Decisions of note last month included:
Coda One Pty Ltd v Stonington CC [2024] VCAT 1022 which concerned the topic of ‘natural ground level’. As many would be aware there are thought to be two competing schools of thought as to what constitutes ‘natural ground level’. View one is that it is the ground level immediately prior to an application being made (e.g. Mrocki v Bayside CC [2015] VCAT 1731) and view two is that it is the ground level pre-any development (e.g. Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954). In Coda, chaired by Deputy President Bisucci, the Tribunal addressed both approaches and concluded:
87. Having regard to the above findings, we conclude that the existing ground levels in this case represent pre-development development levels or natural ground level of the land. Thus, the slope of the natural ground level of the land at various cross sections wider than 8 metres is 2.5 degrees or more. Accordingly, the proposal as shown on the decision plans does not exceed the mandatory height limit contained in cl 4 of schedule 10 to cl 32.08 of the scheme.
88. We disagree that there are two approaches in the decisions of the Tribunal with respect to natural ground level. In reviewing the decisions of the Tribunal relied upon by the parties, we conclude that each case turned on its facts, circumstances and the evidence before the Tribunal.
89. Importantly, we agree that in considering the facts and circumstances of each case, matters such as manipulation of the land, previous land use and development and absurd or artificial outcomes are all relevant in the determination of natural ground level.
90. We also agree that as the ‘fact finder’ we may have to rely upon incomplete evidence, or interpolations or inferences. However, it is also important to acknowledge that the focus must be on evidence and what can be reasonably inferred or interpolated from that rather than supposition or bare assertions.
Glengollan Village v Knox CC [2024] VCAT 1016 concerned a proposed residential aged care facility. The proposal benefited from the particular provision at Clause 53.17 which allows for 80% site coverage but was also subject to a DDO1 which in simple terms requires a permit for site coverage above 40% and concurrently states that a permit cannot be granted for site coverage above 40%. The question for the Tribunal was whether a permit was still triggered under DDO1. The Tribunal found:
25. We accept that the inconsistency of site coverage referred to in Clause 2.0 of DDO1 is overridden by that of Clause 53.17-3. In our view, this allows for a permit to be granted under the DDO1 for a development that would otherwise be prohibited in terms of site coverage.
26. However, the inconsistency between site coverage requirements do not switch off permit requirements under the DDO1. This is because the site coverage requirement of 40% under Clause 2.0 of the DDO1 remains in the schedule as a mandatory requirement for development and is not simply interpreted to be read as being replaced with 80%. We do not consider the permit requirement under DDO1 to be de-activated as a result of the development requirement inconsistency.
27. Our views in this regard are reinforced by the reasons outlined by Deputy President Dwyer in Japara where he refers to the development requirement for site coverage in Clause 53.17-3 prevailing over the inconsistent site coverage requirement and that a larger site coverage may be permitted for a residential aged care facility than for other types of development.
28. In other words, the prevailing preferred site coverage in Clause 53.17-3 allows for what would be a prohibited form of development to be assessed and a permit granted under the DDO1 including a consideration of its design objectives and decision guidelines.
29. In this regard, we find the proposal requires a permit under DDO1 without prohibition caused by site coverage requirements because of the prevailing status of the development requirement for site coverage under Clause 53.17-3.
In Li v Whitehorse CC [2024] VCAT 999 the Tribunal dismissed a conditions appeal against a public open space requirement contribution being imposed. The proposal involved the subdivision of land into four lots, with relevantly the land in question already involving two neighbouring lots. The permit applicant argued the application creates an additional separately disposal parcel of land to each of the two existing lots. It is not a re-subdivision of one lot of land into four where the [the exemption] would not apply. The nett increase is one more disposable lot to each of the two existing lots. The Tribunal was not persuaded by this argument noting it had been tried and failed before in different proceedings stating:
12. The ‘land’ in the subdivision is the land comprising the combined area of the two lots. The ‘land’ in this context is that area. It is not relevant to the exemption that the land has already been subdivided into two lots. It is also not relevant to the exemption that the two lots are separately owned.
Two other decisions that were of interest for their subject matter were Cropp v Yarra CC [2024] VCAT 977 and Amplitel Pty Ltd v Greater Shepparton CC [2024] VCAT 1001.
Cropp involved buildings and works to an existing dwelling which had some impact on a neighbours’ solar panels. The Tribunal undertook detailed consideration in that matter as to whether the impact was acceptable or not and set out a range of matters that informed its consideration in reaching its conclusion.
Amplitel concerned a proposed telecommunications tower on land which was a former Broadcast Australia Transmitting Station developed in the early 1940’s and which only recently ceased operations. As such two large arrays of radio masts structures are already present on the land. Given the existing radio mast structures the dispute centred on whether the introduction of a similar structure would impact the heritage setting and visual prominence of the existing masts. The Tribunal again (and as you would expect) undertook detailed consideration of these issues framed in the overarching concept of achieving a net community benefit.
Lastly, as some may know, Senior Member Martin is leaving the Tribunal for the new role and will be missed by readers of VCAT decisions for his way with words including this month in O’Connor v Boroondara CC [2024] VCAT 944 involving a minor matter which was described as the ant that roared. However, Bate v Moonee Valley CC [2024] VCAT 955 was Senior Member Martin’s last decision and it is appropriate to repeat his final remark:
42. With this being my final VCAT decision before I move as a Senior Member to the new Federal Administrative Review Tribunal, to quote from the character Truman Burbank at the very end of the well known movie ‘The Truman Show”, ‘In case I don’t see you, good morning, good afternoon and good night’.
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.
