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.
There were 32 reported decisions in the Land and Environment Division of VCAT in May with the wait continuing for this years first red dot. On that point, for lovers of pointless and meaningless statistics, in the 2020’s the first red of each year was in February 2020, February 2021, March 2022, March 2023, January 2024, and March 2025.
To build on this and add a new component to this blog, a monthly trivia question… What year produced the most red dot decisions? In keeping with the times, please note the ‘correct’ answer has been given by an AI prompt and not sought to be fact checked!
To turn to last month’s decisions of interest:
For those involved in the world of ‘greenfields’, the decision of Providence Property Developments Pty Ltd v Hume CC [2026] VCAT 260 will be of interest. It is the first decision (at least that I’m aware of) since the Supreme Court decision of Intrapac Ellarook Pty Ltd V Wyndham City Council [2025] VSC 549 to examine the question of ‘generally in accordance’. It also examined application of a ‘blanket’ 5% contribution requirement under s18 of the Subdivision Act 1988 and a condition requiring a 12-month defects liability period in the context of s17 of the Subdivision Act 1988. In respect of these last two points the Tribunal commented:
145. The ‘blanket’ application of a 5% contribution on the basis of the Strategy is not consistent with the provisions of section 18 of the SD Act, which allow for requirement not exceeding 5% and consequent determination having regard to the factors detailed at section 18(1A). As the Tribunal observed in the matter of P M Kennedy, if a responsible authority wishes to apply 5% as a ‘standard’ then the schedule to clause 53.01 should specify this requirement. As the schedule to 53.01 of the Planning Scheme does not specify a requirement for land in UGZ7, then an assessment against section 18(1A) is required.
146. I agree with the applicant’s observation that council’s submission does not provide a comprehensive analysis of the factors detailed at 18(1A)(a) – 18(1A)(e) of the SD Act. Council’s approach appears to have been undertaken primarily on a municipal-wide basis without specific consideration of the local context of the subject land…
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166. I agree with the applicant. Section 17(4) of the SD Act provides for a three-month maintenance period, or other period as agreed to between the applicant and council. As confirmed by the applicant, and not disputed by council, in the circumstances of this application, there is no agreement for a longer (or different) period. Accordingly, there is no basis to impose the 12-month period sought by council. Further, given the maintenance period is governed by the provisions of the SD Act, I have not been persuaded that there is a need to include the condition. The provisions of section 17(4) apply irrespective of the inclusion of a condition in the permit.
Buchanan v Surf Coast SC [2026] VCAT 302 concerned a Practice Day Hearing over the admissibility of an evidence statement prepared. The evidence statement prepared concerned the specific circumstances of a nearby resident. With reference to previous Tribunal decisions the Tribunal found the evidence should not be allowed stating:
49. Her opinions as to the behavioural risk, disability support principles, child safety, and developmental considerations for a person (and to a more limited extent the family) presently living close to the subject site are not opinions which will assist the Tribunal to consider whether the use and development proposed is acceptable on the subject site.
50. This is because the analysis of whether the use is acceptable is required to be undertaken by reference to the circumstances of the land rather by reference to more objective measures, standards and considerations.
51. The analysis of whether a land use is appropriate does not differ according to the personal characteristics and behaviours of an occupant of a dwelling from time to time. It is conducted by reference to the zoning, and other specific provisions which apply more broadly not the personal characteristics of a particular inhabitant.
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55. I also agree with the applicant’s submission that if the personal circumstances of every person who lived in an area were to be taken into account in making planning decisions it would be ‘near impossible to forecast’ the outcome of a planning application. I also agree that it would introduce a personal and temporal element to decision making that would mean that decisions may differ depending on the personal circumstances of a particular occupant from time to time. If this analysis were conducted at a personal level, the balance may alter as individual occupants come and go. That level of uncertainty undermines the concept of planning as a means by which the benefits and detriments to the community as a whole are balanced.
56. I accept that the circumstances described in the evidence are compelling and are circumstances which are matters of very real concern for X and X’s family. I have concluded, however, that the planning system does not permit consideration of these highly personal and individual circumstances.
