Indeed, Edwina’s matter is of some interest with the applicant for review articulating a question of law as to whether the setbacks provided in standard A10 apply to any part of a building that is not on or within 200mm of a side or rear setback? Neither the Council nor Respondent supported this approach. The Tribunal declined to answer the question of law raised as it did not consider it material to its consideration but commented:
47. On a strict literal and technical reading, given the definition of ‘building’ includes part of a building, the applicant’s interpretation of standard A10 is arguable. However, it is difficult to perceive how, if this interpretation is adopted, compliance with standard A10 could be achieved where a building extends to the boundary, as it proposed here. Where a wall is proposed on or within 200mm of the boundary and that wall forms part of a room, it would not be possible for that section of the room sited 201mm or more from the boundary to comply with standard A10 without being detached from the wall.
At the beginning of August, the Tribunal also issued a Red Dot decision in Alderman v Hume CC (Red Dot) [2024] VCAT 737 concerning the interpretation of s.47(2) of the Act.
s47(2) reads: Sections 52 and 55 do not apply to an application for a permit to remove a restriction (within the meaning of the Subdivision Act 1988) over land if the land has been used or developed for more than 2 years before the date of the application in a manner which would have been lawful under this Act but for the existence of the restriction.
The question for the Tribunal was whether s47(2) also applied to permit applications to ‘vary’ a restriction. Following the course of its legal analysis the Tribunal concluded that it did not.
However, it is perhaps James v Darebin CC [2024] VCAT 805 which will be of most interest from last month’s decisions.
An objector appealed Council’s decision to grant a townhouse permit on the grounds of overlooking from ground floor windows and a deck. Council and the permit applicant both sought the appeal to be struck out on the basis the recently codified Standard B22 was met with regard to the final paragraph of the standard relating to a visual barrier of at least 1.8m high being provided and the floor level of the areas in question being less than 0.8m above ground level at the boundary. In this matter a boundary fence of 1.8m was provided and the floor levels in question were between 3-500mm above the boundary ground level.
The Tribunal stated:
8. The overlooking provision in clause 55 of the Victoria Planning Provisions has been longstanding in the history of Victoria’s residential development provisions. This means town planners experienced in considering planning applications pursuant to clause 55 and its predecessors have ‘an understanding’ as to what is intended by the content of clause 55 and its overlooking provision. Mr James has looked at this provision with a fresh set of eyes and has demonstrated that ‘the devil is in the detail’ of the wording and construction of clause 55.04-6. In other words, its application does not accord with the long held understanding and approach often applied by architects and town planners to accord with the standard B22 exemption (i.e. a 1.8 metre boundary fence).
The Tribunal was attracted by the submissions of the objector and through the course of several paragraphs examined the construction of the final paragraph of Standard B22 and concluded:
44. I agree with Mr James’ submission that:
Standard B22, which comprises a definition of how overlooking is to be limited (Paragraphs 1 & 2) and measures to be applied to the design of the building to achieve this (Paragraphs 3-5) does not apply to the habitable spaces of a proposed new development that face a property boundary when two conditions are met:
- The floor level of the habitable space facing the property boundary is less than 0.8 m above ground level measured at the boundary i.e. habitable spaces on the ground floor of a proposed development
- There is a visual barrier at least 1.8 m high [in relation to what?]
Note:
it does not say that the visual barrier is to be located on the boundary.
it does not say that the height of the visual barrier is to be measured from ground level.
45. The two factors/conditions are two separate factors (as highlighted below) that both must be met as they are linked in the sentence by the word ‘and’.
46. If the visual barrier is linked to the property boundary or, more particularly, is to be measured at the ground level of the property boundary, it should state this alongside the green highlighted text above. It does not.
47. It is only the floor levels of the habitable room and the deck that must be measured above ground level at the boundary.
48. Mr James’ quote in paragraph 44 above poses the question about what the visual barrier of at least 1.8 metres in height is in relation to. Mr James answers this question by, again, referring back to the words in the paragraph and highlights the following:
49. Mr James submits:
If the Standard does not apply then that is because there otherwise exists a visual barrier that applies to the proposed new habitable room window, balcony, terrace, deck or patio facing a property barrier i.e. the visual barrier is in relation to the new habitable viewing point.
