VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1452/2022
Permit Application no. P21/175	
CATCHWORDS	
Section 82 Planning and Environment Act 1987 (Vic) – Bushfire Management Overlay – no third party rights – no ability for applicants to call evidence, cross examine or make submissions in relation to matters arising under the Bushfire Management Overlay – jurisdiction of Tribunal in circumstances where the Responsible Authority and Country Fire Authority have agreed about relevant matters under the Bushfire Management Overlay	

APPLICANTs	Margaret Wood and Tim Wood	
responsible authority	Mornington Peninsula Shire Council	
Referral Authority	Country Fire Authority	
RESPONDENTs	James Pastellas and Janette Pastellas	
SUBJECT LAND	336-340 Tucks Road
SHOREHAM VIC 3916	
WHERE HELD	Melbourne	
BEFORE	Jeanette G Rickards, Senior Member	
HEARING TYPE	Preliminary Hearing	
DATE OF HEARING	21 September 2023	
DATE OF ORDER	21 November 2023	
CITATION	Wood v Mornington Peninsula SC [2023] VCAT 1285	

Order
1	The evidence of Mr Mark Reynolds and Mr Steve Mueck sought to be called by the applicants for review in the merits hearing of P1452/2022 is inadmissible. 

Jeanette G Rickards Senior Member			

Appearances
For applicants 	Ms J Lardner, Barrister, Direct Brief	
For responsible authority 	Mr R Macdonald, Town Planner	
For referral authority	No appearance	
For respondents	Ms E Marson, Solicitor, Best Hooper	

Reasons

1	On 29 September 2022 Mornington Peninsula Shire Council (the Council) issued a Notice of Decision to Grant a Permit to use and develop the land at 340 Tucks Road, Shoreham for the purpose of a dwelling, removal of native vegetation and associated works including works to an existing driveway at 336 Tucks Road. The respondents rely upon a carriageway easement over 336 Tucks Road for access. It is this access track that is required to be widened and upgraded. 
2	On the 25 October 2022 the owners of the adjoining property at 342 Tucks Road lodged an application for review. 
3	The application was listed for hearing on 18 July 2023. The hearing was adjourned to allow for a preliminary hearing to consider questions of law arising in relation to the Bushfire Management Overlay (BMO), the jurisdiction of the Tribunal and the extent to which evidence on behalf of the applicants for review could be called.  
Questions of Law
4	The respondents filed on 27 July 2023 the following questions of law:
Question 1
Are the Applicants for Review precluded from making submissions, calling evidence or cross examining witnesses about matters relating to the Bushfire Management Overlay and other bushfire related matters including the adequacy of the access and extent of works related to the access to cater for fire fighting vehicles having regard to the exemptions from notice, decision requirements and rights of review set out in clause 44.06-7 of the Mornington Peninsula Planning Scheme?
Answer
	Yes.
		Question 2
What is the effect of the exemption in clause 44.06-7 of the Bushfire Management Overlay on the right of the Applicants for Review to make submissions, call evidence or cross examine witnesses about bushfire related matters arising under clause 53.02 of the Planning Scheme, CFA requirements or the Bushfire Management Statement including in relation to access for fire fighting purposes?
		Answer
