Archive:   VCAT

Last Updated  13/11/11

 

Decision  
Gisborne Call Centre Link
Puican :  Rural Land Policies Don't Apply (Amendment C48) Link
Signs At Kyneton Link
181 Lot Subdivision, Riddells Creek Link
4 Lot Subdivision, Romsey Link
1005 Lot Subdivision/DP, Gisborne Link
$4500 Awarded Against Macedon Ranges Council (Gisb. DPO) Link
Refusal 3 two storey units in Kyneton Link
   

 

 

Latest VCAT 'Red Dot' Decisions

(23/9/11 - P)  Some interesting ones here and one, (BMF P/L), has enormous implications.

 

Marone Pty Ltd Joint Venture v Glen Eira CC & Ors (includes Summary) (Red Dot) [2011] VCAT 1650: Application of Section 87A (Planning & Environment Act 1987) in context of a permit issued by the direction of the Tribunal after a successful mediation.

 

This decision makes it clear that there are limits to changes that can be applied for and made to a mediated outcome. 

 

BMF Pty Ltd v Greater Geelong CC (includes Summary) (Red Dot) [2011] VCAT 1666: Application under section 77 (Planning & Environment Act 1987) to review decision by Greater Geelong City Council to refuse a permit to subdivide land into two lots of 1.0 ha and 2.3 ha.

 

This one is a legal opinion which finds that saying more than the minimum lot size in zone schedules (Rural Living Zone in this instance) has no legal standing.  To achieve lot shape requires a different mechanism.  The decision recommends the Department of Planning and Community Development review all schemes which contain the same (now illegal) requirements in zone schedules.

 

Community Villages Australia Pty Ltd v Mornington Peninsula SC (includes Summary) (Red Dot) [2011] VCAT 1667: The Tribunal considered whether Section 52(4) of the Aboriginal Heritage Act 2006 ousts the jurisdiction of the Tribunal under Clause 62 of Schedule 1 of the VCAT Act 1998.

 

This is another important legal opinion which includes a finding that where a Cultural Heritage Management Plan (under the Aboriginal Heritage Act) is required for a permit application, the 60 days to determine an application does not start until a Council has received an approved CHMP.  An application for review at VCAT on the basis that a Council has failed to determine a permit application, made before the 60 days from receipt of an approved CHMP, is premature. 

 

E A H Batman Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2011] VCAT 1477 (3 August 2011): Section 87A Application to amend a permit issued by the Tribunal. Amendments sought include modifications to the appearance of a residential tower and further reduction in car parking.

 

This importance of this decision is its analysis and reminder of the importance for Applicants to justify a reduction in the car parking provision and the need for rigour in the analysis of car parking and car parking layouts.  Well worth the read, and the discussion of car parking reduction may even produce a titter...

 

 

"Major" Cases To Again Be Fast-Tracked At VCAT

(23/9/11 - P)  Just when you thought there was one rule for all... the two rule system is back! 

Victorian Attorney-General, Robert Clark, has announced that the Major Cases List will be reinstated at VCAT.  The list allows 'moneyed' applications and applicants to jump the queue to get a fast-tracked hearing at VCAT. 

 

Earlier this year, funding ran out for the former Brumby government's pilot project for fast-tracking of major projects, and the Major Cases list ceased operating.  Now, although setting the bar higher than the Brumby government, the Baillieu government is bringing it back.  Click here to see the Attorney-General's media release.

 

MRRA Says:

 

The Planning and Environment Act says at Section 4 (2) that an objective of the planning framework for Victoria is:

 

"to provide an accessible process for just and timely review of decisions without unnecessary formality;"

 

There's nothing in there about making processes more accessible for some. 

 

MRRA doesn't see the Major Cases List as a good or fair idea, regardless of the political flavour of those implementing it. 

Only a relatively select group of people will see this as a winner, and our guess is that almost all of them will be developers. 

 

The Major Cases List has always given rise to perceptions that some can buy their way into VCAT, buying easier and quicker access to the justice system than others.  Yes, we've noticed that this time around the bar is higher but another, say, $20k to turbo-charge a $10 million project isn't likely to break the budget.  And with the value of projects being the trigger for fast-tracking, is anyone checking whether claims of a project's worth are accurate? 

