Planning and Environment Handbook
VCAT decisions and commentary
Dr Joseph Monaghan
Holding Redlich
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About the author
Joseph Monaghan is a partner at Holding Redlich. He is a Law Institute of Victoria Accredited Specialist in both Administrative Law, and also Planning and Environment Law. Joseph can be contacted at [email protected].
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Table of Contents List of acronyms and abbreviations...... 5 Acknowledgements ...... 6 Introduction and overview ...... 7 The Decisions ...... 12 Admissibility of evidence and experts ...... 12 Ancillary use ...... 16 Affordable accommodation ...... 17 Cultural Heritage Management Plans ...... 19 Compulsory acquisition and acquisition of land ...... 22 Development Plan Overlay Schedules ...... 26 Declarations ...... 26 Easements ...... 30 Existing use rights ...... 31 Enforcement ...... 34 Gaming and liquor ...... 41 GAIC ...... 42 Green wedge ...... 43 Humorous ...... 46 Mediated outcomes and consent orders ...... 47 Misconduct ...... 49 Natural justice ...... 53 Out of sequence subdivisions ...... 55 Panels ...... 56 Permit amendments ...... 59 Permit conditions – ongoing effect ...... 61 Permit extension ...... 62 Precautionary principle ...... 67 Public open space contributions ...... 75 Planning policy, including Plan Melbourne and ResCode ...... 78 Restrictive covenants ...... 81 Repeat appeals ...... 82 Screening ...... 82 Signage ...... 83 Standing ...... 86 Solar panels ...... 90 Subdivision process ...... 92
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Social effects ...... 94 Sea level rise ...... 99 Section 173 agreements ...... 103 Secondary consents ...... 108 Technical codes and standards ...... 110 Transitional provisions ...... 111 Water ...... 111 List of cases...... 117
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List of acronyms and abbreviations
AH Act Aboriginal Heritage Act 2006 (Vic)
ADJR Act Administrative Decisions (Judicial Review) Act 1975 (Cth)
AH Regulations Aboriginal Heritage Regulations 2007 (Vic)
CHMP Cultural Heritage Management Plan
EE Act Environment Effects Act 1978 (Vic)
EP Act Environment Protection Act 1970 (Vic)
EPBC Act Environment Protection and Biodiversity Conservation Act 1999 (Cth)
EP Amendment Act Environment Protection Amendment Act 2018 (Vic)
GR Act Gambling Regulation Act 2003 (Vic)
IL Act Interpretation of Legislation Act 1984 (Vic)
LG Act Local Government Act 1989 (Vic)
P&E Act Planning and Environment Act 1987 (Vic)
SPPF State Planning Policy Framework
Subdivision Act Subdivision Act 1988 (Vic)
VCAT The Victorian Civil and Administrative Tribunal
VCAT Act Victorian Civil and Administrative Tribunal Act 1998 (Vic)
VL Act Valuation of Land Act 1960 (Vic)
VPPs Victoria Planning Provisions
Water Act Water Act 1989 (Vic)
Water Act (Cth) Water Act 2007 (Cth)
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Acknowledgements
This publication is intended as a resource for lawyers, planners, Council officers and others with an interest in planning and environment matters practicing in that jurisdiction in VCAT.
The booklet is a consolidation of a number of decision summaries that I prepared over the years as a writer of case summaries for the VPELA Revue, with updates and revisions to those summaries made by me for the purposes of this publication, as well as new commentary, more recent decisions and notes on legislative developments.
I would like to acknowledge Mark Marsden for his time taken to review these summaries and Luke Flegeltaub for his assistance proofreading this booklet.
Joseph Monaghan, 3 May 2021
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Introduction and overview
This booklet is structured around key points that have been the focus of important decisions in the planning and environment jurisdiction. These are arranged in alphabetical order, with decisions summarised under each of those points presented in chronological order.
There is a convenient index and I have also hyperlinked the decisions, as well as legislation, to Austlii. I have also included a list of decisions.
What then, were some of the trends that developed over the 10 year period? By way of summary:
VCAT’s jurisdiction
1. Since the advent of the “new administrative law” in the 1970s specialist Tribunals have proliferated throughout Australian jurisdictions. That role will likely continue to grow through both legislative conferral of jurisdiction to VCAT in new areas and liberal interpretations of existing conferral enactments.
2. In Ramholdt v Planning Panels Victoria [2004] VCAT 2432 Justice Stuart Morris, President of VCAT, stated that the High Court has supported the proposition that powers given to specialist Courts and Tribunals are to be interpreted amply to give effect to the legislative policy that the specialist Court or Tribunal address legitimate issues of concern.
3. DP Dwyer’s decision in Ileowl Pty Ltd v Environment Protection Authority (includes summary) (Red Dot) [2015] VCAT 1105 provides a more conservative interpretation of VCAT’s jurisdiction under an enabling enactment. Ileowl was appealed to the Supreme Court where the matter was successfully mediated. Bell J stated that there were sound discretionary reasons for making a declaration that a works approval for the development was not required under s 19A(1) of the EP Act and VCAT’s order was set aside.
4. A more recent decision of DP Dwyer, Cook v Minister for Water [2019] VCAT 866, adopts a more liberal interpretation, although with respect to a different Act, which resulted in the DP deciding that VCAT did have jurisdiction to hear an application for a declaration that concerned access through Crown land for drainage purposes. We may see in that decision an interpretation that gives effect to the legislative policy described in Ramholdt v Planning Panels Victoria [2004] VCAT 2432.
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5. With the coming into effect of the EP Amendment Act, we also see at play the hand of the legislature, which has now conferred express powers upon VCAT to determine the question that was before VCAT in Ileowl.
The role of planning policy
6. At the apex of the policy context in metropolitan Melbourne is the Metropolitan strategic planning strategy, in particular the former Metropolitan strategic planning strategy titled ‘Melbourne 2030’, and the current Metropolitan planning strategy titled ‘Plan Melbourne’. One of the important policy issues being addressed by these strategies is centred around population growth, which was under-predicted by policy makers in Melbourne 2030. The application of these policies influenced statutory decision-making as well as strategic planning. Related reforms included the residential zone reforms in 2013, which was subsequently implemented into Victorian planning schemes.
7. The decisions included in this booklet reference the debate in relation to the application of Rescode standards and objectives, along with the issue around whether the objective is deemed to have been met by meeting the standards. Ye v Boroondara CC [2015] VCAT 1051 and Li Chak Lai v Whitehorse CC (No.1) [2005] VCAT 1274 are considered.
Admissibility of evidence and experts
8. There have been a number of important decisions in which VCAT has been critical of the conduct of experts and sometimes even the lawyers that have engaged them. Yet it remains the case that when evidence is challenged, the usual practice of VCAT members seems to be to address the question of admissibility of evidence by way of weight, rather than to strike out the evidence altogether. Yes, VCAT is not bound by the rules of evidence. However, there will need to be a shift to greater levels of formality if the concerns raised by VCAT in some of the decisions about expert evidence are to be addressed and improved in practice.
CHMPs
9. CHMPs, introduced under the regime established by the AH Act in 2006 and its associated regulations one year thereafter, were the subject of a number of VCAT decisions as practitioners and VCAT grappled with implementation of that new regime. Probably to avoid the cost of the preparation of a CHMP, many permit applicants have argued that land has been subject to significant ground disturbance (remembering that even if a CHMP is not legally required one can be prepared voluntarily). The question then became, what is significant ground disturbance? This
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was considered by VCAT in a number of decisions including Mainstay Australia Pty Ltd v Mornington Peninsula SC (Red Dot) [2009] VCAT 145 and Azzure Investment Group Pty Ltd v Mornington Peninsula SC (Red Dot) [2009] VCAT 1600.
Compulsory acquisition
10. VCAT litigation over compulsory acquisition continues to occur, probably with increasing frequency given the number of major projects that have been occurring in recent years. VCAT’s exclusive jurisdiction with respect to compulsory acquisition disputes has now been increased from the previous threshold of $50,000 to $400,000 (after which point claimants in the first instance are given the opportunity to elect whether to have the matter referred to VCAT or the Supreme Court).
11. The fact of the matter is that, in relation to all of the recent major projects in Victoria (namely the Melbourne Metro Rail, the East-West Link and the West Gate Tunnel Project), all of these were implemented through the Minister using his extraordinary powers to exempt the compulsory acquisition schemes from the usual reservation requirements for a public acquisition overlay in the planning scheme. Natural justice appeals to the Supreme Court have resulted.
Legislative reform
12. Important changes included s 69 (1A) to the P&E Act in relation to permit extensions, which removes VCAT’s power to use cl 62 of sch 1 of the VCAT Act to disregard certain procedural failures; the EP Amendment Act, which comes into effect on 1 July 2020, and makes a number of important changes to the environmental jurisdiction, which are beyond the scope of summarising here but which will be a ‘game changer’; reforms to the P&E Act in relation to the ending and removal of s 173 agreements, including a related process to seek VCAT review of Council decisions; the provisions introduced into the P&E Act in relation to GAIC; and the introduction into s 60 (1B) of the requirement that the responsible authority must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect; and changes to public open space contributions under the Subdivision Act whereby contributions under that Act generally only apply if a requirement for public open space is not specified in the planning scheme.
13. Save for the EP Amendment Act, these reforms are now ‘ancient history’ but they are mentioned because relevant decisions need to be considered in light of legislative change.
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Precautionary principle
14. There was quite a bit of litigation in the late 2000s around the environmental precautionary principle, in particular the Rozen litigation. Then a somewhat novel concept, it was applied by VCAT to a road safety issue in Westfield Limited v Manningham CC (includes Summary) (Red Dot) [2011] VCAT 1341. Since that time the precautionary principle seems to have featured less prominently in VCAT decision-making, and there have certainly been no further applications of it to road safety issues.
Signage
15. Signage was also controversial with a number of appeals to VCAT in relation to signage issues. One issue centred around existing use rights in relation to signs and notably DP Gibson’s decision in APN Outdoor Pty Ltd v Melbourne CC (Red Dot) [2010] VCAT 1759 that the display of signage is a development and not use, therefore meaning existing use rights could not apply to assign. That decision was overturned on appeal to the Supreme Court.
Social effects
16. Is a great number of objections in and of itself demonstrative of a significant social effect? This was considered in Minawood Pty Ltd v Bayside CC (Red Dot) [2009] VCAT 440, Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505, and the highly controversial mosque matters involving Greater Bendigo City Council. As noted earlier, the number of objections to a proposal is now addressed as a relevant consideration through the legislative changes made to s 60 (1B) of the P&E Act.
Water
17. There were a number of disputes in relation to water. In the coming years, this will continue with greater frequency. The decisions summarised in relation to water also step out of VCAT’s jurisdiction and into the Federal sphere, with analysis of some of the litigation arising from the implementation of the 2012 Murray-Darling Basin Plan.
The full sagas
18. The full sagas over the Windsor Hotel, Mr Ho’s pet sheep and the Muto saga are traced to their conclusions. It did not go well for any of them.
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Ancillary uses, permit amendments and secondary consent
19. The publication includes the classic decisions in relation to the day-to-day common planning issues around ancillary uses, permit amendments and secondary consent.
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The Decisions
Admissibility of evidence and experts
The admissibility of expert evidence in VCAT is subject to VCAT Practice Note PNPE2, which the writer understands is modelled upon the Expert Witness Code of Conduct under the Supreme Court Rules. Some Legal Members of VCAT have raised criticisms of expert witness conduct, practice and procedure, especially in the context of compulsory acquisition compensation claims (but not exclusively: see recently T C Rice Pty Ltd v Cardinia SC (Red Dot) [2019] VCAT 74, as well as Stanley Pastoral Pty Ltd v Indigo SC (Includes Summary) (Red Dot) [2015] VCAT 36 below).
Perhaps in compulsory acquisition compensation claims the matters are more adversarial, and perhaps also the valuation industry needs to ‘lift its game’: Calder Park Raceway Pty Ltd v Brimbank CC (Land Valuation) (Red Dot) [2016] VCAT 551.
However, despite these statements, there did not seem to be discernible cultural shifts or trends over the last 10 years whereby VCAT has begun to take a stricter approach in practice in relation to expert evidence admissibility. Challenges to expert evidence in planning and environmental merits reviews are typically resolved, not with evidence being found to be inadmissible, rather, the VCAT member will say that he or she will deal with the issue by way of ‘weight’.
The objectives of VCAT promote informality, which can be a good thing. However, there are disadvantages to such informality.
There is an industry of non-lawyer advocates in planning and environment cases who may have more difficulty with rules of evidence than trained lawyers. On the other hand, I am not convinced that it is necessarily in the interests of justice for persons to work as both advocates and experts, which is known to occur. I also would not expect greater levels of formalism to be unworkable. The New South Wales Land and Environment Court, South Australia’s Environment and the Resources and Development Court and the Queensland Planning and Environment Court, show that planning and environmental disputes are highly amenable to resolution through formal hearing procedures.
SMA Projects Australia Pty Ltd v Yarra CC and Ors [2013] VCAT 107
This decision is of interest as to the admissibility of evidence in VCAT proceedings. As a general proposition, there is no point in admitting evidence on issues that are wholly irrelevant. However, what
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happens when an expert report is produced on a general issue that is arguably irrelevant, yet some of the opinions expressed within the expert report arguably may still be relevant at a limited level? Should the report be excluded altogether, or should the report, or a modified report, be allowed to the extent that it provides evidence on potentially relevant issues?
The Council objected to certain evidence proposed to be called on behalf of the permit applicant. The evidence in question was a report prepared by a heritage expert and a report prepared by a financial expert. VCAT (constituted by Member Cook) decided to allow the evidence on a limited basis. Allowing the financial expert’s evidence makes this decision noteworthy. For completeness, however, I will set out VCAT’s reasons for allowing the heritage evidence. Objection to the heritage evidence was made on the basis that a permit had already been issued for the proposal by Heritage Victoria, exempting the need for a planning permit under the heritage overlay, and so heritage was not at issue. VCAT found that the heritage report could still be taken into account to the extent that it may put into perspective the effect of the heritage permission granted by Heritage Victoria and cover legitimate management options.
The Council objected to the financial report on the basis that the finances were irrelevant. VCAT decided that if the financial report were recast so as to focus on an evaluation of whether the finances involved in this proposal were such that they would reasonably have enabled the conservation and restoration of the heritage assets on the subject land, possibly compared with a lesser scale of development, then that would be evidence that could be admitted.
The decision is a reminder that VCAT is not bound by the rules of evidence and may inform itself in any way it sees fit.
Stanley Pastoral Pty Ltd v Indigo SC (Includes Summary) (Red Dot) [2015] VCAT 36 and BRD Group Pty Ltd v Melton SC [2015] VCAT 13
These cases will be of interest to those who prepare expert reports and those who engage expert witnesses.
CHMPs under the AH Act are often required for developments in areas of aboriginal cultural heritage sensitivity and they can be expensive to prepare. It is therefore not uncommon for there to be debate around whether a development area has been subjected to significant ground disturbance, and hence exempt from the need for a CHMP. That was the case in Stanley Pastoral.
In Stanley Pastoral, the permit applicant sought a planning permit to develop a water transfer station to transfer water from a ground water bore to an offsite water bottling plant. It sought review in VCAT
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when the Council failed to decide the application. Shortly before the hearing, the Council’s lawyers advised VCAT that they considered that a CHMP was required.
The permit applicant argued a CHMP was not required on the basis that the activity area had been the subject of significant ground disturbance. It relied upon a cultural heritage advisor’s report to support its submissions. In what appears to have been quite an effective exercise in cross examination, the cultural heritage advisor conceded she had not visited the site prior to signing her report, had relied upon work undertaken by another staff member but had not mentioned that in her report, and that there were a series of inconsistencies in her report.
VCAT, constituted by DP Dwyer, was critical of the cultural heritage advisor’s evidence, describing it as essentially supporting a “pre-determined conclusion, rather than the evidence being fairly assessed...” VCAT decided a CHMP was required, and so the review could not proceed.
BRD Group involved an application made under the VL Act for a review of a decision of a valuer upon an objection to a Council rates notice. The valuation involved substantial sums of money, and a significant difference between the claimed values by the Council, and the land owner.
Despite the significant amounts, the applicant did not call a valuer to present evidence, instead relying upon valuation reports, in draft form, that had been previously prepared by Knight Frank for a potential forced mortgagee sale of the land.
VCAT, constituted by Senior Member Byard and Member Jacono, gave limited weight to those valuations on the basis that they were not prepared for the purposes of the hearing and had not been prepared in accordance with the VL Act. VCAT also observed that steps required under its pre-hearing directions, and required under VCAT’s practice note for expert evidence, had not been undertaken or complied with.
Whilst the Council at least called a valuer to give evidence at the hearing, that valuer also made no reference in his report to site value, capital improved value or net annual value, in accordance with the VL Act. Despite this, VCAT still preferred the Council’s evidence and upheld the Council’s decision.
The case highlights the need for advocates and experts to be thoroughly familiar with the legislative framework relevant to the decision under review. Instructing solicitors need to carefully consider the questions that need to be put to an expert in litigation so as to address the elements relevant to the dispute.
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Calder Park Raceway Pty Ltd v Brimbank CC (Land Valuation) (Red Dot) [2016] VCAT 551
Does the valuation industry have an issue it needs to address?
This decision by VCAT, constituted by DP Dwyer and Member Jacono, highlights the importance of expert land valuers providing a “flow of reasoning” when exercising their professional judgement.
The decision echoes elements of the judgment of Emerton J in Secretary to the Department of Business and Innovation v Murdesk Investments Pty Ltd [2011] VSC 581, which some readers may recall, in which Her Honour heard submissions as to the basis or path of reasoning by a valuer in that case. Her Honour found in relation to that particular valuer at [55] that;
His opinion is based on his “feel” for the way in which property developers assess development opportunities. His approach and his opinion as to the market value of the subject land may be vulnerable to criticism for not being sufficiently rigorous or for being vague and uncertain.
Like Murdesk, the sums of money and differences of amount involved in Calder Park were significant. Brimbank City Council valued the land at $22.82 million for the purpose of the Land Tax Assessment Notice issued by the State Revenue Office. Calder Park Raceway Pty Ltd objected on the basis of its contentions that the site value was $7.9 million.
One can appreciate the difficultly VCAT faces when tasked with resolving disputes involving such substantial sums of money and valuation evidence of questionable assistance to it in its task. VCAT’s salient points on this issue were:
[41] We wish to reiterate something that VCAT has said before in relation to the style and content of valuation evidence commonly provided by valuers in contested proceedings such as this. …
[44] Whilst VCAT is not strictly bound by the rules of evidence, its determinations in land valuation matters are predominantly evidence-based… When sitting as an expert tribunal, it can use its expertise in the review of a valuation, but it is not undertaking its own separate assessment. VCAT therefore needs to fully understand how each valuer has reached his or her conclusion. There must therefore be a transparent flow of reasoning provided by a valuer to support the professional judgement reached on the value of the land…
[46] Unfortunately, VCAT far too often sees little analysis about how the highest and best use has been derived, and what specific town planning considerations (if any) or other factors have been properly taken into account…
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[48] In the very few matters that progress to a contested hearing at VCAT, where the professional judgement will come under even greater scrutiny, the flow of reasoning leading to the valuer’s exercise of professional judgement, and the information, sales analysis and adjustments upon which it is based, needs to be clearly and transparently articulated in the valuer’s witness statement, filed in advance of the proceeding. It should not be left to the vagaries of oral evidence or cross examination. The evidence at the hearing is where the valuer’s professional judgement, including adjustments made to a valuation, should be capable of being tested – not where the valuer’s judgement or adjustments is being heard for the first time “on the run”.
[51] Unfortunately, what we have set out above does not always occur. This is a matter that the valuation industry needs to address…
VCAT determined the site value to be $10.85 million.
Ancillary use
Clarke v South Gippsland SC (Includes Summary) (Red Dot) [2016] VCAT 176
Clarke was a red dot decision by Member Paterson (on the merits review) and Member Cook (on the question of law). The case concerned a skate ramp known as the ‘Mega Ramp’, some 98 m long, 12 m high and located within a decommissioned dam, which was promoted at one point by its owner as the largest skate ramp in the southern hemisphere. The ramp attracted considerable media attention, and even the VCAT decision attracted international attention through some American news publications. The owner of the ramp argued that its use was ancillary to the use of a dwelling on the property in the rural living zone, this dwelling having been constructed after the construction of the mega ramp. On the question of whether the use of the skate ramp was ancillary to the use of the dwelling, Member Cook found that provided it was only used by family or friends and used by a maximum of three participants at any one time with up to five people watching, the use was ancillary to the dwelling. Member Cook found that whilst
[20] The size of the works that support the recreational pursuits is one relevant factor in this case in assessing whether the use is ancillary to the dwelling use...
[21] The building and works component is but one aspect of the assessment of the overall use.
During the hearing it would appear that the nature of the proposed use extended beyond what was contemplated in Member Cook’s decision and so Member Paterson decided to consider whether a permit should be issued. On the key question of amenity impact from noise, Member Paterson was able
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to find having regard to YouTube clips of skaters using the ramp that the noise levels did not appear to be excessive (paragraphs 32 and 33). VCAT directed a permit be issued subject to conditions.
Affordable accommodation
Pearcedale Properties Pty Ltd v Casey CC (Red Dot) [2009] VCAT 1547
This case is of interest because it involved a balancing of policies in respect of providing affordable housing with policy to protect green wedges for their specific values from inappropriate development. The balance was struck in favour of protection of the green wedges over provision of affordable accommodation.
This was an application for review to VCAT against Council’s refusal of a proposal to provide affordable housing through provision of a caravan park with a mix of 110 cabins and caravan sites. The subject land abutted the designated urban area of Pearcedale and was zoned Green Wedge Schedule 3. The applicant estimated that around 15% to 20% of occupants might be tourists, visitors or holiday makers and the remaining 80-85% of occupants would rely on the facility for low cost temporary and permanent accommodation. VCAT accepted that the use corresponded with the definition of camping and caravan park.
The applicant submitted that the proposed use was contemplated by the Green Wedge Zone Schedule 3 and would meet an important social need for low cost temporary and permanent accommodation as sought by State policy.
VCAT accepted that:
. caravan parks provide a supply of low cost accommodation and a housing choice;
. the site had good access to urban services and was opposite community facilities and fronted an arterial road;
. prime development locations also involve expensive land and this creates difficulties for private sector affordable housing projects;
. the proposal was intended for a laudable social purpose; and
. this proposal would not be rejected for reasons relating to traffic, amenity or layout.
However, having particular regard to clause 22.21 (Non- agricultural uses in green wedge areas), VCAT found that on balance the proposal:
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. failed those aspects of clause 22.21 relating to discouragement of urban uses in non-urban areas and protection of agricultural land;
. would detract from the landscape values of the green wedge; and
. would not result in a net benefit to the local community.
It is interesting to compare the decision with Dromana Tourist Park Holdings Pty Ltd v Mornington Peninsula SC (Red Dot) [2005] VCAT 1439.
There are some similarities between the facts in the Dromana and Pearcedale cases, including that both cases involved caravan park proposals in the Green Wedge Zone. In Dromana, the principal concern raised by the Council was that long term leasing of individual sites and the increase in permanent residents had created a de facto residential development outside the Urban Growth Boundary, which was in conflict with the purposes of the zone.
With regard to the Council’s concerns in relation to long term leasing of sites, VCAT commented in Dromana at [28]:
the reality is that camping and caravan parks perform a role in the provision of affordable housing within a community and the planning scheme seeks to ensure that these facilities continue to play that role
VCAT directed a permit be issued, subject to conditions.
Pearcedale and Dromana have distinguishing features, including, as observed by VCAT in Pearcedale, that the proposal in Dromana was primarily directed at tourism, even if on its facts that may be questionable. Nonetheless, Pearcedale provides a clear indication that affordable housing objectives may be outweighed by competing conservation objectives, even when the provision of affordable housing addresses the need and the location is well serviced. This at a time when provision of affordable and social housing is receiving arguably more attention than was the case when Dromana was decided, among other things, with the introduction of state-wide affordable housing policies by Amendment VC043 in 2006 and more recently Amendment VC56 - Government funded social housing and the Commonwealth Government Social Housing Initiative.
Perhaps, on balance, this really is a case of importance of the green wedge area, although the issues of green wedge preservation and public housing provide an interesting contrast.
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Cultural Heritage Management Plans As to whether an exemption applies from a CHMP a primary consideration is whether the land has been subject to ‘significant ground disturbance’. The leading case is Mainstay Australia Pty Ltd v Mornington Peninsula SC (Red Dot) [2009] VCAT 145. In Mainstay, VCAT identified four levels of enquiry – common knowledge, publicly available records, further information from the applicant and expert advice or opinion. Azzure, discussed below, comments upon Mainstay and observes that while some of the levels of inquiry in Mainstay may not be available, it was important to have regard to “comparative and contextual information”, such as the urban context in which the land was situated, the timing of the subdivision, the site, topography and configuration of the lots in the subdivision.
Azzure Investment Group Pty Ltd v Mornington Peninsula SC (Red Dot) [2009] VCAT 1600
This case is of interest because it relates to the question of whether a CHMP was required under the AH Regulations in relation to a relatively small (840m2) lot in an established urban area where such land had been developed extensively, serviced and used over an extended period of time. VCAT found that a “contextual approach” as to whether ‘significant ground disturbance’ had occurred may provide a useful mechanism to deal with development of smaller developed lots, for example, up to a traditional “quarter-acre” block or 0.1 hectares in size.
Azzure Investment Group Pty Ltd applied for review under s 79 of the P&E Act as to Council’s “failure” to decide a permit application within the prescribed time for the development and use of land at 1807- 1829 Point Nepean Road, Tootgarook for a service station and associated uses. The matter was referred to a preliminary hearing on the question of whether a CHMP was required for the proposed activity.
It was agreed that:
. the development was not a generally exempt activity under the AH Act or the AH Regulations;
. the proposed development was a “high impact” activity; and
. the subject land was within an area of cultural heritage sensitivity, being within 200 metres of the high water mark of the coastal waters of Victoria (Port Phillip Bay).
The land was made up of three titles. VCAT was satisfied that the coverage of two of those titles by buildings and paved areas equated to significant ground disturbance. The question was whether the title for 1829 Point Nepean Road had also been the subject of significant ground disturbance.
There was no evidence available of past significant ground disturbance as strictly defined under regulation 4 of the AH Regulations. The question was whether significant ground disturbance for the lot
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could be established to a sufficient level of satisfaction from other comparative and contextual information.
The applicant relied upon expert evidence that the land had been subject to significant ground disturbance due to its urban context, timing of subdivision, the shape, size, topography and configuration of lots in the subdivision, the actual development of dwellings and outbuildings and the pattern of use over time, the provision of underground drainage and services, the style and configuration of the house and garden and the lack of remnant vegetation.
VCAT:
. accepted the applicant’s expert evidence that the land had been subject to past significant ground disturbance having regard to comparative and contextual information;
. found that this contextual approach may provide a useful mechanism to deal with development of smaller developed lots, for example, up to a traditional “quarter-acre” block or 0.1 hectares in size; and
. commented that the decision maker still needs to first consider the definition in the AH Regulations as to whether there has been significant ground disturbance, but in the absence of a single item of proof, the contextual approach may assist the decision maker in determining whether the relevant land had been disturbed.
Readers may be familiar with another decision on CHMP requirements, Mainstay Australia Pty Ltd v Mornington Peninsula SC (Red Dot) [2009] VCAT 145. In that case, VCAT commented that if only part of the land has been subject to past significant ground disturbance, and the remaining part is still in an area of cultural heritage sensitivity, a CHMP will still be required for the whole development activity.
In Azzure, VCAT commented adopting such an approach for smaller lots is anomalous and potentially absurd. For instance, if there was no clear evidence of mechanical disturbance in relation to 1% of a quarter-acre block, should this lead to the conclusion that this small area was an area of cultural heritage significance? VCAT considered that the consequences of such an approach would lead to potentially enormous cost and delay to the permit applicant.
VCAT in Azzure makes it clear that each case will always depend on its facts and that a quarter acre provides a handy guide on the starting point. Care will, however, be required and there is no magic lot size where a CHMP is definitely ‘in or out’. One might wish more regulation about this.
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Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (includes Summary) (Red Dot) [2014] VCAT 826
This decision by DP Dwyer provides practical and succinct guidance on the test that DP Dwyer considers it appropriate to assess whether an approved CHMP from a prior proposal can be relied upon in relation to a different proposal.
In this case, the relevant CHMP was first approved on 15 April 2010. The Council refused a permit in relation to the proposed subdivision and that decision was affirmed by VCAT on review in August 2011. The applicant subsequently amended its subdivision proposal. A question arose as to whether the original CHMP could be relied upon in relation to the amended proposal.
