Those decisions of particular interest last month were:
Hung Thinh No. 3 Pty Ltd v Hobsons Bay CC [2025] VCAT 899 and Kwan v Greater Bendigo CC [2025] VCAT 902 which both included commentary around the recent change in the GRZ Purpose from encouraging development that ‘respects’ neighbourhood character to development that ‘responds’ to neighbourhood character. In Hung Thinh the Tribunal commented:
44. I have referred to the Amendment VC267 explanatory report which states the amendment makes consequential changes to the VPP and all applicable planning schemes to modify the purpose to “respond to neighbourhood character” at clauses 32.05, 32.08, and 32.09. However, I could not see any explanation as to why the purpose of the zones were changed from respect to respond.
In Kwan the Tribunal likewise commented:
12. The explanatory report associated with this planning scheme amendment does not include reasons for the change in the wording of the purpose of the zone. As such, council and the applicant both made submissions about what the change from being respectful of neighbourhood character to being responsive to the neighbourhood character means.
The Tribunal in Kwan went further exploring PPN43 for references to ‘responsive’, the Macquarie Dictionary definition of responsive, and reviewing other Tribunal decisions that had grappled with this change in Purpose. The Tribunal found that the change from ‘respect’ to ‘respond’ means there is greater design latitude for a design in responding to the neighbouhood character (paragraph 19) stating:
17. I will endeavour to explain the difference that I see in these definitions in regard to neighbourhood character. ‘Respectful’ is expecting something to be closer to the original, whereas ‘responsive’ is expecting a design that responds to its influences but it is not saying it needs to be closer to the original.
With recently announced proposed changes to the Planning and Environment Act 1987 restricting third party appeal rights, Gurkin v Stonnington CC [2025] VCAT 854 and Gurkin v Stonnington CC (No. 2) VCAT 900 provides fertile grounds for advocates of such reforms. The first decision concerned a Practice Day Hearing seeking summary dismissal of an objector appeal on the grounds that the objector was no longer a person whose interests were affected. In short, the objector was the owner/ occupier of the adjacent property but shortly after lodging their appeal no longer was the owner/ occupier having sold the property. The objector nevertheless sought to continue their appeal on the basis they now lived in a nearby street even suggesting they were intending to rescind the contract of sale. The Tribunal struck out most of the grounds of appeal but allowed a ground concerning the reduction in car parking to continue provided the objector produced evidence concerning ownership or residence in the nearby street.
The following second decision outlines that the objector produced no evidence that they owned/lived in the nearby street with the objector stating that they were currently on a sailing trip and had an informal arrangement/ invitation to live at the property in the nearby street. The Tribunal did not accept this as sufficient and struck out the last ground of appeal and accordingly the application was summarily dismissed.
Papermite Pty Ltd v Monash CC [2025] VCAT 893 and JD Bridport Street 1 Pty Ltd v Port Phillip CC (No. 2) [2025] both concerned matters brought under the Tribunal’s original jurisdiction of s87A and the role of transitional provisions in such matters. In Papermite the Tribunal was asked to answer whether the provisions of Clause 55 as amended by VC267 applied if the original permit application was lodged before the approval date. With reference to W Property Group Pty Ltd V Boroondara [2017] VCAT 740 the Tribunal confirmed that a request under s87A is not ‘an application’ to which the transitional provisions refer.
Similarly, in JD Bridport Street the Tribunal considered the applicability of Clause 58, finding that it was not applicable as a request is not an application but nevertheless that Clause 58 remained relevant in the Tribunal’s consideration as to whether the Tribunal ‘considers it appropriate to do so’ with respect to granting the amendment sought.
Hurse Land Pty Ltd v Central Goldfields SC [2025] VCAT 918 and Beach v Colac Otway SC [2025] VCAT 872 both related to broiler farms and both specifically invoked the concept of net community benefit in grappling with a wide variety of issues. In Hurse the Tribunal commented:
243. As with most planning decision making, there are conflicting planning objectives. These conflicts are apparent in this proceeding, including the objectives of facilitating broiler farms in appropriate locations and of minimising risks of adverse amenity impacts and risks of environmental harm.