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58. Consistent with the above, I do not find that the consideration of amenity requires consideration of the individual circumstances of a specific person. Where amenity is considered in planning decisions it may be by reference to specific provisions such as those found in clause 55 of the Scheme (which prescribe the manner of consideration of the impacts of multiple dwellings on neighbouring sites) or by reference to the wider effect on the amenity of an area.
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74. The concept of the limits of the planning system in solving social problems has been addressed variously by the Tribunal in many cases. I have considered each of those provided to me and the submissions made in respect of them. I do not agree with Mr Demeo that each needs to be distinguished on the basis that the facts are different to this case. In essence, I agree with the broad sentiment that planning is not a ‘panacea for all ills’. In this case, I have relied upon the analysis of the particular expert report[9] and the particular factual situation to determine that the evidence must not be relied upon.
Sullivan Land Investments Pty Ltd V Melbourne CC [2026] VCAT 319 concerned an application to amend an approved seven storey development and in part increase it in height to nine storeys. The key issue agitated was overshadowing of Yarra Park at the winter solstice and particularly the weight to be given to Amendment C415. As many will know Amendment C415, and its earlier C278 numbering, concerns sunlight to public places in the Melbourne municipality. It has languished on the Ministers desk since September 2021. The Tribunal in this proceeding stated:
17. We have found it difficult to determine the weight to give to Amendment C415 to the Melbourne Planning Scheme. We agree with the submissions of Council that in accordance with the Tribunal decision of Lyndale and Black Pty Ltd and I O Black v MMBW (P82/1729 and P82/1730) [1983] 7 APAD, Amendment C415 is a seriously entertained planning proposal. We make this finding having regard to its advanced stage through the planning scheme amendment process, and the existence of a favourable Panel Report.
18. On the one hand the proposed planning controls under Amendment C415 could be given significant weight, as it has been through an exhibition and submission process (under the guise of Amendment C278), and received a supportive Panel Report following a lengthy Panel Hearing. It is currently before the Minister for Planning for final approval and gazettal. If that were the end of the relevant considerations, then it would be difficult to not give this planning scheme amendment significant weight.
The Tribunal went on to comment with reference to a 2024 decision that:
21. On the other hand, Amendment C415 has been before the Minster for final approval and gazettal since 21 September 2021, and we have no other information as to its progress, or reason for lack of progress, since that date. This is a concerning aspect to our consideration of the weight to be given to the amendment. The very reason why significant weight is given to an amendment that has progressed to the final stage of the amendment process, is by that stage the amendment has been refined by a lengthy and considered process, and there can be a level of certainty as to the final form of the amendment. That level of certainty must be diminished to some extent where an amendment sits stalled at the final stage for such a length of time…
22. Having regard to the above, we find it reasonable that the Tribunal starts to consider and reduce the weight to be given to Amendment C415 to the Melbourne Planning Scheme. For the reasons set out above, we find that we need to give this amendment some weight, but not significant weight in our decision making task. For these reasons we do not find it appropriate to apply the proposed mandatory controls as if they were a part of the Melbourne Planning Scheme. That is the approach of Council in this proceeding, in that they argue for no winter solstice shadows over Yarra Park that would offend the proposed provisions of DDO8. We find that in order to take this approach we would need to have a high level of certainty that Amendment C415 was likely to be approved in its currently known form. For the reasons set out above related to the delay in the approval of the amendment, we no longer have that level of certainty.
The Tribunal did find it appropriate to have regard to the projected shadows at the winter solstice over Yarra Park, and make a qualitative assessment of their impact on the amenity of the nearby public open space. That is, we do find it appropriate to have regard to the subject matter that Amendment C415 intends to address. The Tribunal ultimately found that an eight-storey proposal i.e. one more than previously permitted but one less than sought, was appropriate.
The question of ‘underdevelopment’ was considered in Exton v Kingston CC [2026]. A two storey dwelling was proposed on land zoned RGZ and covered by a DDO12 in an area where policy ‘promoted’ four storey apartment buildings. In approving the permit, the Tribunal found:
32. It is not in dispute that a permit is required to construct the proposed dwelling and that the only ‘permit trigger’ is DDO12. In this context, the purpose for which the discretion is to be exercised is in relation to the provisions of DDO12 only.