VCAT has previously considered this question. In Three Pillars Property Group v Brimbank CC (includes Summary) (Red Dot) [2012] VCAT 368, DP Gibson determined that a CHMP should suffice for another high impact activity, provided the activity area is the same and the proposed activity is not inconsistent with the CHMP. A real and substantial purpose test should be used to ascertain the character of the development.
DP Dwyer stated that he respectfully disagreed with the so called ‘Three Pillars Test’. Instead, DP Dwyer’s view is that s 52(1) of the AH Act requires the decision-maker to carry out a fair and objective reading of the pre-existing CHMP and to ask whether the CHMP reasonably covers or contemplates the activity now proposed. DP Dwyer found that the relevant CHMP could be relied upon for the amended proposal for reasons he gives in the decision.
For those whose role it is to prepare CHMPs, the decision is also worth a read, particularly at paragraph 21, where DP Dwyer gives some practical guidance as to those matters that in his opinion persons responsible for preparing CHMP should pay regard to:
[21] It would also be helpful if those who prepare CHMPs pay more attention to this issue. At the Tribunal, we see many CHMPs that have been prepared generically. Many include development plans, without indicating whether the assessment and approval is tied to that development. Some do not define the “activity” or the “activity area”. Many do not provide a clear indication of the extent to which an assessment of aboriginal heritage has been undertaken in parts of the activity area beyond the areas of the specific impact of a particular development footprint. It would be helpful if those who prepare CHMPs expressly deal with these sorts of issues – for example, by indicating in a CHMP whether the CHMP or particular recommendations are for some reason tied to a specific development proposal or layout, or whether the CHMP is a complex assessment of the whole of the activity area for all purposes. It would also be helpful if the CHMP expressly indicated
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what flexibility exists for certain types of changes, or what are the areas of sensitivity or change that might trigger the requirement for further assessment or a new CHMP.
Compulsory acquisition and acquisition of land
One wonders whether bureaucrats and Ministers are having greater recourse now to the extraordinary powers in various pieces of legislation that permit expedited compulsory acquisition where relevant decision-makers have decided that this is necessary for the greater good. Recent projects including Melbourne Metro Rail, the East-West link, and the West Gate Tunnel Project, were all implemented through compulsory acquisition schemes that exempted the usual requirement for a reservation in the planning scheme (i.e. a public acquisition overlay).
With the use of those powers there is the prospect of legal challenge on grounds such as denial of natural justice. This is what occurred in the recent judgment in Caligiuri & Anor v Attorney General (on behalf of the State of Victoria) & Ors [2019] VSC 101, where the Supreme Court found that a compulsory acquisition in purported reliance upon the Minister’s extraordinary powers to exempt the acquisition from the usual reservation requirements, was found to be invalid. The passage of the Charter of Human Rights and Responsibilities Act 2006 (Vic) also provides fertile grounds for administrative law litigation that seeks to attack the use of these extraordinary powers in the context of the Charter right to not be deprived of property otherwise in accordance with the law. In turn, over time we will see the development of the common law from this Charter right. Somewhat surprisingly, however, Charter arguments seem to have made limited headway in planning and environment merits reviews, despite it now being more than a decade since the Charter was introduced.
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2
The High Court of Australia considered an appeal in relation to the validity of a ‘taking order’ to compulsorily acquire land. Part of the purportedly acquired land had not been reserved for public purposes. The decision provides an overview of the powers of compulsory acquisition, which is of particular interest due to the decision being made by the High Court. The majority of the High Court held that the procedures under the statute need to be followed or otherwise there will arguably be no power to acquire land reserved for a public purpose. In so far as the taking order referred to unreserved land, the purported acquisition of that land was ineffective.
This was an appeal from the Court of Appeal of the Supreme Court of Western Australia to the High Court of Australia concerning the validity of a taking order in respect of compulsory acquisition. The taking order purported to effect the acquisition of the whole of the land described as lot 7 on Plan 8565, lot 8 on Plan 8565, lot 30 on Diagram 74229 and lot 49 on Plan 17900. Each of the lots fell within the
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Peel Region Scheme (PRS). However, when the PRS was gazetted, not all of the purportedly acquired land was reserved (lot 7 - 3.8%, lot 8 - 41%, lot 30 -52% and lot 49 – 100%.)
The appellants brought proceedings in the Supreme Court of Western Australia seeking a declaration that the taking order was invalid. The primary judge found that the appellants did not establish that the taking order was invalid, which was upheld on appeal to the Court of Appeal. It was this decision that was appealed to the High Court, with the appellants submitting that the Court of Appeal erred in holding that the taking of the whole of the appellants’ land was valid.
The High Court by majority (French CJ, Gummow, Main, Crennin and Bell JJ) held that the taking order was valid with respect to the reserved portions of lots 7, 8 and 30 and the whole of lot 49, but invalid in respect of land which was not reserved.
The High Court observed that the power of compulsory acquisition was entirely the creation of statute, which needed to be interpreted by reference to the statutory presumption against an intention to interfere with vested property rights. The Court considered the legislative regime operating in respect of compulsory acquisition and held that according to that regime the taking order could only be valid in respect of the parts of the lots reserved under the PRS. In respect of the unreserved parts, there was no basis for a power to compulsorily acquire. As a result, the Western Australian Planning Commission (WAPC) was the owner of the reserved parts of the lots. In respect of the unreserved parts, the appellants had a right to rectify the Land Register, which might involve a subdivision so as to isolate the unreserved portions of the lots and amendment to achieve a transfer of ownership to the appellants of the unreserved land.
The High Court also considered the question of severance in the context of whether the whole of the taking order was invalid because it purported to effect the acquisition of land both reserved and unreserved, or whether the invalid parts of the order could be severed. The High Court accepted WAPC’s submissions that the common law principle of severance might be applied in the context of compulsory acquisition, but took the view that it was unnecessary to make a final determination because of the relief available to correct the register outlined above.
While the case concerns Western Australian legislation, the principles are still relevant in the Victorian context. The case highlights that as the powers of government agencies in respect of compulsory acquisition arise from statute, the procedures under the statute need to be followed or otherwise there will arguably be no power.
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Epsom Central Pty Ltd v Bendigo CC and Anor [2011] VCAT 1943
This case is of interest as it goes to the powers of Catchment Management Authorities to create reserves on referral. In this particular case, the reserve was to be created in favour of the City of Greater Bendigo for waterway management to maintain drainage and ecological values for a waterway. VCAT (constituted by Member Potts) found that the CMA’s condition was valid in substance.
The permit applicant sought and was granted a planning permit for a three lot subdivision. On referral, the North Central Catchment Management Authority (CMA) required a planning permit condition to include land along a nearby waterway to become a waterway reserve and the creation of a new floodway and drainage easement adjacent to the proposed reserve. The permit applicant resisted the imposition of a waterway reserve, claiming it to be an unjust acquisition of land without compensation, unnecessary on merit and that a drainage and floodway easement would be sufficient.
The CMA relied upon the decision of Gillard J in Melbourne Water v Domus Design Pty Ltd (2007) 27 VSC 114, claiming that its statutory mandate under s 136 of the Water Act was a wide one. (Section 136 provides an “Authority” with the power to create, among other things, a reserve on a subdivision referral under the P&E Act. “Authority” is defined in s 3 of the Water Act to include a catchment management authority.)
Member Potts decided that:
. VCAT had a discretion under the P&E Act which should properly extend to matters of merit under the planning regime, as well as the regime under the WA. There must therefore be some exploration of the merits through the whole exercise of power;
. the exercise of power by the CMA under s 136 of the Water Act was valid. The CMA had functions as a waterway manager under the Water Act and requiring the creation of a reserve was consistent with that role. The undeveloped nature of the waterway provided various ecological values which were protected by a reserve; and
. an easement would not provide exclusive use or the level of possession required to manage the riparian zone in the manner necessary to achieve appropriate ecological and drainage functions.
Stonnington Planning Scheme Amendment C197
This was a recommendation by a Planning Panel that an Amendment to impose a Public Acquisition Overlay (PAO) over land in Armadale should not, for the time being, proceed.
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The Panel’s recommendation in Amendment C197 is of interest because it is very unusual for a Panel to make such a recommendation and also because Stonnington City Council’s plans to acquire land for public open space purposes have been controversial, with reportedly 450 sites throughout the municipality proposed for reservation (The Age, March 30, 2015).
The Panel found that while in general terms the planning policy framework provided in principle strategic support for open space initiatives, the proposed application of the PAO to the relevant properties in Armadale lacked a sound strategic base. Relevant adopted policy by the Council for Toorak Park did not contemplate the expansion of that park or the acquisition of surrounding properties. The Panel was not satisfied that the public benefits of the Amendment had been sufficiently demonstrated to a point where it could support the Amendment.
Lower Our Tracks Inc v Minister for Planning [2016] VSC 803
This decision is of interest because it involved a Supreme Court challenge to the Victorian Government’s ‘Skyrail’ project.
One of the current Victorian State Government’s key election promises was to remove 50 of Victoria’s most dangerous level crossings. As part of meeting this commitment, the Government announced it was providing an elevated section of railway between Caulfield and Dandenong stations dubbed ‘Skyrail’.
To implement key elements of the planning controls for the project, the Minister for Planning used the discretionary power given under s 20 (4) of the P&E Act and exempted himself from exhibition and notice requirements associated with a planning scheme amendment to nine planning schemes concerning works near and incidental to the railway. The Minister is lawfully able to exercise this power so long as he considers that compliance with those requirements is not warranted or the interests of Victoria made an exemption appropriate. Lower Our Tracks Inc (LOTI) sought to establish that the Minister erred in providing himself with the exemption. LOTI argued insufficient consultation had occurred in relation to the switch from an under-rail design to an elevated railway line. It was alleged the public announcement of the decision to switch had been delayed so as to avoid political controversy prior to announcing the preferred tenderer for the project.
LOTI’s claim against the Minister’s exemption decision was based on the following grounds: unreasonableness, irrationality or illogicality; improper purpose; and fettering of discretion.
Ginnane J found the Minister had addressed the preconditions contained in s 20 (4) and gave reasons as to why he considered that they existed. Those reasons did not reveal the errors which LOTI alleged. There was no substantial evidence that the Minister acted with an improper purpose or had fettered his
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discretion. With respect to unreasonableness, irrationality or illogicality, the Level Crossing Removal Authority had consulted with the community and affected persons about the implementation of the project, which included the elevated rail design. Whilst the Minister had not consulted in relation to his decision to exempt, he was not obliged to do so.
Development Plan Overlay Schedules
Beaver v Indigo SC [2008] VCAT 740
Development Plan Overlay – No schedule in the planning scheme – requirements for a development plan when there is no schedule
On 28 February 2008, Amendment C41 to the Indigo Planning Scheme was gazetted, which included the subject land in a DPO, however, the schedule in the Indigo Planning Scheme did not create any specific requirements in respect of the subject land.
The subject land was the old Beechworth Gaol, a heritage property of State significance included on the Victorian Heritage Register.
The Applicant had applied for review under s 79 of the P&E Act in respect of the failure by the Council to grant a permit for a subdivision.
DP Gibson found that the planning scheme map is what determines whether an overlay applies, and accordingly, as the land was shown on the planning scheme map as being affected by the DPO, the DPO provisions under the Scheme applied and a development plan was therefore required. The absence of number codes on the planning scheme map and a schedule under the DPO did not mean that the land was not affected by the DPO. In relation to the requirements for a development plan, where there was no schedule, the development plan was only required to meet two requirements under clause 43.04-3 of the Scheme, namely the land to which the plan applies, and the proposed use and development of each part of the land. The development plan may also describe other things as well, with the agreement of the applicant and provided they are to the satisfaction of the Responsible Authority.
Declarations
The application of VCAT’s decision in Ileowl (discussed below), will need to be reassessed when the requirements of the EP Amendment Act come into effect on 1 July 2020. That new legislation relevantly provides for declaratory applications at VCAT, in the following terms:
436 Application for declaration
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(1) A person may apply to VCAT for a declaration concerning any matter in relation to which the person may apply to VCAT under this Act or anything done by the Authority under this Act.
(2) On an application under subsection (1) VCAT may make any declaration it thinks appropriate in the circumstances.
(3) VCAT's power to make a declaration under this section is exercisable only by a presidential member of the Tribunal.
(4) Without limiting subsection (1), a person proposing to engage in an activity may apply to VCAT for a declaration as to whether or not a permission is required to engage in that activity.
The EP Act relevantly currently provides:
36D Application for declaration
(1) A person may apply to the Victorian Civil and Administrative Tribunal for a declaration concerning any matter which may be the subject of an application to that Tribunal under this Act.
Accordingly, there is no difference to the extent that both provisions refer to “may”. The word “may” is significant. The recent decision in Cook v Minister for Water [2019] VCAT 866 warrants mention in that respect. Cook involved an application for declaration under the Water Act.
DP Dwyer, was asked by the Respondent Minister for Water to strike out the Applicant’s application for a declaration under s 305A of the Water Act concerning the matter of:
Whether s 235 of the Water Act 1989 binds the Crown, in circumstances where access is sought over land owned by or vested in the Crown.
DP Dwyer dismissed the application, holding that VCAT had jurisdiction.
Section 305A of the Water Act provides:
Application to Tribunal for declaration
(1) A person may apply to the Tribunal for a declaration concerning any matter that could form the subject of an application for review to the Tribunal under this Act (other than an application for review under section 266(6)).
(2) On an application under subsection (1) the Tribunal may make any declaration it thinks appropriate in the circumstances.
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(3) The Tribunal's power to make a declaration under this section is exercisable only by a presidential member of the Tribunal.
In support of the strike out application, the Minister’s advocate referred to Ileowl. DP Dwyer observed that s 36D of the EP Act was different in its terms to s 305A of the Water Act. Section 36D of the EP Act provides that a person may apply to the Tribunal for a declaration “concerning any matter that may be the subject of an application to that tribunal under this [i.e. the EP] Act”. By contrast, s 305A of the Water Act provides that a person may apply to the Tribunal for a declaration “concerning any matter that could form the subject of an application for review”.
DP Dwyer agreed with the applicant that the words “could form” are a little more speculative than the words “may be” in terms of the subject matter that could be the subject of a future application for review.
Where important differences do arise between the EP Act and the EP Amendment Act is the express right to apply for a declaration concerning Authority conduct, and the express confirmation that declarations can be sought as to whether or not a permission is required to engage in an activity.
Ileowl was subsequently appealed. Bell J’s judgment in Environment Protection Authority v Ileowl [2017] VSC 625 records the result of a mediated outcome between EPA and Ileowl. The Court ultimately decided to grant a declaration that s 19A (1) (a) and (c) of the EP Act did not apply to the particular development and therefore no works approval was required. The Court stated that from a discretionary perspective it was important to resolve the question as to whether works approval was required for the development. The effect of DP Dwyer’s decision was that VCAT could not grant a declaration as to whether a works approval was, or was not, required. Regardless of the correctness of that decision, as a result of the EP Amendment Act, parties will soon clearly have a right to apply for a declaration as to whether a permission is required.
Melbourne CC v Minister for Planning (includes summary) (Red Dot) [2015] VCAT 370
This decision highlights that to attack the validity of a permit, it is worth also considering the utility of seeking a declaration as an alternative to, or in addition to, applying for cancellation.
This was an application by Melbourne City Council and others for a declaration, as well as other orders, seeking to invalidate the former Planning Minister’s decision to grant a permit for a hotel development and mix of uses at 25 Russell Street, Melbourne and the refurbishment of the neighbouring Forum Theatre building on Flinders Street.
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The key issue concerned the floor area of the proposed project. As readers may be aware, under the Melbourne Planning Scheme the Minister for Planning is the responsible authority for considering and determining applications for developments with a gross floor area exceeding 25,000 square metres. The Applicants argued that the Minister’s decision to grant the permit was invalid because the gross floor area for the project did not exceed 25,000 square metres. The floor area of the Forum Theatre (6,387 square metres) had been added to the gross floor area of the development scheme for 25 Russell Street (19,620 square metres). DP Gibson accepted that the two floor areas could not be combined. The hotel development was not physically or functionally connected to or integrated with the Forum Theatre building and the refurbishment work to the Forum Theatre was a separate project in a planning sense. Accordingly, the responsible authority for the development was Melbourne City Council and as a result the Minister for Planning’s notice of decision was void.
DP Gibson observed that there was no debate at the hearing about the consequences of a finding that the Minister was not the responsible authority (see paras 74 to 76). The fact that there was no debate on that point contrasts with what typically occurs in cancellation of permit proceedings, with the consequences of cancellation often forming a central issue and which can result in a permit being upheld notwithstanding that it may have been issued by mistake.
Ileowl Pty Ltd v Environment Protection Authority (includes summary) (Red Dot) [2015] VCAT 1105
This decision suggests that VCAT has a more limited jurisdiction in relation to declarations under the EP Act than the P&E Act.
The Ileowl decision is of interest because VCAT, constituted by DP Dwyer, considers the extent of its jurisdiction to grant declarations under the EP Act. Readers will perhaps be familiar with VCAT’s declaratory powers under the P&E Act, applications in respect of which arise often enough. Declaratory proceedings under the EP Act are more infrequent. Ileowl sought a declaration that a works approval was not required for its proposed composting and soil blending operation. The Environment Protection Authority (EPA) took a different view and so Ileowl sought a declaration under s 36D (1) of the EP Act, which provides:
A person may apply to the Victorian Civil and Administrative Tribunal for a declaration concerning any matter which may be the subject of an application to that Tribunal under this Act.
The EPA argued that VCAT did not have jurisdiction to make a declaration because there was no reviewable application under the EP Act. The EPA relied upon the wording of s 36D (1) and in particular the reference to “any matter which may be the subject of an application to that VCAT under this Act”.
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The EPA argued that as no works approval had been applied for, there was no reviewable decision, and hence VCAT’s power to grant a declaration was not enlivened.
VCAT accepted that argument. In response to Ileowl’s argument that the words ‘may be’ in s 36D (1) enlivened VCAT’s jurisdiction because an application for review of some kind could possibly be made in the future, VCAT applied previous Supreme Court authority to the effect that there must be an actual application in existence capable of review.
Easements Australia Post v Mornington Peninsula SC [2008] VCAT 486
The case provides an unusual example of allowing an application in part while deferring consideration of other aspects to obtain further information in respect of removal of carriageway easements.
Australia Post had made an application under s 79 of the P&E Act for review of the Council’s failure to grant a permit within the prescribed time.
The subject land comprised numbers 63 and 65 Mt Eliza Way.
Telstra was the owner of number 63 and Australia Post was the owner of number 65.
A driveway ran along the boundary between the two properties, with mutual easements of carriageway on both sides of the boundary providing carriageway to an area that was being used as a car park at the rear of the properties. The same carriageway easements extended over the car park area.
Australia Post proposed to redevelop 65 Mt Eliza Way. The new building works would extend over part of the carriageway easement on 65 Mt Eliza Way, and accordingly, Australia Post sought a permit to have the carriageway easement lifted.
Telstra agreed to the removal.
Council indicated to VCAT that it opposed the removal of the carriageway easement over the car parking for public planning reasons, in particular:
The proposal would inappropriately have the effect of removing the planning requirement for car parking at the rear of the subject land and shown as Staff Parking on the endorsed plan of the permit P04/0031.
Removal of the easement would not lead to an acceptable outcome as required by clause 65 of the planning scheme.
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Member Byard indicated that it appeared that in approving the previous planning permit, the Council had relied upon the existing carriageway easements to ensure the provision of efficient staff car parking in relation to the new development and he expressed reluctance to proceed in the way favoured by Australia Post on the basis that legitimate public planning concerns about parking had not previously been secured.
Member Byard therefore decided to grant the application in respect of the part of the carriageway easement over the driveway on 65 Mt Eliza Way, which was not used for car parking and was immediately problematic to Australia Post’s proposed development. In respect of the car park, he deferred the application pending obtaining of further information relating to car parking generally. He considered that the deferral was warranted due to the unusual circumstances of the case and need for expediency in relation to the part of the existing carriageway easement over the driveway.
Existing use rights Glenelg SC v Printz Pty Ltd (includes summary) (Red Dot) [2009] VCAT 2477
This case is of interest because DP Gibson found that there is no “existing development right” in relation to a development that commenced prior to the introduction of a planning control requiring a planning permit for works.
The land was within the township zone where no planning permit was required for the use or development of a dwelling provided that certain conditions were met. This was the only planning control applying to the land when a building permit was issued for the construction of a dwelling. Construction of a new dwelling commenced in early March 2009. On 13 March 2009, the Glenelg Planning Scheme was amended with the introduction of an Environmental Significance Overlay (ESO4), which included the subject land and required a planning permit to construct a building, including a dwelling.
The key issue for determination by VCAT was whether or not the introduction of the ESO4 had the effect of requiring a planning permit for continuation of construction of the dwelling.
The council contended that, among other things, assuming the erection of the building and works were carried out lawfully prior to the introduction of the ESO4, the preservation of rights pursuant to s 6 (3) (d) of the P&E Act extended only to the preservation of the right to use the land and did not preserve development rights associated with such use. This was on the basis of the clear distinction in the P&E Act between ‘use’ and ‘development’.
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Printz Pty Ltd (Printz) contended that, among other things, s 6 (3) (d) of the P&E Act operated so as to protect the use by allowing completion of the development to achieve the intended use. It was put that while development is usually treated as a concept independent of use, in the case of a building being erected, the development is fundamentally intertwined with or inherent in the use. Otherwise, the existing use right is rendered meaningless.
VCAT found that when the development commenced, the land held existing use rights for a residential use and that a new planning control could not prohibit or restrict the existing use rights due to s 6 (3) (d) of the P&E Act. Further, the ESO4 control did not purport to affect use. However, in a situation where no planning permit for development exists, any further development of the land subsequent to the introduction of the control requires a permit.
Different wording in s 6 (3) of the P&E Act would be required for the protection of any right to complete development.
VCAT also considered submissions in relation to s 28 (2) (e) of the IL Act on the concept of accrued rights, whereby a planning scheme amendment shall not, unless the contrary intention expressly appears, affect any right accrued under that planning scheme.
VCAT found that no right had been accrued under the planning scheme. Rather, Printz took advantage of a gap in the field covered by the planning scheme that left Printz free of statutory control. This did not give rise to any accrued rights, in contrast with the situation of, say, where a permit had been granted.
The decision reinforces the distinction in the P&E Act between use and development and would also appear to extinguish any concept of accrued development rights or necessary rights to complete a development of a dwelling so as to protect a right to use the dwelling. The decision has implications for persons commencing development in the absence of a planning control, who then need to apply for permission after the introduction of a control and consequently incur the associated costs and potential delay in connection with that process.
It would appear that amendment to s 6 (3) of the P&E Act would be required if parliament sought to introduce a concept of ‘existing development rights’, whereby nothing in any planning scheme or amendment will prevent the completion of any development lawfully commenced under planning or other legislation before the planning scheme or amendment came into operation.
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Seers v Macedon Ranges SC (Red Dot) [2016] VCAT 1198 and Gembrook Pines Pty Ltd v Glen Eira CC (Red Dot) [2016] VCAT 537
These are both red dot decisions involving consideration of existing use rights and should therefore be looked at when the question of existing use rights arises. The decision in Seers was by DP Gibson and the decision in Gembrook by Senior Member Wright QC. In both decisions, VCAT drew a distinction between existing use rights under clause 63 of the planning scheme and use/works authorised under an existing permit. The distinction between clause 63 and reliance upon accrued rights under a permit was drawn by DP Macnamara (as he then was) in Lakkis v Wyndham CC [2001] VCAT 863, which is considered in both Seers and Gembrook. Because the establishment of existing use rights under clause 63 is typically a factually complicated exercise, and because clause 63 specifies a number of restrictions in relation to existing use rights and when they expire, it may be advantageous to rely upon accrued rights if the circumstances allow.
In Seers, the Applicants sought a declaration that the relevant use had been in accordance with the permit since it was granted in 1996, the use had been continuous and not ceased over a period of two or more years and, as a result, the use could continue pursuant to the permit. VCAT made declarations to that effect. In doing so it considered when it is necessary to rely on clause 63.01 to establish existing use rights and when it is sufficient to rely on the provisions of the planning scheme or a permit. VCAT observed that in order to ascertain whether existing use rights can be established, one should first enquire about why it is necessary to establish existing use rights. If the use of the land complies with a valid permit, the permit continues in effect under s 28 (2) of the ILA, not under clause 63.01 of the planning scheme.
Gembrook was a proceeding that arose out of an application to amend a permit. Relevantly, there was no height limit prescribed in the Residential 1 Zone, which applied when the permit was granted. However, part of the initially approved development now lay within the General Residential Zone, which required that no building be higher than 10.5 m and the relevant part of the building rose to a height of 13.3 m. Senior Member Wright QC observed that because the issue concerned development, as opposed to use, existing use provisions provided no assistance to the Applicant. However, pursuant to s 28 (2) of the ILA, the Applicant had a right under the permit and this right was not taken away by the planning scheme when the new zone was introduced.
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Enforcement
Page & Anor v Manningham City Council [2010] VSC 267
The Supreme Court has commented that the practice of including some notes and endorsements in penalty infringement notices (PIN) may be inappropriate. In this case, the PIN included an endorsement that if the fine of $567.00 under the PIN was paid, no further action would be taken. The appellants paid the fine and argued Manningham City Council was ‘estopped’ from issuing enforcement proceedings. The Supreme Court (constituted by Her Honour Marilyn Warren CJ) held that it would not be in the public interest for the responsible authority to be prevented from taking enforcement action, however, Her Honour observed that in future dealings responsible authorities should consider removing such endorsements as a matter of public interest.
Between April and June 2008 native vegetation was removed or lopped from the appellants’ land in order to make way for the construction of a swimming pool. The respondent subsequently issued a PIN to the appellants pursuant to s 130 (1) of the P&E Act.
The PIN required payment of a fine and included an endorsement that if the fine specified in the PIN was paid, no further action would be taken including in respect of “seeking an enforcement order in accordance with the Act.” Manningham City Council subsequently took enforcement action against the appellants before VCAT. At the hearing of that application, the appellants applied to have the matter struck out on the basis that the PIN had been complied with and so an administrative estoppel arose.
VCAT (constituted by Member Phillip Martin) refused to strike out the proceeding and determined that there was nothing to preclude enforcement in VCAT. The appellants appealed to the Supreme Court.
Warren CJ:
. considered the interaction between the P&E Act and the Infringements Act 2006 and held that the enforcement order was a civil remedy aimed at rectification of planning contraventions, not a means of punishing contraventions, in contrast to the proceedings in the Magistrates Court, which were criminal in nature and intended to punish;
. observed that Australian courts have generally not supported the use of estoppel in administrative law. There was a public interest in empowering the community at large to seek remedies to contraventions of planning and environment schemes through the enforcement framework at VCAT and that a finding to the contrary would be wholly unsatisfactory; and
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. commented that the relevant passage in the PIN must have been either an incorrect statement of the law or a representation as to the responsible authority’s future intention. Administrators were not able to fetter the existence of their discretion under statute by considering themselves bound by a representation or otherwise.
Conclusion
The case maintains a wide view of administrative discretion. While it remains open to argue that an administrative estoppel has arisen, such an argument will only succeed in very limited circumstances because of the normally paramount need for the exercise of statutory discretion for the public benefit. Pragmatically, as the endorsement in the PIN appears to have been the cause of much of the controversy, and particularly given the specific nature of the endorsement with the reference to an “enforcement order”, Her Honour’s comments about removal of such endorsements should sound as a warning to responsible authorities who may be including them without appreciating the full potential implications and confusion that this can create.
DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634
This case is of interest for the consideration given by Osborn J to whether mens rea (a guilty mind – the mental element of a criminal offence) is an element of an offence under s 126 (2) of the P&E Act.
This section provides that the owner of land is guilty of an offence if the land is used or developed in contravention of the planning scheme, a permit or an agreement under s 173. Osborn J held that it is not necessary to establish mens rea or knowledge to successfully prosecute a breach of s 126 (2).
The appellant was convicted in the Magistrate’s Court for an offence under s 126 (2) of the P&E Act involving the poisoning of 33 native trees on land owned by the appellant. The appellant appealed on the basis that:
. the appellant could not be held liable for breach of s 126 (2) of the P&E Act because it had no knowledge of the poisoning, and the Council could not prove beyond reasonable doubt who had poisoned the trees; and
. the $40,000 fine was manifestly excessive.