 

 We hope the government reconsiders this decision.

 

One more thing.  How quickly and hypocritically some forget... in a recent television interview a member of the former Brumby government, which invented and introduced the Major Cases List, slammed its reintroduction by the current government, apparently claiming the Major Cases List could breed corruption, etc. etc.  What!?  Now, but not then?   

 

 

VCAT "Major Cases List" For Fast-Tracking Devt Hearings Dropped As State Funding Dries Up

(13/4/11- P)  Shock!  Horror!  Don't tell us it's an even playing field at last...

VCAT has announced it has suspended its Major Cases List from 18 March 2011. The Major Cases List, introduced in May 2010 under the former Brumby government, allowed developers the privilege of having disputed planning applications worth more than $5 million 'fast-tracked' through VCAT, with a speedy hearing and completion dates, with one of the methods for 'resolving' planning disputes being compulsory mediation.

 

VCAT's announcement states that the Major Cases List was a pilot project with specific State funding. That funding has now run out. One of the avenues being explored to perpetuate the privileged Major Cases List is higher fees, and daily hearing fees. 

 

You can access VCAT's statement by clicking on:

http://www.vcat.vic.gov.au/CA256DBB0022825D/page/Planning+and+Environment-Major+Cases+List?OpenDocument&1=65-Planning+and+Environment~&2=75-Major+Cases+List~&3

 

MRRA Says:

 

VCAT's website statement says "Regrettably, the funding provided to run the pilot has now been exhausted".   What's more regrettable is that VCAT sees the demise of the Major Cases List as "regrettable".  Our guess is there won't be many 'non-developers' shedding tears at the loss of this discriminatory practice that gave developers a quicker track to approval over the body of the community. 

 

The $5 million price tag of development proposals that triggered eligibility for the Major Cases List could hardly be seen as setting a realistic benchmark for 'major' projects - what's genuinely 'major' about $5 million these days?  This low target opened the door for almost anyone to claim even a mundane project was 'major'.  Another inequity.

 

Then there is associated compulsory mediation, seen by VCAT as very successful, even though with a 30% success rate.

 

Can someone please tell us how compulsory mediation, where the outcome depends on what people will agree to/settle for, meets the requirements of Section 16 of the Planning and Environment Act: 

16 Application of planning scheme

A planning scheme is binding on every Minister, government department, public authority and municipal council except to the extent that the Governor in Council, on the recommendation of the Minister, directs by Order published in the Government Gazette.

Where do meeting planning scheme requirements come into 'mediated' outcomes?  Is a planning scheme binding on VCAT? 

 

 

VCAT Restructure Announced

(13/8/10 - P)  No information on anything else relating to the outcome of the VCAT Review yet 

 

The Department of Planning and Community Development has announced:

 

VCAT President Justice Iain Ross has announced a restructure at VCAT to assist with the implementation of his "Transforming VCAT" strategy. The restructure will take effect from 30 August 2010. Of interest to the planning industry are the following:

 

MRRA Says:

We surfed the net looking for any more information on the VCAT Review results and drew a blank all over.

 

 

Latest VCAT Red Dot Decisions

(8/8/10 - P)  Wind turbines to 'adjoining' to coastal 

 

Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor (includes Summary) (Red Dot) [2010] VCAT 1226: Secondary consent by the Minister for Planning as responsible authority to increase the height of wind turbines under condition 4 of permit TRA/03/002.

 

Graham v Stonnington CC (includes Summary) (Red Dot) [2010] VCAT 1224: Interpretation of the word “adjoining” in section 52(1)(a) Planning and Environment Act 1987.

 

Taip v East Gippsland SC (includes Summary) (Red Dot) [2010] VCAT 1222: Application of planning policy on climate change and flooding to a three-storey multi-dwelling development in the coastal town of Lakes Entrance.

 

VCAT Review Submissions Now Available

(27/6/10 - P)  Also a reminder that next round of submissions closes 28 June 

Planning Backlash is reminding people that the next round of submissions on the VCAT Review close 28 June, unless an extension is sought.

