W Everton Park Pty Ltd v Minister for Planning

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2020 01443

W EVERTON PARK PTY LTD (ACN 067 891 829), LINDSAY FOX, and PAULA FOX	Plaintiffs
v
MINISTER FOR PLANNING	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 7 June 2021 Further written submissions received 15 June 2021 and 22 June 2021
DATE OF JUDGMENT:	5 August 2021
CASE MAY BE CITED AS:	W Everton Park Pty Ltd v Minister for Planning
MEDIUM NEUTRAL CITATION:	[2021] VSC 465

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ADMINISTRATIVE LAW – Judicial review – Plaintiffs own private land extending into the Public Conservation and Resource Zone – Amendment VC115 to Victoria Planning Provisions and all planning schemes in Victoria, amending planning controls affecting private land in the Public Conservation and Resource Zone – Minister’s decision under s 20(4) of the Planning and Environment Act1987 (Vic) to exempt himself from notification requirements of ss 17, 18 and 19 – Minister’s decision under s 4C to approve amendment – Plaintiffs claim declarations that Minister’s decisions are invalid and of no legal effect – Whether in making exemption decision Minister had regard to irrelevant considerations or failed to consider relevant matters – Whether Minister made decisions for improper purposes – Whether amendment complied with Ministerial direction under s 7(5) as to form and content of planning schemes – Whether amendment conferred absolute and unreviewable power on Secretary, repugnant to Planning and Environment Act 1987 (Vic) – Whether amendment amounted to acquisition by subterfuge – Minister’s decisions not invalid – Proceeding dismissed – Planning and Environment Act 1987 (Vic), ss 4B, 4C, 4J, 6, 7, 8, 12, 20(4), 149.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr SR Morris QC with Mr R Chaile	Rigby Cooke Lawyers
For the Defendant	Mr CJ Horan QC with Ms EHI Smith	Matthew Hocking, Victorian Government Solicitor

HER HONOUR:

In August 1983, Lindsay and Paula Fox became the registered proprietors of a block of land in Portsea, Victoria. An associated company, W Everton Park Pty Ltd, became the registered proprietor of an adjoining block of land in June 1995. The north-eastern boundaries of both blocks – the Fox land – front Point King beach on Port Phillip Bay.

The Fox land title is unusual, in a State in which 96 per cent of coastal land is in public ownership.[1] The original Crown grant in 1872 described the beach boundary of the land by reference to ‘the margin of Port Phillip Bay’. As a result, the beach boundary of the Fox land is ambulatory – that is, it moves with the natural movement of the mean high water mark over time.
[1]Victorian Coastal Strategy 2008, 8.

In December 2013, the Registrar of Titles acceded to an application by the Fox parties[2] to correct the description of the Fox land in the Register,[3] in accordance with a recent survey plan. The Registrar was satisfied that the mean high water mark at Point King beach had moved, gradually, imperceptibly and as a result of natural processes. He was also satisfied that ‘the doctrine of accretion applies to extend the land held by [the Fox parties] to the mean high water mark’ shown on the recent survey ‘and as it varies naturally from time to time’. The Register was corrected to show the beach boundary of the Fox land almost 50 metres further to the north-east than had previously been recorded.
[2]The plaintiffs are referred to in this judgment as the Fox parties.
[3]The Register of land kept under s 27 of the Transfer of Land Act 1958 (Vic).

The correction to the Register did not affect the zoning of the land under the Mornington Peninsula Planning Scheme. The ‘beach land’ that was newly shown in the Register as part of the Fox land remained within the Public Conservation and Resource Zone or PCRZ. The balance of the Fox land was zoned Residential 1, now General Residential. Figure 1 shows the zoning maps for both properties, with the title boundaries extending into the PCRZ.

Figure 1: Extracts of Planning Property Reports for the Fox land, prepared by Department of Environment, Land, Water and Planning dated 20 November 2020.

On 28 March 2014, the Minister for Planning amended the Victoria Planning Provisions (VPPs) and all planning schemes in Victoria in relation to the Public Conservation and Resource Zone (Amendment VC115). This involved two decisions that are the subject of this proceeding:

(a) the Exemption Decision, by which the Minister exempted himself under s 20(4) of the Planning and Environment Act 1987 (Vic) (Planning Act) from the notification requirements of ss 17, 18 and 19 of the Planning Act in relation to Amendment VC115; and

(b) the Amendment Decision, a decision pursuant to s 4C of the Planning Act, to approve Amendment VC115.

Notice of the Minister’s approval of Amendment VC115 to the VPPs was published in the Victorian Government Gazette on 4 April 2014, and came into operation on that day. This had the effect of amending every planning scheme in Victoria, including the Mornington Peninsula Planning Scheme, so that a number of uses and developments of land in the PCRZ would in future require a permit. It also imposed a requirement that, where there is no public land manager for the land, an application for a permit must be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries.[4]
[4]Now the Secretary to the Department of Environment, Land, Water and Planning or DELWP.

In May 2018, the Fox parties requested the Mornington Peninsula Shire Council to amend the Mornington Peninsula Planning Scheme to rezone the beach land from PCRZ to General Residential. The Council declined this request in December 2018. Subsequently, during 2020, the Fox parties asked the Secretary for written consent to an application for a planning permit to lay buffalo turf and install an irrigation system on the beach land. Consent was given in a letter dated 1 April 2021.[5]
[5]A letter of consent was provided on 7 May 2020 by the Associate Secretary of DELWP, a temporary position introduced in response to the COVID-19 pandemic. Following a query from the Mornington Peninsula Shire Council, it emerged that the Associate Secretary did not hold the necessary delegation to give consent. The Fox parties repeated their request for consent in a letter from their solicitors dated 9 December 2020, and consent was given by the Secretary of DELWP in a letter dated 1 April 2021.

The Fox parties commenced this proceeding by writ on 23 March 2020. They seek declarations that both the Exemption Decision and the Amendment Decision are invalid and of no legal effect. Further or alternatively, they seek a declaration that the Amendment Decision involved an ‘acquisition by subterfuge’ of the beach land, and damages to compensate them for that acquisition.

The Fox parties contended that the Exemption Decision was invalid because:

(a) the Minister had regard to irrelevant considerations in exercising his power under s 20(4) of the Planning Act;

(b) the Minister failed to consider matters relevant to the exercise of his power to which he was obliged to have regard; and

(c) the Minister made the Exemption Decision for improper purposes.

They contended that the Amendment Decision was invalid because:

(a) the Exemption Decision was invalid;

(b) the Amendment Decision was made for improper purposes;

(c) the Minister did not comply with his Direction on the form and content of planning schemes, issued under s 7(5) of the Planning Act; and

(d) Amendment VC115 impermissibly conferred power on the Secretary.

In the alternative, the Fox parties claimed that the Amendment Decision deprived them of the beneficial use of the beach land, and was an acquisition by subterfuge.

The Minister’s position was that both the Exemption Decision and the Amendment Decision were valid, and did not involve any acquisition of the Fox land. He further argued that the relief claimed by the Fox parties should be refused due to their unexplained delay in commencing the proceeding.

For the reasons that follow, I have concluded that:

(a) the Minister did not have regard to irrelevant considerations or overlook any mandatory relevant consideration when making the Exemption Decision;

(b) neither the Exemption Decision nor the Amendment Decision was made for an improper purpose;

(c) the Minister had regard to the Direction, and did not fail to comply with it, in preparing and approving Amendment VC115;

(d) the power conferred on the Secretary by the amendment is not repugnant to the Planning Act; and

(e) Amendment VC115 did not involve an acquisition or reservation by subterfuge of the beach land.

As a result, the proceeding must be dismissed.

Planning Act – relevant provisions

The Exemption Decision and the Amendment Decision were made in March 2014. Unless otherwise indicated, the provisions of the Planning Act set out in the following paragraphs are from Authorised Version No. 111 of the Planning Act, incorporating amendments as at 1 December 2013.

The purpose of the Planning Act is ‘to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians’.[6] Section 4(1) sets out the objectives of planning in Victoria, which include:

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;
(b)to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
…
(g)to balance the present and future interests of all Victorians.

[6]Planning and Environment Act 1987 (Vic) (Planning Act), s 1.

Section 4(2) sets out the objectives of the planning framework established by the Planning Act, relevantly:

(a)to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;
(b)to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;
(c)to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;
…
(f)to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;
(g)to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;
(h)to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;
(i)to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;
(j)to provide an accessible process for just and timely review of decisions without unnecessary formality;
…

Part 1A of the Planning Act concerns the VPPs. As provided in s 4A(1), these are a set of standard planning provisions prepared and approved by the Minister, to assist in providing a consistent and co-ordinated framework for planning schemes in Victoria. They may contain any matter which may be included in a planning scheme.[7]
[7]Planning Act, s 4A(2).

Section 4B provides for the preparation of an amendment to the VPPs:

4B Amendment of Victoria Planning Provisions
(1) The Minister may at any time prepare an amendment to the Victoria Planning Provisions.
(2) The Minister may authorise any other Minister or any public authority or municipal council to prepare an amendment to the Victoria Planning Provisions.
(3) Subject to subsection (4), sections 17 to 34 and Part 8 apply to the preparation of an amendment to the Victoria Planning Provisions as if—
(a) the amendment were an amendment to a planning scheme prepared under Part 3; and
(b) the Minister or the authorised body or person were the planning authority.

(4) Sections 21(3), 22(3), 23(3) and 25(3) do not apply to the preparation of an amendment to the Victoria Planning Provisions.

An amendment prepared under s 4B may be approved by the Minister under s 4C:

4C Approval of amendment
(1) The Minister may—
(a) approve an amendment or part of an amendment to the Victoria Planning Provisions prepared by the Minister or submitted to the Minister under section 4B—
(i) with or without changes; and
(ii) subject to any conditions the Minister wishes to impose; or

(b) refuse to approve the amendment or part of the amendment.

(2) If the Minister approves only part of an amendment to the Victoria Planning Provisions that part becomes a separate amendment.
(3) The Minister may approve further parts of an amendment to the Victoria Planning Provisions at any time.

The Minister must publish notice of the approval of an amendment to the VPPs in the Government Gazette.[8] The amendment comes into operation on publication of the notice of approval, or on any later day specified in the notice.[9] The notice of approval must be laid before each House of Parliament, either of which may revoke the amendment by resolution.[10]
[8]Planning Act, s 4D.
[9]Planning Act, s 4E.
[10]Planning Act, ss 4F, 38.

Section 4J provides for the amendment of planning schemes by the VPPs:

4J Amendment of planning schemes by Victoria Planning Provisions
(1) An amendment to the Victoria Planning Provisions may also provide for an amendment to one or more specified planning schemes.
(2) On the approval of an amendment to the Victoria Planning Provisions which provides for an amendment to a planning scheme, the amendment to the planning scheme is deemed to be approved under Part 3.
(3) The notice of the approval of the amendment to the Victoria Planning Provisions given under section 4D is deemed also to be notice of the approval under Part 3 of each amendment of a planning scheme provided for in the amendment to the Victoria Planning Provisions.
(4) An amendment to a planning scheme provided for in an amendment to the Victoria Planning Provisions comes into operation—
(a) when the amendment to the Victoria Planning Provisions comes into operation; or
(b) on any later day or days specified in the notice of approval of the amendment to the Victoria Planning Provisions given under section 4D.

(5) Part 3 (except Divisions 1 and 2 and sections 29 to 37) applies to an amendment to a planning scheme provided for in an amendment to the Victoria Planning Provisions.
(6) Nothing in section 8 limits the power of a person authorised under section 4B to prepare an amendment to a planning scheme under this section.