Osborn J dismissed the appeal:
. As to whether s 126 (2) required proof of mens rea, the P&E Act was to be construed in accordance with the principles set out by the High Court in He Kaw Teh v R [1985] 157 CLR 523
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(In He Kaw Teh, the defendant was charged with importing 2.788kg of heroin in the false bottom of a bag into Australia. The trial judge directed the jury that the offence did not require mens rea. The accused was convicted and appealed, first to the Victorian Court of Criminal Appeal, then to the High Court, where it was held by majority that a statute should be presumed not to dispense with a requirement for mens rea, particularly where the offence is a very serious one.)
. His Honour applied the principles in He Kaw Teh to s 126 of the P&E Act, having regard to:
- the words of the statute creating the offence;
- the subject matter of the statute;
- whether subjecting the defendant to strict or absolute liability will assist in promoting the objectives of the statute; and
- the nature of the penalty.
. His Honour found that the language and statutory context support the view that it is not necessary to establish the requisite element of mens rea.
. With regard to whether the penalty was manifestly excessive, the $40,000 fine was not egregious or erroneous.
Banyule CC v Tomasevic [2011] VCAT 2377
Choosing the most appropriate option in respect to planning enforcement can be difficult. In this case the land in question was being used, in effect, for a junk yard. The Council had successfully obtained two previous enforcement orders through VCAT, which were not complied with. This decision of VCAT (constituted by Vice President Judge Lacava) highlights the need to carefully consider which course to take when faced with persistent non-compliance.
Two previous enforcement orders of VCAT had been made against the respondent, both of which set deadlines for the ceasing of use and removal of material. The deadlines had not been met. The Council applied to have the respondent dealt with for contempt pursuant to s 137 of the VCAT Act and to pay the Council a penalty of $15,000. According to Council’s representative, the $15,000 sum was an estimate of the cost to Council should it have to clear the property itself.
Judge Lacava declined the application. His Honour:
. was satisfied that the evidence established that the respondent had failed to remove all goods and had continued to store goods in contravention of the order;
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. observed that s 137 (5) did not give VCAT the power to impose a penalty to be paid to the Council, in effect, as compensation;
. commented that the Council had an alternative remedy pursuant to s 123 of the P&E Act, which provides that the responsible authority may carry out work and recover the cost of the work from the person in default. His Honour commented that even if he were satisfied that the elements of contempt had been proven beyond reasonable doubt, His Honour would not have exercised discretion to convict the respondent due to the availability of an alternative remedy; and
. decided that the applicant must prove its case beyond reasonable doubt and was not satisfied that the applicant had proven beyond reasonable doubt that any relevant act that the respondent did, or failed to do, relating to the enforcement orders, was deliberate. His Honour relied upon a series of expert reports by psychiatrists and others going to the mental health of the respondent that showed the respondent was suffering from various mood disorders, paranoid personality disorders, depressive disorders and other difficulties, which showed why the enforcement orders had not been complied with.
Wilson & Anor v Harrison & Anor [2012] VSC 404
This case and related proceedings raised some interesting issues in terms of the relationship between legal professional privilege (LPP) and the prosecution’s duty of disclosure. The decision is a reminder that local government prosecutions bring with them duties of disclosure similar to typical criminal law cases.
The Wilsons were charged by Yarra Ranges Shire Council (Council) with carrying out building work without a building permit. Over a lengthy period the Wilsons pursued further information from Council concerning the case brought against them, including seeking an order for production of notes made by Council lawyers of conversations they had with a neighbour witness. The Council claimed LPP over the notes. The Wilsons sought an order for production that was refused at first instance by the Magistrate with the conduct of the matter, and on appeal refused by Whelan J in Wilson on the basis that while there was a serious issue to explore in terms of the effect of the prosecution’s duty of disclosure upon LPP, the Wilsons’ case was not a strong one and the balance of convenience favoured the trial going ahead.
Following service of the neighbour’s witness statement, the Wilsons alleged inconsistencies relating to the statement. Council eventually yielded and provided some of the notes sought and explained the absence of others. The Wilsons then sought certain prosecutorial assurances in relation to the evidence,
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which were not given. Before Macaulay J in Wilson, the Wilsons sought an order restraining the prosecution from proceeding until the assurances were given. Macaulay J dismissed the Wilsons’ application on the basis that the application had no connection with the Supreme Court’s jurisdiction to supervise the magistrate’s decision, because no application for an order restraining the prosecution from proceeding until the assurances were given before the Magistrates’ Court. Macaulay J observed that the prosecutorial duty of disclosure exists independently of the need for the assurances sought, that counsel for the Council had indicated he was well aware of his prosecutorial duties and, if the Wilsons faced any surprises in the Magistrates’ Court trial, there were a range of potential remedies available.
On the question of costs, Macaulay J stated that the steps the Wilsons had taken to pursue discovery of the contents of the notes made by the Council’s solicitors lacked “reasonable perspective on the issue”. The continued insistence upon being provided the notes became unreasonable after particulars were supplied or clarified during the earlier Supreme Court application before Whelan J. Once the notes were handed over or their absence explained, the stance then adopted by the Wilsons in insisting upon various assurances “bordered on the absurd”. The Wilsons were ordered to pay the Council’s costs from that point.
Ho v Greater Dandenong City Council [2012] VSC 165
This case is of interest because it concerned a Supreme Court challenge to the validity of a local law. Mr Ho had a pet sheep kept allegedly in contravention of a local law. He filed proceedings in the Supreme Court arguing that the local law was itself invalid. Macaulay J held that the local law was valid because Greater Dandenong City Council (Council) had broad powers to enact local laws and the local law was also not inconsistent with the planning scheme.
Mr Ho was warned by the Council that he was at risk of prosecution for contravening clause 26.1 of the Municipal Amenity Local Law (Amenity Law) by keeping a pet sheep from time to time on a property that he occupied that was less than half a hectare in area. Clause 26.1 of the Amenity Law provided:
An occupier of land which has an area of half a hectare or less must not keep any livestock on that land.
Mr Ho responded by filing proceedings in the Supreme Court arguing that the Amenity Law was invalid based on s 111 of the LG Act:
1. the Council had no powers to make laws regulating the keeping of animals on land within its municipality; or
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2. the Amenity Law was inconsistent with the provisions of the Greater Dandenong Planning Scheme (Scheme). With regard to whether Council had power to make laws regulating the keeping of animals, Mr Ho relied upon the 2003 amendments that removed schedule 1 from the LG Act. The schedule previously made specific reference to functions including those of “animal control, protection and conservation” and “animal impounding.” It was argued by Mr Ho that with the repeal of these provisions, the Council no longer had the power.
The Council argued that the 2003 amendments now authorised the Council to make laws that were necessary or convenient to achieve peace, order and good government and that the Amenity Law was consistent with that power. Macaulay J agreed.
With regard to the argument that the Amenity Law was inconsistent with the Scheme, Mr Ho’s argument was essentially along the lines that keeping pets on land is a use ancillary to dwelling use, which is permitted under the Scheme and by prohibiting the keeping of a pet sheep on land, clause 26.1 of the Amenity Law was therefore inconsistent with the Scheme. His Honour did not accept that argument, finding that the Scheme did not ’cover the field’ with regard to animal keeping and that the issue was not whether the keeping of a sheep was an ancillary use, but whether the Scheme regulated that activity at all, which it did not. His Honour preferred the construction that the provisions of the Scheme and the Amenity Law operated cumulatively at different levels of detail.
Vu Ho v Greater Dandenong City Council [2013] VSCA 168
This was the next instalment in the Ho litigation concerning the keeping of Mr Ho’s pet sheep in the City of Greater Dandenong. Through the course of that litigation Mr Ho has challenged clause 26 of a Greater Dandenong City Council local law which provides that “an occupier of land which has an area of half a hectare or less must not keep any livestock on that land.”
The litigation has received some attention in the media and has now culminated in Mr Ho’s unsuccessful appeal from the decision of Macaulay J in Ho v Greater Dandenong City Council [2012] VSC 165 to the Court of Appeal.
Mr Ho’s appeal to the Court of Appeal was based upon three main contentions. Clause 26 was beyond the local law making power of the Council; that there was a direct conflict between the Greater Dandenong Planning Scheme and Clause 26 because the planning scheme authorised the keeping of the pet sheep as an ancillary use; and legal costs should not have been awarded against Mr Ho by Macaulay J because the legal proceeding was in the public interest and in defence of democracy.
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Garde AJA, with whom Maxwell P and Tate JA agreed, held that Clause 26 of the local law was within power. This was a matter concerned with social and environmental issues, not to mention the avoidance of nuisance, which was within scope of the Council’s powers to make local laws under s 111 (1) of the LG Act and the functions of local government. Garde AJA agreed with Macaulay J’s analysis below that the power to make local laws confers a broad power on the Council; there was no inconsistency between the Planning Scheme and the local law. This was a classic case where the land use or activity was regulated by two controls and that each must be satisfied; and this was not an instance of public interest litigation and that there was no basis for the Court of Appeal to interfere with the costs order made by Macaulay J below.
Moorabool SC v Ethanwray Developments Pty Ltd (includes Summary) (Red Dot) [2016] VCAT 191
Moorabool was a red dot decision of VCAT constituted by Member Whitney. The case involved consideration of two questions of law in connection with an enforcement order application by the Council. The first question required an analysis of the expiry condition in a planning permit. The planning permit was issued in 2007 for the development of 10 offices in the mixed use zone. Condition 22 of the permit provided that if, amongst other things, the plan of subdivision was not certified within two years of the date of the permit or the development was not commenced within two and a half years, the permit would expire. Applications to extend the permit were subsequently made and granted in 2009 and 2011. When those applications were granted, the Council stated that the permit would now expire if the subdivision is not certified “and/or” the development is not commenced.
The respondents submitted that whilst certification did not occur within time, the development had commenced and so the permit was still alive. Member Whitney observed that s 69 of the P&E Act did not enable an amendment to the expiry provision of a permit and only allowed changing the time periods. Accordingly, the Council could not have changed the expiry provisions to allow the respondent to elect to commence development and so extend the life of the permit through development.
The case highlights the need for clear drafting of planning permit conditions, a point made by Member Whitney at paragraph 20 of her decision:
this is a case that highlights the importance of clear drafting of planning permit conditions and any changes to them. Whilst it is often said, often dismissively, that hindsight is 20/20, perhaps a more careful review of conditions and changes to conditions at the time of drafting... might not go astray.
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The second issue concerned an alleged conversion of offices to dwellings. Member Whitney decided that it was not necessary for the use of the dwellings to have commenced for there to be a contravention of the planning scheme. Having regard to the physical characteristics of the buildings, Member Whitney found that ten dwellings had been constructed without a planning permit. On the question of whether the use of the dwelling needed to have commenced for there to be a contravention of the scheme, Member Whitney observed at paragraph 60 that
if it was correct to say that the land needed to be used in a particular way before an enforcement order could be made with respect to the development of the land for the particular use, then this would mean that, in a number of circumstances, the Council would need to wait for a person to use the land before it could undertake enforcement action under the Act with respect to alleged unlawful development... 63. This is not sensible from a practical point of view (as third parties may unwittingly become involved in the dispute...) or when considering a Council’s obligation to efficiently enforce the planning scheme.
Gaming and liquor
In relation to gaming and liquor, T C Rice Pty Ltd v Cardinia SC (Red Dot) [2019] VCAT 74 warrants mention by way of update. In that decision, VCAT (constituted by Senior Member Naylor and Member Djohan) found that with respect to the gaming application, VCAT did not have jurisdiction under ss 51 (1) and 127 of the VCAT Act to amend the application. An application under relevant sections of the GR Act is not a document "in a proceeding" as such a document was created prior to the commencement of the relevant proceeding.
Queensberry Hotel Pty Ltd v Minister for Planning and Community Development [2013] VCAT 444
This decision is of interest with respect to the views expressed by VCAT toward the Victorian Commission for Gambling and Liquor Regulation (Commission) in relation to VCAT’s town planning expertise, and the types of arguments that may be persuasive as to whether a planning permit for the installation and use of electronic gaming machines (EGM) should, or should not, be granted.
In this decision VCAT (constituted by Senior Member Byard and Member Bilston-McGillen) decided to affirm the decision of the responsible authority to refuse to grant a planning permit for EGMs in the Queensberry Hotel at 593 Swanston Street, Melbourne.
By way of background, clause 52.28-2 of all Victorian planning schemes contains particular provisions in relation to EGMs and creates a trigger for a planning permit. The purpose of clause 52.28 is to ensure that social and economic impacts of the location of gaming machines are considered. The responsible
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authority, with the support of Melbourne City Council, argued their case primarily on the basis that the proximity of public or social housing facilities was a reason as to why the permission for the EGMs should be refused. The site had relative proximity to high rise housing commission flats in the vicinity of Palmerston Street, Carlton with ready access to the site by means of tram services down Swanston Street and other proximate accommodation for disadvantaged persons.
While VCAT affirmed the decision of the responsible authority, its reasons focused more upon the possible development of the site itself and associated problem convenience gambling. VCAT gave particular weight to incorporate and reference documents that applied with respect to the site, namely, an incorporated document entitled ‘Carlton Brewery Comprehensive Development Plan October 2007’ (CDP), and a reference document entitled ‘Carlton CUB Brewery Master Plan October 2007’ (Master Plan). VCAT found that these documents gave some detail as to planned use and development of the site, which VCAT found made clear that retailing was a serious intention. Accordingly, there was a potential problem with respect to ‘convenience gambling’ (i.e. gambling that confronts someone who is at a location for say shopping), who may be tempted to go gambling because they encounter gambling opportunities.
It was put by the permit applicant that weight should be given to the Commission’s decision to approve the EGMs. In particular, the applicant also stressed the Commission had in its reasons for their decisions, which specifically stated that it considered the location of the site would make convenience gambling unlikely, primarily because the final designs of the proposed development were yet to be confirmed and it is impossible to say, with certainty, whether retail use will be in proximity to the hotel so as to raise the possibility of convenience gambling. VCAT disagreed entirely with that view finding, that while the final designs had not been produced, there was sufficient detail in the CDP and Master Plan to indicate the future use and development of the site.
GAIC
Frontlink Pty Ltd v Commissioner of State Revenue [2016] VSC 25
Frontlink is an important decision of the Victorian Supreme Court in relation to the operation of the excluded subdivision provisions of the GAIC provisions under the P&E Act (Part 9B). In Frontlink, Croft J overturned VCAT’s decision with respect to a road widening subdivision whereby VCAT had found that a road widening subdivision was not an excluded subdivision under s 201RF of the P&E Act.
By way of background, s 201RF relevantly provides that a subdivision will be an excluded subdivision, and so not subject to GAIC, if:
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the purpose of the subdivision is solely to provide land for transport infrastructure or any other purpose;
Frontlink Pty Ltd had prepared plans of subdivision which it submitted to the Council for certification. One of the plans did nothing other than seek to provide 0.7782 ha of land for a road widening. Frontlink Pty Ltd prepared a separate plan of subdivision for its residential subdivision, which it submitted after the road widening plan.
The Commissioner for State Revenue issued a GAIC assessment in relation to the road widening subdivision plan on the basis that the subdivision triggered a liability to pay GAIC. Frontlink Pty Ltd objected and ultimately sought review at VCAT, which upheld the Commissioner’s assessment.
The Commissioner’s main argument was that s 201RF (b) required consideration of the ‘purpose’ of the subdivision and, in ascertaining that purpose, the entire purpose of the subdivision was determinative and, that based upon that wide consideration of the purpose of the subdivision, this was a residential subdivision.
Frontlink Pty Ltd contended that all that was relevant was what the road widening subdivision plan did, which was to create land for a road. Justice Croft accepted that argument.
As a result of this decision, landholders in growth areas that need to create land for roads or certain other types of public infrastructure, should have confidence that if they create that land on a plan of subdivision that precedes a separate plan for the residential subdivision, the first plan of subdivision should not trigger a GAIC liability. The GAIC payable on the subdivision for residential purposes will be reduced because it will only be payable upon the area of land that excludes the public land. It is very important that landholders subdivide the land sequentially so as to gain the benefit of the exemption.
Green wedge
Davidson v Yarra Ranges SC (Includes Summary) (Red Dot) [2012] VCAT 1966
This case is of interest for its analysis of administrators exceeding their powers in regard to the use of schedules under zoning controls.
The permit applicant sought permission to resubdivide land at Woori Yallock. Council refused to grant a permit and an application for review was lodged with VCAT. The Council’s refusal was upheld by VCAT, constituted by Member Deidun, primarily in relation to concerns around fragmentation of agricultural land, however, it was VCAT’s observations to the maximum lot sizes specified in the Green Wedge Zone schedules under the Yarra Ranges Planning Scheme that make this decision noteworthy.
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The applicant for review argued that the Green Wedge Zone provisions authorised a schedule to specify a minimum lot size but that there was nothing in the zone provisions authorising a schedule to specify average lot yields and maximum lot sizes, which the relevant schedules purported to do. Pursuant to s 22 (1) of the IL Act, subordinate instruments should be construed so as not to exceed the power to make the subordinate instrument – a stream cannot rise higher than its source. The schedules therefore went beyond power. The applicant argued that only those parts of the schedules which are authorised, or given power by the Green Wedge Zone itself, were valid and that VCAT should not have regard or take account of those parts in the schedules which step outside that power. The argument was similar to other cases before VCAT, which are set out in the decision. VCAT agreed.
Kain v Yarra Ranges SC (Red Dot) [2013] VCAT 1908
Kain’s subdivision met the minimum lot size for subdivision in the schedule to the Green Wedge A Zone of the Yarra Ranges Planning Scheme, however, it did not meet an associated average lot size requirement. A permit was refused and Kain applied for review to VCAT. Kain argued that the average lot size requirement was legally ineffective because the schedule to the zone exceeded the power of the empowering zone control. Past decisions of VCAT provided support for that argument: Davidson v Yarra Ranges Shire Council [2012] VCAT 1966. Dwyer DP disagreed with those past decisions and instead considered that the matter was to be resolved through statutory interpretation.
Dwyer DP considered that VCAT did not have jurisdiction in a merits appeal to simply declare that the provisions in the schedule to the zone relating to the subdivision were invalid, even if VCAT did have jurisdiction, it would not ordinarily be appropriate to exercise that jurisdiction. Applying the High Court decision in Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841, Dwyer DP observed that the proper approach was to instead seek to construe the schedule in such a way so as to resolve any apparent inconsistency with the empowering provision in the zone control. Inconsistency should be read down in order to give effect to the intent and purpose of the parent provision. Adopting that approach, Dwyer DP interpreted the provisions so as to find no apparent inconsistency between the subdivision control in the zone and the schedule.
In considering the DP’s reasoning, it occurred to the writer that the DP’s interpretive approach has elements in common with Courts reading down privative clauses. Privative clauses are provisions in legislation that seek to oust judicial review. Courts, which likely have an inherent disdain toward such clauses, have still been reluctant to actually strike them down as legally invalid. Perhaps out of concern to maintain parliamentary supremacy, Courts have instead preferred to read the clauses down, although High Court decisions such as in Plaintiff S157 /2002 v Commonwealth [2003] HCA 2; 211 CLR 476; 195
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ALR 24; 77 ALJR 454 and Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1, show that the High Court is prepared to sometimes find a privative clause legally invalid. Dwyer DP was similarly reluctant to declare parts of the Yarra Ranges Planning Scheme legally invalid, preferring instead to read it down through methods of statutory interpretation. Such an approach sits more comfortably with the functions of a VCAT merits appeal. Although, as with the reading down of privative clauses, the approach does have a downside: its complexity – or as the High Court put it in Futuris Corporation (2008), the approach potentially entails a “tortuous path of statutory construction and reconciliation.” This will not be a problem if the Minister for Planning clarifies the zone control and schedule of the Yarra Ranges Planning Scheme.
Willis v Yarra Ranges SC (Red Dot) [2016] VCAT 407
How should the ‘smaller lots’ permit requirement to allow smaller lot subdivisions in the Green Wedge Zone to the Yarra Ranges Planning Scheme be applied?
The applicant sought a declaration pursuant to s 149A of the P&E Act that his proposed subdivision was not prohibited. The proposed subdivision was for two lots of 30.44 hectares and 17.15 hectares respectively. Schedule 5 of the Green Wedge Zone specified a minimum lot size of 30 hectares, subject to an average lot yield of not more than 1 lot per 40 hectares and a maximum lot size of 70 hectares. As one of the lots was under 30 hectares, the applicant relied on clause 35.04-3, which provides an exception to the minimum lot size by allowing ‘smaller lots’ to be created where the subdivision is the re-subdivision of existing lots, the number of lots is not increased, and the number of dwellings that the land could be used for does not increase. The parties accepted these requirements could be met.
However, Yarra Ranges Shire Council refused the application for a planning permit to create smaller lots on the basis that the smaller lot provisions in the Green Wedge Zone were qualified by the average lot yield and maximum lot size specified in Schedule 5. Given that the two proposed lots had an average lot yield of 23.79 hectares, Council submitted that the proposed subdivision did not meet the required average yield.
VCAT, constituted by DP Dwyer, found that the smaller lot exemption was:
[41] … clearly intended to operate as a general exemption from the minimum subdivision area requirements set out in the schedule without the average lot yield or maximum lot size operating as a separate stand-alone requirement that must still be observed, or as an additional constraint. It simply creates a permit trigger, with the proper exercise of discretion still needing to be applied to determine whether the planning merits justify the grant of a permit in a particular case.
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In so finding, VCAT was critical of what it saw as inconsistency in the approach by the Council to different subdivisions in the Green Wedge Zone:
[47] In relation to this, in both Kain and Bonfadini, VCAT endorsed interpretations of the subdivision controls then promoted by the Council. In the current proceeding, the Council still submitted that both Kain and Bonfadini were correctly decided, and should both be followed. It is therefore a little disingenuous for the Council to promote different views in different forums, and a little surprising that the Council has chosen to take an unduly narrow and restrictive interpretation of the controls in this proceeding if it is elsewhere claiming that such an interpretation is incorrect and/or unworkable. Indeed, it appears that, away from VCAT, the Council is contending for a view that the “smaller lots” provisions should operate essentially in a manner that accords with the simpler interpretation that I have applied in this proceeding.
Humorous
I remember when this decision, from Tasmania, was doing the rounds. We had a good laugh.
AAD Nominees Pty Ltd v Resource Management and Planning Appeal Tribunal [2011] TASFC 5
Finally, on the Tasmanian Kingborough Planning Scheme, some frank observations by Evans J of the Supreme Court of Tasmania (Full Court) caught the writer’s attention:
[2] I have read the reasons for judgment of Tennent J in draft form, and agree that this appeal should be dismissed, for the reasons stated by her. I would like to add some comments, mainly concerning the Kingborough Planning Scheme 2000. The full text of each of the relevant mind- numbing clauses is set out in her Honour's reasons for judgment, and I am very grateful for that.
[3] The planning scheme is very complex, and exceedingly and unnecessarily difficult to comprehend or interpret. Most ordinary people would not have a chance. Most sensible people, or people with a life, would not attempt the task unless they had absolutely no choice. In order to determine how the scheme operates in relation to the appellant's proposed development, it is practically essential to have a law degree, decades of experience in interpreting legal documents, a talent for understanding gobbledygook and misused words, a lot of time, and a very strong capacity for perseverance.
[4] The appellant is proposing a large retail business development. The proposed site of that development is in the "Business and Civic" zone. One might think that the council would therefore have a discretion to permit the development. But it is not as simple as that.”
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Mediated outcomes and consent orders
478 St Kilda Road Land Pty Ltd v Port Phillip CC (Red Dot) [2016] VCAT 445
Does a mediated outcome in relation to building height guarantee that the height will not be increased further in the future?
This decision by VCAT, constituted by Senior Member Baird, concerned an application under s 87A of the P&E Act, which relevantly provides that VCAT may amend a permit issued at its direction. The applicant sought an amendment to a permit that was issued following mediation for an additional floor to be added to the approved 18-storey development. The Council opposed the application on the ground that there was no reason to depart from the mediated outcome. A number of objectors also opposed the amendment, perhaps understandably having expected that the mediated height represented the end of the matter. The issue was whether VCAT should amend the permit, given it eventuated through a mediation process.
One of the primary reasons for caution in the exercise of power under s 87A is to provide public confidence in mediation and finality. The issue is outlined in the following paragraphs of this VCAT decision, which provide that whilst there is a need for a measure of restraint in the exercise of power under s 87A, mediated outcomes are not necessarily final and they do not mean that mediated permits cannot be changed or that a mediated outcome must never be altered:
[95] King David and Marone commented on the broader benefits of retaining confidence in the integrity of the planning process and its decisions, resolving disputes and achieving finality. This is within the context of discouraging “repeat appeals” in which an applicant seeks to replicate submissions for a use or development that have been previously rejected or the applicant seeks to win back what it lost or conceded.
[96] This is a very important point and great caution is required with respect to changes that are requested shortly following mediation/ compulsory conference that undermine an agreement.
[97] However, finality cannot be achieved in relation to any site – whether in the planning process, while a building is being constructed, or even after a development is completed. There cannot be 100% finality for a number of reasons. Planning permits are not required to be acted upon. In addition, the P&E Act allows amendment applications to be made through s87A where the Tribunal has granted a permit, allows s 72 P&E Act applications to be made to the Council, and allows entirely new permit applications to be made that might replicate/be similar to an original proposal.
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[98] As the Tribunal commented in Teperman “...circumstances can and do change. It is important that the opportunity to respond to changes is available subject to consideration of the merits and impacts of the changes”.
VCAT decided to grant the application, observing that “contextual considerations”, including changed circumstances, were relevant to the exercise of power under s 87A. In the current case, changed circumstances included a new landowner who was not involved in the earlier mediation, the Council’s lack of objection to the proposal on its planning merits, and that the proposed amendment still satisfied the height requirement under the Design and Development Overlay that applied to the land, which effectively deemed that the development met the design objectives of that overlay.
AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources (Red Dot) [2016] VCAT 1249
It is sometimes said that in making a consent order VCAT must still be satisfied that the decision agreed to by the parties is the “correct or preferable decision.” Does that mean VCAT always needs to undertake a detailed analysis of the material before it analogous to a full merits review? That would be unworkable, but at the same time, VCAT cannot simply rubber stamp a settlement proposal without consideration. This decision of VCAT (constituted by DP Dwyer) discusses VCAT’s role in making consent orders.
The parties to the proceeding, as a result of a compulsory conference, agreed upon a set of revised conditions and sought a consent order to give effect to the settlement. VicRoads and Latrobe City Council indicated their agreement to the revised conditions after being given an opportunity to participate in the compulsory conference process. However, the Council’s agreement was qualified and it sought to place before VCAT substantial background material which it asked VCAT to consider on the papers as a “matter of record.” To what extent was VCAT required to consider this material?
VCAT relevantly observed that:
[12] … in giving effect to a settlement in a proceeding of limited ambit, VCAT does not have an inquisitorial function to enquire into any underlying or broader issue of substance that the Council says the resolution of the… conditions may not resolve.
VCAT observed that it was:
[31] Not particularly helpful to VCAT if a person or party involved in the settlement seeks to unilaterally provide extensive additional material on issues beyond those that relate to the
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acceptability of the agreement and requests VCAT to consider that material in determining the proceeding.
VCAT went on to make the consent orders requested by the parties
Misconduct
The primary litigation concerning councillor conduct centered upon the conduct of Mr Milvan Muto, a councillor at Greater Shepparton City Council. Despite his efforts to challenge the various sanctions brought against him, things ultimately did not transpire well for Mr Muto, with the maximum four year suspension from duties penalty being upheld. The principal legislative development more recently is the Local Government Bill 2019 (maybe an Act by the time of publication of this book). It makes changes in relation to councillor requirements including training, donations, and election procedures and regulatory oversight of conduct.
Secretary to the Department of Planning and Community Development v Muto (General) [2010] VCAT 1327
The Secretary to the Department of Planning and Community Development (Secretary) sought an interim injunction restraining a Councillor from Greater Shepparton City Council carrying out any of his duties or exercising any of his powers as a Councillor until the hearing and determination of a gross misconduct application.
VCAT (constituted by President Ross J) was not persuaded to grant interim relief. His Honour formed the view that there was a serious question to be tried about whether the Councillor’s conduct fell within the relevant statutory definition, and the balance of convenience did not favour the grant of relief because if an injunction were granted, and the allegation of gross misconduct was not ultimately made out, the residents would have been deprived of their democratically elected representative.
Section 81E of the LG Act allows the Secretary to make applications to VCAT alleging gross misconduct. If VCAT makes a finding of gross misconduct, it has the power pursuant to s 81K (4) of the LG Act to, among other things, disqualify the Councillor for up to 4 years. Gross misconduct is defined under s 81A of the LG Act as behaviour that, among other things,
(b) demonstrates that a Councillor is not of good character or is otherwise not a fit and proper person to hold the office of Councillor.
