VCAT- Planning and

Environment List

MAV Rural and Regional Conference

30 May 2019

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Agenda

Interesting cases

The role of VCAT

Admin matters

Gossip and rumour (confirmed or denied)

Red dot and interesting decisions

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BushfireDELWP v Yarra Ranges SC [2019] VCAT 323

• Proposed dwelling on private land zoned Rural Conservation Zone with a BMO,

but only vehicle access was across crown land.

• Two previous attempts to obtain such approval refused by VCAT.

• DELWP did not agree to such vehicle access.

• Dense vegetation, steep topography, complex planning controls.

• Council supported proposal, but taken to VCAT by DELWP.

• Held – fatal problems with informal access track not being a ‘road’.

• Unacceptable environmental impacts on nearby creek/native vegetation removal.

• Parties agreed that the site posed ‘extreme bushfire risk’. VCAT unsatisfied that

the BMO emphasis on ‘protecting human life’ was met by the proposal.

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BiodiversityMcDonald v West Wimmera SC (Red Dot) [2019] VCAT 70

A pendulum swing with native

vegetation management

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BiodiversityMcDonald v West Wimmera SC (Red Dot) [2019] VCAT 70

• Consideration under the detailed assessment pathway for removing native

vegetation under Clause 52.17 and the ‘Guidelines’ and the ‘Assessor’s

Handbook’.

• Key issue - was removing native vegetation acceptable having regard to recent

changes to policy and clause 52.17.

• Considers the biodiversity value of large scattered native trees in a detailed

assessment pathway where they form part of an EVC that is endangered, and

are recognised for their role as “steeping stones” within a predominantly cleared

landscape and replacement is a challenge.

• “Reliance on scores alone does not address all of the matters that are required

under a detailed risk assessment pathway for clearing large scattered paddock

trees”. (Para 39)

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Solar FarmsESCO Pacific Pty Ltd v Wangaratta RCC [2019] VCAT 219

One of many solar farms coming to the Tribunal. This site - west of Glenrowan just

south of Warby Ranges.

Found:

• The loss of agricultural land in this instance was acceptable

• Loss of view of agricultural land not problematic to drivers of Freeway or

to adjoining landowners, provided some landscape buffer put in place to

adjoining sites.

• Design can manage potential glint and glare impacts, but required an

additional report on this matter by condition.

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Solar farms – continued

Found:

• The impact on character / setting of historic Glenrowan was acceptable as there

was sufficient distance between the facility and the town and that

potential impact on tourism was tenuous.

• Did not see a need for a proposed 'community fund' nor saw the nexus to

support a condition for such a fund.

• Other issues considered: Lake island effect, heat island effect, noise

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Music Festivals Apter v Loddon SC [2018] VCAT 2062

• While outdoor festivals are a part of today’s society, finding the right location for

such a use, even on a temporary basis each year, is a difficult exercise.

• Key issues: (noting council and objectors have experienced impacts from previous one off

festival held on the land)

• Victoria police concerned about the safety, including emergency management.

• Noise, impacts on nearby farming activities and the risks of flooding and

bushfires.

• Non-agricultural uses, including temporary festivals, can impact upon the

longevity and sustainability of agricultural practices.

• Tribunal accepted the applicant’s intent to do better in future events, but found

non-agricultural activity, even just a temporary one, can unacceptably impact

upon the primary purpose of this area for agricultural activities. Permit refused.

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Separation DistancesForbes & Ors v Vukadinovic & Ors [2018] VSCA 138

• Proposal to develop three broiler farms in rural Victoria, each with 400,000 birds.

• Broiler Farm Code provides for ‘separation distances’ to dwellings. When

application lodged – no dwellings in separation areas.

• Preliminary issue raised at VCAT hearing – existence of a new dwelling within

separation distance of two of the three farms.

• VCAT’s ruled the separation distances applied as at the date of the permit

application (no house then). On appeal – single judge agreed with VCAT.

• Court of Appeal – held that the application of the ‘separation distances’ is not

‘frozen in time’ - it is a ‘continuous process’ leading up to any VCAT hearing.

• Ungar v City of Malvern principles apply: need to apply the scheme as it

applies at the time of decision making.

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Site managementGreater Geelong CC v C & D Recycling Pty Ltd [2018] VCAT 831

• Materials recycling business at Lara – issued permit in 2016 – little processing but

350,000 cubic metres of material stored on site by time of VCAT hearing. Major

non-compliance with conditions.

• Dual VCAT proceedings – cancellation of permit and planning enforcement.

• VCAT refused to cancel permit and opted for a ‘staged enforcement order’.

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• Order allowed the materials recycling

business to continue on site) held to be

the ‘least-worst’ option. Would avoid

‘bulk landfill’.

• VCAT acknowledged doubts about bona

fides of current site operator/tenant.

• Operator now in external administration.

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Design

Apartment Design: Clause 58 is still being tested in metro and

regions

• 631 Plenty Road Preston Pty Ltd v Darebin CC[2018] VCAT 1849:

Decision dealing with the detail of how Standard D24 in Clause 58 is to be

applied in relation to the ‘floor area’ requirements of living rooms, kitchens

and bedrooms.

