Several matters involved costs claims by one or more parties. As would likely be expected in an environment where the default is that each party bears its own costs, many were unsuccessful. However, and without going into the details of why, substantial costs were awarded in Kingston CC v Landtrak Developments Pty Ltd (Costs) [2024] VCAT 524 and Manningham CC v Alpine Developments Pty Ltd (Costs) [2024] VCAT 570 to the tune of circa. $30k and $53k respectively.
However, the decisions related to costs in Hezhou Investment Pty Ltd v Macedon Ranges SC [2024] VCAT 538 and PB Industrial Estate Pty Ltd v Horsham Rural CC [2024] VCAT 542 were of most interest.
In Herzhou Investment Council refused a residential development application with the permit applicant subsequently circulating amended plans and expert landscape evidence. At the Hearing it became apparent that the Council had prepared and made its submissions on the original application material and had not considered the amended plans or evidence. Having considered this ‘on the run’ the Council advised it was satisfied that some of its grounds of refusal had been addressed including in relation to landscaping. The permit applicant sought costs against the Council for the calling of landscape evidence on the basis that had Council considered the amended landscape plan when it was circulated it would have confirmed its acceptance and there would have been no need to call landscape evidence.
Council opposed a costs order arguing among other matters, the three Council officers involved in the application had all left the Council, the initial invoice was dated prior to Council being required to respond to the amended plans, and it was the appearing Council officers first time before VCAT and their general lack of familiarity with PNPE9.
In declining to award costs, the Tribunal stated:
52. Whilst it is regrettable that the planning officer involved in the application was not aware of the amended plans circulated in accordance with the Tribunal’s practice note, even if Council’s advocate had been aware of the amended plans, a party, including a responsible authority, is not required to amend their grounds as a consequence of the circulation of amended plans or following the circulation of expert witness statements, although it is common practice for a responsible authority to do so as soon as their position changes in a matter…
53. When the Council officer became aware of the amended plans and expert witness statement at the commencement of the hearing, Council’s advocate made appropriate concessions with respect to their grounds in a timely manner and did not seek an adjournment of the proceedings. Instead, she chose to “press on” in difficult circumstances. This ensured an efficient and expeditious hearing and thus, the hearing was not adjourned.
54. The provisions of the planning scheme, including DDO17 specifically requires consideration of landscaping, and it was reasonable for the applicant to engage an expert on landscaping for the hearing to assist the Tribunal in determining this matter. My findings on the merits of the application have clearly relied on the evidence of Mr Atkinson in forming a conclusion that the proposed landscaping is an acceptable response to the provisions of the scheme and the neighbourhood character of the area. As such the calling of evidence in this case was not a waste time nor was the evidence ‘thrown away’. As stated in Council’s costs submission to the Tribunal:
The reality is that sometimes experts are called to ensure the Tribunal has comfort to direct the grant of a permit, rather than just to persuade the Council. There are countless examples of the Tribunal refusing to grant a permit, even in circumstances where the Responsible Authority supports the grant of a permit.
PB Industrial Estate concerned the failure of the Council to provide the Applicant for Review with a copy of its delegate report. Council did not provide its report when requested by either the Applicant for Review or the Tribunal, advising that it was not public information, an FOI request would be required, and it would provide it as part of its PNPE2 material. In awarding costs against the Council, the Tribunal stated:
23. Put simply, I do not accept council’s reasons for refusing to provide a copy of the delegate report to the joint applicant. On 24 May 2024, council was put on notice by the joint applicant’s legal representative that an application for review had been filed and, that the Tribunal required a copy of the council report to progress the application for review.
24. In my view, council’s response is disappointing. Council had notice that an application for review had been lodged and to my mind it is irrelevant whether an initiating order has been provided to the council. Once council has knowledge that an application for review has been lodged, it should comply with any reasonable request by a party for the provision of documents. It could refuse to provide documents if the request was somehow unreasonable. However, in this case the request was not unreasonable particularly in circumstances where council had notice that an application for review had been made to the Tribunal and it was the Tribunal that sought the delegate report.
25. Council’s email to the Tribunal on 31 May 2024 is surprising because it suggests that the practice day hearing was ‘premature’ as council did not have any details of the application for review. The reason for the Tribunal order dated 31 May 2024 was clear. The practice day hearing was scheduled because of council’s refusal to provide the joint applicant with a copy of the delegate report. I also note that by this stage council was fully aware that an application for review had been made and it was now the subject of a practice day hearing.
26. Council’s failure to provide submissions addressing the purpose of the practice day hearing is also of concern for the following two reasons:
a. it appears to have deliberately chosen not to comply with a Tribunal order; and
b. notwithstanding submissions to me that it did not understand that written submissions were required, council was made aware from correspondence of the Tribunal that it was required to provide written submissions…
27. I observe the correctness of council’s correspondence to the joint applicant that the delegate report ‘is not public information and would require and [sic] FOI request’ is not free from doubt. Although, for this proceeding I do not need to make any further findings about that correspondence.
In other noteworthy decisions, questions of ‘scope of consideration’ continue to be problematic.
In Laneway Developments Pty Ltd v Melbourne CC [2024] VCAT 501 the Tribunal referenced an earlier Order stemming from a Practice Day Hearing that an application to strike out Melbourne Water’s Statement of Grounds had been refused reproducing in part:
14. Relying primarily on the Tribunal’s decision in Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 119, the applicant submitted that policy can only be considered in the exercise of discretion to the extent that it is relevant, with relevance being determined by the purpose of the control that provides the permit requirement and the purpose of the permit requirement itself. As a general proposition that approach was not disputed by Melbourne Water. The application of the approach in Brunswick Investment (adopted in subsequent other Tribunal decisions) to the present facts is the point of difference between the applicant and Melbourne Water.
