Australians expect to be able to wander along our beaches and find them protected from private development. The retention as Crown Land of Australia’s coast into reserves is an essential underpinning of our national culture. We tend to look with dismay, when overseas, at private enclaves excluding public access to the sea.
A Kellehers Australia VCAT appeal on behalf of an elderly resident of the Bass Strait town of Lorne, resulted in rejection by Member Perlstein of a major coastal redevelopment on reserved Crown Land. The case was Baker v Surf Coast SC and others.[1]Mr Baker claimed the development was inconsistent with the conservation purpose of the Public Purposes and Recreation Zone (PPRZ). The resident was Mr Lawrie Baker, who died before VCAT’s determination. He made his submission on behalf of more than 1,500 concerned community members, one of whom actively participated in the VCAT hearing. The site was on Point Grey, a prominent ocean point including the Lorne Pier (annual location of the iconic Pier to Pub swim).
The case revealed authorities with insufficient regard to the layout of Crown land status in relation to the proposed development, confusion as to the relevant public land manager of relevant land parcels and inappropriate sensitivity to the constraints applicable to land reserved for the protection of the coastline.
A colorful community description paints the background to Mr Baker’s appeal:
‘(This proposal) was hatched by a local coast committee, endorsed by the local Council, supported by various State agencies, then supercharged by Federal pre-election pork-barrelling in a marginal seat. This funding has blinded judgements and blurred scrutiny. Point Grey is the most prominent natural feature in Lorne, and its very reason for existence. So let’s cover it with a prominent new building. A design competition helped distract from the important question: alternative design options asked “Which?” rather than “Whether?”.
It took the indignation of a frail but passionate person, a significant contributor to the management and protection of much of the coast of Victoria, to take a stand and point out that the Emperor had no clothes. After lengthy petitions and exhausting lobbying were brushed aside, eventually the only option left was to jam his foot in the door, and expose a proposed Planning Permit to impartial scrutiny.
Sadly, the complexity and incompetence entwined into this proposal strung out the Hearing beyond Lawrie’s lifespan. … It … vindicates Lawrie’s concern.’[2]
The Great Ocean Road Coast and Parks Authority (Authority) was the permit applicant. It was established pursuant to the Great Ocean Road and Environs Protection Act 2020 (GOREPA) with the object ‘to protect, conserve, rehabilitate and manage Crown land and coastal assets within the Great Ocean Road coast and parks’.[3]
The site included the former Lorne Fishing Cooperative building (Coop Building), the Lorne Pier and the Lorne Aquatic and Angling Club clubhouse, deck and ramp. Portions of the site were included in the Shipwreck Trail and associated linear public pedestrian pathway.
The project demolished the Coop building and removed a number of existing buildings. A proposed new ‘Beacon’ building, housing a restaurant for 160 patrons, prominently placed at the ocean edge, would replace the Coop building. It also included constructing a new building for the angling club and upgraded public facilities, plaza, boardwalk, lookout and additional car parking.
All but three lots of the site were permanently reserved for the ‘protection of the coastline’ pursuant to Crown Land (Reserves) Act 1978 (Vic) (CLRA). One was temporarily reserved for public purposes and two for a ‘road’. The coop and the proposed Beacon building were mostly located in the temporary reserve but a small section on land reserved for protection of the coastline. It also appeared that the Angling building was within land reserved for both government road and protection of the coastline. VCAT noted that the application was unclear as to how the use and development fitted into the differing lot boundaries and that even a plan tendered by council failed to avoid difficulty in identifying allotment boundaries according to proposed use and development.[4] The public land manager for the site was the Department of Environment, Land, Water and Planning (DELWP). Because the permit applicant was GORCAPA, who was not the public land manager, the uses ‘restaurant’ and ‘place of assembly’ were Section 2 uses and ‘restaurant’ was conditional upon that use being associated, or otherwise ‘restaurant’ was prohibited.
* * *
This Newsflash focuses on the coastal reserve elements of the VCAT decision.
During the hearing it was unclear as to who the public land manager was for each parcel of land. VCAT made orders requiring clarification. Ultimately, it emerged as a mix of the Minister for Energy, Environment and Climate Change, the Authority and, for two government roads, the Council. Until the hearing, Council and Authority were unaware of Council’s public land management role.
The bulk of the site fell within the Public Park and Recreation Zone (PPRZ) with a small section (of proposed boardwalk and seawall) within the Public Conservation and Resource Zone (PCRZ).[5] Key uses requiring VCAT’s consideration were ‘Restaurant’, nested within the term ‘Retail premises’ (the Beacon building) and the angling club building as a ‘Place of Assembly’. The construction of the Angling Club building also required attention separately from the land use question.
Within PPRZ, ‘retail premises’ and ‘any other use’ required no permit if the use was ‘conducted by or on behalf of a public land manager’. The Authority argued that it would use the land for public use to protect and conserve coastal assets, as the manager, consistent with GOREPA and the CLRA, and that the proposed development was part of this, including leasing the new restaurant. It argued that, as it held the land for the Crown for the specific purposes of the reservation, any third party to whom it granted rights would be using it on behalf of the Authority.
VCAT relied on principles from the earlier VCAT cases of Wertheimer v Bayside CC,[6] and Bence v Bayside CC[7] that:
- The use must be undertaken by a person having a direct representative interest or relationship with the public land manager.
- It is insufficient that broad community interests are served. Consideration must be given to who is the real and substantial proponent of the use.
- A general level of connection must be established. The relationship must be more than a beneficial one.
- If a lease gives exclusive possessory interest over the land, the use is unlikely to be undertaken ‘on behalf of’, unless the lease provides evidence of a qualifying or controlling relationship by the public land manager.
