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 Act 1987 (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:
1	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.
2	The Fox land title is unusual, in a State in which 96 per cent of coastal land is in public ownership.  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.
3	In December 2013, the Registrar of Titles acceded to an application by the Fox parties to correct the description of the Fox land in the Register, 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.
4	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.

5	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.
6	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.
7	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.
8	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.
9	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.
10	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. 
11	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.
12	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.
13	As a result, the proceeding must be dismissed.
Planning Act – relevant provisions 
14	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.
15	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’.  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.
16	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;
…
17	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.
18	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.
19	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.
20	The Minister must publish notice of the approval of an amendment to the VPPs in the Government Gazette.  The amendment comes into operation on publication of the notice of approval, or on any later day specified in the notice.  The notice of approval must be laid before each House of Parliament, either of which may revoke the amendment by resolution. 
21	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.
22	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;
…
23	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).
24	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.  The Minister is a planning authority for every planning scheme, as provided in s 8:
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.
25	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
…
26	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.  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.
27	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.
28	Where notice of an amendment is given under s 19, any person may make a submission about the amendment to the planning authority.  The planning authority is obliged to consider all submissions made by the date set out in the notice.  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.  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.
29	After complying with the notice and public submission requirements of Pt 3, the planning authority may adopt the amendment with or without changes.  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:
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.
30	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.
…
31	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’.
32	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.  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.
33	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.  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.
34	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, and a failure to grant a permit within the prescribed time.  Additional rights of review by the Tribunal are provided in Pt 6, Div 5, in which s 149 provides:
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.
35	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.
36	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
37	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.
38	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’.
39	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.
40	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.	
41	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.
42	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.
43	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.
44	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.
…
45	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.
46	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
47	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, 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.
Fox parties’ submissions
48	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.
49	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’.
50	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.
51	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.
52	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.
Minister’s submissions
53	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.  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’.  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.
54	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.
55	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.
56	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, 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).
57	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
58	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.
59	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.
60	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.
61	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’.  The references in the Reasons to the Crown’s interests and views concerning this land are plainly not references to any proprietary interest.
62	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.  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
Fox parties’ submissions
63	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.
64	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.
Minister’s submissions
65	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.  He further disputed that any of the matters had been disregarded.
66	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’.  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.
67	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.
68	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
69	Reading the Minister’s Reasons fairly and as a whole, and not ‘with an eye keenly attuned to the perception of error’, I am not satisfied that he failed to consider any matter that he was bound by s 20(4) to take into account.
70	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.  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:
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.
71	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.
72	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.
73	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.  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
Fox parties’ submissions
74	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.  They submitted that the Minister’s decisions would not have been made but for two extraneous purposes:
(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.
75	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.
76	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.
77	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, on the basis that the Minister’s decisions were not only prompted by the Registrar’s correction, they also reversed its effect.
Minister’s submissions
78	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.  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.  
79	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.  Unlike Donovan v City of Sale, 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.
80	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.
81	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’ 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’. 
Consideration
82	The relevant principles were summarised by Kyrou J in Maddingley Brown Coal Pty Ltd v Environment Protection Authority:
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.
83	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.  
84	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’, I accept that the Minister’s media release of 4 April 2014 can be relied on as evidence of his purpose.
85	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.
86	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.
87	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.
88	Further, as discussed below, any decision by the Secretary to refuse consent would be subject to merits review by the Tribunal.
89	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
90	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.
91	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.
92	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.
93	As to whether the Minister was acting as a ‘planning authority’, the Fox parties pointed out that the Minister said that he was acting in that capacity in the formal instrument that recorded his decision.  They submitted that, in amending the planning schemes, the Minister was acting as a planning authority under s 8 of the Planning Act.  They argued that s 4J(6) does not relate to the Minister, but to a person authorised by the Minister under s 4B(2) to prepare an amendment to the VPPs, and so does not advance the Minister’s position. 
Minister’s submissions
94	The Minister responded that the former Minister was acting in his capacity as the Minister and not as a ‘planning authority’ in preparing Amendment VC115 or in making the Amendment Decision.  That was because he was amending the VPPs, under Pt 1A of the Planning Act, rather than amending a particular planning scheme, under Pt 3.  The argument went as follows.
(a)	Section 4B(3) of the Planning Act specifies that certain provisions in Pt 3 (Amendment of Planning Schemes) and Pt 8 (Panels) apply to an amendment to the VPPs ‘as if’ the amendment were an amendment to a planning scheme under Pt 3 and the Minister were the planning authority.
(b)	The use of the words ‘as if’ in s 4B(3) indicates that the Minister is not a planning authority by virtue of s 8(2) when preparing an amendment to the VPPs.