The Secretary alleged that the behaviour of the Councillor fell within the meaning of gross misconduct, in that the Councillor:
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1. while a Councillor, had assaulted a Council officer and pleaded guilty to a charge of assault in respect of that conduct;
2. had a criminal history involving previous criminal convictions from 1981 through to 1997 involving assaults, a sentence of three years imprisonment with 18 months suspended for recklessly causing serious injury and possession of cannabis;
3. repeatedly failed to abide by Council policies and directives on direct conduct with Council officers;
4. repeatedly behaved in a rude, abusive, threatening and inappropriate manner in dealing with Councillors and Council officers;
5. neglected and failed to perform his duties as a Councillor;
6. had engaged in conduct likely to damage public confidence in the office of Councillor; and
7. had exhibited a lack of integrity. In respect of a particular motion at a Council meeting he had said that “I don’t care what time you rubber stamp things, I’ll toss a coin”. He allegedly then produced a coin, flipped it and after flipping the coin announced “I’m in favour”.
The Secretary sought an interim injunction to prevent the Councillor from continuing to carry out any of his duties or exercising any of his powers as a Councillor until the hearing and determination of the gross misconduct application. It was put that the situation was urgent because the actions of the Councillor were undermining the confidence which members of the community were entitled to repose in the Council.
President Ross J:
1. commented that for an interim injunction to be granted, it must be demonstrated that:
(a) there is a serious issue to be tried; and
(b) that the balance of convenience favours the grant of the injunction;
2. formed the view that there was a serious issue to be tried about whether the Councillor’s conduct amounted to gross misconduct within the meaning of s 81A (b), particularly given the new provision had not yet been the subject of any judicial consideration and there was debate regarding the appropriate characterisation of the alleged conduct that gave rise to serious questions to be investigated at trial.
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3. formed the view that “the balance of convenience” did not favour the grant of interim injunctive relief because:
(a) the Councillor was prepared to give an undertaking that he would abide by the Council’s Conduct of Business policy in relation to contact with Council staff; and
(b) if an injunction were granted and the allegation of gross misconduct was not ultimately made out, the residents would have been deprived of their democratically elected representative; and
4. refused to grant interim injunctive relief.
The use of these provisions raises a number of new and interesting issues in terms of the role of VCAT in respect of democratically elected local representatives. It is understood that the hearing of the principal gross misconduct application is scheduled to commence on 22 November 2010, which will no doubt be followed with interest.
Secretary to the Department of Planning and Community Development v Muto (General) (Correction) [2011] VCAT 328 (4 March 2011)
This was the next instalment involving Councillor Muto and the Department of Planning and Community Development allegations as to misconduct under the LG Act.
VCAT has now made final orders in the proceeding which may be of interest to the reader as the case appears to be the first involving the misconduct provisions under the LG Act. In Muto, following admissions made by the Councillor, VCAT (constituted by President Justice Ross), found that the Councillor had engaged in 13 instances of conduct constituting misconduct. The Councillor was reprimanded and ordered to make a public apology and take a leave of absence from his duties as a Councillor for a period of one month.
Secretary to the Department of Planning and Community Development v Muto (No 4) (Review and Regulation) [2013] VCAT 1180
This was the next instalment involving the Secretary’s misconduct allegations against Councillor Muto. In 2011, Ross J, then VCAT President, made orders by consent that this particular Councillor be suspended from duties for a period of one month, would have restrictions placed on him in relation to future duties for a period of six months and would need to issue an apology.
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The Councillor allegedly engaged in further actions of misconduct, which led to the application by the Secretary for orders in relation to gross misconduct, being the highest order of misconduct under the relevant provisions of the LG Act, attracting a maximum four-year suspension. The Secretary’s application was heard in conjunction with an application by a group of Councillors seeking orders as to serious misconduct, attracting a maximum six-month suspension.
VCAT (constituted by Senior Member Russell Byard and Member Ken McNamara) recounted the evidence that had been put before it, which makes for interesting reading. This included that the Councillor, over an extensive period, made various claims of illegality against the Council and its officers, used an electronic billboard on the Shepparton Hotel to display various offensive messages, used offensive language and terms to describe Councillors, particularly female Councillors, and refused to respect confidentiality at Council meetings.
VCAT found the evidence demonstrated that the Councillor had engaged in repeated and habitually aggressive, threatening and intimidatory behavior. In addition, he derived enjoyment from shocking people by making extravagant and untrue statements and accusations, to which some of the Councillors had suffered emotional distress from the actions and Council staff had become frightened, refusing to attend briefing sessions.
As to the serious misconduct application, VCAT found that the conduct constituted serious misconduct and imposed the maximum six-month suspension. In relation to the gross misconduct application, VCAT found that the Councillor had engaged in gross misconduct and suspended the Councillor for the maximum four-year term.
Muto v Secretary to the Department of Transport, Planning and Local Infrastructure & Ors [2014] VSC 619
This is the next chapter in the ongoing misconduct litigation involving a Shepparton Council Councillor.
Muto appealed VCAT’s decision in Secretary to the Department of Planning and Community Development v Muto (No 4) (Review and Regulation) [2013] VCAT 1180 to the Supreme Court. He alleged a series of errors by VCAT in making its order including denial of natural justice, that VCAT did not act fairly, that various provisions of the VCAT Act had not been properly applied, the penalty was manifestly excessive, the order of VCAT was based on falsehoods and a series of other grounds. Williams J dismissed every single one of the grounds, and denied leave to appeal.
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Burnet v Yarra CC (Red Dot) [2013] VCAT 1753
The bold actions of this particular objector make this a case worth noting.
The objector, a Ms Margaret Anne Burnet of Fitzroy, emailed the developer’s architect and stated that she was:
About to lodge for VCAT and I thought I would give you the opportunity to resolve with me first, but you will need to move quickly. What I need to do is extend from our building line and extend down to my other side with a loft style room. I am quite happy to organise it all myself when your project is complete, BUT I would need you to fund it upfront to guarantee it gets done.
The objector’s loft-style room did not get built and she followed through on her threat of seeking a VCAT review. Gibson DP was unimpressed and decided that the application was effectively brought on to secure a financial benefit and constituted an abuse of process within the meaning of s 75 (1) (b) of the VCAT Act. Gibson DP struck out the application, notwithstanding that the application also raised legitimate planning grounds. VCAT also reserved costs, and the writer anticipates that if such application has been made, it will have been successful.
Natural justice
Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1
The Federal Court, constituted by Kenny J, considered the Victorian Government’s proposed five-year “research trial” to investigate fuel and bushfire risk management in Alpine National Parks (the Trial). The Commonwealth Minister for Sustainability, Environment, Water, Population and Communities (Commonwealth Minister) made a decision the effect of which was to prevent the Trial proceeding. That decision was unsuccessfully challenged in the Federal Court by the Secretary to the Department of Sustainability and Environment (DSE).
The DSE referred the Trial for approval under the EPBC Act to the Commonwealth Minister. The Commonwealth Minister formed the view that the Trial would have unacceptable impacts on the National Heritage values of the Australian Alps National Parks and Reserves and therefore decided that he would not further consider approval of the proposed action without modifications to the proposal. The Secretary challenged the decision on judicial review grounds in the Federal Court.
The first ground of challenge was that under the EPBC Act. The Commonwealth Minister’s decision was to be made “on the basis of the information in the referral” and that in making the decision, the
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Commonwealth Minister had exceeded his power by using information from several articles and reports that were not in the Secretary’s referral. The Court held that the Commonwealth Minister was not prevented from drawing on his own knowledge, or that of his Department, in making the decision. Were this not the case, it would not be possible to effectively assess the material in a referral.
The second ground of challenge was that the EPBC Act protected only those National Heritage Values whose protection was ‘appropriate and adapted’ to give effect to Australia’s obligations under the Biodiversity Convention. Consideration of ‘recreation’, ‘aesthetic characteristics’ and ‘social values’ was not ‘appropriate and adapted’ to give effect to Australia’s obligations under the Biodiversity Convention. The Court held that the Commonwealth Minister’s findings regarding obligations under the Biodiversity Convention were appropriate. The ecological and species diversity criteria, considered alone, would have justified the Commonwealth Minister’s finding. It was also appropriate to consider the recreational and aesthetic values.
The third ground of challenge was a breach of natural justice, as the Secretary did not have an opportunity to comment on the extrinsic material considered by the Commonwealth Minister. The Court held that there was no breach of natural justice. The decision was a provisional one, making it less likely that the ‘hearing rule’ applied and that the EPBC Act also provided for reconsideration by the Commonwealth Minister, during which the Secretary would have the opportunity to respond before the final decision.
The fourth ground of challenge was a technical argument in relation to the procedure allegedly established under the EPBC Act for decision making, which the Secretary submitted was not followed. Kenny J was satisfied that there was no error by the Secretary in relation to such matters.
Woldeyes v Brimbank City Council [2016] VSC 639
This was an appeal to the Supreme Court of Victoria (constituted by Emerton J) on the grounds that VCAT failed to accord the plaintiff/permit applicant procedural fairness.
The plaintiff/permit applicant had applied to Brimbank City Council for a planning permit for a 12- dwelling development, which was refused. The zoning of the subject land had changed to prohibit the construction of more than 2 dwellings on a lot, but the plaintiff’s application was exempted under transitional arrangements. This was the last opportunity to approve a multi-dwelling development on the site.
At the Hearing, VCAT made an “interim order” providing for the plaintiff/permit applicant to file modified plans for the development to meet particular issues raised by VCAT throughout the Hearing.
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The interim order provided that VCAT would decide the application on the material provided to date, and any supplementary submissions received in accordance with the order. No further hearing would be conducted unless a party requested or VCAT determined that a further hearing would be required.
The plaintiff/permit applicant went on to submit amended plans for a 10-dwelling development. VCAT proceeded to decide the plaintiff/permit applicant’s application for review “on the papers”, and found that the decision of the Council should be affirmed and a permit should not issue. The plaintiff/permit applicant challenged VCAT’s decision on the grounds that VCAT failed to accord him procedural fairness. This was largely based on the contention that VCAT had a duty to inform him if it “considered that there was some other reason which warranted an affirmation of the original decision [to refuse a permit] and which represented a departure from the process adopted by the Tribunal on 9 February 2016 [the date of the Hearing].”
Emerton J observed that the plaintiff/permit applicant may have been given some confidence that the modified proposal in accordance with the interim order would be approved, however, this did not impose a duty on VCAT to communicate with the plaintiff/permit applicant if it identified a problem with the proposal. The plaintiff/permit applicant was given procedural fairness.
Out of sequence subdivisions
Mallia v Mitchell SC [2008] VCAT 1333
This decision highlights that if developers propose to subdivide land ahead of infrastructure, the weight of policy is toward the developer providing, and paying for, reticulated water supply where appropriate.
This was an application for review against a condition in a planning permit under s 80 of the P&E Act. The permit allowed the subdivision of land into six lots in a Rural Living Zone (RLZ), ranging from 1.3ha to 3.5ha. The proposed subdivision was some 1.5 km from the nearest water main. The permit condition requiring reticulated water, at the developer’s expense, was imposed by Goulburn Valley Region Water Corporation as a referral authority. The applicant argued the subdivision could rely on rainwater tanks for supply and that this was reasonable in view of the comparative cost likely to be incurred in providing reticulated water.
VCAT placed particular emphasis upon clause 22.06-1 of the local planning policy, which provided that in respect of 2.0 to 4.0 hectare lot size subdivisions, lots will generally require the provision of a reticulated water supply.
VCAT also considered the Minister’s Direction No 6 Rural Residential Development and the Rural Residential Guidelines and found that these guidelines promote an expectation that the provision of an
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adequate water supply of an acceptable quality is to be addressed and the provision of services is to be at the developer’s cost.
Commenting on the rural zone, VCAT found that the predominant purpose of the RLZ is to provide the opportunity for residential living in a rural context and that:
the use brings with it an expectation of infrastructure servicing normally associated with residential use.
Having regard to the above, VCAT found there is a strong preference for reticulated water to be provided to such subdivisions where reasonably available and that the cost in this situation was not an unreasonable impost for the developer.
However, VCAT did indicate that in some instances it would not be appropriate to require reticulated sewerage and that its decision may well have been different if this particular application had been for a two lot subdivision or if connection was required for a water main of some greater distance than 1.5km.
Broader implications
Developers clearly need to factor into account the likely additional costs of providing services to their developments.
The Mallia decision provides some guidance in relation to the likely requirements for reticulated water supply in the RLZ.
However, whilst the weight of policy is toward the requirements for developers to provide, and pay for, reticulated services, there will be exceptions.
Councils, developers and water corporations should therefore carefully consider the requirements of permit conditions and whether those requirements are reasonable. Other options to consider may be to use s 173 agreements under the P&E Act or s 17 (2) (c) agreements under the Subdivision Act to defer service requirements.
Panels
Coastal Estates Pty Ltd v Bass Coast SC & Ors (Red Dot) [2010] VCAT 1807
In this case, VCAT (constituted by Dwyer DP) found that s 39 of the P&E Act only gave VCAT jurisdiction to consider issues of procedure, not substance, in respect of a panel. The case appears to rule out from s 39 (1) referrals to VCAT of the more substantive aspects of administrative law. Courts have recognized
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the need for caution in respect of ‘legal’ reviews intruding into the merits of fact finding. That argument may be at its strongest when the subject matter involves a panel recommendation.
The referral to VCAT concerned the panel’s consideration of a planning scheme amendment that proposed to introduce a series of structure plans for coastal townships into the scheme, which would affect the applicant’s land. In respect of the relevant structure plan affecting the applicant’s land, the Council proposed that the relevant structure plan provide that this land be rezoned in the:
intermediate’ term to Comprehensive Development Zone, while the applicant made submissions for rezoning in the “short term”.
The panel did not support either the Council’s or the applicant’s proposals, and recommended that the relevant structure plan instead be modified to completely delete the proposed extension to land that included the applicant’s.
The applicant referred the matter for determination to VCAT under s 39 (1) of the P&E Act, seeking an order restraining the planning authority from adopting the amendment until a freshly constituted panel re-heard submissions and recommendations in respect of the relevant part of the amendment.
Alleged procedural defects included failure to comply with ss 24 (a), 25 (1) and 161 (1) (b) of the P&E Act in considering and hearing submissions and in reporting its findings, having regard to the panel’s approach in relation to the absence of a rezoning request by the applicant, the Victorian Coastal Strategy, ‘special circumstances’ that may justify a rezoning, development contributions, likely visitation rates and impact on views.
VCAT found that s 39 only dealt with procedural defects or non-compliance, not substantive errors.
The nature of some of the failures alleged by the applicant raised substantive questions about the panel’s findings and reasoning.
VCAT found that to this extent it did not have jurisdiction.
VCAT commented that there were three primary reasons for holding the view that s 39 operates in this limited way: case law (including East Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217); the operation of s 39 “when read as a whole and properly construed” – the distinction between ‘procedural defects’ and ‘substantive errors’; and the legislative history of s 39 – which over time had become more limited in its operation as a result of amendments to the P&E Act.
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VCAT therefore found that it did not have jurisdiction to decide upon the claim that the panel had taken into account irrelevant considerations or had made a recommendation so unreasonable that no reasonable panel could have so recommended. In respect of the procedural errors claimed that did fall within VCAT’s jurisdiction, VCAT found that the panel had complied.
VCAT also made some interesting comments in relation to the role of the panel in the proceeding before VCAT, being represented by a barrister in an adversarial manner and filing affidavit evidence on behalf of the panel chair, potentially exposing the panel chair to cross-examination.
VCAT commented that had the applicant’s grounds been made out:
the partisan stance taken by the panel in VCAT proceeding would have prevented the matter being remitted to the same panel.
Dustday Investments Pty Ltd v Minister for Planning [2015] VSC 101
This decision by the Honourable Justice Garde of the Victorian Supreme Court highlights the very wide discretion of planning panels.
Dustday sought a declaration that a panel recommendation and Council resolution to include land in the heritage overlay was affected by legal error and was therefore invalid.
Dustday’s arguments focused upon the following conclusions reached by the panel:
In all we were not persuaded by the arguments presented on this issue that the nature of the decision-making framework, including the limitations applying to decisions on permits, is such that condition should normally be taken into account at the listing stage.
Having said this we do acknowledge that condition may sometimes be relevant in extreme cases of dilapidation where demolition is an inevitable outcome. In such circumstances, the case for demolition would have to be irrefutable and the community-wide costs and benefits of the demolition versus conservation outcomes would have to be clearly identified.
Dustday argued the panel was misdirected by imposing an arbitrary restriction on when consideration of demolition was relevant, which was not grounded in law or policy.
Garde J held that the panel had a wide discretion and so it was open to the panel to adopt the position that it would only give weight in its report to the dilapidation of the building where demolition was an inevitable outcome.
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Dustday also argued that the panel failed to consider social and economic effects. At the panel hearing, Dustday submitted the building was of borderline heritage significance, and given its very poor condition, any reuse option would be very costly.
Dustday had developed its submissions partly on the basis of an amendment to s12 (2) (c) of the P&E Act. Section 12 (2) (c) had been amended to require that a planning authority must take into account social and economic effects, as opposed to may.
Garde J was satisfied that the panel gave careful and comprehensive consideration to social and economic effects, and observed that as Dustday had not made development plans available at the amendment stage, the panel’s consideration of conservation and heritage matters in a reuse scenario was necessarily more circumscribed.
Permit amendments
T C Rice Pty Ltd v Cardinia SC (Red Dot) [2019] VCAT 74 is also applicable to permit amendments. In that decision, VCAT (constituted by Senior Member Naylor and Member Djohan) found that with respect to the gaming application, VCAT did not have jurisdiction under ss 51 (1) and 127 of the VCAT Act to amend the application. An application under relevant sections of the GR Act is not a document ‘in a proceeding’ as such a document was created prior to the commencement of the relevant proceeding.
The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520 (29 March 2011)
King David School warrants brief mention for VCAT’s approach in relation to amendments pursuant to s 87A of the P&E Act. Section 87A provides that VCAT may cancel or amend a permit that has been issued at its direction if it considers it appropriate to do so. Three weeks after the issue of a permit, the applicant sought to amend permit conditions under s 87A. VCAT, constituted by DP Dwyer and Member Naylor, confirmed that it had concerns with s 87A being used to seek substantive changes to a permit. Particularly, in circumstances where the permit had only recently been issued and the nature of the proposed changes were directed at achieving a more favourable outcome than contemplated in the original decision. The principle of ‘repeat appeals’ was relevant and it was important to ensure finality to litigation. Accordingly, VCAT amended some of the conditions of the permit but refused amendments in respect of the more substantive proposed changes.
Garden City Australia Pty Ltd v Whitehorse CC (Red Dot) [2013] VCAT 1812
This decision provides guidance as to the principles applicable to the amendment of plans.
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In this decision, Gibson DP considered whether or not to grant the applicant leave for review to amend its permit application by substituting amended plans. In support of its application, Garden City submitted that it was not the number of changes that was relevant, but rather the quality of the changes. The redesign of the proposal was a direct response to concerns expressed by the responsible authority and objectors. Rejecting the application and substituting the amended plans with a new planning permit application would result in an unfair and unreasonable 12-month delay.
Gibson DP decided that the cumulative effect of all of the changes led to the conclusion that the proposal was a significantly different one to that considered at first instance by the responsible authority. A fundamental principle underlying Practice Note PNPE9 on the amendment of plans was that amended plans should be an evolution or refinement of the original plans. The substitution of amended plans is not an opportunity to put forward a different proposal. Gibson DP also observed that Garden City had opportunities to address these matters earlier through the planning permit application process and refine its development proposal prior to the VCAT appeal. Cherry Tree Farm Pty Ltd v Mitchell SC (Red Dot) [2013] VCAT 1939.
Coles Property Group Developments Limited v Boroondara CC (Including Summary) (Red Dot) [2014] VCAT 342
In this VCAT decision, constituted by Gibson DP and Wilson M, the doctrine of ’jurisdictional fact’ was considered with respect to a proposal to amend a planning permit under s 87A of the P&E Act.
Boroondara City Council argued that it was a question of jurisdictional fact to first determine whether an amendment to a permit was transformative or non-transformative, and unless the amendment was non-transformative, VCAT did not have the power to amend.
By way of background, a jurisdictional fact is a fact that must exist before the decision-maker can make a valid decision. Jurisdictional fact arguments are sometimes used as a means, in a judicial review proceeding, to seek review of the findings of fact by the original decision-maker. This provides a vehicle to review potentially subjective findings that may otherwise fall outside the scope of the narrow enquiry normally entailed in a judicial review.
A prominent example is the High Court decision in Plaintiff M70. Readers may recall the downfall of the former Gillard Government’s ‘Malaysia Solution’. In Plaintiff M70, the High Court held that the Minister acted beyond their power in declaring Malaysia a destination to which asylum seekers could be transferred because the relevant jurisdictional fact had not been established. Malaysia was not legally
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bound by international law to provide access for asylum seekers to procedures to assess their need for protection because Malaysia was not a party to the Refugee Convention.
With the s 87A amendment, VCAT clearly has a wide discretion, which the writer would have thought obviates the need for these complex jurisdictional fact based arguments. In Coles Property Group, VCAT decided the exercise of power under s 87A is not dependent upon jurisdictional facts. VCAT must instead exercise its discretion within the limits of its power under s 87A, this being that the power to amend does not extend to enabling the transformation of a permit. VCAT went on to find that the proposed amendment would result in a transformation.
Permit conditions – ongoing effect
Box v Moreland CC (Including Summary) (Red Dot) [2014] VCAT 246
VCAT’s decision in Box, constituted by Gibson DP and Deidun M, purports to apply the principles in Benedetti v Moonee Valley CC [2005] VSC 434. The relevant planning permit allowed the construction of two dwellings and the plans endorsed pursuant to the permit depicted, among other things, the construction of a timber paling fence to a height of 1.8 metres. The land was subdivided. Box constructed a fence from Colorbond material and also constructed a 2 metre masonry fence within the property. Box sought retrospective amendments to the endorsed plans. VCAT was asked to determine whether any permission was required at all because the nature of the works were otherwise exempt under the Moreland Planning Scheme.
VCAT held that Box had benefitted from the permit. There was a permit condition requiring the development, as shown on the endorsed plans, could not be altered without the written consent of the responsible authority. This condition continued to have effect for the duration of the development allowed by the permit.
A solicitor firm in its case note on the Box decision suggested that VCAT’s reasoning does not take into account the ‘temporal ambit’ central to the reasoning in Benedetti. The case note suggested that the subdivision of the land resulted in the condition no longer being effective. Namely, Box extends the temporal ambit of the condition beyond the period during which the owner takes the benefit of the permit. Perhaps one day VCAT will be asked to consider that kind of an argument. Nevertheless, for the time being there is a need to always carefully consider planning permits and endorsed plans with respect to otherwise as of right works under the planning scheme.
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Permit extension
Extension of permits has been the subject of legislative change since the introduction into the P&E Act of s 69 (1A) on 22 July 2013. With the stroke of the legislature’s pen, Harvey is essentially made redundant. Whereas the Supreme Court in Harvey found that cl 62 of schedule 1 of the VCAT Act provided VCAT with a wide power to act in the interests of justice, thereby extending a permit even if there had been certain failures procedural in nature. A failure to apply for an extension within time is now no longer capable of remedy through cl 62. However, the ‘trade-off’ to the permit holder is that the period to make an application for an extension has at least been extended.
The other major dispute involving extension of permits concerned the Windsor Hotel, for whom the ultimate result was most unfavourable.
Sgarlata v Mornington Peninsula SC (Red Dot) (includes Summary) [2011] VCAT 786
Sgarlata warrants mention in terms of VCAT’s approach (constituted by DP Gibson) to the question of permit extension in the context of permit amendments necessitated by a change in policy. This case is significant given the fact scenario may arise in similar cases in the future through application of the Wildfire Management Overlay (WMO) to many more areas following the Black Saturday bushfires and the outcomes of the current Bushfire Royal Commission.
The applicant applied for review of Council’s decision to refuse to extend a permit for construction of a dwelling, earthworks and associated works. Subsequent to the grant of a permit, a WMO was applied to the land requiring a referral to the Country Fire Authority (CFA). The CFA indicated it would consent to the extension, subject to its standard conditions being included and the endorsement of a Wildfire Management Statement.
On the question of permit extension, the reader may be familiar with the leading Supreme Court decision in Kantor v Murrindindi SC 18 AATR 285 in which the Supreme Court set out a series of tests, including whether there has been a change in planning controls and the probability of issuing a permit should a fresh application be made.
VCAT commented that the decision whether to extend should be made separately to whether to amend. The Kantor tests should be applied and it is only if it would be appropriate to extend the permit in its current form that the opportunity to amend then arises. VCAT found that it was not appropriate to extend the permit because, as a result of the introduction of the WMO, the terms of any permit would now be different to the original grant. It was not appropriate in the circumstances to extend the permit and to then amend. A fresh permit application and referral to the CFA was the appropriate course.
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Harvey & Anor v Mutsaers & Ors [2012] VSCA 69
In the Court of Appeal of the Supreme Court of Victoria, Nettle, Redlich and Hansen JJA handed down a decision in this appeal concerning cl 62. Clause 62 has been relied upon many times over the years by VCAT to disregard certain ‘failures to comply’. This appeal was a challenge to that practice in relation to an out of time planning permit extension application. The Court of Appeal in Harvey took a wide view of the operation of cl 62 and dismissed the appeal, endorsing VCAT’s role to act in the interests of justice.
The Mutsaers’ planning permit expired and they applied to the Manningham City Council for an extension. The application was refused pursuant to s 69 of the P&E Act on the basis that the application was made more than three months after expiry. They applied to VCAT for review and as part of that application requested VCAT to exercise its power under cl 62 to disregard their failure to comply with s 69 of the P&E Act. In Mutsaers v Manningham CC [2010] VCAT 1258, Member Cook used cl 62 to disregard the failure to comply and extended the permit. The Harveys then applied for leave to appeal that decision to the Supreme Court and in Harvey & Anor v Mutsaers & Ors [2011] VSC 23 Emerton J refused leave, finding VCAT had made no error. The Harveys then appealed that decision to the Court of Appeal.
By way of background, cl 62 provides:
62. Tribunal may disregard failures to comply
The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.
The Court of Appeal in Harvey:
. Considered previous decisions of the Supreme Court and VCAT in relation to cl 62, including the decision in Rumpf v Mornington Peninsula Shire Council [2000] VSC 311 in which Balmford J found that cl 62 was clear in its terms in empowering VCAT to disregard a failure. The Court of Appeal agreed with Rumpf and confirmed that the plain and ordinary meaning of cl 62 was clear and extended to all forms of failure to comply with statutory requirements;
. rejected the argument put by the Harveys that there was an exercise of choice by the Mutsaers in not applying to extend and so there was no “failure to comply”, in contrast to the situation in Rumpf. The Court of Appeal observed that statutory provisions like s 69 of the P&E Act are common enough and where a step is not taken it is common to speak of this as a failure;
. described VCAT as an administrative decision-maker with:
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super added obligations and a capacity to act in the interests of justice... because of the nature of planning and planning disputes, it is unsurprising that Parliament should have empowered VCAT rather than the relevant authority to allow for cases where the interests of justice warrant some relaxation of the time requirement; and
. decided that VCAT could utilise cl 62 and it ultimately came down to a question of fact and degree for VCAT as to whether the failure to comply should be excused.
Windsor Hotel Holdings Pty Ltd v Minister for Planning (includes summary) (Red Dot) [2012] VCAT 1203
This decision in relation to the controversial redevelopment of the Hotel Windsor provides an example of the application of the principles for extension of time under a planning permit set out in the Supreme Court decision of Ashley J in Kantor v Shire of Murrindindi (1997) 18 AATR 285.
The planning permit contained no specific condition setting out the times for commencement or completion but rather the expiry of the permit was pursuant to s 68 of the P&E Act, with the standard two-year commencement, four-year completion period.
A heritage permit was required because the Hotel Windsor was included on the heritage register under the Heritage Act 1995. The first heritage permit that was obtained was inconsistent with the planning permit. A second heritage permit was obtained, but this process took some 13 months, leaving little time remaining under the planning permit. An application was made for an extension of time under the planning permit on the basis of the need:
to align the expiry dates on the Planning Permit and the latest Heritage Permit...
The Minister refused the application, stating that:
I have noted prevailing height controls would apply to the Bourke Hill precinct in the City of Melbourne.