The applicants cannot make submissions, call evidence, or cross examine witnesses about bushfire related matters arising under clause 53.02 of the Planning Scheme, CFA requirements or the Bushfire Management Statement including in relation to access for fire fighting purposes. 	 
		Question 3
What is the jurisdiction of the Tribunal in the s.82(1) appeal to review the Council’s decision to grant a permit under the Bushfire Management Overlay and to consider bushfire related matters in the proceeding including in relation to the adequacy of the access and works required for access for fire fighting vehicles?
		Answer
The Tribunal does not have jurisdiction in an application for review under section 82 (1) of the Planning and Environment Act 1987 (Vic) (the PE Act) as the applicants have no rights of review in relation to matters under the Bushfire Management Overlay. 
		Question 4
Having regard to the answers to questions (1), (2) and (3), is the evidence of Mark Reynolds and Steve Mueck sought to be called on behalf of the Applicants for Review inadmissible to the extent that the evidence goes to matters in relation to the adequacy of works required to the existing or proposed access for fire fighting vehicles including any requirements for vehicle access for fire fighting purposes contained in Clause 53.02 of the Planning Scheme?
		Answer
To the extent that the evidence of Mark Reynolds and Steve Mueck goes to matters in relation to the adequacy of works required to the existing or proposed access for fire fighting vehicles including any requirements for vehicle access for fire fighting purposes contained in clause 53.02 such evidence is inadmissible. 
Planning provisions
5	The subject land is located within a Green Wedge Zone Schedule 1 (GWZ1) and is in a Designated Bushfire Prone Area (DBPA). The land is also affected by the Bushfire Management Overlay (BMO), Environmental Significance Overlay Schedule 10 (ESO10), Schedule 17 (ESO17) and Schedule 28 (ESO28), Erosion Management Overlay Schedule 1 (EMO1), Significant Landscape Overlay Schedule 1 (SLO1), Schedule 6 (SLO6) and Vegetation Protection Overlay Schedule 2 (VPO2).
6	Under the GWZ1, a permit is required under clause 35.04-1 for a section 2 use (dwelling). Pursuant to clause 35.04-5 a permit is required to construct or carry out a building or works associated with a use in section 2 and a building within 100 metres from a waterway.
7	Under the ESO10 and ESO17, a permit is required under clause 42.01-2 to construct a building or construct or carry out works, remove destroy or lop any vegetation, including dead vegetation.  
8	Under the SLO6, a permit is required under clause 42.03-2 to construct a building or carry out works, remove, destroy, or lop vegetation. 
9	Under the EMO1, a permit is required under clause 44.01-2 to construct a building or construct or carry out works.
10	Under the BMO, pursuant to clause 44.06-2, a permit is required to construct a building or construct or carry out works associated with accommodation.  Pursuant to clause 44.06-7 an application is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act, unless a schedule to this overlay specifies otherwise.
11	Under clause 52.17 a permit is required to remove Tree 2, a dead native Eucalyptus obliqua, which has fallen across the driveway.
12	A Bushfire Management Plan dated May 2022 and Bushfire Management Statement as required under clause 44.06-3 were provided by the respondent/permit applicants.