(c)	Section 4B(3) would be surplusage if the Minister was a planning authority under s 8(2) when preparing an amendment to the VPPs, because the specified provisions in Pt 3 and Pt 8 already apply to a ‘planning authority’.
(d)	Notably, ss 7 and 12 are not included in the provisions that are applied by s 4B(3) to the preparation of an amendment to the VPPs by the Minister.
95	The Minister further submitted that the former Minister was not acting as a planning authority under s 8(2) by amending all planning schemes in Victoria under s 4J.  He relied on s 4J(6) of the Planning Act, which provides that nothing in s 8 limits the power of a person authorised under s 4B to prepare an amendment to a planning scheme under s 4J.  
96	Acknowledging that the instrument signed by the Minister on 28 March 2014 stated that the Minister had prepared Amendment VC115 under ss 4B, 4J and 8 of the Planning Act, the Minister submitted that the proper sources of power were ss 4B and 4J, and that the reference to s 8 was a mistake.  He relied on authorities to the effect that a mistake in identifying the source of power does not invalidate a decision if the decision-maker in fact had the necessary power.
97	In the alternative, the Minister argued that the evidence established that the then Minister in fact had regard to the Direction in preparing Amendment VC115, as required by s 12(2) of the Planning Act.  Further, the amendment complied with paragraph 12 of the Direction, because it did not include private land in the PCRZ.  The beach land was already within the PCRZ when Amendment VC115 commenced.
Consideration
98	It is not necessary to determine whether the Minister was acting as a ‘planning authority’ in preparing and approving Amendment VC115.  It is clear from the instrument by which he made the Amendment Decision that he believed he was acting in his capacity as a planning authority under s 8 of the Planning Act, as well as in his capacity as Minister under ss 4B and 4J.  That instrument records that the Minister had regard to the Minister’s directions in accordance with s 12(2)(a) of the Planning Act, as well as the other considerations specified in s 12(2).  There is no evidence on which I could make a contrary finding.
99	Critically, there was no failure to comply with paragraph 12 of the Direction, because Amendment VC115 did not include private land in the PCRZ.  It applied to land that was already in the zone.  As the Fox parties accepted, the Direction did not require the beach land to be rezoned.  It simply did not address the circumstance where land that is in a public zone later becomes private land, and said nothing about the planning controls that might be applied in that circumstance.
100	I do not accept that Amendment VC115 was invalid for failure to have regard to or to comply with the Direction.
Amendment Decision – power conferred on Secretary
Fox parties’ submissions
101	The Fox parties also challenged the Amendment Decision on the basis that it impermissibly conferred a power on the Secretary.  They argued that it was beyond the power in s 6 of the Planning Act for a planning scheme to confer on a person such as the Secretary a power to give or withhold consent to a permit application.  The Planning Act provides for powers of this kind to be conferred on a responsible authority or a referral authority, and to be exercised within the framework provided by the Planning Act – including being subject to merits review by the Tribunal.  The effect of Amendment VC115 was to include in all planning schemes a power or discretion to be exercised by a third party, outside the scheme of the Planning Act, as a precondition to a permit application.  The Fox parties submitted that this conferral on the Secretary of an unreviewable power was inconsistent with, and repugnant to, the Planning Act.
102	They relied on two decisions of this Court that concerned analogous preliminary consent requirements: Shire of Sherbrooke v Aitken and Shire of Sherbrooke v FL Byrne Pty Ltd.
103	In Aitken, the relevant planning scheme provided that the responsible authority could permit certain subdivisions of land if it was ‘satisfied by prior resolution that the grant of a permit would not prejudice the objective or orderly and proper planning of the area in which the land is situate and that special circumstances exist which warrant the grant of a permit’.  The Council had declined to deal with applications for permits to subdivide land on the basis that it had not made a prior resolution in favour of granting the permits.  Justice Gobbo held that the Town Planning Appeals Tribunal could hear and determine appeals against the Council’s refusal to grant the permits.  His Honour also doubted whether it was within power ‘to include a provision in a scheme that in effect attempted to shut out a right of appeal conferred by the Act’, and opined that there was no such power conferred by the Third Schedule of the Town and Country Planning Act 1961 (Vic).
104	By the time of the decision in FL Byrne, the planning scheme provided that the subdivision of land in the reserved residential zone was to be in accordance with a development plan approved by the responsible authority.  Applying Aitken, Southwell J held that, to the extent the relevant clauses of the planning scheme purported to prohibit the grant of a permit until a development plan was promulgated, they were beyond power and invalid.  His Honour could not accept that ‘the legislature intended that by so simple a device the ordinary right of appeal is denied’.
