For our part, Glossop enjoyed another busy month of appearances either as an advocate (Hew Gerrard) or expert planning witness (John Glossop). Hew represented the permit applicant in Moworks Vic Pty Ltd v Hobsons Bay CC [2024] VCAT 913 which is of some interest for the Tribunal’s refusal to accept a consent order due to the Council’s unwillingness to provide to the Tribunal its reasons for now supporting the grant of the permit. The Tribunal remarked:
4. On 12 September 2024, the parties filed a request for orders by consent directing the grant of a permit, based on the notice plans and agreed conditions. The parties were requested to provide reasons justifying the request. A response was provided, however, information relied on by the responsible authority in changing its position (from refusal to approval) was not provided to the Tribunal on the basis that it is privileged.
5. The parties are requesting an order relying on the Tribunal’s power under s 93 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). In AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources (‘AGL Loy Yang’) the Tribunal said:
[18] … in making consent orders to give effect to a settlement in a review proceeding, VCAT is primarily exercising the power under s 93 of the VCAT Act. It is not formally determining the application on its merits pursuant to the enabling enactment that gave rise to the decision under review, but rather it is considering the appropriateness and efficacy of the settlement as a matter of justice.
6. Then at paragraphs 25, 27, 28 and 29:
[25] In most instances, in exercising the discretion under s 93 in review proceeding, VCAT need do no more than consider whether the settlement appears to be generally satisfactory and within the range of acceptable outcomes on the material before it, having regard to the subject matter of the proceeding and the broad nature of the decision under review, and that there is nothing overtly wrong or odd about it. VCAT therefore still has an important role to play in providing a ‘check and balance’, albeit in many cases to a relatively cursory level.
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[27] If the settlement is within the broad range of acceptable outcomes on the material before it, VCAT should not lightly interfere…….
[28] … VCAT is not a rubber stamp for any or all consent orders placed before it to finally resolve a proceeding.
[29] VCAT can still make the ‘correct or preferable decision’ in giving effect to a consent order under s 93 of the VCAT Act in a review proceeding. It is still the preferable decision if it is within jurisdiction, reflects an agreement reached by the parties to resolve their own dispute without duress, and where the outcome is within the broad range of acceptable outcomes on the material before VCAT …
7. The underlining and bolding in the above passages reflect my emphasis.
8. It is difficult to see how the Tribunal can direct the grant of the permit, as requested by the parties, without the information that the responsible authority has sought and found necessary to change its position. The responsible authority made no secret of the fact that it relied on that information but would not provide it to the Tribunal under the shield of privilege.
9. Such an approach reflects a lack transparency in decision making. It shows a lack of understanding of the Tribunal’s role in exercising its powers under s 93 of the VCAT Act. It puts the Tribunal in an untenable position of giving effect to consent orders without the information that the responsible authority found important. And as suggested in the reasons in AGL Loy Yang, it is difficult to see how the Tribunal can consider ‘the appropriateness and efficacy of the settlement as a matter of justice’.
10. Given the absence of the information available to and relied on by the responsible authority, I am not prepared to give effect to the request to grant the permit.
Other decisions of interest last month were:
Tully v Moonee Valley CC [2024] VCAT 908 which involved a secondary consent application to roof a rear pergola constructed as part of a two dwelling development. Council refused the request on the basis it was of material consequence to the planning control as it meant the garden area requirement was no longer met. The Tribunal disagreed that the garden area requirement was still mandatory stating:
19. I note that two paragraphs underneath the heading ‘Enduring Burden of a Planning Permit After Completion’, Council’s written submission seeks to rely on/leverage off the landmark decision of Benedetti v Moonee Valley City Council [2005] VSC 434. That Supreme Court decision (together with Box v Moreland CC (Red Dot) [2014] VCAT 246) essentially stand for the proposition that where a planning permit includes the type of ‘Condition 2’ requirement as is found in the Permit here (see my explanation of this type of condition further above), then this requirement continues to apply even:
- After the approved development is built.