On appeal, VCAT, constituted by Senior Member Rickards, applied the Kantor principles:
. Has there been a change in planning policy?
. Is the owner seeking to warehouse the permit?
. Are there any intervening circumstances which bear on the grant or refusal of the extension request?
. The total elapse of time when a request to extend is being considered;
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. Whether the time limit originally imposed was adequate in the circumstances;
. The economic burden cast by a permit on the owner of the land; and
. Would a permit be granted if a fresh application was required to be made?
The Minister argued that, while there had been no change in applicable planning controls, there was potential for changes to occur. VCAT observed that proposed changes could be considered if they were “seriously entertained” but that nothing the Minister referred to could be regarded in that sense.
The applicant could also not be said to be warehousing the permit, as it had actively pursued all necessary preliminaries to development. VCAT rejected the Minister’s submissions that the applicant could have commenced development earlier. This was an unrealistic suggestion having regard to the need to integrate planning and heritage requirements. It was in the public’s interest that such development not be rushed.
VCAT also observed that:
. the time limit under the planning permit was perhaps not adequate having regard to the nature of the development;
. the permit applicant could not reasonably be expected to have envisaged the 13 month delay; and
. if a fresh application were made, there is no reason why a planning permit would not be granted now.
VCAT granted the extension.
Hotel Windsor Holdings Pty Ltd v Minister for Planning (includes Summary) (Red Dot) [2014] VCAT 993
This decision is the next instalment in the planning saga involving Hotel Windsor, and it is a salient example of the way in which politics can influence planning decision-making.
Most readers will be familiar with some of the history of the planning issues relating to the redevelopment of the Hotel Windsor. This case concerned the next development in that saga, which was an application to extend the time limit within which the development described in the existing permit was to start, being 10 January 2015. Hotel Windsor Holdings Pty Ltd sought to extend that timeframe. VCAT, constituted by DP Gibson, refused the application. The decision involves a relatively straightforward application of the factors identified in Kantor v Shire of Murrindindi (1997) 18 AATR 285. Change of planning policy was a key factor upon which the Minister relied upon to assert an extension should not be granted. The relevant changes to planning policy were the introduction of a revised local planning policy in the Melbourne Planning Scheme, the release of Plan Melbourne and its interpretation
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through the planning scheme with the introduction of cl 9 of the SPPF, the fact that Plan Melbourne makes specific provision for the Bourke Hill precinct in which the Hotel Windsor is located, and an amendment to the Melbourne Planning Scheme to introduce a mandatory height control of 23 metres, whereas the planning permit for the Hotel Windsor allowed a 93 metre development.
Perhaps unsurprisingly, DP Gibson found that these circumstances did constitute a change in planning policy. The applicant, among other things, argued that if VCAT did not extend, it would force on a commencement by 15 January 2015, which may compromise the cost effectiveness and quality of the overall development. DP Gibson factored that into consideration but found on balance the factors against granting an extension outweighed those in favour of granting an extension. DP Gibson makes some salient observations about the need for permit applicants to realistically assess the length of time they require to commence because failure to do so potentially exposes permit applicants to political risk.
D’Agostino v Greater Shepparton City Council [2015] VSC 332
This was a successful Supreme Court appeal by the D’Agostinos against VCAT’s decision to not extend time under a planning permit in D’Agostino v Greater Shepparton CC [2014] VCAT 573. In that case, VCAT (constituted by Senior Member Rickards) affirmed the responsible authority’s decision not to extend the time within which development under the D’Agostinos’ planning permit must be completed. The D’Agostinos successfully appealed to the Supreme Court.
The history behind the D’Agostinos’ permit is interesting. The permit was for the development of a roadhouse service station, public toilet and bus terminal in Shepparton East. The permit traced its origins back to the early 1990s. Since the permit was first issued there have been numerous requests to extend time. Ultimately, following a request to extend in 2013, the responsible authority indicated it would refuse to further extend time. The D’Agostinos applied to VCAT, which affirmed the decision not to extend.. In the Supreme Court, Zammit J held that VCAT fell into error in its reasoning with respect to warehousing permits and change of planning policy.
In relation to warehousing, VCAT had found that the absence of any significant progression of the development indicated there had been warehousing of the permit. The D’Agostinos argued that VCAT failed to take into account the fact that they had undertaken work offsite, which they argued constituted works that were relevant on the question of warehousing. The works demonstrated they were progressing with their development and not warehousing the permit. The Supreme Court accepted that VCAT had not taken these offsite works into consideration, which led it into error. With respect to change in planning policy, the D’Agostinos argued that, notwithstanding VCAT’s finding that there had
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been changes in planning policy, might be a factor warranting a new planning permit application. VCAT had failed to identify the relevant changes in planning policy.
Whilst the decision could be described as a triumph of legalism over pragmatism, it nonetheless highlights how fraught decision-making can be when decision-makers (be that a Council officer or even a VCAT member) are called upon to consider what is relevant and what is not relevant in the exercise of a discretion.
Precautionary principle
Every law student of environmental law studies the precautionary principle and its application to planning and environmental decision-making. In Victoria, it has been confirmed by both VCAT and the Victorian Supreme Court. Perhaps the most authoritative statement of the precautionary principle comes from the New South Wales Land and Environment Court in Chief Justice Preston’s judgment in Telstra Corporation Limited v Hornsby Shire Council (2006) 148 LGERA 124. Rozen is the leading decision in Victoria. Westfield Limited v Manningham CC (includes Summary) (Red Dot) [2011] VCAT 1341 may be the ‘high water mark’ of a novel application of the precautionary principle, in that matter it was applied to a road safety issue. The writer is not aware of any other decisions whereby the precautionary principle has been applied outside of traditional environmental issues, and from the writer’s perspective, that is as it should be.
Rozen v Macedon Ranges SC [2007] VCAT 1814
Appropriateness of the use of small lots for dwellings — impact on water quality on protected catchments - Interim guideline for planning permit applications in open, potable water supply catchments - application of precautionary principle
This case reviewed Council’s decision to refuse a planning permit to allow construction of a single-storey dwelling on each of four adjoining lots together comprising a total site area of 72 hectares, zoned ‘Rural Conservation’ with the provisions in Schedule 1 being applicable and within an ‘Environmental Significance Overlay’ - Schedule 4 (Eppalock Proclaimed Catchment).
Council refused to grant a permit on the basis that the proposal would:
. result in the urbanisation of a rural area and the fragmentation of productive agricultural land;
. be contrary to the purposes of the zone and planning policy; and
. create an undesirable precedent.
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Western Water, the Water Supply Authority, supported Council’s decision.
In relation to whether the proposed use and development of the site would accord with orderly and proper planning, having regard to the purpose of the zone and the scheme’s policies, VCAT concluded that:
. the zoning, overlay and relevant policies provide strong support for the protection of productive agricultural land such as the site which has been used for a form or agricultural use;
. the purpose of the zone and the conservation values set out in the schedule to the zone do not encourage or support the use of the land for rural-residential purposes in any specific way. As the purpose of the zone is clearly geared toward conservation and enhancement of the natural environmental values of the area, including landscape and water quality, it is necessary to examine the specific circumstances of the matter;
. pursuant to clause 21.07-3 of the scheme, the land is within the ‘Environmental Living’ area where limited development is supported subject to positive environmental outcomes and the protection of the integrity of the catchment;
. just because a particular site is not large enough to be viable for agriculture in its own right does not mean that it is not valuable or productive land;
. the proposal includes environmental benefits such as weed eradication and control, vegetation protection, indigenous tree planting and new fencing to protect the river banks and existing vegetation; and
. the visual outcome would not be out of keeping with the landscape character of the area given that it already includes rural/residential development.
In relation to whether the proposed use and development of the land would result in an unacceptable risk to water quality, VCAT acknowledged that the central issue is the degree of risk that the addition of four septic tank systems on the land would present to the water quality of the catchments and potable water supplies.
Council’s expert took the view that an increase of dwelling density over the preferred 1:40 hectare density (Interim Guidelines for Planning Permit Applications in Open Potable Water Supply Area Catchments, August 2000) could increase the risk of contamination of water draining into the Campaspe Reservoir. The expert stated this risk to be unacceptable and inconsistent with the precautionary principle, i.e. the protection of the water supply should take precedence over non-beneficial uses.
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The Applicant submitted that the primary focus should be to achieve the best practice outcome for the water quality of the Lake Eppalock catchment and that the resistance to allow four dwellings was based on the conservative application of the precautionary principle.
VCAT was ultimately satisfied that the proposal would not present a level of risk to water quality to justify refusal of the proposal on the basis that:
. the 1:40 hectare density guideline contained in the Interim Guidelines for Planning Permit Applications in Open Potable Water Supply Catchment Areas (August 2000) was a “blunt instrument”;
. in accordance with the policy requirements at clause 22.03 and 22.19 of the scheme, the land capability assessment satisfactorily addressed the issue of locating the septic tank systems in a potable water supply catchment;
. under appropriate management, the land is capable of containing domestic waste such that the risk presented to human health and the environment is not so high as to warrant refusal of the proposal;
. greater weight is to be given to the improved quality of discharged water from the proposal to use aerated waste water treatment systems on the land as opposed to the conventional septic tank soil absorption systems;
. all septic tank systems to be used in Victoria must satisfy the EPA 20/30 water quality standard that can be achieved via a certification process and ongoing management inputs are acquired by the landowner; and
. the proper application of the precautionary principle requires proportionate addressing of identified risks even if those risks are not fully defined.
Having regard to all relevant matters, VCAT found the proposal to be acceptable and granted a permit subject to conditions.
VCAT cautioned against its conclusions being interpreted as open-slather for increasing densities of dwellings and septic tanks in open water supply catchments, stating that there is not a “one size fits all” answer to this question.
Western Water obtained leave from the Supreme Court to appeal the decision of VCAT on the basis that VCAT erred in law by failing to correctly interpret and apply the Interim Guidelines for Planning Permit
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Applications in Open Potable Water Supply Catchment Areas (August 2000) and that it misconstrued the meaning of, and incorrectly applied, the precautionary principle.
It is also noted that following its decision in this case, VCAT had cause to consider the application of the August 2000 Guidelines in the case of Central Highlands Region Water Authority v Ballarat CC [2007] VCAT 2030. Further, it granted a permit for the use and development of a dwelling, including a septic tank system. It is understood that this case is also the subject of Supreme Court proceedings instituted by Central Highlands Region Water Authority.
Western Water v Rozen & Anor [2008] VSC 382
This was an appeal to the Supreme Court of Victoria by Western Water against VCAT’s decision in Rozen v Macedon Ranges SC [2007] VCAT 1814 to grant a permit for four dwellings on four lots. As the proposed development was within an open potable water supply catchment, the Interim Guidelines for Planning Permit Applications in Open Potable Water Supply Catchment Areas (the Guidelines) applied. The Guidelines were issued by the Minister for Planning in August 2000 pursuant to s 60 (1) (b) (ii) (now amended) of the P&E Act. The Guidelines provided for a maximum density of 1 lot per 40 ha, unless:
. a catchment management plan or similar project addressing land use planning issues had been prepared for the catchment, and the objectives, strategies and requirements of the plan or project have been included in the planning scheme; and
. a land capability assessment (LCA) showing a greater density was appropriate, had been prepared in accordance with the Code of Practice – Septic Tanks, On-site Domestic Wastewater Management, Environment Protection Authority, March 1996 (the Code).
The density of the proposed development exceeded the benchmark of 1 lot per 40 ha. However, VCAT found that a greater density was acceptable because the permit applicant had provided a satisfactory LCA.
The Court held that a satisfactory LCA in itself was not enough to embrace all the facts relevant under the planning scheme as to whether a proposal was appropriate. In particular, wider policy considerations of risk and the Guidelines were still relevant considerations. Compliance with the Code and the provision of a satisfactory LCA was therefore not of itself sufficient. The resultant density of the development within the catchment needed to be considered in light of the Guidelines. In this respect, VCAT’s approach of accepting a satisfactory LCA, coupled with design of the septic tank system in accordance with the Code did not adequately address the cumulative risk factor associated with
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additional dwellings/septic tank systems in open water supply catchments recognised by both the Guidelines, the planning scheme policies, or within the context of the precautionary principle.
The Court also held that VCAT had misapprehended and misstated the precautionary principle when it took the position that risk of irreversible environment damage was necessary to invoke the principle. A serious risk of environmental damage could also invoke the principle and VCAT had not correctly addressed the concept of ‘serious’.
The appeal was therefore allowed and the matter remitted to a differently constituted tribunal.
The decision has significant implications for development in open potable water supply catchments in that it is now necessary to take account of the wider policy considerations of risk and the Guidelines, in addition to compliance with the relevant septic tank code of practice (note the EPA has now released a new code of practice, currently under review, the Code of Practice – Onsite Wastewater Management, July 2016, which provides guidance on the Victorian legislative and policy framework for onsite wastewater management).
Rozen v Macedon Ranges SC (includes summary) (Red Dot) [2009] VCAT 2746
This decision of VCAT, before DP Gibson and Members Peter O’Leary and Graeme David, follows the Supreme Court appeal in Western Region Water Corporation v Rozen and Anor [2008] VSC 382. It provides a detailed analysis of the precautionary principle and valuable guidance in relation to the consideration of planning permit applications for dwellings in open potable water supply catchments.
By way of background, the council had refused an application for a planning permit for four dwellings on four lots. The subject land was within an open potable water supply catchment to which the interim guidelines for planning permit applications in such catchment areas applied. The interim guidelines provided for a maximum density of one dwelling per 40 hectares, with exceptions. In Rozen v Macedon Ranges SC [2007] VCAT 1814, VCAT found that a greater density was acceptable and set aside the responsible authority’s decision and granted a permit for four dwellings. This decision was appealed to the Supreme Court by Western Region Water Corporation, which allowed the appeal and remitted the matter to VCAT for further hearing in accordance with the law. In May 2009, prior to the VCAT decision in Rozen v Macedon Ranges SC [2009], the Minister issued the ‘Guidelines: Planning Permit Applications in Open Potable Water Supply Catchment Areas’ (which were updated in November, 2012).
In deciding that only one dwelling should be permitted, the reconstituted tribunal in Rozen v Macedon Ranges SC [2009] had regard to:
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. the current guidelines, which provide that the proper application of the precautionary principle requires consideration of the cumulative risk of the adverse impact of onsite waste water/septic tank systems on water quality in open, potable water supply catchments resulting from increased dwelling density;
. Osborn J’s comments in Western Water v Rozen and Anor [2008] VSC 382 that the precautionary
principle is potentially invoked by a risk of serious environmental damage. It is not necessary that such a risk “be so severe as to impose some long term liability to future generations.”
VCAT formed the view that the precautionary principle required a conservative approach and a taking into account of the issue of cumulative risk and system failure;
. the policy framework for water supply, which VCAT considered included a “multiple barrier approach” to protect drinking water quality and consideration of cumulative risk;
. the emphasis on protection of water quality under the rural conservation zone and Environmental Significance Overlay Schedule 4 (Eppalock Proclaimed Catchment), and the local and state planning policy framework; and
. landscape, visual impact, rural agricultural and environmental issues. VCAT formed the view that productive agricultural use and sustainable land management was more likely to be achieved under a single ownership of a large parcel.
The key question in many of the cases on dwellings in open water catchments has been whether a wider policy consideration of risk beyond mere compliance with the Septic Tank Code of Practice was required. The Rozen decisions are significant in this context. It now seems clear that when considering planning permit applications for dwellings in potable open water supply catchments, the provision of a satisfactory Land Capability Assessment will not of itself be sufficient and that ideally there must be an assessment of the cumulative impact of onsite waste water/septic tank systems for the catchment.
Further, the ‘Guidelines: Planning Permit Applications in Open Potable Water Supply Catchment Areas’, November 2012 emphasise that applications must not present an ‘unacceptable risk’ to the quality and quantity of water generated by the catchment having regard to the land capability, assessments, land condition and management conditions of the site and the catchment.
The importance of water quality and water catchments is now specifically addressed in Clause 14.02, and Clause 19.03 of the Planning Policy Framework, which aim to ensure water quality in water supply
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catchments is protected from possible contamination by urban, industrial and agricultural land uses. The State Environment Protection Policy (Waters of Victoria), implements the same strategy (Clause 32).
Alanvale Pty Ltd & Anor v Southern Rural Water & Ors (includes Summary) (Red Dot) [2010] VCAT 480
In this case VCAT (constituted by DP Gibson and Members Ian Potts and Graeme David) affirmed Southern Rural Water’s (SRW) refusal to grant applications for groundwater licences. VCAT applied the precautionary principle and found that the risk of climate variability and climate change was such that it could not be satisfied that the grant of groundwater licences would be sustainable.
Alanvale sought a licence to extract 1220 Ml per annum for the irrigation of lucerne and maize in support of dairy grazing operations and cutting of hay/silage. Graham sought a licence to extract 280 Ml per annum for the irrigation of pasture to support beef grazing operations. The properties lay in the Hawkesdale Groundwater Management Area (the Hawkesdale GMA).
SRW refused their applications and Alanvale and Graham applied to VCAT for review.
Upon review, VCAT observed that the fundamental question for it to consider was the long term sustainability of the groundwater resources in the Hawkesdale GMA, central to which was the concept of the ‘water balance’. The water balance is a technical assessment process that seeks to identify and estimate the volumes of groundwater entering and leaving aquifers. With regard to the aquifers in the Hawkesdale GMA, VCAT identified a range of potential impacts upon the water balance, including climate change and variability (particularly with regard to rainfall recharge), timber plantations (land use), geological features, groundwater and surface water interactions, current usage, and the potential risks of and impacts from coastal intrusion. VCAT formed the view that there was a risk that over allocation of groundwater resources may significantly deplete the aquifers within the Hawkesdale GMA. The biggest risk factor was the effect of climate change and variability on rainfall recharge of aquifers, in respect of which VCAT accepted expert evidence that there was a very real potential for long term decreases in rainfall in the order of 2-5% by 2030.
VCAT formed the view that there was scientific uncertainty about the nature and scope of the threat, which could lead to decreased aquifer storage levels, effects on surface water systems and intrusion of seawater. Applying the precautionary principle, the threat was such that it was both serious and potentially irreversible and therefore the licences should not be granted, despite the fact VCAT accepted there was probably additional capacity within the aquifer.
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VCAT also commented that there remained considerable capacity for trade and transfer of existing water rights within the system and that this should be explored first, before granting new allocations (estimates by one expert were that in 2008/09 approximately 53% of allocation was unused).
The decision provides another example of the application of the precautionary principle by VCAT and the relevance of climate change in the decision-making framework, and is noteworthy in terms of the application of these principles to a situation in which VCAT accepted that there was probably capacity within the system for additional licences. The decision also highlights the significant potential for trade and transfer as a means of allocating water to its highest and best use.
Westfield Limited v Manningham CC (includes Summary) (Red Dot) [2011] VCAT 1341
This case involved VCAT (constituted by Member G Rundell) being ‘guided’ by the precautionary principle with regard to a decision involving road safety. Given the origins of the precautionary principle in relation to questions of ‘environmenta’” risk and harm, this decision represents a somewhat novel extension of the precautionary principle. Given the frequency with which questions of risk and harm arise in decision-making, the writer will watch with interest as to precautionary principle guidance in other new contexts.
The Applicant had applied to Manningham City Council (Council) for a permit for four digital advertising signs. A permit was issued for three signs but not the fourth. The fourth sign measured 11 x 10.2m and the applicant wished to place it outside the Westfield Shoppingtown centre in Doncaster. VicRoads had cited safety concerns because of driver distraction and directed the Council to reject the application for the fourth sign. Member G Rundell affirmed the Council’s decision that no permit be granted for the fourth sign.
The Member considered expert evidence given by Dr Cloete on sensory control mechanisms. Dr Cloete said that, while there was no clear evidence that established a direct link between distraction and accidents, “there is a growing body of research that points to the fact that drivers divert their eyes to digital signs for prolonged times, and that road safety would be compromised.”
The Member found that the correlation between signs and accidents created “sufficient doubt that [he] need[ed] to be very cautious in this matter... The possibility of risk cannot be ignored or easily dismissed.” At [61] and [62], the Member states that in his view the precautionary principle should guide his decision:
[61] In my view the precautionary principle should guide my decision... It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty.
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Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decisions [sic] makers should be cautious.
[62] I consider I must be very cautious in this matter and give weight to the concerns of the road management authority. I agree that digital signs offer exciting display and advertising opportunities. In the right place, they can enliven public places (such as Federation Square and sports grounds) and can be a focal point for community life and engagement. However, I think this sign is very large, and being located within direct eye sight to difficult turning movements in a busy and complex intersection, it would be highly likely to distract drivers. Therefore, I am satisfied it would be highly likely to contribute to traffic accidents and diminish advances in road safety. In my view, it is the wrong sign in the wrong place, and I am unable to give it my approval.
Public open space contributions
The Planning and Environment Amendment (General) Act 2013 (Vic) amended the Subdivision Act to clarify that s 18 (1A) of the Subdivision Act did not apply where an open space contribution is specified in the planning scheme. This is given effect through s 18 (1AA), which provides:
(1AA) Subject to subsection (1AB), this section applies if a requirement for public open space is not specified in the planning scheme.
This change followed the Court of Appeal decision Maroondah City Council v Fletcher [2009] VSCA 250, which had held that s 18 (1A) applied whether or not there was a specified amount in the schedule to cl 52.01. Section 18(1A) provides:
(1A) The Council may only make a public open space requirement if it considers that, as a result of the subdivision, there will be a need for more open space, having regard to—
(a) the existing and proposed use or development of the land;
(b) any likelihood that existing open space will be more intensively used after than before the subdivision;
(c) any existing or likely population density in the area of the subdivision and the effect of the subdivision on this;
(d) whether there are existing places of public resort or recreation in the neighbourhood of the subdivision, and the adequacy of these;
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(e) how much of the land in the subdivision is likely to be used for places of resort and recreation for lot owners;
(f) any policies of the Council concerning the provision of places of public resort and recreation.
Capital Benefits (Mont Albert) Pty Ltd v Whitehorse CC [2008] VCAT 2436
Clare v Maroondah CC [2008] VCAT 606
Two decisions have reinforced VCAT’s previous interpretation regarding cl 52.01 of the Scheme and its associated schedule in relation to who may decide upon the form of any required public open space contribution for subdivision.
In Capital Benefits the applicant sought approval to subdivide the land into 6 individual lots with different frontages and shapes surrounding the various buildings of the former Camberwell Church of England Girls Grammar School, St Georges Avenue, Mont Albert. Whitehorse CC had granted a permit which required a 5% public open space land contribution. The Applicant applied to VCAT pursuant to s 87A of the P&E Act seeking a determination that the public open space condition should be replaced with a condition requiring a payment to the responsible authority of an amount equal to 5% of the site value, and that in the alternative should land be required, that a different area of public open space to that required by Council should be set aside.
In relation to Council’s requirement for a cash contribution, VCAT agreed with Senior Member Byard’s decision in Trethowan v Mornington Peninsula SC & Ors [2002] VCAT 1377 and found that clause 52.01 of the planning scheme and its schedule do not allow the permit applicant to elect whether such a contribution is to be made by way of land, money or a combination of both. Rather, that discretion solely lies with the council. In relation to the location of the public open space contribution, VCAT preferred the location suggested by the Council because it provided a greater amount of public open space to the public domain and took better advantage of the natural features of the site.
Clare was an application for review under s 80 of the P&E Act of a condition in the permit requiring the applicant to pay a sum equivalent to 5% of the site value of the land. The applicant argued that as a proposed public open space reserve (in excess of 15% of the total site area) had been included on the plans for native vegetation net gain purposes, it was unfair and unreasonable for the Council to require a 5% cash contribution.
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Maroondah CC argued that it was a decision for Council as to whether it required a contribution of cash, land, or a combination of both, and that the Council’s decision was not reviewable by VCAT and was not a matter on which VCAT could substitute its own view, unless VCAT was satisfied that the Council’s view was unreasonable according to Wednesbury principles (i.e. the Council’s decision was so unreasonable that no reasonable decision-maker acting according to law could have made it).
VCAT agreed and found that there was no provision in the P&E Act for review of such a decision under the review provisions in ss 77, 79, 80, 82, 149(1), although there might be a possibility of an application for a declaration under ss 149A or 149B. As such, the only basis for review in relation to the proceedings was according to Wednesbury unreasonableness test. In this instance, the net gain area was inconsistent with the needs of the Council for public open space as the area would not be readily accessible by members of the public, and also, because the Council already had ample public open space. Its needs may have been more for the development and enhancement of those spaces, rather than the provision of more land.
Stupak v Hobsons Bay CC (includes Summary) (Red Dot) [2011] VCAT 618
Readers may be aware that, if there is no amount specified as the public open space contribution for subdivision in the schedule to clause 52.01 of a planning scheme, a contribution may still be required under s 18 of the Subdivision Act. In the Stupak decision, VCAT, constituted by DP Gibson, considered Subdivision Act factors that may be relevant in deciding what percentage of public open space should be required. VCAT endorsed the proposition that as a matter of general principle, the percentage of contribution for a small subdivision should be no different to a larger scale subdivision. The exception to this may be where there is clear policy on the part of the Council to support a reduced proportional contribution to public open space or otherwise special circumstances.
Stupak was an application for review against a condition in a permit requiring a 5% public open space contribution pursuant to s 18 of the Subdivision Act. The proposal was for the construction of three dwellings and a three lot subdivision of land in the Residential 1 Zone. The site value of the subject land had been assessed at $530,000, equating to a $26,500 contribution at 5%. The applicant argued this contribution was onerous and unreasonable, and that a 2% contribution would be appropriate.
VCAT observed that Hobsons Bay City Council had not included an amount in the schedule to cl 52.01 and had instead chosen to rely on s 18, despite considerable work in the planning and provision of public open space and preparation of an open space strategy.
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VCAT noted the decision in Maroondah City Council v Fletcher and Minister for Planning [2009] VSCA 250 in which the Court of Appeal of the Victorian Supreme Court held that cl 52.01 must be read as subject to the limitations contained in s 18 (1A) of the Subdivision Act. VCAT observed that as the Council had not included an amount in the schedule to cl 52.01, there was discretion to reduce the amount from 5%.
VCAT considered there was a clear need for more open space having regard to each of the factors in s 18 (1A) of the Subdivision Act. On the question of appropriate percentage contribution, the applicant argued that small subdivisions should pay less than large subdivisions because they result in only a modest increase in population. VCAT noted that in effect the contribution was reduced for the small subdivider anyway because of the lower site value. The issue was really whether the amount paid for a small subdivision should be proportionally less. VCAT observed there was merit in supporting the proposition in the Council’s open space plan that:
the proportion of the value will be the same for a two dwelling development as it will be for a 20 dwelling development.
VCAT found that in the circumstances there was:
no basis to discriminate between different areas in terms of the proportion they should contribute unless there is a clear policy on the part of the council otherwise or in special circumstances.
The applicant had not established why the percentage of contribution should be reduced from 5% to 2% and so the condition was upheld.
Subsequent to VCAT’s decision in Stupak, the Subdivision Act has been amended with the introduction of section 18A in 2013. It provides for the timing of payments and provisions around staged subdivisions.
Planning policy, including Plan Melbourne and ResCode
Not long after the writer began reporting VCAT decisions in 2007, ‘Melbourne 2030’ was released by the Bracks Government (in December 2008). Melbourne 2030 was the Victorian Government’s strategic planning policy framework for the metropolitan area of Greater Melbourne, intended to cover the period 2001–2030. During this period the population of the metropolitan area was expected to grow by a million people to over 5 million. Now we have Plan Melbourne (the current iteration being titled ‘Plan Melbourne 2017-2050’). It recites that between 2015 and 2051 Melbourne is projected to grow by 3.4 million people, from a population of 4.5 million to almost 8 million. To compare the documents,
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whereas Melbourne 2030 predicted a population of 5 million by 2030, population projections now predict Melbourne's population could reach 7 million by that time.
Strategic planning documents like Melbourne 2030 and Plan Melbourne provide VCAT with a policy rationale to determine planning disputes in favour of developments judged by VCAT to be in accordance with the metropolitan strategy's objectives. Bologna v Monash CC (Including Summary) (Red Dot) [2014] VCAT 1400 discusses the application of Plan Melbourne to a statutory appeal.
We also saw the introduction on 1 July 2013 of residential zone reform, with the introduction of the ‘no go’, ‘go slow’, and ‘go go’ residential zones. This introduced residential growth, general residential and neighbourhood residential zones into the Victoria Planning Provisions. Local Councils subsequently implemented the introduction of those new zones into their planning schemes, with some municipalities particularly in more affluent areas being accused of using the process to “lock up” their suburbs from residential development.