105	The Fox parties submitted that both of these authorities supported their argument that the consent requirement was beyond the power to amend a planning scheme conferred by the Planning Act on the Minister.  They argued that the requirement for the Secretary’s consent was ‘not a provision which relates to the use, development, protection or conservation of any land in an area’, as permitted by s 6(1) of the Planning Act.  Rather, it was a provision designed to inhibit the making of planning permit applications by persons in their position, who owned land in the PCRZ.
Minister’s submissions
106	The Minister contended that the broad language of s 6(1)(b) of the Planning Act encompassed a provision in a planning scheme that requires a permit application to include the written consent of the Secretary.  Although the scope of s 6(1)(b) was not limited by the specific matters listed in s 6(2), s 6(2)(b) provided that a planning scheme may ‘regulate or prohibit the use or development of any land’.  That provision supported a planning scheme amendment prohibiting the use or development of land conditionally, subject to the consent of some person or body.  He referred to two decisions of the High Court in which local government by-laws that permitted an activity conditional on the consent or approval of some body were held to be valid.
107	Further, the Minister disputed the Fox parties’ characterisation of the consent power as designed to inhibit or prohibit the making of permit applications.  The Minister repeated his submission that the amendment did not give the Secretary an unfettered or absolute discretion to refuse to consent to the making of a permit application.  He argued that the power was a narrow one, distinct from the power to decide whether or not the permit should be granted, and must be exercised reasonably and for the purpose for which it was conferred.  An unreasonable or capricious refusal to consent would be amenable to judicial review.
108	The Minister made an alternative submission that a decision by the Secretary to refuse consent could be subject to merits review by the Tribunal, under s 149 of the Planning Act.  That submission was put on the basis that the reference to the Secretary in cl 36.03-3 is a reference to the body corporate established by s 6 of the Conservation, Forests and Lands Act 1987 (Vic) (Conservation Act), with the consequence that the Secretary is a ‘public authority’ and a ‘specified body’ for the purposes of ss 148 and 149 of the Planning Act.  The Minister submitted that cl 36.03-3 could be read in this way to save it from invalidity, if the absence of merits review was considered to be critical.
109	Finally, if the consent requirement was found to be invalid, the Minister submitted that it could be severed from the remainder of the amendment.
Fox parties’ reply
110	The Fox parties argued that there was no textual basis to give cl 36.03-3 the narrow reading contended by the Minister.  To the contrary, its plain words indicated that the power to refuse to consent to a permit application was in addition to the Secretary’s ability to consent to the grant of the permit.
111	In submissions filed after the trial, the Fox parties accepted that, at the time Amendment VC115 was approved, the Secretary was a ‘body corporate’ for the purposes of s 6 of the Conservation Act.  However, they did not make any submission as to whether that had the consequence that a refusal by the Secretary to consent to a permit application, under cl 36.03-3 of any planning scheme, could be subject to merits review by the Tribunal under s 149 of the Planning Act.  Rather, their position was that their submission that the consent requirement is repugnant to the Planning Act should be resolved by determining whether the power is unconfined by any textual limitation, as they argued it was, or a narrow one, as the Minister submitted.
112	As to the Minister’s argument that the consent requirement could be severed if invalid, the Fox parties submitted that its severance would affect the application of the remainder of the provision, and so would not be permitted by s 22 of the Interpretation of Legislation Act 1984 (Vic).
Consideration
113	As discussed above, in relation to the improper purpose ground, I have concluded that the Secretary’s power to refuse to provide written consent to the making of a permit application is a narrow one, and could only be exercised in limited circumstances.  I do not accept the Fox parties’ submission that it is an unconfined power, to be exercised by reference to the Secretary’s view of the substantive planning merits of the application.
114	I also do not accept the characterisation of the consent requirement as an unreviewable power to block an application for a permit to use or develop private land in the PCRZ.  Although it was not the Minister’s primary position, I consider the better view is that a decision of the Secretary to refuse to provide the consent required by cl 36.03-3 is subject to merits review by the Tribunal.  My reasoning is as follows.
(a)	Section 149(1)(a) of the Planning Act provides that a specified person (including the owner of land directly affected by a matter) may apply to the Tribunal for the review of a decision of a specified body in relation to a matter if a planning scheme specifies that the matter must not be done without the consent of the specified body.  A failure of a specified body to make a decision within a reasonable time may also be the subject of an application for review, under s 149(1)(d).
(b)	Clause 36.03-3 of every planning scheme in Victoria, as amended by Amendment VC115, specifies that an application for a permit where there is no public land manager must be accompanied by the written consent of the Secretary – that is, that the application must not be made (or considered) without the consent of the Secretary.
(c)	The Secretary referred to in cl 36.03-3 is the body corporate established by s 6 of the Conservation Act, and who has land management functions under that Act and other legislation.  The text and context of the clause do not support reading the reference to the Secretary as being the Secretary in the capacity of Department Head under the Public Administration Act 2004 (Vic).  The clause is plainly concerned with land management.