If the new visual barrier is in relation to the new habitable viewing location, how can it then be construed as being in relation to ground level?
You can’t relate it to ground level. The only thing the 1.8 m high visual barrier is related to in Paragraph 6 is the new habitable room window, balcony, terrace, deck or patio facing a property boundary. The answer is in the wording of Paragraph 6 itself.
50. Mr James’ reading of paragraph 6 makes sense. This is particularly so when one considers how overlooking is assessed if the floor level is greater than 800mm above ground level at the boundary. In that circumstance, the overlooking potential is then assessed on the basis of the proposed floor level. Also, standard B22 uses the phrase ‘at least 1.8 metres high’, which suggests the visual barrier may need to be higher. This suggestion is indicative of the need for the visual barrier to be effective and, hence, that it needs to respond to the particular circumstances of the proposal and the adjoining SPOS.
51. For these reasons, I agree with Mr James that the exemption in paragraph 6 of standard B22 is not achieved in this case. There is no proposed visual barrier to a height of at least 1.8 metres as measured from the floor level, which is the point of measurement contained in paragraph 1 of standard B22.
The Tribunal further went on to state that even if its interpretation were incorrect, Council still had to be satisfied that the objective of limiting views was met due to the wording of this final paragraph. The Tribunal stated:
64. Paragraph 6 of standard B22 begins with the words ‘This standard does not apply to ….’. So, if the factors in paragraph 6 are achieved, this means standard B22 does not apply.
65. The Macquarie Dictionary online defines ‘apply’ as including:
to bring to bear; put into practical operation, as a principle, law, rule, etc.
66. So, if standard B22 does not apply, this means it does not operate and it is not a relevant consideration.
67. Furthermore, the provisions at the start of clause 55 use the words ‘meet’ and ‘met’, not ‘apply’. The provisions of clause 55 outlined back at paragraphs 26 to 28 of this decision require that ‘A standard should normally be met’ and that if a development ‘meets’ standard B22, ‘it is deemed to meet the objective for that standard’.
68. The words ‘met’ and ‘meet’ have a different meaning to ‘apply’. ‘Met’ and ‘meet’ assumes that the standard is applicable, and its content has been achieved, i.e. met. So, if the standard does not apply, it means that there is no ‘met’ standard. This in turn means that the overlooking objective has not been met.
69. Therefore, in this case, if Council is right in its analysis, standard B22 does not apply. This means the Council must consider if the overlooking objective is met and must have regard to the decision guidelines.
Two other decisions of interest last month were:
In Paterson v Minister for Planning [2024] VCAT 761 submissions were made regarding the relevance of Aboriginal cultural heritage policy where there was no direct related permit trigger. The Minister for Planning submitted:
13. The Minister’s submission anticipates that the Tribunal might not hold the same view as the parties about the relevance of considering the Aboriginal cultural heritage planning policy. The Minister’s submission contains a sub-section titled ‘Relevant and irrelevant considerations’ that urges the Tribunal to not entirely disregard Aboriginal heritage considerations raised in the context of this proceeding. The Minister submits:
147. The Responsible Authority is conscious of recent decisions of this Tribunal which have taken a relatively narrow approach to matters within the scope of relevant considerations, in the context of planning permit applications.
148. The Responsible Authority is also conscious of a level of support for that kind of approach in the Supreme Court’s decision of Viva Energy v City of Greater Geelong Council [2023] VSC 586.
149. Despite those decisions, the Responsible Authority does not adopt that approach in this case. There are two limbs to this argument.
150. In terms of the first limb, as a matter of law, particularly statutory interpretation, the Responsible Authority does not consider it appropriate to construe the relevant permit triggers at play in this case – and most notably clause 35.07-1 and 35.07-4 – in such a way that is so narrow as to exclude any consideration of matters such as Aboriginal heritage.
151. Viva Energy can be distinguished from the present case because the only applicable permit trigger in that case (Design and Development Overlay: Schedule 18) had quite a confined focus, as opposed to the wide-ranging purposes of the zone provisions at play in the present case.