 

PB also provides links to submissions made on the VCAT Review in the first round. 

 

Click here for more info.

 

Latest VCAT Red Dot Decisions

(29/6/10 - P)  Whew!  There are some 'hot' ones here, including the Windsor Hotel (National Trust v Minister For Planning) decision. 

 

Smith v Hobsons Bay CC (includes Summary) (Red Dot) [2010] VCAT 668: Application of Charter of Human Rights and Responsibilities Act 2006 in a planning context.

 

Nillumbik SC v Potter (includes Summary) (Red Dot) [2010] VCAT 669: Interpretation of clause 52.43 (Interim Measures for Bushfire Protection).

 

Fletcher v Maroondah CC (includes Summary) (Red Dot) [2010] VCAT 670: Public open space contributions.

 

National Trust of Australia (Victoria) v Minister for Planning (includes Summary) (Red Dot) [2010] VCAT 671: Review of decision of Minister for Planning as Responsible Authority to issue a Notice of Decision to Grant a Permit for the redevelopment of the Windsor Hotel.

 

Latest VCAT "Red Dot" Decision

(23/12/09 - P)  Footscray Football Club social venue and gaming machines approved

Here's the link:

 

Prizac Investments Pty Ltd & Ors v Maribyrnong CC & Ors (includes Summary) (Red Dot) [2009] VCAT 2616 Permit granted for Footscray Football Club social venue at Edgewater including the installation of 70 electronic gaming machines.

 

 

Latest VCAT Red Dot Decision

(11/12/09 - P)  Requirements if a planning scheme changes for as-of-right (no permit required) use and development 

Glenelg SC v Printz Pty Ltd (includes Summary) (Red Dot) [2009] VCAT 2477: An as-of-right development that is commenced without a permit will need to meet additional requirements or obtain a permit if the planning scheme changes before it is completed.

 

 

Macedon Ranges' Council And Community Wins VCAT Decision On The Romsey Hotel Proposal: NO POKIES FOR ROMSEY!

(19/11/09 - P)  First the Supreme Court, and now VCAT, say social impacts and community well-being really, really do count. 

 

In a landmark outcome, last Thursday VCAT President Justice Kevin Bell handed down his decision on a proposal to introduce pokies to Romsey's only hotel.  His decision was to refuse the application.  There will be no pokies in the Romsey pub.

 

After years of to and fro on this proposal (i.e. Commission, VCAT, Supreme Court, VCAT), in this second VCAT decision (the first was made by Justice Stuart Morris but this was overturned by the Supreme Court), Justice Bell finally determined that the social impacts of approving the pokies' application were "strongly negative" and would cause detriment to the Romsey community's wellbeing and to the town's social character.  This impact, on balance, over-rode and outweighed the "slightly positive" economic benefits the pokies would provide, and consequently approval would represent an outcome that caused net detriment to community wellbeing.  Having reached this conclusion, Justice Bell was required by law to refuse the pokies' application.

 

The decision makes it clear that the particular circumstances applying in Romsey influenced the refusal, but that different circumstances may prevail in other areas which could see pokies approved.  The consideration and balancing of social and economic impacts would differ on a case by case basis. 

 

It's not the refusal of the pokies' application which sets a precedent, but the reasons for the refusal.  The reasons focus strongly on social issues and detriment, and their ability to outweigh and override economic benefits when taken together.

 

The owner of the Romsey Hotel has apparently stated the refurbishment of the hotel will now not go ahead, and he is apparently now going to pursue a casino in Bendigo (in addition to the Wallan and Romsey Hotels, he also owns the historic Shamrock Hotel in Bendigo).  Click below for a link to a story in last weekend's Bendigo Advertiser.

http://www.bendigoadvertiser.com.au/news/local/news/general/bendigo-hotel-pushes-for-casino/1677071.aspx

 

You can access the full VCAT decision by going to VCAT's home page.  Look under Recent Significant Decisions.

http://www.vcat.vic.gov.au/CA256DBB0022825D/page/Listing-Utility+Buttons-Decisions?OpenDocument&1=10-Listing~&2=-Utility+Buttons~&3=20-Decisions~

 

MRRA Says:

 

Congratulations to Justice Bell.  This is an enormous, and enormously important, determination, which takes giant strides across the landscape on social justice issues.

