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.
Another quiet month for decisions in the Land and Environment Division of VCAT with just 29 reported decisions in April. As always, there were a several decisions of interest but firstly a shout out to Towong Shire Council for making their first appearance in VCAT decisions since 2020! Somewhat of an achievement, though their appearance last month is one they’d probably prefer to forget…
Of the decisions of interest last month, three concerned the availability of objector appeal rights with respect to recent Clause 54/55 changes:
McConvill v Banyule CC [2026] VCAT 235 was likely the first real time that the new Clause 55 framework was challenged by an objector. An objector lodged a review against Council’s notice of decision to grant a permit for a number of townhouses (a car parking reduction was also granted however rendered obsolete by VC277) on what would be considered traditional planning grounds related to matters such as building scale, visual bulk and offsite amenity impacts. The permit applicant and Council submitted that as the relevant appealable standards of Clause 55 were met the application was exempt from third party review rights. The objector contended:
36. The objector (applicant) submitted in response that there is no ‘clear evidence’ that these standards are met. He explained that:
…determining compliance with the deemed-to-comply standards may require examination of the site context and adjoining residential interfaces, matters which are typically assessed through detailed consideration at a merits hearing.
…
In these circumstances, it would be premature to strike out the Applicant’s grounds of review at the Practice Day stage. Whether the proposal satisfies the deemed-to-comply standards requires proper examination of the plans, the site context and adjoining interfaces. At this preliminary stage the Tribunal has not had the benefit of a full hearing, expert evidence, or detailed testing of the proposal, and the Applicant’s review rights should therefore be retained. The Applicant notes that the question of whether the deemed-to-comply standards are satisfied is itself a matter capable of review by the Tribunal.
37. He provided relevant site photographs and further emphasised there would be an unacceptable ‘continuous’ double storey built form along his boundary, a sense of enclosure to his private open space and site-specific impacts beyond compliance with nominated ResCode standards.
38. His submissions elaborated:
In established residential areas, it is generally expected that development transitions in scale toward sensitive residential interfaces, particularly where secluded private open space directly adjoins a development boundary.
The Applicant submits that these matters raise legitimate planning issues including:
- visual bulk;
- perception of enclosure;
- overlooking;
- overshadowing and potential impacts on sunlight access;
- amenity impacts.
These issues are directly relevant to the Clause 55 standards identified by the Respondent and warrant consideration at this stage of the proceeding.
The Tribunal undertook its own assessment of the relevant appealable standards finding:
42. I appreciate that Mr McConvill is concerned about the proposal because his residential property has a direct and extensive abuttal to the subject land. There would be a very notable level in change to the built form he will see from his property.
43. However, the Tribunal only has the power to hear and determine cases as provided under the PE Act and the Planning Scheme.
44. The Tribunal is also obliged to apply the Planning Scheme provisions as at the date of its decision.
45. It is clear to me that each of the standards which form the basis of the ‘deemed to comply’ provision in 32.08-13 are comfortably met by this proposal.
…
53. Since the introduction of the ‘deemed to comply’ provisions, if the applicable standards are met, there is no general or residual discretion of the Tribunal to refuse a permit application or to require modifications on the basis of submissions from a would-be objector that the built form is too overwhelming, would be unacceptable in the neighbourhood or would have too many impacts on amenity.
- Similarly in Palliser v Banyule CC [2026] VCAT 254 an objector appealed an NOD issued on the basis the daylight to existing windows, tree canopy and overshadowing standards were not met. Council and the permit applicant contended that the first two of these standards were met, but agreed the overshadowing standard was not. The objector argued:
18. The applicant explained that she should be able to raise concerns with canopy trees since (in summary):
…While the site is already constrained, efforts to meet the parking standard appear to rely on the removal of established canopy trees, which conflicts with broader planning objectives for neighbourhood character and environmental protection. As a result, the proposal fails to achieve an appropriate balance between parking compliance and the preservation of significant vegetation and why this must be incorporated into the VCAT hearing.
The Tribunal agreed that the first two standards were met and struck out these grounds accordingly, but recognising the lay status of the objector and the concerns voiced, the Tribunal provided them the opportunity to add a ground relating to the appropriateness of the tree removal permitted under the VPO.
In Holmes v Port Phillip CC [2026] VCAT 287 an objector went ‘one step further’ relying on the Charter of Human Rights and Responsibilities Act 2006 to support grounds of overlooking. The Tribunal with reference to the decision of Smith v Hobsons Bay CC (Red Dot) [2010] VCAT 668 found:
60. As set out above, the proposed development complies with the applicable standard (Standard A15) and this is deemed to meet the overlooking objective under clause 54.04-6. The overlooking opportunities that remain therefore are deemed to be reasonable, lawful and cannot be said to arbitrary because those opportunities remain only after application of a standard that has been subject to public consultation prior to inclusion in all planning schemes in Victoria.
61. Accordingly, the extent of overlooking opportunities that exist from the proposed development cannot amount to an unlawful or arbitrary interference with the applicant’s qualified right to privacy because those opportunities are permitted by clause 54.04-6 of the planning scheme.
Separate to Clause 54/55 matters, McDonalds Australia Limited had two wins last month including in the case of McDonald’s Australia Limited v Darebin CC [2026] VCAT 283 which attracted some media attention due to the McDonalds being proposed on the ‘worlds coolest street’. The Tribunal made the following observations as way of introduction:
1. This proceeding is not about whether McDonalds should be permitted to operate in Northcote, despite the efforts of a number of parties wanting to make that the central issue.
2. That is because the planning system in Victoria, including the Darebin Planning Scheme, rarely has regard to who the end user of a site or business will be. Instead, the planning system creates requirements for the use and development of land, having regard to categories of land uses, which could then be occupied by a range of businesses that fit into a defined land use.
3. Once a planning permit is issued for a certain land use, different operators can take advantage of that approval. Indeed, there could be multiple operators or businesses that take advantage of a particular planning permit over time. As one example, the planning permit currently issued for the review site allows the use of part of the land for a café/restaurant. This permit could have been utilised by a variety of café/restaurant operators into the future, without each one needing to seek a new planning permit at each change of tenancy, if the permit had continued to be acted upon.
4. As such, the planning system in Victoria is somewhat blind to the final operator, in a proceeding such as this. Instead, the process under which planning permit applications are considered, concerns itself with the nature of the land use proposed, its consistency with the strategic intent of the land as guided by the relevant planning scheme, and the potential impacts on the surrounding context.
5. For the reasons set out above it is largely irrelevant that the proposed Convenience restaurant on the review site is currently proposed to be occupied by McDonalds. This Tribunal does not have the power to review the corporate approach of McDonalds, its work practices and ethics, the type of food it produces, its impact on human health, or whether it fits the ‘cool’ vibes of its context.
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 call via our website to explore how we can support you with your next VCAT matter.