152. This submission is made in reliance on decisions such as Glen Eira CC v Gory, Burns Bridge Service Pty Ltd v Greater Bendigo CC and Boroondara CC v 1045 Burke Road Pty Ltd.
153. Accordingly, the Tribunal is urged not to entirely disregard considerations of Aboriginal heritage in the context of this Application for Review. The Tribunal is urged to receive and consider the evidence of both Mr Mullett and Dr Green.
…
156. … Various applicable permit triggers (but most importantly clauses 35.07-1, 35.07-4 and 65.01), as well as ss 60(1) and 84B(1) of the P&E Act, effectively call up the whole of the Scheme’s policy content, as relevant, in the context of determining relevant permit applications. Clearly, the Scheme’s policy content includes some (albeit limited) provisions in relation to Aboriginal heritage, at clause 15.03-2S. …
…
160. It does not follow that the responsible authority (or the Tribunal on review) is required to expressly consider every policy of the Scheme, when determining such a permit application. Rather, it is submitted that the responsible authority, and Tribunal on review, are empowered to have regard to any of the numerous matters within the suite of the Scheme’s policy content, and to exercise judgement as to the extent to which those matters are relevant in planning terms (not legal terms), and which of them should be considered, having regard to the nature of the application at hand, and the weight to be given to them (if any).
The Tribunal subsequently commented:
18. This brings me back to limb one of the Minister’s submissions. It raises the question about what role planning policy plays in decision making? The decisions referred to in footnote 43 of the earlier quote of the Minister’s submissions have all determined that particular policies are not relevant to the decision making being undertaken. This is because of either the extent of jurisdiction (e.g. the limited section 82 jurisdiction already explained), the planning permissions required, and/or the content of the particular controls associated with those planning permissions. In each of these decisions, the reasons depend on the circumstances of the particular proceeding. Some of the reasons include:
a. There is no planning permission required under a particular control, so policies related to that control/issue are not relevant, and/or
b. There are no references in the purpose or the decision guidelines of a particular control to the issue being raised, therefore planning policy sought to be relied upon about that issue is not relevant.
19. Applying this reasoning to the Aboriginal cultural heritage planning policy raises an interesting conundrum. This is because Aboriginal cultural heritage is primarily regulated through other legislation. As such, within the zones, parent overlay control provisions and particular provisions in the various Victorian planning schemes, there is most often no planning permission required to protect Aboriginal cultural heritage, and no purpose, objective or decision guideline that directly refers to the consideration of Aboriginal cultural heritage in deciding the merits of a planning application.
20. This is the situation in this case having regard to the Farming Zone provisions. The Farming Zone makes no specific mention of the need to consider the protection or conservation of places of Aboriginal cultural heritage significance. None of the parties submitted otherwise. So, does that mean the issue of the proximity of this site to an area of recognised Aboriginal cultural heritage significance and the potential impact of this proposal upon it is not a relevant consideration? I have reached the conclusion that it is a relevant consideration in this case, and I will now explain why.
The Tribunal subsequently provided its detailed rationale under the following headers with choice extracts provided:
‘The structure and requirements of the Victorian Planning Provisions and the Wellington Scheme about whether to consider a policy’,
27. The key message in this quote [Clause 71.02-3] is that Responsible Authorities are expected to endeavour to integrate the range of planning policies relevant to the issues to be determined. I agree with the Minister’s submission that judgement needs to be exercised to determine:
i. the extent to which an issue that is raised is relevant in planning terms (e.g. considering matters such as the nature of the proposal, the planning permissions being sought, the context of the site and surrounds, and the PPF), and
ii. the weight to be given to the issue and, in turn, the associated relevant planning policies.
