There were 60 published decisions of the Tribunal in the Planning and Environment List to cap off 2023. These included the Red Dot decision of Hanson Construction Materials Pty Ltd v Greater Bendigo CC (Corrected) (Red Dot) [2023] VCAT 1341. The matter involved whether a CHMP was required and of particular interest whether a NOD represented a ‘statutory authorisation’ under the Aboriginal Heritage Act. Effectively the permit applicant argued that a NOD was not a statutory authorisation, only a permit was. The Tribunal did not accept this argument stating that Council’s decision was to grant a permit and the NOD was a byproduct of this decision. In this regard the Tribunal stated:
28. Acting under section 61 of the PE Act, a responsible authority ‘may decide … to grant a permit’. A permit is granted upon the making of that decision. A responsible authority does not issue a notice of decision under section 61. A notice of decision is issued under section 64 of the PE Act. Section 64(1) provides:
The responsible authority must give the applicant and each person who objected under section 57 a notice in the prescribed form of its decision to grant a permit.
29. In my opinion, the responsible authority ‘must’ give a notice of decision if it has decided to grant a permit under section 61. A notice of decision can only follow the decision to grant a permit. A responsible authority does not need to ‘decide’ to issue a notice of decision. The PE Act requires it do so. The responsible authority has no choice in the matter.
Another decision of interest was Chu v Whitehorse CC [2023] VCAT 1418 which involved a s87A application for retrospective approval to install a different car stacker system than the one approved. Notably, while the proposed car stacker system still allowed for the appropriate amount of car parking, approximately half of the spaces would only be able to accommodate ‘small cars’. In refusing the application, the Tribunal stated:
19. The height of the lower platforms will result in 50% of the car parking spaces in the basement car park being restricted to small cars. The planning scheme does not contemplate the provision of car parking spaces that are only suited to small cars. In my view, a car stacker should accommodate most typical vehicles in order to fulfil the stated purpose in clause 52.06 Car Parking to ensure that the design and location of car parking is ‘of a high standard, creates a safe environment for uses and enables easy and efficient use’.
…
22. I share the responsible authority’s concern that limiting 50 per cent of the car stacker spaces to small cars will unreasonably and unnecessarily constrain the usability and functionality of the car stackers. This is particularly the case for a development that is comprised of substantial multi-storey townhouses, with 10 of the dwellings containing three or more bedrooms.
With this concluding 2023, there were 751 published decisions in the Planning and Environment List for the year of which 9 were Red Dot decisions. Unsurprisingly, matters which triggered Clause 54 or 55 constituted the bulk of matters heard by the Tribunal.
From our review of published decisions within financial year ‘22/’23, and importantly without seeking to differentiate between individual cases, the municipalities of Monash and Whitehorse were the clear top two municipalities when it came to appeals involving ResCode, representing approximately 40% of all ResCode related matters between them.
More broadly, s77 appeals were the most common ResCode type of appeal in the financial year ‘22/’23 representing nearly two-thirds of ResCode related appeals, with s82 appeals being the next most common representing approximately 20% of all appeals.
With the State Government’s recently implemented and further mooted amendments to ResCode and housing supply policy generally, it will be interesting to see how these affect the nature of VCAT appeals in 2024 and beyond.
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.