Part 2 of the Planning Act provides for planning schemes. Section 6 sets out what may be included in a planning scheme:

6 What can a planning scheme provide for?
(1) A planning scheme for an area—
(a) must seek to further the objectives of planning in Victoria within the area covered by the scheme; and
(aa) must contain a municipal strategic statement, if the scheme applies to the whole or part of a municipal district; and
(b) may make any provision which relates to the use, development, protection or conservation of any land in the area.

(2) Without limiting subsection (1), a planning scheme may—
(a) set out policies and specific objectives;
(b) regulate or prohibit the use or development of any land;
(c) designate land as being reserved for public purposes;
(d) include strategic plans, policy statements, codes or guidelines relating to the use or development of land;
…
(fa)designate a Minister, public authority or municipal council as an acquiring authority for the purposes of this Act for land reserved for public purposes;
…
(h)require specified things to be done to the satisfaction of the responsible authority a Minister, public authority, municipal council or referral authority;
(ha)require specified information to be provided with an application for a permit;
(hb)set out different procedures for particular classes of applications for permits;
…

A planning scheme must be structured in accordance with s 7, with State standard provisions, selected from the VPPs, and local provisions. Section 7 also provides for Ministerial directions as to the form and content of planning schemes, as follows:

(5)The Minister may issue directions or guidelines as to the form and content of any planning scheme or planning schemes.
(6)A planning authority must comply with a direction of a Minister under subsection (5).

A planning scheme is prepared and may be amended by a ‘planning authority’. A municipal council is a planning authority for a planning scheme in force in its municipal district.[11] The Minister is a planning authority for every planning scheme, as provided in s 8:
[11]Planning Act, s 8A.

8 Minister is planning authority
(1) The Minister may prepare—
(a) a planning scheme for any municipal district or other area of Victoria; or
(b) amendments to any provision of a planning scheme.

(2) The Minister is a planning authority under this Act.
(3) This Act applies to a planning scheme prepared by the Minister as if it were an amendment to a planning scheme.

Section 12 sets out the duties and powers of planning authorities, relevantly:

12 What are the duties and powers of planning authorities?
(1) A planning authority must—
(a)implement the objectives of planning in Victoria;
(b)provide sound, strategic and co-ordinated planning of the use and development of land in its area;
(c)review regularly the provisions of the planning scheme for which it is a planning authority;
(d)prepare amendments to a planning scheme for which it is a planning authority;
…

(2)In preparing a planning scheme or amendment, a planning authority—
(a)must have regard to the Minister’s directions; and
…

Sections 17, 18 and 19 of the Planning Act require a planning authority to exhibit and give notice of any amendment it has prepared to a planning scheme. Section 19(1) requires a planning authority to give notice to the persons specified, including the owners and occupiers of land that the planning authority believes may be materially affected by the amendment.[12] If a planning authority considers that the number of owners and occupiers affected makes it impractical to notify them individually, it may instead take reasonable steps to ensure that public notice of the proposed amendment is given in the area affected by the amendment.[13]
[12]Planning Act, s 19(1)(b).
[13]Planning Act, s 19(1A), (1B).

Section 20 identifies some exemptions from these notice requirements. In particular, s 20(4) provides:

The Minister may exempt himself or herself from any of the requirements of sections 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepares, if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

Where notice of an amendment is given under s 19, any person may make a submission about the amendment to the planning authority.[14] The planning authority is obliged to consider all submissions made by the date set out in the notice.[15] In the case of an amendment prepared by the Minister, submissions are referred to a panel appointed under Pt 8 of the Planning Act, for its consideration, hearing, and report.[16] One consequence of an exemption under s 20(4) from the requirements of s 19 is that the planning authority does not receive, and need not consider, submissions about the proposed amendment.
[14]Planning Act, s 21(1).
[15]Planning Act, s 22(1).
[16]Planning Act, ss 23–25.

After complying with the notice and public submission requirements of Pt 3, the planning authority may adopt the amendment with or without changes.[17] Section 35(1) then provides for the approval of the amendment by the Minister, which comes into effect on the publication of a notice of approval in the Government Gazette:[18]
[17]Planning Act, s 29.
[18]Planning Act, ss 36, 37.

The Minister may—
(a) approve an amendment or a part of an amendment prepared by the Minister or submitted to the Minister under section 31—
(i) with or without changes; and
(ii) subject to any conditions the Minister wishes to impose; or

(b)refuse to approve the amendment or part of the amendment.

Section 38 provides for the revocation by Parliament of an amendment to a planning scheme:

38 Parliament may revoke an amendment
(1) The Minister must cause a notice in the prescribed form of the approval of every amendment to be laid before each House of the Parliament within 10 sitting days after it is approved.
(1AAA)A notice under subsection (1) must state whether the Minister prepared the amendment under section 20A.
(1A) A notice under subsection (1) must state whether the Minister has exempted the planning authority or himself or herself from any of the requirements of section 17, 18 or 19 or the regulations.
(1B) If an exemption referred to in subsection (1A) has been given, the notice must—
(a) state the nature of the exemption; and
(b) state the notice, if any, given of the amendment; and
(c) state whether the Minister consulted the responsible authority before giving the exemption; and
(d) if the responsible authority was consulted, include a summary of the authority’s recommendations (if any) in relation to the exemption.

(2) An amendment may be revoked wholly or in part by a resolution passed by either House of the Parliament within 10 sitting days after the notice of approval of the amendment is laid before that House.
…

Part 4 provides for permits required by planning schemes. If a planning scheme requires a permit to be obtained for the use and development of land, the application for the permit must be made to the responsible authority in accordance with s 47. Notice of an application for a permit must be given by the responsible authority as provided in s 52, including ‘to any person to whom the planning scheme requires it to give notice’.[19]
[19]Planning Act, s 52(1)(c).

The responsible authority must also give a copy of the permit application to every person or body that the planning scheme specifies as a referral authority.[20] The referral authority must then advise the responsible authority whether it objects to the granting of the permit on any specified ground, whether it does not object, or whether it does not object if the permit is subject to specified conditions.[21]
[20]Planning Act, s 55(1).
[21]Planning Act, s 56(1).

After considering the matters identified in s 60, including any objections received, the responsible authority may decide to grant the permit, with or without conditions, or to refuse the permit on any ground it thinks fit.[22] If the application is objected to by a referral authority specified in the planning scheme as a ‘determining referral authority’, the responsible authority must decide to refuse the permit.[23]
[22]Planning Act, s 61(1).
[23]Planning Act, ss 55(4)(a), 61(2).

Division 2 of Pt 4 provides for reviews by the Victorian Civil and Administrative Tribunal of various decisions in relation to permits, including a decision by a responsible authority to refuse to grant a permit,[24] and a failure to grant a permit within the prescribed time.[25] Additional rights of review by the Tribunal are provided in Pt 6, Div 5, in which s 149 provides:
[24]Planning Act, s 77.
[25]Planning Act, s 79.

149 Application for review
(1) A specified person may apply to the Tribunal for the review of—
(a) a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; or
…

(2) An application for review of a decision referred to in subsection (1)(a), (b) or (c) must be made within 28 days after the day on which the decision is made.
(3) The responsible authority is a party to any proceedings under this section.

A ‘specified body’ is defined in s 148 to include a ‘public authority’ or a ‘referral authority’. A ‘public authority’ is defined in s 3 to mean ‘a body established for a public purpose by or under any Act’, not including a municipal council.

The planning framework established by the Planning Act also includes provision, in Pt 5, for compensation where financial loss is suffered by an owner or occupier of land reserved for a public purpose under a planning scheme.

Amendment VC115

On 7 March 2014, the Minister accepted a recommendation to prepare an amendment to the Planning Conservation and Resource Zone of the VPPs. This was the preferred approach to control land use and development on private land within the PCRZ held under ambulatory title outlined in a briefing prepared for the Minister on 24 February 2014. The summary that appeared on the front page of the briefing explained the background:

The Registrar of Titles recently updated the title boundary of two properties at Point King, Portsea owned by Mr Lindsay Fox to include the foreshore and part of the beach. …
You have sought advice on possible planning responses to protect the ‘beach’ component of this land and other land where this issue may be an issue. It is recommended that you maintain the ‘beach’ land within the existing PCRZ as the most appropriate approach to protecting the beach from inappropriate use and development. A proposed amendment to the PCRZ will ensure that no use or development can occur on the land without the consent of a relevant public land manager which in this instance is the Secretary to the Department of Environment and Primary Industries.
Planning decisions alone are not capable of resolving this issue. The above approach presents an appropriate response until such time as the more fundamental policy issue relating to ownership and public access to the beach is resolved by government, post legal advice. This will then inform the appropriate long term planning response for the land in question and other land with similarly ambulatory titles.

The recommendation was made following a meeting between the Minister and the Minister for Environment and Climate Change to discuss potential solutions to the issues presented by the correction of the Register in relation to the Fox land. According to the briefing, it was agreed that the Minister for Planning would investigate potential planning related approaches, and the Minister for Environment and Climate Change would seek more detailed advice about ‘potential legislative or regulatory reform to protect access to the beach where similar titles exist’.

The briefing explained the rationale for the recommendation to amend the PCRZ:

It is proposed that you consider an amendment to the PCRZ of the Victoria Planning Provisions (VPP) to clarify the application of Clause 62.02-2 (buildings and works not requiring a permit) and to require the consent of the Secretary, DEPI for any application to use or develop land where there is no PLM [public land manager] (Option 1).
a)At present, given the public purpose of the zone, and given there is no PLM in relation to the land and possibly other land, it is recommended clause 36.03-3 of the PCRZ is amended so as to require the consent of the Secretary to DEPI for any such application …
b)In addition, it is proposed to amend Clause 36.03-2 ‘Permit requirements’ to require a planning permit for all building or works that occur on all land where there is no PLM under the PCRZ. This will include overriding Clause 62.02-2 which would otherwise avoid the need for a permit in relation to, for example, a swimming pool, dependant’s persons unit, fence, etc. This approach would not impact a PLM’s role and responsibility to manage crown land under the PCRZ.
c)The proposed amendments will have the benefit of strengthening the PCRZ to require a permit for all use, building or works for the beach land and apply to all other potential situations where similar titles exist but have yet to be acted on by the property owner and require the consent of the adjacent PLM.
d)This approach presents minimal risk as it has broad application and does not seek to single out individual sites, and in addition is an appropriate planning response while longer term legal options around property title and ownership matters are investigated further by DEPI.
e)This option (Option 1) will require an amendment to the VPP subject to your approval.

In discussing alternative approaches, the briefing noted that changes to property titles, which occur regularly, sometimes lead to properties being zoned under multiple zones. While the application of the PCRZ to private land was anomalous, there was no requirement for the Minister to rezone land to remove the anomaly.

On 28 March 2014, the Minister signed an instrument authorising the preparation, adoption and approval of Amendment VC115, in the following terms:

Preparation, Adoption and Approval of an Amendment by the Minister for Planning
I, Matthew Guy, Minister for Planning:

1. Preparation of amendment
Have prepared Amendment VC115 to the Victoria Planning Provisions and all planning schemes in Victoria in accordance with sections 4B, 4J and 8 of the Planning and Environment Act 1987 (the Act), having:

a. in accordance with section 12(2)(a) of the Act, had regard to the Minister’s directions;

b. in accordance with section 12(2)(aa) of the Act, had regard to the Victoria Planning Provisions;

c. in accordance with section 12(2)(ab) of the Act, had regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme;

d. in accordance with section 12(2)(b) of the Act, taken into account any significant effects which I consider the amendment might have on the environment or which I consider the environment might have on any use or development envisaged in the amendment; and

e. in accordance with section 12(2)(c) of the Act, taken into account the social effects and economic effects of the amendment.

