To celebrate the final of the world cup, the Tribunal did a Beth Mooney and smashed out a quickfire 32 decisions in the Planning and Environment List in July. Of those decisions of interest last month:
CBR Box Hill Pt Ltd v Whitehorse CC [2026] VCAT 518 showed the perils of not following the PNPE9 process of amending plans. In this matter, plans were appended to an expert witness report. The Tribunal, whilst appearing to generally support the revisions showed on these plans, stated:
30. Whilst I agree with the evidence of Mr Raworth and I find those plans attached to his evidence would be acceptable from a heritage point of view, from a procedural perspective I am unable to give effect to those plans.
31. Firstly, there are established processes at the Tribunal through Practice Note – PNPE9 Amendment of Planning Permit Applications and Plans if the permit applicant wants to change their permit application after an application for review has been lodged at the Tribunal. In this instance, the steps contained within the practice note has not been followed.
32. It is not uncommon for experts to make suggestions to the Tribunal about modifications to the proposal that will assist in achieving the correct and preferrable decision for a planning application. In this instance, the suggested changes to Unit 3 change the footprint of the dwelling at ground and first floor levels, as well as change to the presentation of the dwelling.
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34. I find the suggested changes contained within the evidence of Mr Raworth are beyond what one may consider to be changes that could be contained within a condition on the permit and as such, are considered to a ‘wholesale’ change from the concept considered by council. I say this due to the change in the siting of the building at ground and first floors, and the change in the style composition.
35. Secondly, the planning permit gives permissions for matters beyond those required by the heritage overlay. Therefore, any changes to the plans not only need to satisfy the heritage controls, but also in this instance be appropriate within the General Residential Zone Schedule 3 and the Significant Landscape Overlay Schedule 9.
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38. Whilst it appears to me that the identified matters are unlikely to be fatal to the determination, they are nevertheless not shown on the evidence plans or not assessed as the permit controls require them to be.
39. Whilst the suggested changes may address the heritage component of the application, I find that it is not appropriate to amend the existing condition 1(a) to give effect to the suggested plans and then require further conditions to be imposed to address matters that may not have been addressed at the hearing or addressed on the plans.
40. I am persuaded that an appropriately designed dwelling can be accommodated between the heritage buildings at 30 Kangerong Road and 32 Kangerong Road, like those attached to the evidence of Mr Raworth. However, I am unable to accept those plans as they have not circulated in accordance with the relevant practice note and there are other planning controls that have not been addressed by the plans.
Huynh v Yarra CC [2026] VCAT 512 concerned a retrospective application for the installation of roller shutters over a ground flood shopfront in a Commercial 1 Zone. As the Tribunal commented at the outset:
2. The Tribunal has long held that solid roller doors/roller shutters on ground floor shopfronts do not achieve passive surveillance or contribute to activation of a street. Concerns about property damage have often been given lesser importance than the policy support for street activation, particularly in activity centres. Indeed, the Tribunal made such findings earlier this year in CVS Trading Pty Ltd v Monash CC [2026] VCAT 215 (CVS Trading). CVS Trading also refers to other Tribunal decisions issued between 2000 and 2016 that have made similar findings.
In this matter the Tribunal undertook a mid-afternoon site inspection on 15 June, a mid-morning site inspection on 17 June and both a mid-morning and late-evening site inspection on 19 June. Relevantly the Tribunal observed that the roller door had been graffitied sometime between their mid-morning and late-evening inspection on 19 June. The permit applicant further provided an email from Council’s Cleansing and Graffiti Team identifying that graffiti had been removed from the site 49 times in 2025 and 16 times up to May 2026. The applicant also provided advice from their insurance company underwriter that they had intended to decline renewal on the basis of the risk profile, however the provision of roller shutters at least in part addressed their concern.
The Tribunal
79. I have already explained why the language in the C1Z purpose provides strong support for businesses. Therefore, the continued livelihood of individual land uses within a commercial centre must be of relevance and importance to the decision maker. Also, not only are there policies seeking streetscape activation during the day and night, but there are also policies supporting commercial vitality (which includes business livelihoods). This in turn relates to the current and future interests of all Victorians (as contained in the PE Act objectives).
80. At this point in my considerations, the balancing of these two key policy aspirations is weighted in favour of business support, given this is derived from the PE Act objectives, the C1Z planning control and its purpose rather than policy guidelines for streetscape activation that are guidance to the discretion to grant a permit.
81. For reasons already explained, the applicant has provided documentation to demonstrate the ongoing property safety issues being faced by her and the owner of the site. These safety issues should not be given limited weight in the planning application process when there is proof of its ongoing existence. In saying this, I do appreciate that, in this case, council did not have this documentation when it was processing the permit application.
82. A solid roller shutter protects the glazing of the café when it is closed and enables street activation when it is open. A solid roller shutter also assists the vitality of the business and contributes to the streetscape activation as it protects the glazing so that when the roller shutters are open, the shopfront and glass entry door contribute positively to the street activation. Without the solid roller shutter, the continuous graffiti problem is likely to continue to damage the glass. Insurance may not cover its ongoing replacement, and the ground floor tenancy will become unsightly, and it may affect the ability of the tenancy to be used. This may detrimentally impact on the tenancy’s viability and amenity as well as the streetscape appearance, safety and security in Brunswick Street.
