Other decisions of note were:
- Clifftop at Hepburn Pty Ltd V Hepburn SC [2023] VCAT 201 is a thorough and extensive decision which whilst principally directed at whether respondents can make submissions about bushfire matters given the third party notice and review exemption under the BMO. It goes further than previous decisions of a similar flavour through in-depth consideration of all relevant aspects of the planning scheme including background material, the legislative framework as well as past decisions.
- Green Street Assets Pty Ltd v Banyule CC [2023] VCAT 200 is notable as an example of the type of application that can ‘spiral’. At face value, the matter would seem relatively straightforward being the construction of six dwellings in an activity centre with the normal considerations applicable. However, the Hearing for this matter was heard in June 2021 and was subsequently the subject of four subsequent interim orders and several further Practice Day Hearings before the final order was issued last month approximately 20 months after the main Hearing itself. This was due to a question of law being raised as to whether the Review Site was exempt from the garden area requirement. At Appendix A the Tribunal provides a lengthy and comprehensive dissection of whether the garden area requirement applied ultimately concluding that it did not.
- Angelovski v Whittlesea CC [2023] VCAT 247 related to the breeding of French Bulldogs in the GRZ. A conditions appeal, the dispute related principally on whether three of five dogs should be allowed. A condition also appealed related to a restriction on pet or companion dogs. Essentially the permit applicant sought allowance for two pet/ companion dogs in addition to five French bulldogs. The Tribunal allowed five dogs to be kept on the site but this was inclusive of both pet/ companion dogs and breeding dogs based on the provisions of the GRZ allowing no more than five animals under ‘domestic animal husbandry’. The application of this ‘hard cap’ does open up the question of pets generally which the Tribunal has had reason to grapple with since the term ‘domestic pet’ was removed in 2019. To take it to the extreme would the keeping of more than five fish in the GRZ be prohibited?
- Croydon Jackson Project Pty Ltd v Maroondah CC [2023] VCAT 270 which was an unremarkable application in many ways involving the construction of four dwellings. What is of interest is that in the discussion of draft conditions the permit applicant sought to have the time limit extended from the standard two/ four to three/ five which has been quite common of late due to the coronavirus pandemic and other factors. The Tribunal stated:
60. The applicant requested three years to start the development with a total of five years to complete, compared with the condition suggested by Council for two years to start and four years to complete. It suggested this may be required because of potential construction or materials shortages.
61. I appreciate that construction timetabling may be more challenging currently than before Covid-19, but consider that this is a conventional townhouse development that is capable of commencing within a standard two year timeframe.
62. If additional time is required for either commencement or completion or both based on particular circumstances that may be encountered, the permit holder can apply to Council for an extension of time under the legislation. There are established case law tests that inform the exercise of this discretion to the particular facts.
63. This process is able to accommodate any potential delays that may be associated with any construction difficulties. It would be premature to provide a longer time than average in the permit for this scale of development in suburban Melbourne.
- Winchester v Bayside CC [2023] VCAT 272 which involved a proposed double garage and studio which the permit applicant sought to have assessed under the VicSmart provisions of the HO on the basis it was a ‘similar structure’ to a carport, garage, pergola, verandah, deck or shed. In grappling with what is a ‘similar structure’, the Tribunal determined that this meant:
(a) a subordinate component of a building or buildings; and
(b) either non habitable or not capable of being separately occupied,
whether integrated within a building or taking the form of an outbuilding.
However, it may be the decision of Ling v Whitehorse CC [2023] VCAT 207 which may be of most interest which related to the question ‘what is the correct construction and meaning of Standard B21 in Clause 55.04-5 – Overshadowing open space objective?’. The permit applicant submitted that the second paragraph associated with Standard B21 should be read as not seeking any further reduction of sunlight for five hours between 9am and 3pm. The Council, while having sympathy for the permit applicant’s position, took the position that the second paragraph meant no overshadowing at any time. The Tribunal found:
57. For the avoidance of doubt, the proper interpretation of the second paragraph of B21 is – where existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of the first paragraph of Standard B21, the amount of sunlight should not be further reduced at all, at any time, on 22 September.
The Tribunal also dipped its toe into the debate of where the decision guidelines fit when the standard is met stating:
56. Specifically in the context of clause 55.04-5, this is achieved by –
- Step 1 – Identify and accurately record the existing levels of sunlight enjoyed by affected secluded private open space areas throughout a specified day – 22 September. This is required under the second paragraph of Standard B21.
- Step 2 – Compare the data obtained in the step 1 with the requirements of Standard B21 (contained in the first paragraph of Standard B21) to identify whether existing sunlight to affected secluded private open space areas is less than the requirements of Standard B21.
- Step 3 – Before deciding an application, whether the requirements of Standard B21 contained in the first paragraph of that Standard can be met or not, the decision-maker must consider the matters outlined in the decision guidelines for Standard B21. In particular –
- where an application seeks to reduce existing sunlight to the secluded private open space of an existing dwelling but maintains access to sunlight that meets the requirements of the first paragraph of Standard B21, then by meeting those requirements, the application will have met the objective of clause 55.04-5. This is because clause 55 provides that a standard contains the requirements to meet the objective.
The decision guidelines for Standard B21 confirm that existing sunlight penetration to existing secluded private open spaces of existing dwellings is required to be considered. In order for such consideration to occur properly, the existing sunlight to the relevant areas must be recorded accurately. Once that is done and the application demonstrates that despite the reduction in sunlight caused by the proposed development, the requirements of the first paragraph of Standard B21 are still met, a decision that the proposed development does not significantly overshadow existing secluded private open space can be expected (the objective of clause 55.04-5).
- where the application seeks to reduce the existing sunlight to the secluded private open space of an existing dwelling where the level of existing sunlight is less than the requirements of the first paragraph of Standard B21, consideration must be given to the matters set out in the decision guidelines for Standard B21 before deciding if the proposed development does not significantly overshadow existing secluded private open space (the objective of clause 55.04-5).
Glossop Town Planning enjoyed another busy month appearing before the Tribunal 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.
