itself entitle the applicant to use that track, not for that public purpose, but rather for the private purpose of having access to and from the site which was located immediately to the west of the unreserved Crown land.
The applicant sought to bolster his submission by reference to what he described, in his written case, as ‘a general longstanding custom, convention or expectation’ that the public has had access to the unreserved Crown land. However, in that respect, the Tribunal found that the evidence, given by witnesses called on behalf of the applicant, demonstrated that the access track itself had been used by members of the public for recreational purposes such as fishing, hunting and picnicking.[31] That use of the track, by members of the public, was a distinct and separate use of it to that to which the applicant claims to have a right. In essence, then, the obstacle, confronting the first part of the applicant’s submissions under ground 1, is that the right that he seeks to assert, to use the access track in order to be able to travel to and from the site, is separate, and not derived, from the general right of the public to access the unreserved Crown land for recreational and like purposes.
[31]Tribunal Reasons [73]–[74].
In that respect, the submission made by the applicant is not furthered by his reference to s 15 of the Land Titles Valuation Act. That Act was enabled by s 13A(1) of the Native Title Act. Section 15 provides that existing public access to and enjoyment was confirmed in respect of (inter alia) waterways and ‘areas that were public places at the end of 31 December 1993’. Self-evidently, that provision confirms existing rights, but does not add to or expand them. In essence, it did no more than confirm the public right to access unreserved Crown land. It did not in any way convert that right into the right that is now relied on by the applicant, namely, to use the access track as a right of roadway to and from the site.
The second principal submission made by the applicant is based on two propositions. First, it is contended that the judge erred in considering that the decision in Bass Coast departed from, or qualified, the application of common law principles relating to the establishment of a public highway. Secondly, implicit within the submissions made by the applicant is the proposition that, based on the common law principles, it should be concluded that the access track had been established as a public highway.
In our view, both of those propositions must fail.
In Bass Coast, the plaintiffs (who were the respondents in the appeal) owned a block of land, adjacent to which was a strip of Crown land that led to the street. The strip of land had been surveyed and shown on official maps as a road. Subsequently, the owner of the neighbouring property acquired land on the other side of the strip of land, and extended its premises across the strip of land. The Plaintiffs sued both the council and the owner of that property. The trial judge made declarations that the strip of land was a road within the meaning of s 205 of the Local Government Act over which the council had the care and management. The judge also made orders the effect of which was to oblige the council to keep the strip of land open for public use. On appeal, the Court of Appeal upheld the finding by the judge that the strip of land was a road, within the meaning of the Act, over which the council had the care and management.[32] However, the Court held that the judge erred in concluding that, because the council had the care and management of the land, it was required to keep it open for public use.
[32]Bass Coast [1997] 2 VR 5, 21.
In reaching the first conclusion, Winneke P, having examined the history of the declaration of public highways in the State of Victoria, concluded that the common law principles, relating to the dedication of highways, only had ‘limited relevance’ to the interpretation of the statutory provisions of Victoria.[33] His Honour noted that, in order to ensure that the development of roads proceeded in an orderly manner in the State, the Victorian Parliament had designed a process by which Crown lands, which were reserved for roads, were marked out and surveyed prior to settlement of the lands to which they were reserved. In doing so, the legislature had been careful to ensure that absolute property of roads reserved on Crown land remained with the Crown. His Honour then concluded, on that aspect of the case, as follows:
Upon this question whether there is evidence of dedication of land as a public road, a distinction has, I think, been drawn between lands offered by the Crown and lands offered by private owners. In the normal course of events the lodging of a plan of subdivision of land in the hands of a private owner is not, of itself, evidence of dedication to the public of the roadways set out on that plan. It is taken to be nothing more than an offer to dedicate such roads which can be withdrawn at any time before the public accepts the offer ... On the other hand, Mr. Shaw contends, the surveying and marking out of Crown land as roads on the plans lodged with the Surveyor-General's Department was in itself an act of dedication by the Crown of such roads to the public. The learned judge was correct, so Mr. Shaw contended, in adopting this view.
