Forty-four decisions in December in the Planning and Environment List at VCAT rounded off 2024 including the Red Dot decision of Scoventure Pty Ltd v Yarra CC (Red Dot) [2024] VCAT 1207. In short, a legal determination appended to the decision discussed the meaning of ‘river corridor’ and ‘Yarra River corridor’ and whether corresponding planning policy was relevant to this application. Of interest also to those who have reason to deal with the Yarra Planning Scheme and particularly the terminology of ‘mid-rise’ often found, the Tribunal also found that mid-rise meant in the realm of 7-8 storeys in the absence of a specific designation in the planning scheme to the contrary.
John Glossop of our office also gave town planning evidence in a slightly unusual matter in Thrum v Greater Shepparton CC [2024] VCAT 1191. Council determined to grant a permit for the use and development of a dwelling, but imposed a condition requiring the permitted dwelling to be relocated to another specified location on the land on the grounds that the location applied for may be subject to adverse amenity impacts from an adjacent rifle range, namely safety risks arising from stray bullets. Of note was that the Review Site did not form part of the buffer/ fallout zone for the Rifle Range and Victoria Police was satisfied with the proposal. The Tribunal found:
43. There are many difficulties with this position adopted by the council.
44. The first is the question of whether it is even open to the council to form this view. Setting aside the historical use of the subject land as a buffer for the RC, it is clear that the RC is currently operating with no reliance on the subject land and has obtained a Certificate to continue lawful use of its land, subject to the conditions of its Certificate. Victoria Police, the approval authority for such certificates, has confirmed that the RC operations can continue in accordance with its Certificate without impacting use of the subject land for a dwelling.
45. The council need look no further than that advice.
46. The council, in submitting that the Tribunal ought not rely on the evidence of Glossop with respect to the RC activities, stated that:
Indeed, it is not understood that Mr Glossop seeks to provide an opinion on that issue anyway, his opinion clearly being predicated upon the correspondence from VicPol.
47. This is entirely appropriate. Just as the council will generally rely on advice from the Environment Protection Authority for environmental matters, or advice from the Head, Transport for Victoria on transport and traffic matters where relevant, it should rely on the Certificate granted by Victoria Police and its advice that the RC can operate without reliance on the subject land and that the use and development of a dwelling on the subject land, in any location, is acceptable from a safety perspective.
48. It is the case that the decision guidelines of the FZ1 include whether the proposal is compatible with adjoining and nearby land uses, which is a relevant consideration. A similar strategy is included in clause 13.01-7S of the Scheme, the objective of which is to protect community amenity, human health and safety while facilitating uses with potential adverse off-site impacts.
49. As noted by Glossop, any potential land use conflict has been removed by the works undertaken by the RC and the buffer now being located completely within its property.
50. The council, and the Tribunal on review, is directed to consider the planning merits of an application and the acceptability of condition 1(a) from a planning perspective.
51. There is nothing in the planning controls or policies applying to the subject land that restricts the use of the land because of the activities of the RC. It is the responsibility of the RC to manage its activities so that they do not impact other properties. The relevant authority, Victoria Police, has confirmed that the RC land can be used in accordance with the conditions of its Certificate, without requiring overshoot permissions from the owner of the subject land.
52. Of course, all risk cannot be removed from a shooting range. Just as all risk cannot be removed from an amusement park or an industrial operation. The way to manage this, however, is to either require the use to cease, or not allow it to commence, or rely on the relevant authority to impose appropriate conditions to mitigate that risk. If it cannot be appropriately mitigated, the use should not proceed. It should not affect the use and development of surrounding land.
53. As noted by Glossop in response to questions, the planning system is predicated on compliance with guidelines and licences and permits and the like – the starting point is whether compliance with the advice of the regulator has been achieved.
54. While the council submits, on the one hand, that it accepts that there will always remain an element of risk, the risks outlined by Pegg in their evidence are highly unlikely and proceed on an assumption that conditions of the Certificate will not be upheld or that people will behave unlawfully. The issue of planning permission generally proceeds on an expectation that people will behave lawfully and operate within the regulatory framework, not outside of it.
55. The position of the council and its expert in this proceeding, if accepted, would lead to a sterilisation of land proximate to rifle range and places responsibility on neighbouring landowners to temper their use and development rather than place the responsibility on the land that is creating the risk.
