Five of these decisions were of note being:
Booth v Strathbogie SC [2023] VCAT 782 concerned a matter involving land within a Designated Bushfire Prone Area. The permit sought triggered ‘use’ and ‘development’ permit triggers under the Farming Zone and all parties generally agreed that clause 13.02 (Bushfire) was relevant to determining the merits of the application given the uses and developments involved. The Tribunal disagreed, however, and with reference to a range of former decisions including National Trust, 1045 Burke Road, Brunswick Investments and Clifftop at Hepburn found:
97. Here regard to clauses 14.01-1S, 14.01-1L and 14.01-2S demonstrates that the policy context for the discretion conferred under the Farming Zone is the preservation of productive farmland and the encouragement of substantiable agricultural land use.
98. Clause 32.07 Farming Zone read as a whole against the background of clauses 14.01-1S, 14.01-1L supports a conclusion that when assessing the use or development permission sought under the Farming Zone the purpose of that assessment is to enquire whether the proposal will support, and not detract from, agriculture.
99. Further, the complete absence in clause 32.07 of any express requirement to undertake any bushfire planning, the lack of applicable performance standards or requirements leads to the conclusion that to the extent that the policy desires bushfire planning to occur on land other than land affected in by BMO, those aspirations of clause 13.02-1S are unfulfilled because of a lack of integration of that policy into the controls triggered under clause 32.07. Whilst the policy may exist, the necessary machinery or control provisions in the Farming Zone do not exist.
100. As can be seen from these reasons, the extent to which any of the considerations under clause 65.01 of the scheme or s.60 or s.84B of P&E Act are relevant to consideration of the permit application is intrinsically linked to the scope of the discretion conferred under the Farming Zone (and the Erosion Management Overlay and clause 52.27). Hence, if clause 13.02 is not relevant to the discretion conferred under the Farming Zone, then it is not a relevant consideration under clause 65.01 or s.60(1)(e) or s.84B of the P&E Act.
101. I note that despite Council submitting that regard must be given to clause 13.02 because of s.60(1)(e) of the P&E Act, no material at all was provided to the Tribunal to establish that the environment would have a significant effect on the proposal or that the proposal would have a significant effect on the environment. If, as submitted by Council, s.60(1)(e) has application independently of the planning controls under the scheme, then the requisite state of satisfaction must be reached as a threshold issue. On the material before the Tribunal which did not include any material regarding the significance of any effects of the proposal on the environment or vice versa, I am not satisfied that the environment would have a significant effect on the proposal, or the proposal will have a significant effect on the environment simply because the subject land is within a designated bushfire prone area under the Building Act 1993.
102. Finally, as to the direction in clause 71.02-3 to endeavour to integrate the range of planning policies ‘relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit…’, that direction requires only consideration and balancing of planning policies relevant to the issues to be determined. Where a policy, including a policy dealing with bushfire, is not relevant to the discretion conferred under the planning control, then such a policy is not subject to the direction in clause 71.02-3.
Two decisions involving consideration of the permit exemptions at clause 62.02 were 696 Geelong Road Brooklyn Pty Ltd v Brimbank [2023] VCAT 752 and West v Boroondara [2023] VCAT 780.
The former related to a ‘proposed front fence and associated landscaping’ with Council principally concerned that the ‘associated landscaping’ was narrower in width than what was sought by the applicable DDO. The Tribunal found that it was only the fence that required permission with the ‘associated landscaping’ constituting ‘gardening’ under clause 62.02-1 and therefore exempt from requiring planning permission.
The latter related to a tennis court fence which, apparently in a relatively poor state, was removed and subsequently replaced sometime after. The Tribunal found that in the particular circumstances and notwithstanding the complete replacement and elapsing of time between the removal of the old fence and erection of the new fence, that the new tennis court represented ‘repairs’ and was thus exempt under clause 62.02-2.
Tivoli House SY Pty Ltd v Stonnington CC [2023] concerned a 7-8 storey building in the Chapel Street Activity Centre. Of interest the land was within an LSIO and much of the Tribunal decision is spent considering whether the proposal would result in unacceptable flood risk impacts. Ultimately the Tribunal found it would concluding:
197. We are not satisfied that the proposed development is consistent with the LSIO objective to minimise the potential flood risk to life, health and safety. Nor are we satisfied that the proposed development is consistent with the floodplain management strategy set out in clause 13.03-1S, to avoid intensifying the impact of flooding through inappropriately located development.
198. The proposed development is a substantial increase in floor area that in turn leads to a substantial increase in employment population in this area of complex flooding, presenting a high risk. While there are objectives within the ACZ1 provisions to intensify development in the Chapel Street Activity Centre, we are not satisfied that, for this site, these ACZ1 objectives outweigh the impacts of flooding risk.
199. Further, we are not satisfied that the proposed flood risk management measures manage the risk appropriately for this development, where the depth and flow of floodwater, affecting access and egress to the property, is hazardous. The review site is subject to high flood risk, well above the DELWP Guidelines safety criteria, for both the Yarra River flood and the Prahran Main Drain flash flood.
200. Our findings about the failure to meet the LSIO objectives particularly relate to the reliance on shelter in place as a flood risk management strategy when the best practice information in the FRM Handbook is that a shelter in place strategy should not be used to justify a new development which increases density in the floodplain.
- In conclusion, we support Melbourne Water in taking a risk-informed approach to land use planning for this proposal. This development should not be approved due to the flood risk associated with this location.
The decision is well worth a read given the increased scrutiny of proposals with respect to flooding considerations.
Parmesvaran Family Pty Ltd v Cardinia SC [2023] VCAT 764 involved a proposed place of worship within a state significant industrial area in Pakenham. Council opposed the application essentially on the sole ground that it was inappropriate for identified state significant industrial land to be used for entirely non-industrial purposes. The application was the first to be considered since the gazettal of Amendment VC215 which amended Clause 17.03 and introduced MICLUP as a policy document. The Tribunal agreed with Council stating:
24. I agree with Council that the designation of the review site and surrounding area as ‘state-significant’ must mean something and the three tier approach to industrial land set out within MICLUP is meaningful. Clause 17.03-3S (State significant industrial land) has as its objective to protect industrial land of state significance. The strategy seeks to protect state significant industrial precincts from incompatible land uses to allow for future growth.
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27. In my view, the approval of Amendment VC215 which now references MICLUP together with Plan Melbourne’s designation of this area as a SSIP elevates its importance to the broader Victorian economy. If state significant industrial areas are utilised for a broader range of non-industrial uses, they can have a negative impact by increasing land values and rents (potentially displacing future industrial tenancies) and potentially impact on day-to-day operations of existing industrial occupants.
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33. I find there is no support in the Scheme for the establishment of a place of worship on this land based on the current planning framework. The land’s designation within a SSIP elevates its significance as an industrial and employment cluster. The proposal is not an industrial land use and will not generate meaningful employment opportunities. Further, there is no evidence that the place of worship will support other nearby industries or their employees.
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.