For my own part, I think that this view is correct. The learned judge found that the disputed strip had, in fact, been marked out as a road in the manner in which it was customary to mark out such roads in Crown land surveys. The evidence of Mr. Parker in this regard, accepted by his Honour, was not challenged. The question then remains whether the survey, the setting out of the road on the survey maps, and the lodging of those maps with the Surveyor-General’s Department is capable of amounting to evidence of dedication. His Honour found that it was, and I agree. It is certainly consistent with the history of the reservation of Crown land for road purposes and is also consistent with the way in which the relevant legislation in the State has defined roads on Crown land …
Mr. Uren did not contest, as I understood him, the proposition that the Crown could dedicate a road by proclamation. Indeed the fact that such would amount to an act of dedication is clear from the provisions of s. 25(3) and (4) of the Land Act itself. However it seems to me that the pegging out and surveying of roads by Crown surveyors and, then, marking them out on the official maps of the department is itself a reservation of Crown land for road purposes sufficient to amount to a dedication to the public.[34]
[33]Ibid 15.
[34]Ibid 18 (citations omitted).
Section 25(3)(c) of the Land Act provides that the Governor in Council may proclaim from time to time, by a notice published in the Government Gazette, any portion or portions of Crown lands ‘as a street or road or as a township’. Section 25(4) provides that the land upon which such street or road has been proclaimed ‘shall be and be deemed to be thenceforth dedicated to the public’.
In the present case, it was common ground that the access track had not been proclaimed or dedicated as a road in the manner prescribed by s 25 of the Land Act, or as described by Winneke P in Bass Coast. It is clear, from the judgment of the Court in Bass Coast, that in Victoria, for the reasons explained by Winneke P, the dedication of Crown land as a public highway or road is, and for much of the history of the State has been, governed by statute, such as the provisions contained in the Land Act. As Winneke P stated, the common law principles, relating to the dedication of public highways, can only have limited relevance in the construction of those provisions.
The applicant submitted that the decision of this Court in Anderson is authority for the proposition that, notwithstanding the decision in Bass Coast, the common law principles do, nevertheless, apply to Crown land in Victoria.
In Anderson, the Court was concerned with the question whether, applying common law principles, land, owned by Victorian Rail Track, constituted a ‘public highway’. Contrary to the submissions made by the applicant, that statutory corporation could not be equated with the Crown, particularly for the purpose of the question of whether land owned by it has been dedicated as a public highway. Thus, as discussed, the principles stated in Anderson would not have application to Crown land.
Further, we would note, if those principles were applicable in the present case, they would not have the effect that it could be concluded that the access track constituted a public highway.
As the Court noted in Anderson, a public highway is deemed to have been created at common law when two requirements are satisfied, namely, first, a competent land owner has manifested an intention to dedicate the land as a public highway, and, secondly, the public has accepted that dedication.[35]
[35]Anderson [2017] VSCA 229, [40].
It has been accepted, in respect of the first prerequisite, that the necessary intention may be expressed or inferred from the conduct of the land owner, in the absence of an explanation by the land owner for that conduct.[36] That proposition is subject to the qualification that evidence, that the land owner has granted a permission or licence to the public, to use the land in a particular manner or for a particular purpose, will negate such an intention.[37]
[36][37]Ibid 858 (Griffith CJ).
Further, in order to infer the requisite intention, it is necessary to focus, with some precision, on the nature of the general use to which the public has put the land. In Newington v Windeyer, McHugh JA (with whom Kirby P and Hope JA agreed) expressed that reservation in the following terms:
Dedication to the public may also be presumed from uninterrupted user of the road by the public … But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public.[38]
[38](1985) 3 NSWLR 555, 559 (citations omitted).
In the present case, there would be at least two obstacles to acceptance of the contention by the applicant that there had been a dedication of the access track, as a public highway, according to common law principles, assuming those principles otherwise applied. First, it would seem that apart from the use made of the track by the applicant, and possibly, in previous times, earlier occupants of the site, the use the public had made of the track was different to that of a public highway. As already discussed, the track was used by members of the public for recreational purposes. It could not be inferred, from that permitted use of the Crown land, that the owner of the land ( the Crown) thereby intended the track to be used as a public highway. Secondly, the evidence, that the applicant had previously used the access track pursuant to a licence issued to him by DELWP, was inconsistent with the dedication of that track as a highway for the purpose of common law principles.
