VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11041/2021
Permit Application no. PLN21/0016 	
CATCHWORDS	
Use and development of dwelling – Green Wedge Zone – requirement for all-weather road access – Clause 35.04-2 – adequacy of licence providing access	

Applicant	Ruven Nominees Pty Ltd	

Responsible Authority	Greater Dandenong City Council	
interested authority	South East Water	

SUBJECT LAND	180A Pillars Road & part Certificate of Title Volume 08588 Folio 675 (Lot 1 on TP393820A), BANGHOLME VIC 3175	

HEARING TYPE	Hearing 	

DATE OF HEARING	16 March 2022	

DATE OF ORDER	28 March 2022	

CITATION	Ruven Nominees Pty Ltd v Greater Dandenong CC [2022] VCAT 304	

Order
Amend application
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by:
a	changing the address of the land to include ‘180A Pillars Road & part Certificate of Title Volume 08588 Folio 675 (Lot 1 on TP393820A)’; and 
b	including permission under Clause 36.01-1 of the Greater Dandenong Planning Scheme to use land for a Dwelling.
No permit granted
2	In application P11041/2021 the decision of the responsible authority is affirmed.
3	In planning permit application PLN21/0016 no permit is granted.

Dalia Cook
Member			
Appearances
For Ruven Nominees Pty Ltd	Mr Ragu Appudurai of Counsel instructed by TP Legal	
For Greater Dandenong City Council	Ms Maria Marshall, Solicitor, Maddocks	
For South East Water	Mr Gavin Warner, in house Solicitor	

Information
Description of proposal	Use and development of land for a single dwelling	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Greater Dandenong Planning Scheme 	
Zone and overlays	Green Wedge Zone (Schedule 1)
Vegetation Protection Overlay (Schedule 1)	
Permit requirements	Clause 35.04-1 use of land as a Dwelling
Clause 35.04-5 buildings and works for the construction of a Dwelling
Clause 36.01-1 use of land for Dwelling (access only – South East Water land) 
Clause 52.17 removal of native vegetation 	
Key scheme policies and provisions	Clauses 11.01-1S, 11.01-1R, 13.02-1S, 
14.01-1S, 21, 22.02 (Green Wedge), 51.02 (Metropolitan Green Wedge Land: Core Provisions) in addition to the matters in Clause 65   	
Land description	The land has an irregular shape with a total area of approximately 14.33ha.  It sits behind rural residential Lot 1, with adjacent Melbourne Water land to the north and South East Water land to the east.  Both authorities’ land is used for service and utility infrastructure.  Firman Park is located to the south.  
The subject land is landlocked and proposes to rely on access through the South East Water land to Pillars Road.  
The land is currently vacant (except for scattered sheds) and has confined native vegetation (rush) but is otherwise covered in grass or weed cover.  	
Tribunal inspection	The Tribunal was not required to undertake a site inspection given the nature of the application and the range of photographs and digital mapping provided to it.	

  Reasons
introduction
1	The applicant seeks permission to use and develop the subject land for a dwelling.  It also proposes to use the land for Animal husbandry (horse breeding and keeping), which does not require a planning permit.  
2	Greater Dandenong City Council (Council) assessed the application and did not raise any concerns about the proposed development of the land for a dwelling having regard to relevant matters, including Green Wedge Zone policies.  However, it refused to grant a permit on the sole ground that:
The proposed access arrangements do not meet the requirements of Clause 35.04-2 of the Green Wedge Zone and therefore, the use of land for a dwelling is prohibited.
3	The applicant seeks review of this decision.  
4	The land does not enjoy permanent rights of access to a road.  The permit application was amended to include part of the adjacent land owned by South East Water.  This reflects a licence granted which conveys a right of access between Pillars Road and the subject land.  This was illustrated in Council’s submissions through a marked up aerial photograph.  