- If an approved dwelling is subdivided and that dwelling’s own lot is above 300 sqm in size, which would ordinarily mean that no planning permission is needed for alterations to the dwelling.
20. So on the one hand, on the facts here, I do not query Council’s position that Condition 2 of the Permit continues to operate and hence it is very appropriate that the applicant has (to comply with Condition 2) sought ‘secondary consent’ permission from Council, where the applicant wishes to roof the currently open rear pergola.
21. On the other hand, in the circumstances here, I find that it is misguided and incorrect for Council to simply assume that the GRZ ‘mandatory minimum garden area’ requirements continue to apply in a mandatory way to this ‘secondary consent’ application, in the same way that they did when the original permit applicant sought permission to develop the two dwellings on a lot.
22. That is to say, I find that the ‘mandatory minimum garden area’ requirement arising from the GRZ provisions is not an enduring requirement like the relevant planning permit conditions. Rather, the ‘mandatory minimum garden area’ requirements were simply mandatory planning scheme controls to simply be applied at the time of the original planning permit application.
23. I am unaware of any text in the relevant ‘mandatory minimum garden area’ provisions in the GRZ which give any hint or indication that such provisions in effect have a ‘mandatory indefinite life’ after the approved development is actually built. If the draftpersons of the GRZ had intended that such provisions needed to be applied in a mandatory way not just to the original planning assessment but then over the life of the as-built approved development, this could have easily been spelt out in the relevant text (but this is not the case).
24. Similarly if you only focus on previous cases which involve this type of ‘secondary consent application’, I am unaware of any previous VCAT or Supreme Court decision supporting Council’s preferred position that the ‘mandatory minimum garden area’ requirements have a mandatory on-going and indefinite operation.
25. For the removal of any doubt, I accept that when Council is exercising its discretion with this type of ‘secondary consent’ application involving a back yard area, it can still review (as one of various practical considerations) whether the proposed alteration would reduce the amount of ‘garden area’ below the relevant benchmark area. This point is that this should not be treated as a ‘mandatory requirement’, but rather one of potentially a variety of practical planning considerations which the Council would then weigh up.
SGL v Melton CC [2024] VCAT 894 concerned a declaration as to whether proposed YMCA facilities required a permit for their use and development or were exempt being carried out ‘by or on behalf of’ the Minister for Education consistent with the 1988 Order that planning schemes are not binding upon certain Ministers. The land subject of the proceeding was owned by the Minister with the YCMA being the lessee. The applicant contended:
52. The applicant contends the use and development of the land for the YMCA Facilities are not and have not been carried out ‘by or on behalf of the Minister’. Thus, the YMCA Facilities require planning permission, and the YMCA should be required to submit a retrospective application for such permission. Such a process would enable the community to properly participate in consideration of the scope and intensity of uses of the YMCA Facilities. In addition, matters such as amenity impacts and restrictions on operations could be considered.
53. The applicant says the various leases:
- do not suggest the use is carried out ‘by or on behalf of the Minister’;
- do not provide for unilateral termination by the Minister;
- identify the uses that are permitted and the hours in which those uses can occur, but does not require the tenant to deliver the permitted uses;
- prohibit uses that are not permitted and specifically identify a number of non-permitted uses that could impact on the school programs, reputation, students or property;
- do not specify any arrangements for accountability to the Minister for operation of the services;
- recognise that specific approvals and consents may be required to conduct the uses and clearly recognises the tenant’s responsibility for such, by stating that “the Tenant at its Cost must obtain, maintain and comply with all consents or approvals from all Authorities which from time to time are necessary or appropriate for the Permitted Use’; and
- provide that the tenant must pay the Minister’s costs of and incidental to those consents.
54. The applicant says that it now appears that between 2013 to 2018 there was no lease in place for Kingswim, the operator of the aquatic centre. Therefore, the modifications to the depth of the pool were done without approval from the landowner. Accordingly, the modifications to the depth of the pool are not works undertaken by or on behalf of the Minister and thus require a planning permit.
55. The applicant highlights the funding for expansion works to include the changes in the depth of the pool and expansion to the footprint of the after school care building was likely by the tenant being, YMCA.
