June VCAT Review

There were 70 published decisions of the Tribunal from the Planning and Environment List in the month of June, including two Red Dot decisions; Myers v Southern Grampians SC (Red Dot) [2022] VCAT 695, which concerned the Tribunal’s jurisdiction/ extent of consideration in an objector appeal when some planning permit triggers ‘switched off’ third party appeal rights, and Dahlenburg v Hindmarsh SC (Red Dot) [2022] VCAT 669, which concerned the expiry of amended use and development permits.

Of interest also were:

  • George 21 Pty Ltd v Mitchell SC [2022] VCAT 611, which involved a medium density housing proposal within the equine precinct of Kilmore. The Tribunal found that the strategic aspirations of the area were ‘mixed and confusing’, with policy equally supporting both medium density development and equine related land uses which raised an inherent land use conflict. In finding against the proposal and ‘strongly suggesting’ Council review its strategic planning for this area, the Tribunal effectively came to the same conclusion as a Planning Panel recently did in proposed amendment C154mith. In that matter, the Panel recommended a proposal to rezone land within the same equine precinct be abandoned and Council undertake further strategic work to determine the role and directions for the equine and horse racing industry and Equine Precinct in Kilmore.  
  • Newport Mill Property No 1 Pty Ltd v Hobsons Bay CC [2022] VCAT 648, which involved an application to delete a condition requiring artwork to an otherwise apparently blank and graffiti covered façade fronting a rail corridor. In deleting the condition, the Tribunal principally relied on the submissions and evidence of VicTrack that the condition posed a rail safety risk and noted that the failure to provide a setback from the rail corridor to provide artwork or otherwise was a lost opportunity. Interestingly, the Tribunal also commented regarding improving the amenity and outlook to rail commuters and the public realm, I do not consider this to have much value given train speeds in the area are between 50 to 80 kilometres per hour and any views would be fleeting. There is no housing that has a direct view of the eastern walls of the newly constructed storage units as they present to the Viva Energy Newport Terminal to the east.
  • Sharma v Greater Geelong CC [2022] VCAT 736, which involved an application being remitted to Council for consideration. A s79 matter, the Council submitted that it was unable to formulate a position until further information was received, while the permit applicant submitted the necessary information would be provided as part of an amended plans request. The Tribunal essentially agreed with Council partly stating Whilst section 127 of the VCAT Act, clause 64 of Schedule 1 of the VCAT Act and PNPE9 provide mechanisms for amendments to be considered, that does not mean that incomplete applications that are incapable of being assessed should be ‘cured’ using these mechanisms.

Glossop Town Planning continues to appear before the Tribunal representing public and private sector clients 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.

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