At the statutory level, an important decision reported upon was Ye v Boroondara CC [2015] VCAT 1051. After the Tribunal’s decision in Li Chak Lai v Whitehorse CC (No.1) [2005] VCAT 1274, the Tribunal generally followed that decision in treating the ResCode standards as deemed-to-comply provisions, in that meeting the standard meant the objective was deemed to have been met. That approach was thrown into doubt by Lamaro v Hume (Red Dot) [2013] VCAT 957, which argued that the qualitative elements of the objective needed to be considered even when the quantitative standard should be met. Ye (discussed below) follows the Lamaro approach. In the writer’s opinion, the Li approach reflects the correct statutory interpretation of the wording of the ResCode clauses. Readers are also referred to the editorial comments in the Victorian Planning Reports (VCAT Volume 3 No 3) about the varying approaches by the Tribunal to the application of ResCode objectives and standards and these decisions.
Pace Developments v Port Phillip CC (includes summary) (Red Dot) [2012] VCAT 1277
In this decision VCAT discusses the interpretation of policy relating to substantial and moderate growth areas and the role site context plays with respect to intensification of development.
VCAT, constituted by Members Cimino and Keddie, considered an application for an 18-storey building with three basement levels comprising 108 apartment-style dwellings with an office or retail tenancy at ground floor. The building aspired to create a piece of “urban art”. The site was located on the south east corner of the intersection of St Kilda Road and Wellington Street, St Kilda, in the Business 2 Zone under the Port Phillip Planning Scheme (Scheme).
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Key issues included whether the height of the building and intensity of residential use was acceptable having regard to the strategic context of the land and whether the proposed building presented an acceptable urban design response. Port Phillip City Council submitted that under the amended Municipal Strategic Statement, the land was located within an area identified for moderate, not substantial, growth.
VCAT observed that, while the extent of growth is limited by the existing built form character, particularly in terms of height, it was inconceivable that “moderate residential growth areas” should necessarily match the height and intensity of existing built form. The question was, instead, what was an acceptable extent of intensification? VCAT observed that, while there was no preferred character statement for St Kilda Junction, no design and development overlays for the area or an approved urban design framework, this did not preclude development that contemplates change.
VCAT observed the definition in the Scheme for the substantial residential growth areas made clear these areas are the locations which offer potential for more intensive development, but moderate residential growth areas were also ones that have capacity to absorb some increase in development intensity. In relation to the level of intensity, site context was critical. The site context supported a high level of intensification, with the site’s frontage to the St Kilda Road junction, which VCAT described as a very urban and robust streetscape context, and examples of taller buildings in existence in the area. There was accordingly no policy impediment to the proposed development.
Bologna v Monash CC (Including Summary) (Red Dot) [2014] VCAT 1400
This decision is of interest because of VCAT’s comments on the weight to be given to Plan Melbourne.
The permit applicant applied for 13 double-storey dwellings at a site in relatively close proximity to Monash University’s Clayton campus. The permit applicant submitted that the proposal enjoyed policy support because the land was within a precinct designated in Plan Melbourne as the Monash National Employment Cluster (NEC). The permit applicant submitted that the intent for residential areas in this cluster under Plan Melbourne was for targeted medium and high density development that optimised the cluster’s benefits.
VCAT, constituted by Member Nelthorpe, decided that whilst Plan Melbourne nominated the Monash NEC as a precinct of state planning significance and that NECs were targeted for medium and high density development, these objectives needed to be implemented in the planning scheme.
There was a process to do so outlined in Plan Melbourne, which entailed the Metropolitan Planning Authority assessing each cluster’s planning and physical context, making appropriate recommendations,
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and following that rezoning of land may occur. In this instance, VCAT decided that limited weight should be given to Plan Melbourne’s policy and objective for the Monash NEC because the implementation of Plan Melbourne’s policy objectives were only at an embryonic stage.
Ye v Boroondara CC [2015] VCAT 1051
This decision of VCAT, constituted by Member Taranto, represents a further development in the ongoing debate concerning ResCode objectives and standards (see the extensive analysis of that debate in the Victorian Planning Reports Editorial Comments for VCAT Volume 3 No. 3. Does achievement of the standards deem the achievement of the objectives?).
In Ye, VCAT accepted that the proposal demonstrated a high degree of compliance, if not complete compliance, with the numeric standards of cl 55. However, VCAT still rejected the proposal. Relevant factors were the Neighbourhood Residential Zone, the City of Boroondara Neighbourhood Character Study Precinct Statements (2013), the description of the relevant precinct in that study as having key characteristics that included the predominance of 1930’s and 1940’s dwellings, a preferred future character statement “to maintain the predominantly single-storey, detached character of streetscapes...” and VCAT’s description of the existing neighbourhood character as influenced predominantly by traditional housing stock. These policy and physical elements warranted a more sensitive response to neighbourhood character, notwithstanding cl 55 compliance. The case highlights that those applications that will face the greatest difficulty and which will warrant the most carefully considered design response, even when there is compliance with the numerical standards under cl 55, are those in locations and under planning schemes in which the Council has clearly articulated, in the planning scheme, its vision for neighbourhood character and where the existing character is relatively unchanged.
Restrictive covenants
Waterfront Place Pty Ltd v Port Phillip CC (Includes Summary) (Red Dot) [2014] VCAT 1558
Waterfront Place Pty Ltd applied for a planning permit to vary or remove a restrictive covenant. The covenant provided that the owner of the land burdened must not, except with the written consent of Mirvac Victoria Pty Ltd (Mirvac) or its nominee, demolish or permit any building to be developed unless in accordance with certain approved plans.
Mirvac objected the permit application, as did a number of members of the community. However, no beneficiaries under the covenant objected.
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VCAT, constituted by Senior Member Wright and Member Bensz, accepted that a person may properly object to a proposal to vary or remove a covenant despite not being a beneficiary because that person may still have a planning interest. However, Mirvac had a commercial interest. It was not in the interests of orderly and proper planning for a commercial entity no longer involved with the land to have unfettered power to dictate the future use and development of land under the covenant
Repeat appeals
Rosemary Zumpano v Banyule City Council and others [2016] VSC 420
This was an application to the Supreme Court for leave to appeal a decision of VCAT. The case is of interest due to Garde J’s consideration of the principles of repeat appeals.
The permit applicant had applied on four occasions for a planning permit to convert an existing two- storey dwelling into two two-storey dwellings. Each Application for Review had been unsuccessful. The most recent Application for Review was refused by VCAT on grounds that included that “great weight must be given to preceding decisions.”
The Applicant sought leave to appeal, including on the question of whether VCAT had misapplied the principles of assessing repeat appeals. Garde J observed that the common law doctrines of res judicata and issue estoppel did not apply to VCAT with respect to merits appeals which typically involve de novo review. However, VCAT could still give weight to previous decisions. Garde J held that, with respect to the decision for which leave to appeal was sought, VCAT had not based its decision to refuse upon a strict application of the principles of repeat appeal and had instead decided the application on the planning merits by placing weight upon previous decisions. VCAT had therefore based its decision on questions of planning and of fact and accordingly it was open to VCAT to arrive at the conclusions that it did.
Screening
Taranto v Glen Eira CC (Includes Summary) (Red Dot) [2015] VCAT 1904
Taranto is a red dot decision by Senior Member Liston. This was an objector review to VCAT of a decision by the Council to grant a permit for a three-storey apartment building in a suburban setting in the residential zone. What makes the decision useful to read is Senior Member Liston’s practical overview of the pros and cons of different types of privacy screening.
Senior Member Liston pointed to the tension between neighbours wanting to limit overlooking and developers wanting to address that concern, and the impact that this has upon the amenity of future occupants. The amenity of future occupants should not be unduly affected by the choice of screening.
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Senior Member Liston describes the following options for privacy screening: screens with solid translucent panels (obscure glazing), screens with 25% transparency, screens with horizontal louvres, and screens that Senior Member Liston regards as being of doubtful utility or acceptability, these being screens with 25% transparency comprising thin metal panels, and downward sloping louvres intended to provide a view of the garden. Senior Member Liston states that considerations relevant with respect to choice of screening to address privacy concerns are avoiding the need for screening, site context, possibility versus the probability of overlooking impacts from particular rooms in a development (the difference between the kitchen and a living room for instance) and policy/preferred character context.
Signage
Signage was of interest with DP Gibson’s decision in APN Outdoor that the display of signage is a ‘development’, not a ‘use’ (therefore meaning that existing use rights could not apply to a sign). That decision was overturned by the Supreme Court on appeal. We now know that signage can constitute a use, and therefore it follows that existing use rights can potentially apply.
APN Outdoor Pty Ltd v Melbourne CC (Red Dot) [2010] VCAT 1759
In this decision, VCAT (constituted by Gibson DP) confirmed that display of signage does not have existing use rights because the display is a development, not a use.
The sign that was the subject of the proceeding was a major promotion sign.
This sign was authorised under a planning permit.
The major promotion sign was in the mixed use zone, where display of a major promotion sign was normally prohibited. However, the subject site was specifically included in a schedule to cl 52.03 of the scheme, which had the effect of allowing the display to continue until 31 March 2009, following which one further permit application could be made for a new permit.
The applicant argued that these controls and any other controls in relation to expiry did not apply because the subject sign had existing use rights.
Whether or not the display was a ‘use’ was therefore critical to whether or not the sign had existing use rights, and therefore whether or not a new permit was required. As the reader may recall, it appears the P&E Act does not provide an “existing development right”: Glenelg SC v Printz Pty Ltd (Red Dot) [2009] VCAT 2477.
VCAT considered and disagreed with previous decisions in Papas v Whitehorse CC (1998) 1 VPR 76 (where Bruce DP held that ‘use’ included ‘display’) and Senior Member Byard’s decisions in Hall v City of
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Doncaster and Templestowe (1992)10 AATR 68 (display of signs was something other than use or development).
VCAT then conducted a detailed analysis of the definition of ‘development’ in the P&E Act and found that the display of signage should be characterised as development, for reasons concisely summarised at paragraph 45 of the decision:
[45]… The statement in clause 4 of the planning scheme that development includes displaying signs.
The definition of development in section 3 of the P&E Act includes the display of signs.
The implications of finding that the display of signs falls within section 6(2)(l) of the Act rather than section 6(2)(b) (ie the display of signs is not a use or development but something else).
The lack of any evidence to support characterising the display of signs as a use of land.
The way in which advertising signs are controlled in the planning scheme separately from uses.
Having found that the display was a development, and therefore that existing use rights did not apply, VCAT found that a permit should be granted for 5 years.
APN (Outdoor) Trading Pty Ltd v Melbourne City Council [2012] VSC 8
DP Gibson’s decision in APN (Outdoor) Pty Ltd v Melbourne CC (Red Dot) [2010] VCAT 1759 was successfully appealed to the Supreme Court, where Cavanough J set aside VCAT’s order and held that the display of a sign may amount to ‘use’, and that existing use rights can therefore accrue. The decision creates a precedent on an issue in which conflicting views have in the past been expressed.
The sign that was the subject of the proceeding was a major promotion sign for which a planning permit had been obtained in 1995. The planning scheme was subsequently amended so that major promotion signs became prohibited, subject to transitional provisions in respect to the subject land that allowed a once-off further discretionary grant of permit.
When the matter was before VCAT, DP Gibson considered and disagreed with previous decisions of VCAT in Papas v Whitehorse CC (1998) 1 VPR 76, Hall v City of Doncaster and Templestowe (1992) 10 AATR 68 and Ganka Holdings Pty Ltd v City of Melbourne (1995) 15 AATR 341. DP Gibson found that the display was development and so existing use rights did not apply.
On appeal, Cavanough J found that:
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. VCAT gave too much weight to the provisions of the planning scheme and too little to the language of the P&E Act;
. if the P&E Act intended to deny existing use rights in respect of all signs, one might have expected to see the intention expressed clearly;
. there is nothing in the definition of ‘development’ that would preclude the display on a sign from constituting ‘use’ within the meaning of the P&E Act;
. the P&E Act defines use broadly and inclusively and the word must be given its natural and ordinary meaning. It is well established that statutory provisions designed to protect existing use rights should be liberally construed; and
. a long series of authorities establish that the level of activity required to constitute use of land depends on the purpose to which the land is being put. In this case, the land was being applied to the purpose of displaying advertising messages. That was in His Honour’s opinion sufficient to establish ‘use’.
His Honour held that VCAT’s orders were vitiated by its misconstruction of the P&E Act. Display of a sign can be use and attract existing use rights. The matter was remitted to VCAT to be heard and decided again in accordance with the Supreme Court’s reasons for judgment.
Roads Corporation v Latrobe CC (Red Dot) [2016] VCAT 1167
In this decision, VCAT (constituted by DP Dwyer) considered the method for defining a sign that falls within the definition of several of the outdoor advertising terms found in cl 73 of the VPPs.
Latrobe City Council and VicRoads agreed that the proposed sign could be classified as any one of five different types of sign, three of which were permitted and two of which were prohibited. VicRoads sought a declaration from VCAT as to the proper interpretation of the planning scheme in classifying the sign.
Clause 52.05-1 of the Victoria Planning Provisions provides that “If a sign can be interpreted in more than one way, the most restrictive requirement must be met.” VCAT found that the subject sign could be interpreted as both a “panel sign” and an “electronic sign”, which were both prohibited on the subject site. VCAT noted that the definitions and types of outdoor advertising terms in cl 73 are out of step with changes in technology and advertising practices and that there was a need for a review of those definitions.
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Standing
Standing arguments seem to arise less often in planning merits reviews. However where standing arguments have been deployed with considerable frequency and effect is in the domain of appeals against works approvals and licencing decisions under the EP Act. Melton CC v Landfill Operations Pty Ltd (Red Dot) [2019] VCAT 882 is the most recent of those decisions. One anticipates this to only continue with the requirements of the EP Amendment Act introduced in mid-2021. The civil remedies provisions under that new Act have standing requirements for the “eligible person”: Part 11.4.
Linaker v Greater Geelong CC & Ors (Red Dot) [2010] VCAT 1806
This case considers the principles of standing in respect of a review of a works approval pursuant to section 33B (1) of the EP Act. VCAT (constituted by Gibson DP), found that the applicant, who lived some 23 km from the subject land, may have held genuine intellectual or emotional concerns, but this did not give rise to the level of special interest needed to establish standing.
Barwon Water proposed to construct a wastewater treatment plant in Corio.
The plant would treat domestic sewage and trade waste to Class A water.
The water would be returned for re-use and for irrigation, resulting in an approximate 5% reduction in Geelong’s drinking water usage.
The applicant had applied to VCAT under section 33B of the EP Act, among other things, to review the Environment Protection Authority’s decision to issue a works approval in respect of the wastewater treatment plant. The issue for VCAT was whether the applicant had standing pursuant to this section, as “a person whose interests are affected by the decision”, and if so, whether the application for review was based on either or both of the grounds in section 33B (2), which provides as follows:
1. An application for review under subsection (1)(a) is to be based on either or both of the following grounds -
(a) that if the works are completed in accordance with the works approval, the use of the works will result in-
(i) discharge, emission or deposit of waste to the environment; or
(ii) the reprocessing, treatment, storage, containment, disposal or handling of waste; or
(iii) the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the
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environment or any segment of the environment- which will unreasonably and adversely affect the interests, whether wholly or partly of that person;
(b) that if the works are completed in accordance with the works approval, the use of the works will result in-
(i) a discharge, emission or deposit of waste to the environment; or
(ii) the reprocessing, treatment, storage, containment, disposal or handling of waste; or
(iii) the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the environment or any segment of the environment in the area which will be inconsistent with any relevant Order declared under section 16, 16A or 17A for the area, or if no relevant Orders have been declared under any of those sections for that area, would cause pollution or an environmental hazard.
VCAT considered the Supreme Court decisions in Environment East Gippsland Inc v VicForests [2010] VSC 335 and Thirteenth Beach Coast Watch Inc v Environment Protection Authority and Anor [2009] VSC 53. It commented that, in practice it will tend to be “groups or associations” that will rely upon section 33B (2) (b) and “individuals or corporations” that will rely upon section 33B (2) (a), as observed by Cavanough J in Thirteenth Beech:
33B(2)(a) should be interpreted as referring to the financial, physical or other like personal interests of the particular applicant as an individual or as a corporation, as the case may be. In my view, it is only interests of that kind which can intelligibly be said to be capable of being “unreasonably and adversely affected” by the “use” of proposed works. By contrast, one would not normally speak of an intellectual, philosophical or emotional interest in the protection of the environment as being something capable of being unreasonably and adversely affected by the use of proposed works, even works to which the person or corporation was opposed on environmental grounds. It would be at least odd to refer to such use as being apt to unreasonably and adversely affect the objects or concerns of the person or corporation.
VCAT found the applicant was not a person whose interests were affected by the decision as he had no financial, physical or other personal interests that would be affected. Nor had he identified any inconsistency with any relevant State Environment Protection Policy or other Order.
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The applicant’s intellectual or emotional concerns did not give rise to the level of special interest. As such, the applicant did not have standing.
Boerkamp v The Hon Matthew Guy [2014] VSC 167
The Eastern Golf Club (Club) wants to build a new golf course and recreational facility in Yering. Yarra Ranges Shire Council issued a permit in 2009, which Boerkamp and a local environmental group successfully appealed to VCAT to set aside the Council’s decision. In November 2011, the Club made a further planning application and in September 2012 Council issued a notice of intention to grant a permit. Boerkamp then applied to VCAT for a review of that decision. However, before the proceeding could be heard, the Minister for Planning exercised his power under s 20 (4) of the P&E Act to exempt himself from notice requirements and approved amendment C130 to the Yarra Ranges Planning Scheme, which removed the need for the Club to obtain a permit.
Boerkamp commenced the Supreme Court proceeding, challenging the Minister’s decision to intervene and to prepare, adopt and approve amendment C130. In the Supreme Court proceeding, the Minister contended that Boerkamp did not have standing to seek or obtain the relief claimed. Emerton J held that Boerkamp had standing principally because he was the Applicant in the second VCAT proceeding and the Minister’s intervention deprived him of the opportunity to be heard. Further, Her Honour noted that while there is a statutory threshold for making a valid objection under s 57(1) of the P&E Act, which must be acknowledged, the plaintiff had cleared that hurdle. Indeed, the P&E Act provides for members of a ‘community’ who are merely interested in or concerned by a proposal to participate in the planning process in appropriate circumstances. This means that persons who might otherwise be described as having a ‘mere intellectual or emotional concern’ may participate in the permit process and object to a permit being granted. In this sense, the Supreme Court observed that the planning framework extends a ‘generous invitation’ to participate in the planning process and suggested that the words “material detriment” should not be read restrictively.
Despite the plaintiff therefore having been successful in establishing standing, there does not appeal to be any further recorded decisions available on austlii which provide the outcome of this litigation over the Club.
The recent case of Maddingley Brown Coal Pty Ltd v Moorabool SC (Corrected) [2020] VCAT 555 distinguished the decision in Boerkamp’s case. Maddingley Brown Coal Pty Ltd made a request pursuant to section 87 of the P&E Act to cancel a permit issued by Moorabool Shire Council, which sought to develop a block of land by dividing it into 53 residential allotments. The request was opposed by the
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permit holder on the basis that the applicant was not “a person who objected or who was entitled to object” to the issue of the permit required to establish standing.
Maddingley Brown Coal Pty Ltd relied on Emerton J’s decision in Boerkamp’s case, in particular, Her Honour’s comments that the wording of s 57 was “suggestive of inclusion rather than exclusion” and that “the provision is not to be construed as imposing a high bar to participation in the planning process”. In Maddingley Brown Coal Pty Ltd v Moorabool SC, although Quigley J accepted that the bar for making an objection under s 57 was a low one, Her Honour observed that the reasoning in Boerkamp did not concern sections 87 and 89 of the P&E Act.
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50
In this decision, the High Court considered the question of standing and whether adverse impact upon a person’s economic interests from a development gives that person standing to challenge a decision.
It is not uncommon for businesses and owners in an existing shopping centre to have commercial concerns about the impact of a new proposed centre. A question that can arise in such a context is the standing of a person to seek review if their grievance is solely commercially based. That was the case in Argos. The appellants included two sub-lessees that respectively operated small supermarkets and held commercial concerns about a new commercial development at a nearby site that included a supermarket and specialty shops. The appellants sought judicial review under the ADJR Act of the Minister’s decision to approve the proposal.
To seek review under the ADJR Act, the person seeking review needs to be a ‘person aggrieved’. The Australian Capital Territory Supreme Court and Court of Appeal both held that none of the appellants were a ‘person aggrieved’. Loss of profitability did not give rise to a sufficient interest to provide standing.
The High Court overturned those prior decisions, holding that the sub-lessee appellants had demonstrated the new development would have a significant adverse impact upon their respective businesses. The concept of standing was broad and there was no reason to read into it and any rules that provide a person whose economic interests are affected will never have standing. French CJ and Keane J observed that courts should be wary of unduly restricting standing provisions and that the availability of judicial review serves to promote the rule of law.
With respect to objections based upon commercial interests in a merits review, such as before VCAT, Argos may have limited application because it concerned a judicial review. Argos will, however, be highly relevant to questions of standing in judicial reviews, including judicial review of decisions in
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Federal Courts of Commonwealth decision-maker decisions under Commonwealth legislation because the standing provisions in the ADJR Act are based upon those in the ADJR Act, and probably also to judicial review in the Victorian Supreme Court.
Solar panels
The VPPs have been reformed with respect to solar panels, as was desired by VCAT in Chen v Melbourne CC & Ors (Includes Summary) (Red Dot) [2012] VCAT 1909. Clearly this reform was needed given the rapid and widespread adoption of that technology and the inevitable disputes that would result with respect to overshadowing. Relevant decision guidelines including the extent of overshadowing of existing solar panels are now at clauses 54.03-5 and 55.03-5 of Victorian planning schemes.
Chen v Melbourne CC & Ors (Includes Summary) (Red Dot) [2012] VCAT 1909
A question arises as to how the planning system should respond to development that has the potential to cause overshadowing in relation to solar panels. In this decision, VCAT calls upon the need for state- wide guidance on the issue.
VCAT, constituted by Member Taranto, considered a planning application for the construction of two double-storey dwellings, sited one behind the other. VCAT upheld the Council’s refusal primarily on neighbourhood character grounds.
It is VCAT’s comments in relation to overshadowing of solar panels, set out at paragraphs 36 - 43 of the decision, that make this decision noteworthy. The proposed development would have overshadowed the 14 solar panels on a neighbour’s north/east facing roof. A letter tabled by a solar and sustainability consultant provided the panels would be overshadowed between 9:00 am and until after midday at the equinox and that as a consequence there would be a loss of 50% to 70% of power. VCAT decided that such a degree of loss was unreasonable and that the proposal did not seek to minimise its impacts on an existing solar collecting device, contrary to planning scheme clauses 22.07-1 (a local planning policy in the Melbourne Planning Scheme requiring the minimising of the impact of new buildings and works on any active solar collecting device on adjoining buildings) and 55.03-5 (energy efficiency objectives, primarily directed at ensuring buildings are sited so as to make use of daylight and solar energy with orientation of north-facing windows to be maximised).
VCAT observed that there is no quantifiable guidance available at the present time with which to form a judgment as to whether the impacts of a proposal upon neighbouring solar collecting devices will be acceptable. VCAT considered it timely for there to be consistent and clear guidance on a state-wide
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basis to create greater certainty about what might be regarded as acceptable. Such guidance would be of great benefit to affected land owners, proponents of new developments and decision-makers.
Similar views were recently expressed by the Tribunal in Hall v Moreland CC [2018] VCAT 2022, accepting that a site by site assessment inevitably needs to occur, but found that:
Nevertheless a more consistent policy approach would assist both developers and existing solar panel users and future users to understand their obligations and expectations in this evolving assessment area.
Ramjee v Manningham CC (Red Dot) [2020] VCAT 1
In 2018, Amendment VC149 to the Victoria Planning Provisions was gazetted. This amendment introduced a new decision guideline in the General Residential Zone at clause 32.08-13. Relevantly, it requires decision-makers to consider the impact of overshadowing on existing rooftop solar energy systems on dwellings on adjoining lots in this zone.
Planning Practice Note 88 titled “Planning considerations for existing residential rooftop solar energy facilities” was published in October 2018 concurrently with the gazettal of Amendment VC149. This document does not form part of the planning scheme and nor is it a reference or incorporated document but is intended to provide some guidance in the application of the newly gazetted provisions.
In Ramjee v Manningham CC, VCAT considered an application under s 82 of the P&E Act which objected to alterations to an existing medical centre building and the provision of two additional car parking spaces on the site. The proposal created some additional overshadowing of the applicant’s rooftop solar panels, which were installed in December 2016. The council submitted that the extent of additional overshadowing would not be unacceptable.
The applicant asserted that the council could not have properly informed itself of the reasonableness of the proposal’s shadow impacts upon the neighbouring solar panels. Further, the applicant argued that the respondent had not demonstrated how overshadowing of the rooftop solar energy system would be mitigated, which is an application requirement under Practice Note 88.
VCAT concluded that the additional shadow impacts of this proposal on the adjoining rooftop panels themselves fall within the realm of being reasonable. However, Member Taranto made it clear that her findings are somewhat superficial in the absence of suitable planning scheme guidance and more detailed information specific to the operating characteristics of the adjoining rooftop solar energy system.
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Besides Practice Note 88, no other specific guidance is available in the planning scheme that might assist decision-makers in their exercise of discretion on this matter. Moreover, the energy efficiency objectives and standards in clauses 54 and 55 do not technically apply to non-residential proposals.
Importantly, in relation to understanding the actual effects of a development on the energy produced by a rooftop solar energy system, there is no specific guidance either within Planning Practice Note 88 or the planning scheme itself. The time of year for assessing impacts and spread of hours for assessment throughout the day remain uncertain variables, nor is there any guidance as to what might be regarded as a reasonable loss of a system’s overall performance. This presents very real challenges for decision- makers tasked with assessing the effects of such proposals.
The decision in Ramjee v Manningham CC reinforced the desirability of having clearer and more sophisticated planning scheme guidance to determine the acceptability of a proposal’s impacts on the performance of existing rooftop solar energy systems on adjoining residential lots due to overshadowing:
Such guidance would create greater certainty about this issue benefiting all stakeholders in the planning process including responsible authorities and the Tribunal on review. It would also be of assistance to persons pre-emptively making decisions about suitable locations for the installation of solar panels on rooftops and whether to seek a review of decisions involving overshadowing of such systems. This has the potential to narrow the scope of disputes about this issue before the Tribunal in a context where the uptake of rooftop solar energy systems by the community and its beneficial contribution to the production of sustainable energy continues to increase and is likely to do so.
Subdivision process
TJBP Pty Ltd v Brown & Ors; Mornington Peninsula Shire Council v Brown & Ors [2013] VSC 173
This Supreme Court decision is of procedural interest with respect to matters concerning commencement under subdivision permits, certification processes for plans of subdivision and VCAT’s decision.
This was an appeal to the Supreme Court (constituted by Emerton J) from an enforcement order made by VCAT (constituted by Member Cook) and a related declaration made under s 124 of the VCAT Act. The critical issue concerned whether a 41 lot subdivision permit had expired. VCAT had based its orders on its view that a subdivision permit had expired when it was purportedly extended by the Council. Both the permit applicant and the Council appealed the decision on the basis that the permit had not expired
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when the Council decided to extend, and that VCAT’s power to make declarations under s 124 of the VCAT Act did not extend to making declarations concerning the validity of plans of subdivision undertaken pursuant to the Subdivision Act.
Emerton J held that VCAT was in error in finding the permit had expired by the time of the Council’s extension.
The facts and the decisions of VCAT and the Supreme Court are perhaps best understood diagrammatically:
The facts:
VCAT’s decision:
The critical part of VCAT’s decision for the purposes of the appeal was VCAT’s finding that because the permit was amended in 2007, the 2006 certification “did not count”. The plan needed to be re-certified under the amended permit, and as this did not occur within time, the permit had expired as at the date of purported extension:
Emerton J’s judgement:
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Emerton J held that the 2006 certification “counted” despite the fact that the permit was amended in 2007. There was no need to re-certify for there to be commencement:
Her Honour held that having regard to the legislative scheme for plans of subdivision, the legislature did not intend the amendment of a permit for subdivision to invalidate an existing certification:
[23] [VCAT] erred in holding that the Permit Amendment had the effect that the 2006 Certification could no longer be relied upon as commencing the development.
VCAT’s decision to make an enforcement order was therefore invalid because it was made on the basis that the permit had expired prior to the permit extension. Her Honour set aside VCAT’s order and dismissed the enforcement order application. Her Honour found that it was unnecessary to make the declaration. The lesson for day-to-day decision-making is that certification under the original permit commences the subdivision.
