Australia: I´ll Have A Burger With The Lot...

Last Updated: 11 September 2008
Article by Kim Piskuric

In the recent decision of Carwoode Pty Ltd v Cardinia SC [2008] VCAT 1334, the Tribunal considered an appeal against a failure to make a decision on a freeway service centre application 'with the lot'. Amongst the matters considered

  • The correct interpretation and application of key terms were: contained in Clause 52.30.
  • The impact of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) on VCAT practice and procedure.
  • Whether the Tribunal had jurisdiction to consider the grant of a permit in circumstances where approval for the development was also required under the Environment Protection (Biodiversity Conservation) Act 1999 (Cth) (the EPBC Act).

The case concerned a proposal for the creation of access to the newly opened Pakenham bypass in Officer for the development of land for twin freeway service centres (FSCs), including the removal of native vegetation and 2 lot subdivision for the western bound FSC. The permit applicant lodged an appeal pursuant to section 79 of the Planning and Environment Act 1987 (Vic) (P&E Act) in relation to Cardinia Shire Council's failure to make a decision on the applications within the prescribed time.

CLAUSE 52.30

This decision clarified the interpretation and practical application of some key words in Clause 52.30 of the Victorian Planning Provisions (VPPs) dealing with FSCs. The findings of the Tribunal included:

  • There is no defi nition of 'rural freeway' or 'urban freeway' in the VPPs or the P&E Act. In addition, VicRoads' internal guidelines/policies regarding this issue carry little weight given they are not publicly available. However, vehicle volumes and the policy recognition and/or development of surrounding land may assist in characterising the freeway.
  • The provision of retail facilities on the site pursuant to Clause 52.30 are as follows:
  • The area for the sale of convenience goods must be no greater than 240 square metres.
  • Food and refreshment facilities and drive-through facilities are excluded from this limit, although only to the extent that they are ancillary to a FSC.
  • Any 'store' is also excluded from the 240 square metre limit if it can be shown to be ancillary to a FSC as a whole.


Counsel for Mr Hocking, one of the objectors to the FSCs proposal, argued that the Tribunal had breached the principles of natural justice and that the 'fair hearing' requirements under section 24(1) of the Charter had not been fully applied as:

  • The order of presentation had not enabled his client to know the case he had to answer.
  • His client should have been provided with a copy of the permit applicant's submissions in advance
  • All parties should have accompanied the Tribunal's site inspection.

The Tribunal had conducted the hearing following the usual order of presentation of submissions with the Responsible Authority and Referral Authorities presenting their submissions first, followed by objectors and then the permit applicant.

The Tribunal found that sections 80(1), 97 and 98 of the Victorian Civil and Administrative Act 1998 (VCAT Act) provide it with broad powers as how to conduct its hearings, particularly with '... as much speed' and '... as little formality and technicality' as possible (at [204]). The Tribunal noted that these sections make it clear that the parties cannot simply expect Tribunal hearings to be conducted in the same manner as court proceedings.

The Tribunal held that Clause 4.6 of the Tribunal's General Procedure Practice Notes did not require the parties to be provided with a copy of the Applicant's written submission in advance (at [210]). It also commented that the order of presentation had been in place for many years and there was no higher court authority criticising the arrangement. Moreover it found, that allowing the objector's counsel a two hour right-of-reply, after hearing the Applicant's main submissions, was more than a reasonable opportunity to respond to the Applicant's case and that 'at all stages during the hearing process the Hocking objectors were fully aware of the nature of the proposal which they were responding' (at [209]).

In relation to the conduct of site inspections, the Tribunal held that section 129 of the VCAT Act (empowering site inspections) did not require site inspections to be accompanied by all parties. In addition, the objector's counsel did not provide any guideline decisions from overseas jurisdictions where human rights charters have been introduced, to persuade the Tribunal otherwise.


Counsel for Mr Hocking argued that conditions of an earlier EPBC Act approval for the Pakenham Bypass, relating to the provision of an underpass for the Growling Grass Frog, would be breached by the permit application. For this reason, he further suggested that the application was futile and the Tribunal had no jurisdiction to deal with the application.

The Tribunal rejected the argument that it had no jurisdiction to determine the applications. In doing so, it relied on the decisions of Blackburn Community Church of Christ v Whitehorse CC (VCAT Reference P1641/04 and P1990/04) and Tricks v Wellington SC [2005] VCAT 1509. It stated (at [25-26]):

'If hypothetically the Tribunal approved the proposed FSCs without any permit condition requiring the permit holder to obtain any necessary further EPBC Act approvals prior to the commencement of the use and development, I concede that there would at least be scope for debate whether the Tribunal's approval of the FSCs could potentially improperly lead to a breach of the relevant requirements of the EPBC Act.

This is not the case here, as any approval granted by this division of the Tribunal for the proposed FSCs will be subject to a permit condition providing that any necessary further EPBC Act approval must be obtained prior to the commencement of the use and development permitted by the permit'.

The Tribunal also dismissed the possibility that the applications were futile, relying on the decisions in Hickey & Ors v Port Phillip CC [2001] VSC 129 and Octopus Media v Port Phillip CC (VCAT Reference P614/2007). It noted that this line of authority set the bar high in terms of the facts that would need to be established for a proposal to be deemed so hopeless as to be 'futile' (at [31]). Given there was an ability to seek Commonwealth approval to amend existing approved plans for the Growling Grass Frog underpass and there was a possibility that such approval would be granted, the application was not considered futile.

Finally, Counsel for the Applicant also submitted that the Tribunal was required to make an immediate ruling on the jurisdictional issue. However, the Tribunal held that this was a matter for the Tribunal's discretion whether to deal with the issue immediately or leave this to be dealt with as part of its written decision (at [21]).

Moreover, as Counsel for Mr Hocking had only raised this jurisdictional challenge on the sixth day of the eight day hearing, rather than as a preliminary matter on the first day, the Tribunal was not prepared to halt the entire proceedings at that stage.


The Tribunal determined to grant each of the permit applications for the development of twin FSCs and the subdivision of land, subject to conditions.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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