Of the Tribunal’s other decisions:
HWD Homes Pty Ltd v Maroondah CC [2023] VCAT 481 was of interest for the Tribunal’s comments in respect of an application for reimbursement of fees. The Tribunal found that the applicant was entitled to an order for reimbursement of fees, however, went on to provide the following interesting comments regarding s115CA(2) and matters lodged under the Major Cases List as opposed to the Standard Cases List:
28. Having regard to subsection 115CA(2) of the VCAT Act. I am satisfied that there is a difference in fees payable in a proceeding under section 79 of the PE Act. The applicant elected to make its application to the Tribunal under the Major Case List. The fees payable for applications and hearing days under the Major Case List are more than the standard fees payable for review of a planning decision. Subsection 115CA(1) applies to entitle the applicant to an order for reimbursement of only the amount of the lowest of those fees.
29. For these reasons, I find that the fees to which the applicant is entitled to have reimbursed by the responsible authority are:
i. $1437.30 – being the fee payable by a company or business for a ‘multi-dwelling, sub-division or non-dwelling valued between $1 and $1 million’. The application for review lists the cost of the development as $500,000.
ii. $535.20 – being the ‘standard’ hearing day fee payable by a company or business for each of days 1 and 2 of a hearing (being a total of $1,070.40).
In Freilich v Stonnington CC [2023] VCAT 468 the Tribunal found that an amendment granted to a permit could not be issued as the permit had expired. The Tribunal stated:
32. This proceeding is an important reminder to Council to check the validity of the permit sought to be amended at the time of its decision.
This was essentially reinforced less than a week later in the decision of Perpetual Projects Pty Ltd v Manningham CC [2023] VCAT 513 which similarly found that a permit had expired between amendments being granted and the Hearing before the Tribunal occurring.
South Gippsland Conservation Society Inc v Bass Coast SC [2023] VCAT 431 involved a mixed use building in Inverloch and included the following paragraphs of interest concerning a survey tabled at the Hearing:
32. During the hearing Mr Forge tabled a survey taken by members of the South Gippsland Conservation Society Inc (SGCS). The material comprised a ‘Poll of residents and visitors” and was described as in informal poll carried out to assess the level of support opposing the development. Commentary on the variously expressed views of the signatories was included and there is a breakdown of the views expressed by the signatories.
33. The survey garnered 850 responses from signatories opposed to the proposed development. I was advised that 60% of respondents reside in or own land in Inverloch.
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38. The SGCS submits that Section 84(2) of the Planning and Environment Act 1987 (PE Act) is relevant. It requires that the Tribunal:
(f) must (where appropriate) take account of the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and in fact did participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit.
39. The SGCS submits consideration at section 84(2)(f) should be of concern in this case, because of what it asserts is shortcomings in the Responsible Authority’s notice procedures in which direct notice was only given to 44 landowners and it did not exercise the power under section 52(3) of the PE Act to give notice on the basis that the proposal was likely to be of interest to the community more broadly.
40. The SGCS further asserts that the circulation of the Sentinel Times in which notice of the application was given is limited, although no details were provided about the paper’s circulation. The SGCS submits that because of the significant seasonable variation in home occupancy in Inverloch, and because of the proposal’s prominence on a site adjoining the foreshore and the town centre, consideration should have been given to wider notice of the application than that which occurred.
41. Consequently, the SGCS submits that the survey plays a role in allowing the Tribunal to ‘bridge the gap’ in the giving of Notice. Consideration of the survey will in its submission, enable me to satisfy myself that owners in the area have had an adequate opportunity to express their views.
The Tribunal in response found:
47. I have had regard to the survey but I am not persuaded that it plays a useful role in ‘bridging the gap’ in the manner asserted by the SGCS.
48. I have reached this conclusion because the method and extent of Notice given of this application has been sufficient to satisfy the requirements of section 52 of the PE Act.[6]
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56. In relation to the submission that the survey and the large number of signatories on it may indicate evidence of possible social effects, section 84(2)(jb) of the PE Act is relevant. It states that the Tribunal:
must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect
57. Significantly, the signatories to the survey are not objectors within the meaning of the PE Act. They have no standing in this proceeding. The SGCS in their submission acknowledges this point.
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60. No evidentiary basis for the existence of significant social effects has been established by the submission of the survey. The survey does little more than establish that there are sections of the community who hold the view that those effects may arise.
61. The alleged possible social effects identified by the SGCS and objectors more generally are matters to be considered in the overall assessment of the proposal’s acceptability. The number of signatories to the survey does not provide evidence that the alleged effects will arise because of the grant of a permit.