5	The applicant submitted that the licence provides an ongoing right to access the subject land for 80 years, sufficient to meet requirements of the Greater Dandenong Planning Scheme (planning scheme).  It considered the proposal was consistent with orderly planning.  
6	At the hearing the parties focused on this single issue in dispute, although I have also considered the full gamut of relevant matters in an application of this type.  I was assisted by the reports submitted by the applicant to Council and the assessment in the Council delegate’s report.   
key issues and findings
7	Council queried whether there was a prohibition on the grant of a permit for the use of land pursuant to Clause 35.04-4 which deals with licences for Accommodation.  The applicant resisted this notion, submitting that no such permission was sought or required. 
8	For reasons outlined below, I find that Clause 35.04-4 is not invoked in respect of the existing licence in favour of the subject land.   It is not a barrier to the permit application. 
9	Council further submitted that the licence would not meet the requirements of Clause 35.04-2 for an all-weather access road of suitable dimensions for emergency vehicles.  It emphasised that the existing licence did not create a sufficient, permanent right of access.  
10	The applicant refuted this — submitting that the licence created ongoing access as required by the planning scheme.  It also referred to the terms of the licence which would permit it to carry out and maintain works for all-weather access subject to South East Water’s consent as owner. 
11	I accept that the licence appears to go some way to indicating that the land could be provided with an all-weather road with dimensions adequate to accommodate emergency vehicles.  
12	However, I consider that the cornerstone of Clause 35.04-2 is an ongoing obligation for access and other servicing requirements to be provided for the life of the use.  
13	Given the nature and terms of the licence in question, there is insufficient certainty this requirement can continue to be met at all times the land is used for a dwelling.   
14	The consequences of uncertainty about this access are potentially very significant — both in a functional and safety sense — especially given the distance from the nearest roadway and the fact the land is within a nominated Bushfire Prone Area.  
15	I do not support the grant of a planning permit for the use and development of the subject land as a dwelling until such time as a more secure, ongoing legal entitlement to access the subject land may be facilitated.  
consideration of issues
Is the application prohibited by operation of Clause 35.04-4?
16	Clause 35.04-4 provides: 
Long term lease or licence for accommodation 
A permit is required to lease or license a portion of a lot for a period of more than 10 years if the portion is to be leased or licensed for the purpose of Accommodation. 
Each portion of a lot leased or licensed for the purpose of Accommodation must be at least the minimum subdivision area specified for the land in a schedule to this zone. If no area is specified, each portion of a lot leased or licensed for the purpose of Accommodation must be at least 40 hectares. 
17	Council submitted that the preferable interpretation of the circumstances of this application is that the licence is for a portion of the South East Water land for the purpose of Accommodation (Dwelling).  It deduced this from what it says is the real and substantial purpose of the use permitted under the access licence ‘when it is undertaken’, submitting:
by bringing the SEW Land into the Permit Application, the proposal to use the Access Track under the Access Licence means that the SEW Land is being ‘licensed for the purpose of the Accommodation’. This is because once the Access Track starts being used to access a dwelling on the Subject Land, the proper characterisation of the use of the SEW Land will also be for the purposes of a ‘Dwelling’ use.
…
The Amendment Application seeks to use the Access Track in a manner akin to having a driveway on SEW Land to the Subject Land, to enable access to the proposed dwelling. Accordingly, the ‘real and substantial’ purpose of the use of the Access Track will also be for a ‘Dwelling’. 
18	Ms Marshall explained that because the South East Water land is less than 40 hectares, no such planning permit could be granted and the proposal would be prohibited under this provision. 
19	The applicant submitted that the provisions of Clause 35.04-4 are directly referable to the wording of the licence, not the use more broadly.  
20	Mr Appudurai pointed to elements of the licence such as Clause 2.1 which indicate that it grants a non-exclusive licence to have access to and shared use of the ‘Access Track’ for the ‘Permitted Use’ at all times for the Term.  Permitted Use is defined in Item 3 as ‘access to and egress from the Licensee’s Land by the Licensee and the Licensees Agents, with or without vehicles’.  The applicant confirmed that it had not sought permission under Clause 35.04-4 on this basis. 
21	In my opinion, the enquiry needs to relate to the use of the land being licensed.  Having regard to the nature and wording of this particular licence, I find that it simply permits access.  It applies irrespective of the underlying use of the subject land, which could conceivably be for any purpose.  It is not a licence for the purpose of Accommodation per se.  
22	Read as a whole, the licence preserves the primary use of the land for the purpose of servicing/utility infrastructure and, in fact, prevents any use that may be inconsistent with this purpose.  
