VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1636/2020
Permit Application no. KP2011/19	

CATCHWORDS	
Section 149(1)(d) of the Planning and Environment Act 1987;  Kingston Planning Scheme;  Permit KP2011/19;  Question of law;  Land to which the permit applies;  Whether permit is ambiguous or not clear;  Relevant principles in interpreting a permit	

APPLICANT	Bingo Acquisitions Pty Ltd	
responsible authority	Kingston City Council	
SUBJECT LAND	2/90 Fairbank Road, Clayton South	
HEARING TYPE	Preliminary Hearing	
DATE OF HEARING	25 March 2021	
DATE OF ORDER	8 April 2021	
CITATION	Bingo Acquisitions Pty Ltd v Kingston CC [2021] VCAT 325	

Order
Question of law
1	The question of law in this proceeding is answered as follows:
Question
What is the land to which planning permit KP-19/2011 applies?
Answer
The land to which planning permit KP-19/2011 applies is that part of 90 Fairbank Road (and that part of Lot 1 Plan of Subdivision 204296E) that is shown on the site plan endorsed under condition 1 of the permit comprising:
(a)	the footprint of ‘Existing Warehouse 2’,
(b)	all of the ‘Rear Yard’,
(c)	the hardstand area between ‘Existing Warehouse 2’ and the ‘Rear Yard’, and
(d)	the accessway between the crossover to Fairbank Road on the east side of the frontage and the rear (southern) wall of ‘Existing Warehouse 2’, including the 15 car spaces adjoining ‘Existing Warehouse 2’.
Declaration
2	The responsible authority’s application for a declaration is allowed.
3	I declare that the land to which planning permit KP-19/2011 applies is the area specified in order 1.
Administrative mention
4	The proceeding is adjourned for administrative mention on 22 April 2021. By that date each party must advise the Tribunal in writing:
•	whether the matter is resolved or is proceeding to a hearing;
•	if that party is ready for a hearing;
•	that party’s estimate of the duration of the hearing; 
•	whether any other procedural orders are required; and
•	whether a further practice day hearing or mention is requested.
No attendance is necessary.
5	Any party may request that the administrative mention be converted to a Practice Day Hearing.  The party making the request must file and serve a Practice Day Request on the form available from the Tribunal’s website.