56. The applicant accepts the Minister can enter into a lease under s 5.2.4 of the ETR Act. However, the applicant says the dispute is about the ability to enter an exclusive lease with a third party and whether that is deemed to be acting on behalf of the Minister. Further, whether or not the uses currently occurring at the land actually fit the underlying purpose at s 1.1.1 of the ETR Act.
57. The applicant says there is no evidence of a direct relationship outside the lease agreement and the use occurs outside any Constituted School land or School Council. The applicant contends that the use of the land by YMCA does not represent a direct representative interest or relationship with the public land manager, the Minister and thus does not meet the criteria outlined in Planning Practice Note 2 Public Land Zones (‘PPN2’).
In response the Tribunal found:
124. I start with the use of the YMCA Facilities namely, the aquatic centre, the YMCA ELC and the after school care service. Each of these services readily fall into s 1.1.1 of the ETR Act. The YMCA ELC and after school care provide early childhood education and care as defined in the ETR Act. Alternatively, the YMCA ELC provides a service that is associated with early childhood education and care because it is provided to children under compulsory school age or provided to benefit the community.
125. The aquatic centre is used by students of the school during both school hours and core hours as approved by the principal of the school. Swimming classes are also offered to other members of the community including toddlers, school age students in general (not only from Kororoit Creek primary school). The ability to swim falls within ‘further education’ contemplated by the ETR Act which is defined to include education programs that lead to the development of knowledge and skills that are not specific to any particular occupation.
126. In light of the ETR Act, the funding of works and ‘exclusive leases’ is beside the point. There is nothing in the ETR Act that prevents the Minister from entering into an exclusive agreement for the use of Ministerial land provided that such use falls within the purposes of the ETR Act. In fact when examined in detail, it is difficult to see how the purposes of the ETR Act could readily be realistically delivered in the absence of commercial arrangements or exclusive arrangements.
127. Having regard to the above, I find that the uses of the YMCA Facilities on the land are uses on behalf of the Minister and are consistent with ss 5.2.4 and 5.2.7 of the ETR Act.
128. Moving now to the development of the YMCA Facilities, I simply note the powers of the Minister under the ETR Act without repeating them. It should be noted there is no contractual relationship between the Minister and the YMCA with respect to the development. The development of the YMCA Facilities is an arrangement between the Minister and Axiom. It is the Minister that has sought to develop the 11 schools and include the YMCA Facilities at the Kororoit Creek Primary School. The Minister has chosen to include those facilities at certain schools, in his/her absolute discretion.
129. In light of the above, I conclude that the development of the YMCA Facilities at the Kororoit Creek Primary School was carried out on behalf of the Minister.
60 RAZ Pty Ltd v Frankston CC [2024] VCAT 892 concerned two applications for the development of adjacent properties each with four dwellings within proximity to the Frankston MAC but within an SBO. As stated by the Tribunal:
17. These proceedings highlight the tension brought about between the encouragement provided by the planning scheme for housing growth and diversity with medium density housing and flood hazard and the risks posed from flooding, which in this case is from stormwater drainage.
In this matter, the proposed dwellings themselves would not be subject to inundation due to raised floor levels and the occupants would be safe from flooding, however the surrounding road network would be subject to flooding. The Tribunal refused a permit stating:
109. Flood behaviour, as outlined earlier, is such that, once the sites are developed with raised ground and floor levels including a freeboard of 300mm, the occupants will be safe from flooding whilst on the sites. They will be able to remain in their dwellings and be able to move around the curtilage of the dwellings without risk to safety. In this regard, it could be said the proposals are compatible with the flood hazard and local drainage conditions.
110. However, Carder Avenue will be flooded. Flooding will occur quickly with flooding that will be at depth at either end of Carder Avenue and which will occur for up to around 10 to 12 hours. Flood depths vary along sections of Carder Avenue such that it may be possible for able-bodied adults (including emergency services personnel) and children accompanied by adults to navigate. Small cars may navigate parts of the flooded street or may float in deeper sections, but with the absence of fast flowing floodwaters will not float and move in a manner dangerous to life (although with modern vehicles if electronic systems fail occupants may find it difficult to escape).