In summary, then, contrary to the submissions made by the applicant, the judge was correct in proceeding on the basis that, as a result of the decision of the Court in Bass Coast, the common law principles relating to the dedication of a highway are not applicable. Secondly, assuming that those principles did have application, the Tribunal (and the judge) each correctly concluded that the track had not been dedicated as a public highway in accordance with those principles.[39]
[39]Tribunal Reasons [85]; Reasons [41].
The third contention, relied on by the applicant in support of Ground 1, must also be rejected. The fact that the applicant held an agricultural licence for grazing land adjacent to Myers Creek, could not logically support the proposition that, as such, he had a right to use the access track for the purpose of travelling to and from the site. The land covered by the licence did not extend to Myers Creek Road. Further, the holding by the applicant of that licence did not, by some necessary inference, have the consequence that he was thus entitled to use the access track for the purposes contended for.
For those reasons, Ground 1 of the application for leave to appeal must be refused.
Ground 2 — submissions
Ground 2 is addressed to the question of the application of cl 13.05 of the State Planning Policy Framework to the proposed development of the site by the applicant.
Clause 13.05-1 is entitled ‘Bushfire Planning’. Under the subheading ‘Objective’ it states:
To strengthen the resilience of settlements and communities to bushfire through risk-based planning that prioritises the protection of human life.
Clause 13.05-1 provides that the policy, contained in it, must be applied to all planning and decision-making under the Planning and Environment Act 1987 relating to land which is (inter alia) subject to a Bushfire Management Overlay.
Under the subheading ‘Strategies’ it is stated:
Protection of human life
Give priority to the protection of human life by:
•Prioritising the protection of human life over all other policy considerations.
•Directing population growth and development to low risk locations and ensuring the availability of, and safe access to, areas where human life can be better protected from the effects of bushfire.
•Reducing the vulnerability of communities to bushfire through the consideration of bushfire risk in decision-making at all stages of the planning process.
In support of ground 2, the applicant submitted that the judge erred in concluding that cl 13.02-1S applies to existing parcels of land rather than to proposed settlements and subdivisions. It was submitted that cl 13.02-1S must be understood in a manner that is consistent with the Planning Advisory Note No 68 issued by DELWP in March 2018 (‘the Planning Advisory Note’). The applicant noted that the Planning Advisory Note states that new settlements and new subdivisions should be directed to low risk locations. Therefore, he submitted, that injunction does not apply to existing parcels of land eligible for residential construction. He submitted that the relevant provision applicable to that land is outlined in cl 52.47, which (he contended) the applicant’s proposal ‘comfortably met’. The applicant further submitted that on its face the Planning Advisory Note indicated that cl 13.05 was intended to apply to the development of planning strategies by planning authorities, and not to the determination of particular planning applications made to planning authorities.
In response, it was submitted on behalf of the first respondent that the Planning Advisory Note does not contain any provision that cl 13.02-1S of the scheme should not be applied when considering applications to develop existing parcels of land that are eligible for residential construction. Further, it was submitted, the Note could not in any event affect the interpretation of the scope and effect of cl 13.02-1S.
On behalf of the fourth respondent (the Country Fire Authority), it was submitted that there was nothing in the planning scheme which confined cl 13.02-1S solely to applications for permission for new settlements or new subdivisions. On the contrary, the purposes and decision guidelines of the BMO, and cl 53.02 of the scheme, both require consideration of the Planning Policy Framework, which includes cl 13.02-1S. The express purposes of cl 53.02 include ensuring that the development of land prioritises the protection of human life, which is the objective of the policy stated in cl 13.02-1S. Counsel for the fourth respondent submitted that to confine the policy in cl 13.02-1S solely to decisions as to new settlements or new subdivisions would be antithetical to the express language of that clause, of the BMO and of cls 53.02 and 71.02 of the planning scheme. In addition, it would substantially undermine the objective of cl 13.02-1S for guiding decision-making under the Planning and Environment Act for land situated in the BMO. Finally, it was submitted, there is nothing in the Planning Advisory Note which is inconsistent with, or contradicts, cl 13.02-1S. In any event, the Planning Advisory Note is not part of the planning scheme and cannot undermine or qualify the express language of the scheme.
