Glossop Town Planning provides expert evidence and advocacy throughout the planning system. We regularly appear at VCAT and Planning Panels Victoria representing private and public sector clients. With hundreds of appearances under our belt, we are acknowledged industry experts in evidence and advocacy matters.
Hew Gerrard, Senior Associate, leads Glossop’s VCAT advocacy practice He has extensive experience appearing before VCAT as an advocate.
Much to our luck, Hew reviews the key VCAT decisions n the Land and Environment Division each month so that you don’t have to.
June saw 34 reported decisions in the Land and Environment Decision of VCAT including the first Red Dot of 2026! (must have read the May blog…)
Leadon Group Pty Ltd v Frankston CC (Red Dot) [2026] VCAT 439 involved a preliminary hearing concerning the application requirements in the PUZ. To replicate the summary:
The requirement in that clause is that, in a Public Use Zone, an application for a permit by a person other than the relevant public land manager must be accompanied by the written consent of the public land manager.
In this proceeding, the application was made by a private entity who owned the land and was not accompanied by the land manager’s written consent because the land was not public land and there was no public land manager. The land had previously been public land and there was previously a public land manager.
Although different divisions of the Tribunal have expressed different views about whether a responsible authority must refuse to grant permission if written consent is not included, the Tribunal in this proceeding held a responsible authority must refuse to grant permission.
The Tribunal also found that written consent from the former public land manager does not comply with the application requirement.
In a review of the responsible authority’s refusal to grant permission, the Tribunal held that it had discretion to disregard non-compliance with the application requirement.
The responsible authority submitted it would not be in the interests of justice to disregard the non-compliance in the circumstances of this case because it had prepared an amendment to the planning scheme to rezone the land and, if the amendment were to be ultimately approved, the use or development in the application would then be prohibited.
The Tribunal held that, although it is well-established that a proposed amendment to a planning scheme is a relevant consideration in a merits hearing on a review of a permit application decision, a proposed amendment was not a relevant consideration in deciding whether to disregard non-compliance with the application requirement. The Tribunal decided to disregard non-compliance in the circumstances of this case.
Finally, the Tribunal suggested that consideration could be given to amending the application requirement in public land zones so that the application requirement was not mandatory if the land was not public land when the application was lodged.
This month’s Trivia question is inspired by ESG Lysterfield Pty Ltd v Yarra Ranges SC [2026] VCAT 480 which came in at 551 paragraphs (is a drainage line a ‘waterway’?). What is the longest Tribunal decision by paragraph numbers?
In terms of other Tribunal decisions of interest:
Greenhaven Pastoral Pty Ltd v Yarra Ranges SC [2026] VCAT 423 involved part retrospective approval for the placement of fill on a property. The Council referenced the well-known position in such matters that ‘the permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained’. The Council went further in stating:
19. However, in oral submissions council submitted that in addition to the above principle, the approach in this proceeding should be that the starting point for considering the permit application should be as if the works have not commenced or occurred. It is submitted that my consideration of the application should ‘go back to square 1’. It was submitted that this ‘neutral starting point’ would be the correct approach in order to consider and balance all the potential impacts of the proposal against the relevant planning permissions, decision guidelines and policies.
In response, the Tribunal found (with analysis of Tulcany):
23. I accept that the commonly understood approach for a ‘neutral position’ where the applicant for retrospective permission gains neither a benefit nor disbenefit for the unapproved works.
24. However, I do not find that the approach to start from a ‘neutral position’ means I am to consider the permit application afresh and as if all of the works were to commence from the issue date of the permit. This is not my understanding of what the principles in Tulcany direct. In fact I find this approach is similar to the position urged by the appellant (Knox City Council) in Tulcany which the court rejected.
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29. As considered by the Court, by the PAB at that time, and the approach adopted by many tribunals since, the principle expressed in Van Egmond does not stop at that made about neither rewarding nor punishing the permit applicant for the works sought to be legitimised.
30. First, the PAB’s position, endorsed to be correct by the Court, is that any use or development that occurred up until the time of a grant of a permit can still be subject to enforcement actions.
31. Second, the starting point for the decision maker in respect to the application for retrospective permissions is not from the start of that use or development. It is from the point of time when the application is decided.
32. In Tulcany the Court approved of the approach in Van Egmond to accept the built form as it was at the time of the PAB’s decision and ‘then an assessment of any “pragmatic change” that might be required’. The Court observed that is why the decision maker may take the benefit of seeing the use or development as it is at that time, without rewarding or penalising the applicant.
33. To my mind this resolves a conundrum arising from the approach urged by council, being how to consider truck movements to bring the fill to the land. Given that the fill is already on the land and no more fill is to be imported, the question of impacts from truck movements is in fact otiose, it would serve no practical purpose to consider such impacts in this application.
34. It is also reason to reject the notion put that any consideration of future works that may be approved to complete the project, as has been pressed by Greenhaven, with or without amendments, is a matter for an enforcement proceeding. It is clearly a matter relevant to my decision to grant or not grant a permit in circumstances where the applicant, Greenhaven submits that the works are not complete and now seeks permission to complete them.