Having prepared Amendment VC115 to the Victoria Planning Provisions and all planning schemes in Victoria in accordance with sections 4B, 4J and 8 of the Act:

2.

Exemption of amendment

exempt myself from the requirements of sections 17, 18 and 19 of the Act and the regulations in accordance with section 20(4) of the Act because the interests of Victoria make such an exemption appropriate; and

3.

Adoption of amendment

adopt the amendment without changes in accordance with section 29 of the Act; and

4.

Approval of amendment

approve the amendment without changes in accordance with section 4C of the Act.

The Notice of Approval of Amendment VC115, published in the Government Gazette on 4 April 2014, read as follows:

Planning and Environment Act 1987
VICTORIA PLANNING PROVISIONS
Notice of Approval of Amendment
Amendment VC115
The Minister for Planning has approved Amendment VC115 to the Victoria Planning Provisions (VPP) and all planning schemes in Victoria.
The Amendment comes into operation on the date this notice is published in the Government Gazette.
The– Amendment changes the Victoria Planning Provisions and all planning schemes in Victoria by:
•providing that the permit exemptions at Clauses 62.01 , 62.02-1 and 62.02-2 do not apply to permit requirements in Clause 36.03 ‘Public Conservation and Resource Zone’;
•amending Clause 36.03-1 ‘Tables of Uses’ to require a use listed in Clause 62.01 be subject to conditions that a use must be conducted by, on behalf of a public land manager or be specified in an incorporated plan; and
•amending Clause 36.03-3 to require an application for a permit to be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries where there is no public land manager for the subject land.

Amendment VC115 came into operation on the publication of the Notice of Approval. It amended cl 36.03 – Public Conservation and Resource Zone and cl 62 – Uses, Buildings, Works, Subdivisions and Demolition Not Requiring a Permit of the Victoria Planning Provisions, and every planning scheme in Victoria. Appendix 1 contains cll 36.03 and 62 of the VPPs, marked up to show the changes made by Amendment VC115.

The critical amendment was to cl 36.03-3. Prior to Amendment VC115 that clause read:

An application for a permit by a person other than the relevant public land manager must be accompanied by the written consent of the public land manager, indicating that the public land manager consents generally or conditionally either:
•To the application for permit being made.
•To the application for permit being made and to the proposed use or development.

Amendment VC115 added the following words at the end of the clause:
Where there is no public land manager, an application for a permit must be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries.

The effect of the amendments was explained in the accompanying explanatory report, relevantly:

Planning and Environment Act 1987
VICTORIA PLANNING PROVISIONS
AMENDMENT VC115
EXPLANATORY REPORT
Who is the Planning Authority?
This amendment has been prepared by the Minister for Planning.
The Minister for Planning is the planning authority for this amendment.
What the amendment does
Amendment VC115 changes the Victoria Planning Provisions and relevant planning schemes in the following way:
•by providing that the permit exemptions at Clauses 62.01, 62.02-1 and 62.02-2 do not apply to permit requirements in Clause 36.03 ‘Public Conservation and Resource Zone’;
•amends Clause 36.03-1 'Tables of Uses' to require a use listed in Clause 62.01 be subject to conditions that a use must be conducted by, on behalf of a public land manager or be specified in an incorporated plan; and
•amends Clause 36.03-3 to require an application for a permit to be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries where there is no public land manager for the subject land.

Strategic assessment of the amendment
Why is the amendment required?
The Minister for Environment and Climate Change has requested clarification regarding the appropriateness of existing planning controls relating to situations where changes to property boundaries extend private ownership of land into the Public Conservation and Resource Zone.
Amendment VC115 amends Clause 62 and Clause 36.03 of the Victoria Planning Provisions to ensure where there is no public land manager, all use and development requires a planning permit, and has the consent of the Secretary to the Department of Environment and Primary Industries to ensure that the Crown’s interests are taken into consideration.
How does the amendment implement the objectives of planning in Victoria?
The amendment implements the objectives in section 4 of the Planning and Environment Act 1987 (the Act). In particular, it supports the objectives (b), (d) and (g):
(b)To provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity.
(d)To conserve and enhance those buildings or other places which are of scientific, aesthetic, architectural or historical interest [or] otherwise of special cultural value; and
(g) To balance the present and future interests of all Victorians.

How does the amendment address any environmental, social and economic effects?
The amendment will generate positive environmental, social and economic benefits by ensuring that the views of the Secretary to the Department of Environment and Primary Industries, on behalf of the Crown, are considered and applied for any proposed use and development of land under the Public Conservation and Resource Zone where no public land manager has been declared.
Does the amendment address relevant bushfire risk?
The nature of the amendment would require consideration of a range of matters pertinent to the management of land, of which bushfire risk would be one aspect. The proposed changes would strengthen existing bushfire controls by ensuring that the Secretary to the Department of Environment and Primary Industries is able to provide advice on this matter as part of a responsible authority's consideration to grant approval for a proposed use and/or development of land.
This amendment will not increase the risk of life, property, community infrastructure and the natural environment from bushfire. This amendment does not remove or modify provisions that relate to bushfire risk such as the Bushfire Management Overlay.
Does the amendment comply with the requirements of any Minister’s Direction applicable to the amendment?
The amendment complies with all Ministerial Directions issued under section 12 of the Act.
The amendment complies with the Ministerial Direction on the Form and Content of Planning Schemes issued under section 7(5) of the Act.
How does the amendment support or implement the State Planning Policy Framework (SPPF)?
This amendment supports the objectives and strategies of the SPPF in particular Clause 12 ‘Environmental and landscape values’ by ensuring that consideration of all matters relevant to land are considered and the Crown is able to provide advice, guidance and its consent to appropriate use and development of land.
Does the amendment make proper use of the Victoria Planning Provisions?
The amendment makes proper use of the Victoria Planning Provisions by strengthening the Public Conservation and Resource Zone to ensure that the appropriate planning permit triggers and consents are in place for all land covered by the zone.
How does the amendment address the views of any relevant agency?
The Minister for Environment and Climate Change sought my advice. The Department of Environment and Primary Industries was consulted and supports the changes to Clause 36.03 regarding the requirement for consent to be sought from its Secretary.
…

In addition to the explanatory report, Amendment VC115 was the subject of a media release issued by the Minister on 4 April 2014, titled ‘Beaches to be protected from private development’. The media release is discussed further below, in relation to the Fox parties’ contention that the Exemption Decision and the Amendment Decision were made for an improper or ulterior purpose.[26]
[26]See [76], [84] below.

The Minister published written reasons for the Exemption Decision (Reasons), which were as follows:

REQUEST FOR INTERVENTION
1. The Minister for Environment and Climate Change has requested clarification regarding the status of notification and consent regarding the Crown’s interests on land where no public land manager exists under the Public Conservation and Resource Zone.

WHAT POWER OF INTERVENTION IS BEING USED?
2. I have decided to exercise my powers to exempt myself from all the requirements of sections 17, 18 and 19 of the Planning and Environment Act 1987 (the Act) and the regulations in respect of Amendment VC115 to the Victoria Planning Provisions and planning schemes.
3. Section 20(4) of the Act enables the Minister for Planning to exempt an amendment which the Minister prepares from any of the requirements of sections 17, 18 and 19 of the Act or the regulations.

4. In seeking to exercise this power, section 20(4) of the Act requires that the Minister must consider that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

BACKGROUND
5. The Minister for Environment and Climate Change has requested clarification regarding the appropriateness of existing planning controls relating to situations where changes to property boundaries extend private ownership of land into the Public Conservation and Resource Zone.
6. Amendment VC115 changes the Victoria Planning Provisions and relevant planning schemes in the following way:
•by providing that the permit exemptions at Clauses 62.01, 62.02-1 and 62.02-2 do not apply to permit requirements in Clause 36.03 ‘Public Conservation and Resource Zone’;
•amends Clause 36.03-1 Tables of Uses’ to require a use listed in Clause 62.01 be subject to conditions that a use must be conducted by, on behalf of a public land manager or be specified in an incorporated plan; and
•amends Clause 36.03-3 to require an application for a permit to be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries where there is no public land manager for the subject land.

BENEFITS OF EXEMPTION
7. This exemption provides prompt clarification for relevant Planning and Responsible Authorities to support informed decision making taking into account the Crown’s views and/or interests relating to areas where no public land manager exists for all use and/or development applications.

EFFECTS OF EXEMPTION ON THIRD PARTIES
8. The effect of exempting Amendment VC115 from the notice requirements set out in sections 17, 18 and 19 of the Act and the regulations are that third parties will not be notified of the proposed amendment or be provided with an opportunity to make submissions on the amendment to a planning panel.

ASSESSMENT AS TO WHETHER BENEFITS OF EXEMPTIONS OUTWEIGH EFFECTS ON THIRD PARTIES
9. The benefits of exemption outweigh effects on third parties as this Amendment clarifies process matters for the application of a planning permit where there is no public land manager to ensure that the public interests of the Crown are considered for all land within the Public Conservation and Resource Zone.
10. Land within the Public Conservation and Resource Zone represents some of the most important environmentally, ecologically, and visually significant land within the State ranging from coastal foreshores, riverine and mountainous bushland settings.
11. This Amendment requires the views of the Crown to be sought regarding any proposal to use and develop land and taken into consideration and applied as part of any decision by a Responsible Authority.
12. This Amendment also requires a wider range of building and works to be subject to a planning permit application to ensure only appropriate use and development occurs within the Public Conservation and Resource Zone.

REASONS FOR INTERVENTION
13. I provide the following reasons for my decision to exercise my power under section 20(4) of the Act.
14. I am satisfied that the interests of Victoria make such an exemption appropriate because:
a) The regulation of a wider range of building and works and the consideration of the views of the Crown regarding all land within the Public Conservation and [Resource] Zone is important to the public interest of the State of Victoria.
b) The change reflects an amendment to all planning schemes and the requirement to provide notification is not considered practical.

DECISION
15. I have decided to exercise my power to exempt myself from the requirements of sections 17, 18 and 19 of the Act and the regulations in respect of Amendment VC115 to the Victoria Planning Provisions and all planning schemes.

Exemption Decision – irrelevant considerations

The Minister accepted that it was a subjective jurisdictional fact that the then Minister personally considered that one of the limbs of s 20(4) of the Planning Act was satisfied,[27] and that the formation of the opinion in either limb was a precondition to the valid exercise of the power in s 20(4). There was no suggestion that the Minister considered that compliance with any of the notification requirements of ss 17, 18 and 19 was not warranted. Hence, it was common ground that the validity of the Exemption Decision depended on the Minister having formed the opinion that the interests of Victoria or any part of Victoria made the exemption appropriate.
[27]East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, [181] (Ashley and Redlich JJA).

