In the recent case of Sulomar v Wyndham City Council & Anor P3548/2010 (18 May 2011) VCAT (unreported) the Tribunal has considered the question of whether a new power pole installed in a Public Conservation and Resource Zone required “use” permission.
In its decision the Tribunal applied the principles set out in Central Highland Water v Ballarat City Council (No 1) [2006] VCAT 1297 at paragraphs [9] to [11].
In the present case the Tribunal distilled the following principles
- “in going through the planning characterisation exercise, the decision maker is not simply looking at “use” per se, but rather is considering the use of land for a purpose
- not all activities taking place on any one piece of land will necessarily constitute “the use of land for a purpose”
- in considering whether an one activity is so significant so as to constitute the use of the land for a separate/additional purpose, the benchmark for the Tribunal to apply is the ” real and substantial” purpose test,and
- each of these disputes tend to ultimately turn on their facts.” [16]
The Tribunal posed the following question for itself “does the the installation of the New Pole constitute the use of the subject land for a separate and distinct additional purpose, or was the installation of the New Pole merely an ancillary activity” [21]
The Tribunal found that in the circumstances of this case the New Pole was an ancillary activity to the “use” of public open space, and did not require separate use permission. The Tribunal made the following relevant findings – the public reserve was large, the New Pole was modest in scale and appearance and that the utility pole was not a foreign feature in a public open space. The Tribunal reasons that these finding support the conclusion that the New Pole is an ancillary use, accordingly it does not require separate “use” permission.
In its conclusions the Tribunal notes that this decision should not be seen to endorse an “open slather” approach for power infrastructure in public open space areas. Each case will turn on its own facts.
