Camilleri v Nillumbik SC [2002] VCAT 1277 involved a short cases matter regarding the construction of two dwellings. The Tribunal in that matter expressed some frustration at the draft planning permit conditions circulated and the extent of Hearing time (in a short cases context) dedicated to their discussion. In making comments on the draft conditions circulated, the Tribunal stated:
25. Council’s Planning Department should not just unquestioningly include permit conditions which other Council departments might like to be in there. Ditto in relation to the wording of such conditions, if the drafting has been done by others, rather than by a Council planner…
Montclair Realty Pty Ltd v Monash CC [2022] VCAT 1279 involved an application to end four s173 Agreements. Importantly to this matter the Council had advised that it did not agree in principle to the ending of the agreements. Council’s position was that in accordance with an earlier Tribunal decision that as in principle agreement had not been given, no ability to review existed. The applicant argued to the contrary and essentially that the earlier Tribunal decision had ‘got it wrong’ and that any decision of a responsible authority was capable of being reviewed by the Tribunal. The Tribunal in concurring with Council and dismissing the application stated:
27. Having regard to the above cases, a section 173 agreement is a hybrid document with its inception in the PE Act but its obligations are as a private agreement between a land owner and a responsible authority. In my view, this assists in understanding the statutory regime established to end agreements.
28. I agree with the analysis in Anderson, that the Tribunal only has power to review a decision involving a proposal to end an agreement if there has been in principle agreement by the responsible authority to the ending of the agreement. The Tribunal has no jurisdiction if the responsible authority refuses to agree in principle to the ending of the agreement.
…
35. Lastly, I note that the applicant’s submission regarding the analysis in Anderson and council’s decision leaving the Tribunal with no decision to review. In my view, that is the outcome of the process set out in the PE Act for the ending of agreements. However, that does not mean that a responsible authority can exercise its right to refuse its’ in principle agreement capriciously. A detailed discussion of the nature of the power of a responsible authority to refuse in principle agreement to a proposal is set out in Kinchington. I do not need to provide any analysis of this case, only to note that the Supreme Court of Victoria has dealt with the nature and character of such a decision.
Jones v Melbourne CC [2022] VCAT 1335 involved a retrospective application for approval of enlarged and unscreened windows which faced a set of windows on a neighbouring property’s indoor swimming pool. A key point of contention was whether an indoor swimming pool represented a habitable room (particularly whether it was a space of a ‘specialised nature’ and likely frequency of occupation) and thus whether it was protected from overlooking. The Tribunal found that an indoor swimming pool was a habitable room stating:
31. Referring to the planning scheme, I find that whether the room is of a specialised nature is not conclusive as the swimming pool it contains would commonly form part of recreation activities. I also note that using a domestic swimming pool is something that I would consider a normal domestic activity as referred to in the NCCA definition.
32. If I accept the proposition that the room is of a specialised nature, the second part of the consideration is what is critical in this instance, that being whether the room is neither occupied frequently nor for extended periods. The swimming pool’s location inside a room means it has capacity to be used year-round and frequently. It is certainly a room I would expect is used for extended periods of time.
33. I am satisfied that the room is for a recreation use and while it is arguable that it is not of a specialised nature, it is a room that is intended for use for extended periods and may be used frequently. On this basis I find the swimming pool room is a habitable room and the window on its east side is a habitable room window.
Glossop Town Planning enjoyed another busy month appearing before the Tribunal either as an advocate (Hew Gerrard) or expert planning witness (John Glossop). If Glossop Town Planning could potentially be of assistance with any VCAT related matters, please contact our office on 9329 2288 or via email at mail@glossopco.com.au.