Ground 2 – analysis and conclusion
The basic premise, relied on by the applicant in support of ground 2, is that the words of cl 13.02-1S are qualified or affected by the Planning Advisory Note, so that the clause does not apply to existing parcels of land eligible for residential construction. For the reasons that follow, we do not accept that premise. Further, and in any event, apart from cl 13.02-1S, other provisions of the planning scheme also required the Tribunal to prioritise human life and safety.
In examining the relevant provisions of the planning scheme, two points emerge. First, a number of provisions of the scheme expressly incorporate, without qualification, the provisions of cl 13.02-1S. Secondly, a number of those provisions, of themselves, emphasise that priority is to be given to human life and safety by the responsible authority.
Clause 44.06 of the planning scheme is entitled ‘Bushfire Management Overlay’. It prescribes the purpose of the BMO in the following terms:
Purpose
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To ensure that the development of land prioritises the protection of human life and strengthens community resilience to bushfire.
To identify areas where the bushfire hazard warrants bushfire protection measures to be implemented.
To ensure development is only permitted where the risk to life and property from bushfire can be reduced to an acceptable level.
Clause 44.06-2 provides that a permit is required to construct a building or to carry out works associated with (inter alia) accommodation. Clause 44.06-4 provides that an application must meet the requirements of cl 53.02. Clause 44.06-8 provides that before deciding an application the responsible authority must consider as appropriate (inter alia) the Municipal Planning Strategy and the Planning Policy Framework.
Clause 53.02 is entitled ‘Bushfire Planning’. It is the successor to the previous clause 52.47, that is referred to in the decision of the Tribunal. Three of the five specified purposes, under cl 53.02, replicate the first, second and fourth purposes specified by cl 44.06. Relevantly, they include the purpose of ensuring that the development of land ‘prioritises the protection of human life‘. Clause 53.02-4.5 (again) requires the responsible authority to consider the Municipal Planning Strategy and the Planning Policy Framework.
Clause 71.02-2 provides that the ‘Planning Policy Framework sets out the planning policies that form part of this planning scheme. It comprises Clauses 10 to 19’. That is, cl 71.02-2 expressly incorporates, as the Planning Policy Framework provides, cl 13. Clause 71.02-3 requires planning authorities to integrate the range of planning policies relevant to the issues to be determined and to balance conflicting objectives in favour of net community benefit. It ends with the following rider:
However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.
The foregoing analysis of the relevant provisions of the planning scheme makes clear the two points we outlined earlier. First, the provisions to which we have referred expressly incorporate cl 13.02-1S without qualification. Secondly, by their own force, the provisions also emphasise that in bushfire prone areas, the responsible authority must give priority to the protection of human life.
It is in that context that we turn to the submissions by the applicant that the Planning Advisory Note in some way either qualified cl 13.02-1S, or excluded it from applying to the determination of individual planning permit applications.
The submissions must be rejected for two reasons. First, the provisions of the planning scheme, including cl 13.02-1S, have legal effect by virtue of Part 2 the Planning and Environment Act. There is nothing in the provisions of the scheme which confines the application of cl 13.02-1S to proposals for new settlements or new subdivisions. A Planning Advisory Note is not part of the planning scheme. It cannot affect or qualify the language or the legal effect of the clauses contained in the scheme, including cl 13.02-1S.
Further, and in any event, the Planning Advisory Note does not, by its terms, seek to restrict or confine the operation of cl 13.02-1S, or any other provision of the planning scheme, in the manner contended for on behalf of the applicant. In the passage relied on by the applicant, the Note refers to the objective of bushfire planning policy to strengthen resilience and prioritise the protection of human life. It then notes that the amendment (which incorporated cl 13.02-1S) introduced ‘strategies to better identify, assess and manage bushfire hazards through the planning process’. The reference, in that part of the Planning Advisory Note, to the use of cl 13.02-1S, to inform the development of appropriate strategies, did not expressly or impliedly mean that the operation of the clause is confined to the development of strategies. In particular, it did not purport to exclude the application of the clause to the approval of individual planning proposals. Nor, as a matter of legal principle, could it.