Geoffrey Code
Senior Member			

Appearances
By videoconference
For Bingo Acquisitions Pty Ltd	Mr Paul Connor QC and Ms Serena Armstrong of Counsel, instructed by Minter Ellison Lawyers
They tendered the affidavit of Stephanie Mann affirmed on 12 March 2021.  Ms Mann was not called to give evidence.	
For Kingston City Council	Mr Matt Sherwell, SHM Lawyers
He tendered the affidavit of Kirsty Leskie affirmed on 15 March 2021.  It included an earlier affidavit affirmed by Ms Leskie on 11 November 2020.  Ms Leskie was not called to give evidence.	
Reasons
What is this proceeding about?
1	Bingo Acquisitions Pty Ltd (in these reasons, Bingo) occupies the land at 90 Fairbank Road, Clayton South, and uses it for materials recycling.
2	The use of the land for materials recycling was allowed by permit KP-19/2011 (the permit) issued by Kingston City Council (the Council) under the Kingston Planning Scheme (the Scheme) on 12 April 2011.
3	Bingo did not apply for the permit.  The Council issued the permit many years before Bingo began its occupation of 90 Fairbank Road, Clayton South.
4	The land at 90 Fairbank Road, Clayton South, is an unsubdivided parcel with an area of 12,750 square metres known as Lot 1 Plan of Subdivision 204296E (Lot 1).  It suffices to state it is in a broad industrial area and that it contains three large industrial buildings located in a tandem form along the 271 metres depth of Lot 1.
5	Bingo focuses its materials recycling use to the middle of the three buildings.  In these reasons, I will refer to this building as ‘warehouse 2’ or ‘factory 2’.  Vehicles unloading or loading materials have been accessing warehouse 2 via a driveway on the east side of warehouses 1 & 2.  Bingo now wants to intensify its use across the whole of Lot 1.  In particular, it wants vehicles to enter warehouse 1 for some operations before exiting and entering warehouse 2 for other operations before exiting the land via the driveway.
6	Plans for the use are endorsed under condition 1 of the permit.
7	Condition 3 of the permit is in a typical form and provides that the use as shown on the endorsed plans must not be altered without the Council’s consent.
8	Bingo impliedly accepts that it wishes to alter the use as shown on the endorsed plans.  It applied to the Council for ‘secondary consent’ under the permit to substitute the endorsed plans (the secondary consent application).  
9	Bingo has now applied to the Tribunal under section 149(1)(d) of the Planning and Environment Act 1987 (the PE Act) to review the Council’s failure to decide the secondary consent application.  The Council has subsequently decided to oppose the secondary consent application.
10	Bingo and the Council have agreed that the proceeding raises a question of law and that it is desirable that the question be determined at a preliminary hearing.  Bingo and the Council have agreed the question is:
What is the land to which planning permit KP-19/2011 applies?
11	The Tribunal fixed this preliminary hearing to determine the question.
THE permit
12	The relevant facts about the permit may be summarised as follows.
13	The address of the land in the permit is described as:
Factory 2/90 (Lot 1 on LP204296) Fairbank Road, Clayton South
14	The permit states the following is allowed:
To use this site for materials recycling, in accordance with the plans to be submitted pursuant to Condition 1 hereof.
15	As I have stated, condition 1 of the permit required amended plans to be submitted for endorsement by the Council.  In the usual way, the condition states that when the plans are endorsed they will form part of the permit.
16	The endorsed plans comprise two drawings or ‘sheets’.  Sheet 1 is identified as a ‘site plan’ and shows the whole of Lot 1.  Sheet 2 is identified as a ‘proposed floor plan’ (the floor plan) and shows the internal layout of warehouse 2 and an elevation of materials sorting equipment within warehouse 2.
17	The floor plan shows vehicles entering warehouse 2 from an east-facing door off the driveway.  It also shows those vehicles unloading into a ‘waste tipping area’ in the north-west corner of warehouse 2 and exiting warehouse 2 via a south-facing door and exiting Lot 1 to Fairbank Road via the driveway.
18	The site plan shows an open area to the rear of warehouse 2 about 30 metres wide and about 15 metres deep as ‘concrete paving’ (the hardstand area) on which vehicles exiting from warehouse 2 manoeuvre to exit Lot 1 along the driveway.
19	The site plan also shows an open area to the rear of the hardstand area also about 30 metres wide and about 65 metres deep as the ‘rear yard’.  It is shown as largely paved with crushed rock.  The rear yard includes a relatively small ‘re-load area’ along the west boundary containing five storage bays that is hard paved.  It also includes a storage shed and a ‘truck parking area’.
20	The site plan also shows about 65 car spaces along the driveway and in front of warehouse 1.  Fifteen of those spaces are ninety-degree spaces along the east boundary opposite warehouse 2.
21	Neither the site plan nor the floor plan mark any part of Lot 1 as not to be used for materials recycling.  As well, neither marks any part of Lot 1 as not being part of the permit.  The permit contains no restrictions on the allocation of the parking spaces.
22	In ‘what the permit allows’ and in various conditions, the permit inconsistently refers to the ‘site’, the ‘subject site’, the ‘land’ and ‘the premises’.
Principles
23	In summary, the following principles apply to the construction or interpretation of a permit.
24	A permit should be interpreted by reference only to the text of the permit, including the conditions and any plans or other documents expressly or impliedly forming part of the permit.
25	As a permit is a public document, it should be clear on its face and needs to be understood by members of the public and those occupying or intending to occupy land.
26	Only if the permit is ambiguous or unclear is it permissible to have recourse to other documents.  The application for permit might then be considered, particularly if the application is specifically referred to in the permit.
27	The authorities show that not all documents submitted by an applicant before or after the permit application is lodged may be considered.  Some documents prepared by a responsible authority, such as an officer’s report, would usually not be considered.  Documents prepared after the issue of the permit would also usually not be considered.
28	This is consistent with an overriding principle that, in interpreting a permit, the subjective intention of the applicant for permit or of the responsible authority is irrelevant.  Ascertaining the meaning of a permit is an objective test from the standpoint of the reasonable person.
29	The various authorities relating to interpretation or construction of a permit application should be treated with caution when interpreting or construing a permit.  This includes authorities relating to the ‘planning unit’ in the context of a permit application or existing use rights. 
findings
30	Bingo’s primary submissions are that the land to which the permit applies is the whole of Lot 1 because:
(a)	The address of the land in the permit refers to ‘factory 2/90’ in Fairbank Road as well as ‘(Lot 1 on LP204296)’.
(b)	The address does not refer in the parentheses to ‘being part of Lot 1 on LP204296’.