56. From a planning point of view this is unacceptable.
Other decisions last month included an exceptionally high number of costs matters with the general rule of each party bearing its own costs proving prevalent, with few successful costs applications. Of particular interest last month were:
St Luke Shopping Centre Pty Ltd v Port Phillip CC (Corrected) [2024] VCAT 1148 for its consideration of whether a car park provided as part of a large commercial development which included a full-line supermarket was an independent use to the supermarket or an extension of this use. This was important as were it an extension of the supermarket use it would be prohibited due to it being located on land zoned Commercial 2 (the Review Site being a mixture of Commercial 1 and 2 zoning). The Tribunal found on the facts of the matter that it was a separate land use stating:
41. Both the applicant for review and the permit applicant applied the court’s decision in Shire of Perth it in quite different ways:
- The applicant for review invites us to consider the whole of the details before us including the text on the drawings, the location of shopping centre related details such as trolley bays within the car park, the direct connection between car park and supermarket and the preferential pricing to be offered to supermarket customers as evidence that the car park is an essential component of the supermarket. The applicant for review submits that the use is not a separate car park, but rather for the supermarket.
- The respondent invites us to look at the overall use of the car park as a mix of private office parking and paid for public parking, and suggests this could equally be provided in another building nearby where the supermarket could make the same for preferential parking for its customers to meet its planning requirements noting that there is no requirement for the operator to keep the requisite number of bays free – they could be taken by other members of the paying public.
…
44. To be a ‘car park’ as a separate land use, we consider that there must be a clear separation from the supermarket and other land uses on the site. No spaces should be allocated for the supermarket use, including any operational needs such as ‘click and collect’ type spaces. We also consider that the requirement for two-hour free parking to incentivise the use of the public spaces by supermarket customers does not support the contention that this car park is a separate land use. We consider that supermarket customers should not be given preference over other land uses and rather that the two hour free or discounted parking should be available to all to encourage turnover of car spaces within the car park consistent with its proposed role as an independent supply for the activity centre.
Singh v Casey CC [2024] VCAT 1184 concerned a Practice Day Hearing at which the permit applicant/ applicant for review sought to limit the extent of notice required to be given under PNPE9 in relation to a matter involving a restrictive covenant. In short, the applicant sought to remove a single dwelling covenant to allow the construction of two dwellings but flagged that they intended to amend their application to instead vary the covenant to require no more than two dwellings to be constructed. Rather than giving notice to all 548 beneficiaries the applicant argued that the variation mooted was of less potential detriment than removal, and therefore notice should only be given to those who objected. The Tribunal declined to vary the notice requirements of PNPE9 stating:
30. As such, I am not persuaded the proposed amendment to seek a variation of the covenant is necessarily a lesser change or of less detriment to the beneficiaries of the covenant. Returning to the balance that I mentioned earlier at paragraph 14 [benefits derived from amending an application and procedural fairness obligations], the proposed amendment is not an improvement to the proposal. Either way, the single dwelling restriction in the covenant will no longer exist.
31. The PE Act notice requirements for a planning application to remove or vary a covenant are quite particular and different to the notice requirements that otherwise apply to the various types of planning applications.
32. The PE Act specifies that notice will be given to the beneficiaries of a covenant, not some or only a few of the beneficiaries. The PE Act specifies notice will be given to all beneficiaries regardless of whether the application seeks removal or variation of the covenant.
33. Returning to the balance that I mentioned earlier at paragraph 14, there is a right of notice in the PE Act for all beneficiaries, and therefore the opportunity for participation in the planning application process. In the circumstances of this proposal (removal of the covenant) and this proposed amendment (variation of the covenant), I am not persuaded it is acceptable to reduce the right to notice and the opportunity for a beneficiary to choose to participate in this proceeding.
Patroni v Hobsons Bay CC [Corrected) [2024] VCAT 1155 was of interest due to it concerning the outer safety area of the Quenos facility in Hobsons Bay that has been the subject of earlier decisions of interest e.g. Nasralla. Of interest in this matter was that the Responsible Authority changed its position of not supporting the application to one of support on the basis that the Quenos facility was now in the process of closing and being decommissioned i.e. the safety issues which have occupied a great deal of consideration would no longer arise.
Dance v Colac Otway SC )No. 2) [2024] VCAT 1213 continued on from the decision of the Tribunal in May 2024 whereby the Tribunal (being only able to consider discreet permissions as opposed to the whole of the permissions sought) issued an interim order effectively allowing for an amendment application to be run. This latest decision indicated that there were issues and questions outstanding which required further consideration and which required a Practice Day Hearing to get to the bottom of.
Please contact either Hew Gerrard (advocacy) or John Glossop (expert evidence) should you need any assistance with a VCAT matter.