For those reasons, ground 2 of the application must fail.
Ground 3 – submissions
Ground 3 is directed to the conclusion by the judge that there was no error in the determination by the Tribunal that the proposal by the applicant was not appropriate with regard to the bushfire risk and that it did not constitute an acceptable outcome in that respect.
In his written case, the applicant submitted that in reaching that conclusion, the judge failed to take into account that the Tribunal ‘took almost no notice’ of cl 52.47 of the planning scheme, that it ‘took no notice’ of the fact that the Country Fire Authority did not oppose the planning application, and that it ‘took almost no notice’ of the evidence of the only bushfire expert called before the Tribunal, Mr Hamish Allen, that the planning application met and exceeded the requirements of the planning scheme relating to bushfire safety. In his oral submissions, the applicant sought to elaborate those contentions, by referring to some of the evidence that was given before the Tribunal, including the evidence of Mr Allen, and the report that he had prepared and which was tendered in evidence before the Tribunal. It was submitted that the evidence demonstrated that the proposal complied with all of the technical requirements prescribed by the relevant provisions of the planning scheme, including cl 44.06-3 and cl 52.47.
In response counsel for the first respondent submitted that contrary to the assertion of the applicant, the Tribunal did consider the relevant provisions of the planning scheme, including cl 52.47. He contended that the Tribunal made a comprehensive assessment of the evidence that was relevant to those provisions, and that it determined that, in the event of a bushfire, the protection of lives, including those of the applicant, his family and visitors, and, importantly, first responders, could not be adequately assured.
Ground 3 – analysis and conclusion
Ground 3 of the application is directed to the rejection by the judge of the ground that was contained in paragraph 17 of the Notice of Appeal by the applicant from the Tribunal to the Supreme Court, namely:
VCAT erred in law in failing to conclude the permit application met all the Bushfire Management Overlay requirements in the Yarra Ranges Planning Scheme and there was no evidence or basis for a contrary finding.
That ground, and the submissions made to this Court in support of ground 3, were based on the proposition that the Tribunal was bound to conclude, on the evidence before it, that the permit application complied with all of the Bushfire Management Overlay requirements. In other words, as expressed in the grounds of appeal from the decision of the Tribunal, it was submitted that there was no basis in the evidence for a finding by the Tribunal that the proposal did not comply with those requirements.[40]
[40]Cf S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA).
The ground, and the submissions made on behalf of the applicant in support of it, are thus based on two underlying propositions, namely, that it was both necessary and sufficient for the permit proposal to comply with the technical requirements prescribed in the BMO, and, secondly, that the evidence before the Tribunal compelled the conclusion that those requirements had been properly met. For the reasons that follow, both of those propositions lack an appropriate basis.
The review that we undertook under ground 2, of the applicable provisions of the planning scheme relating to bushfire risk and of the requirements of the BMO, make it clear that the relevant provisions of the planning scheme do not prescribe a set of precise prescriptions, compliance with which is both necessary and sufficient for the grant of a permit. Rather, the applicable provisions required the assessment by the planning authority (in this case the Tribunal) of the relevant risks of fire associated with the planning proposal, taking into account, in particular, the priority that the planning scheme, by its provisions, accords to the protection of human life.
As we have already noted, cl 44.06 provides that a purpose of the BMO was to ensure that the development of land prioritises the protection of human life. Clause 44.06-3 requires that an application must be accompanied by a Bushfire Hazard Site Assessment, a Bushfire Hazard Landscape Assessment, and a Bushfire Management Statement. Clause 53.02-4.1, under the heading ‘Landscape, siting and design objectives’ prescribes (inter alia) the following requirements:
Development is appropriate having regard to the nature of the bushfire risk arising from the surrounding landscape.
Development is sited to minimise the risk from bushfire.
Development is sited to provide site access for vehicles, including emergency vehicles.
Building design minimises vulnerability to bushfire attack.
