However, it is likely the decision of Moser v Baw Baw SC [2023] VCAT 367 which was perhaps the most notable for the month in that it effectively overturns Peninsula Blue with respect to notion that an intensification of use constitutes an alteration of access. While there have been other decisions of the Tribunal over the years which have dissented from the findings of Peninsula Blue, this decision is of most weight given it was issued by Deputy President Bisucci. The Deputy President agreed with these previous dissenting decisions stating:
23. The application for planning permit does not include any physical changes to the existing access arrangement. Therefore, no permit is required under clause 52.29 of the scheme.
Other decisions of interest were:
- Investar Investments Pty Ltd v Maroondah CC [2023] VCAT 361 and Planning & Design Pty Ltd v Banyule CC [2023] VCAT 443 which both concerned the question of ‘underdevelopment’. In the Maroondah matter, a permit existed for a three storey building containing eight two bed apartments and a new permit was sought for four three storey dwellings each containing four bedrooms. The permit applicant in part submitted that the existing permit was unlikely to be acted upon and that in the broader scheme of things a difference in four bedrooms was negligible. The Tribunal found against these submissions, in part stating:
45. I am not persuaded by the applicant’s submissions that the purpose of the exercise is to get more people living in the ACZ1, and that three four-bedroom dwellings in essence cater for the same number of people as six two-bedroom dwellings, and that the net difference between the permitted development and this proposal is four bedrooms. Although larger dwellings may accommodate larger families or ‘share-house’ households, in the context the expected household size of around 2.11 or 2.3 people, I do not find the applicant’s arguments persuasive.
55. I am also not persuaded by the applicant’s argument that, as the permitted development will not be acted on, “an even worse outcome and a higher degree of underdevelopment is no development”.[27] Rather, I am persuaded by the Council that if permitted, the dwellings in this current application will be there for a long time, and if these dwellings are subdivided the site will be fragmented and preclude the long term achievement of the policy for the Ringwood MeAC. Refusing a permit for this proposal will retain the potential for the subject land (whether, or not, consolidated with the adjoining property) to be developed in a manner consistent with the expectations for the ACZ1 and Ringwood MeAC.
In the Banyule matter, a permit was sought for three double storey dwellings on a lot, with the permit applicant stating that lot consolidation to achieve greater density/built form was not possible due to a lack of interest from neighbouring landowners and therefore what was proposed represented the best case scenario. The Tribunal found against these submissions, in part stating:
46. I am not persuaded by the applicant’s argument that “where consolidation cannot be achieved, … the best case development outcome that can be achieved in relation to meeting the objectives of the planning scheme, should not be denied”. I am not persuaded that this proposal, for three, two-storey townhouses, represents a ‘best case development outcome’ given the planning provisions and policies.
53. Even if it may not be possible to accommodate an apartment building or six storey development on the subject land as a single development site, this does not persuade me that a development of only three, two-storey townhouses is an acceptable response to the planning provisions and policies. If the subject land is to be developed as a single, unconsolidated site, it requires a more innovative design response to provide an acceptable response to the degree of change sought by the planning provisions and policies.
- Phelan v Port Phillip CC [2023] VCAT 376 which affirmed the decision of Kevak Hotels Pty Ltd v Darebin CC [2022] VCAT 318 that a Hotel which benefited from existing use rights did not require a planning permit under Clause 52.27 to extend the hours of trading, increase the number of patrons allowed, and increase the area that liquor is allowed to be consumed or supplied.
- 495 Springvale Pty Ltd v Greater Dandenong CC [2023] VCAT 427 which highlighted that in some circumstances a Responsible Authority is required to provide a Statement of Grounds in VCAT proceedings pursuant to Clause 56 of Schedule 1 to the VCAT Act. The Tribunal noted:
51. The reality of many planning proceedings is that this requirement is often not enforced by other parties or the Tribunal. I can only surmise that this is probably because there is a Council officer report that does explain the reasons why a decision or a particular aspect of a decision has been made. In such circumstances, other parties may have no need to pursue a statement of grounds from a Responsible Authority in order to understand the case that they need to respond to. That is not the circumstance in this proceeding though. As already explained, there were no reasons provided in the Council officer report or in any other planning application related documentation that explained the reasons why condition 1.1 was imposed.
52. The Council relied on section 59(1)(b)(ii) of the VCAT Act, stating that it was the decision maker and a respondent to the application for review as a reason why it did not have to prepare or serve a statement of grounds. Section 59 is about who the parties are in a proceeding. It is correct that it identifies the decision-maker who made the decision as a party in a proceeding in the Tribunal’s review jurisdiction (e.g., a section 80 application to review conditions). But that is all section 59 does. Who is required to lodge a statement of grounds is found elsewhere in clause 56 of Schedule 1 to the VCAT Act. In other words, section 59 does not override the requirements contained in clause 56 of Schedule 1.
53. The Council also relied on the fact that the initiating order did not specifically require the Council as the Responsible Authority to prepare or serve a statement of grounds. It is correct that the initiating order does not state that, but it does not have to because it is stated as a requirement in certain circumstances in clause 56 of Schedule 1 to the VCAT Act. The content of an initiating order does not override the requirements contained in the VCAT Act. One of the key aspects to the content of an initiating order is to set up a chronology of timing for tasks to be undertaken by various parties in order to ensure the overall processing of a review proceeding successfully reaches its allocated hearing date. The time within which a statement of grounds must be lodged in a proceeding is controlled either by an order of the Tribunal or in accordance with Rule 8A.02.
- Anaya & Aarya Pty Ltd v Brimbank CC [2023] VCAT 413 which concerned a development of six dwellings on land where an EAO applied. The EAO can be ‘dismissed’ as something to be satisfied via permit condition based on an earlier VCAT decision, however, in this matter the Tribunal confirmed that there will be occasions when it remains inappropriate to defer an environmental audit to a condition of permit and it is instead necessary to provide the audit upfront.
- Lastly, Parsons Promenade Pty Ltd v Greater Dandenong CC [2023] was a more unusual matter involving a declaration as to whether ‘The temporary storage of deceased bodies in a small cool room in the existing warehouse is part and parcel of the warehouse use for which no further planning permit is required’. The permit applicant argued that this temporary storage was a warehouse use in the circumstances where the bodies were simply stored as opposed to also examined or viewed by family members. The Council considered the use better defined as the undefined term of ‘mortuary’ requiring a planning permit. The Tribunal agreed.
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.
