Dance v Colac Otway SC [2024] VCAT 443 which addressed the issue of ‘integrated decision making’ in instances where the Tribunal is confined to only considering certain permissions. In this matter an objector appeal was lodged against a group accommodation proposal which triggered permits under the RCZ, EMO, BMO and SLO4, but where review rights were only available to third parties under the RCZ and SLO4. The Tribunal made a number of comments about the trouble in considering only ‘half’ of the permissions sought, stating:
5. There was complexity during the hearing of this proceeding. This is because only two of the four planning controls provide the opportunity for Mr and Mrs Dance to seek a review of the Council’s decision. As already explained, this application for a review of the Council’s decision correctly limits itself to issues associated with the planning controls that are reviewable. This situation may seem straightforward but, in an omnibus style of permit application where all the necessary planning permissions are being sought, it is difficult to consider the relevant planning permissions and the associated relevant planning policies without being cognisant of the extent to which the other planning permissions and their associated relevant planning policies are intertwined and integrated. Overall, the planning permissions and policies have integrated considerations and they all influence the overall acceptability of the proposed land uses and development.
10. We have decided that planning permission could be granted pursuant to the RCZ and the SLO4. The reasons why we have reached this conclusion are explained later. Put simply, we find the proposed development is acceptable within this area of significant natural beauty. However, granting permission under these two planning controls is not appropriate in the absence of certainty that permission will also be granted under the EMO1 and the BMO. We explain why later in these reasons.
13. In our overview, we stated that granting planning permissions under the RCZ and the SLO4 is not appropriate in the absence of certainty that planning permissions will also be granted under the EMO1 and the BMO for the amended proposal before us. Whilst the Tribunal’s jurisdiction is limited to a review of the RCZ and the SLO4, it cannot be ignored that the permit application as a whole is seeking multiple permissions including under the EMO1 and the BMO. The Tribunal’s limited jurisdiction creates something akin to an artificial demarcation in this planning application in a planning system that otherwise encourages omnibus planning applications capturing all the necessary planning permissions. The Respondent permit applicant has appropriately lodged an omnibus permit application, which the Council has considered and decided to approve, granting all the necessary planning permissions. It is the Tribunal’s limited jurisdiction that creates the complexity for the parties in terms of what is relevant and what is not relevant in this proceeding, including in any final order issued. It also creates complexity for the ultimate outcome sought by the Respondent permit applicant and the Council – being one permit for the whole proposal as was sought in the omnibus planning application.
14. We have decided to issue an Interim Order that will:
- Enable the Respondent permit applicant to seek the necessary amendments to the permit application, and
- Enable the Council to consider the amendments sought to the planning permissions required under the EMO1 and the BMO for this amended proposal.
The Tribunal then spent considerable time analysing the limitations of the Tribunal’s jurisdiction in a section 82 proceeding and the complexities posed. Notably the Tribunal stated:
25. At the moment, this complexity in the Victorian planning system only arises in the context of a section 82 review to the Tribunal. If no section 82 review proceeding is lodged, one permit would issue. The Myers decisions have introduced a school of thought that Councils may need to move away from thinking about a permit in the singular, and that multiple permits may be necessary to distinguish between the planning permissions that are, and are not, exempt. For responsible authorities and permit holders, this has the possibility of creating the concerns expressed in this case – of two permits for differing permissions, possibly containing some of the same conditions and different expiry dates, and therefore confused expectations as to when various aspects of an approved development must be undertaken and completed. Furthermore, when the Tribunal has amended a proposal in a section 82 review proceeding, there might also be two inconsistent permits with differing conditions, plans and other documentation creating practical uncertainties for all parties, e.g. which approved development will proceed. Neither the Council nor the Respondent permit applicant is compelled to reconcile two such permits through the PE Act, and Respondent permit applicant suggests this situation could be further complicated if the land is subsequently sold with two permits for differing developments. Overall, this does not create certainty about the development that will be constructed for any of the parties. This outcome would appear to be at odds with the objective of planning in Victoria for the orderly use and development of land. For these reasons, there can be benefits for all parties if a single permit is issued for all the required planning permissions.
Of note to that in issuing its interim Order the Tribunal provided the parties four months to report back to effectively allow an amendment application to the BMO and EMO to be run.
Boutros v South Gippsland SC [2024] VCAT 395 concerned the third party notice and review right exemption within the C1Z for properties not within 30 metres of a residential zone, hospital, education centre, or a PAO for the same. The permit applicant, and Council, argued that only the one residentially zoned property which was within 30 metres of the Review Site had notice and review rights under the zone and that residentially zoned properties beyond 30 metres did not. The Tribunal disagreed stating:
43. Therefore, where land the subject of the permit application is within 30 metres of land which is in a residential zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre – the exemption in the first sentence is ‘turned off’ and does not apply at all.