Fox parties’ submissions

The Fox parties contended that the Minister did not form the requisite opinion because he took into account considerations that were irrelevant to the exercise of his power under s 20(4). They identified five irrelevant considerations:

(a) first, the purported need to ‘clarify’ the provisions of the planning scheme. This went to the merits of the amendment, but did not explain why exemption from the notice requirements of ss 17, 18 and 19 was in the interests of Victoria or any part of it. The matter was said not to be relevant in circumstances where the provisions of the planning scheme were already clear, and no concerns as to their clarity had been raised or mentioned by the Minister in his reasons;

(b) second, the purported need to ensure that the property interests of the Crown were taken into account, in circumstances where the land was privately owned. The Fox parties pointed out that the Crown’s interest in private land was curtailed by s 20 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), which provides that a person must not be deprived of property other than in accordance with law, and the Land Acquisition and Compensation Act 1986 (Vic), which imposes a regime by which the Crown may acquire land upon payment of compensation;

(c) third, the purported need to ensure that the views of the Crown were sought in relation to any proposal to use and develop land, in circumstances where the effect of the amendment was to confer on the Crown the power to control whether any permit application could be made;

(d) fourth, whether the benefits of exemption outweighed its effect on third parties, which was not relevant to whether the interests of Victoria or any part of Victoria made the exemption appropriate; and

(e) fifth, the purported need to consider the property interests of the Crown, in circumstances where the relevant inquiry concerned the interests of Victoria or any part of Victoria.

In oral submissions, the Fox parties pressed the first matter and, as a group, the second, third and fifth matters. They did not dwell on the fourth matter, describing it as ‘inconsequential’.[28]
[28]Transcript, 4 June 2021, 70:29-71:2.

In relation to the first matter, they argued that there was no pressing need to clarify the controls under the PCRZ, because the use and development of the beach land was already tightly controlled. They drew attention to the fact that the whole of the Fox land was also subject to the Environmental Significance Overlay or ESO. Schedule 25 to the ESO in the Mornington Peninsula Planning Scheme provided that a permit was required to construct fencing, and the schedule to cl 66.04 provided that the Secretary was a determining referral authority for such an application. In other words, it was already a requirement of the Mornington Peninsula Planning Scheme to seek the views of the Secretary on a permit application for the beach land.

In relation to the second, third and fifth matters, the Fox parties submitted that the correct legal position was that the land that the Minister was seeking to affect was private land, not a public beach. The only public right of access was an easement of way over 6.1 metres along the high water mark, and there was otherwise no need to preserve public access to the beach land. They argued that the Minister’s apprehension that it was a public beach involved a fundamental error of law in making the Exemption Decision.

The common thread between these five considerations was said to be the Minister’s focus on the merits of the amendment, rather than on whether it was in the interests of Victoria or any part of Victoria to deprive interested persons of notice of the amendment, and the opportunity to make submissions about it. The Fox parties submitted that the Minister’s attention to irrelevant matters meant that he had not formed the requisite opinion.[29]
[29]Relying on Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1047 (Lord Wilberforce) and Wei v Minister for Immigration and Border Protection (2015) CLR 22, [33] (Gageler and Keane JJ), among other authorities.

Minister’s submissions

The Minister responded by emphasising the ‘apparently unconfined discretion’ that is conferred on the Minister by s 20(4) of the Planning Act, limited only by the subject matter, scope and purpose of the statute.[30] He referred to authority to the effect that considering whether the interests of Victoria make an exemption under s 20(4) appropriate involves a ‘discretionary value judgment made by reference to undefined factual matters’, and the Minister is only precluded from having regard to a matter where it is ‘definitely extraneous to any objects the legislature could have had in view’.[31] He argued that none of the matters to which the then Minister had regard were separate from or irrelevant to the ‘interests of Victoria or any part of Victoria’ within the meaning of s 20(4); they were all matters that he was permitted to consider in forming his opinion.
[30]Relying on East Melbourne Group, [341] (Ashley and Redlich JJA). See also [112] (Warren CJ).
[31]East Melbourne Group, [126] (Warren CJ), [352] (Ashley and Redlich JJA), quoting O’Sullivan v Farrer (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ).

As to the first matter, the submission was that it was permissible for the Minister to consider that there was a need to clarify the anomalous situation of private land within the PCRZ, for which there was no public land manager. Further, it was open to the Minister to consider that there was a need for prompt clarification of the controls, to respond quickly to a novel situation before inappropriate development could take place.

As to the second, third and fifth matters, the Minister submitted that it was permissible to have regard to the Crown’s interest in ensuring that privately owned land within the PCRZ is not used or developed in a way that would be detrimental to the public interest. The relevant public interest encompassed the high environmental and ecological importance and visual significance of Victorian beaches, as well as ensuring that private land within the PCRZ is not used or developed in a way that would be detrimental to adjoining public land in the same zone. The Minister eschewed the description of the amendment as a ‘veto power’; rather, it was a means of ensuring that the Crown had notice of, and an early opportunity to respond to, any application for a permit to use or develop private land in the PCRZ.

As to the fourth matter, the Minister argued that an assessment of whether the benefits of the exemption outweighed its effects on third parties was the ‘heartland’ of the discretion conferred by s 20(4). He relied on the judgment of the Court of Appeal in East Melbourne Group Inc v Minister for Planning,[32] to the effect that the desirability of the amendment was one of the factors that might bear on the discretionary value judgment required by s 20(4).
[32](2008) 23 VR 605, [146]-[150], [158] (Warren CJ), [190] (Ashley and Redlich JJA).

Further, the Minister submitted that the Fox parties had mischaracterised the considerations that they said were irrelevant. In relation to the first matter, he said that the Fox parties had ignored the evidence that the Minister for Environment and Climate Change sought advice from the Minister about appropriate planning controls in relation to private land backing onto Point King beach and other beaches on Port Phillip Bay. In relation to the second, third and fifth matters, he denied that the Reasons asserted that the Crown had any proprietary interest in private land in the PCRZ. He drew attention to parts of the Reasons that indicated that the Minister understood that the affected land was privately owned.

Consideration

I am not persuaded that the Minister considered any matter that was precluded by the subject matter, scope and purpose of the Planning Act. The discretionary value judgment to be made by the Minister under s 20(4) is constrained only by the need to form an opinion about whether an exemption would be in the interests of Victoria or any part of it. It was for the Minister to identify the matters that bore on his assessment of Victoria’s interests, and determine the weight to be attributed to those matters.[33]
[33]East Melbourne Group, [112], [126], [144]-[150] (Warren CJ), [341], [352]-[353] (Ashley and Redlich JJA).

The Public Conservation and Resource Zone usually applies to public land, for which there is a public land manager, whose written consent must accompany any application for a permit made by a person other than the relevant public land manager. It was open to the Minister to consider that there was a need to clarify the planning controls that should apply in the scattered instances where private land is within the PCRZ. It was also open to the Minister to consider that the proposed amendment would provide a mechanism for giving the Crown early notice of, and input into, any application for a permit to use or develop such land. Further, it was open to the Minister to consider that there was a need for prompt clarification of the applicable controls. That was because public notification and consultation in relation to the proposed amendment would have involved a risk of inappropriate use and development of private land in the PCRZ, including private beaches, before the amendment could be brought into effect.

It is significant that Amendment VC115, the subject of the Exemption Decision, did not apply only to the Fox land, and did not amend only the Mornington Peninsula Planning Scheme. Rather, it applied generally throughout Victoria to any private land in the PCRZ. As a result, it was not to the point that the Fox land was also subject to the Environmental Significance Overlay, which required a permit to fence the land, or that the Secretary was already a determining referral authority for an application for such a permit. The issue addressed by the proposed amendment was considerably broader than the planning controls that should apply to the part of the Fox land that extended into the PCRZ.

The Minister’s Reasons make it clear that he did not consider that the Crown had any proprietary interest in the beach land owned by the Fox parties, or in other private land within the PCRZ. To the contrary, the genesis of the amendment was that the Minister had become aware that some land in the PCRZ was privately owned. The background section of the Reasons commences by noting the request of the Minister for Environment and Climate Change for ‘clarification regarding the appropriateness of existing planning controls relating to situations where changes to property boundaries extend private ownership of land into the Public Conservation and Resource Zone’.[34] The references in the Reasons to the Crown’s interests and views concerning this land are plainly not references to any proprietary interest.
[34]Minister’s written reasons for the Exemption Decision, [5] (Reasons). See also [1].

I accept the Minister’s submission that consideration of whether the benefits of the exemption outweighed its effects on third parties was at the heart of the discretionary value judgment to be made under s 20(4), and that the benefits of the exemption were closely related to the benefits of the proposed amendment. All members of the Court of Appeal in East Melbourne Group accepted that the merits of the proposed amendment could be relevant, although it was not the only matter to be considered in exercising the discretion.[35] Here, the Minister did not conflate the merits of the amendment with the question of whether the exemption was appropriate; rather, the merits were one matter that he took into account.

Exemption Decision – relevant considerations

[35]East Melbourne Group, [144]-[150] (Warren CJ), [190] (Ashley and Redlich JJA).

Fox parties’ submissions

The Fox parties next contended that the Minister failed to have regard to matters that were directly relevant to the exercise of his power under s 20(4). They argued that the Minister did not have regard to the following essential matters:

(a) first, the interests of the Fox parties and persons in a like position, which were directly affected by the Exemption Decision;

(b) second, the interests of Victoria or any part of Victoria, as distinct from the property interests of the Crown, and whether the benefits of the exemption outweighed its effect on third parties; and

(c) third, whether public notice of the amendment should be given under s 19(1B) of the Planning Act, as an alternative to notifying all affected owners and occupiers individually.

In oral submissions, the Fox parties emphasised two distinct aspects of the discretionary judgment that the Minister had to make: first, identifying the interests of Victoria that are important, and, second, considering each of the notification requirements of ss 17, 18 and 19 of the Planning Act separately. They submitted that the Minister was obliged to engage in an active intellectual process of genuinely considering whether a partial exemption from ss 17, 18 and 19 was appropriate. This might have involved notifying the small number of landowners affected, or alternatively giving public notice under s 19(1B). They accepted, however, that notifying particular landowners, or proceeding under s 19(1B) would make no difference to the time required to approve the amendment.[36]
[36]Transcript, 4 June 2021, 75:20-76:19.

Minister’s submissions

The Minister disputed that any of these were matters that the then Minister was bound to consider, so that a failure to have regard to them would result in the Exemption Decision being invalid.[37] He further disputed that any of the matters had been disregarded.
[37]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40 (Mason J).

As to the first matter, the Minister pointed out that the Reasons stated that the effect of exempting the amendment from the notice requirements in ss 17, 18 and 19 would be ‘that third parties will not be notified of the proposed amendment or be provided with an opportunity to make submissions on the amendment to a planning panel’.[38] He argued that it was implicit in the nature of the amendment that some of these third parties were owners of land in the PCRZ, and it could not be inferred that the Minister failed to have regard to their interests.
[38]Reasons, [8].

As to the second matter, the Minister submitted that the Reasons addressed whether the interests of Victoria or any part of Victoria made an exemption under s 20(4) appropriate – a broad concept that could be assessed by reference to a wide range of matters. The Reasons disclosed that the Minister was satisfied that the interests of Victoria made the exemption appropriate, by reference to matters canvassed in the Reasons. These included the fact that land in the PCRZ, including coastal foreshores, riverine and mountainous bushland settings, represents some of the most important environmentally, ecologically and visually significant land in the State, and the identified need to have the Crown’s views sought and taken into account regarding any proposal to use and develop land in the zone. The Minister rejected the suggestion that the property interests of the Crown were taken into account.

As to the third matter, the Minister said that the Reasons showed that the then Minister was aware that an exemption would mean that third parties would not be notified of the proposed amendment, and would have no opportunity to make submissions about it. However, he considered that there was a need for prompt clarification of the planning controls for private land in the PCRZ, before any inappropriate use or development could take place. The Minister submitted that it would have been inconsistent with that rationale to give notice to affected landowners individually or by public notice under s 19(1B), both of which would have required a panel hearing to consider any submissions.