Self-evidently, each of those requirements, and other provisions contained in the planning scheme, required the planning authority (in this case the Tribunal) to undertake an evaluative assessment of a number of aspects which informed its judgment as to the degree of bushfire risk associated with the proposed development. Plainly, that assessment could not be properly or validly conducted by adopting an automated or formulaic approach to the various requirements prescribed by the relevant provisions of the planning scheme. As the Tribunal correctly observed:
[P]lanning for bushfire is not a ‘tick the box’ approach. Certainly, achieving compliance with the approved measures meets objectives under the clause and is very helpful in decision making, however any proposed use and development must also satisfy the policy framework, which guides decision making.[41]
[41]Tribunal Reasons [214].
An analysis of the Tribunal’s reasons reveals that in accordance with those principles, the Tribunal adopted an appropriate approach to its evaluation of the applicant’s proposal. In undertaking that evaluation, the Tribunal noted in particular the degree of risk associated with not only the site, but also the landscape in which it was located. In that respect, the Tribunal noted that the applicant’s own expert, Mr Allen, had reservations about the safety of the site, given its location. In particular, the Tribunal, in its reasons, stated:
In Mr Allen’s view, landscape factors were more important than site factors. When pressed, he would not say he was comfortable to endorse this site for development. He would not say that this was a development that ‘appropriately’ protects human life.[42]
[42]Ibid [184].
The Tribunal further noted that the parties themselves agreed that ‘the site presents an extreme bushfire risk’ as it is heavily vegetated and had a steeply undulating hillside topography.[43] The Tribunal also noted that the ‘broader landscape response with regards to bushfire behaviour is something the permit applicant cannot influence’.[44] In particular, it noted that the ability to mitigate the bushfire risk to an acceptable level from the landscape beyond the site is ‘largely ineffectual’, and that Mr Allen had admitted under questioning that the ability to manage the surrounding bush was ‘problematic’.[45] The Tribunal also noted that the site does not have direct access to Myers Creek Road, and that it relies on the access track for that purpose.[46]
[43]Ibid [186].
[44]Ibid [195].
[45]Ibid [196]–[197].
[46]Ibid [191].
The Tribunal then considered the objective, of giving priority to the protection of human life, under cl 13.02-1S. It noted that although the proposal provided for the creation of an on-site defendable space equivalent to a BAL 29 rating, nevertheless it did not accept that that measure was sufficient to produce an acceptable outcome with regards to the bushfire risk and the protection of human life.[47]
[47]Ibid [211].
Ultimately, it was based on the combination of the matters to which we have just referred that the Tribunal concluded that the proposal was not appropriate with regards to bushfire risk and that it did not in that way result in an acceptable outcome.[48]
[48]Ibid [213].
As the foregoing analysis of the Tribunal’s decision reveals, the Tribunal did properly consider the relevant provisions of the planning scheme which related to its determination of the relevant bushfire risk associated with the applicant’s proposal. Further, the Tribunal reached its conclusion, that the proposal involved an unacceptable risk to human life, based on its evaluation of a combination of factors, including the lack of appropriate access to the site, the hazard relating to the topography and vegetation of the site itself, and, significantly, the hazard posed by the surrounding landscape in which the site was located, and the inability of the applicant to measurably alleviate that hazard. As we have discussed, that approach, by the Tribunal to its evaluation of the bushfire risk attached to the proposal, was correct and in conformity with the relevant provisions of the planning scheme to which we have referred.
Contrary to the submissions made on behalf of the applicant, the Tribunal did address the content of the evidence given by Mr Allen, and understandably gave particular weight to the concessions made by Mr Allen as to the nature and degree of the bushfire risk associated with the proposal. Further, contrary to the submissions made on behalf of the applicant, the Tribunal did adequately consider and take into account the recommendations by the Country Fire Authority. In doing so, it noted that the Authority recognised that the site is in an area that has the potential for ‘extreme landscape bushfire behaviour’, and that that risk was possible ‘from all directions of the site’. The Tribunal also noted that the Country Fire Authority recognised that the site had limited access and egress options and that a bushfire, affecting the site, could present as a ‘rapid onset fire event’.[49] While the Country Fire Authority did not oppose the planning application before the Tribunal, nevertheless that assessment by the Authority, and the conditions that it attached to its permit, were relevant, and given appropriate weight by the Tribunal in its evaluation of the bushfire risk associated with the proposal.