Jordan v Baw Baw SC [2024] VCAT 444 concerned an application for a dwelling within the FZ. The Tribunal had reason to consider the requirements of clause 35.07-2 and particularly the requirement that access to the dwelling, small second dwelling or rural worker accommodation must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles. An argument arose as to whether the internal driveway from the street constituted a ‘road’ and whether it was ‘all-weather’. The Tribunal stated:
41. In context, the requirement is that access to the dwelling must be ‘via’ an ‘all weather road’. Where something is required ‘via’ another thing, that is ‘by means of’ (employing the ordinary meaning of ‘via’), does not necessarily require a direct relationship between both subjects. In other words, the means of access to a dwelling can occur via an all weather road without direct access to the dwelling occurring only by means of an all weather road.
42. Properly interpreted, the first requirement of clause 35.07-2 requires that the access to the dwelling, being the internal driveway from the property boundary to the dwelling, is itself accessed from an all weather road and does not require the means of internal access to the dwelling, being the internal driveway to be the all weather road referred to in the requirement. This is because the access to the dwelling is ‘via’ an all weather road and not ‘on’ an all weather road.
On a separate point the Tribunal was also asked to determine if the application had lapsed due to failure to provide requested information within the lapse date specified on an RFI. The Tribunal stated upfront:
59. On the facts of this matter, Council made a decision to grant a permit approving the proposal subject to conditions on 7 December 2023. If, as the applicants contend, the permit application lapsed prior to the making of the decision by Council on 7 December 2023, section 4(2)(b) of the VCAT Act operates to make that decision one that is reviewable under s.48 of the VCAT Act. Accordingly, even if the permit application lapsed prior to the making of the decision by Council, the very act of making a decision (even one that was beyond the power of Council because the permit application had lapsed) constitutes a decision that is reviewable under s.82(1) of the P&E Act (subject to the limitations in s.82(3) of the P&E Act).
60. Therefore, even if on the facts of this matter the permit application lapsed, Council’s decision is not legally void for the purposes of invoking the Tribunal’s jurisdiction under s.48 of the VCAT Act.
61. Arguments about whether the permit application lapsed are irrelevant to the continuance of this proceeding. Subject to the limitations to the Tribunal’s jurisdiction that arise because of the operation of s.82(3) of the P&E Act, the Tribunal is seised of jurisdiction under s.48 of the VCAT Act.
Little v Darebin CC [2024] VCAT 394 concerned an objector appeal to a development of three dwellings.The Tribunal made this comment in relation to the question of whether eaves needed to be within the Standard B20 envelope to be compliant:
26. I do not accept Mr Little’s submission that a proper reading of the text and diagrams in the ResCode Standard B20 (north-facing windows) requires the factoring-in of the requirement that any relevant eaves forming part of the proposed dwellings must stay within the ‘dotted lines’, in a way that makes this aspect of the proposal non-compliant with Standard B20. If the draftpersons of Standard B20 wished to take the approach that the far edge of any eaves must be the measuring point for whether or not a proposed new development complies with the ‘dotted line’ shown in the Standard B20 diagram, such draftpersons could have very easily said so in the relevant text in Standard B20, but this did not occur. Furthermore, I find that where Standard B17 does expressly require any eaves to be disregarded, it makes sense to do likewise with Standard B20. Whilst I say this more as a passing comment, I also note that Mr Little’s interpretation of Standard B20 is the opposite to my understanding of ‘standard industry practice’ with how Standard B20 is applied. I otherwise note that Council has proposed (and the permit applicant does not object to) the new Conditions 1(u) and (v). These conditions in a sensible way essentially require the whole roof to incorporate eaves and any plans put forward for endorsement to clearly comply with Standard B20.
Maple Media Pty Ltd v Monash CC [2024] VCAT 399 concerned the expiry provisions for signage and reinforced previous findings of the Tribunal that the 15 year expiry provided on such permits governs the ‘life’ of the permit and that in absence of a condition to the contrary, the expiry provisions within s68 of the Planning and Environment Act 1987 still applied.
Lastly Ware v Glenelg SC [2024] VCAT 460 concerned the question:
On the proper construction of condition 13 of the Incorporated Document referred to as the Portland Wind Energy Project: Cape Bridgewater Wind Energy Facility, Cape Nelson Wind Energy Facility, Cape Sir William Grant Wind Energy Facility Incorporated Document Glenelg Planning Scheme, April 2003:
Can the Tribunal determine that there has been a breach, or ongoing breach, of condition 13 of the Incorporated Document in circumstances where the Minister for Planning made a decision on 24 February 2024 that, for the purposes of condition 13 of the Incorporated Document, she is satisfied that the Wind Farm complies with the New Zealand Standard Acoustics – The assessment and measurement of sound from wind turbine generators (NZ6808:1998)?
Reference was made to the Supreme Court decision of Uren V Bald Hills Wind Farm Pty Ltd [2022] VSC 145 which effectively found in a similar case that the Ministers decision only related to that particular time. The Respondent permit applicant submitted that this decision was incorrect, whilst the Minister indicated they had not formed a concluded position on this question. The Tribunal made no findings but listed the matter for a preliminary hearing before a Deputy President. One to watch out for, for those in the renewables space.
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.
