Decisions of interest include:
Cimino v Bayside CC [2025] VCAT 1096 involved a conditions appeal concerning the proposed removal of two trees under a VPO. In short, Council approved the removal of one tree but not the other via condition. A question arose at the Hearing as to whether a permit was now also required under the new Clause 52.37. The permit applicant submitted one was not required relying on the transitional provision the removal, destruction or lopping of a canopy tree in accordance with a permit granted under another provision of this planning scheme before the approval date of Amendment VC289. Notwithstanding that the permit didn’t allow the removal of the tree in question, the Tribunal agreed with the permit applicant stating:
58. I conclude that the question of whether the transitional provision relied on by Mr Cimino applies in the circumstances of this proceeding is to be answered in the affirmative. This is because:
- The permit was issued before the approval date of clause 52.37, as set out above.
- The application for review is one where the applicant seeks review of a permit that has been issued, to use the language of section 80 of the PE Act.
- My decision is made under the powers of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) and section 85(1)(e) of the PE Act to:
- vary the decision of the decision maker;
- direct that a permit ‘must or must not contain any specified condition’; and
- these powers to make such orders, when read in conjunction with section 80 of the PE Act which invokes the jurisdiction of this Tribunal, applies to a permit that has been issued.
59. Accordingly, I am not directing the grant of a permit after VC289’s approval date. The permit was granted on 21 August 2025 and so before that date. My exercise of the relevant powers under the PE Act and VCAT Act is to vary the decision as if it were made at that date with different conditions. As such the date of the grant of the permit is not varied. It was and remains as a permit granted before the approval date. Accordingly, the transitional provision applies.
STB Property Holdings Pty Ltd v Banyule CC [2025] VCAT 1018 (in which John Glossop gave evidence) and Mint Property Group Pty Ltd v Banyule CC [2025] VCAT 1052 both of which related to applications in the designated Postcode 3081 area. In STB the Tribunal approved seven dwellings in a four storey form, whilst in Mint the Tribunal refused 12 apartments in a four storey form. Both made similar comments as to the ‘encouragement’ given within the zone and relevant DDOs as to site consolidation.
In STB the Tribunal stated:
15. It therefore follows that if the preferred scale and housing diversity can be achieved in the absence of site consolidation, then that is a development that would be supported by this provision of the Banyule Planning Scheme. In this case, the design response demonstrates that a development of four storeys in scale, containing a diversity of apartments and townhouses, and a relatively high yield for a site of this size, can be achieved in the absence of site consolidation. On this basis the encouragement for site consolidation is noted, but is not necessary in order to achieve an outcome consistent with the policies and provisions from the Banyule Planning Scheme, as they apply to the review site.
In Mint the Tribunal stated:
26. To put the issue of consolidation in simple terms, the planning scheme does not contain the mechanism to ‘require’ consolidation for development to occur. Despite the call for consolidation being ‘encouraged’ within the planning scheme, the planning scheme does not prohibit development if site consolidation does not occur. Ideally, site consolidation can have positive outcomes in terms of development in that a larger site can accommodate a larger development. I agree with the submission of council that site consolidation can be the ‘enabler’ to achieve a desired scale of built form. But, the planning system cannot force people to sell/buy and consolidate land. What is proposed and before me, is the development of a single site.
Both decisions also supported a waiver of the respective visitor car parking requirements based on existing on-street car parking supply. The Tribunal noted in Mint though that:
63. …I share council’s and the objectors’ concern that if visitor car parking is reduced to zero in each future building, it will be difficult for the street to accommodate anticipated on street parking….
With The Age recently reporting that car parking requirements for apartments near train stations will be removed or reduced, it will be interesting how middle/ outer suburban areas adapt.
Bryant v Stonnington CC [2025] VCAT 986 concerned two objector applications to cancel a permit that was negotiated at a Compulsory Conference between the permit applicant and Council on the basis that notice of the application for review was received significantly after the date by which the Tribunal had ordered notice be given. In short, notice was required by 10 July with Statement of Grounds due by 28 July, however several objectors indicated they only received the notice around 24 July. The permit applicant provided an affidavit that notice was given on 7 July with the Statement of Service submitted to the Tribunal on 9 July.
On this question of ‘where did the mail go for 17 days?’ the Tribunal found:
63. I am unable to form the view that notice was not given in accordance with the PE Act, even though I accept that copies of the relevant documents were received by them later than would have been expected.
64. I am not required to interrogate the circumstances surrounding the receipt of each item of mail. This is consistent with the operation of the PE Act. If the Tribunal were required to interrogate the circumstances and fate of every item of correspondence sent to notify people of planning applications including whether the person served had actually taken delivery of notification given by mail, this would significantly impair that ability to make decisions. As Mr Bryant rightly said at the hearing he does not know whether his neighbours check their mailboxes and nor could the Tribunal.
