VCAT Volume 10 No 11

1. Challenges in establishing non-residential uses outside the General Residential Zone

Three recent cases have highlighted the challenges in establishing non-residential uses in the Low Density Residential Zone (LDRZ) and Rural Living Zone (RLZ). Each proposal was rejected by the Tribunal.

In the first case, B. Investments Pty Ltd v Casey CC [2023] VCAT 534, the Tribunal considered a refusal for a childcare centre in the LDRZ. However, by the time of the Hearing, the Council had reversed its position on the basis of amended plans that had been submitted by the permit applicant.

The subject site is on the corner of a main road and side street, which is a cul de sac. A permit for a medical centre for the subject site had been approved in 2018, but had expired.

The LDRZ does not contain a purpose relating to non-residential uses and a childcare centre is an unspecified discretionary (section 2) use in clause the LDRZ. The Tribunal therefore acknowledged that policy is of most assistance in an assessment, including state policy in Clause 19.02-5S and local policy at Clause 22.02.

Clause 22.02 cites the benefit to residential areas from complementary non-residential uses for the convenience of residents, and the care that must be taken in locating and siting such uses. The clause’s objectives, policies and performance measures, developed specifically for the Casey municipality, guide consideration of the suitability of the land use on the subject land.

The Tribunal considered the key issues were the sensitivity of this area, as all activity is focused onto the cul-de-sac with shared road space use, the low density character, and low key and modest residential activities.

The Tribunal found that the proposal complies with or meets some aspects of policy but does not meet others. Its main concern was the impact of the built form on the neighbourhood character. It stated:

Even though I understand how the design has sought to transition from the ‘robust’ road corridor, I am not persuaded that the development can and is able to be sufficiently screened and that defining character elements are respected. This is a function of the scale of the proposed facility, its associated requirements, such as for car parking, and the manner in which it is laid out. The proposal does not meet multiple parts of clause 22.02.

For these reasons, I further find the proposal does not sufficiently meet the character and landscape outcomes sought for this location through clause 21.25. I am not persuaded that the proposal has been designed and sited in a manner that will be respectful of the existing low-density residential character of the area. Nor am I persuaded that the proposal protects and enhances the neighbourhood area nor adequately reinforce a garden suburb environment comprising landscaping and canopy coverage. [83-84]

With respect to the previous permit for the medical centre, the Tribunal found there were significant policy differences between a medical centre and childcare centre, most notably a medical centre is an as-of-right use on the subject land. There were also significant differences between the intensity of the use two applications: the medical centre proposed three practitioners, as against a 72 place childcare centre with twelve staff.

In the second case, Chan v Greater Geelong CC [2023] VCAT 549, the Council considered a third party appeal against a place of worship in the RLZ. Council supported the application against the Council officer’s recommendation to refuse the application.

The place of worship would accommodate a maximum of 60 people. Significant built form was proposed, including an approximate length of 41.0 metres and width of 14.6 metres, yielding an internal floor area of 598 metres squared. Large decorative domes were proposed on the north, south and west elevations, with an approximate height of 5.98 metres.

Whilst the subject site is in the RLZ, it is located in the Northern and Western Geelong Growth Areas with the site located in a future long-term employment area.

The permit applicant submitted that seven sites located in the RLZ have supporting commercial/non-residential uses, including boat and caravan storage, garden product sales, storage facilities and a number of places of worship. However, the Tribunal found:

…. land surrounding the site is primarily used for rural living purposes and the existing commercial/non-residential uses are separated from each other. In this context, having regard to the primarily rural living character of the area, I find locating two non-residential uses next to each other is not an acceptable outcome. The locating of two non-residential uses would create a conglomeration that is inconsistent with the rural living character of the area and the purpose of the RLZ that seeks to provide for residential development. In this context, the existence of the existing dispersed commercial/non-residential uses including the adjacent commercial use is not sufficiently persuasive to support the proposal. [32]

The Tribunal agreed with the Council officer’s assessment that “The proposed building is of a form that is ubiquitous and provides no deliberate connection to the rural character of the locality.”

The Tribunal was not so concerned with amenity impacts.

In the third case, 2DN013 Pty Ltd v Casey CC [2023] VCAT 651, it was proposed to construct 138 place childcare centre on land in the LDRZ. Council had refused the application.