It also referred to Food and Desire Pty Ltd v Port Phillip CC,[8] where VCAT rejected a leased kiosk in the Carousel building at Albert Park as evidencing it was operated on behalf of Parks Victoria as public land manager.
In this case, VCAT found the lease was to a commercial entity that had no duty to act pursuant to the Authority’s objectives and requirements or GOREPA or CLRA. It held the lease to be a conventional landlord/tenant relationship. It accepted that the public land manager does not have a ‘blanket exemption’ and that ‘by or on behalf of’ must be interpreted with regard to the particular statutory charter of the public land manager under its governing legislation. In adopting Bence, it was of the view that the use must be undertaken by the public land manager itself or some other party having a direct representative interest or relationship with the public land manager. On this basis, both the restaurant and the Angling Club uses would not be conducted by the Authority.
By contrast, VCAT considered that construction of the Angling Club building was to be carried out by or on behalf of the Authority, despite the Club’s contribution to costs, because the Authority retained responsibility for all aspects of it including planning permits, funding community consultation, design, engaging contractors and delivering construction. Therefore, no permit was required for construction.[9]
VCAT then turned to the PPRZ condition requiring that the use ‘must be associated with the public land use’, noting that the use became prohibited if the condition were not met. Both ‘public land’ and ‘associated with’ are not defined in the Planning Scheme. Case authorities confirm that ‘associated with’ must be distinguished from ‘in conjunction with’.[10] The ordinary meaning included notions of conjoining, uniting, combining and integration encompassing all uses.
VCAT found there must be a connection between the restaurant and the public land use that need not be substantial but must be more than illusory.[11] It found that the restaurant use did not automatically fit within the purposes of public recreation and open space or protecting and conserving areas of significance and extensively considered the relevant Marine and Coastal Policy.
It considered the earlier VCAT case of Teasdale v Surf Coast SC[12] (another KA coastal land case), where VCAT permitted a pop-up bar open to the public on the roof deck of an existing angling club building on land reserved for protection of the coastline. It distinguished Teasdale as a use oriented to beach-goers. It referred to other earlier VCAT cases, including a bicycle shop and 100 seat restaurant held associated with a public bike trail,[13] and the Albert Park kiosk found to be associated with the public land use because it was useful in fulfilling quick fix or snack refreshment needs.[14]
In this case, VCAT considered the association to be ‘tenuous’. It noted that Shipwreck Trail walkers, Angling club members and those using Point Grey for fishing and boating might be restaurant patrons, there was nothing intrinsic to the restaurant that had any association with the public land use other than its being located on public land.[15] It considered that the restaurant had not been designed to be complementary or connected to the public use but rather as a ‘destination’ stand-alone dining location designed to attract diners due to its ocean view. There was no evidence that its proposed hours of operation aligned to the needs of people using Point Grey. It rejected argument that restaurant patron benefits – view and ocean proximity – provided connection and regarded this ‘association’ as ‘merely illusory’.
VCAT found that while PPRZ purposes anticipate possible commercial uses, the words ‘where appropriate’ require close attention to the full locational, policy and planning scheme context. It extensively reviewed policy regarding tourism, marine and coastal Crown land and recreation, including MCP.
It also found that the restaurant was essentially to attract tourism revenue, as opposed to providing support to the marine and coastal location.[16] It considered that the restaurant was not dependent on the coastal location, that Point Grey did not require a restaurant and that the restaurant was not naturally aligned with the PPRZ purposes or the purpose for which the land was reserved. It considered that this was a commercial use that could be located anywhere and that its relationship with PPRZ purposes was incidental.
Importantly, it held that the use failed to support other land uses that were functionally dependent on being on or near the water and that were consistent with the PPRZ purposes.[17] Cl. 17.04-2S of the Scheme, in its view, required focus on the connection with the marine and coastal environment rather than simply the tourism opportunity,[18] as Cl. 12.02-2S seeks to ensure safe, equitable public access, improve public benefit, demonstrate need and has a coastal dependency and minimises loss of public open space.[19] The restaurant would limit access to public land as it was exclusively used by paying customers, did not improve public benefit or arise from a demonstrated need relevant to the marine and coastal Crown land and had no coastal dependency.
KELLEHERS AUSTRALIA
Mr Cameron Algie LLB (Hons), Dr Leonie Kelleher OAM
leonie@kellehers.com.au
31 August 2022
Copyright © Kellehers Australia 2022.
Liability limited by a scheme approved under Professional Standards Legislation
This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
[1] [2022] VCAT 257
[2] Duncan, Rod, 2022 March, Point Grey VCAT decision P1182/2020 dated 10 March 2022: A summary and analysis [with additions added 24 March 2022, page 3.
[3] s46 GOREPA.
[4] Baker v Surf Coast SC and others [2022] VCAT 257, [58] & fn 11.
[5] Permits were also required under a Bushfire Management Overlay (BMO) and for car parking waiver, removal of native vegetation and alteration of access to a Road Zone Category 1 – the Great Ocean Road.
[6] [2017] VCAT 726.
[7] [2020] VCAT 1379.
[8] [2004] VCAT 2448.
[9] Baker [2022] VCAT 257, [95]-[97].
[10] See Ryman Healthcare (Australia) Pty Ltd v Mornington Peninsula SC [2021] VCAT 711.
[11] Baker [2022] VCAT 257, [120].
[12] [2016] VCAT 1224.
[13] Kelk v Moreland CC [2009] VCAT 2416.
[14] Food and Desire Pty Ltd v Port Phillip CC [2004] VCAT 2448.
[15] Baker [2022] VCAT 257, [132]
[16] Ibid, [188]
[17] Ibid, [191].
[18] Ibid, [194].
[19] Ibid, [199]
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