Heading last month’s decisions was 210 Fussell Street Pty Ltd v Ballarat CC (Red Dot) [2025] VCAT 199 which concerned a Council’s refusal to accept an application as being received until the statutory fee paid. The Tribunal confirmed previous decisions of the Tribunal that an application is received on the day it is lodged regardless of whether the fee is included or not. Whilst different Council’s take different approaches to the issue of fee payment, perhaps this will become redundant once the amendments to the Planning and Environment Act 1987 take effect later this year allowing Council’s to give notice within 5 business days of ‘incomplete applications’ (as an aside, how this works with S54 RFIs will be interesting). Like a Marnus Labuschagne bouncer this consultant will also lob in that he would love if the lodging of an application through a Council’s portal didn’t require payment of a fee there and then, given obtaining client credit card details can be an issue.
Hew and John also scored two wins a piece last month, Hew in a s79 matter and a s82 matter, whilst John gave evidence on behalf of the successful parties for a mixed use development in Johnston Street, Fitzroy and two new dwellings in Torquay.
Of interest otherwise last month:
Flooding matters continue to have a strong presence and, like bushfire considerations not long ago, are attracting a great deal of attention as to what is ‘in’ and ‘out’ of consideration.
In Kiyagan v Baw Baw SC [2025] VCAT 206 an application was sought for four dwellings on a lot in the GRZ and covered only by a DCPO. Council referred the application to the local CMA and subsequently refused the application on grounds including in relation to flooding. The CMA then sought to join the subsequent appeal as a party. The Tribunal refused to join the CMA and struck out the flooding grounds of Council’s refusal on the basis that matters of flooding were not matters for consideration under the GRZ. Notably the Tribunal found against the Council’s attempts to link flooding to the Purpose of the GRZ and ‘the obvious and known flood risk’ and against considering the CMA’s flood guidelines as something which the circumstances didn’t so require due to the absence of permit trigger or controls relating directly to flooding.
In Maddock v Strathbogie [2025] VCAT 250 an objector appealed an NOD for land that was zoned FZ and partly within the FO. The Tribunal found that the objector could not make submissions on flooding grounds as a) no third party notice and review rights existed under the FO, and b) like Kiyagan flooding was not a consideration under the FZ more broadly.
In both matters the Tribunal referenced that the sites were known to have flooding issues, however, as the Tribunal stated in Maddock:
128. I am fully aware that the land is subject to flooding and that fact has been known to the CMA and council for a very long time. However, to date council as the planning authority has not progressed any amendment to address the knowledge it has about flood risk. That leaves everyone in this proceeding including VCAT in a difficult position. However, VCAT must apply the law as it exists at the time it makes its decision.
Flooding was both a relevant and primary consideration in 51 Hardiman Pty Ltd v Melbourne CC & Ors [2025] VCAT 222. In a lengthy decision the Tribunal refused the two applications made for reasons of flooding. Of note, the Hearing went for 18 days and involved 10 expert witnesses, six of whom were flood engineers. Most notably, however, the Review Site was within the Arden Macaulay precinct which is a designated priority major urban renewal precinct. The Tribunal in commenting on the complexities associated with flooding stated:
106. The proposals that are before us highlight complex interrelationships between flood processes and hazard and risk with flood modelling conducted between the applicant’s and Melbourne Water’s experts not reaching an agreed position with respect to a flood level for the site related to a 1% AEP flood event at 2100 despite three conclave processes.
107. Admittedly, projecting a flood level 75 years into the future is challenging and creates an already high level of uncertainty adding to complexity.
108. Complexities in these proceedings have been compounded by the strategic recognition of the area within which the site is located as an urban renewal precinct where higher density mixed use growth including residential development is identified to be encouraged whilst also being recognised as subject to flooding and the hazards and risks that this poses to the area and its occupants.
Beyond flooding, Coda One Pty Ltd v Stonnington CC [2025] VCAT 258 concerned a proposal which involved a net loss in housing. The Tribunal’s remarks in this regard were of note stating:
6. Significant change is underway in the town planning and housing development industries now. Planning applications for housing will change next week with Amendment VC267 bringing in new residential development planning assessment provisions ‘to boost housing construction to meet the housing needs of Victorians’. Amendment VC267 does not change the relevant planning policies but does change the zone provisions and clause 55 to streamline the planning approval process. The Amendment VC267 Explanatory Report points out Victoria is the fastest growing state in Australia and the Victorian Government is facilitating the development of additional homes.