65. My findings are consistent with those of DP Gibson in Stratiou v Darebin CC. She states:
It is relevant that the ground in section 87(1)(e) refers only to a failure to give notice. It does not refer to failure to receive notice. It would be most unfair to a permit holder if a permit could be cancelled or amended at the request of a third party when all the procedures specified under the Act relating to the issue of the permit had been complied with simply on the basis that, for some reason, the notice given did not come to the attention of the objector even though it was sent.
66. I find that service has been affected in accordance with the requirements of the Act.
Ballarat Cinemas Pty Ltd v Ballarat CC [2025] VCAT 1029 concerned an application to cancel a planning permit and three subsequent amendments granted to it by the permit holder. The permit and the amendments all concerned an on-premises liquor licence granted under then Clause 52.27 and dd not concern any other permissions. In granting the request the Tribunal made the following comments:
17. Effective on 1 July 2025, clause 52.27 was removed from the planning scheme when Amendment VC286 (‘VC286’) commenced. VC286 was prepared, adopted and approved by the Minister for Planning without notice.
18. VC286 included no savings provisions for permits issued under clause 52.27 or transitional provisions for applications for permission made under cl 52.27 but not yet determined by a responsible authority or the Tribunal.
19. It would have been possible for VC286 to have included a savings provision that permits issued under clause 52.27 (or a specified category of them) continue to have the same status, operation and effect as they had if clause 52.27 had not been removed from the planning scheme.
20. The explanatory report for VC286 and the Minister’s published ‘reasons for decision to exercise power of intervention’ (‘Minister’s reasons’) to prepare, adopt and approve VC286 make no reference to whether it was intended that permits issued under clause 52.27 should be saved.
21. As a matter of completeness, clause 52.27 was not removed and replaced with a different provision to similar effect to clause 52.27. I make this observation simply to note that the repeal and re-enactment provisions in section 30 of the Interpretation of Legislation Act 1984 (Vic) are not engaged.
22. The implication from the text of VC286 as a whole is that there was no intention to save permits issued only under clause 52.27.
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55. It almost goes without saying that the removal of a provision in a planning scheme under which permission is required is a material change of circumstances in a request to cancel a permit issued under the provision before it was removed. I agree that VC286 is a material change of circumstances.
56. VC286 does not have any savings provisions for permits issued under clause 52.27 before it was removed. The implication is that a permit issued only under clause 52.27 has no continuing effect even though it has not expired.
57. The explanatory report and Minister’s reasons make it clear that the purpose of VC286 was to remove regulatory duplication with the issue of licences under the LCR Act. In other words, it confirms an intention for planning schemes to vacate the field of regulating the use of land for the sale and consumption of liquor.
58. In considering cancellation of a permit, I need to take into account relevant matters, including matters as if the request were an application for review. To the extent these matters can be encapsulated as matters going to the merits of the request, the cancellation of the permits will not allow any material change in the operation of the cinema because the conditions of the licence are consistent with the conditions of the permit.
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68. It should not be inferred from this proceeding that every permit issued only under clause 52.27 needs to be cancelled by a request under section 87 of the PE Act to achieve consistency with the legal effect of VC286.
69. It may be appropriate in some circumstances if an owner chooses to make a request – as Ballarat Cinemas has done in this proceeding.
70. I have already mentioned that the licence includes ‘general information’ that ‘[a] liquor licence does not override local laws, planning schemes and conditions on planning permits’.
71. If Ballarat Cinemas’ underlying concern is that the licence may authorise the continuing effect of the conditions of the permits, the concern may be misplaced because:
(a) it is doubtful that the licence ‘general information’ has any legal effect;
(b) the conditions of the permits do not appear to conflict with the licence conditions; and
(c) even if the ‘general information’ has legal effect, it might be properly interpreted to only refer to ‘conditions on planning permits’ if those permits have legal effect.
72. If there is no dispute or likely dispute that a permit issued under clause 52.27 has no legal effect, no further action may be necessary.
73. If there is a dispute about the legal effect of such a permit, an enforcement order application or a declaration application might be an alternative means of resolving the dispute.
74. If action of a more ‘across the board’ nature was thought to be desirable, a request to amend the PE Act or relevant planning schemes could be considered.
75. The parties did not bring it to my attention at the practice day hearing, but I have now observed that the Planning Amendment (Better Decisions Made Faster) Bill 2025 is currently before the Parliament and clause 118 of the Bill inserts the following new section 69D of the PE Act:
69D Permit ceases to have effect in certain circumstances
If the subdivision of land or an amendment to a planning scheme means that a permit is no longer required for a use or development of land that was earlier approved under a permit, that permit, and any conditions of the permit that were applicable to the use or development, cease to have effect.
76. Section 69D appears to apply to the circumstances in this proceeding. Absent this request, the section if enacted might have brought to an end the legal effect of the permits and the conditions of the permits. However, it is unclear whether section 69D as presently drafted would apply to an amendment to a planning scheme made before the commencement of section 69D if it were enacted.
If Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) to discuss.