13	As can be seen above, the access to the subject land is not covered by the BMO.

14	The DBPA covers the whole of the land. 
15	Policy and particular provisions relating to Bushfire planning and exemptions are contained at clauses 13.02, 52.12 and 53.02 of the Planning Scheme. 
16	At a state level policy provisions are contained in clause 13.02-1S Bushfire Planning. This policy must be applied to land that is within a designated bushfire prone area; subject to a BMO; or proposed to be used or developed in a way that may create a bushfire hazard. 
17	Within the particular provisions under the Planning Scheme clause 52.12-5 provides exemptions ‘to facilitate the removal of vegetation in specified circumstances to support the protection of human life and property from bushfire’. Clause 52.12-5 provides:
Exemption to create defendable space for a dwelling under Clause 44.06 of this planning scheme
Any requirement of a planning permit, including any condition, which has the effect of prohibiting the removal, destruction or lopping of vegetation, or any requirement of this planning scheme to obtain a planning permit, or any provision of this planning scheme that prohibits the removal, destruction or lopping of vegetation or requires the removal, destruction or lopping of vegetation to be carried out in a particular manner, does not apply to the removal, destruction or lopping of vegetation to enable the construction of a dwelling, or the alteration or extension of an existing dwelling, and create its defendable space if all of the following requirements are met:
•	Land is in the Bushfire Management Overlay.
•	Land is in the General Residential Zone, Residential Growth Zone, Neighbourhood Residential Zone, Urban Growth Zone, Low Density Residential Zone, Township Zone, Rural Living Zone, Farming Zone or Rural Activity Zone.
•	The removal, destruction or lopping of vegetation:
o	Does not exceed the distance specified in Table 1 to Clause 53.02-3 of this planning scheme, based on the bushfire attack level determined by a relevant building surveyor in deciding an application for a building permit under the Building Act 1993 for a dwelling or alteration or extension to the dwelling; or
o	Is required to be undertaken by a condition in a planning permit issued after 31 July 2014 under Clause 44.06 of this scheme for a dwelling or an alteration or extension to the dwelling.
18	Clause 53.02-4.1 relates to landscape, siting and design objectives including that ‘development is sited to provide safe access for vehicles, including emergency vehicles’. Clause 53.02-5 Table 5 details vehicle access design and construction depending on the length of access.  
Applicants position
19	The applicants contend that:
a.	the questions of law were not questions of law (as had been posited by Member Templar in his Remarks that accompanied his Orders);
b.	reiterated that the applicants do not rely on grounds or submissions that raise matters relating to the BMO or “bush fire related matters”; and
c.	stated that in those circumstances, the preliminary hearing was not required.
20	No further orders were made by the Tribunal, following the posing by the respondents of the questions of law. The matter has come before me as a preliminary hearing. 
21	The applicants contend the questions of law are misconceived. 
22	The applicants question why the respondents have raised issues around bushfire given the applicants’ grounds do not and nor does the evidence they intend to rely upon go to bushfire related matters under the BMO or clause 53.02.
23	The applicants state they do not intend to make submissions, call evidence, and cross examine witnesses in relation ‘bushfire related issues’, CFA requirements and/or the Bushfire Management Statement prepared by Nepean Planning Consultants arising pursuant to the BMO and/or clause 53.02 of the planning scheme. 
24	The applicants state a permit is required under clause 52.17, ESO10 and ESO17 to remove, destroy or lop native vegetation including dead vegetation. There are no exemptions under these provisions to seek review.  The applicants submit that various report submitted to the Council contain inaccurate and/or inadequate assessment. This is made clear by the expert evidence upon which the applicants rely.
25	In this regard, whilst the respondents rely upon the decision in Clifftop at Hepburn Pty Ltd v Hepburn SC, the applicants distinguish this decision. 
26	Clifton indicates that when a BMO applies it ‘covers the field; in terms of bushfire issues this includes consideration of clause 53.02 and clause 13.02-1S. The Tribunal in Clifton stated:
163.	So, if a responsible authority, having obtained the views of the CFA, considers that the acceptable planning outcome is to grant the planning permission sought under the BMO, the planning permission will issue, and no third parties are involved in this decision being made.
…
256.	…whilst permission is not required under the BMO for the use of the Land, issues such as access to the Land will also be taken into account in the assessment under the BMO and so the BMO ‘covers the field’ with respect to the assessment of those issues also.
Respondents position
27	The respondents submit that based on the exemptions contained in clause 44.06-7, the applicants are precluded from raising bushfire related grounds or matters under the clause including by way of calling evidence, cross examining witnesses, or making submissions. 
28	The respondents referred to the Supreme Court decision of Sweetvale Pty Ltd & Anor v Victorian Civil and Administrative Tribunal & Ors where it was held:
17.	…The Tribunal, in exercising its review jurisdiction exercises the functions of the responsible authority as the decision maker. It follows that no right of review to the Tribunal lies where an exemption is imposed. Any review is limited to those parts of the application for the permit to which the appellants were able to object in accordance with the Act and the Scheme.
29	Section 82(3) of the Planning and Environment Act 1987 (the PE Act) provides:
If a planning scheme exempts a decision of an application for a permit from subsection (1), an application for review cannot be made under that subsection in respect of that decision.