7. You might wonder what the relevance of this is given these changes do not come into effect until next week. I mention this because this proposal will result in a net loss of homes on this site. At face value, this is at odds with the recent Victorian Government focus on the need for more housing including affordable housing. It is an issue that was raised by Council and the respondents, particularly in submitting that this proposal should not get any weighing benefit in the balancing of competing policy objectives (i.e. balancing housing consolidation policy with neighbourhood character policy). The net loss of homes appears at odds with current planning policies including:
i. the housing supply general strategies at clause 16.01-1L-01 that include encouraging residential infill development that maintains a balance of dwelling types in established residential areas;
ii. the statement in clause 02.03-5 that a rapid increase in house prices and land values is driving a need for increased housing capacity that is affordable and accessible; and
iii. the following strategic directions for housing at clause 02.03-5:
- Accommodate the projected population, in particular making provision of increased numbers of smaller households.
- Maintain housing diversity and provide housing choice to meet the future needs of Stonnington’s population, including for families, young people, smaller households, older people and people living with a disability.
8. I accept the existing building on the site can be demolished at any time without the need for any planning permission. It contains 10 one bedroom apartments, but the applicant and its expert witnesses say these apartments are old and do not meet modern standards. There is some truth in this as these apartments are small, have limited car parking and offer no private open space (for example, a balcony). Nevertheless, if this development proceeds, 10 existing affordable one bedroom apartments will be lost and will be replaced with five three bedroom apartments.
9. Back in 2023, the Tribunal observed at paragraph 170 of Creative Property Developments Pty Ltd v Stonnington CC [2023] VCAT 691 that:
While I agree that the provision of medium density housing in well serviced locations like this one has strengthened policy backing since the permit was originally granted, the form of accommodation proposed would see a halving of the number of dwellings from 18 to 9 with larger three bedroom apartments now proposed. I also accept that differently configured apartments would respond to consumer preferences, but it could be equally said that a loss of nine dwellings in such a well serviced location is a matter that weighs against this proposal. …
10. This is a pertinent observation that is equally applicable in this case. The applicant orally acknowledged in the hearing that there is a desire at both State and local government levels for more housing, for more affordable housing, and for accommodation for smaller households. However, the applicant submits that not every site has to meet those broad housing objectives, and not every development has to contribute to new housing or housing in the same way as has existed before. The applicant emphasises that the existing building is old, ageing and not fit for purpose for today’s housing standards. The applicant acknowledges that this proposal for three bedroom dwellings with private open space and car parking will appeal to a different residential market to what has existed on this site in the past. However, the applicant submits residential development must be realistic and viable, and three bedroom apartments can appeal to a range of household sizes and provide a different choice of apartment.
11. There is no policy in the planning scheme that requires a new residential development to maintain affordable housing.
12. There is no policy in the planning scheme that requires a new residential development to maintain the number of homes on a site or to maintain the current mix of homes on a site.
13. So, whilst this proposal appears to be somewhat at odds with the significant changes being made to town planning and housing industries, I am unable to conclude that this is an unacceptable residential development because of these factors. I do agree, however, with the submissions by Council and the residents that this proposal does not gain any policy weighting benefits of housing supply versus respecting neighbourhood character.
Brouwer v Mornington Peninsula SC [2025] VCAT 154 concerned a view sharing case for a single dwelling with the Tribunal distinguishing between a quantum and qualitative assessment of views lost by neighbouring properties stating:
98. In this case, it is not necessarily the quantum of what views would be lost compared with a DDO2 compliant proposal, but a qualitative assessment of the impact the proposal will have on views from this property, and how the views are experienced.
99. The review site sits rather centrally within the viewshed that exists to this property, and this is a key factor in this case, again linked with the practicality considerations below.
100. I find that the proposal will be a significant intrusion in the overall panorama of views available. This is partly because the views available are experienced in a panoramic sense, by scanning horizontally and the proposal will impede this horizontal array. If one were to scan across the horizon line, the proposal will impede this experience, whereas with a DDO2 compliant version, the horizon will still be visible, notwithstanding that some water views will be lost.
Singh v Casey CC [2025] VCAT 186 concerned an appeal by a childcare centre operator of an NOD issued by Council for a childcare centre on the adjacent property. The objector contended that the cumulative impact of two childcare centres adjacent one another hadn’t been properly considered and that read together the combined size of the two childcare centres would be contrary to discretionary policy regarding such uses. The Tribunal found against these submissions assessing the proposed childcare centre on its own merits and determining that:
26. In relation to other locational attributes, I am persuaded that the location of the proposed child care centre adjacent to another approved child care centre results in an appropriate town planning outcome. The co-location of the two child care centres will minimise impact to residential interfaces whilst forming a small hub with the parkland across the road.
If Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) to discuss.