[49]Ibid [187].
It follows, from the foregoing, that the Tribunal properly took into account the relevant provisions of the planning scheme, and the factors pertaining to the site that informed an evaluation by it of the bushfire risk associated with the development of the site as proposed by the applicant. Consequently, contrary to ground 3, the judge did not err in concluding that the Tribunal had correctly applied the provisions of the planning scheme to the assessment of the bushfire risk associated with the proposal. Accordingly, ground 3 must fail.
Ground 4
By ground 4, it is contended that the judge erred in ‘finding’ that the applicant had breached the conditions of the licence, that had been issued to him by DELWP, to use the access track. In support of that ground, the applicant noted that in the hearing before the Tribunal there was no allegation by DELWP that the applicant had breached the terms of that licence, and that there was no finding by the Tribunal that any such breach had occurred.
In the course of his reasons, the judge considered the evidence as to whether the applicant had access to the site. His Honour referred to a letter written by DELWP to council and copied to the applicant on 19 March 2009 stating that DELWP was prepared to issue the applicant a licence to use the access track for ‘egress, ingress and regress’. The judge noted that that letter could not permanently estop the Minister or DELWP from considering subsequent permit applications on the merits.[50] He further noted that the letter did not purport to authorise ongoing native vegetation removal without which the access track could not satisfy the relevant requirements of the current planning scheme. His Honour then stated:
In addition, the letter could not be taken to authorise ongoing use of the track without continuing compliance with licence conditions. In the circumstances with which the Tribunal was confronted the applicant had forfeited the continuation of a licence issued to him by reason of the breach of conditions.[51]
[50]Reasons [54].
[51]Ibid [57].
It was not in dispute, before this Court, that the reason why DELWP had cancelled the access licence previously granted to the applicant was not due to any breach of the conditions of the licence. However, that misconception in the judge’s reasons did not logically affect or invalidate his Honour’s conclusions that the Tribunal was correct to conclude that the applicant had not established a right of access that was sufficient to satisfy cl 35.06-2 of the planning scheme.[52] As noted by counsel for the first respondent, the uncontradicted evidence before the Tribunal was that the licence had been cancelled and that no other such licence had been granted to the applicant when the Tribunal made its decision. Further and in any event, the judge proceeded to endorse the view of the Tribunal that an annual licence (such as the 2017 licence) was insufficient to constitute satisfactory access for the purpose of the requirements of that clause of the planning scheme.[53]
[52]Ibid [48].
[53]Ibid [58].
Accordingly, the incorrect observation by the judge, that the licence had been cancelled due to breach by the applicant of its conditions, was not relevant to the Tribunal’s conclusions, or his Honour’s endorsement of that conclusion, relating to the lack of necessary access of the site to Myers Creek Road. Thus, the error did not vitiate the decision of the Tribunal, nor his Honour’s conclusion in relation to it.
It follows that ground 4 of the application does not succeed.
Summary of conclusions
For the foregoing reasons, the applicant has not succeeded on any of the four proposed grounds of appeal. In addition, as we earlier explained, success by the applicant on those grounds would have been of no utility to the applicant, as such success would not have resulted in the setting aside of the decision by the Tribunal not to grant the permit to him.
Accordingly, the application for leave to appeal must be refused.
- - -
SCHEDULE OF PARTIES
| JAMES GRAY | Applicant |
| and | |
| MINISTER FOR ENERGY, ENVIRONMENT & CLIMATE CHANGE | First Respondent |
| YARRA RANGES SHIRE COUNCIL | Second Respondent |
| MELBOURNE WATER | Third Respondent |
| COUNTRY FIRE AUTHORITY | Fourth Respondent |
President of the Shire of Narracan v Leviston (1906) 3 CLR 846, 856-8 (Griffith CJ), 868-9
(Barton J), 872 (O’Connor J).
4
3
0