Consideration

Reading the Minister’s Reasons fairly and as a whole, and not ‘with an eye keenly attuned to the perception of error’,[39] I am not satisfied that he failed to consider any matter that he was bound by s 20(4) to take into account.
[39]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ), quoted and applied in East Melbourne Group, [229] (Ashley and Redlich JJA).

The Reasons disclose that the Minister had regard to the interests of Victoria, bearing in mind that it was for the Minister to determine what those interests were, and the matters that shaped them.[40] Here, the Minister specifically referred to the environmental and landscape values of land in the PCRZ, the need for prompt clarification of the appropriateness of existing planning controls for privately owned land in the zone, and the need to ensure only appropriate use and development of that land. The Minister expressed his satisfaction that the interests of Victoria made the exemption appropriate because:[41]

a) The regulation of a wider range of building and works and the consideration of the views of the Crown regarding all land within the Public Conservation and [Resource] Zone is important to the public interest of the State of Victoria.
b) The change reflects an amendment to all planning schemes and the requirement to provide notification is not considered practical.

While this was a judgment about which reasonable minds might differ, it was the Minister’s to make.

[40]East Melbourne Group, [144]-[150] (Warren CJ), [341], [352]-[353] (Ashley and Redlich JJA).

[41]Reasons, [14].

The Reasons also disclose that the Minister was aware that the proposed amendment would affect privately owned land in the PCRZ, and that exempting it from the requirements of ss 17, 18 and 19 would deprive third parties of notice and an opportunity to make submissions about the amendment. Those third parties necessarily included the private landowners whose interests were most directly affected. I have already found that the Minister did not consider that the Crown had proprietary interests in the private land in the PCRZ.[42]
[42]See [61] above.

As the Fox parties conceded, it was not likely that an alternative notice procedure would have achieved any saving of the time required to approve the proposed amendment. It was proposed to amend every planning scheme in Victoria, and notification would inevitably have generated submissions regarding the amendment – including from other private landowners whose land would be affected, as well as the Fox parties. The Minister was required to refer any submissions received in relation to the proposed amendment to a panel for consideration and report, regardless of whether notice was given under s 19(1), or s 19(1B), or on some more limited basis. The panel process necessarily takes time. Given that the Minister considered that there was a need for prompt clarification of the controls, to ensure only appropriate use and development of land in the PCRZ for which there was no public land manager, there was no requirement for him separately to consider more limited notice procedures.

Further, the alternative notice procedure in s 19(1B) is available only where the planning authority considers the number of owners and occupiers affected makes it impractical to notify them all individually.[43] The alternative procedure is to give public notice in the area affected by the amendments, which in this case was the whole of Victoria. I infer from the Reasons that the Minister considered none of the available notice procedures to be practical, in circumstances where it was proposed to amend all planning schemes in Victoria to achieve prompt clarification of the controls on use and development of private land in the PCRZ.

Improper purpose

[43]Planning Act, s 19(1A).

Fox parties’ submissions

The Fox parties impugned both the Exemption Decision and the Amendment Decision on the basis that the Minister acted for an improper or ulterior purpose in making the decisions. The Fox parties did not contend that the Minister had acted in a way that was corrupt or dishonest; rather, they argued he had exercised his powers for substantial purposes that were ulterior or extraneous to the purposes for which the powers were granted.[44] They submitted that the Minister’s decisions would not have been made but for two extraneous purposes:[45]

(a) first, specifically depriving the Fox parties of their lawful interest in, or beneficial use of, the beach land; and

(b) second, preventing the use or development by the Fox parties of the beach land unless the Crown, in its absolute discretion, agreed to the making of a permit application.

[44]Relying on Thompson v Randwick Corporation (1950) 81 CLR 87, 106; Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30, [58] (McHugh J); East Melbourne Group, [337] (Ashley and Redlich JJA).

[45]In the course of oral submissions, the Fox parties withdrew their contentions that the Minister acted with the purposes of discouraging or preventing any future title amendments based on titles that extended to the high water mark, or otherwise interfering with the Registrar of Titles’ discretion to correct the Register: Transcript, 4 June 2021, 82:19-83:24.

In oral submissions, the Fox parties clarified these purposes to be placing the beneficial use and development of the beach land in the control of the government, with no opportunity for the landowner to seek review in the Tribunal if the control was exercised to deny that use. The Fox parties accepted that the amendment did not affect their proprietary interest in the beach land, and did not press their argument to that effect. Their point was that the complete and unreviewable controls placed over the use and development of the beach land had the effect of denying their enjoyment of their property.

The evidence relied on by the Fox parties to establish these purposes went beyond the Reasons. They relied on the briefing to the Minister prepared on 24 February 2014, which recommended the preparation of Amendment VC115. They also relied on the following media reports of statements attributed to the then Minister:

(a) on 16 February 2014, the Sydney Morning Herald (and, I infer, The Age newspaper) reported the Minister as having said ‘Anyone with this kind of older title is likely to [want the same deal] and we cannot have the situation where we lose hundreds of square metres of public beach’ and that the Titles Office had ‘questions to answer’ and had been issued with a ‘please explain’ by Ministers;

(b) also on 16 February 2014, The Canberra Times reported the Minister to have said: ‘The government needs to intervene and clarify those titles. The changes might say the high-water mark at the time of purchase or at a particular time … We are not going to subject the people of Victoria to a loss of beach access simply because of a 1900s definition’. A further comment attributed to the Minister in the article was that ‘My office and the department are kept up to date by the Titles Office of issues that they have coming to them. However, being advised of any specific land title decision is not something that I have been involved in in the past nor any other minister has been involved in’;

(c) on 17 February 2014, the ABC reported the Minister as saying ‘It’s clearly something the Government is not happy about’ and ‘We don't want to see public beach lost in private hands, that’s not what is done in Victoria, and we don’t want to see that precedent beginning’; and

(d) on 4 April 2014, The Age reported that the Minister had said: ‘The Victorian government will not allow public-accessed beaches to be built on where the land is technically held in private ownership’, ‘Public conservation and resource zones will now be safe from private development’, and ‘This is an appropriate planning response while the government works on the complex legal process of resolving the issue involving defining a boundary such as the high water mark’. These comments were all extracted from the media release issued by the Minister on the same date.

In addition, the Fox parties relied on the fact that both decisions were made in direct response to the Registrar’s correction of the title boundaries to the Fox land. They submitted that the Minister’s reported statements established that he had acted for the purpose of punishing or disadvantaging the Fox parties by seeking to undo the benefits that flowed from the correction of their titles. They sought to distinguish the facts of this case from those in Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development,[46] on the basis that the Minister’s decisions were not only prompted by the Registrar’s correction, they also reversed its effect.
[46][1993] 1 VR 627 (Grollo).

Minister’s submissions

The Minister’s starting point was that there is a presumption that statutory power is exercised properly, and a finding could only be made that the former Minister exercised his powers for an improper purpose if the evidence could not be reconciled with their proper exercise.[47] He argued that there was no basis to infer that either the Exemption Decision or the Amendment Decision was made for the purposes of depriving the Fox parties of their lawful interest in or beneficial use of the beach land, or preventing them from using or developing it.
[47]Relying on Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649, 672 (Gaudron J); Love v State of Victoria [2009] VSC 215, [182]; Maddingley Brown Coal Pty Ltd v Environment Protection Authority (2013) 197 LGERA 259, [91].

The Minister accepted that the Registrar’s correction of the title boundaries was the impetus for both decisions, but rejected the argument that this meant that either decision was made for an extraneous purpose. He submitted that there was nothing inherently wrong with developing an amendment to a planning scheme in response to a particular event, as occurred in Grollo.[48] Unlike Donovan v City of Sale,[49] and other similar cases relied on by the Fox parties, there was no evidence that the Minister’s decisions were motivated by some personal grievance or annoyance. The amendment applied throughout Victoria, and was not specifically directed at the Fox parties.
[48]Relying on Grollo, 642.
[49][1979] VR 461, 472-4.

Moreover, the Minister submitted, the amendment did not have the effect of altering the Fox parties’ titles to the beach land, nor did it prevent the use or development of the land. He argued that an owner of land does not have any static ‘lawful interest’ in using or developing the land free from the planning controls that apply to the land from time to time. The amendment did not deny the Fox parties the use and enjoyment of the beach land; where a permit is required, the plaintiffs can request the consent of the Secretary to a permit application. The Secretary could only withhold consent reasonably and for a proper purpose consistent with the scope and purpose of the Planning Act. A refusal by the Secretary to give consent would be subject to judicial review, and may also be reviewable by the Tribunal under s 149(1) of the Planning Act.

As to the Fox parties’ reliance on media reports of statements made by the then Minister around the time of the decisions, the current Minister submitted that those reports should be treated with some caution. While the media reports were not denied, it was not possible to say that they were complete or accurate representations of what the Minister said at the time. In any event, the reported statements of the Minister from February 2014 could not be relied on as evidence of the Minister’s reasons for making the decisions on 28 March 2014, after seeking and receiving advice from his Department. The Minister’s media release of 4 April 2014 was a ‘truly political document’[50] which could not be relied on to reveal his purpose in making the decisions. In any event, the media release was not confined to the Fox parties’ situation, and made it clear that the amendment was ‘an appropriate planning response while the government works on the complex legal process of resolving the issue involving defining a boundary such as the high water mark’.
[50]East Melbourne Group, [276] (Ashley and Redlich JJA).

Consideration

The relevant principles were summarised by Kyrou J in Maddingley Brown Coal Pty Ltd v Environment Protection Authority:[51]

Acting with an improper purpose involves exercising a power for a purpose which is foreign to the purpose for which that power was conferred. In order to make out an allegation of improper purpose, evidence that the decision-maker actually had that improper purpose for making the impugned decision is required. However, the decision-maker need not intend to act with an improper purpose. An improper purpose will not be lightly inferred, and only where the evidence cannot be reconciled with the proper exercise of the power. As with irrelevant considerations, it is not necessary that an improper purpose be the sole purpose. However, if an impugned decision is made for multiple purposes, the presence of an improper purpose will not invalidate the decision unless the decision would not have been made but for the improper purpose, in other words that the improper purpose was a “substantial” purpose.

[51](2013) 197 LGERA 259, [91] (citations omitted).

I am not persuaded that the Minister’s purposes in making either the Exemption Decision or the Amendment Decision included the extraneous purposes alleged by the Fox parties. The main reason for that conclusion is that the amendment simply did not have the effect of depriving the Fox parties of their lawful interest in, or beneficial use of, the beach land, and nor did it give the Secretary complete and unreviewable power to prevent them from using or developing that land.

I regard the comments attributed to the Minister in the media reports set out above at [76] with some caution, in part because I am not confident that they are an accurate or complete account of the Minister’s public statements in relation to Amendment VC115. I do not consider that the comments attributed to the Minister in February 2014 can be relied on as evidence of his purpose in making the Exemption Decision and the Amendment Decision in late March 2014, after he had received and considered advice from his Department. On the other hand, despite it being a ‘truly political document’,[52] I accept that the Minister’s media release of 4 April 2014 can be relied on as evidence of his purpose.
[52]East Melbourne Group, [276] (Ashley and Redlich JJA).

However, the media release must be considered as a whole, together with the Reasons and the two briefs to the Minister that informed his decisions. Having considered all of that evidence, I find that the Minister’s governing purpose in making the decisions was to avoid inappropriate development of beaches and other land in the PCRZ. This purpose was a legitimate reason for the exercise of the Minister’s powers in ss 20(4) and 4J of the Planning Act. It was achieved by an amendment that, first, ensured that the State would be alerted to any proposed use or development of land in the PCRZ and, second, enabled the State, through the Secretary, to give an early indication of its attitude to a permit application affecting private land, including any conditions that the State would seek to attach to a permit.