(c)	The endorsed plans do not expressly restrict the use to ‘factory 2’ as being the floor area occupied by that building.
(d)	The endorsed plans do not restrict the use to some part of Lot 1.
31	I do not accept most of Bingo’s submissions.
32	To rely on the reference to ‘Lot 1’ in the parentheses is to give no meaning to the expression ‘factory 2’.  I must give meaning to the address as a whole.
33	The inclusion of the whole of Lot 1 in the site plan is not determinative.  It is well established that the land to which a permit applies does not need to be the whole of the land within the boundaries of a particular parcel of land described in a land title.  To show Lot 1 in the site plan is common practice because it shows the land to which the permit applies within its cadastral context.  Objectively, the reference to Lot 1 is just a reference to the unsubdivided lot in which factory 2 is located.
34	It is correct that the site plan does not expressly restrict the use to ‘factory 2’ or does not expressly state some parts of Lot 1 are not included in the land to which the permit applies.
35	However, I do not find that warehouses 1 & 3 (at least, the floor areas occupied by those buildings) are part of the land to which the permit applies because the site plan only identifies where those warehouses are located and does not ascribe any activity associated with material recycling for those warehouses.  A contrary conclusion cannot be discerned from the conditions of the permit.
36	The address of the land in the permit does not clarify what is the land affected by ‘factory 2’.  I must make a finding about what is the land affected by ‘factory 2’.
37	If the address is ambiguous or unclear having regard to the permit as a whole, it might be necessary to refer to relevant permit application documents.  As I have stated, the text of the permit inconsistently refers to various terms, including ‘site’ and ‘land’.  However, I find what is ‘factory 2’ is not ambiguous or unclear when objectively interpreting the permit as a whole.
38	In my opinion, ‘factory 2’ objectively includes a combination of five separate areas.
39	First, factory 2 includes the whole of the floor area or footprint of ‘Existing Warehouse 2’.  This is shown on the site plan.
40	Second, factory 2 includes the curtilage of warehouse 2, comprising the vehicle manoeuvring areas on the east and south sides of warehouse 2.  These areas are shown on the site plan.  These areas are also referred to in the conditions of the permit, especially condition 1.
41	Third, factory 2 includes the area occupied by the 15 car spaces directly opposite warehouse 2 adjoining the driveway.  These spaces are shown on the site plan.
42	I would not include the other car spaces (about 50 in total) adjoining to the side and front of warehouse 1, despite some uncertainty having regard to the text of condition 13.  Condition 11 provides that no more than ‘nine (10)’ (sic) persons must work from ‘the premises’ at any one time.  In context, premises has the same meaning as ‘factory 2’.  Despite the relevant Scheme requirements for car parking for materials recycling, it cannot have been intended to require about 65 car spaces for a maximum of nine (or 10) materials recycling employees or visitors.
43	Fourth, factory 2 includes the whole of the rear yard to the south of warehouse 2 which includes the ‘re-load area’, materials storage bays, the truck parking area, and the footprint of the shed.
44	The re-load area can only be associated with the material recycling use.  The truck parking area can only be for vehicles associated with the materials recycling use.  There is no indication that the shed in the rear yard is associated with any other use of Lot 1.
45	Fifth, factory 2 includes the driveway between Fairbank Road and warehouse 2 located along the eastern boundary of Lot 1.  That is a necessary implication having regard to the principles in Marble Swirl Holdings Pty Ltd v Kingston CC.
46	It is therefore unnecessary to have recourse to other documents, such as the permit application and any permissible documents associated with or forming part of that application.
Other documents
47	Should I be wrong in finding the permit is objectively neither ambiguous nor unclear, I will make some observations about the many other documents relied upon by both the Council and Bingo.
48	Ms Leskie’s affidavit includes over 200 pages of documents.  They include documents relating to the permit application, including the application form, a site plan and floor plan, a cover letter, a tenancy plan, a response to a further information request and a delegate’s report recommending the grant of a permit.  They also include a site management plan submitted in accordance with condition 2 of the permit.
49	The starting point of those documents is that the permit application states the address of the land is ‘Unit 2 – 90 Fairbank Road Clayton’.  In my opinion, this address in the context of the other documents forming part of the permit application has the same meaning as ‘factory 2’ in the permit.
50	I would give little or no weight to some of the documents in the affidavit.  These include documents relating to:
(a)	Permit KP-75/08 issued in 2008 to construct and use warehouse 1 (the 2008 permit).  The plans endorsed under this permit showed warehouses 2 & 3 as existing buildings.
(b)	An application in 2014 to amend the 2008 permit.
(c)	A contravention notice issued in 2013 relating to the permit and correspondence from the Council in 2015 regarding results of an enforcement investigation of the permit.
(d)	An application in 2014 to amend the permit.  The Council refused this application in 2015.
(e)	An application in 2015 to amend the permit.  The application included a planning report.  The application was later withdrawn.
51	In its submissions, the Council conceded that most of these documents would only be relevant if I found that the land to which the permit applied was the whole of Lot 1.  Based on my findings, it is unnecessary to consider these documents.
52	As well, the parties did not oppose my recourse to documents tendered in another proceeding, being an application by the Council for an enforcement order against Bingo in relation to alleged contraventions of the Scheme and the permit.  I recently heard that application.  I am deliberating on final orders.  I have reviewed those documents and it suffices to state that they do not dissuade me from my findings on the question of law.
declaration
53	The Council has applied for a declaration that the land to which the permit applies is warehouse 2, the rear yard and the driveway.
54	The Council’s application is made under section 124 of the Victorian Civil and Administrative Tribunal Act 1998.  This section empowers the Tribunal to make a declaration concerning any matter in a proceeding in addition to any orders it makes in the proceeding.
55	In addition to answering the question of law, I will make a declaration as to the land to which the permit applies.  This will formalise the answer to the question of law and will assist the parties in their preparation for the hearing of the proceeding.
56	I will allow the Council’s application in part by making a declaration consistent with the answer and reasons in relation to the question of law.
Conclusion
57	I will answer the question of law as set out in the order and make a declaration consistent with the answer.

Geoffrey Code
Senior Member