Glossop Town Planning enjoyed another busy month appearing before the Tribunal both as an advocate (Hew Gerrard) and expert planning witness (John Glossop). Notably this month, John received favourable decisions in Kilcunda Residents Against Inappropriate Development Inc. v Bass Coast SC [2024] VCAT 617 and W295 Pty Ltd atf 295 Unit Trust v Baw Baw SC [2024] VCAT 612 which together resulted in the approval of 236 new housing lots.
More broadly, in the Planning and Environment List of VCAT July saw 63 reported decisions in total including two which received some media attention being:
Phelan v Port Phillip CC [2024] VCAT 562 which concerned the Middle Park Hotel. The particularly interesting aspect of this case was the calling of ‘surveillance evidence’ by the respondent objector group from a private investigator who visited other venues run by the permit applicant in an attempt to demonstrate that the proposal would raise amenity issues. Describing this approach as ‘very unusual’ and commenting that “SM Martin who has been at the Tribunal full-time for many years cannot recall any other objector taking this type of approach” the Tribunal determined to give no weight to the ‘surveillance evidence’ as it did not relate to the planning merits of the particular proposal before it.
Yusof v Maribyrnong CC [2024] VCAT 716 concerned a fight over whether artificial lawn which had been laid should be allowed in lieu of natural lawn which was stipulated on the endorsed landscape plan. Whilst the comments on The Age article made passionate arguments either way, the Tribunal did not advance to considering the merits, striking out the application for review as having not been properly made and lodged out of time.
In other decisions:
Clause 52.02 has as its Purpose:
To enable the removal and variation of an easement or restrictions to enable a use or development that complies with the planning scheme after the interests of affected people are considered.
However, a permit requirement of this clause is also the creation of an easement or restriction. In Friends of the Surry Inc v Glenelg SC [2024] VCAT 636 the Tribunal had reason to consider whether the Purpose applied to the creation of an easement, and if it did, whether the consideration of use or development that complies with the scheme is mandatory. The Tribunal found:
58. I have found that the purpose of clause 52.02 of the scheme does not apply to the creation of an easement. However, if I am wrong about that, I now consider whether the consideration of a use or development that complies with the scheme is mandatory.
59. First, I note that the two decisions relied upon by each of the parties, Waterfront Place and Mirams. Neither case is on point as neither deal with an application for the creation of an easement.
60. However, in both matters the Tribunal concluded that the purpose of the control is not mandatory or determinative of an application. Rather, it is only one of the relevant factors to be taken into account in reaching a decision.
61. That conclusion is consistent with the function of a purpose in a particular provision or a control. The role of a purpose is to guide and assist in the exercise of discretion under the relevant control. In that sense, a purpose cannot be mandatory in application. When there is no specified purpose, the decision guidelines will guide and assist in the exercise of discretion under the relevant control.
62. In any event, the phrase ‘to enable a use of development that complies with the planning scheme’ does not import the language of a mandatory pre-condition or jurisdictional fact that must be established. The use of the word ‘enable’ imports the notion of facilitating or making possible a use or development. Further, there is no mandatory requirement to articulate or nominate a use or development. Instead, if an applicant wants to gain support from the purpose of clause 52.02 of the scheme, the identification of a use of development may assist with gaining that support from the decision maker. However, it does not follow that the failure to identify a use or development that complies with the planning scheme means that an application under clause 52.02 is prohibited or that a jurisdictional fact has not been established.
63. If I had found that the purpose of clause 52.02 of the scheme applied to an application for the creation of an easement, I find that a consideration of a use or development that complies with the scheme is not a mandatory pre-condition or jurisdictional fact that must be established prior to issuing a permit under clause 52.02.
Karaoutsadis v Hobsons Bay CC [2024] VCAT 702 concerned a side-by-side dual occupancy development where the question of Standard B20 (North-facing windows) compliance was raised. The Tribunal stated:
49. The southern wall of Dwelling 2 has an external wall height of 6.419 metres, so under the standard, requires a minimum setback of 2.69 metres. Where it is within 3 metres either side of the edge of the applicants’ theatre room windows, the first floor is proposed to have a setback of 3.385 metres, measured to the wall face. However, the standard requires the setback to be to the building, rather than to the wall face. Unlike standard B17, standard B20 does not provide that eaves or other similar structures are allowable encroachments. The eave of the study is set back approximately 2.08 metres.
The Tribunal subsequently required compliance with the Standard to be achieved as a permit condition effectively by either increasing the building setback or reducing the depth of the eave. This decision is of interest as it comes only two months after the decision of Little v Darebin CC [2024] VCAT 394 (highlighted in our May recap) where the Tribunal had commented:
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.
Likewise in our May recap we highlighted Ware v Glenelg SC [2024] VCAT 460 which 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)?
In Ware v Glenelg SC [2024] VCAT 727 the Tribunal issued its order in this regard finding that:
Yes, the Tribunal can determine if there has been or is an 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).
Lastly, Central Highlands Water Corporation v Ballarat CC [2024] VCAT 661 is highlighted as one of the more unique matters the Tribunal is on occasion required to consider. This matter concerned a tailings storage facility associated with the Ballarat Gold Mine and essentially whether the proposal would cause unacceptable effects on the environment and human health. Over the course of seven days, the Tribunal was required to consider highly technical evidence from several environmental engineers and scientists in the context where separate approval was also required under the Mineral Resources (Sustainable Development) Act 1990. The Tribunal ultimately found the proposal to be acceptable.
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.
