John Glossop was amongst the winners again giving evidence in a dwelling in proximity to a wind energy park matter and a proposed veterinary clinic matter. Artificial intelligence made its first substantial appearance in Bangholme Investments Pty Ltd v Greater Dandenong CC [2025} with an objector relying on an AI search to support their joinder application. As outlined:
- Alan Hood did not dispute that he received the initial correspondence nor that he should have lodged his statement of grounds by 30 January 2025, rather he says that he did not properly understand the process and that he was expecting that he would receive further information from the Council about the Tribunal’s process.
- As the date for the compulsory conference approached, Alan Hood became concerned that he had not heard anything further about the matter. He emailed the Council who told him that he was not a party to the application. He investigated further.
- Alan Hood filed a number of documents with the Tribunal which explained his position and his reasons for filing his statement of grounds out of time. These included his correspondence with the Council and the results of an artificial intelligence search (‘AI search’) he conducted. He says the AI search inferred that the Council was supposed to notify objectors. It said:
- The result of the AI search is plainly incorrect. Alan Hood had already received notification of the application from the applicant including the information he needed about the steps he was required to take to become a party to the application. In hindsight, Alan Hood readily accepted the proposition that reading the documentation provided to him rather than conducting AI searches would have been a preferable course.
Not only was I able to replicate a very similar response but indeed AI told me that objectors were able to apply to VCAT for a failure to determine…
In other decisions of interest:
Amsellem v Merri-bek CC [2025] VCAT 309 should be noted by those Councils who issue decisions via a covering letter containing a hyperlink to the actual decision. In this matter, concerning an application for review made outside of the prescribed time, the applicant for review in part contended that the hyperlink provided didn’t work. Whilst at the Hearing, the Council showed the hyperlink to be working. The Tribunal not only accepted, in the absence of evidence to the contrary, that the link did not work within with the 28 day review period, but found that giving a copy of the notice of decision via a hyperlink did not itself satisfy s64(1) rather that it was when the receiver in turn was able to access the hyperlink that s64(1) was satisfied. In this respect the Tribunal stated:
37. Therefore, read in light of ss 13 and 13A of the ET(V) Act –
- where a responsible authority gives a notice to a person under s 64(1) of the PE Act via an email communication by way an attachment to the email communication, the time that the email communication is given, that is dispatched, is the time when the email leaves the responsible authority’s information system; and
- where a responsible authority gives a notice to a person under s 64(1 of the PE Act by the inclusion of a hyperlink to an address within the responsible authority’s own information system, the time that the notice is given to the recipient is the time that the notice is received by the recipient which under s 13A of the ET(V) Act is when the hyperlink is capable of being retrieved by the recipient at the address given by the responsible authority.
- Regulation 53 does not change the operation of either s 13 or s 13A of the ET(V) Act but rather it mandates that a notice or document cannot be either given or served via a electronic communication that is a hyperlink or otherwise an electronic address within a responsible authority’s own information system that requires the recipient to retrieve the notice or document by the action of the recipient without the express consent of the recipient to this way of giving notice being first obtained by the responsible authority.
Common Heath Projects Pty Ltd v Moonee Valley CC [2025] concerned a multi-dwelling development that Council refused for a broad range of reasons including in relation to waste collection management. In respect of waste collection, the Tribunal made the following comments:
- The council was concerned about the lack of space for bin storage within each dwelling, particularly given the impeding increase in the number of different bins the council will soon require for different waste types, as well as across the site frontage and the ability to move bins down a bluestone laneway.
- Standard B34 of Clause 55.06-4, Site services, seeks bin storage to be adequate in size and conveniently accessible by residents.
- The proposed bin storage areas for each dwelling are underneath the stairs and are approximately 2.5 square metres in area. Standard B34 does not specify a minimum area. However, four larger sized wheelie bins could easily be stored in such an area. I am therefore not persuaded that there is inadequate space for bin storage.
- In relation to the need to wheel bins down an uneven bluestone laneway, I accept that this is not an ideal outcome. However, I am, again, not persuaded that such an inconvenience to future occupants of dwellings 2 and 3, nor the infrequent noise created by this activity to existing nearby residents on two occasions per week, is likely to be unacceptable in this inner urban environment.
- With respect to there being inadequate site frontage to accommodate all of the different types of bins provided to residents, this may well be the case. However, with the advent of the changes in waste collection being introduced by councils, perhaps greater accompanying innovation is also required to address such concerns. This is something that I find should not be an impediment to development, where the planning scheme and the Planning and Environment Act 1987 (Vic) actively seek to facilitate development.
The comments of the Tribunal regarding site frontage are of interest given ‘congestion’ on natures strips is a common issue with the increasing number of bins needed.
Ritchie v Bass Coast SC [2025] VCAT 292 concerned a proposed single dwelling. There was argument as to whether the land, however, was required to be developed for ‘wetlands’ as per a Development Plan prepared. In short the Council’s position was that the proposal was not in accordance with the DP as it did not provide for a wetlands, whereas the applicant effectively argued that the Council had missed the chance and there was no requirement for the land to be developed as a wetlands. In a detailed decision spanning the history of the DP (1992) and the original subdivision permit (2002), the Tribunal found:
- The certificate of title for the Land does not set aside or demarcate the wetlands area as a reserve or common property, nor is the certificate of title subject to any encumbrance or restriction requiring the Land to be developed with a wetlands area.
- The Council cannot now rely on the conditions of the 2002 Permit to impose an encumbrance or impediment on the Land in the form of a requirement to develop a wetlands on the Land, because this was not imposed by PS524032Q through which the title for the Land issued.
- Notwithstanding what might have been the intention of the Council at one time in relation to the creation of common property or a reserve in this subdivisional area, given what has arisen as a consequence of the registration of the various plans of subdivision, including PS524032Q, such intentions are unrealised. Nor, it would seem, has the Council taken any other steps to rectify this situation in the last 23 years (i.e. since the issue of the 2002 Permit).
The Tribunal subsequently answered ‘yes’ to the applicants question for law that Having certified a plan of subdivision which created Lot 29 on PS524032Q, being the land comprised in certificate of title Volume 10924 / Folio 790 (‘the Land’), does the operation of sections 6 and 13 of the Subdivision Act 1988 prevent the Council from now arguing that the proposed development is not generally in accordance with the Ruttle Lane Development Plan because it does not nominate the Land or part thereof as a reserve?
If Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) to discuss.