(d)	As the body corporate established by s 6 of the Conservation Act, the Secretary is a ‘public authority’ for the purposes of the Planning Act, and a ‘specified body’ as defined in s 148 of the Planning Act.  This was the case when the Minister approved Amendment VC115 and it remains the case now.
(e)	It follows that a refusal by the Secretary to provide consent under cl 36.03-3 may be the subject of an application for review under s 149(1)(a) of the Planning Act.  Failure by the Secretary to provide consent within a reasonable time can be reviewed under s 149(1)(d).
115	As a result, I do not accept the premise of the Fox parties’ submission that the consent requirement is repugnant to the Planning Act.  Before Amendment VC115, cl 36.03-3 already required the written consent of the relevant public land manager for a permit application made by someone else.  The amendment supplemented the existing consent requirement, for permit applications where there is no public land manager.  Contrary to the Fox parties’ submission, the Secretary’s power to refuse consent is not broad and unreviewable; it is narrow, able to be exercised only in limited circumstances, and subject to merits review by the Tribunal.
116	It follows that the requirement for the Secretary’s consent to an application is not antithetical to the framework for planning the use, development and protection of land in Victoria established by the Planning Act.  Rather, the requirement fits within that framework, as one of the broad range of decisions that may be reviewed by the Tribunal under s 149.  The reasoning in Aitken and FL Byrne, relied on by the Fox parties, has no application to the consent requirement because it is not a device to shut out merits review by the Tribunal.  For those reasons, I accept the Minister’s submission that the consent requirement ‘relates to the use, development, protection or conservation’ of land in the PCRZ for which there is no public land manager, and is a provision that may be included in a planning scheme under s 6(1)(b) of the Planning Act.
117	The requirement for the Secretary’s consent in cl 36.03-3 is valid.
Acquisition by subterfuge
Fox parties’ submissions
118	The Fox parties made an alternative claim that the purpose and effect of the Amendment Decision and the introduction of Amendment VC115 was to acquire the beach land by subterfuge, without payment of compensation.  This claim was based on Gobbo J’s acceptance, in Equity Trustees Executors and Agency Co Ltd v Melbourne and Metropolitan Board of Works, that it would be an abuse of power for a planning authority to create a zone which reserved land for a public purpose by subterfuge.  They argued that the effect of Amendment VC115 was to reserve the beach land for use for a public purpose, and went further than permissibly imposing restrictions on the use of the land for the public benefit.
119	This claim was based on the Fox parties’ earlier contentions that the purpose and effect of the amendment was to deprive them of the beneficial use and development of the beach land.  In particular, they argued that the planning controls imposed by Amendment VC115 are so strict that there is no realistic prospect of the Fox parties being able to use and develop the beach land.  In oral submissions, the Fox parties argued that the Minister’s purpose was to ensure continued public access to the beach land, including by preventing the land being fenced.
Minister’s submissions
120	The Minister responded that ‘reservation by subterfuge’ is an instance of improper or ulterior purpose, rather than a separate cause of action or ground of review.  He repeated his submission that Amendment VC115 did not deprive the Fox parties of all beneficial use of the beach land; it merely required them to apply for a permit in order to use or develop that land, having first obtained the written consent of the Secretary.
121	The Minister added that the claim of acquisition by subterfuge was hypothetical, given that there was no evidence that the Secretary had withheld consent to the making of a permit application.  
Consideration
122	In Equity Trustees, land in the Special Conservation zone was reserved for proposed public open space.  The owner of the land made a claim for compensation under Pt 5 of the Planning Act, after a permit to subdivide and develop the land was refused.  Among other arguments, the owner contended that the Special Conservation zoning, with its severe restrictions on development, was a de facto form of reservation for a public purpose.  His Honour rejected that contention, explaining:
Where a planning authority is empowered to create zones or to reserve land for public purposes, it would arguably be an abuse of the power granted to the planning authority for it to create a zone which was a reservation by subterfuge.  Such a course would be analogous to an exercise of power, not for the specified purpose but for an ulterior object.  An illustration of how the courts will restrain such an acquisition may be seen in Werribee Council v. Kerr (1928) 42 C.L.R. 1.  See also Criterion Theatres Ltd. v. Municipal Council of Sydney (1925) 35 C.L.R. 555.
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.
123	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, 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.
124	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’.  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.
125	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.  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.
126	Amendment VC115 did not amount to a reservation or acquisition of the beach land for a public purpose by subterfuge.  
Disposition
127	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.
128	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 VC115VC77		
		
36.03-1	Table of uses 	
23/09/2011
VC77Proposed 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
VC115VC37	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.