While I accept that Amendment VC115 was prompted by the revelation that the Registrar had extended the title boundaries to the Fox land recorded on the Register, it was not specifically directed at the Fox parties. It was a state wide planning response to an anomaly that – as appears from the media reports of February 2014 – had only recently come to the Minister’s attention. The amendment expanded the permit requirements for all land in the PCRZ, not only private land, and did not prohibit any particular use or development of that land.

Significantly, the requirement for a permit application to be accompanied by the Secretary’s written consent where there is no public land manager did not confer on the Secretary an absolute and unreviewable power of veto. As the Minister submitted, the Secretary’s power to refuse consent is a narrow one, and could be exercised to deny the making of a permit application in only limited circumstances. It is not a broad-ranging power to block a proposed use or development of land in the PCRZ. The assessment of the planning merits of a permit application remains a matter for the responsible authority and any referral authority specified in the planning scheme.

Further, as discussed below, any decision by the Secretary to refuse consent would be subject to merits review by the Tribunal.[53]
[53]See [114] below.

The Fox parties have not established that the Minister made either the Exemption Decision or the Amendment Decision for an improper purpose.

Amendment Decision – compliance with Direction

Fox parties’ submissions

The next ground of review was the Fox parties’ contention that the Amendment Decision was invalid because Amendment VC115 did not have regard to and did not comply with the Ministerial Direction entitled ‘The Form and Content of Planning Schemes’, issued under s 7(5) of the Planning Act. As in force at the time the amendment was approved, paragraph 12 of the Direction provided:

A planning scheme may only include land in … a Public Conservation and Resource Zone if the land is Crown land, or is owned by, vested in or controlled by a Minister, government department, public authority or municipal council.

The Fox parties submitted that the Minister was acting as a ‘planning authority’ when he adopted and approved the amendment and, in doing so, was obliged by s 7(6) of the Planning Act to comply with the Direction, and by s 12(2)(a) to have regard to it. They argued that Amendment VC115 was contrary to the Direction because it applied to private land in the PCRZ. In their written submissions, the Fox parties said that it would be contrary to the clear intent of the Direction if any part of the Fox land were to be included or required to remain in the PCRZ. They argued further that, by tightening the planning controls applicable to private land in the PCRZ, the amendment was inconsistent with the Direction. It was apparent from the substance of the amendment that the Minister did not have regard to, and did not observe, the requirements of the Direction in preparing and approving the amendment.

In oral submissions, the Fox parties accepted that the amendment did not rezone any private land to include it in the PCRZ, and did not go so far as to submit that the Minister was obliged to rezone the beach land to a residential zone. They argued that the obligation to comply with the Direction went to matters of substance, not just matters of technical form. The substance of the Direction is that the PCRZ is a zone to be applied to public land, and is inappropriate for private land. They submitted that by making the controls in the PCRZ more onerous, so that it became more difficult for a private owner to develop their land, the amendment was directly contrary to the substance of the Direction.

If a Conservation zone were created that was a reservation by subterfuge, or more particularly deprived the owner of all beneficial use of the land but by the device of a zoning description set out to deny the owner any right to compensation, then there is no reason in principle why an owner may not be able to attack such action as an abuse of power, which he could seek to set aside by declaratory proceedings. …
I am satisfied that it cannot properly be said here that the Special Conservation zone was in substance the same as the reservation for proposed public open space. There was a clear difference between the two. Under that zoning, though no further subdivision was permitted, it was open to the responsible authority to grant a permit to erect a house on each of the three existing allotments. Under the reservation, no right to erect a house on each allotment was properly open. The evidence did not warrant a finding that there could be a house development permit on land reserved for proposed public open space. There is the world of difference between land on which one can build a house and land where such a right is denied.

[71]Equity Trustees, 544-5.

It is clear from this passage that ‘reservation by subterfuge’ is, as the Minister submitted, simply a different way of describing the exercise of power to amend a planning scheme for an improper or extraneous purpose. I have already considered and rejected the Fox parties’ contention that the Exemption Decision and the Amendment Decision were made for improper purposes. As discussed above,[72] Amendment VC115 did not deprive the Fox parties of their lawful interest in, or beneficial use of, the beach land, and did not give the Secretary complete and unreviewable power to prevent them from using or developing the beach land.
[72]See [83]-[88], [114] above.

The Minister’s guiding purpose in approving Amendment VC115 was to avoid inappropriate development of beaches and other land in the PCRZ, which he considered to be ‘some of the most important environmentally, ecologically, and visually significant land within the State’.[73] I find that the restrictions on the use and development of private land within the PCRZ were imposed for the public benefit, and did not have the effect of reserving that land – including the beach land – for use for a public purpose.[74]
[73]Reasons, [10].
[74]The distinction made in Van Der Meyden, 261-2.

For completeness, I do not accept the Fox parties’ submission that the whole purpose of the amendment was to prevent them from fencing their land. As they pointed out, the Mornington Peninsula Planning Scheme already required them to obtain a permit to fence their land.[75] In addition, their complaint was a hypothetical one. There was no evidence that they had applied to the Council for a permit to fence the beach land, or that they had sought the Secretary’s consent to make such an application.
[75]See [50] above.

Amendment VC115 did not amount to a reservation or acquisition of the beach land for a public purpose by subterfuge.

Disposition

The Fox parties have not made out any of the grounds on which they challenge the lawfulness of the Exemption Decision and the Amendment Decision. It is therefore not necessary to consider the Minister’s submission that declaratory relief should be refused due to the Fox parties’ long and unexplained delay in bringing the proceeding. The proceeding must be dismissed.

I will hear the parties on the question of the costs of the proceeding.

Appendix 1

36.03

PUBLIC CONSERVATION AND RESOURCE ZONE

Shown on the planning scheme map as PCRZ.

Purpose

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To protect and conserve the natural environment and natural processes for their historic, scientific, landscape, habitat or cultural values.

To provide facilities which assist in public education and interpretation of the natural environment with minimal degradation of the natural environment or natural processes.

To provide for appropriate resource based uses.

23/09/2011

Proposed VC115~~VC77~~

36.03-1

Table of uses

23/09/2011
~~VC77~~Proposed VC115 Section 1 - Permit not required

Use Condition

Boat launching facility

Camping and caravan park

Caretaker’s house

Car park

Must be either of the following:

§ A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

§ Specified in an Incorporated plan in a schedule to this zone.

Informal outdoor recreation

Interpretation centre

Jetty

Kiosk

Marine dredging

Must be either of the following:

§ A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

§ Specified in an Incorporated plan in a schedule to this zone.

Mooring pole

Must be either of the following:

§ A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

§ Specified in an Incorporated plan in a schedule to this zone.

Use

Condition

Open sports ground

Pier

Pontoon

Road

Must be either of the following:

§ A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

§ Specified in an Incorporated plan in a schedule to this zone.

Utility installation (other than Telecommunications facility)

Must be either of the following:

§ A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

§ Specified in an Incorporated plan in a schedule to this zone.

Any use listed in Clause 62.01

~~Must meet the requirements of Section 62.01.~~Must be either of the following:

§ A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

§ Specified in an Incorporated plan in a schedule to this zone.

Any other use not in Section 2 or 3

§ Must be a use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

Section 2 - Permit required

Use Condition

Emergency services facility

Renewable energy facility (other than Wind energy facility)

Must not be located on land reserved under the National Parks Act 1975.

Must meet the requirements of Clause 52.42.

Wind energy facility

Must not be located on land described in a schedule to the National Parks Act 1975. This does not apply where the Wind energy facility is principally used to supply electricity to a facility used in conjunction with conservation, recreation, administration or accommodation use of the land.

Must meet the requirements of Clause 52.32.

Section 3 - Prohibited

Use

The use in Section 1 described as ‘Any other use not in Section 2 or 3’ – if the Section 1 condition is not met

36.03-2

Permit requirement

19/01/2006

Proposed VC115
~~VC37~~
A permit is required to:

§ Construct a building or construct or carry out works. This does not apply to:

~~§ Planting or landscaping.~~

§ A building or works shown in an Incorporated plan which applies to the land.

§ A building or works carried out by or on behalf of a public land manager or Parks Victoria under the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

§ Subdivide land.

36.03-3
Application requirements

19/01/2006
Proposed
VC115~~VC37~~

An application for a permit by a person other than the relevant public land manager must be accompanied by the written consent of the public land manager, indicating that the public land manager consents generally or conditionally either:

§ To the application for permit being made.

§ To the application for permit being made and to the proposed use or development.

Where there is no public land manager, an application for a permit must be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries.

36.03-4

Exemption from notice and review

19/01/2006
VC37
An application to subdivide land which is consistent with an Incorporated plan is exempt from the notice requirements of Section 52(1) (a), (b), and (d), the decision requirements of Sections 64(1), (2) and (3) and the review rights of Section 82(1) of the Act.

36.03-5

Referral of applications

18/06/2010
VC62

An application to use or develop land for the purpose of an emergency services facility must be referred under Section 55 of the Act to the person or body specified as the referral authority in Clause 66.03.

36.03-6

Decision guidelines

18/06/2010
VC62
Before deciding on an application to use or subdivide land, construct a building or construct or carry out works, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

§ The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

§ The comments of any public land manager or other relevant land manager having responsibility for the care or management of the land or adjacent land.

§ Whether the development is appropriately located and designed, including in accordance with any relevant use, design or siting guidelines.

36.03-7

Incorporated plan

18/06/2010
VC62
An Incorporated plan is a plan which shows the way the land is to be used and developed.

An Incorporated plan may include the following information:

§ Recognition of existing use and how the area is to be developed.

§ The building envelope of any proposed buildings.

§ Details of proposed buildings or works.

§ The location of pedestrian or vehicle access points or car parking areas.

§ The location of any areas for specific uses and a schedule of specific uses which are allowed without permit.

§ Topographic details including any proposed cut and fill.

§ The location of existing and proposed features.

§ The location of existing native or other vegetation and any proposed landscaping works or areas of vegetation to be added or removed.

§ The identification of sites of flora or fauna significance (including, in particular, any potentially threatened species or significant habitat) or other places of cultural, heritage or scientific value.

The Incorporated plan must be consistent with the intent of the public land reservation under any Act and make reference to relevant policies and guidelines.

An Incorporated plan may be prepared in parts or stages.

36.03-8

Use and development of land identified in a schedule

18/06/2010
VC62

Land identified in a schedule to this zone may be used and developed in accordance with the schedule or the specific controls contained in an incorporated document corresponding to the land, provided any condition in the schedule or incorporated document is complied with.

36.03-9

Advertising signs

18/06/2010
VC62

Advertising sign controls are at Clause 52.05. This zone is in Category 4 unless a different requirement is specified in the schedule to this zone.

Note:
Refer to the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement, for strategies and policies which may affect the use and development of land.

Check whether an overlay also applies to the land.

Other requirements may also apply. These can be found at Particular Provisions.

