Of those issued in the second half of December was the red dot decision of Kingston CC v Minister for Planning (Red Dot) [2025] VCAT 1117. In this matter the Council sought to appeal the decision of the Minister to approve a Development Plan but lodged its appeal beyond the 28 day timeframe. The Tribunal refused the Council’s subsequent application to extend time to commence the review and dismissed the appeal as misconceived. Whilst the appeal was ‘red dotted’ as being the first known application by a Council to review a decision of the Minister to approve a DP, from a planning practice perspective what was more ‘concerning’ is the lack of clarity as to when the Minister approved the DP. The Council believed this to be 17 October based on them being notified of the approval on this date and advice from an officer at DTP (their appeal was lodged on the 28th day after this date). The permit applicant contended that the approval was given on 15 October being the date stamp affixed to the endorsed documents and the date DTP notified them of the approval. Ultimately it turned out that the Minister had actually approved the DP on 13 October. Unnecessary confusion all round one would think.
The back half of December also contained several other decisions of interest. Three that piqued the interest were:
Zig Inge 180 St Kilda Road Pty Ltd V Port Phillip CC [2025] VCAT 1102 which concerned a self-storage facility on St Kilda Road. The Tribunal refused the grant of a permit for reasons including the appropriateness of such a use along St Kilda Road. On this topic the Tribunal commented:
30. We are not persuaded by this evidence. Instead, we find that the proposed land use is the antithesis of what policy is encouraging in this locality, through its lack of active street frontage at ground floor, the very low level of pedestrian activity that will be generated, the very low level of employment that will be provided on the review site, and absence of any meaningful level of commercial activity at the St Kilda Road frontage.
31. Ms Acreman submits that a proposal does not need to achieve every single line in planning policy, in order for a planning permit to be issued. We agree with this submission. We hope that through the depth of our assessment set out above, we have demonstrated that we are not focussed on any single line in policy, but rather the clear, consistent and repeated strategic intent for this premier commercial strip on a famous boulevard, as set out in a number of policies found in the Port Phillip Planning Scheme.
32. Ms Acreman also sets out that nothing is currently occurring on the land, and that is not a good outcome for land use in Victoria. She further submits that the proposal will bring significant commercial investment to a currently vacant building, and as a result there will be a more active frontage that occurs at present. We acknowledge the preference for vacant buildings within an activity centre to be developed and actively used. We also acknowledge the benefit associated with the use and development of a presently vacant site in an activity centre, and the money that will be spent on improving the visual appearance of the site, including through the construction of two additional floors. However, that does not mean that one has to accept any Section 2 use that is put forward. As we identified earlier in this assessment, Clause 65 of the Port Phillip Planning Scheme sets out:
Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.
33. Planning takes a longer term view to achieving the strategic priorities set out in planning policy. Just because one of the preferred land uses is not currently occurring on a specific site, does not mean that a land use that is the antithesis of what policy encourages, should be permitted. Just as in significant change areas, where underdevelopments are not allowed as a stop gap measure until a higher form of development becomes economically feasible, in this context that is before us we do not find policy support to entrench a land use that will present such a poor level of pedestrian activity and activation of St Kilda Road, contrary to the strong and consistent policy intent.
34. The Council in their written submissions sets out the following.
134. The proposed use is not supported by this policy and it will not contribute in any significant way to street activation. However, it is not inconsistent with the future directions and Council acknowledges that there is a need for this use in community. The office on the ground floor and pedestrian entry point at the St Kilda Road frontage provide an acceptable contribution to street character.
135. The use is characterised as a Store which falls within the Warehouse group in the nesting diagrams in the Planning Scheme. It is not within the Industrial group of uses and it is a section 2 use in the C1Z. Council considers that there is no particular policy support for the proposed use in this area but neither are there clear policy statements discouraging such a use.
35. We go further than the Council’s finding that there is no clear policy statements discouraging such a land use. Instead, we find that the proposed land use is a poor fit to this important boulevard, and is not supported by the policies of the Port Phillip Planning Scheme that are set out above. We consider that to be a significant disbenefit of the proposal, to be weighed in a net community benefit analysis as part of our integrated decision making approach to this proposal.
