Two of these were red dot decisions being:
- Colinx Nominees Pty Ltd V Frankston CC (Red Dot) [2023] VCAT 679 which concerned whether verandahs or balconies formed part of the calculation relating to the 300 square metre total floor area exemption found at Clause 52.23. In short, the Tribunal found that these items, although roofed and partly enclosed, sat outside the building and therefore did not contribute towards the total floor area.
- Soto v Hobsons Bay CC (Red Dot) [2023] VCAT 693 which concerned a proposed covenant variation. The permit applicant sought to vary a covenant to allow the construction of two dwellings on the property, but importantly the covenant as proposed to be varied did not specifically relate to the development proposed i.e. the two dwellings. The Tribunal found that it was unable to satisfy itself that no material detriment would occur as a result of the covenant variation effectively as varying the covenant in the manner proposed would allow any number of possibilities and not just the development sought.
The second of these is of perhaps broader interest given covenant variations are often not tied specifically to a corresponding development application albeit they are often taken as linked.
Other decisions of interest last month include:
Ling v Whitehorse CC [2023] VCAT 623 which represented the follow-on to the Tribunal’s decision in Ling v Whitehorse CC [2023] VCAT 307 regarding the proper interpretation of the second limb to Standard B21. In this first Ling decision, the Tribunal ruled that the interpretation was that sunlight was not to be reduced “at all, at any time, on 22 September”.
What was of interest in the second Ling decision is that the Tribunal ultimately assessed the suitability of the proposal based on shadow diagrams for the ‘ordinary’ hours of 9am-3pm i.e. the Tribunal did not require/ the permit applicant did not provide shadow diagrams for hours outside the ‘ordinary’ times.
This approach was also followed in WAT385 Developer Pty Ltd v Stonnington CC [2023] VCAT 672 which likewise referenced the first Ling decision and involved a multi-storey apartment building, however only concerned itself with shadows between 9am and 3pm.
However, in Cross v Moonee Valley CC [2023] VCAT 676, in again referencing the first Ling decision, the Tribunal considered the impact of shadows outside of ‘ordinary’ hours namely at 4pm and 5pm for a proposal concerning two double storey dwellings.
Webster v Macedon Ranges SC [2023] VCAT 695 which reconfirmed that a) the Tribunal has no power to review a refusal by Council to give in principle agreement to the amendment of a s173, and b) that the Tribunal has no power to re-enliven a planning permit application which has lapsed.
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.