Use	Condition
36.03	PUBLIC CONSERVATION AND RESOURCE ZONE Shown on the planning scheme map as PCRZ. Purpose To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies. To protect and conserve the natural environment and natural processes for their historic, scientific, landscape, habitat or cultural values. To provide facilities which assist in public education and interpretation of the natural environment with minimal degradation of the natural environment or natural processes. To provide for appropriate resource based uses.
23/09/2011
Proposed VC115~~VC77~~
36.03-1	Table of uses
23/09/2011 ~~VC77~~Proposed VC115	Section 1 - Permit not required
Boat launching facility Camping and caravan park Caretaker’s house Car park	Must be either of the following: § A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978. § Specified in an Incorporated plan in a schedule to this zone.
Informal outdoor recreation Interpretation centre Jetty Kiosk Marine dredging	Must be either of the following: § A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978. § Specified in an Incorporated plan in a schedule to this zone.
Mooring pole	Must be either of the following: § A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978. § Specified in an Incorporated plan in a schedule to this zone.
Open sports ground Pier Pontoon Road	Must be either of the following: § A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978. § Specified in an Incorporated plan in a schedule to this zone.
Utility installation (other than Telecommunications facility)	Must be either of the following: § A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978. § Specified in an Incorporated plan in a schedule to this zone.
Any use listed in Clause 62.01	~~Must meet the requirements of Section 62.01.~~Must be either of the following: § A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978. § Specified in an Incorporated plan in a schedule to this zone.
Any other use not in Section 2 or 3	§ Must be a use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.
Section 2 - Permit required
Emergency services facility
Renewable energy facility (other than Wind energy facility)	Must not be located on land reserved under the National Parks Act 1975. Must meet the requirements of Clause 52.42.
Wind energy facility	Must not be located on land described in a schedule to the National Parks Act 1975. This does not apply where the Wind energy facility is principally used to supply electricity to a facility used in conjunction with conservation, recreation, administration or accommodation use of the land. Must meet the requirements of Clause 52.32.
Section 3 - Prohibited
The use in Section 1 described as ‘Any other use not in Section 2 or 3’ – if the Section 1 condition is not met
36.03-2	Permit requirement
19/01/2006
Proposed VC115 ~~VC37~~	A permit is required to: § Construct a building or construct or carry out works. This does not apply to:
~~§ Planting or landscaping.~~
§ A building or works shown in an Incorporated plan which applies to the land. § A building or works carried out by or on behalf of a public land manager or Parks Victoria under the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978. § Subdivide land.
36.03-3	Application requirements
19/01/2006 Proposed VC115~~VC37~~	An application for a permit by a person other than the relevant public land manager must be accompanied by the written consent of the public land manager, indicating that the public land manager consents generally or conditionally either:
§ To the application for permit being made. § To the application for permit being made and to the proposed use or development.
Where there is no public land manager, an application for a permit must be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries.
36.03-4	Exemption from notice and review
19/01/2006 VC37	An application to subdivide land which is consistent with an Incorporated plan is exempt from the notice requirements of Section 52(1) (a), (b), and (d), the decision requirements of Sections 64(1), (2) and (3) and the review rights of Section 82(1) of the Act.
36.03-5	Referral of applications
18/06/2010 VC62	An application to use or develop land for the purpose of an emergency services facility must be referred under Section 55 of the Act to the person or body specified as the referral authority in Clause 66.03.
36.03-6	Decision guidelines
18/06/2010 VC62	Before deciding on an application to use or subdivide land, construct a building or construct or carry out works, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate: § The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies. § The comments of any public land manager or other relevant land manager having responsibility for the care or management of the land or adjacent land. § Whether the development is appropriately located and designed, including in accordance with any relevant use, design or siting guidelines.
36.03-7	Incorporated plan
18/06/2010 VC62	An Incorporated plan is a plan which shows the way the land is to be used and developed. An Incorporated plan may include the following information: § Recognition of existing use and how the area is to be developed. § The building envelope of any proposed buildings. § Details of proposed buildings or works. § The location of pedestrian or vehicle access points or car parking areas. § The location of any areas for specific uses and a schedule of specific uses which are allowed without permit. § Topographic details including any proposed cut and fill. § The location of existing and proposed features. § The location of existing native or other vegetation and any proposed landscaping works or areas of vegetation to be added or removed. § The identification of sites of flora or fauna significance (including, in particular, any potentially threatened species or significant habitat) or other places of cultural, heritage or scientific value. The Incorporated plan must be consistent with the intent of the public land reservation under any Act and make reference to relevant policies and guidelines. An Incorporated plan may be prepared in parts or stages.
36.03-8	Use and development of land identified in a schedule
18/06/2010 VC62	Land identified in a schedule to this zone may be used and developed in accordance with the schedule or the specific controls contained in an incorporated document corresponding to the land, provided any condition in the schedule or incorporated document is complied with.
36.03-9	Advertising signs
18/06/2010 VC62	Advertising sign controls are at Clause 52.05. This zone is in Category 4 unless a different requirement is specified in the schedule to this zone.
*Note:*	Refer to the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement, for strategies and policies which may affect the use and development of land. Check whether an overlay also applies to the land. Other requirements may also apply. These can be found at Particular Provisions.

62

USES, BUILDINGS, WORKS, SUBDIVISIONS AND DEMOLITION NOT
REQUIRING A PERMIT

05/09/2013

Proposed
VC115

~~VC103~~

62.01

Uses not requiring a permits

14/03/2013

Proposed
VC115
~~VC85~~
Any requirement in this scheme relating to the use of land, other than a requirement in the
Public Conservation and Resource Zone, does not apply to:

§ The use of land for a Road except within the Urban Flood Zone and a Public Conservation and Resource Zone.

§ The use of land for Natural systems.

§ The use of land in a road if the use is associated with the use of adjoining land and is authorised by the Council under a local law.

§ The use of land in a road to trade from a stall, stand, motor vehicle, trailer, barrow or other similar device if the use is authorised by the Council under a local law.

§ The use of land for wind measurement by an anemometer for 3 years or less.

§ The use of land for earth and energy resources industry if the conditions of Clause 52.08 are met.

§ The use of land for a carnival or circus if the requirements of A ‘Good Neighbour’ Code of Practice for a Circus or Carnival, October 1997 are met.

§ The use of land for apiculture if the requirements of the Apiary Code of Practice, May 2011 are met.

§ The use of land for temporary portable land sales office located on the land for sale.

§ The use of land for a Telecommunications facility if the associated buildings and works meet the requirements of Clause 52.19.

§ The use of land for a helicopter landing site if the use meets the requirements of Clause 52.15-1.

62.02

Buildings and works

05/09/2013
VC103
Clauses 62.02-1 and 62.02-2 set out exemptions from permit requirements in this scheme relating to the construction of a building or the construction or carrying out of works. These exemptions do not apply to the removal, destruction or lopping of trees and the removal of vegetation. Exemptions for vegetation removal are set out in Clause 62.02-3.

62.02-1

Buildings and works not requiring a permit

05/09/2013
Proposed
VC115

~~VC103~~

Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works, other than a requirement in the Public Conservation and Resource Zone, does not apply to:

§ Buildings or works which provide for fire protection under relevant legislation.

§ Emergency works undertaken by, or on behalf of, a municipality, public authority or utility service provider in the exercise of any power conferred on them under any Act.

§ Buildings or works with an estimated cost of $1,000,000 or less carried out by or on behalf of a municipality.

§ Maintenance works carried out by a municipality or public authority to prevent or alleviate flood damage.

§ An anemometer located on a site for 3 years or less.

§ Buildings and works associated with a use on adjoining land or street trading if authorised under a local law.

§ Gardening.

§ Buildings and works associated with a minor utility installation.

§ Buildings or works which are a modification necessary to comply with a direction under the Dangerous Goods Act 1985 or the Occupational Health and Safety Act 2004 or a Waste Discharge Licence, Works Approval or Pollution Abatement Notice under the Environment Protection Act 1970.

§ Buildings and works associated with a telecommunications facility if the requirements of Clause 52.19 are met.

§ Buildings and works associated with a dam if a licence is required to construct the dam or to take and use water from the dam under the Water Act 1989.

§ Buildings and works associated with a carnival or circus if the requirements of A ‘Good Neighbour’ Code of Practice for a Circus or Carnival, October 1997 are met.

§ Buildings and works associated with apiculture if the requirements of the Apiary Code of Practice, May 1997 are met.

§ A temporary portable classroom associated with an education centre located on a site for 3 years or less.

§ A temporary shed or temporary structure for construction purposes, or a temporary portable land sales office located on the land for sale.

§ A children’s cubbyhouse.

§ External lighting normal to a dwelling.

§ The construction, alteration, removal or demolition of an observational bore where a licence has been issued for those works under Part 5 of the Water Act 1989.

§ Any works associated with the use of land for earth and energy resources industry if the conditions of Clause 52.08 are met.

§ A crop support or protection structure associated with horticulture, including a trellis, cloche, net and shadecloth. It does not include a structure with a solid roof or solid wall such as a glass house or igloo.

62.02-2

Buildings and works not requiring a permit unless specifically required by the planning scheme

23/09/2011
Proposed
VC115

~~VC77~~

Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works, other than a requirement in the Public Conservation and Resource Zone, does not apply to:

§ A fence.

§ A sign.

§ Roadworks.

§ Street furniture including post boxes, telephone booths, fire hydrants, bus shelters, shade sails, traffic control devices and public toilets.

§ Park furniture including seating, tables, shelters, rubbish bins, playground equipment, barbeques, shade sails, drinking fountains and public toilets.

§ Furniture and works normally associated with an education centre including, but not limited to, outdoor furniture, playground equipment, art works, drinking fountains, rubbish bins and landscaping.

§ Disability access and disability facilities associated with an education centre (not including a lift external to a building).

§ Art work that is carried out by or on behalf of a public land manager.

§ Oil pipelines.

§ Buildings and works associated with a dependent person’s unit.

§ The internal rearrangement of a building or works provided the gross floor area of the building, or the size of the works, is not increased and the number of dwellings is not increased.

§ Repairs and routine maintenance to an existing building or works.

§ Domestic services normal to a dwelling.

§ A rainwater tank with a capacity of not more than 4500 litres.

§ Bicycle pathways and trails.

§ A television antenna.

§ A flagpole.

§ A domestic swimming pool or spa and associated mechanical and safety equipment if associated with one dwelling on a lot.

§ An open-sided pergola or verandah to a dwelling with a finished floor level not more than 800 mm above ground level and a maximum building height of 3 metres above ground level.

§ A deck to a dwelling with a finished floor level not more than 800 mm above ground level.

§ A disabled access ramp.

§ Any works necessary to prevent soil erosion, or to ensure soil conservation or reclamation.

§ A solar energy facility attached to a building that primarily services the land on which it is situated.

§ Buildings and works associated with cat cages and runs, bird cages, dog houses, and other domestic animal enclosures associated with the use of the land as a dwelling.

This does not apply if a permit is specifically required for any of these matters.

62.02-3

Vegetation removal

30/08/2006
VC40
Any requirement in this scheme relating to the construction or carrying out of works does not apply to the removal, destruction or lopping of trees and the removal of vegetation.

This does not apply if a permit is specifically required to remove, destroy or lop trees or to remove vegetation.

62.03

Events on public land

19/01/2006
VC37
Any requirement in this scheme relating to the use of land or the construction of a building or the construction or carrying out of works does not apply to:

§ an event on public land; or

§ temporary buildings or works required for the event;

where that event has been authorised by the public land manager or by the council under a local law.

An event includes land used to provide temporary cultural or community activities and entertainment such as a concert, festival or exhibition.

This does not apply to public land where a local provision of this scheme specifically regulates an event for a particular site.

62.04

Subdivisions not requiring a permit

19/01/2006
VC37
Any requirement in this scheme relating to the subdivision of land does not apply to:

§ A subdivision by an authority acquiring the land which does not create an additional lot.

§ A subdivision by a public authority or utility service provider which does not create an additional lot other than for the sole purpose of a minor utility installation. This does not apply if a permit is required to subdivide land under any overlay.