33. Consistent with Brunswick Investment, in determining the merits of the application, the decision maker ‘may only exercise a discretion for the purpose for which it is conferred’. In this case, that discretion is confined to considerations which are relevant having regard to the purpose, design objectives, requirements and decision guidelines of the DDO and the accompanying Schedule 12.
34. The discretion to be exercised under the DDO is, in part, identified by the purpose of the overlay at cl 43.02 and the decision guidelines at cl 43.02-6.
35. The purpose and decision guidelines relate to the design and built form of new development, ensuring buildings achieve a high standard of building design and articulation, and include the design objectives set out in the relevant schedule.
36. The purpose at cl 43.02, the decision guidelines at cl 43.02-6 and the relevant design objectives at cl 1.0 in DDO12 do not refer to dwelling density.
37. The first design objective under ‘Substantial Change Areas’ in DDO12 states:
To support higher density housing in a mid-rise apartment format that delivers pedestrian scaled buildings to the street.
38. This design objective is Council’s foundation for its submission that increased dwelling density is a relevant consideration under DDO12. I do not agree with the Council’s interpretation of what this design objective seeks. On its construction, I find the design objective seeks to achieve delivery of pedestrian-scaled buildings to the street. It says that higher density housing in a mid-rise apartment format that achieves that should be supported. It does not go beyond that to require increased residential densities.
39. I am not persuaded by Council that the absence of an exemption for the construction of one dwelling under DDO12 can be read to be relevant to the number of dwellings proposed.
40. Although the decision guidelines at cl 65.01 must also be considered, they are to be considered ‘as appropriate’. The requirement for the permit under DDO12 does not open up a broader range of policy considerations in the MPF and PPF, such as dwelling density.
41. The exercise of discretion regarding the proposed dwelling must be undertaken within the context of the DDO. As the only permit trigger is DDO12, and the scope of my consideration is confined to the purpose, design objectives, requirements and decision guidelines of the overlay as set out at clause 43.02 (and the accompanying Schedule 12) and policy relevant to these, I am not persuaded that the consideration of dwelling density is a relevant consideration in the assessment and determination of this application.
42. This application is distinguished from the ‘underdevelopment’ cases I was taken to by the parties, including DF Project, even though the subject land in that proceeding was also in the RGZ3 and DDO12 and a ‘substantial change area’.
43. The critical distinction is that those matters were applications for multi-dwellings where permission was required under the zone to construct two or more dwellings on a lot. In those matters, the ambit of discretion included consideration of the purpose, application requirements and decision guidelines of the relevant zone. For example, the purpose of the RGZ includes encouraging diverse housing types and increased residential densities. Consequently, dwelling density was a relevant consideration in DF Project, and it was open to the Tribunal to consider whether that proposal (for the construction of a three-storey building comprising eight dwellings) was an underdevelopment in the policy context. As permission is not required under the zone in this matter, the ambit of discretion does not extend to include consideration of dwelling density.
Are single dwellings discouraged by DDO12 and applicable policy?
44. I am persuaded that facilitative language in the Scheme such as ‘encourage’ or ‘support’ for four-storey apartments cannot be construed to ‘discourage’ or ‘avoid’ different or alternative types of development (for example, single dwellings). There is a difference between supporting one outcome and avoiding or discouraging other outcomes.
45. There are no purposes or design objectives in DDO12 that relate to single dwellings. Had the drafters of DDO12 intended to discourage single dwellings, that language was available to them. Such language has not been used.
46. On this basis, I find single dwellings are not discouraged by the provisions of DDO12 or by the relevant applicable policies whose consideration is enlivened by the specific permission required.
Lastly, an acknowledgment needs to be given to Strachan v Latrobe CC [2026] VCAT 322 which adopts the phrase ‘third time lucky’. After the Tribunal set aside Council’s decision to grant a permit for a dwelling on the land in 2012 and again in 2021, the Tribunal has now granted a permit for a dwelling. One wonders how the applicant for review, who was the same applicant in all three appeals, feels at the conclusion of this planning journey.
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 to discuss.