In Hepburn SC v Coward [2025] VCAT 784 a described ‘sovereign citizen’ took on the Tribunal’s jurisdiction to hear and determine an application for contempt made by Hepburn Shire Council. Needless it to say it did not go well with the Tribunal finding her arguments amount to legal nonsense and incapable of coherent argument. To go off on a tangent, as someone who enjoys conspiracy theories the following line grabbed my attention:
17(d) She submits that the Authority of Australian Governments is subject to the right to self-determination of whom she calls ‘the people’ who, she says, are ‘known in the title of the United Kingdom of Australia’ represented in title by the ‘Australian Privy Council’ and in title by the ‘Most Noble Order of the Desert Flame’ – see her submissions para 116 – 210.
Unfortunately though neither Google nor ChatGTP were able to tell me anything about the ‘Most Noble Order of the Desert Flame’ suggesting it was either made up or an incorrect reference to the popular cultivar name for two Australian native plants. Shame.
Readers of VCAT decisions will recall the decision of Crothers v Moira SC [2019] VCAT 342 where the Tribunal was scathing of a food and drink premises stating This is one of the most poorly conceived and incomplete applications I have been asked to review as a Tribunal Member. Well there is a new contender! In Ticehurst v Moorabool SC (No. 2) [2025] the Tribunal considered a proposal to place fill up to 30cm in depth over 1,500sqm of land. However, the Tribunal was hamstrung by the information consisting of what can only be described as a very rudimentary hand-drawn plan, and a soil report which relates to a site where the fill has been sourced from finding that it was impossible to determine what is proposed. The Tribunal though reserved its greatest criticism for the Council stating:
20. In light of the scant information the council did have, it is quite surprising that no further information was requested by the council. Moreover, I find it remarkable that the council chose to progress the application, and astonishing that it chose to grant approval for it.
21. In this regard, whilst it is incumbent upon permit applicants to provide information that enables a decision maker to properly assess the application, the council has a duty to properly administer its own planning scheme by ensuring that planning permit applications are properly administered and assessed. This requires adequate information to be provided or requested by the council in the absence of such. The council has the power to request further information, and if that is not forthcoming, it can determine to refuse an application on that basis. It is incomprehensible in this case, why that did not occur.
From a more merits based perspective the following three decisions were also of interest last month.
The use of green wedge land for institutional type uses such as churches and schools has often been a source of contention. In Peters v Casey CC [2025] VCAT 848 such an application was considered with the Review Site notably being on the green wedge side of the UGB with land opposite and within the UGB earmarked for residential purposes. Further the road on which it was located was to be upgraded to a four-lane arterial road. The Tribunal refused the application stating:
32. I recognise that there may be circumstances where it may be appropriate to grant approval for a place of worship within the GWAZ2, however I am not persuaded that this site is one of them. Firstly, I am not clear from the policy context where the preferred location for places of worship within the Casey green wedge areas should be located. Secondly, the isolated nature of the site from public transport and a township or activity centre suggests that this site does not enjoy the locational attributes where community, social or cultural uses should be encouraged to establish.
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46. However, in the context that the site:
a. does not have access to public transport; and
b. has not been located in or near a township or activity centre;
c. will establish a non-agricultural use that is not a use specifically encouraged in this zone:
d. is not an area designated for change and growth or clearly expressed as preferred location for a place of worship;
I find that I am not satisfied that this is an acceptable location for a place of worship.
The emphasis on access to public transport and proximity to an activity centre is of particular note given this is not something which the Tribunal has traditionally placed great weight upon in similar matters, particularly when the urban growth front is close by.
Mackay v Boroondara CC [2025] VCAT 855 concerned a fairly standard medium density residential development. Post-conclusion of the Hearing, Amendment VC283 (the Plan for Victoria amendment) was gazetted and as standard practice the Tribunal gave opportunity for the parties to make any submissions concerning this amendment. The objector applicants highlighted Clause 12.06-1S ‘Urban forests’ which as a strategy seeks a 30 per cent tree canopy target and Clause 13.01-3S ‘Urban heat’. The applicants contended that the tree canopy coverage on the site was only 20.4% and therefore fell foul of these new clauses. The Tribunal disagreed stating:
32. With regards to these policies, I note the reference to the tree canopy target relates to urban areas and not to individual lots and to urban areas that include both the public and private realms. Accordingly, I do not consider the proposal results in an adverse impact on the achievement of the tree canopy target set out under the policy.