In upholding the refusal, the Tribunal stated:

The proposed building footprint and car parking area are not of a scale or appearance that complement the low density residential character, even taking account of the collector road interface. The design has attempted to fit within the landscape character by retaining some mature vegetation. However, the siting of the building in Dell View Close and proximate to the eastern side boundary, and the size of the building and associated hard paving, result in the development being an unreasonably dominant feature. This is accentuated due to the site’s downward slope to Dell View Close. [102]

Nor was the Tribunal satisfied that the needs analysis provided by the Applicant provided a basis to elevate what is a described as a need in an assessment against other matters.

The above cases demonstrate that, whilst non-residential uses may be permitted in lower density residential type zones, there is a higher bar to reach to achieve an approval.

See also:

  • Guide to Planning Appeals: Childcare centre, Place of Assembly, Place of Worship

2. Relevance of health impacts on a childcare centre and need

In Neston Epping Pty Ltd v Whittlesea CC [2023] VCAT 582, following a compulsory conference, one of the confined issues in dispute to be resolved was the health implications of locating the proposed childcare centre on the subject site, which is on a main road.

Council submitted there is strong policy support in Clause 19.02-2L that seeks to encourage childcare centres on collector roads. It says the clause discourages these uses on or close to arterial roads due to potential adverse health implications. Further, Council highlighted that design and strategy directions exist in Clause 19.02-2L, under the sub heading of the clause titled ‘Play space and off-site amenity’, that seeks to:

Encourage external play areas to be designed and located to provide a high standard of amenity through:

    • Minimising external noise sources and traffic-related air impacts from roads.

Council relied on the strategic research that formed part of the preparation of Amendment C233 that introduced changes to the Council’s existing childcare centre policy at that time. This included submissions from the Environment Protection Authority (EPA) during the exhibition of this amendment in 2018. The Amendment was ultimately gazetted on 4 April 2019.

While the Tribunal acknowledged the early involvement of the EPA regarding this matter in the formation of local policy at Clause 19.02-2L, it concluded the Council failed to substantiate the health implications that would arise on the review site if a permit was to issue for the childcare centre. There was no tested evidence that would lead one to conclude the location of the open space area along High Street would result in adverse health impacts.

The Tribunal also noted that the EPA is not a formal statutory referral authority, and the Council did not seek that authority’s input or expertise on this proposal. Thus, neither the Applicant or Tribunal could test or interrogate the veracity of the locational health concerns expressed by the Council.

In the context of other locational strategies contained in Clause 19.02-2L, the Tribunal noted the proposal is appropriately located:

  • Within the Epping Metropolitan Activity Centre.
  • Diagonally opposite a well-established primary school in High Street.
  • Within walking proximity to well established public transport nodes including rail and bus routes.

The other confined issue in the matter was the issue of need. Council’s position is the relevant precinct would have an oversupply of 345 places over four childcare centres, with a further 170 spaces approved through existing planning permits.

The Applicant called an economist expert witness. His opinion was that demand for a childcare centre is complex and should be assessed using a range of participation triggers including:

  • Different types of facilities (e.g., small, large).
  • Various locations (e.g., residential neighbourhood, main road, close to workplaces).
  • The range of services offered (e.g., different programs offered, kindergarten services plus childcare, meals supplied or not, opening hours).
  • Quality of care and education.

Further, he stated “the true need for additional childcare centres, indeed any type of community service, is determined by the community accessing that service”.

The Tribunal held the expert evidence was well balanced and takes into appropriate consideration the wider range of locational factors that affect the demand for childcare centres within an urban growth area setting. It also accepted the Applicant’s submissions that need alone is not sufficient justification to warrant refusal of the proposal.

See also:

  • Guide to Planning Appeals: Childcare centre, Need

3. What is meant by ‘must give’ in a Tribunal order

In what appears to be a highly contested matter involving a multi-storey mixed use development in the Forrest Hill precinct of the Chapel Street Activity Centre, one of the parties in Box v Stonnington CC [2023] VCAT 598 wrote to the Tribunal arguing that the matter should be stuck out and the deputy president should recuse herself on the basis that incorrect orders were made in earlier proceedings regarding the giving of notice (in relation to amended plans under Practice Note – PNPE9 Amendment of Planning Permit Applications and Plans (PNPE9)).

The earlier proceeding was Box v Stonnington CC (Red Dot) [2023] VCAT 289 (editorial comment VCAT Vol 10 No 8).

