It was, however, the content of another Cardinia matter which is of most interest being the red dot decision of Tsourounakis v Cardinia SC (Red Dot) [2024] VCAT 1104. In this matter, a permit applicant sought to appeal a condition of permit for an education centre (adult employment training) limiting the number of students to 16. The permit applicant sought to increase this number to 60 having previously sought a similar larger number of students but importantly having lodged a s50 amendment reducing the number sought to 16. The Council argued that the Tribunal did not have jurisdiction to consider the appeal on the basis a new permit trigger would be introduced which had not been considered. The Tribunal agreed with Council with the summary reading:
The decision is of interest because it deals with a scenario where a permit has been granted for the use of the land as an education centre and includes a condition restricting the number of students on the land at any one time. The applicant sought to vary that condition to increase the number of students, the result of which would introduce a permit trigger under clause 52.06 and considerations under the Parking Overlay which were not included in the description of what the permit allows and were not considered by the responsible authority in deciding to grant a permit.
The number of students restricted by the condition under review was also the number the permit applicant expressly sought so as to avoid the need to deal with matters arising under clause 52.06 and the Parking Overlay provisions.
The decision finds that introducing new permit triggers as a direct result of the nature of the variation to the condition sought is beyond the scope of a section 80 review having regard to the powers conferred on the Tribunal pursuant to section 51(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The application for review was therefore summarily dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) as it was misconceived.
There was also a second red dot decision in November being Westernport Marina Pty Ltd v Mornington Peninsula SC (Red Dot) VCAT 1041 which discussed the concept of ‘significant ground disturbance’ in relation to cultural heritage management plan requirements for works above and below the water at the Westernport Marina. In this matter, the Tribunal found that a cultural heritage management plan was not required. As an aside, it would be an interesting analysis as to how many red dot decisions relate to matters of cultural heritage management plans compared to other subject matters. A brief AustLII search suggests of the last 10 red dot decisions published, three concerned cultural heritage management plans.
In other decisions of interest last month:
Shak Developments Pty Ltd v Hobsons Bay CC [2024] VCAT 1093 concerned an underdevelopment case within a major activity centre. The Council referred to the ‘housing crisis’ in support of its submissions. The Tribunal in response stated:
25. The council submitted that it is: …well established and accepted that the state of Victoria is currently facing a ‘housing crisis’
26. In making this submission, it cited Simons v Banyule CC which said: It is well known that the state of Victoria is facing a housing crisis. Victoria’s Housing Statement released in September 2023 ‘The decade ahead/2024-2034’, identifies that right across Australia finding an affordable home is becoming harder than ever. This statement further identifies that Victoria is setting a target to build 800,000 homes in Victoria over the next decade. To put it simply, more housing is required in Victoria.
27. However, when questioned at the hearing, the council agreed that there has been no change in planning policy in recent times to respond to this issue. The council also did not identify that the document referred to in the extract from Simons above, formed part of the Hobsons Bay planning scheme.
28. I agree. Whilst there has been policy in the planning scheme at a state level, and in local policies in most metropolitan councils for many years regarding further intensity and diversity of housing types, there has been no measurable shift in planning policy at a state level in more recent times in response to the ‘housing crisis’. Therefore, it is difficult to give any weight to such a claim in support of the council’s position on this permit application.
Mitchell v Hobsons Bay CC [2024] VCAT 1060 concerned an objector appeal against a proposal to amend a permit to allow demolition of an existing brick fence and gate. Notably:
- The land is zoned PPRZ and when the permit was first granted the applicant was the RSL, however it is the Council who is now the applicant.
- Ordinarily, no permit would be required for the proposal courtesy of the exemptions afforded Council under Clause 62.02.
- The demolition of the fence and gate would mean that no buildings and works allowed under the permit would remain.
The question for the Tribunal became how the principles of Benedetti applied. The Council as responsible authority submitted:
46. Under cl 62.02-1 of the Scheme, the respondent does not require planning permission to construct or carry out buildings and works with an estimated cost of $1,000,000 or less carried out by or on behalf of a municipality. However, the same cannot be said of the RSL, which leases part of Mary Street Reserve from the Council. The responsible authority concludes the RSL takes the benefit of the permit as the occupier of the subject land.