33. I also consider the proposal achieves an acceptable response regarding urban heat. There is a balance to be struck, and I consider the proposal achieves this through providing for passive heating with northern orientation of habitable rooms, provision of eaves, compliance with garden area requirements and landscaping that includes canopy tree planting.
The question of whether an existing attic represented a storey and therefore an existing dwelling was in fact three storeys was explored in McGauran v Port Phillip CC [2025] VCAT 859. Riding on the determination was whether an extension to the dwelling could rely on the exemption contained within the NRZ that an extension can exceed the building height limit if the existing dwelling already does. The permit applicant and Council submitted that the existing attic did constitute a storey based principally on an approximately 22 square metre area being useable (with a head height of approximately 3.1 metres) and that it went beyond just a simple roof cavity. The applicants for review disagreed relying primarily on the construction features (or lack of) of the area. The Tribunal in finding that the area did not constitute a storey made the following findings:
34. The exemption provision allows for both the maximum height and maximum storeys to be exceeded if they are essentially replacing what is already existing. However, the exemption does not allow the addition of height or storeys where they did not previously exist.
35. In this context, the external appearance is important.
36. It is notable also that clause 32.09-11 includes the following:
A basement is not a storey for the purposes of calculating the number of storeys contained in a building.
37. That inclusion, in my view, supports the impression that the control is primarily concerned with external height and character, as it clarifies that an underground level, which would likely otherwise be considered a storey, is not relevant in assessing storeys within this clause.
38. However, the inclusion of the words ‘must not contain a greater number of storeys’ must have some work to do in addition to the maximum height provision expressed in metres. I find that it does require a consideration of both the external and internal makeup of the building in question. It can be the case that a storey, be it a mezzanine, attic or storey of some other description, could be included in an existing dwelling without being clearly visible externally. If it is for all practical purposes a storey, it must be considered as such for the purpose of this clause.
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43. Ultimately, the question before the Tribunal is how many storeys are contained within the existing dwelling on the subject land?
44. Stepping back and reviewing this building without the benefit of all of the legal argument, the answer of an ordinary person would be two. The external appearance from the street is of a double storey dwelling with a pitched roof. If you were visiting the dwelling, you would observe two storeys within it. You may see a manhole in the ceiling and assume that it provides access to the roof space and/or potentially some storage space not easily accessed. If the dwelling was for sale, it is highly unlikely that it would be advertised as a three storey dwelling. This is consistent with plans having been drawn up initially for the proposal that did not include a third floor within existing conditions. Even the plans prepared dated August 2025, while showing this area as an attic, do not include any dimensions of width, depth or height.
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47. The roof space within the dwelling on the subject site could meet the definition of Storey in the Scheme but would lead to an absurd outcome. Both the council and the applicant submitted that this space was ‘on the spectrum’, in the sense of not being a roof space in which one must crouch and crawl but also not clearly being a space that is conclusively a storey or an attic.
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50. The existing condition is that of a double storey building with roof space that is used for limited storage and accessible only via a manhole, with no stair access. The floor consists of boards placed over some of the area and is not fully formed, and the area above is the roof of the building, which is arguably not a ceiling for the purpose of the Storey definition. Whilst the space is trafficable and functional for the items that are stored there, and includes areas that can be traversed in an upright position, much of the space is not trafficable, it is not easily accessed, and the height of the cross beams means that walking across it is not straightforward.
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52. I consider that this space directly below the roof of the house could be considered an attic, having regard to accepted definitions of attic. However, the definition of Storey does not require that an attic must be a storey but says that a storey may include an attic. In the facts and circumstances of this case, I consider that a finding that this attic space constitutes a storey would lead to the absurd outcomes referred to by the Tribunal in Drossos.
If Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) to discuss.