§ A subdivision by an authority acquiring the land which creates additional lots if the additional lots are severed parcels of land without legal access to an existing road and the additional lots are retained by the acquiring authority or sold to an abutting land owner on the condition that the lot be consolidated with abutting land.

§ A subdivision which realigns the common boundary between two lots if all the land is in one urban zone and any of the following apply:

§   Any lot that is reduced in area meets the minimum lot area and minimum dimensions (if any) specified for the zone. This does not apply if the area of the smaller lot is limited by a provision of this scheme, or by a condition of a planning permit.

§   There is no minimum lot area specified for the zone, the area of the smaller lot is more than 230 square metres, and the area of either lot is reduced by less than 30 square metres.

§   There is no minimum lot area specified for the zone, the area of the smaller lot is 230 square metres or less, and the area of either lot is reduced by less than 5 percent or by less than 30 square metres, which ever is lesser.

§   The new boundary coincides with a boundary fence that is more than five years old. This does not apply if all the land is in one ownership.

§ A subdivision which realigns the common boundary between two lots if all the land is in one non-urban zone, the re-subdivision does not allow the number of dwellings the whole of the land could be used for under this scheme to increase, and any of the following apply:

§   Any lot that is reduced in area meets the minimum lot area and minimum dimensions (if any) specified for the zone. This does not apply if the area of the smaller lot is limited by a provision of this scheme, or by a condition of a planning permit.

§   There is no minimum lot area specified for the zone, and no part of the boundary is moved more than 1 metre. This does not apply if the area of the smaller lot would be less than the area specified by a condition of a planning permit.

§   There is no minimum lot area specified for the zone, the new boundary coincides with the location of a fence that is more than 5 years old, and no part of the boundary is moved more than 3 metres.

62.05

Demolition

19/01/2006

VC37

A permit is not required for the demolition or removal of a building or works unless a permit is specifically required for demolition or removal.

1.	Preparation of amendment	Have prepared Amendment VC115 to the Victoria Planning Provisions and all planning schemes in Victoria in accordance with sections 4B, 4J and 8 of the Planning and Environment Act 1987 (the Act), having: a. in accordance with section 12(2)(a) of the Act, had regard to the Minister’s directions; b. in accordance with section 12(2)(aa) of the Act, had regard to the Victoria Planning Provisions; c. in accordance with section 12(2)(ab) of the Act, had regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme; d. in accordance with section 12(2)(b) of the Act, taken into account any significant effects which I consider the amendment might have on the environment or which I consider the environment might have on any use or development envisaged in the amendment; and e. in accordance with section 12(2)(c) of the Act, taken into account the social effects and economic effects of the amendment.
Having prepared Amendment VC115 to the Victoria Planning Provisions and all planning schemes in Victoria in accordance with sections 4B, 4J and 8 of the Act:
2.	Exemption of amendment		exempt myself from the requirements of sections 17, 18 and 19 of the Act and the regulations in accordance with section 20(4) of the Act because the interests of Victoria make such an exemption appropriate; and
3.	Adoption of amendment		adopt the amendment without changes in accordance with section 29 of the Act; and
4.	Approval of amendment		approve the amendment without changes in accordance with section 4C of the Act.

62	USES, BUILDINGS, WORKS, SUBDIVISIONS AND DEMOLITION NOT REQUIRING A PERMIT
05/09/2013
Proposed VC115 ~~VC103~~
62.01	Uses not requiring a permits
14/03/2013	Uses not requiring a permits
Proposed VC115 ~~VC85~~	Any requirement in this scheme relating to the use of land, other than a requirement in the Public Conservation and Resource Zone, does not apply to: § The use of land for a Road except within the Urban Flood Zone and a Public Conservation and Resource Zone. § The use of land for Natural systems. § The use of land in a road if the use is associated with the use of adjoining land and is authorised by the Council under a local law. § The use of land in a road to trade from a stall, stand, motor vehicle, trailer, barrow or other similar device if the use is authorised by the Council under a local law. § The use of land for wind measurement by an anemometer for 3 years or less. § The use of land for earth and energy resources industry if the conditions of Clause 52.08 are met. § The use of land for a carnival or circus if the requirements of A ‘Good Neighbour’ Code of Practice for a Circus or Carnival, October 1997 are met. § The use of land for apiculture if the requirements of the Apiary Code of Practice, May 2011 are met. § The use of land for temporary portable land sales office located on the land for sale. § The use of land for a Telecommunications facility if the associated buildings and works meet the requirements of Clause 52.19. § The use of land for a helicopter landing site if the use meets the requirements of Clause 52.15-1.
62.02		Buildings and works
05/09/2013 VC103	Clauses 62.02-1 and 62.02-2 set out exemptions from permit requirements in this scheme relating to the construction of a building or the construction or carrying out of works. These exemptions do not apply to the removal, destruction or lopping of trees and the removal of vegetation. Exemptions for vegetation removal are set out in Clause 62.02-3.
62.02-1	Buildings and works not requiring a permit
05/09/2013 Proposed VC115 ~~VC103~~	Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works, other than a requirement in the Public Conservation and Resource Zone, does not apply to:
§ Buildings or works which provide for fire protection under relevant legislation. § Emergency works undertaken by, or on behalf of, a municipality, public authority or utility service provider in the exercise of any power conferred on them under any Act. § Buildings or works with an estimated cost of $1,000,000 or less carried out by or on behalf of a municipality. § Maintenance works carried out by a municipality or public authority to prevent or alleviate flood damage. § An anemometer located on a site for 3 years or less. § Buildings and works associated with a use on adjoining land or street trading if authorised under a local law. § Gardening. § Buildings and works associated with a minor utility installation. § Buildings or works which are a modification necessary to comply with a direction under the Dangerous Goods Act 1985 or the Occupational Health and Safety Act 2004 or a Waste Discharge Licence, Works Approval or Pollution Abatement Notice under the Environment Protection Act 1970. § Buildings and works associated with a telecommunications facility if the requirements of Clause 52.19 are met. § Buildings and works associated with a dam if a licence is required to construct the dam or to take and use water from the dam under the Water Act 1989. § Buildings and works associated with a carnival or circus if the requirements of A ‘Good Neighbour’ Code of Practice for a Circus or Carnival, October 1997 are met. § Buildings and works associated with apiculture if the requirements of the Apiary Code of Practice, May 1997 are met. § A temporary portable classroom associated with an education centre located on a site for 3 years or less. § A temporary shed or temporary structure for construction purposes, or a temporary portable land sales office located on the land for sale. § A children’s cubbyhouse. § External lighting normal to a dwelling. § The construction, alteration, removal or demolition of an observational bore where a licence has been issued for those works under Part 5 of the Water Act 1989. § Any works associated with the use of land for earth and energy resources industry if the conditions of Clause 52.08 are met. § A crop support or protection structure associated with horticulture, including a trellis, cloche, net and shadecloth. It does not include a structure with a solid roof or solid wall such as a glass house or igloo.
62.02-2	Buildings and works not requiring a permit unless specifically required by the planning scheme
23/09/2011 Proposed VC115 ~~VC77~~	Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works, other than a requirement in the Public Conservation and Resource Zone, does not apply to:
§ A fence. § A sign. § Roadworks. § Street furniture including post boxes, telephone booths, fire hydrants, bus shelters, shade sails, traffic control devices and public toilets. § Park furniture including seating, tables, shelters, rubbish bins, playground equipment, barbeques, shade sails, drinking fountains and public toilets. § Furniture and works normally associated with an education centre including, but not limited to, outdoor furniture, playground equipment, art works, drinking fountains, rubbish bins and landscaping. § Disability access and disability facilities associated with an education centre (not including a lift external to a building). § Art work that is carried out by or on behalf of a public land manager. § Oil pipelines. § Buildings and works associated with a dependent person’s unit. § The internal rearrangement of a building or works provided the gross floor area of the building, or the size of the works, is not increased and the number of dwellings is not increased. § Repairs and routine maintenance to an existing building or works. § Domestic services normal to a dwelling. § A rainwater tank with a capacity of not more than 4500 litres. § Bicycle pathways and trails. § A television antenna. § A flagpole. § A domestic swimming pool or spa and associated mechanical and safety equipment if associated with one dwelling on a lot. § An open-sided pergola or verandah to a dwelling with a finished floor level not more than 800 mm above ground level and a maximum building height of 3 metres above ground level. § A deck to a dwelling with a finished floor level not more than 800 mm above ground level. § A disabled access ramp. § Any works necessary to prevent soil erosion, or to ensure soil conservation or reclamation. § A solar energy facility attached to a building that primarily services the land on which it is situated. § Buildings and works associated with cat cages and runs, bird cages, dog houses, and other domestic animal enclosures associated with the use of the land as a dwelling. This does not apply if a permit is specifically required for any of these matters.
62.02-3	Vegetation removal
30/08/2006 VC40	Any requirement in this scheme relating to the construction or carrying out of works does not apply to the removal, destruction or lopping of trees and the removal of vegetation. This does not apply if a permit is specifically required to remove, destroy or lop trees or to remove vegetation.
62.03	Events on public land
19/01/2006 VC37	Any requirement in this scheme relating to the use of land or the construction of a building or the construction or carrying out of works does not apply to: § an event on public land; or § temporary buildings or works required for the event; where that event has been authorised by the public land manager or by the council under a local law. An event includes land used to provide temporary cultural or community activities and entertainment such as a concert, festival or exhibition. This does not apply to public land where a local provision of this scheme specifically regulates an event for a particular site.
62.04	Subdivisions not requiring a permit
19/01/2006 VC37	Any requirement in this scheme relating to the subdivision of land does not apply to: § A subdivision by an authority acquiring the land which does not create an additional lot. § A subdivision by a public authority or utility service provider which does not create an additional lot other than for the sole purpose of a minor utility installation. This does not apply if a permit is required to subdivide land under any overlay. § A subdivision by an authority acquiring the land which creates additional lots if the additional lots are severed parcels of land without legal access to an existing road and the additional lots are retained by the acquiring authority or sold to an abutting land owner on the condition that the lot be consolidated with abutting land. § A subdivision which realigns the common boundary between two lots if all the land is in one urban zone and any of the following apply: § Any lot that is reduced in area meets the minimum lot area and minimum dimensions (if any) specified for the zone. This does not apply if the area of the smaller lot is limited by a provision of this scheme, or by a condition of a planning permit. § There is no minimum lot area specified for the zone, the area of the smaller lot is more than 230 square metres, and the area of either lot is reduced by less than 30 square metres. § There is no minimum lot area specified for the zone, the area of the smaller lot is 230 square metres or less, and the area of either lot is reduced by less than 5 percent or by less than 30 square metres, which ever is lesser. § The new boundary coincides with a boundary fence that is more than five years old. This does not apply if all the land is in one ownership. § A subdivision which realigns the common boundary between two lots if all the land is in one non-urban zone, the re-subdivision does not allow the number of dwellings the whole of the land could be used for under this scheme to increase, and any of the following apply: § Any lot that is reduced in area meets the minimum lot area and minimum dimensions (if any) specified for the zone. This does not apply if the area of the smaller lot is limited by a provision of this scheme, or by a condition of a planning permit. § There is no minimum lot area specified for the zone, and no part of the boundary is moved more than 1 metre. This does not apply if the area of the smaller lot would be less than the area specified by a condition of a planning permit. § There is no minimum lot area specified for the zone, the new boundary coincides with the location of a fence that is more than 5 years old, and no part of the boundary is moved more than 3 metres.
62.05	Demolition
19/01/2006 VC37	A permit is not required for the demolition or removal of a building or works unless a permit is specifically required for demolition or removal.

[2021] VSC 465

5 August 2021