Other discussion of detail in Clause 58.

Apartments are more common

W.R.M. Purchasing Pty Ltd v Greater Bendigo CC [2019] VCAT 163

• Four storey apartment building in Bendigo

• Council refused on Design and heritage issues

• Council provided urban design evidence

• Internal amenity issues

• VCAT affirmed decision based on these design issues.

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Reverse living

Reverse Living

Tirabassi v Greater Geelong CC [2018] VCAT 1813

• Existing house retained. Two new ‘reverse living’ houses proposed.

• Held that three storey townhouses are an acceptable building typology, but

this particular design is not acceptable for this site.

• Bulk excessive, lack of landscape and pedestrian space.

Catania Investments Pty Ltd v Darebin CC [2015] VCAT 729

In some cases ‘reverse’ layout provides better amenity as:

– First floor level living areas can provide better access to daylight,

sunlight and opportunities for long distance views.

In some cases:

– Upper level living can give rise to potential for overlooking and a need

for substantial screening. 15

Garden AreasSargentson v Campaspe SC(Red Dot) [2018] VCAT 710 (7 May

2018)

• Analysis of the minimum garden area requirement.

• The permit applicant considered that the minimum garden area requirement was

met but the Council remained unsure.

• Discussion of ‘lot’ and ‘garden area’

• Council assessed the areas based on the resultant lots. The applicant assessed

it on the whole site (planning unit), not the existing lots. Tribunal found - ‘I must

apply the provision as it reads’….

• ” An application to construct or extend a dwelling or residential building on a

lot must provide a minimum garden area as set out in the following table”

the table refers to lot size and minimum garden area.

• Found that the correct approach is to calculate the minimum garden area based

on the area of the existing lot.16

Some concluding comments on

decisions

• Planners are being asked to understand more and more

detail, on more and more things

• Get help where you can

• See Damian Kennedy - VPA and Suzanne Becker – Port Phillip

sessions tomorrow about grants, and assistance.

• Also – Office of Victorian Government Architect: Design Review

Panel.

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How do we do what we do?

• We take what we do seriously

• De Novo reviews

• Compulsory conference

• Consent orders

• Professional development: (e.g.) COAT and Members internal PD.

• We are NOT there to scare or intimidate, but we do need to fair AND

efficient:

• Section 98(1) VCAT Act…

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Need to be fair and efficientSect 98(1) – VCAT Act

The Tribunal—

(a) is bound by the rules of natural justice;

(b) is not bound by the rules of evidence or any practices or procedures

applicable to courts of record, except to the extent that it adopts those rules,

practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and

determine each proceeding with as much speed, as the requirements of this

Act and the enabling enactment and a proper consideration of the matters

before it permit.

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Need for correct information Tika v Yarra CC [2018] VCAT 894

• The importance of having accurate application plans and diligently

responding to VCAT interim orders.

• Proposal for two 3 storey dwellings, supported by Council.

• During the hearing, the VCAT identified numerous drafting errors/issues with the

application plans. An interim order was made, to allow the applicant to circulate

survey plans and modified application plans.

• VCAT found that only some of the additional necessary information was provided

in the fresh plans.

• Notably, the VCAT should not make an accurate Standard B21 ‘overshadowing’

assessment, given the on-going sub-standard plans.

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Changes to NOD dates285 Lennox Pty Ltd v Yarra CC [2018] VCAT 2029 -

• Regulation 35 change re deadline for lodging third party appeals to VCAT

deadline is now 28 days after the date shown on the NOD.

• At issue… the back of the form stated that any VCAT review must be lodged

“…within 28 days of the giving of this notice”. The NOD was sent to the

objectors 4 days after Council made its formal decision.

• Well known firm lodged its review against the NOD on what it thought was the

final day – (being 28 days from getting the notice). Dispute arose whether it was

‘out of time’.

• Held – must apply the new statutory requirement. This basic position was

unaffected by the erroneous information on the back of the NOD. VCAT’s own

application form sets out the correct position. Hence application for review was

out of time.

• VCAT placed weight on 3rd party being professionally represented by

experienced lawyers. 21

Admin matters

Accurate information is essential

to getting hearings right

(uncompleted forms not being

processed)

Every day Case management committee

works through initiating

orders, confirming orders and

other admin matters

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That is…

Every day!

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Gossip or rumour?

YES Deputy President Helen Gibson is retiring on 2 July 2019.

YES Senior Member Teresa Bisucci will take on the role of head of list on 1 July

2019.

YES and NO - VCAT PEL is going digital (Land Valuation List is a pilot)

VCAT wide – we have WiFi! (almost)

Downturn – what downturn – small overall drop in proceeding numbers (but

more major cases) and typical hearing becoming more complicated/needing

more hearing time

VCAT on the move

q YES –

q Demolition is commencing next door at 555

Collins Street imminently

q Likely more use of suburban

dedicated venues

q Charter Hall has application in to

redevelop 555 Collins with 55

King St

q YES - in 3 years we are likely to be

moving

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