Degenhardt v Mornington Peninsula SC [2023] VCAT 31 which dived into the debate about what constitutes natural ground level. As stated by the Tribunal:
52. One line of authority is that the ‘natural’ level means the surface level of the relevant land at the date the permit application was lodged (the first line of authority).
53. The other line of authority is that the ‘natural’ level means the surface level of the relevant land before it was disturbed by human intervention for development such as excavation or filling (the second line of authority).
Both the permit applicant and Council submitted that the first line of authority should be followed with the permit applicant referencing several Tribunal decisions and the Council’s position summarised as:
61. The Council accepted there is logic behind both lines of authority, but preferred the first line of authority because it ‘represents a more equitable approach to enforcement and administration of the [planning scheme]’. The Council said the second line of authority imposes a ‘significant burden’ on permit applicants and the Council if the requirement was in contention.
In this matter the Tribunal decided to follow the ‘second line of authority’ in part as I remain of the view that the first line of authority leaves open the possibility of pre-application manipulation of surface levels, especially by filling (paragraph 64).
Irrespective of which authority is ‘correct’, having two distinctly separate views poses difficulties in the processing of planning applications, tantamount to flipping a coin. The Department perhaps need to take the lead in amending Clause 73.01 to define what is intended by ‘natural’. For what it is worth, Council’s position appears very logical, however perhaps reference could be made to filling undertaken with the last 12 months to reduce at least some of the concern outlined by the Tribunal, similar to references already found within planning schemes (particularly in relation to trees).
JCDecaux Australia Pty Ltd v Melbourne CC [2023] VCAT 32 involves the long running saga of signage on phone boxes within the City of Melbourne. The decision is of interest with respect to the status of parties in a situation where a subsequent amendment to the planning scheme removed third party notice and review rights. What is also of note is that the Hearing is scheduled to run for 40 days between August and November (down on the 48 days originally listed) likely meaning the parties will never want to see a phone box again, though considering the legal history to date, the eventual VCAT decision may not be the end of the matter.
Chapman v Mornington Peninsula SC [2023] VCAT 34 concerned an application for review against Council’s decision to grant a planning permit for works to an existing apartment. The applicants for review in part relied upon the permit applicant not being the owner of the land concerned and challenged the ability of the Tribunal to grant a permit on that basis. Where this differed from similar arguments is that rather than asserting that the application had been made over common property and invoking the Owners Corporation Act 2006, the argument was put that the land concerned was owned by a company and governed by the Corporations Act 2001. Paragraphs 49-87 outline the Tribunals decision making in this regard with the Tribunal ultimately concluding:
83. Even if, as the applicant contends, the balcony area is not ‘common property’ but is property owned by the Company and not the respondent, the findings in Hickey [Port Phillip City Council v Maureen Hickey & Ors [2001] VSC 129] are applicable by reasonable analogy in this matter such that there is no impediment to a person other than the owner of land seeking a planning permit prior to the obtaining consent of the owner for the implementation of the permit.
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.