23	In practice, it is also not feasible that South East Water would grant a licence for Accommodation over a track that contains operative linear infrastructure.   
24	My application of Clause 35.04-2 in this case is also consistent with the requirement that where such a licence is granted for Accommodation, the minimum area must be at least 40 hectares.  This correlates directly with the minimum area for subdivision in Schedule 1 to the Green Wedge Zone.  As the requirement does not apply to a licence for a purpose other than Accommodation, it would not be appropriate to require a minimum area of 40 hectares for the area licensed for the purpose of access in this proceeding.   
Would the requirement in Clause 35.04-2 for an all-weather access road be met?
25	Clause 35.04-2 relevantly provides: 
Use of land for a dwelling
A lot used for a dwelling must meet the following requirements: 
•	Access to the dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles.  [Tribunal emphasis]
•	The dwelling must be connected to reticulated sewerage, if available. If reticulated sewerage is not available, all wastewater from the dwelling must be treated and retained within the lot in accordance with the requirements of the Environment Protection Regulations under the Environment Protection Act 2017 for an on-site wastewater management system.
•	The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes.
•	The dwelling must be connected to a reticulated electricity supply or have an alternative energy source.
26	The Planning and Environment Act 1987 defines a ‘road’ as including a ‘highway, street, lane, footway, square, court, alley or right of way, whether a thoroughfare or not and whether accessible to the public generally or not’.  I accept that the access track could potentially constitute a road for the purpose of Clause 35.04-2. 
27	Council submitted that since the access track is not a public road or a public highway, the applicant must establish that it has permission to use it for ‘permanent’ access to the proposed dwelling.  
28	This would be in addition to a planning permit authorising the use of the access track for the purpose of access to the dwelling (as applied for in the amended application before me).  
29	It sought to rely on the decision of the Tribunal in Department of Environment, Land, Water and Planning v Yarra Ranges SC to this effect. 
30	In Council’s view, the proposed arrangement is not ‘permanent’ since the licence is for a term of 80 years, can be terminated if the licensee defaults on the licence and there is no automatic entitlement for the licensee to maintain the track as an all-weather road suitable for emergency vehicles.  It explained: 
Council submits it is important to read clause 35.04-2 as requiring access via the ‘all-weather road with dimensions adequate to accommodate emergency vehicles’ as requiring that this access be provided at all times. The requirement is clearly directed towards safety, in ensuring that emergency vehicles can access the dwelling. If access to the dwelling is not provided via an ‘all-weather road’ at all times, the object of the provision would be defeated.
…
… One can imagine a scenario where the Access Licence is breached and [South East Water] terminates under clause 8.2. The result would be a ‘Dwelling’ use that does not have a right of access, inaccessible by emergency vehicles. This is the scenario that [the Green Wedge Zone] seeks to prevent. 
31	The applicant conceded that a proper interpretation of Clause 35.04-2 is that either ‘permanent’ or ‘ongoing’ all-weather access is required.  
32	I agree with the applicant that although permanent access would satisfy the first dot point of the provision, permanence for all time is not an absolute requirement.  
33	More pertinently, I find that the requirement is expressed to apply for the duration of the use of the land for a dwelling.  The question is whether this can reasonably be assured on the circumstances before me.  
34	Although the licence is a legally binding agreement between two private entities, it has inherent limitations.  In my opinion, these have the capacity to bear on the ongoing availability of access for the life of the use for reasons including: 
•	The fact the licence is conditional and non-exclusive; being subservient to the principal use of the land for utility infrastructure.  As explained by Mr Warner at the hearing, it is conceivable that there may be failures of underground infrastructure assets requiring remedial works from time to time.  It is unclear whether any form of access could continue to be provided for the dwelling during these times, especially for emergency vehicles (or for heavier vehicles that may be required for the horse breeding operation).
•	The licence seeks to protect the primary use of the land for utility infrastructure above private access since the licensee must not obstruct or interfere with the use of the access track by South East Water or its permitted users.  The licensee must also comply with any reasonable directions notified by South East Water regarding the access track.  South East Water may also assign its rights under the licence without the licensee’s consent.  It is uncertain as to whether these provisions will be consistent in practice with ongoing access of the type specifically required under Clause 35.04-2.  
•	Significantly, South East Water has not given the licensee any assurance that all-weather road access suitable for emergency vehicles will be available at all or any time.  It simply provides an entitlement to a form of physical access, subject to availability.  This is consistent with the nominal licence fee (payable on request).  