 

Justice Bell appears to have been quite meticulous in researching and explaining the reasons for his decision, and our view is that anyone who wants to talk about this decision would benefit immensely from reading it from start to finish before putting forward a view.  There already appears to be some misunderstanding and misrepresentation of the facts...

 

Our reading of the hefty 88 page decision, which builds on the earlier Supreme Court (Court of Appeal) findings, is that it has significant implications for future decision-making, and not just about gaming.  The whole issue of community well-being is put front and centre by the findings.  There are some key elements which we believe will reverberate. Here are some points MRRA has picked out of the decision:

 

The decision:

Provides:

Highlights a Council's obligation to consider and promote community wellbeing, and in more than gaming issues.

 

Demonstrates how wellbeing can be measured.

 

Makes it clear that particular circumstances apply to Romsey that may not apply elsewhere.

 

Reinforces that economic benefits alone are not sufficient reason to approve - an application has to satisfy and accord with community and other values as well.

 

Recognizes that Romsey is a small rural township - not a suburb of Melbourne or a regional city - and applies that context to the assessment of social impacts.

 

Confirms impacts and effects are to be measured on the basis of municipal districts, although they can also be measured as part of a municipal district as well.

The starting point for the legislative framework for the decision was World Health Organisation standards.

 

The SEIFA rating (for disadvantage) is not relevant to or a measure of well-being per se, rather it is used as a measure for potential for problem gamblers.

 

The socio-economic status of Romsey is not material to the relevance of, and weight to be given to, the views which have been expressed through the three surveys and the submissions of the shire.

 

Community opposition is not only relevant but statutorily required to be considered in decision-making.

 

Opposition to gaming does not require definition or a basis or an explanation, it can just be.

 

Community input into decisions is not confined to Council representation, a community can have a say outside Council's input.

 

The attitude of the community is a factor of considerable importance in determining whether a proposal will be detrimental.

 

The Romsey Hotel's prominent location within the township and its proximity to community facilities and the commercial area, along with it being the sole pub in town, was a factor in assessing social impacts.

 

A substantial proportion of income from the pokies would be new, and would come from the Romsey community.

 

There is a lack of information regarding density of machines and expenditure at a local level (the decision found that within the Romsey township, the density of machines within that population was considerably higher than the density within the Shire, country Victoria and Victoria - unacceptably so - and this would have adverse impacts on a small rural community).  There is a need for a standard to allow local impacts to also be measured, as well as impacts and comparisons at other levels.

 

There is a need to take account of the social detriment arising from the potential for and impacts of problem gambling even if a town is not disadvantaged (SEIFA), particularly in small rural towns.

 

There is a need to take equal account of community views on problem gambling, as weight is already given to reduced potential for problem gambling in areas not considered to be disadvantaged (SEIFA).

 

At the end of the day, Justice Bell found there would be a slightly positive economic impact and a strongly negative social impact if the pokies were approved. 

 

This, on balance, translated into a net impact that would be detrimental to community wellbeing, which did not satisfy the statutory requirement that approval cause no detriment to wellbeing.  The law says a proposal can only be approved if there is no detriment to wellbeing.  Hence the refusal.

 

Another feature of the decision is the sequence of rejected arguments and submissions made by Macedon Ranges Council.  This suggests Council needs to do some homework and analysis on parts of the case it presented.  Matters at issue and dealt with in the decision included conditions on permits, Council's role and function, interpretation of net detriment, and whether economic impacts could be measured in this application (VCAT said they could, and they were). 

 

Council, however, is to be congratulated for persisting in this issue, despite the high costs, because the final decision, in MRRA's view, upholds some fundamental and critical community values and sets in place a whole new way of thinking when considering applications for pokies, not only in Macedon Ranges Shire, but Victoria. 

 

Congratulations also to the Romsey and broader Macedon Ranges' community for sticking to their values, and never giving up.