Social effects
VCAT’s decision in Minawood was a very important decision in relation to the number of objections being relevant to the consideration of a social effect. What has occurred since Minawood is legislative change, with the amendment of s 60 of the P&E Act through introduction of s 60 (1B) on 12 October 2015. It expressly provides for the responsible authority having regard to the number of objectors in considering whether the use or development may have a significant social effect:
(1B) For the purposes of subsection (1)(f), the responsible authority must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect.
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Minawood Pty Ltd v Bayside CC (Red Dot) [2009] VCAT 440
VCAT found that the hotel, not subject to a Heritage Overlay, should nonetheless be retained in part, due to its cultural, social and historic associations and significance and contributions to neighbourhood character and cultural identity. The proposal received strong opposition from the local community, attracting 4,300 objections. VCAT’s treatment of the weight to be given to the objections to the proposal and its consideration of heritage issues makes this decision noteworthy.
This was an application relating to a site occupied by Khyat’s Hotel, Brighton, to amend an existing permit issued by VCAT. The existing permit allowed the development of 21 dwellings in a three-storey development while retaining the front portion of the hotel. The amendment sought to demolish the remaining portion of the hotel and add a further 5 dwellings.
Council refused the amendment and the developer applied to VCAT under s 87A of the P&E Act.
At the hearing the Council submitted that s 60 (1A) (a) of the P&E Act allows any significant social effects to be considered and relied upon the community opposition as constituting a social effect. The Council referred to Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2009] VSCA 45 where the Court of Appeal considered the relevance of community opposition to the introduction of electronic gaming machines as evidenced by a community survey.
VCAT:
. emphasised that it may only make decisions according to law, not popularity;
. distinguished the finding in Romsey that subjective perceptions of community members could be taken into account, on the basis of the different legislative frameworks under the P&E Act and the GR Act. VCAT was not persuaded that social impact within the meaning of the GR Act, as interpreted in the Romsey case, was necessarily the same as significant social effects within the meaning of the P&E Act. VCAT found that there needed to be a connection between the social effect and the use or development of the land and that there has to be some objective link between the proposed use or development and the alleged social effect; and
. concluded that the number of objections and the consistency of the message about the significance of the hotel within the local community was evidence of the cultural significance of Khyat’s Hotel within the community.
With regard to the absence of a Heritage Overlay, VCAT:
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. commented that theoretically, the applicant could therefore demolish the hotel at any time without a planning permit, although if the applicant did this, it would need to apply for a new permit because of the requirements of the existing permit to retain the front portion of the hotel;
. found that even though the hotel was not formally protected from demolition under the planning scheme by a Heritage Overlay, features of the hotel nonetheless contributed to the neighbourhood character, heritage and cultural identity of the area and it was therefore important to incorporate those features into the new development; and
. highlighted the difference between architectural significance and historic and social significance (under the umbrella of ’cultural heritage’).
It found that, although they are part of the same continuum, there was a distinction between the type of cultural significance dealt with by the Burra Charter, the notion of cultural identity and neighbourhood character referred to in cl 12.05-2 of the SPPF.
It observed that within cl 12.05-2 there were two sets of strategies – recognising and protecting cultural identity, neighbourhood character, sense of place and protecting heritage places and values.
VCAT regarded the strategies relating to cultural identity and character as intended to apply to places not necessarily protected by the Heritage Overlay, and that Khyat’s Hotel had a cultural identity of importance to Bayside and that it was desirable to recognize and protect this cultural identity as directed by cl 12.05-2.
VCAT went on to find that the proposed amendment did not respect the cultural, social and historic associations, the significance of the site and was inconsistent with the objectives and policies of the planning scheme relating to neighbourhood character and cultural identity.
Rutherford & Ors v Hume CC (includes summary) (Red Dot) [2014] VCAT 786 and Evers v Greater Bendigo CC & Ors (includes Summary) (Red Dot) [2014] VCAT 816
These decisions both relate to the use and development of mosques. The proposals in both cases attracted media attention and raised a series of sensitive issues.
The Rutherford decision
The proposed mosque for Shi’ite Muslims was controversial because it was to be established upon land next door to the St Mary’s Ancient Church of the East. The congregation from the St Mary’s Church
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mainly comprised Assyrian Christians, many of whom had fled violence and human rights abuses in Iraq, perpetrated by Islamic extremists.
Council resolved to grant a permit subject to conditions. The ‘Rutherford Group’ opposed the grant of the permit. The principal grounds for review was that the proposal would have a significant detrimental impact on the church community and would diminish the safety and amenity of the area.
VCAT, constituted by DP Dwyer and Member Deidun, considered these grounds having regard to s 60 (1) (f) of the P&E Act, which relevantly requires consideration of social effects. At paragraphs 50-55, VCAT makes a series of observations in relation to the requirements of section 60 (1) (f). Anybody seeking to challenge or defend a decision on social grounds is well advised to read those paragraphs.
One of VCAT’s observations was that the consideration of social effects should be upon the basis of an empirical analysis, through a formal social impact assessment. VCAT observed that the Rutherford Group did not produce an expert prepared independent social impact report.
Having discounted the grounds raised by the Rutherford Group, VCAT went on to consider whether the proposal achieved a net community benefit. VCAT observed that the proposed mosque provided a number of benefits, including that it was an appropriate use of land within the industrial 3 zone to provide a buffer between heavier industrial uses and residentially zoned land, that Australia has a rich and proud history of welcoming all religions and not unreasonably restricting a place where people choose to practice their own faith. VCAT affirmed the decision under review and directed the issue of the permit.
The Evers decision
Evers sought a suppression order to conceal her identity as an objector to a proposed mosque in Bendigo.
Evers argued that her views were being misreported by the media, which she claimed they were inferring to in its reporting that opponents of the mosque, including herself, where racists and bigots. She also had concerns that her personal and business life would suffer if she were named, and that a number of threats had been made against her on the ‘Stop the Mosque’ Facebook page.
VCAT, constituted by DP Dwyer, refused to grant the suppression order. VCAT observed that the public nature of planning decisions supported the public identification of citizens that take a stand for or against a particular proposal. VCAT observed that it would be a very rare circumstance, if ever, that
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either a permit applicant or objector, could satisfy the grounds for a suppression order under the Open Courts Act 2013 in a review proceeding under the P&E Act.
Ozzi Trade Pty Ltd v Hume City Council [2016] VCAT 1876
This decision is of interest because it involves consideration of the question of need against competing policy outcomes. In this case, the demonstrated need was for Islamic schooling versus policy that seeks to protect the existing and long term operations of Melbourne Airport. VCAT (constituted by Senior Member Baird and Member Wilson) found that whilst there was a demonstrated need for an Islamic School, the existing and long term operations of Melbourne Airport were paramount.
The applicant sought a review of Hume City Council’s decision to refuse to grant a permit for the use and development of land in Oaklands Junction for the purposes of an Islamic primary school and early learning centre. The land fell within the Green Wedge Zone, and was affected in part by both the Melbourne Airport Environs Overlay (Schedule 1) and Melbourne Airport Environs Overlay (Schedule 2).
The permit applicant submitted that the proposed school would address a demonstrated need for a primary school to cater for the growing community of the Sunni Islamic faith in the area and that measures could be put in place to attenuate against aircraft noise. Melbourne Airport was concerned about the proposed development’s proximity to the airport and its potential to prejudice the present and future operations of the airport.
Council’s grounds concerned the suitability of the use and development from a policy perspective and that the amenity created by aircraft noise was not conducive to primary school activities. Council argued that there were a large number of alternative sites that would be better suited. The proposed development was not in an accessible location or integrated within the community, due in part to the subject land falling outside a growth corridor. Council submitted that a school should be located near existing activity centres. VCAT observed that it must make its decision based upon the suitability of the subject land for the proposed use and not whether there is a more suitable location elsewhere. The mere fact that the school was located outside of an activity centre was not of itself a reason to refuse a permit.
An objector made submissions at the hearing in relation to the impact on social cohesion by a Muslim complex on farmland around Sunbury, amongst other things. VCAT stated that there was no expert evidence or other material to support the assertions made. There was in fact a social benefit in establishing a primary school for those of the Islamic faith. VCAT went on to find that the proposed use
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of the land for a primary school involving more than 700 people was an inappropriate outcome and had the potential to undermine the long term operations of Melbourne Airport.
Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505
This is the Supreme Court of Victoria’s decision of Emerton J for the appeal from VCAT over the controversial and significant residential development at Orrong Road, Armadale. On 10 July 2012, VCAT set aside the Council’s decision to refuse a permit to undertake that development. The Council appealed that decision to the Supreme Court. The ground which is of most interest is whether the extent of resident opposition to a proposal, as evidenced by the number of objections received, was an irrelevant consideration.
In support of its submissions, the Council relied upon the Court of Appeal’s decision in Romsey, which held community opposition in relation to the installation of gaming machines at a local pub was a relevant consideration that VCAT was bound to take into account and VCAT erred in law when it disregarded the evidence of that opposition.
In its 10 July 2012 decision, VCAT, following its decision in Minawood, stated that “[w]e must not have regard to irrelevant considerations. The extent of resident opposition per se is one of these” (at [37]).
Her Honour held that VCAT had made no error of law in “in refusing to consider as a discrete matter the fact that there were more than 600 objections to the proposal” (at [67]). Romsey was distinguishable on the basis that it concerned a separate statutory regime, being the GR Act, and the objector community in Romsey was a semi-rural community based in a small town such that the proposal had the potential to alter the social character of the town itself. By contrast, the Orrong Road development concerned an appeal under the P&E Act involving a larger community, being the Stonnington Municipality with over 100,000 residents, and the objections did not demonstrate necessarily (in terms of their number) a social impact but were more directed at differences of opinion as to built form outcomes. As to the application of Romsey to planning appeals, Her Honour states that “the Court must guard against too readily transposing the principles in Romsey to cases such as the present” (at [43]). However, Her Honour does acknowledge that “[t]his is not to say that evidence of the extent of resident opposition to a proposal will never be a relevant consideration in a planning matter” (at [68]).
Sea level rise Gippsland Coastal Board v South Gippsland SC & Ors (No 2) [2008] VCAT 1545
VCAT’s findings in this decision in relation to sea level rise have attracted considerable attention.
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The Gippsland Coastal Board brought an application for review under s 82 of the P&E Act against Council’s decision to grant six permit applications for dwellings in an old Crown township in a Farming Zone close to the coast of Toora, South Gippsland. The subject area is open farmland, low-lying, subject to flooding, prone to water logging, coastal subsidence and outside of the developed area of the Toora township.
VCAT upheld the application for review and set aside the decisions of the Council primarily on the basis that the proposed dwellings were inconsistent with the purpose and decision guidelines of the Farming Zone. Further, contrary to the SPPF, particularly cl 15.08-2, given the location of the subject land outside a settled area, VCAT considered that the proposed dwellings would have a cumulative eroding effect on the visual landscape, environmental and agricultural qualities of the area. VCAT also considered the development of dwellings in a low lying coastal area potentially subject to inundation would also be contrary to the Land Subject to Inundation Overlay applying to the subject land.
More interestingly, VCAT considered that the development would be at risk of inundation due to possible rises in sea levels because of global warming. It is the ‘climate change’ reasoning that resulted in this decision which attracts considerable interest.
In respect of VCAT (and therefore Councils) being able to legitimately consider climate change in deciding on permit applications under the P&E Act, VCAT found that s 60 (1) (e) of the P&E Act is sufficiently broad so as to include consideration of climate change and coastal processes when considering permit applications.
With VCAT having found that climate change was a relevant consideration, it went on to consider the extent of sea level rise. In this regard, it is notable that no expert evidence was actually called by the applicant. Rather, the applicant relied upon submissions and the findings of preliminary studies undertaken by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) that attempted to quantify the amount of sea level rise that may occur under increased wind and storm surges. It was acknowledged that there is a level of uncertainty as to what the conditions will be like and the time period over which climate shifts may occur.
VCAT went on to state that:
... we have had regard to the broader picture that there is a general consensus that some level of climate change will result in extreme weather conditions beyond the historical record that planners and others rely on in assessing future potential impacts. It is, in our view, no longer
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sufficient to rely only on what has gone before to assess what may happen again in the context of coastal processes, sea levels or for that matter inundation from coastal or inland storm events.
VCAT then considered the application of the precautionary principle, which it noted was included in the Intergovernmental Agreement on the Environment, which was a document referenced in cl 11.03-2 of the SPPF as forming part of the framework for decision-making concerning the environment.
VCAT applied the precautionary principle and found that there exists a real risk of dynamic change in coastal conditions and the failure of a ‘sea wall’, which presented a reasonably foreseeable risk of inundation of the subject land and the proposed dwellings. Without an urgent or overriding imperative for the dwellings to be located on the subject land, VCAT considered the risk to be unacceptable.
Broader implications
As noted by VCAT in the Gippsland Coastal Board decision, the planning decision-making process is very much in an evolutionary phase with respect to the relevance of climate change. It is therefore difficult to predict the broader implications of the Gippsland Coastal Board decision, but some of the immediate implications may include:
. councils in coastal areas reviewing their existing processes for considering permit applications in coastal areas potentially affected by sea level rise, including appropriate permit conditions, requirements for detailed risk assessments and consideration of the use of s 173 agreements acknowledging risk where development is approved;
. councils looking at their potential liability in respect of permits previously granted in areas likely to be affected by sea level rise;
. where planning permit applications are made, consistent with the application of the precautionary principle, a weighing up of the risks posed by climate change against the need for the particular development; and
. in both coastal and inland areas, increased weight being given to the effects of associated risks such as increased fire danger, reduced water quality and availability, soil issues and the increased frequency and severity of flood and storm events, and the consideration of appropriate responses to those risks.
Following the principles established in the Gippsland Coastal Board decision, the Victorian Coastal Strategy 2014 (VCS) was enacted to set out the policy and strategic direction for responding to coastal hazards in the context of climate change. The VCS identifies the need to plan for sea level rise of not less
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than 0.8 metres by 2100, and allows for the combined effects of tides, storm surges, coastal processes and local conditions such as topography and geology when assessing risks and impacts associated with climate change.
The Planning Policy Framework of the Victoria Planning Provisions and all planning schemes reflect this. In recognition of the long term impacts of possible sea level rise, the policy applies to non-urban land, greenfield land and development outside of existing settlements in coastal areas.
Ministerial Direction No. 13, “Managing coastal hazards and the coastal impacts of climate change”, also applies. As part of the planning scheme amendment process, a council must consider the current and future risks and impacts associated with projected sea level rise, evaluate the potential risks and present an outcome to avoid or minimise exposing future development to projected coastal hazards.
The sea level rise planning benchmarks for Victoria established in the VCS are given effect as planning strategies in Clause 13.01-2S Coastal Inundation and Erosion of the PPF. This clause refers to climate change impacts and includes policy on natural hazards, coastal inundation and erosion considerations.
The Climate Change Act 2017 plays a relevant role in this matter. This act lays out a long term framework for mitigation and adaptation action on climate change and requires decision-makers have regard to climate change for specific decisions and actions in a set of legislation listed in Schedule 1 to the Climate Change Act 2017, including the Marine and Coastal Act 2018 (Vic).
Finally, amongst the various relevant materials, responsible authorities should also consider the General Practice Note 53 “Managing coastal hazards and the coastal impacts of climate change”. Amongst other things, this Practice Note sets out three guiding principles for the decision making process about climate change and coastal hazard impacts:
. Risk Avoidance – to be achieved by siting and designing new development to reduce the exposure of future communities and assets to unnecessary coastal hazard risks over the intended lifespan of that development;
. Integrated coastal planning – requiring an assessment of the future impacts of coastal hazards and risk on the economic, social and environmental wellbeing of people and communities; and
. Precautionary approach – the Practice Note advocates that under a precautionary approach a decision should minimise adverse impacts on current and future generations and the environment.
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Section 173 agreements
Requirements in relation to s 173 agreements changed significantly through amendments to the P&E Act with new provisions addressing amendment and removal of such agreements and a process to seek VCAT review. These provisions are at s 184A to 184G of the P&E Act. No longer is there a need to ‘amend’ a s 173 agreement to remove it - the s 173 agreement can now be ended and removed by statutory process. The other important change concerns VCAT review of a Council’s decision not to amend or end a s 173 agreement, thereby providing an important level of review over a hitherto process that was basically at the absolute discretion of the Council. The provisions themselves though are not the panacea they might first seem, given the need to first secure in principle support from the Council to the amendment or removal. The Council’s decision as to whether it provides in principle support or not is basically made at its absolute discretion. However, if the Council does refuse to provide in principle agreement, it can be required to provide reasons for its decision: Kinchington Estate Pty Ltd v Wodonga City Council [2019] VSC 745.
Some of the more recent interesting decisions in relation to s 173 agreements are Frontlink Pty Ltd v Casey CC [2019] VCAT 1355 and Frontlink Pty Ltd v Casey CC (No.2) [2018] VCAT 1914. The key points from those decisions are that Councils should not use s 173 agreements for extraneous purposes to secure what Councils may see as valuable planning outcomes. Whilst voluntary agreements can be entered into, where an agreement is required by a permit, the agreement must be limited to what is required by the permit. VCAT will also not have jurisdiction over disputes concerning the ‘voluntary’ aspects of a s 173 agreement.
Wodonga CC v Kiene (Red Dot) [2009] VCAT 81
VCAT’s decision in this matter provides an interesting analysis of the registration and enforceability of s 173 agreements. The agreement in question had been executed some seven and a half years prior to registration, by which time the land was owned by a new owner. VCAT found that a s 173 agreement could be enforced, notwithstanding a change of ownership and registration of the agreement after that change of ownership. In so finding, VCAT has found that the legislative framework in which s 173 agreements operate over-rides and impliedly varies or repeals the paramountcy of the estate of the registered proprietor.
This decision concerns a s 173 agreement that was executed in 2000 prohibiting subdivision of land between Wodonga CC and the Albury Wodonga Development Corporation (Corporation).
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The agreement purported to limit further subdivision of the land in question before 2015, by which time it was anticipated that services would be available and demand for more intensive urban development would be established.
In 2001, the Kienes purchased one of the lots from the Corporation. At that point the agreement was still unregistered. The Kienes subsequently sought a four-lot subdivision of their land in 2006. The permit was refused by the Council and the decision was appealed to VCAT by the Kienes. At the hearing, the Kienes’ planning representative made representations to VCAT that the Kienes were not aware of the agreement. VCAT set aside the Council’s decision and directed that a permit be granted (Kiene v Wodonga CC [2008] VCAT 59).
After that hearing Council became aware that a copy of the executed agreement had in fact been attached to the vendor’s statement when the Kienes purchased the land. The Council then arranged for the agreement to be registered and then filed proceedings seeking cancellation of the permit and/or enforcement of the agreement. In response, the Kienes filed applications seeking amendment to the agreement and various declarations to the effect that the agreement was not enforceable against them and/or that the agreement should be removed from the land. At the hearing, the Kienes argued, among other things, that s 42 of the Transfer of Land Act 1958 provided paramountcy or indefeasibility of the Kienes’ estate as registered proprietor, and the priority of their interest over the s 173 agreement as a later registered instrument. The Council was therefore disentitled to now enforce the agreement against the Kienes and the agreement could not now be registered without the Kienes’ consent.
VCAT:
. considered the status of s 173 agreements against property law rights and obligations and took the view that a s 173 agreement is a creature of statute, with a specific role in the planning system in Victoria and the ordinary principles of property law do not automatically apply to such agreements;
. interpreted contractual obligations in the agreement as creating a clear intent that the agreement would operate as a s 173 agreement and would run with the land and bind future owners only once registered;
. formed the view that agreements could be registered and enforced after a change of ownership and registration of the agreement was the critical factor. There was no qualification in s 182 of the P&E Act that restricted enforcement against a subsequent owner only to circumstances where the
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s 173 agreement was registered before a change of ownership or where the subsequent owner consented;
. went on to find that the s 173 agreement could be registered over the Kienes’ land and that it became enforceable against the Kienes after registration;
. did not place weight upon the fact that the vendor statement contained a copy of the agreement. It would seem to follow from VCAT’s reasoning that even if the agreement was not attached to the vendor statement, VCAT would still have found that the agreement was enforceable after registration;
. found that ss 181 and 182 of the P&E Act over-ride and impliedly vary or repeal s 42 of the Transfer of Land Act 1958;
. in response to the Council’s argument that the burden of the covenant against subdivisions could still be enforced against the Kienes under established property law principles, VCAT considered, among other things, that the covenant was not given for the benefit of any land of the responsible authority as covenantee and so would not run with any land on that basis; and
. nonetheless exercised its discretion under s 184 of the P&E Act to amend the agreement to remove its application from the Kienes’ land on the basis that it considered it inappropriate the agreement should continue to apply given the seven and a half year delay by the Council in registering the agreement, the temporary nature of the subdivision requirement, and the grant of the intervening permit by VCAT in Kiene v Wodonga CC [2008] VCAT 59
Bowden v Mornington Peninsula SC (includes Summary) (Red Dot) [2011] VCAT 917
Bowden warrants comment in the context of use of s 173 agreements to prohibit future subdivision. VCAT, constituted by DP Dwyer, found that a s 173 agreement could not be used to ensure the land was not “capable of further subdivision”. Due to the specific facts and planning controls considered in the Bowden case, the decision is likely to have only limited application in most other contexts where the convention is to use s 173 agreements to ensure land is not subdivided in the future.
The proposal in Bowden was for a 5-lot subdivision of a 5.33 hectare parcel of land, comprising 4 ‘small’ lots and a remaining 3.65 hectare ‘super lot’. Clause 3.0 of the Design and Development Overlay - Schedule 6 - Low Density - Landscape (DDO6) under the Mornington Peninsula Planning Scheme applied to the land and relevantly provided that:
. the average area of new lots within a subdivision must be no less than 1 hectare;
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. land ‘capable of’ further subdivision was excluded from the calculation of average lot area; and
. the requirements could not be varied with a permit.
The issue was whether the super lot should be included in the calculation of average lot area. If included, the average lot size for each of the five lots would exceed the 1 hectare DDO6 requirement. If the super lot were excluded, the average lot size for the four remaining lots would not meet the requirements.
The permit applicant proposed to include the super lot in the calculation of average lot area by using a s 173 agreement to ensure the super lot was not ‘capable of further subdivision’, with the terms of the proposed agreement preserving the ability to subdivide the super lot in the future, if the planning scheme were amended.
VCAT framed the issue as to whether the legal capability of subdivision was negated by the s 173 agreement, which it found would not be the case because:
. the objectives of DDO6 were directed at ensuring low density subdivision;
. the permit applicant could not rely on the responsible authority’s ability to impose conditions in a permit to vary or reinterpret the substantive requirements of the empowering control in the planning scheme; andclause 3.0 of DDO6 expressly provided that its requirements could not be varied with a permit, which therefore precluded a permit condition imposing the proposed s 173 agreement.
VCAT did not accept the applicant’s claim that the use of a s 173 agreement was analogous to situations in the Farming Zone or Green Wedge Zone because the DDO6 did not contemplate use of s 173 agreements and its purposes were directed at low density subdivision. It was therefore not possible to use a s 173 agreement to prevent future subdivision of the super lot. The proposed configuration would not meet the mandatory requirements of the DDO6 and the permit was refused.
Sheradar Pty Ltd v Casey CC (includes Summary) (Red Dot) [2011] VCAT 1414
Readers may be interested in this decision of DP Gibson of VCAT in relation to relevant matters to consider when an application is made under s 184 (3) of the P&E Act to remove land from a s 173 agreement.
The agreement was entered into in 1990 following a request by the previous owner to have 1-9 Lyall Road, Berwick (Land) and adjoining land rezoned from a residential zone to an office zone.
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The key requirements of the agreement was that the owner seek approval for the development of the Land strictly in accordance with the specific development plans referenced in the agreement (which depicted two double-storey office buildings and one single-storey restaurant) and that the use and development accord with the Berwick Village Commercial Strategy Plan (Plan).
Since the agreement was entered into, both the Land and the adjoining lot had been rezoned from a residential zone to a Business 1 Zone and the Plan had been amended several times.
In 2008, the Applicant applied for a planning permit for the use and development of both the Land and the adjoining land for a mixed use commercial building. The Council resolved to refuse that application, which was successfully appealed by the Applicant to VCAT.
Pursuant to condition 2 of the permit that was consequently issued, the permit was not to come into effect until the agreement had been removed. The Council refused to agree to ending the agreement under s 177 (2) of the P&E Act and the Applicant applied to VCAT.
VCAT concluded it would not be appropriate for the agreement to continue to apply to the Land or the owner. The agreement was entered into many years ago and planning controls and strategic objectives for the Land had since changed. The Land no longer derived any benefit under the agreement and so there was no longer a sufficient nexus between the agreement and the obligations created by it to require the agreement continue to apply. In so finding, VCAT made the following comments in relation to relevant considerations for removal of an agreement in this case:
. Section 184 (4) of the P&E Act provides that VCAT may approve an amendment if, among other things, it considers it inappropriate that the agreement should continue to apply to the land and the owner having regard to any ‘relevant permit’. Not all permits are relevant permits. However, in this case, the permit was a relevant permit because it affected the Land, did not comply with the agreement and triggered the application to VCAT. General considerations in relation to ‘relevant permits’ include:
o When the permit was granted;
o What consideration the responsible authority (under s 60 (1A) (i)) and VCAT (under s 84B (2) (h)) gave to the agreement when deciding to grant the permit; and
o How does the permit affect obligations under the agreement or vice versa?
. Looking beyond any relevant permit, it is relevant to consider:
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o The age of the agreement, the context and circumstances surrounding the entry into the agreement;
o What were the original intent and obligations of the agreement?
o Whether circumstances have changed since the agreement was entered;
o Has the land and the owner benefited from the agreement or do they continue to enjoy benefit from the agreement?
o What is the relationship between the benefits to the land and the owner of the agreement and any ongoing responsibilities or obligations under the agreement?
o What benefit would there be in maintaining the agreement? and
o Should the land and/or the owner continue to accept the obligations under the agreement?
Secondary consents
Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor (includes summary) (Red Dot) [2010] VCAT 1226
This decision of VCAT highlights the limited rights of third parties in respect of decisions made under secondary consents.
The case involved a declaration application in the context of a decision made by the Minister pursuant to a secondary consent in which a number of grounds were raised by the applicant, including interestingly whether consideration of the “Westpoint” criteria/guidelines was a “jurisdictional fact”.
The Minister made a decision to increase the height of wind turbines at the Bald Hills Wind Farm from 110 metres to 135 metres pursuant to a purported secondary consent power at condition 4 of the permit, which provided as follows:
The wind energy facility must be constructed in accordance with the following specifications, which must not be changed without the prior written consent of the Minister for planning: … b) each wind generator must have an overall height of less than 110 metres and have a base diameter at ground level of no greater than 6.0 metres; …
Readers may be aware that s 149 of the P&E Act, which is often relied upon for a merits review of a secondary consent decision, does not provide standing to third parties. Accordingly, Tarwin Valley
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Coastal Guardians Inc (Tarwin Inc) applied for a declaration under s 149B, that the Minister’s consent to the increase was void and of no legal effect, i.e. the legality of the decision.
The application was made on several grounds, including that a ‘jurisdictional fact’ before the Minister could make his decision was consideration of the criteria/guidelines formulated in Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049.
These criteria/guidelines included consideration of whether the change in the height of the wind turbines could be regarded as ‘of no consequence’.
A ‘jurisdictional fact’ is a fact or precondition, which must exist before a decision-maker can validly act. It was argued that the criteria/guidelines formulated in Westpoint were a jurisdictional fact, and as such, it fell to VCAT to determine the existence of that fact. It was further argued that if VCAT accepted this, the change in the height of the wind turbines could not be regarded as of no consequence, with the result that the Minister’s decision was invalid.
VCAT noted the words of Kirby J in Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 about caution to “intrude impermissibly into the merits of fact finding” and found that there was nothing within the legislative power under the P&E Act to include condition 4 (b) of the permit, or the permit condition itself, that required consideration of the Westpoint criteria as a jurisdictional fact.
Tarwin Inc also submitted a permit amendment was required because condition 4 (b) specifically referred to an overall height of 110 metres, the changes triggered a requirement for a further assessment or approval under the EE Act and that it was denied procedural fairness.
VCAT found that the wording of the condition made it clear changes were contemplated such that an amendment was not required, there was no trigger for further assessment under the EE Act in respect of the exercise of a power under a secondary consent, and there was no right to notice to third parties in relation to a secondary consent. By participating in the panel process, Tarwin Inc was afforded its right to participate in the conduct of public affairs pursuant to s 18 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Conclusion
The argument in relation to jurisdictional fact in this case was an interesting one.