47. If the respondent were to simply proceed with the removal of the fence, notwithstanding the ongoing operation of the permit, the responsible authority submits that:
the Respondent would ostensibly be demolishing the fence in direct contravention of the Permit and the endorsed plans; and
further, the demolition of the fence would also appear to be in direct contravention of the 2001 Endorsed Plans, which note that existing access to the Subject Land from Mary Street was required to be blocked to prevent access to and from Mary Street.
As the respondent, Council submitted:
49. In response to the responsible authority’s interim order submissions, the respondent submits
12. The Respondent agrees with the Council that the factual circumstances here are ‘novel’ in that whether or not the ‘benefit’ of the Gate Permit continues differs as between the RSL and the Council. There is no dispute that the RSL would continue to take the benefit. However, the same cannot be said for the Respondent. The Respondent does not need to take the benefit of the Gate Permit in circumstances where no permission was required to construct, alter or demolish the existing fence at the time the Gate Permit was issued or now under the current Planning Scheme provisions. Further, in the event that the fence is completely demolished, the development permitted under the Gate Permit will cease to exist. On this basis the Respondent submits that it is arguable that no permission is required under the Gate Permit and no amendment is required under the Gate Permit to demolish the existing fence provided that the Respondent as landowner and public land manager undertakes the demolition. It is noted that the Responsible Authority takes a different view and that there are contrary interpretations available. In circumstances where the RSL as occupier of part of the Subject Site takes the benefit of the Gate Permit, it is submitted that it is still open for the Gate Permit to be amended, including by the Respondent. This will also obviate any debate as to whether or not this demolition is lawful.
13. It is submitted that it is not necessary for an amendment to the Gate Permit given it is an amendment to what is already allowed under that permit to include in the permit preamble a permit trigger. This is because it is accepted in Benedetti that amendments to the endorsed plans and permits can be required, irrespective of whether planning permission is required for those amendments under the current Planning Scheme provisions.
The Tribunal found:
51. I agree with the responsible authority’s submissions that, if a development authorised by a permit has been constructed and continues to require a permit, the conditions in that permit have ongoing effect. However, the responsible authority’s position that the gate permit can, and is required to, be amended in circumstances where full demolition is proposed, would create an absurd outcome. That is, any permit to construct a building or construct or carry out works (only) that had been acted on and had ongoing effect would need to be amended to show full demolition – even in circumstances where planning permission was not required for demolition or removal of a building – if the landowner wanted to demolish the buildings or works in their entirety. And further, that the conditions in the permit would continue to have ongoing effect despite the complete absence of the buildings and works it authorised.
52. This would amount to effectively burdening land in perpetuity with the conditions in a permit, even after the development authorised by the permit ceases to exist.
53. At paragraph 30 of Benedetti, the Court stated:
The contention that Condition 1 is spent
The first question of law is directed to whether Condition 1 is no longer of any operative effect but was spent upon the completion of the buildings and works the subject of the permit. It reflects the appellant’s case before the Tribunal where the first submission made on her behalf was that once the building authorised by the permit was complete, the condition “came to an end”. Ground 1 of the Notice of Appeal is that:
“1. The decision of the Tribunal should be set aside as the Tribunal determined that Condition 1 had ongoing operation where the 1994 development was completed.”
In my view Condition 1 continues to have effect while the owner of the land takes the benefit of the permit. It will have no effect if the permitted development which includes an element over six metres is demolished, but while such development is maintained, the conditional obligation not to modify the layout or the size of the buildings persists.
54. Following the Court’s line of reasoning, I find that if the gate and brick wall authorised by the gate permit are physically removed or demolished in their entirety, no one (be it the landowner or any occupier) will derive a benefit from the gate permit. The permit will no longer have a role to play in regulating development on the land – and cannot be said to burden the land with any ongoing obligation.
55. For this reason, I do not agree with the responsible authority that its second proposition, ‘whether, for any reason, a planning permit would be required under the current planning scheme to hypothetically reconstruct that development’ is relevant to my determination.
56. If the gate and brick wall structure is removed and no longer exists on the subject land, the landowner and occupiers no longer derive any benefit from the gate permit. It follows that the gate permit would no longer be an impediment or consideration in respect of the future development of the land.
