Another matter John Glossop was involved with was of interest last month being Fabcot Pty Ltd v Maribyrnong CC [2025] VCAT 378. Heard over 16 days the first of which was back in November 2023 it concerned a parcel of land in West Footscray which has been the subject of several previous applications/ trips to the Tribunal. In this application, a two storey mixed use building was proposed with the question of underdevelopment being tackled in the context of the site’s activity centre location, 6,290sqm area, and a DDO with a discretionary height limit of 5 storeys/ 16.5 metres. The Tribunal found that the application represented an acceptable development outcome stating with respect to the question of underdevelopment:
66. We have been persuaded that the proposal is not an underdevelopment of the site. For the reasons previously discussed we do not find that incorporation of a residential use is essential to make the proposal acceptable. Similarly, we are not persuaded that the proposal must have a taller built form to be acceptable. A greater form of development is possible however we are persuaded by the applicant the 11.38 metre height of the building albeit at two storeys in scale is an acceptable response from a built form perspective. Whilst the built form is less than the preferred height of 16.5 metres, we find the massing and form of the proposal is an acceptable response to the preferred height.
67. DDO7 is a design and development control that provides guidance with respect to the acceptable form for development. With respect to height, DDO7 articulates a discretionary 16.5 metre height and five storeys. Taller heights may also be permissible.
68. The proposal at a maximum height of 11.38 metres is approximately 5.12 metres less than the preferred height. If the preferred 16.5 metre height were to be utilised in the context of the proposed development at least one additional floor could be achieved pursuant to the provisions of DDO7.That being said the DDO7 does not mandate development must achieve the preferred height.
69. The two storey design of the proposal is less than the four and five storeys contemplated in DDO7 for the respective site area thresholds. In the context of the development as proposed and the provisions of DDO7 approximately one additional storey could be accommodated to meet the preferred height.
70. We do not find the potential for a taller building in the context of the proposed built form and preferred height to be sufficiently disparate to render the proposal unacceptable. The built form establishes an acceptable presence to the Barkly Street frontage. The ground level street façade extends along the Barkly Street frontage and rises to a height of approximately 4.2 metres. The proposal includes ‘individual’ shopfronts and an entry to the supermarket from the Barkly Street frontage at ground level.
Every few years, an argument regarding the relationship of the NCO with Clause 54 crops up. In Rodgers v Port Phillip CC [2025] VCAT 385 the Tribunal provided extensive legal reasoning as to why:
17. The only requirement for a permit for this proposal arises under NCO5. Clause 54 is an assessment tool to be used to the extent relevant to the purposes and decision guidelines of NCO5.
18. A purposive assessment of the wording of NCO5 in its context suggests that the preferable view is that the only applicable standards of Clause 54 are those modified by Schedule 5 to the NCO, and those which are not modified but directly pertain to neighbourhood character.
19. The remaining standards within Clause 54 are not applicable to the discretion to be exercised under the NCO and the decision maker is not required to consider them.
Whilst the Tribunal acknowledged that it would be desirable for a future amendment to provide greater clarity as to the relationship between the two, perhaps this detailed decision is sufficient to resolve the question once and for all.
Dance v Colac Otway SC (No. 5) [2025] VCAT 437 seems to have been resolved first coming to attention in 2023 and stemming from the Myers decision and what the Tribunal could and couldn’t consider and the difficulties this posed for integrated decision making. In this matter the new decision of Council (the matter having been remitted previously) was affirmed with the Tribunal commenting:
33. We make the following observations that might assist to make the necessary process more efficient if this circumstance arises again in another proceeding:
– The ability to retain some involvement from a relevant referral authority (such as the CFA where planning permission is required under the BMO) as ‘a friend of the Tribunal’ can be useful; and
– The ability to utilise the remittal power under section 51(A) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) can enable a Council to bring all the planning permissions in an omnibus application back together when there are differing versions of plans and documents between the various planning permissions that are before both the Tribunal and Council.
Lastly Baenziger v Port Phillip CC [2025] VCAT 275 rates a mention for its unusual subject matter being an ‘adult lifestyle meeting place’. Whilst dealing with more mundane planning matters such as waste collection and noise, the Tribunal also relied on the often-cited findings of the Tribunal in Hunt Club Commercial that “town planning is not a panacea for all perceived social ills”. The Tribunal also addressed the less often raised question of ‘planning blight’ finding that the proposal (on land zoned INZ1 currently and earmarked to be rezoned to C2Z) did not constitute planning blight as:
65. We must apply the scheme as it stands having regard to relevant policy. The proposed use is permitted by the IN1Z in which it currently sits and is not contrary to the planning scheme provisions applying to the land or the adopted SMSP. There is no seriously entertained planning scheme amendment before us that would prohibit the proposed use. We also note that even if the land was changed to a Mixed Use Zone at some time in the future, it would not prohibit the proposed use, based on the current provisions of the Mixed Use Zone.
If Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew Gerrard (advocacy) or John Glossop (expert evidence) to discuss.camva
