Several rural Councils featured in November, particularly for new dwellings in the Farming Zone, however it was our smallest Council, Queenscliffe Borough Council, with their first appearance in the published decisions of the Tribunal for 2023 that was perhaps of most interest.
Draper v Queenscliffe BC [2023] VCAT 1243 involved buildings and works to an existing heritage dwelling including relocation of the existing dwelling on the lot. Interestingly, no Statement of Significance existed, and the relevant policy document was from 1984. A more recent heritage study had been prepared and adopted by Council but had not progressed any further. The decision is of interest in how the Tribunal tackled this relative ‘void’ in confirmed heritage significance and the differing opinions of the heritage witnesses, as well as for the nature of the application itself.
Other decisions of interest included:
The ongoing saga of Box v Stonnington CC [2023] VCAT 1258 which involved an application for reconstitution of the Tribunal appointed. Justice Woodward heard this particular application and two items of interest were the applicants attack on Green Star describing it as ‘pseudoscience’ and ‘greenwashing’ and a lack of judicial independence from the Tribunal. In response to the Green Star question, Justice Woodward stated:
51. Similarly, I reject Dr Kirkham’s submission that this “vastly understates the true task of the Tribunal”. Dr Kirkham may wish to use this particular proceeding as a vehicle to embark on a “wholesale attack of the Green Star system” and promote the acceptance of alternative schemes. But wishing something does not make it so.
52. In broad terms, all that the Senior Member is required to do in this context is:
receive and assimilate the factual and expert evidence on the extent to which the proposal realises the principles of ESD stated in the planning scheme;
53. It is not incumbent on the Senior Member to reach beyond the evidence adduced in the proceeding by, for example, undertaking his own qualitative and quantitative assessment of whether the proposal realises the principles of ESD identified in the planning scheme.
54. That is not to say that a member is precluded from bringing their own particular expertise to bear in determining issues that engage that expertise, providing they do so in way that is transparent and accords procedural fairness. Members with planning expertise are appointed to the PED for that very purpose. However, they are not obliged to do so and are entitled to rely on the expert evidence and submissions, particularly in relation to issues that may be outside their expertise.
55. Indeed, judges of all courts and tribunals do this routinely in respect of almost every area of medicine, engineering, accounting and other disciplines imaginable. I accept that tribunals like VCAT were established to facilitate the involvement of experts in particular disciplines as tribunal members, but it does not follow that the absence of such a member in a particular case means the Tribunal is unqualified (except where legislatively mandated).
In response to the judicial independence question, Justice Woodward stated:
42. As to the second proposition, the Court of Appeal in Meringnage was doing no more than recognising that fixed-term appointments for members has the potential to impinge in the independence of members from the executive, in a manner that disqualified VCAT from status as a “court of a State” within the meaning of Ch III of the Commonwealth Constitution.
43. I reject the suggestion that these findings can be treated as supporting a conclusion that non-judicial members must be presumed to lack independence in responding to any political issues that may be said to arise in proceedings before them. I agree with GFM that VCAT members in the PED (and, indeed, other divisions) are regularly called on to assess the relevance and impact of so-called political considerations, and can be presumed (absent indications to the contrary, not present here) to do so with an independent and unbiased mind.
Amendment VC243 unsurprisingly continues to be raised in Tribunal decisions. In Moran v Darebin CC [2023] VCAT 1242, the objector submitted that the gazettal of VC243 tips the balance in favour of requiring developments to meet the Res Code standards. He considers that compliance with Standards B6, B28 and B29 should therefore be achieved. The Tribunal responded:
60. I am not persuaded by this argument as the Explanatory Report that accompanies Amendment VC243 states:
Codifying residential development requirements will create a more certain planning permit process and reduce permit approval timeframes. Removing the requirement to consider decision guidelines for a standard where the requirements are clearly met will make assessment against these standards clearer and faster. Codification increases certainty and clarity for applicants and the community about acceptable siting and design requirements for residential development.
61. I find the amendment does not purport to require developments to meet the standards but seeks to provide certainty and clarity about acceptable design and siting responses to Clause 55. In this case, the proposal fails to meet the numerical requirements of Standards B6, B28 and B29 and a qualitative assessment against the relevant objectives and decision guidelines, coupled with consideration of the context of the subject site, must be made. My following findings respond to the Clause 55 standards not met in this proposal.
Perhaps of greater note were Costa v Banyule CC [2023] VCAT 1273 and Wang v Whitehorse CC [2023] VCAT 1292 in which the Tribunal expressed an alternate position to that of D’Andrea v Boroondara CC [2023] VCAT 1148 stating:
32. The D’Andrea decision considers that it would be illogical and impossible to have no discretion over neighbourhood character outcomes and then to go ahead and apply that discretion and carry out an assessment. I do not share this opinion. Planning decision-making can be challenging, and this situation is evidence of this. There are multiple objectives throughout clause 55 that require consideration of neighbourhood character. Accepting some clause 55 objectives are met because the relevant standard is met does not negate the need to consider the remaining clause 55 objectives and exercise the general discretion that applies through the zone provisions.