15. After considering all the submissions and the relevant provisions of the planning scheme, I am not satisfied at this time that Melbourne Water’s grounds should be struck out because I am not satisfied that consideration of the risk of flooding to the subject land is an irrelevant consideration having regard to the decision guidelines for the Commercial 1 Zone and the Mixed Use Zone.
16. The subject land is partly included in the Commercial 1 Zone. One of the decision guidelines for [sic] relevant to the consideration of use of land within the C1Z includes consideration of the drainage of the land (clause 34.01-8). While accepting flooding risk and drainage is not the same thing, it cannot be reasonably refuted that the flooding risk attributed to land does not have a direct impact on the natural drainage of land and also on the design and adequacy of the any [sic] drainage installations required to manage stormwater, flood water and overland flows on the land post development.
17. Clause 34.01-4 provides that an apartment development must meet the requirements of Clause 58. There is no definition of ‘apartment building’ in clause 73 and no debate about that classification applying to the proposed development occurred before me. Given the description of the development by the applicant as ‘construction of a multi-storey mixed use building for use as dwellings, commercial and retail and a reduction in the statutory car parking requirement’, it is arguable that such a classification may apply.
18. One of the objectives of clause 58.02 – Urban Context is to ensure that the design responds to the features of the site and surrounding area. The decision guidelines for that clause require consideration of an urban context report required to be provided under clause 58.01. Unsurprisingly, an urban context report must include certain site contextual matters including –
Any other notable feature or characteristic of the site.
19. An urban context report is also required to include an assessment of any environmental features of the land. It is not a long bow to conclude that low lying land subject to flood or inundation from flood events may meet the description of an ‘environmental feature’ or at very least ‘a notable feature or characteristic of the site’.
The decision of Strachan v LaTrobe CC [2024], however, best highlights the current predicament the industry finds itself in with the Tribunal requiring 452 lengthy paragraphs of legal analysis to resolve four questions of law at a Preliminary Hearing as to whether a third party was able to raise matters of bushfire consideration, the upshot being that they did not. One wonders what hope a local Council planner has in such circumstances…
On a perhaps lighter note, Hepburn SC v Coward [2024] VCAT 517 concerned a respondents attack on the ability of VCAT to deal with an enforcement order matter. The respondent advanced arguments including inconsistency between planning laws and commonwealth laws and ‘fee simple’ rights as owners of the subject land. Needless to say, in dismantling the respondents’ arguments VCAT found it did have jurisdiction to deal with the proceeding.
Lastly, Darebin CC v Victorian Racing Pigeon Body Inc {2024] VCAT 552 is of interest not just for the insight into the world of pigeon racing but for the Tribunal’s analysis of a declaration proceeding brought as to whether the breeding, keeping, training and racing of pigeons constituted agriculture, domestic animal husbandry, animal husbandry, or an innominate use. The Tribunal found:
75. However, I do not regard that the Land is being used for the purposes of ‘agriculture’. Although the activities of pigeon keeping, training and breeding are in common with the defined use of land for agriculture, I am not persuaded that the Land is being used for the purposes of agriculture: the Land is not being used for the purposes of keeping, breeding and training pigeons. Rather, I have found that the Land is being used for the purposes of pigeon racing, where this land use includes the associated keeping, training and breeding of pigeons.
76. Accordingly, there is an important difference between the land use term ‘agriculture’ and what I have found is the purpose of the use of the Land. This difference is that the use of land for agriculture does not include the racing of the pigeons. The reason why this is an important omission is that I regard the use of the Land for the purpose of pigeon racing to be the reason why the other activities of keeping, breeding and training are occurring on the Land at all. That is, were it not for the pigeons racing on and from the Land, on the facts before me there would be no associated keeping, breeding or training taking place.
77. Whilst I accept that the pigeon races are not occurring all of the time, I do not accept that this makes the pigeon racing component of the Land less important. Rather, in the circumstances before me, I regard the pigeon racing component to be the fundamental reason why the other associated activities are occurring on the Land.
78. Similarly, I find that the Land is also not being used for the purposes of the nominated land use terms of ‘animal husbandry’ and ‘domestic animal husbandry’. Again, this is because neither of these land use terms extend to use of the Land for the purposes of pigeon racing. Again, whilst I accept that there is breeding occurring on the Land, this is occurring as an associated part of the use of the Land for the purposes of pigeon racing; husbandry is not itself the purpose of the use of the Land.
79. Given the reason that I have found that neither ‘animal husbandry’ nor ‘domestic animal husbandry’ is an appropriate characterisation of the purpose of the use of the Land, I need not make findings as to whether pigeons are domestic animals for the purposes of the term ‘domestic animal husbandry’ or whether the term properly includes reference to birds.
80. In short, for the reasons set out above, I find that the use of the Land for the purposes of pigeon racing and associated pigeon keeping, training and breeding, does not come within the nominated land use terms of agriculture, animal husbandry or domestic animal husbandry.
81. Accordingly, I find that the use of the Land for the purposes of pigeon racing and associated pigeon keeping, training and breeding is use of the Land for the purposes of an innominate land use; that is, a land use that is not defined in clause 73.03 of the Scheme.
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.