Dell’Atte v Kingston CC [2025] VCAT 1120 which commented on whether a mobile food truck constituted development. The Tribunal found that having regard to the definition of a ‘building’ and ‘works’ under the P&E Act, that there was no permit trigger for development. The interesting comment (at least in my opinion) was nor is it of a similar nature to shipping container which needs to be placed on the land. Perhaps in distinguishing the two, the Tribunal stated:
20. The proposed food van is a towable vehicle, with axles, wheels and mechanisms to attach it to a car or other motor vehicle capable of towing. It will not be fixed to the land, irrespective of whether it will be in situ on a permanent basis or whether it is moved on and off the site each day.
Hanna v Darebin CC [2025] VCAT 1127 concerned an application for two dwellings that the Council refused on the basis that the land was subject to a single dwelling covenant and its variation would cause detriment including perceived detriment. Council subsequently changed its position on the basis no beneficiaries to the covenant objected to the proposal. The Tribunal in agreeing to a variation found:
32. The Tribunal must consider whether the owner of any land benefited by the restriction will be ‘unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the removal or variation of the restriction’.
33. As previously discussed, the planning proposal involves the construction of two single storey dwellings, within a similar footprint to the existing dwelling, forty per cent site coverage, maximum height of 5.25 metres, no boundary walls and finishes and materials of a similar form to the other dwellings in the neighbourhood. Given the design of the proposal, with the car parking provided in the centre of the site and the dwellings located one behind the other, the perception of the development from the street, aside from perhaps the existence of two letterboxes, will remain the perception of a single dwelling.
34. I consider that, as a result of the two dwelling proposal, the owner of any land benefited by the restriction will be unlikely to suffer any detriment of any kind (including any perceived detriment).
35. However, the proposal as drafted is to vary the covenant to remove the single dwelling restriction in its entirety. The consequence of that variation would be an ability to construct more than two dwellings on the land, subject to Scheme requirements.
36. I consider that the variation of the restriction in this way may result in detriment or perceived detriment to beneficiaries who are not anticipating built form other than that which has been included in the planning permit application, which is consistent with the existing neighbourhood character and will affect a change that will be largely imperceptible in the streetscape.
37. Additionally, in considering the interests of affected people, I have considered the planning interests having regard to the planning application before the Tribunal and the relevant provisions of the Scheme. A variation to remove the dwelling restriction entirely, without a related planning permit application may have led to a different conclusion as to the interests of affected people and the planning merits.
38. As a result, I consider that the covenant should be amended to remove the single dwelling restriction. However, I find that it must be replaced with a restriction on more than two dwellings, thereby achieving the intent of the variation as it is proposed together with the planning permit application, without allowing for unintended consequences that may cause detriment and may affect the interests of affected persons.
Of the January decisions reported, Knowles v Latrobe CC [2026] VCAT 4 concerned an application for domestic animal husbandry namely the keeping of five dogs on a circa. 3,000sqm property zoned NRZ. In short, the Council had received a total of 12 complaints in the preceding 7 years concerning barking. The Tribunal commented:
28. I acknowledge the submission that the applicant has made some management steps to address noise from the dogs. The appropriateness of having to engage electrical anti-barking devices and keeping the dogs inside is not for my assessment. This submission leads me to consider that if there is a need for such a level of intervention to address the issue of noise, then it can be concluded that the use, without such intervention, has a detrimental impact on the amenity of the surrounding properties.
The Tribunal refused the grant of a permit. As commented in a previous recap, the world of domestic animal husbandry is very murky (two dogs, one cat, one rabbit, one budgie, and some goldfish?). It may not be high on the Departments to-do list but the ‘keep’ part of domestic animal husbandry can surely be handballed to local laws. One would think the Tribunal’s (and planning officers) time could be better spent then needing to deal with dog barking.
If Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) to discuss.