Other decisions of interest last month included:
There had been some debate in the industry as to whether the Clause 55 transitional provisions extended to zone schedules given the all-important language of the transitional provision is less than clear. In Oakley Six Pty Ltd v Monash CC [2025] VCAT 648 the Tribunal was asked to specifically determine this question and to which version of a zone schedule applied; the pre-VC267 or post-VC267. The Tribunal found that the zone schedules did apply stating in part:
65. Whilst it is true that the VC267 transitional provision at cl 32.08-7 does not include the reference to ‘the variations specified in a zone or schedule to a zone’, that is not the end of the statutory construction task. I must ask what is meant by the entirety of the text of the VC267 transitional provision?
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71. Having regard to the architecture of the zone and noting that it is cls 32.08-7 and 32.08-8 that give rise to an assessment of the proposal and whether it meets the requirements of cl 55 that one really understands what is meant by ‘Clause 55’ in the VC267 transitional provision.
72. Clause 55 of any scheme is a particular provision that provides an assessment tool but the requirements of cl 55 to be applied may be specified in a schedule to a zone.
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74. The requirements of cl 55 are contained in the standards which this particular provision acknowledges can be specified in the schedule to a zone. The absence of specification of a requirement of the standards in cl 55 means the relevant requirement set out in the standard in cl 55 applies.
75. Having regard to the above, it is clear that when referring to the phrase ‘[C]lause 55 of this planning scheme’, this includes all the requirements of cl 55 wherever they are specified in a schedule to a zone in the particular provision.
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78. The parties agreed that but for the approval of VC267 the application for permit would have been assessed against the requirements of the standards contained in sch 3 to the GRZ. This is in addition to any other requirements in cl 55 that are not otherwise specified in sch 3 to the GRZ.
79. Having regard to my analysis, the above paragraph contains the complete answer to what version of cl 55 was in force immediately before the approval of VC267.
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81. Having regard to the meaning of ‘continues’, something must have existed or been in place prior to an event, suspension or interruption. The event or interruption in this case is the approval of VC267. The requirements of cl 55 that existed, or were in place before the approval of VC267 are those specified in sch 3 to the GRZ as well as other requirements in cl 55 that were not otherwise specified in sch 3 to the GRZ.
Vitetta v South Gippsland SC [2025] VCAT 583 concerned the unusual topic of underdevelopment within a country town being Leongatha. The applicant sought to construct three dwellings (including a partially existing) dwelling on a 1,214sqm property within the defined town centre area. From the decision:
15. Council submitted that the context demands ‘a greater level of change’, otherwise the municipality would be unlikely to achieve housing targets in terms of the number of dwellings sought to be provided in applicable policy documents.
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19. I queried what would be an acceptable density outcome for the subject land. Council responded that five dwellings would be an acceptable outcome (with four behind the dwelling under construction)
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38. In my view, determining factors in Tribunal decisions leading to refusal for under-development was whether the proposed development:
a. would be inconsistent with preferred built form identified in the planning scheme, or
b. would undermine the policy vision for the area in question.
39. If this lens was applied to the facts before me, there is nothing to indicate that three single storey units on a block of 1,214 square metres would be inconsistent with preferred built form.
40. Likewise, I find that the provision of three dwellings on a lot would add to dwelling numbers and diversity and would not necessarily preclude or prejudice the policy vision for Leongatha. It would also suitably align with the third purpose of the zone in particular.
41. I agree that this proposal would not satisfy some particular policy preferences, such as for innovative design, but the proposal would be acceptable nonetheless, and would be consistent with the zone purpose to encourage development that is ‘responsive’ to neighbourhood character.
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51. I am also not persuaded that a refusal of this proposal in this context would be likely to lead to a more intensive density or built form outcome in the longer term.
52. It has not been established that there is a realistic investment opportunity or housing demand for this form of development on this particular site at the edge of the Leongatha town centre, even to the period of 2036 as identified in policy targets.
Moorabool SC v Environment Protection Authority [2025] VCAT 631 attracted some media attention for the Council seeking a review of a notice issued by the EPA requiring the removal of illegally dumped waste on Council land. Put simply, Council was (is) ‘peeved’ that they were being ordered to bear the costs, circa. $500,000, to remove the waste that had been illegally dumped by other persons whom the EPA was investigating. As the Tribunal commented:
85. We accept that Council is in an invidious position.
86. It is inherently exposed to notices such as this by virtue of its control of public land, including roads under Council control or management.
87. As explained, the provisions of the EP Act extend to an owner or occupier of land, irrespective of its liability for the waste.
The Tribunal refused to stay the operation of the decision of the EPA to issue a Notice but noted Council could potentially seek to recover its costs from the polluter and/or agree a cost sharing arrangement with the EPA. Whether either happen is another matter.
With illegal dumping being a well-known issue particularly in outer suburban locations, it will be interesting to watch what happens in this case. Given the size of the bill, as one LinkedIn comment suggested perhaps a specific line on next years rates notice will be needed in Moorabool, with the Council suggesting the bill equated to $25 a person.
As always John (expert evidence) and Hew (advocacy) enjoyed another successful month in the Tribunal and if either can be of assistance with any VCAT matters do please reach out to discuss.