The Tribunal also went on to refer to the Urban Design Guidelines particularly at 5.1.5 c which reference security coverings to windows. These comments and observations led the Tribunal to conclude that roller shutters are an acceptable outcome, however the Tribunal did express some concern with the solid nature of the roller shutter. The Tribunal therefore determined to grant a permit for three years setting out an expectation that:
- the tenant and/or the owner of the site will provide any further documentation about any vandalism that is being experienced;
- if roller shutters are still required, the tenant and/or the owner of the site will have investigated alternative roller shutter options that may provide a level of transparency, or any other security measures;
- the tenant and/or the owner of the site can seek to extend the permit as well as amend the design of the roller shutters, if appropriate (i.e. under condition 3 of the permit in Appendix A). They may also seek to include new or different security measures as part of an amendment to the permit in accordance with the PE Act; or
- the tenant and/or the owner of the site can seek to extend the permit with the existing roller shutters. If this option is pursued, the acceptability of this outcome will require sufficient information in the extension application to enable council to undertake a detailed consideration and balancing of the competing policies (as has occurred in this decision).
Of course this decision doesn’t (and cannot) address why businesses need to provide roller shutters and the like in the first place to protect their businesses…
Dawson v Central Goldfields SC [2026] VCAT 294 concerned a proposed dwelling and other works on a rural property in Alma (near Maryborough for those wondering!). The decision is of interest due to the Salinity Management Overlay being central to consideration with the Tribunal noting that there are very few decisions which address the SMO. The Tribunal stated:
56. The applicant has prepared a ‘Land/Farm Management Plan for the use and development of land based on comprehensive and sustainable land management practices and infrastructure provision’. Revision C of this Plan tabled during the hearing is a 131-page plan. Council was critical of this, describing it as more of a land management plan rather than a farm management plan. Council says this plan does not meet the requirements of a farm management plan on Agriculture Victoria’s website as a farm management plan requires productivity output, employees, etc. Council says this plan is more akin to a land management plan that talks about the capability of regeneration of soil to move it from a stony soil to a more lucrative soil.
57. Given the poor soil condition on the site together with it being affected by a SMO and an EMO, I accept the applicant’s submission that the first steps to achieving productive agriculture on this site needs to be about active land management rather than farm management…
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59. The Land/Farm Management Plan points out it would be inappropriate to have animals grazing on the site now given the state it is in. This means there is no agricultural need for the proposed dwelling. As the applicant points out, you need to manage issues such as salinity and erosion first before it can become productive agricultural land. Council agrees the land is not in great condition and does not dispute the management outlined in the applicant’s Land/Farm Management Plan. But it also submits a dwelling is not necessary to help recover land that has been cleared and is barren of trees.
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63. The applicant points out grazing is ‘so important’. The applicant explains if the roots in the soil are deepened, then resilience is provided against climate change and drought. The intention is also to work nutrients back down into the soils. The farming of animals on the land as part of the land management will assist the soils. This, in turn, will assist the grazing of animals on top of the soil. This can work to improve the soils. The applicant hopes to improve the topsoil horizon by about 25 to 30 centimetres. The applicant explains once the root system is deepened and the topsoil starts to deepen, the animal carrying capacity can be raised. Grazing of cattle and sheep (i.e. eating the grass) in turn stimulates the regrowth and produces more. This also stimulates the root cells, and the roots exude a sticky particle that helps it all stick together, clumping the soil together. For this site, the applicant submits this Land/Farm Management Plan has the ability to improve the land class from 5 to either 4 or 3. The applicant points out Land Class 4 could sustain three sheep on this site and Land Class 3 could increase this to 12 sheep (a fourfold increase).
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65. The applicant states the Land/Farm Management Plan identifies scientifically that the soil is heavily deficient of nutrients and has overall low soil health. The applicant submits it is possible to improve these soils and the onsite capacity for agriculture, aligning with Farming Zone purpose. The applicant submits soil underpins most agriculture, and soil health improvement is well supported by National and State catchment strategies. The applicant states with investment including land management, the soil condition of this land can be improved. Council wants the soil improved. Council did not dispute any of the applicant’s submissions about the content of the Land/Farm Management Plan, including its scientific basis or proposed actions. Council acknowledges improving the soil is important but, again, submits the site does not need a dwelling and a shed to achieve this.
The Tribunal found:
69. Given the current condition of the land and the SMO and EMO planning controls that are relevant, it is a benefit of this application that the approval of a dwelling will mean people are living on the site with the obligation in the section 173 agreement to improve the land in accordance with the Land/Farm Management Plan. This Plan will facilitate stabilisation of the land, revegetation of areas of the land and improvements to the potential agricultural productivity of this land. Furthermore, a section 173 agreement will ensure that the management of the land in accordance with this Plan begins before the dwelling is constructed.
Wreme v Surf Coast SC [2026] VCAT 502 and Kloprogge v Frankston CC [2026] VCAT 545 both concerned applications for fee reimbursements by objector applicants on the basis of incorrect decisions/ applications. In Wreme Council was ordered to reimburse an objector applicant the application fee paid after belatedly identifying that the application was exempt from third party notice and review rights with the Tribunal commenting:
32. In considering ‘the nature of, and issues involved in, the proceeding’, it is relevant to have regard to the fact that the proceeding was lodged as a result of Council erring in giving notice and issuing a NOD. In considering ‘the result of the proceeding’, it is relevant to have regard to the fact that this proceeding has been struck out because it was misconceived. Council acknowledges its administrative error contributed to the applicant’s understanding that review rights were available.
In Kloprogge the permit applicant was ordered to reimburse the objector applicant’s application fee on the basis shadow diagrams prepared were inaccurate and corrected shadow diagrams were never formally lodged. The Tribunal stated:
20. However, under s 115B(3)(b) the Tribunal may consider the conduct of a party prior to the commencement of a proceeding and in this regard, the respondent’s failure to correct the errors on the shadow diagrams following notice of the permit application and upon becoming aware of the errors weighs against the respondent in consideration of the reimbursement application.
21. On the facts before the Tribunal, the respondent was aware of an error in its own permit application plans on which a specific assessment is required to be undertaken and failed to correct those errors before the responsible authority prior to the decision under review being made.
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.