 

Make no mistake, for anyone with a reasonably developed sense of fair play, social justice and democratic principles, this ground-breaking and landmark decision is inspirational.  It stands as a brightly shining beacon for humanity, because it puts the human factor and social accountability squarely and prominently back into decision-making.  This truly is sustainability in motion, and in practice.

 

Bravo.

 

 

More VCAT Red Dot Decisions...

(19/11/09 - P)  Stonnington and Hobsons Bay this time

Click on these links:

 

Savrez Pty Ltd v Stonnington CC & Ors (includes Summary) (Red Dot) [2009] VCAT 2230: Failure to serve witness reports – amending plans by way of witness reports.

 

Get on the Good Foot Pty Ltd v Stonnington CC (includes Summary) (Red Dot) [2009] VCAT 2347: Increase in patron numbers of licensed premises triggers need for planning permit under clause 52.27.

 

Jennings v Hobsons Bay CC (includes Summary) (Red Dot) [2009] VCAT 2350: Implications of sending a notice of decision by electronic transmission (email) – application of Electronic Transactions (Victoria) Act 2000.

 

 

Latest VCAT 'Red Dot' Decisions

(10/10/09 - P)  Decisions of special interest you might like to look at... 

Stubbs Street Kensington Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2009] VCAT 1947: Interpretation of whether section 18(1A) precludes a public open space requirement from being made when there are existing buildings on the land.


Owen v Casey CC (includes Summary) (Red Dot) [2009] VCAT 1946: Consideration and application of Clause 15.08 relating to the consideration of climate change in a development proposal for two units. Refers to previous Tribunal decisions relating to coastal hazard vulnerability assessments.


P & P Todd Property Pty Ltd v Banyule CC (includes Summary) (Red Dot) [2009] VCAT 2005: Practice of making a public open space requirement under section 18 of the Subdivision Act 1988 by way of a note in a planning permit is not a valid means of making such a requirement.


Hassta Holdings Pty Ltd v Maroondah CC (includes Summary) (Red Dot) [2007] VCAT 2445: Public open space contribution - when must a requirement be made?

 

 

MRRA Submission - President's VCAT Review Consultation Paper

(13/7/09 - P) Please, go back to planning, get the lawyers out of it, and start healing rock-bottom public confidence 

Click here to see MRRA's submission

 

 

 

VCAT Review: Call For Public Comments And Submissions On How VCAT Is Performing

(24/4/09 - P)  Get it off your chest!  by 8 June

VCAT is currently undertaking an audit and review of its performance, in part because it is now 10 years (or slightly more) since the Victorian Civil and Administrative Tribunal Act came in to force (replacing the previous Administrative Appeals Tribunal Act).  Here's how VCAT puts it:

 

"The Victorian Civil and Administrative Tribunal (VCAT) recently celebrated its 10-year anniversary. To mark this milestone, the Attorney-General, the Hon Rob Hulls MP, asked the president of VCAT, Justice Kevin Bell, to carry out an extensive review of VCAT.

 

The purpose of the president's review is to ensure that VCAT remains accessible to all Victorians and continues to resolve disputes in a low cost and flexible manner"

 

Telephone 96289702 for further information or visit www.vcatreview.com.au or email feedback@vcatreview.com.au

 

There are plenty of people around who should have plenty to say - not all good either!!!  Anyway, this is your chance to let VCAT know your thoughts on how it operates, so don't waste the opportunity.  Well done to those in charge for conducting a review that allows public participation. 

 

Regional workshops are being held, details below (closest to Macedon Ranges is the one in Bendigo on 29 April).  For more information and to find out how to make a submission (comments can also be lodged on-line), go to http://www.vcatreview.com.au/

 

Regional Workshops

 

Morwell

19 May

6pm registration for 6:30pm start; 8:00pm close
To be confirmed.

 

 

Red Dot Decision From VCAT Recognises Community Values

(3/4/09 - P)  Brighton hotel not to be demolished due to community demonstration of cultural significance 

This really could be a turn-around in looking at what the community values - and recognizing it in decision-making!  The Romsey Pokies decision gets a run in the decision too.  Click on the following link to access the decision: VCAT Red Dot Decision Minawood Pty Ltd v Bayside CC (includes Summary) (Red Dot) [2009] VCAT 440:

or http://www.vcat.vic.gov.au/CA256902000FE154/Lookup/decisions/$file/minawood_pty_ltd_v_bayside_cc.pdf

 

Refusal to amend permit under section 87A Planning and Environment Act 1987 to allow demolition of a building (Khyat’s Hotel in Brighton) having neighbourhood character and cultural identity but not covered by a Heritage Overlay.

