VCAT DECISIONS Megan Carew

Planning & Environment List

MAV Rural and Regional Planning

Conference June 2014

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Agenda

Highlight recent changes at VCAT

Overview of the role of VCAT in decision making.

Discuss some significant decisions of the Planning and Environment List over the past 12 months

Recent Changes

VCAT is transitioning to Court Services Victoria (CSV)

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VCAT Amendment Act 2014

Power to invite original decision-maker to reconsider

their decision.

Part of a proceeding can be referred to ADR and

orders can be made disposing part of a proceeding.

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Planning and Environment List

VCAT only considers a small percentage of all planning permit applications made.

Those which do come before VCAT are often complex and controversial.

VCAT has addressed the backlog of cases in the Planning and Environment List over the past year.

The number of pending matters has reduced.

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VCAT Decisions

Difficult to select cases which are of general interest or significance.

Every decision is unique and determined by the merits of each case.

It is important to understand the nature of the application before the Tribunal, the relevant legislation that applies and the nature of planning controls in the planning scheme that apply.

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VCAT Decisions

VCAT applies the law, it does not make the law.

VCAT has no say in what goes into a planning

scheme.

There is a balancing process involved between

sometimes competing policy objectives

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Using Cases

Cases can guide decision-making but the Tribunal is

not bound by precedent.

Repeat Appeals have their own principles.

Cases are are no substitute for a careful

consideration of the issues and individual merits

arising from each application that the Tribunal must

decide.

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Significant Decisions

1. Reformed Residential Zones

2. New Rural Zones

3. Bushfires

4. Balancing policy

5. Gaming

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Reformed Residential Zones

Global Alpha Group Pty Ltd v Boroondara CC [2013] VCAT 1929

10 …..these changes to zones are in the future… even if the new residential zones are gazetted without exhibition, transitional provisions allow applications lodged prior to the gazettal date to be considered without being limited by the new restrictions on height or maximum dwelling numbers”

In the meantime, VCAT is required to consider the application on the basis of the current planning controls and provisions.

Glenvill Homes Pty Ltd v Glen Eira CC [2014] VCAT 154

Application of Transitional Provisions is not straightforward.

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Reformed Residential Zones

Wonderhaze Pty Ltd v Glen Eira CC [2014] VCAT 665 (4 June 2014)

Development within NAC (Commercial 1 Zone) in Glen Eira 11. I was urged by Ms Brennan to take into account the fact that much of the City of Glen Eira is now located in the Neighbourhood Residential Zone and that development opportunities in other locations should be maximised for this reason. It is not my task to judge the application of the new suite of residential zones and how (or whether) it will affect the municipality’s contribution to growth and diversity. I must consider the permit application before me based on the Scheme as I find it. I have referred to the policies that apply. I am required to give effect to Scheme policies and, on my reading and understanding, the recent zoning changes have not changed the emphasis and direction of the policies as relevant to the dispute in this case.

New Rural Zones

Parry v Moorabool SC [2014] VCAT 635

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New Rural Zones

Parry v Moorabool SC [2014] VCAT 635

19 The changes to the State provisions have loosened the directions with respect

to the use of land for dwellings in the Farming Zone. For example, the decision

guideline “whether the dwelling is reasonably required for the operation of

agricultural activity conducted on the land” has been deleted. Despite that, the

overall aim is to protect productive agricultural land…

20 It is self-evident that it is not necessary for a dwelling to be essential or

required in supporting agricultural production (although that would be a relevant

factor should it be the case in a specific proposal). Rather, the decision

guidelines are seeking to demonstrate how a dwelling supports and enhances

agricultural production…

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Bushfires

Understanding the concept of risk. State Policy protection of Human

Life.

Planning controls are still changing.

Detailed consideration is required of the context of each site.

Use and application of the Bushfire Management Overlay, relevant

guidelines and practice notes.

Vegetation Removal

Balancing competing objectives

References

VPRs Volume 1_ 11_ VCAT editorial comment

Beaton v Nillumbik SC [2013] VCAT 2130

Country Fire Authority v Hepburn SC [2014] VCAT 16

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Bushfires

Beaton v Nillumbik SC [2013] VCAT 2130

30 The submissions of the CFA have described conditions that lead me to

conclude that the broader landscape context of this site is subject to a

high risk of impact from extreme bushfire events this was clearly

demonstrated in the Black Saturday fire. While it is difficult to package

this site into a landscape context, I was not convinced by the evidence

of Mr. Nicholson that this area is in Landscape Scenario A rather than

C after my inspection because of the variation in topography more

broadly around the site, the proximity of public land areas and the

extent of vegetation cover. I agree with the CFA that the landscape has

the potential for long fire runs in forest or heath type vegetation with

minimal fragmentation.

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Balancing Policy

Stewart v Moyne SC [2014] VCAT 360 (31 March 2014)

Subdivision in Port Fairy 230 m north of the Southern Ocean

coast at Pea Soup Beach in Port Fairy and adjoins the central

part of a wetland known as the Powling Street Wetlands

Repeat Appeal

Habitat considerations

Balancing Policy

102…..Planning requires us to balance sometimes competing needs. In

this instance we give weight to the fact that this land, for whatever

reasons remains zoned for residential purposes. Its development

accords with this purpose and is supported by a number of State and

local planning policies that direct development of such land within

existing urban nodes in order to reduce pressure on expansion beyond

present coastal urban boundaries. The balance then is while some

Latham’s Snipe habitat would be lost, this can be balanced by retention

of key habitat and reduced development pressure on nearby rural land

that also plays a clear role in supporting this important bird species.

We thus view the loss of the two ephemeral wetlands as an acceptable

planning balance between competing outcomes.

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Gaming

There is a difference between Planning Merits and an application under Gaming

Legislation. The planning considerations focus on social and economic impact

of the location of gaming machines.

Gaming cases are different. Under Gaming legislation the consideration is

whether the net economic and social impact on the machines would be

detrimental to the well being of the community of the municipal district.

References:

Melbourne CC v Kingfish Victoria Pty Ltd & anor (includes summary) (Red

Dot) [2013 VCAT 1130

Hunt Club Commercial Pty Ltd v Casey CC [2013] VACT 725

Stonnington CC v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC

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Summary

The planning world as we know it is changing….. Global Alpha Group Pty Ltd v Boroondara CC [2013] VCAT 1929

VCAT will continue to publish decisions that it considers of particular interest in terms of interpreting legislation, planning schemes and policies, or points of law or being of general planning interest or significance.

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