Dafner-Beach v Yarra Ranges SC [2024] VCAT 1068 concerned a home based business which wished to have staff stay at the property twice a year with their families, including staying in caravans. The initial question for the Tribunal was how to characterise the proposed land use which apparently had been the subject of much debate between Council and the permit applicant. The Tribunal found:
4. The applicant explains that, as part of their business, they have developed a software platform that has grown to be one of the world’s leading software products in its market. At the time of this hearing, the business employed 55 people globally. It is a fully remote operation. I am advised that the business is being run from an existing building on the site known as ‘the stables’ (the building marked No. 6 on the previous page). I observed to the parties after the accompanied inspection that I would not have realised this business was operating on the site if I had not been told. The inside of ‘the stables’ building contains a relatively small scale home office with no physical evidence of the global scale of this business operation.
5. Since 2013, the applicant and her husband have hosted what they describe as ‘meet ups’ in regional Victoria and other locations across the world for their staff. These meet ups are in recognition of the fact that many of their staff operate remotely, and they still need to connect at a personal level within the business. The focus of these meet ups has been social interaction and building an organisational culture around its people. These meet ups have brought staff together with their families. I am advised the applicant invites their employees as their guests together with the partners and children of their employees on ‘a paid “holiday” of sorts, rather than separating them from their loved ones for the sake of an international work conference’.
6. The applicant wishes to use this site to continue to host these meet ups at their home. These events are proposed to occur two times a year for 14 days at a time.
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27. The applicant agrees the council’s description of the proposed land use contained in paragraph 163 of its submission (and quoted above at paragraph 20(g)) is apt. The council considers ‘the substantial purpose of the use as providing for the periodic congregation of staff for meetings, networking and socialising associated with the home based’ business and that the caravans are a ‘convenience to enable staff to stay on site which contributes to the social interaction and informal atmosphere perhaps sought for the meet ups’. Mr Crowder acknowledged during the council’s cross-examination that the home based business is the reason why people will be attending the site. He considers this proposal does not change the nature of that home based business as a caravan park is not essential to the home based business.
28. The applicant and Mr Crowder strongly argued in favour of the caravan accommodation on the land use being the principal purpose of the proposal. However, the council points out it is the business that is the basis for the need for the accommodation on the site. The council also points out that the Green Wedge Zone (the GWZ) places limitations upon what businesses can operate and how they can operate in this zone. The council accepts the applicant is legitimately operating a home business but points out the planning scheme provisions for a home based business contain limitations. For example, a staff meeting with a few people would be prohibited. Clause 52.11-1 allows for two persons who do not live in the dwelling to work in a home based business at any one time. Clause 52.11-2 allows for a permit to be granted for no more than three people who do not live in the dwelling to work in a home based business at any one time. Two to three people is far less than this proposal is seeking for two weeks twice a year.
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32. During the council’s submission in the hearing about the land use characterisation, I asked the question as to whether the efforts to characterise the land use in line with the planning scheme definitions was akin to trying to fit a square peg into a round hole. The planning scheme allows for unspecified/innominate land uses to be considered for planning permission in the Green Wedge Zone. Some of the material before me has described the proposal using the term ‘retreat’. I observed an alternative description could be ‘business retreat’. I suggested that perhaps an unspecified/innominate land use is a preferable approach in this case.
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34. In this case, it is not necessary to go further than following Pacific Seven — That is to ask, ‘what according to ordinary terminology is the appropriate designation of the purpose being served by the use’. A business retreat is ordinary language/terminology that is indicative of an informal, relaxed get together of persons associated with a business. It encapsulates the activities described in paragraph 163 of the council’s submission and quoted at paragraph 20(g) of these reasons. So, this is a circumstance where it is preferable to adopt an unusual or unique innominate/unspecified land use description of ‘business retreat’ to better reflect the particulars of this proposal and the purpose being served by this land use.
35. Through the processing of this permit application and at this hearing, there have been suggestions to use the word ‘temporary’ in the land use description to reflect the limited extent of the proposal (i.e. two weeks, twice a year). I am not persuaded this word is necessary in the land use description. The permit conditions can control the temporary duration of the innominate/unspecified land use for the purpose of business retreat.
36. During the hearing, the unusual or unique nature of this proposal lead to discussions about whether any permit that may issue should be tied to the applicant. This occurs occasionally only as it is generally accepted that planning permits run with the land and therefore new owners and developers can take the benefit of an existing permit. Given the particular circumstances of this proposal, the applicant is agreeable to a permit being granted to the owner/applicant. The council supports this. The council also supports the opportunity for the holder of the permit (if issued) to be changed with the council’s consent. This is an acceptable approach to the issue of a permit in this case.
Glossop enjoyed another busy month of appearances either as an advocate (Hew Gerrard) or expert planning witness (John Glossop). 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.