244. We have endeavoured to integrate relevant planning policies and to balance the relevant objectives in favour of net community benefit and sustainable development for the benefit of present and future generations, as encouraged by the planning scheme. It is to be remembered that ‘community’ extends well beyond the community of the land around the subject land of a permit application.
In Beach the Tribunal commented:
196. The Beach house is in a most unfortunate situation being located as close to Mooleric Road as it is, but to make a finding that no further trucks can travel on this road is contrary to the strong support in the planning scheme to provide for and encourage agriculture in Victoria’s rural farming areas, including the support for broiler farming as part of that agriculture. This proposal satisfactorily addresses the elements in the Broiler Code. This proposal will benefit the Shire and the broader population both now and in the future, including through employment, the food production and the lack of detrimental impacts on the environment from the proposed broiler farm itself as is sought under the Broiler Code.
197. This brings us to the question as to whether the noise impact on the Beach house is an acceptable outcome. This is be determined by considering whether this impact is acceptable having regard to net community benefit and sustainable development. The concept of net community benefit has been explained in Knox City Council v Tulcany Pty Ltd as:
The concept of net community benefit is not one of ideal outcomes, but of outcomes which result in a net benefit to the community assessed within a policy framework by reference to both their benefits and disbenefits.
198. This one disbenefit of this proposal is the fact that there will be noise impact upon the Beach house. The net community benefit in this case is that the benefits of this proposal outweigh this one disbenefit.
Victoria Amateur Turf Club (incorporating the Melbourne Racing Club) v Glen Eira CC [2025] VCAT 916 concerned an interesting matter about whether a public open space contribution was payable having regard to the words in brackets found in Clause 53.01 “(being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both).
In short, the applicant agreed that a condition of permit requiring a POS contribution was required as the application was not exempt but sought for the condition to be amended to specifically reference ‘land intended to be used for residential, industrial or commercial purposes’. As an extension of this, the applicant submitted that none of the land was to be used for such purposes and thus the contribution payable would be $0 (rather than an estimated $3m).
All concerned considered the situation unique and without precedent. To likely do an injustice to the detailed legal reasoning provided, the Tribunal found:
157. In short, I have found that in the facts and circumstances of this proceeding, the words in the brackets in clause 53.01 of the Scheme:
a. explain what the amount of contribution for POS specified in the Schedule to clause 53.01 represents;
b. do not constitute a further qualifier or limitation on the imposition of the POS contribution; and
c. do not require analysis or interpretation when applying the amount of contribution for POS specified in the Schedule to clause 53.01 to a subdivision.
The Tribunal determined that it does not have jurisdiction to review the content of condition 11 of the Permit or its application to the Land because condition 11 of the Permit reflects the mandatory requirement for a public open space contribution that is in clause 53.01 of the Glen Eira Planning Scheme.
Lastly, Galea v Melton CC [2025] VCAT 880 arose from a Compulsory Conference where a permit had been sought for both use and development within the Urban Growth Zone. The relevant PSP allowed for third party review rights in relation to the use component but not the development component. All concerned have been grappling with how to manage such matters where only part of the permissions sought are open for review by the Tribunal. The comments of the Tribunal are apt and will resonate with many:
14. The separation of permissions into two categories, those that have been granted by the responsible authority and those that can be reviewed and fall within the Tribunal’s jurisdiction creates a somewhat disjointed, inefficient and challenging process for the parties.
15. Unlike the situation where the Tribunal can make an order finalising all the permissions sought in the permit application in a holistic way, the need for the parties to embark on yet another administrative process to, in the words of Her Honour ‘…harmonise any inconsistency’ and bring the two sets of permissions together, can be messy depending on the complexity of the matter. In this case, the situation is akin to untangling and separating entwined strands of different types of pasta on a plate, causing uncertainty and adding yet another administrative process resulting in further cost and delay. Changes to legislation to enable the Tribunal to finalise a permit application in totality in situations like this is worth consideration.
16. In this case, I congratulate the parties on working hard to untangle the strands of pasta and anticipate that the responsible authority and the permit applicant will work co-operatively to achieve the outcome envisaged by Her Honour in Myers.
As always if Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) to discuss.
