Two of these were Red Dot decisions, however, being:
- AVC Operations Pty Ltd v Maribyrnong CC (Red Dot) [2023] VCAT 925; and
- Wegg Pty Ltd v Melton CC (Red Dot) [2023] VCAT 957.
AVC Operations Pty Ltd is related in matter to last month’s decision in Tivoli House SY Pty Ltd concerning floodplain management and continues to highlight the renewed importance placed on flood risk. To replicate the summary provided by the Tribunal:
In this proceeding the Tribunal considered a proposal to substantially extend the Anglers Tavern beer garden. The Tavern is located on the banks of the Maribyrnong River and is in a Land Subject to Inundation Overlay (LSIO) under the Maribyrnong Planning Scheme. After considering the purposes of the LSIO and relevant floodplain policy, the Tribunal refused permission.
Clause 13.03-1S of the planning scheme has a strategy to ‘avoid intensifying the impact of flooding through inappropriately located use and development.’
One of the purposes of the LSIO is ‘to minimise the potential flood risk to life, health and safety associated with development.’
The Tribunal said the word ‘avoid’ in clause 13.03-1S and the word ‘minimise’ in the LSIO, rather than the word ‘mitigate’, are indications that the planning scheme is aiming to employ strategies higher in the hierarchy of flood risk management (ie the hierarchy of avoidance, minimisation and mitigation).
The Tribunal found the proposal would result in a substantial and unacceptable increase in the population at risk, being an additional maximum 656 beer garden patrons. The Tribunal did not support evacuation of patrons following flood warnings as the main mitigation measure in the applicant’s proposed flood response management plan.
The decision is of interest because it outlines the relevant policy considerations (paragraphs 83 to 123); considers flood hazard versus flood risk (paragraphs 154 to 157); considers evacuation as a mitigation measure (paragraphs 176 to 183) and considers avoidance via land use planning (paragraphs 184 to 189).
In Wegg Pty Ltd the Tribunal had reason to consider whether the difference in characterisation of a high impact activity in an application versus an approved cultural heritage management plan, was relevant for the purposes of the Aboriginal Heritage Act 2006. The Tribunal found:
This decision is of interest because the Tribunal held that the difference in characterisation as a high impact activity was not relevant to the determination of inconsistency under section 52(3). The characterisation is relevant for determining whether a CHMP is required. What is relevant under section 52(3) is the difference, if any, in the nature and scope of the activity.
With respect to other decisions of interest:
In keeping with a CHMP theme, Duvoux Pty Ltd v Hobsons Bay CC [2023] VCAT 884 concerned whether Council had been provided with a copy of an approved CHMP. While no party disputed that the approved CHMP existed, Council argued it had not received an approved copy as requested in its RFI and the application had lapsed.
Council’s argument in this regard stemmed from it having not been given a copy of the CHMP with the notice of approval from the RAP inserted after the title page. Council had instead received a copy of the CHMP minus this notice of approval and separately an approval letter from the RAP.
Having regard to the legislative framework the Tribunal found that the application had not lapsed and that the notice of approval from the RAP constituted approval of the CHMP. In relation to the need to insert the notice of approval into the CHMP after the title page, the Tribunal found this related to a second step post-approval requiring lodgement of the approved CHMP with the Secretary to the Department.
Box Hill OHP Pty Ltd V Whitehorse CC [2023] VCAT 949 involved a proposed service station in the RGZ. The Tribunal focused on the Purpose to the RGZ in refusing the application. The Tribunal’s comments were of some interest finding that the RGZ zoning and Council policy envisaged residential development of the land and that while ‘local community needs’ would be serviced a likely substantial volume of trade would also come from passing motorists. The Tribunal stated:
36. I acknowledge the sixth purpose of the RGZ is to allow for a limited range of non-residential uses to serve the local community in appropriate locations. I agree with the applicant that non-residential uses, such as petrol stations, are a common occurrence in residential areas along main roads. I also accept that Mr Lee’s needs-based and fuel demand analysis demonstrates the use will service the needs of the local community, as well as passing traffic. I will discuss these matters further below in my findings.
37. However, I question whether the need for a service station outweighs the net community benefit of providing additional housing in a location that has excellent access to services and public transport and is near the Box Hill MAC. I accept Council’s argument that this is the clear vision of their policies.
38. I find zone purposes and local policies, such as Clause 22.03 (Residential Development), clearly state what Council’s intentions are for this area. I find Mr Lees’ analysis and views, through an urban economic lens, primarily focuses on the present and near future. Whilst I acknowledge a new service station will benefit customers who may live in the local area, the proposal is inconsistent with the longer term policy vision in the Planning Scheme.
39. I acknowledge the proposal may satisfy many of the criteria in Clause 22.05 (Non-Residential Uses in Residential Area Policy). However, when taking a wholistic view of all the purposes in the RGZ and policies in the Planning Scheme, I find the benefits to the local community associated with obtaining fuel, convenience goods and a car wash nearby do not outweigh those associated with increased residential development at this location.
40. I am persuaded by Council’s arguments that this is a lost opportunity to provide additional housing in an area that Council has earmarked for higher density residential development. I disagree with Mr Lee that the possible development of approximately 60 dwellings, or 0.5% of the expected delivery of new dwellings, is insignificant, particularly given there are limited areas within in the municipality zoned RGZ. Whilst substantial apartment buildings have been built in the Box Hill MAC, the Planning Scheme also identifies RGZ as areas where increased densities are encouraged.
…
59. The RGZ does not unconditionally allow non-residential uses to establish within the zone, but it expressly requires such uses serve the local community in appropriate locations.
60. I accept that Mr Lee’s evidence demonstrates that there is a market need for a service station, which could be satisfied on the subject site. However, he acknowledges a substantial share of customers would also be ‘passing trade’ travelling along Whitehorse Road who may live outside the catchment. Conversely, the local community can also purchase fuel at the existing service stations nearby or outside the municipality during their daily activities.
61. I find Mr Lee’s analysis does not lead me to the conclusion that departure from the housing policy objectives for increased residential densities at this location is warranted for the reasons discussed above.
Chen v Whitehorse CC [2023] VCAT 971 involved a conditions appeal largely related to ESD conditions imposed and centred on the referral response provided to the application by Council’s ESD consultant. The Tribunal’s critical analysis of the referral response is something to note particularly in the increasingly common practice of adopting specialist ESD comments and often highly detailed recommended conditions verbatim.
In this particular matter, the Tribunal found that the ESD conditions as drafted lacked merit for 10 primary reasons and replaced the detailed ESD conditions drafted with a more simplistic requirement for a revised SDA to be submitted that was generally in accordance with the SDA submitted with the application.
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.