The concept of jurisdictional fact is a somewhat awkward one in that it introduces factual considerations about the way in which the decision-maker went about reaching his or her opinion, which is difficult to
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reconcile with the role of VCAT’s legal inquiry under s 149B. Ordinarily, such an inquiry does not entail consideration of the factual merits of the individual decision with this instead being left to the person designated as the repository of the decision-making power. In finding that consideration of the Westpoint criteria was not a jurisdictional fact, VCAT has resisted a review of the factual considerations undertaken by the Minister. In a pragmatic sense, this preserves the useful role of secondary consents to allow changes to be made without the normal notice and review associated with planning permit amendments.
Technical codes and standards
Cherry Tree Farm Pty Ltd v Mitchell SC (Includes Summary) (Red Dot) [2013] VCAT 1939; Mason v Greater Geelong CC (Red Dot) [2013] VCAT 2057
These decisions are of interest insofar as VCAT expresses views as to its role in a planning merits appeal when a development’s compliance with codes and standards are challenged.
In the Cherry Tree Farm case, the proponent submitted the proposed wind farm complied with the required codes and standards of the various Government departments with statutory responsibilities in relation to wind farms. It also submitted material from those departments which provided that, among other things, there was no evidence that wind farms caused adverse health effects. The objector group submitted material from scientific journals, seminars, surveys and other information to seek to establish that wind farms did cause adverse health effects.
Senior Members Wright QC and Liston stated that it is not the role of a planning decision-maker to set standards in relation to public health or to second guess the considered statements of bodies or authorities which are expert in the area and which carry out a statutory responsibility for regulating the area. VCAT has consistently taken the view over a long period of time that although it is an expert body, it is not an expert in all areas and it should not pioneer new and different standards. If there was compelling evidence that a particular standard specified or referred to in a planning scheme, or the stated position of a specialist authority, was not appropriate, VCAT should not necessarily feel obliged to adopt that standard or view. However, that was not the case here. VCAT also observed that the two kilometre buffer required by cl 52.32 of the planning scheme itself incorporates the precautionary principle.
In Mason, Dwyer DP adopts similar reasoning to the Cherry Tree Farm case. Mason was an objector appeal against a proposed Telstra telecommunications facility. The objector group’s grounds raised concerns in relation to electromagnetic radiation and health concerns. Telstra submitted that its proposal met the required regulatory standards, being the ‘ARPANSA Standard’, and so complied with cl
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52.19 of the planning scheme, which effectively incorporated the ARPANSA Standard into the Victorian planning framework.
VCAT decided to strike out the relevant ground on the basis that it could not look behind the ARPANSA Standard where it will be met and does not have expertise to do so. VCAT was not a forum for addressing all issues of social or community concern. If there was compelling evidence that a regulatory standard was not appropriate, then that may be a matter for argument in a particular proceeding, but that was not the case in respect of the current application
Transitional provisions
Belleli v Glen Eira CC (Including Summary) (Red Dot) [2014] VCAT 1486
In this decision, VCAT, constituted by Member Shpigel, interprets key transitional provisions for the Neighbourhood Residential Zone (NRZ) in the Glen Eira Planning Scheme.
The permit applicant applied to construct a third single-storey dwelling to the rear of two existing attached dwellings as well as the removal of a registered restrictive covenant. The decision is of interest because of VCAT’s consideration of the transitional provisions in the NRZ. At the hearing VCAT considered whether a third dwelling was prohibited by the recently introduced NRZ, which restricted the number of dwellings on a lot to no more than two. A question arose as to whether the transitional provision under the NRZ at cl 32.09-3 applied. The transitional provision provides that the limit on the number dwellings does not apply if the permit application is made before the approval date of the planning scheme amendment that introduced the NRZ into the planning scheme.
The NRZ was introduced into the VPPs on 1 July 2013 and was incorporated in the Glen Eira Planning Scheme on 23 August 2013. The permit applicant applied for a planning permit on 22 August 2013.
VCAT decided that the operation of the transitional provision depended upon the date that the NRZ was introduced into the planning scheme, as opposed to the date that the NRZ was introduced into the VPPs. Therefore the proposal was not prohibited. The decision is of wider interest because the transitional provision forms part of the standard provisions of the NRZ and so will appear in each planning scheme that has the NRZ. The other new residential zones also contain transitional provisions in respect of which the reasoning in Belleli would also likely apply.
Water
There were a number of ‘red dot’ decisions involving water issues. This is not at all surprising: water is a finite resource and with climate change it is becoming more and more scarce. Disputes over water are inevitable. The writer predicts that this will only continue.
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Member Martin (now Senior Member Martin), who called for VPP reform in relation to the definition of ‘minor utility installation’ in Water Infrastructure Group Pty Ltd v Pyrenees SC (Red Dot) [2012] VCAT 400, may be disappointed that several years later the VPP definition of minor utility installation remains the same.
The most significant legislative and policy developments in recent years with respect to water are undoubtedly the 2012 Murray-Darling Basin Plan and its associated legislation, the Water Act (Cth). This scheme has in turn resulted in litigation, primarily through irrigators challenging government decisions to take their water ultimately for environmental purposes. This was the case in Lee v Commonwealth of Australia [2014] FCA 432.
Pomona Farms v Grampians Wimmera Mallee Water Authority [2011] VCAT 1378
This case (before Member Potts) involved an interesting challenge to an administrative decision in the context of renewal of water licences under the Water Act.
The application was under s 64 (1) (c) of the Water Act to review the decision of the Minister’s delegate, Grampians Wimmera Mallee Water Corporation (GWM Water), to renew a licence with a clause from the former licence deleted. The deleted clause (cl 6) purported to be a licence condition giving a right to the licence holder to apply for and obtain additional water entitlements should he want them.
GWM Water argued that it (or its predecessor) should not have inserted cl 6 into the licence in the first instance as it was beyond power, and therefore, in renewing the licence, the condition should not be included.
VCAT observed that the extent of the Minister’s discretion is not unfettered and is to be guided by the purposes of the legislative authority, i.e. the purposes of the Water Act. The Minister’s authority to fix conditions on a licence related to conditions that will accord with the proper and sustainable management of the aquifer. It would be a nonsense to fix an entitlement and then allow the licence holder to take a further amount by way of a condition at his or her whim without proper recourse to the scheme of approval and management established under the Water Act. Such a condition would be improper and beyond the authority of the Minister and VCAT. GWM Water’s decision to renew without cl 6 was therefore affirmed.
Water Infrastructure Group Pty Ltd v Pyrenees SC (Red Dot) [2012] VCAT 400
This decision is of interest due to the comments made by VCAT (constituted by Member Martin) in respect to the potential need for changes to the VPPs around the appropriateness or otherwise of the
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full exemption granted to minor utility installation. In this case, VCAT granted a declaration that a particular sewage treatment plant was a minor utility installation and therefore exempt from requiring a planning permit. The Member expressed that he could appreciate the practical concerns raised by the referral authority, Goulburn Murray Water, as to the implications of right sewage treatment plant facilities in locations forming part of designated water supply areas.
Water Infrastructure Group Pty Ltd (WIG) applied pursuant to s 149A of the P&E Act for a declaration that a proposal for a sewage treatment plant to recycle waste water for irrigation constituted a ‘minor utility installation’. If so, a planning permit was not required because, under the farming zone, a ‘minor utility installation’ was a s 1 as of right use and cl 62.02-1 of the planning scheme provides an exemption for development approval, which VCAT observed also overrode the need for development planning approval under the Environmental Significance Overlay Schedule 1 - Water Supply Area that applied.
Minor utility installation is defined in the planning scheme to include “a sewage treatment plant and any associated disposal works required to serve a neighbourhood”. The critical question was whether or not the relevant township, Waubra, constituted a ‘neighbourhood’. Member Martin considered and agreed with DP Gibson’s analysis of what constitutes a ‘neighbourhood’ in Edwards v South Gippsland SC (Red Dot) [2005] VCAT 1708, agreeing that the distance between the wastewater treatment plant and the township is irrelevant given such a facility will typically be separated. Member Martin found that the township of Waubra constituted a neighbourhood because it is a small, compact and easily defined township, among other things, and granted the declaration.
The WIG Decision was noted as a Red Dot because of the Member’s observations on the potential need for amendment to the VPPs around the definition of minor utility installation and these types of facilities:
[28] … with climate change and drought issues now looming large as part of managing Victoria’s water supplies for its cities and towns, there is a need for relevant water authorities to diligently manage and conserve Victoria’s drinkable water resources. This in turn raises important issues about the prudent management into the future of designated water supply areas in Victoria.
[29] In this context, I can appreciate there may be practical concerns such as those raised by GMW about the appropriateness or otherwise of the VPPs (because of the full exemption granted to a “minor utility installation”) potentially allowing multiple proposed waste water treatment facilities to be built as of right, even in designated water supply areas...
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Kapiris v Macedon Ranges SC (Includes Summary) (Red Dot) [2012] VCAT 1969
This was another case in which VCAT, constituted by presiding Member Bennett and Member Sharpley, considered an application for a dwelling in a potable water supply catchment. The reader may be aware that in respect of such applications, the decision-maker must apply the ‘Guidelines for planning permit applications in open, potable water supply catchment areas’, Department of Planning and Community Development, November 2012 (the Guidelines). Where applicable, the Guidelines provide a “density of dwellings guideline” of no greater than one dwelling per 40 hectares and that each lot created in a subdivision should be at least 40 hectares in area (the 1:40 ha guideline). This decision is of interest because of VCAT’s comments in relation to a ‘two pronged’ approach to assessment of dwelling density. As with other decisions, VCAT found that risks posed to the water supply catchment outweighed the benefit of one additional dwelling to the permit applicant.
The applicants applied for a planning permit for the use and development of a 16 hectare lot for a dwelling, effluent disposal system, associated outbuildings and vegetation removal. The site was located within the declared special water supply catchment area of the Rosslynne Reservoir Catchment, in the Rural Conservation Zone 1 and subject to a number of overlays, including the Environmental Significance Overlay.
VCAT found that themes emerging from the planning policy framework were protection of water quality, protection of landscape character, and pressure for urban and residential developments to be focused in and around townships. A dwelling was not necessary to achieve environmental improvements on the review site and any benefits from a dwelling did not outweigh the broader policy outcomes seeking to limit dwellings on small lots.
VCAT considered the wider water policy context, including the Australian Drinking Water Guidelines, the SEPP (Waters of Victoria) and the Guidelines, and the various principles set out in those documents around risk to consumers from pathogenic micro-organisms, multi barrier approaches and the precautionary principle. VCAT observed that pursuant to the Guidelines, the 1:40 ha guideline could be varied under certain circumstances as expressed in the Guideline, but such circumstances were not met. Paragraphs 51 to 55 set out VCAT’s comments in relation to the appropriate way to measure density for the 1:40 ha guideline. VCAT considered that a ‘two pronged’ approach was appropriate to assessing density, in which the dwelling density is measured within the sub-catchment (as opposed to the whole of catchment), as well as the dwelling density within a 1 kilometre radius of the proposed dwelling. Consistent with a proper application of the precautionary principle as ultimately set out by the Supreme Court in the Rozen litigation, the cumulative impact of all the systems within the catchment needed to
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be considered. The thrust of the applicable regulatory and policy framework was to protect the water supply catchment from risk of system failure, even if such risk was only very remote. VCAT applied the test of net community benefit and decided that the risk posed to the water supply catchment outweighed the benefit of one additional dwelling to the permit applicant.
McDonald v Hepburn SC [2013] VCAT 1538
Readers may recall previous newsletter items in relation to the Guidelines for Planning Permit Applications in Open, Potable, Water Supply Catchment Areas, November 2012 (Guidelines). The Guidelines are largely directed at protection against environmental harm from cumulative risk from effluent disposal systems. The Guidelines include a 1 in 40 hectare guideline for dwelling density to address cumulative impacts, but they also prescribe certain categories of exception to the 1 in 40 hectare guideline. This decision is noteworthy because:
. the lot in question was 35 hectares in size, which exceeded the 20 hectare scheduled ‘as of right’ use in the farming zone for a dwelling. The only permit trigger was, therefore, the development trigger under the Environmental Significance Overlay which applied to the land. The Council argued that the Guidelines only apply in relation to use or subdivision, consistent with the preface to the Guidelines. VCAT (constituted by Member Michael Nelthorpe) found, for the first time so far as the writer is aware, that development only applications for dwellings must also comply with the Guidelines; and
. VCAT found that the categories of exception in the Guidelines are comprehensive such that if there is no catchment policy or domestic wastewater management plan, a site specific approach to risk will not accord with the Guidelines.
Lee v Commonwealth of Australia [2014] FCA 432
This Federal Court case is of interest because it concerned a constitutional challenge to the Water Act (Cth), under which the Murray Darling Basin Plan (Basin Plan) is made. Had the challenge been successful, the entire Basin Plan regime would likely have been undermined.
The challenge was instituted by two irrigators (the Applicants), who claimed they were adversely affected by the implementation of the Basin Plan through reduction of water entitlements and devaluation of property.
The first argument put by the Applicants was that the Water Act (Cth) contravened s 99 of the Constitution (Cth). This section relevantly provides that the Commonwealth shall not by any law of trade
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and commerce give preference to any one State. It was claimed that the Basin Plan treated the Murray Darling Basin (MDB) States differently. North J accepted that the Basin Plan did this, however, this did not constitute a contravention of s 99 of the Constitution because the constitutional basis for the Water Act (Cth) was not the trade and commerce power, but was instead the external affairs power. A challenge by the Applicants on the basis of s 100 of the Constitution, which prohibits a trade and commerce based law abridging States’ right to the reasonable use of rivers for irrigation, was similarly unsuccessful because that section also only operated with respect to laws based upon the trade and commerce power.
The Applicants then challenged the Water Act (Cth) on the basis that it infringed the ‘Melbourne Corporation’ principle. This principle provides that legislation will be unconstitutional if it curtails the capacity of a State to function as a State. The Applicants argued that the Commonwealth regime had a significant impact on State administration of MDB water resources. North J held that the Water Act (Cth) and its operation did not impair the capacity of the States to function as States and that the MDB scheme was a co-operative one that in fact utilised existing State legislative frameworks.
North J’s constitutional analysis and findings that the primary constitutional foundation for the Water Act (Cth) is the external affairs power lend a degree of support to views expressed by a number of academics (George Williams and Don Rothwell, for instance) that the Basin Plan might be challenged on the basis that the amount of environmental water under the Basin Plan is too low to properly implement the environmental treaties upon which the Water Act (Cth) is based. Unsurprisingly, the Applicants in Lee, as irrigators, did not make that argument, however, it remains conceivable that one day a challenge of that kind may be made. Notably, South Australia previously threatened a High Court challenge to the Basin Plan.
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List of cases
478 St Kilda Road Land Pty Ltd v Port Phillip CC (Red Dot) [2016] VCAT 445 ...... 47 AAD Nominees Pty Ltd v Resource Management and Planning Appeal Tribunal [2011] TASFC 5 ...... 46 AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources (Red Dot) [2016] VCAT 1249 ...... 48 Alanvale Pty Ltd & Anor v Southern Rural Water & Ors (includes Summary) (Red Dot) [2010] VCAT 480 ...... 73 APN (Outdoor) Pty Ltd v Melbourne CC (Red Dot) [2010] VCAT 1759 ...... 84 APN (Outdoor) Trading Pty Ltd v Melbourne City Council [2012] VSC 8 ...... 84 APN Outdoor Pty Ltd v Melbourne CC (Red Dot) [2010] VCAT 1759 ...... 10, 83 Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50 ...... 89 Australia Post v Mornington Peninsula SC [2008] VCAT 486 ...... 30 Azzure Investment Group Pty Ltd v Mornington Peninsula SC (Red Dot) [2009] VCAT 1600 ...... 9, 19 Banyule CC v Tomasevic [2011] VCAT 2377 ...... 36 Beaver v Indigo SC [2008] VCAT 740 ...... 26 Belleli v Glen Eira CC (Including Summary) (Red Dot) [2014] VCAT 1486 ...... 111 Benedetti v Moonee Valley CC [2005] VSC 434 ...... 61 Boerkamp v The Hon Matthew Guy [2014] VSC 167 ...... 88 Bologna v Monash CC (Including Summary) (Red Dot) [2014] VCAT 1400 ...... 79, 80 Bowden v Mornington Peninsula SC (includes Summary) (Red Dot) [2011] VCAT 917 ...... 105 Box v Moreland CC (Including Summary) (Red Dot) [2014] VCAT 246 ...... 61 BRD Group Pty Ltd v Melton SC [2015] VCAT 13 ...... 13 Burnet v Yarra CC (Red Dot) [2013] VCAT 1753 ...... 53 Calder Park Raceway Pty Ltd v Brimbank CC (Land Valuation) (Red Dot) [2016] VCAT 551 ...... 12, 15 Caligiuri & Anor v Attorney General (on behalf of the State of Victoria) & Ors [2019] VSC 101 ...... 22 Capital Benefits (Mont Albert) Pty Ltd v Whitehorse CC [2008] VCAT 2436 ...... 76 Central Highlands Region Water Authority v Ballarat CC [2007] VCAT 2030 ...... 70 Chen v Melbourne CC & Ors (Includes Summary) (Red Dot) [2012] VCAT 1909 ...... 90 Cherry Tree Farm Pty Ltd v Mitchell SC (Includes Summary) (Red Dot) [2013] VCAT 1939 ...... 60, 110 Cherry Tree Farm Pty Ltd v Mitchell SC (Red Dot) [2013] VCAT ...... 60 Clare v Maroondah CC [2008] VCAT 606 ...... 76 Clarke v South Gippsland SC (Includes Summary) (Red Dot) [2016] VCAT 176 ...... 16 Coastal Estates Pty Ltd v Bass Coast SC & Ors (Red Dot) [2010] VCAT 1807 ...... 56 Coles Property Group Developments Limited v Boroondara CC (Including Summary) (Red Dot) [2014] VCAT 342 ...... 60 Cook v Minister for Water [2019] VCAT 866...... 7, 27 D’Agostino v Greater Shepparton CC [2014] VCAT 573 ...... 66 D’Agostino v Greater Shepparton City Council [2015] VSC 332 ...... 66 Davidson v Yarra Ranges SC (Includes Summary) (Red Dot) [2012] VCAT 1966...... 44 DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634 ...... 35 Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1 ...... 53 Dromana Tourist Park Holdings Pty Ltd v Mornington Peninsula SC (Red Dot) [2005] VCAT 1439 ...... 18 Dustday Investments Pty Ltd v Minister for Planning [2015] VSC 101...... 58 East Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217 ...... 57 Edwards v South Gippsland SC (Red Dot) [2005] VCAT 1708 ...... 113 Environment East Gippsland Inc v VicForests [2010] VSC 335 ...... 87 Environment Protection Authority v Ileowl [2017] VSC 625 ...... 7, 28 Epsom Central Pty Ltd v Bendigo CC and Anor [2011] VCAT 1943...... 24 Evers v Greater Bendigo CC & Ors (includes Summary) (Red Dot) [2014] VCAT 816 ...... 96 Frontlink Pty Ltd v Casey CC (No.2) [2018] VCAT 1914 ...... 103
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Frontlink Pty Ltd v Casey CC [2019] VCAT 1355 ...... 103 Frontlink Pty Ltd v Commissioner of State Revenue [2016] VSC 25 ...... 42 Ganka Holdings Pty Ltd v City of Melbourne (1995) 15 AATR 341 ...... 84 Garden City Australia Pty Ltd v Whitehorse CC (Red Dot) [2013] VCAT 1812 ...... 59 Gembrook Pines Pty Ltd v Glen Eira CC (Red Dot) [2016] VCAT 537 ...... 33 Gippsland Coastal Board v South Gippsland SC & Ors (No 2) [2008] VCAT 1545 ...... 99 Glenelg SC v Printz Pty Ltd (includes summary) (Red Dot) [2009] VCAT 2477 ...... 31 Glenelg SC v Printz Pty Ltd (Red Dot) [2009] VCAT 2477 ...... 84 Hall v City of Doncaster and Templestowe (1992)10 AATR 68 ...... 84 Hall v Moreland CC [2018] VCAT 2022 ...... 91 Harvey & Anor v Mutsaers & Ors [2011] VSC 23 ...... 63 Harvey & Anor v Mutsaers & Ors [2012] VSCA 69 ...... 63 He Kaw Teh v R [1985] 157 CLR 523 ...... 35 Ho v Greater Dandenong City Council [2012] VSC 165 ...... 38, 39 Hotel Windsor Holdings Pty Ltd v Minister for Planning (includes Summary) (Red Dot) [2014] VCAT 993 ...... 65 Ileowl Pty Ltd v Environment Protection Authority (includes summary) (Red Dot) [2015] VCAT 1105 ...... 7, 29 Kain v Yarra Ranges SC (Red Dot) [2013] VCAT 1908 ...... 44 Kantor v Murrindindi SC 18 AATR 285 ...... 62 Kantor v Shire of Murrindindi (1997) 18 AATR 285...... 64, 65 Kapiris v Macedon Ranges SC (Includes Summary) (Red Dot) [2012] VCAT 1969 ...... 114 Kiene v Wodonga CC [2008] VCAT 59 ...... 104, 105 Kinchington Estate Pty Ltd v Wodonga City Council [2019] VSC 745 ...... 103 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 ...... 45 Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (includes Summary) (Red Dot) [2014] VCAT 826 ...... 21 Lakkis v Wyndham CC [2001] VCAT 863 ...... 33 Lamaro v Hume (Red Dot) [2013] VCAT 957 ...... 79 Lee v Commonwealth of Australia [2014] FCA 432 ...... 112, 115 Li Chak Lai v Whitehorse CC (No.1) [2005] VCAT 1274 ...... 8, 79 Linaker v Greater Geelong CC & Ors (Red Dot) [2010] VCAT 1806 ...... 86 Lower Our Tracks Inc v Minister for Planning [2016] VSC 803 ...... 25 Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2009] VSCA 45...... 95 Maddingley Brown Coal Pty Ltd v Moorabool SC (Corrected) [2020] VCAT 555 ...... 88 Mainstay Australia Pty Ltd v Mornington Peninsula SC (Red Dot) [2009] VCAT 145 ...... 9, 19, 20 Mallia v Mitchell SC [2008] VCAT 1333 ...... 55 Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2...... 22 Maroondah City Council v Fletcher [2009] VSCA 250 ...... 75 Maroondah City Council v Fletcher and Minister for Planning [2009] VSCA 250 ...... 78 Mason v Greater Geelong CC (Red Dot) [2013] VCAT 2057 ...... 110 McDonald v Hepburn SC [2013] VCAT 1538 ...... 115 Melbourne CC v Minister for Planning (includes summary) (Red Dot) [2015] VCAT 370 ...... 28 Melbourne Water v Domus Design Pty Ltd (2007) 27 VSC 114 ...... 24 Melton CC v Landfill Operations Pty Ltd (Red Dot) [2019] VCAT 882 ...... 86 Minawood Pty Ltd v Bayside CC (Red Dot) [2009] VCAT 440 ...... 10, 95 Moorabool SC v Ethanwray Developments Pty Ltd (includes Summary) (Red Dot) [2016] VCAT 191 ...... 40 Muto v Secretary to the Department of Transport, Planning and Local Infrastructure & Ors [2014] VSC 619 ...... 52 Mutsaers v Manningham CC [2010] VCAT 1258...... 63 Ozzi Trade Pty Ltd v Hume City Council [2016] VCAT 1876 ...... 98 Pace Developments v Port Phillip CC (includes summary) (Red Dot) [2012] VCAT 1277 ...... 79 Page & Anor v Manningham City Council [2010] VSC 267 ...... 34 Papas v Whitehorse CC (1998) 1 VPR 76 ...... 83, 84 Hall v City of Doncaster and Templestowe (1992) 10 AATR 68 ...... 84
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Pearcedale Properties Pty Ltd v Casey CC (Red Dot) [2009] VCAT 1547 ...... 17 Plaintiff S157 /2002 v Commonwealth [2003] HCA 2; 211 CLR 476; 195 ALR 24; 77 ALJR 454 ...... 44 Pomona Farms v Grampians Wimmera Mallee Water Authority [2011] VCAT 1378 ...... 112 Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 ...... 44 Queensberry Hotel Pty Ltd v Minister for Planning and Community Development [2013] VCAT 444 ...... 41 Ramholdt v Planning Panels Victoria [2004] VCAT 2432 ...... 7 Ramjee v Manningham CC (Red Dot) [2020] VCAT 1 ...... 91 Roads Corporation v Latrobe CC (Red Dot) [2016] VCAT 1167 ...... 85 Rosemary Zumpano v Banyule City Council and others [2016] VSC 420...... 82 Rozen v Macedon Ranges SC (includes summary) (Red Dot) [2009] VCAT 2746 ...... 71 Rozen v Macedon Ranges SC [2007] VCAT 1814 ...... 67, 70, 71 Rumpf v Mornington Peninsula Shire Council [2000] VSC 311 ...... 63 Rutherford & Ors v Hume CC (includes summary) (Red Dot) [2014] VCAT 786 ...... 96 Secretary to the Department of Business and Innovation v Murdesk Investments Pty Ltd [2011] VSC 581 ...... 15 Secretary to the Department of Planning and Community Development v Muto (General) (Correction) [2011] VCAT 328 (4 March 2011) ...... 51 Secretary to the Department of Planning and Community Development v Muto (General) [2010] VCAT 1327...... 49 Secretary to the Department of Planning and Community Development v Muto (No 4) (Review and Regulation) [2013] VCAT 1180 ...... 51, 52 Seers v Macedon Ranges SC (Red Dot) [2016] VCAT 1198 ...... 33 Sgarlata v Mornington Peninsula SC (Red Dot) (includes Summary) [2011] VCAT 786 ...... 62 Sheradar Pty Ltd v Casey CC (includes Summary) (Red Dot) [2011] VCAT 1414 ...... 106 SMA Projects Australia Pty Ltd v Yarra CC and Ors [2013] VCAT 107 ...... 12 Stanley Pastoral Pty Ltd v Indigo SC (Includes Summary) (Red Dot) [2015] VCAT 36 ...... 12, 13 Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505 ...... 10, 99 Stupak v Hobsons Bay CC (includes Summary) (Red Dot) [2011] VCAT 618 ...... 77 T C Rice Pty Ltd v Cardinia SC (Red Dot) [2019] VCAT 74 ...... 12, 41, 59 Taranto v Glen Eira CC (Includes Summary) (Red Dot) [2015] VCAT 1904 ...... 82 Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor (includes summary) (Red Dot) [2010] VCAT 1226 ...... 108 Telstra Corporation Limited v Hornsby Shire Council (2006) 148 LGERA 124 ...... 67 The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520 (29 March 2011) ...... 59 Thirteenth Beach Coast Watch Inc v Environment Protection Authority and Anor [2009] VSC 53 ...... 87 Three Pillars Property Group v Brimbank CC (includes Summary) (Red Dot) [2012] VCAT 368 ...... 21 TJBP Pty Ltd v Brown & Ors; Mornington Peninsula Shire Council v Brown & Ors [2013] VSC 173 ...... 92 Trethowan v Mornington Peninsula SC & Ors [2002] VCAT 1377 ...... 76 Vu Ho v Greater Dandenong City Council [2013] VSCA 168 ...... 39 Water Infrastructure Group Pty Ltd v Pyrenees SC (Red Dot) [2012] VCAT 400 ...... 112 Waterfront Place Pty Ltd v Port Phillip CC (Includes Summary) (Red Dot) [2014] VCAT 1558 ...... 81 Western Region Water Corporation v Rozen and Anor [2008] VSC 382 ...... 71 Western Water v Rozen and Anor [2008] VSC 382 ...... 72 Westfield Limited v Manningham CC (includes Summary) (Red Dot) [2011] VCAT 1341 ...... 10, 67, 74 Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049 ...... 109 Willis v Yarra Ranges SC (Red Dot) [2016] VCAT 407 ...... 45 Wilson & Anor v Harrison & Anor [2012] VSC 404 ...... 37 Wilson & Anor v Harrison & Anor [2012] VSC 64 ...... 37 Windsor Hotel Holdings Pty Ltd v Minister for Planning (includes summary) (Red Dot) [2012] VCAT 1203 ...... 64 Wodonga CC v Kiene (Red Dot) [2009] VCAT 81 ...... 103 Woldeyes v Brimbank City Council [2016] VSC 639 ...... 54 Ye v Boroondara CC [2015] VCAT 1051 ...... 8, 79, 81
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