30	The respondents submitted the applicants are therefore limited to the permit triggers they are validly able to object to. In this respect it is the triggers under the GWZ1, ESO10 and 17, EMO1, SLO6 and Clause 52.17. 
31	Whilst the policy provision contained in clause 13.02-1S are to be considered, there are no permit triggers enlivened by this policy. The policy applies to land that is in a DBPA, subject to a BMO or proposed to be used or developed in a way that may create a bushfire hazard. Therefore, the policy only serves as guidance to any discretion under any permit triggers that would fall under one of three limbs referred to above.
32	There is no permit trigger found under the DBPA, there is a permit trigger under the BMO, and this is exempt from third party review. 
33	The respondents submit that even though the BMO only affects part of the subject land, clause 13.02-1S and other bushfire related matters can only be considered in assessing a permit trigger under the BMO. Further, bushfire considerations cannot be raised by third parties where in this case the balance of the land including the access is not subject to the BMO. 
34	As referred to by the Tribunal in Booth v Strathbogie SC  clauses 13.02-1S and 52.03 could not be considered as the subject land was only within a Farming Zone and not within a BMO. There was therefore no integration of the policies triggered under the zone provisions. In this case it was submitted there is no integration between the permit triggers under GWZ1 and clause 13.02-1S as there is no express requirements under GWZ1 to undertake bushfire planning nor provide applicable performance standards or requirements in relation to bushfire matters. 
Responsible Authority’s position
35	The Council’s position is that the applicants are precluded from making submissions and/or calling evidence in relation to bushfire and bushfire related matters arising from the requirements of clauses 13.02-1S, 44.06 and 53.02.
Expert Witnesses
36	The applicants for review seek to rely upon two expert witnesses. Mr Mark Reynolds, Director/Principal Consulting Arborist of Arbor Survey Pty Ltd. Mr Reynolds qualifications include Bachelor of Applied Science (Horticulture – Majoring in Arboriculture), Advanced Quantified Tree Risk Assessment, International society of Arboriculture (ISA) Tree Risk Assessment Qualification and Certificate 4 in Drafting and Design.
37	Mr Steve Mueck, Principal Botanist Steve Mueck Biodiversity Pty Ltd. Mr Mueck’s qualifications include a Bachelor of Science (Hons) and Master of Environmental Science.
38	The respondents have raised issues with the evidence of both experts. In particular that the expert reports express opinions about:
the extent of works that would be require(d) for the driveway works shown on the architectural plans and consequential impact on trees and vegetation, and in particular the nature of the construction of the driveways to accommodate CFA/Bushfire Management Statement access requirement of fire truck access in an emergency.
39	The applicant’s ground 7(f) in their amended statement of grounds states:
Inadequate and inaccurate assessment has been undertaken in relation to the impact of the proposed access route on native vegetation.
40	The applicants submit the evidence of Mr Reynolds and Mr Mueck is not concerned with the adequacy of the works required to allow access for firefighting vehicles but is relevant to the issue in ground 7(f).
41	Several paragraphs in Mr Reynolds statement suggests the upgrades to the existing access to achieve the standard required by the Country Fire Authority (CFA) and the BMO have not considered the effects such upgrades would have on vegetation near the access.
42	Mr Mueck indicates he was engaged by the applicants to provide his opinions relating to potential impacts to native vegetation and other biodiversity associated with the proposed development on 340 Tucks Road and the associated upgrade of the existing access provided through 336 Tucks Road. He describes this as the ‘study area’.
43	Mr Mueck expresses opinions on the implications of the construction of an all-weather access with a load limit of 15 tonnes to the standard required by the CFA. It is his evidence that the proposal is likely to impact on more than 0.5 hectares of native vegetation rather than concluding, as the permit application does, that the loss is limited to a single tree (which ironically does not trigger a permit as it is not standing).
44	Upgrades to the access are required under the BMO. Provided the proposal meets the requirements of the CFA in this regard there is no opportunity for the applicants to make submissions or call witnesses to address the impacts. 
Jurisdiction of the Tribunal
45	The Council submitted the Tribunal does not have jurisdiction to review Council’s decision to grant a permit under the BMO and to consider bushfire related matters. 
Conclusion
46	Whilst the applicants have stated they are not raising issues regarding the BMO or bushfire related matters the issues of concern they have expressed relate to the likely impacts on vegetation along the access way. Mr Mueck clearly states he was engaged by the applicants to provide his opinions relating to potential impacts to native vegetation and other biodiversity associated with the upgrade of the existing access provided through 336 Tucks Road.
47	It is correct that the provisions of clause 52.17 and ESO10 and ESO17 all deal with the removing, destroying or lopping of native vegetation, however, the matters raised by the applicants in this regard are focussed on the access and the access has been specifically dealt with as part of the BMO and the requirements for vehicle access that the applicants are not able to object to or appeal.
48	The applicants experts both refer to specifically the vegetation that is along the access due to the applicants having no rights of review in relation to this aspect they are unable to rely on the expert evidence and the Tribunal in such circumstances has no jurisdiction to consider any matters raised. 

Jeanette G Rickards Senior Member