Bendemeer Gatehouse Pty Ltd v Surf Coast SC [2026] VCAT 452 was one of the first decisions to consider Amendment VC248 and the new bushfire provisions at Clause 53.02. In this matter, the land was zoned FZ with no overlays but within a BPA. A permit was sought for a function centre. There was agreement amongst the parties that Clause 53.02 was not a new permit trigger in its own right but was enlivened due to a permit being required under the zone. There was, however, different opinions as to the extent of Clause 53.02 that was applicable and whether Clause 13.02 was now also enlivened. The Tribunal (presided over by a planning member) made it clear that they were not providing a legal determination but found:
123. My findings about the relevance of clauses 13.02 and 53.02 to the application before the Tribunal in this proceeding is that:
– I concur with submission of parties that the Tribunal must consider the decision guidelines of clause 53.02-1 in assessing the proposal. This is because the land is in a BPA, but not in a Bushfire Management Overlay.
– My reading of the text at the bottom of the table to clause 53.02-1, as referred to in the Maddocks group submission (see paragraph 114 above) does not mean the provisions of clause 53.03-4 apply. The table only directs consideration to clause 53.2-6 to apply. As such my view concurs with that of the applicant, that any consideration to requirement measures set out in clause 53.02-4 should be limited to its context as part of a decision guideline to consider whether bushfire protection measures to address the identified bushfire risk are required and can be practically implemented, that sits as a general decision guideline under clause 53.02-6.
– It is clear from submissions of the applicant and the Maddocks group that there remains a divergence of legal opinion as to whether Bushfire policy at clause 13.02 is enlivened as a result of changes to this policy and clause 52.03. I find it unnecessary to determine this question in context of other findings that the proposal fails for reasons other than compliance with clause 53.02.
124. The Tribunal therefore addresses the issue of bushfire in context of the decision guidelines of clause 53.02-6. In doing so some commentary about policy at clause 13.02 and 14.01 is also made. The comments on the policy are made for completeness, and avoidance of doubt, rather than a legal determination that the policy at clause 13.02 must be applied.
Invoking cries of ‘This is Sparta!”, FSST Pty Ltd v Port Phillip CC [2026] VCAT 426 concerned a major promotion sign on the corner of Fitzroy Street and The Esplanade. The Tribunal stated:
7. It was put to me by the permit applicant, that ‘this is St Kilda’. That is, St Kilda is a location known globally for its tourism, vibrancy, foreshore, activity, events and public open spaces. It was highlighted that this reputation is acknowledged in the Port Phillip planning scheme (‘planning scheme’). Notably, clause 02.03-1 identifies that St Kilda attracts millions of visitors each year.
8. It is my view that whilst I recognise the sentiment that ‘this is St Kilda’ and acknowledge that it is a place of activity and tourism and is a Major Activity Centre, I find that the proposed major promotion sky sign is not required to fulfill this sentiment or vision. It is my view that St Kilda will remain a place of activity, vibrancy, tourism and events, with or without the proposed sign.
Hayman v Greater Dandenong CC [2026] VCAT 396 concerned a proposed medical centre in the GRZ. With respect to the built form design response, the Tribunal made the following comments of interest:
58. The purpose of clause 32.08 includes to encourage development that is responsive to the neighbourhood character of the area. The decision guidelines at clause 32.08-14 require consideration of whether the development is compatible with residential use; the scale and intensity of the development; the design, height, setback and appearance of the proposed buildings and works; and the proposed landscaping. There are also the provisions of schedule 1 to which I have been referred by parties.
59. Policies, which I have acknowledged earlier, relating to incremental change areas can assist to inform how residential development will emerge in this area, mindful that with recent scheme changes, built form intensity can be expected to increase.
60. Neighbourhood character outcomes sought in these areas by the scheme can be used to inform the assessment of the built form response. However, meeting mandatory and ‘deemed to comply’ numerical standards for dwellings does not mean a medical centre development meeting those metrics is acceptable. The form and layout of a purpose-built medical centre may be different for functional purposes. Such a facility needs to respond to the site and context.
Lastly, to highlight the variety of work that planners/ the Tribunal can encounter:
Lee v Loddon SC [2026] VCAT 436 concerned a low risk gold mine described as removal and stockpiling of topsoil and overburden soil and alluvial deposits from a swathe of land of not more than 25 metres in length and 5 metres in width. A maximum depth of 15 metres is proposed or exposure of subsurface bedrock, whichever occurs first. The excavations are to allow screening of exposed alluvial material by metal detector to identify the presence of (alluvial) gold. Detected gold would be handpicked from the soil or from material subject to processing using a trommel.
In contrast, Albano v Yarra CC [2026] VCAT 459 concerned the Installation of an air-conditioning condenser unit on the front façade of a building within a heritage precinct.
Never a dull day in planning!
As always, if Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) or book a free call to discuss.