 

VCAT Strikes First Blow In A Climate-Change Affected World

(10/8/08 - P)  Applications for dwellings knocked back - land at risk from rising sea levels, says VCAT

In a benchmark decision, VCAT this week refused to issue permits for dwelling in a Farming zone along the coast at Toora, and it all came down to climate change.  This decision, the first of its kind in Victoria, builds on a decision last year in NSW where the Environment and Land Court knocked off a proposal involving the NSW Planning Minister because climate change and environmental sustainability issues had not been properly considered. 

 

the decision has been listed as "Red Dot" at VCAT and you can access it by clicking on http://www.envirolaw.org.au/sources/cases/vcat_2008_1545  or Gippsland Coastal Board v South Gippsland SC and Ors (No 2) VCAT 1545

 

You can also access information about RMIT's Moved To Design By Climate Change mapping of which Melbourne areas are predicted to be inundated by rising sea levels by clicking on http://www.rmit.edu.au/browse;ID=6tha567p4mcaz

 

MRRA Says:

Giant strides...  Well done VCAT (Vice President Helen Gibson and Member Ian Potts). 

 

Now, when are we in Victoria going to get just as visionary and thoughtful about stopping development in drinking water catchments?  Not having any water puts an awful lot of people and 'things' at risk.  Logical step, isn't it?

 

 

Register Your Group For The Up-coming VCAT Planning Consultative Forums

(3/3/08 - P)  But be prepared to be patient - community groups don't get a look-in until 13 October, 2008

"This year the Planning and Environment List of VCAT will conduct a series of consultative forums with stakeholder groups including council planning officers; referral authorities; lawyers, planners and other consultants who regularly appear at the Tribunal, and peak body organisations; and community planning groups. The forums will be held at VCAT from 4.30pm to 6.00pm on separate dates for individual groups. Additional regional forums will be held at Shepparton, Gippsland and Ballarat.

 

“Operation Jaguar”, initiated in 2003, introduced a series of reforms to the operation of the Planning and Environment List, including the establishment of Friday Practice Day hearings.  The Tribunal maintains a process of continuous improvement with respect to its operations. It is keen to gather feedback on these reforms from users of the system and on its performance generally, as well as identify further areas of improvement.
 

The consultative forum will be open to anyone from relevant stakeholder groups provided they pre-register with the Tribunal. People who are interested in attending should register."

 

You can obtain a copy of the registration form from the VCAT website www.vcat.vic.gov.au

 

For more information contact Lauren Gardiner, VCAT Events Coordinator, via email on Lauren.Gardiner@justice.vic.gov.au or by phoning (03) 9628 9992.

 

MRRA Says:

 

We couldn't find a closing date for registrations, so it will be best to register asap.

 

It's not often that community groups get an opportunity to share their thoughts about VCAT, with VCAT.  Well done to VCAT for holding these forums, although we suspect there won't be a lot of confidence amongst community groups that what they think will actually be taken on board.  The amount of access and time being provided to all other players, compared with community groups, is daunting; some might say it simply reflects and reinforces community perceptions that 'everyone else is important at VCAT except community' and the system is biased towards other players, particularly developers.  Nevertheless, we can only live in hope that this isn't a gabfest about changing VCAT practices and the planning system to further advantage developers and others but a genuine attempt to consult, and on that basis it should be seen as an opportunity for community groups that shouldn't be missed.

 

 

Save Our Suburbs (Vic):  "VCAT Exposed" and "Implementation and Performance of Melbourne 2030" Features On SOS Website Melbourne

(14/11/06 - P)  The Malvern East Group (MEG) has scoured VCAT records to look at the relationship between different VCAT members and development approvals.  Verrry interesting...

Go to the Save Our Suburbs website: www.saveoursuburbs.org.au