111. The evidence of Mr Swan was that the typical way that people die with regards to flood depth on access roads is when they attempt to cross fast flowing floodwaters and are swept away. That mechanism does not exist in Carder Avenue.
112. However, floodwaters that are deep, whether that is 300mm, 500mm or 700mm or more are, nevertheless, dangerous for walking because visibility is poor and uneven ground presents a risk of falling.
113. The applicants say that if a permit is not granted because of flood risk, it means the sites will be sterilised from use and development. They say this is not a useful outcome and one contrary to strategic directions for appropriate residential growth.
114. The applicants and Mr Swan say that having to remain in the dwellings for up to around 12 hours is not unacceptable given the recent experiences of Melbournians during the Covid-19 lockdowns. Given the occupants of the dwellings will be safe, such an imposition would not be considered overwhelming.
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117. I find the risk posed by flooding in this area to be unacceptable.
118. The effects of not granting a permit on orderly planning in terms of sterilising the sites is also an issue.
119. This is the tension posed by the proposals and the physical and policy contexts of the sites.
120. The sites are within an area where growth has and is anticipated to occur. They are close to the FMAC and surrounded by existing medium density residential development.
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132. Although I note that Mr Swan’s responses appear reasonable and are in accordance with what PPN11 suggests with greater freeboard for situations of greater uncertainty regarding flooding, they are simplistic in that the real effects from climate change on flooding and any response regarding changing the freeboard with floor levels remain significantly unknown.
133. More recent modelling of the effects on flooding from any increase in rainfall intensity has not been undertaken. Melbourne Water has not updated what the effects of climate change on rainfall would mean for local flood hazards.
134. Work to estimate the effects of climate change induced changes to rainfall patterns on flooding has also not been undertaken by the applicants to assist with an improved understanding of flood hazard and its impacts for the sites and accessways.
135. The effects on the design of the proposed dwellings from any additional increases in floor levels to provide a greater freeboard is also unknown.
136. All-together, this does not allay my concerns about what it would mean for safety associated with floodwater depth and duration for the sites and along Carder Avenue and at its respective intersections.
137. In this sense, I am not comfortable that the proposals are compatible with the flood hazard and local drainage conditions.
138. I am not convinced that requiring future occupants of the proposed dwellings on the sites to have to stay in place and shelter for a duration of a flood that is around 10 to 12 hours under current conditions without the prospect of any flood mitigation is acceptable. The difficulty with forcing occupants to stay home for such periods of time is the increased risk associated with the potential need to leave the sites, driven by a myriad of reasons including for work, to collect children, for medical reasons or simply due to the anxiety of loss of the freedom of movement.
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145. Regarding the proposals, I make the observations that they highlight a very real tension between providing for residential development and housing, which is needed and safety from the effects of what is, in this case stormwater flooding.
146. Under current conditions flooding impacts on the sites can be ameliorated by the design of the proposed developments. This is what the applicants can do.
147. However, the effects of flooding within the public realm are beyond the control of the applicants and what the applicants cannot manage. Flooding from inadequate stormwater drainage is of a type that can be mitigated.
148. I consider Melbourne Water, Council and the State Government need to urgently address this constraint because it can be addressed to at least reduce the depth and duration of flooding, account for the influence of climate change to improve the reasonableness of impacts and risk and improve the prospects of achieving more housing within an area close to the FMAC.
AV Jennings Properties Ltd v Whittlesea CC [2024] VCAT 836 concerned a dispute regarding fees charged by the Council for the checking of landscape plans and supervision of landscape works made under the Subdivision Act in relation to a new housing estate. Council had sought fees to be paid on the basis the landscape plans constituted an engineering plan under the Act. The Tribunal found that landscape plans did not constitute engineering plans and therefore Council was not allowed to charge fees for the checking of plans or supervision of works.
Given the often large fees associated with the checking and supervision of landscape plans in new estates (over $300,000 in this matter), this is an important decision for Councils and applicants alike to be aware of.