Endeavour Drinks Group Pty Ltd v Colac Otway SC [2023] VCAT 539 in part concerned the permit exemption related to buildings and works most commonly found in the C1Z that at least 80% of the building façade at ground floor level be maintained as an entry or window with clear glazing. There was no argument that the building had above 80% glazing to its façade, however the dispute arose about the word ‘clear’. In this matter decals were proposed to be applied to the glazing with the Council arguing that this would occupy approximately 30% of the façade and thus require a permit for buildings and works. The Tribunal found:
The buildings and works proposed is the change to the façade through the installation of the white tiling where there were red bricks and the painting of various parts of structure.
There will be no structural change to the extent of glazing installed in the façade, which equates to 83% of the façade.
The glazing is clear glazing in that the structural parts of this façade comprise clear glazed windows or doors.
I find that a permit is not required for these buildings and works under the C1Z or the DDO5. I say this because:
the alteration is to an existing building façade;
the alteration does not include the installation of an external roller shutter; and
at least 80% of the building façade at ground level is maintained as an entry or window with clear glazing, given that there is no structural change proposed to the 83% of clear glazing that presently constitutes the façade.
The use of decals on the clear glazing is, in my mind, equivalent to the use of a poster or similar window dressing. It does not change the composition of the façade, which remains a façade at ground floor level that is maintained as an entry or window with clear glazing.
46. The counter argument put is that the glazing is not ‘clear’ because it is not visually permeable when the decals are placed on the clear glazing. If this were correct, then whenever an occupant of the ground floor shop sought to put something in the window or on the door that obscured views and resulted in less than 80% of the façade being visually permeable, it might lead to a situation where a permit was required for buildings and works. This cannot be correct.
Lastly Redland Fruit Pty Ltd v Swan Hill Rural CC [2023] VCAT 601 will be of interest to rural practitioners. It involved a declaration revolving around the new land use term of rural worker accommodation. The proposal involved six buildings to cater for up to 32 workers with the permit applicant arguing no use permit was required on the basis it was ancillary to the main horticultural activities. Council opposed the declaration arguing:
30. The council makes the following submissions:
a. the proposed use is properly characterised as ‘rural worker accommodation’ pursuant to clause 73.03 of the scheme;
b. given the scale and intensity of the proposed use, it requires a permit under the FZ because it does not meet all of the conditions set out in table 1 at clause 35.07-1 of the scheme. In particular, the number of persons to be accommodated is greater than 10 and there is no existing dwelling on the land;
c. given that a permit is required for the use of the land for rural worker accommodation, a permit is also required for any buildings and works associated with a permit required use in the FZ;
d. Amendment VC202 (VC202) to the Victorian Planning Provisions (VPPs) introduced the following amendments to all planning schemes in Victoria:
i. introduced a definition for ‘rural worker accommodation’ at clause 73.03 of the scheme;
ii. introduced a permit exemption for use of land for rural worker accommodation that accommodates no more than 10 persons in the FZ; and
iii. introduced a permit requirement for use of land for rural worker accommodation that accommodates no more than 10 persons in the FZ.
Prior to the gazettal of VC202, rural worker accommodation was an innominate use in the scheme. The Minister’s Reasons for decision to use power of intervention (Minister’s Reasons) include:
concern amongst local councils and government about the cost and suitability of accommodation for the agricultural workforce;
a lack of clarity in the planning system about use of land for such accommodation;
the supply, suitability and quality of housing;
the form of accommodation such as shared facilities;
the location of accommodation that is, whether onsite or offsite to the agricultural use; and
regulation of rural worker accommodation.
Further, the Minister explains the following benefits of the intervention:
to provide clarity and certainty to planning scheme users about rural worker accommodation;
to alleviate administrative burden for responsible authorities and costs of appearing at the Tribunal;
to facilitate supply of rural workers, particularly for seasonal workers; and
to support economic recovery.
Thus, council says that VC202 provides clarity about rural worker accommodation and the proposed use in this proceeding requires a permit under the FZ.
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31. Council relies upon legal advice it has received that supports council’s submission that a permit is required for the proposed use of the land. The summary of the legal advice is set out:
In our opinion:
the facts raise a difficult question about the interplay between the Scheme’s treatment of ‘Rural worker accommodation’ and the recognition of ancillary activities at clause 64.01;
where parameters around the use of land for ‘Rural worker accommodation’ are now clearly articulated by the Scheme, the Proposal should not be treated as ancillary to the primary horticultural use of the Land; and
the preferred view is that the Proposal is a distinct use in its own right requiring a planning permit under the Farming Zone (FZ).
The Tribunal, however, disagreed with Council and found that VC202 did not seek to prevent the operation of Clause 64.01 and that on its merits the proposal remained ancillary to the dominant use of the land for horticulture.
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.