‘Recent changes in approach to the Victoria Planning Provisions have not changed the role of the PPF in the decision making process’,
30. Initially, the policy framework in the VPPs was divided into the State Planning Policy Framework (SPPF) and the Local Planning Policy Framework (LPPF). The role and benefits of the SPPF were explained in the Final Report New Format Planning Schemes April 1999 (the Final Report). This explanation remains relevant to the consideration of the PPF as it exists today, including the following:
… All decision-makers — responsible authorities and VCAT — will need to think strategically by assessing every proposal against relevant objectives. …
…
The objectives are State-wide objectives, which recognise diversity across the State. Although all schemes must be consistent with all objectives, there is no expectation that all objectives will be met to an equal extent within any single municipality. For example, it is to be expected that the planning scheme of a suburb with an extensive industrial base will lean towards commercial and employment objectives, although environmental objectives such as air quality will also play a role. A country scheme will emphasise agricultural and tourism objectives, with a lesser role for urban growth objectives. A ‘growth’ suburb will emphasise planning for urban expansion and the provision of infrastructure and community facilities. The emphasis in the scheme is dependent on the nature of the municipality. In other words, horses for courses.
‘Relevance of the PPF to the issues arising from the nature of the proposal, the context of the site and surrounds, and the objection received’.
36. The issues that a Responsible Authority needs to consider in any planning application will depend on the nature of the proposal, its physical context, the planning permissions being sought, and the matters that arise through the processing of the application including any objections. As explained earlier, a Responsible Authority and, upon review, the Tribunal will categorise issues and the policies associated with these issues in a range from being of no relevance (e.g. where no planning permission is required relevant to a particular issue) to having a lot of relevance to the consideration of the merits of a planning application. This responsibility is undertaken having regard to the purpose of the zone and overlay controls and the clause 65 decision guidelines as well as sections 60(1), 60(1)(A), 84B(1) and 84B(2) of the P&E Act that require consideration of (amongst others) the relevant planning scheme, the objectives of planning in Victoria, any significant social and environmental effects, and any other relevant matter.
37. Depending upon the nature of the proposal and the context of the site and surrounds, it will always be possible for there to be contextual issues that arise that are not specifically identified by planning scheme provisions contained in the relevant zone or overlay controls. In such circumstances, planning policy guidance can be invaluable in assisting permit applicants, objectors and decision makers about the relevance and weight to be afforded to an identified contextual issue.
Edenville Corio Pty Ltd v Greater Geelong CC [2024] VCAT 794 concerned a 107 dwelling development in vicinity of the Viva Energy refinery in Corio. As with other decisions highlighted in recent months the Tribunal grappled with the role of WorkSafe in permit applicants near major hazard facilities. In this matter the Tribunal commented:
26. The applicant submits that as the proposal is not creating a new use and there is no specific permit trigger within the DDO37 or other overlay, clause 13 is irrelevant to our consideration. Its view is that this position is consistent with that taken in Nasralla; the Tribunal in that case found that the zone purpose for the Neighbourhood Residential Zone Schedule 6 does not trigger consideration of clause 13.07-2S.
27. In Nasralla, the Tribunal identified that the Victoria Planning Provisions include a suitable overlay to enliven the policy in clause 13, the Buffer Area Overlay (‘BAO’). As in both that case and ours, the BAO has not been applied.
28, In Nasralla the Tribunal went on to consider the application on the assumption that clause 13.07-2S might apply; including the consideration of evidence called by the applicants and how this should influence its conclusions on the risk of the MHF to the application.
…
41. In this case, similar to Nasralla, there is no permit trigger that specifically enlivens clause 13.02-7S. We find this situation problematic as the purpose of the clause is to both ensure the ongoing viability of an MHF and to minimise the potential for human and property exposure to risk from incidents at an MHF. We consider it is counterintuitive to include clause 13.02-7S in the planning scheme and then for it have no power in a situation where it should be of most utility. We also note the position in Nasralla that if clause 13.02-7S were to be enlivened separate from a specific trigger, then the utility of applying an overlay for development such as the BAO would be significantly reduced.
42. We also accept that the ISA and OSA are not overlays in the planning scheme and indeed are not in the planning scheme at all. They might be suitable as the basis for an overlay such as the BAO, but this has not occurred, and it is not appropriate to treat them as a ‘virtual overlay’. However, the ISA and OSA, despite their imperfections, exist, and in our view need to be accorded some weight under section 60(1A)(g) of the Act.