[Costa]
13. The planning scheme acknowledges the potential for complexity in decision-making. Clause 71.02-3 acknowledges the Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision-making. It instructs decision makers to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. So, there is acknowledgement of the potential for conflicting objectives in the planning scheme, and this is now evident in clause 55. For example, meeting standard B17 means that objective at clause 55.04-1 ‘to ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings’ is met. Yet, a design must also meet the following neighbourhood character objectives at clause 55.02-1 that are not codified:
[Wang]
The issue of underdevelopment was again considered this time in the Postcode 3081 area within Banyule in Simons v Banyule CC [2023] VCAT 1277. The proposal involved a three storey townhouse development in the RGZ where the schedule had been varied to allow development of up to five storeys. Of note Council had issued an NOD for the development with the development having the support of Council’s strategic planners. The Tribunal found against the proposal in part stating:
21. I acknowledge council’s strategic planning department views that apartment development is welcomed but it was their view that the ‘market for a higher density outcome is not there yet’. I do not agree however with the sentiment that the ‘market for a higher density is not there yet’ It is my view that, the planning scheme provides for and plans for change. In this case, the planning authority decided to apply a higher order residential zone that permits a higher level of development, up to five storeys and identified that the area is for urban renewal. Such change will only happen when decision makers require development to comply with the provisions and vision of the planning scheme.
31. Setting a vision in a planning scheme is planning for the future. The purpose of a planning scheme is ‘to provide a clear and consistent framework within which decisions about the use and development of land can be made’[10]. The planning scheme informs me that the vision and expected level of development for the review site is one of contributing to urban renewal, higher density up to five storeys, more diverse housing, encouraging site consolidation and discouraging underdevelopment. Contrary to many other residential zones, the planning scheme does not ‘put the brakes on’ the development of this site but encourages development and discourages underdevelopment. The significance of these provisions cannot be ignored.
Lewis v Glen Eira CC [2023] VCAT 1319 involved an appeal against a condition of a two lot subdivision requiring payment of a public open space contribution. With respect to the use of the term ‘unlikely’ in the relevant exemption at Clause 53.01-1, the Tribunal stated:
23. Amongst the cases cited by the parties was Perera v Casey CC,[6] a case in which I summarised my understanding of the principles that have been established by various preceding cases, as well as setting out my views on two specific issues. In that case I stated as follows:
22. In short, I understand the cases to establish the following:
What is important is the objective opinion of the responsible authority, and the Tribunal on review, and not the subjective intentions of the landowner;
b. Whether further subdivision is or is not unlikely is to be assessed objectively based on the physical facts and circumstances of the subject land (including site constraints) and its surrounds and the planning context of same, including any planning controls and policies that guide future development;
In a temporal sense, there is no warrant to confine what is meant by ‘future’ to a defined period of months or years. However, the greatest weight must be given to the present site context, controls and policies; and
Whether something is “unlikely” is not the same as whether something is impossible – some cases have referred to it meaning ‘improbable’.
23. I agree that in the context of this exemption, the bar is not so high as to say that in order for a further subdivision to be “unlikely” it must be ‘impossible’. However, I do not agree with the Council’s submission that by extension, this only requires the Council to be satisfied that the further subdivision is ‘possible’. These are two sides of a coin – possible or not possible – that do not take account of the likelihood of the further subdivision of each lot. This is important because the exemption refers to whether it is “unlikely” that each lot will be further subdivided. The term “unlikely” imports a notion of probability, not simply possibility. Something might be possible but still be unlikely. That is why I think that the correct approach is to consider whether it is probable that each lot will be further subdivided.
24. I also agree that there is nothing in the exemption that confines the future time period that is to be considered in making this decision. However, I think that there is a danger in approaching this as broadly as the Council has expressed – the likelihood (at any point in the future) of the further subdivision of the land – because this runs the risk of becoming meaningless. What exactly does one take into account? Does one speculate how the Land might be zoned in the future or what policies might apply in the future?
25. Viewed in this light, whilst there is no temporal limit imposed in the exemption, in my view what needs to be considered are the provisions and policies of the Scheme as they presently stand, along with the existing physical context of the site and its surrounds, mindful that such physical context might change in the future in accordance with what is presently sought by the planning context of the site.
Lastly, while not a decision of the Tribunal, the decision of Viva Energy Australia Pty Ltd v City of Greater Geelong Council & Anor [2023] VSC 586 is of note, with the Supreme Court having reason to again consider the scope of discretion available to decision makers. In referencing various well known decisions of both the Tribunal and the Court, the Court reaffirmed the findings of 1045 Burke Road. It is worth reading by statutory decision makers.
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.