•	The licensee must not make any change or structural alteration without South East Water’s consent.  The licensee must keep the access track in a state of condition and repair to the reasonable satisfaction of South East Water (including provision and use of suitable gravel).  No party was able to answer my question as to whether any works would be required to the existing track to bring it into compliance with the standard required by Clause 35.04-2.  There is no certainty that such permission for any works that may be initially required or any subsequent maintenance would be granted by South East Water, notwithstanding its general position of support at the current time. 
•	The licence may be terminated in accordance with Clause 8.2(a) if the licensee does not perform any express or implied obligation under the licence, if it repudiates its obligations or if there is agreement in writing between the parties.  The licensee would be required to cease use of the access track in these circumstances.  
35	In considering whether this level of uncertainty is reasonable, I have had regard to the potential planning consequences.  
36	Ms Marshall submitted that significant financial and emotional investment is involved with the use and development of land for a dwelling.  It would be a serious matter if the land was not able to be accessed as required after the use had started.  
37	Mr Appudurai responded that there was a strong incentive for the owner to ensure that access was provided at all times.  He submitted that the owner carries the risk of being unable to meet the planning scheme requirement.  
38	The subject land has a significant physical constraint in being landlocked, relatively distant from the nearest road and in a Bushfire Prone Area.  I consider that the consequences of this land not being able to be accessed at all times, including by emergency vehicles, are too great to permit the underlying use and development in the event that the land may once again be landlocked.  For example, how would future owners take to being asked to cease the use in these circumstances?  
39	This is not consistent with orderly planning or the intent of Clause 35.04-2.    
40	For me to grant this land use permission, a more secure, ongoing legal entitlement to access the subject land would be required that is not subservient to other rights to the land being accessed.  One way of achieving this may be via an easement of carriageway and its associated entitlements.  
41	My reasoning appears to be generally consistent with the thinking of the Tribunal in Andrew v Yarra Ranges SC, that a licence was not ‘the best outcome’ since it was revocable, a long term lease was not suitable but an easement may suffice (although this was not its primary finding in that case).  
42	I am not persuaded that I can address the current deficiency by granting a permit for the use and development with a condition that an easement (for example) must be provided.   I have considered the reasoning of the Tribunal in cases such as Richards v Hobsons Bay CC but distinguish the facts of that case which carried a different level of risk and meant that private property arrangements were more suitable.  By contrast, the facts before me centre around the planning scheme requirement for ongoing access and associated planning consequences.  
43	In my opinion, confirmation of lawful access is essentially a condition precedent to the grant of a permit for a site with these particular characteristics, having regard to the requirements of the planning scheme.  If such access is not provided on an ongoing basis, the use of the land for a dwelling will become prohibited under the Green Wedge Zone.  
Other matters 
44	There are a host of other matters relevant to the appropriateness of the proposed use and development of the land for a dwelling.   I accept Council’s conclusions that the use of the land for a dwelling in this instance to support the substantial Animal husbandry use proposed (horse breeding) is consistent with the purpose and decision guidelines of the Green Wedge Zone.  
45	However, had I permitted the use of a dwelling, I would have considered requiring a Land Management Plan as a condition of the permit to secure the proposed agricultural use of the land and to ensure that the land is maintained in a way that is sustainable.  
46	Likewise, I would have formed the view that the development of the land for a dwelling with associated infrastructure was acceptable in its setting — being suitably designed and sited to maintain the open landscape and agricultural qualities of this setting.  
47	The extent of native vegetation removal is confined.  I would have turned my mind to whether a landscape plan would be required to secure the landscape improvements proposed with the application. 
48	I accept that the land is capable of being serviced by a secondary treatment system for effluent.  Further, I would have needed to have been satisfied that proposed building levels were responsive to overland flows as identified by Council.  
49	The dwelling is capable of being designed to a Bushfire Attack Level of BAL 12.5 and this could be secured through a building permit had a planning permit been granted.  
conclusion
50	The subject land has an important physical constraint since it lacks permanent lawful access to a road.  The planning scheme requires ongoing access to a particular standard as a requirement for its ongoing use as a dwelling. 
51	There are numerous reasons why I am not satisfied that the current access licence is sufficient to achieve this requirement for the life of the use, and I have refused to grant a permit on this basis.  

Dalia Cook
Member