The correspondence stated “The VCAT Act plainly regards the ‘giving’ notice as being synonymous with ‘serving’ it. See Sections 140 and 141. It is one and the same”.

The Tribunal agreed the words ‘serve’ and ‘give’ are arguably synonymous with one another for the purposes of sections 140 and 141 of the Victorian Civil and Administrative Act 1998 (VCAT Act). However, the Tribunal considered that did not mean that use of ‘give’ in the Tribunal’s order was also to be taken to be synonymous with ‘serve’. It stated:

The Tribunal order requires the applicant to ‘give’ to others by a particular date that is, the order requires the applicant to use one of the four methods described in section 140 of the VCAT Act to start the process. Service is effected by the receipt by another of the documents, notice or order. If effective service cannot be established, then one has regard to section 141 of the VCAT Act to confirm a date for service. [37]

And further:

The giving of notice in the Tribunal order is not synonymous with the effective service of notice. If the Tribunal order required service to have been effected, it would have used the term ‘serve’ as that indicates the receipt of material. This is to be contrasted with some orders that are used by the Tribunal that require certain steps to be ‘filed and served’ by a particular date. That clearly requires the material to have been received by that date and not simply sent or given. [40]

The Tribunal rejected the request that the matter be struck out and refused to recuse herself. On the recusal, it was stated:

The request for me to recuse myself is based on a claim that I may have made the same ‘mistake’ that the permit applicant has made because I was a planning lawyer. The basis of the request is unclear to me. [29]

In another case involving the same proposal, Box v Stonnington CC [2023] VCAT 715, a further practice day hearing was held to determine whether an objector to the permit application should be joined to the proceeding and whether the applications raise a Federal Law issue.

At the outset, the Tribunal made the following observation:

I record that the tone of some parts of Dr Kirkham’s written submissions and those delivered orally before the Tribunal were delivered with less than the civility and relevance than the Tribunal expects. Despite the Tribunal’s attempts to bring the issues raised back to those which are relevant to the matters the Tribunal can determine in these proceedings, Dr Kirkham’s submissions continued to be less than of assistance. This conduct does not allow the Tribunal to deal with matters efficiently and expeditiously as is the expectation of matters before this Tribunal. [9]

On the question of the relevance of federal law, the submissions made to the Tribunal appeared to be based primarily on an argument that an application for costs in the proceedings against the submitter would involve determining matters of Federal subject matter namely the Disability Discrimination Act 1992 (Cth). The Tribunal considered this argument to be without foundation and highly speculative as there is no costs application before the Tribunal.

The second argument raised seeking to identify a federal matter was an argument based the on the proposal being in contravention of the Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) and an argument that VCAT would be acting illegally if it allowed such an arrangement to be facilitated. The Tribunal held that any contractual or other arrangements between Melbourne High School and the permit applicant (and any of its associated entities that may be internationally based) are irrelevant to the determination of the section 80 and section 82 applications. The identity of the permit applicant or arrangements it enters into are not relevant matters for the Tribunal nor is it open to the Tribunal to consider them.

The Tribunal agreed that the submitter could be joined to the proceeding despite an earlier decision that refused such a request. It was made on the basis of a fresh application being made and the consideration of additional matters.

See also:

  • Guide to Planning Appeals: Appeals

4. Rural worker accommodation

The ‘Rural worker accommodation’ use was inserted into Clause 73.03 of the Victoria Planning Provisions through Amendment VC202 on 25 August 2022.

In Redland Fruit Pty Ltd v Swan Hill Rural CC [2023] VCAT 601, the Council sought declaration whether a proposal for a complex of six detached buildings to be used only by workers on the subject land for the duration of the harvest at no cost to the workers is properly defined as ‘Rural Workers Accommodation’ in accordance with Clause 73.03 and whether a planning permit is required.

The key components of the workers accommodation proposed were as follows:

  • the workers accommodation will be confined to the existing complex of five detached buildings constructed on the land
  • a maximum of 10 workers may be accommodated on the land
  • the workers accommodation may only be used during the harvest season for the harvesting of table grapes on the land (maximum January to May in each year)
  • the workers accommodation may only be used by workers who are actively working on the land and in connection with the harvesting of table grapes on the land (and not working elsewhere) during the period for which they are accommodated
  • the accommodation will be provided at no cost to the workers, and their rooms will not be serviced.

The Applicant relied upon legal advice to support its submissions that the proposed use for worker accommodation is ancillary to the use of the land for horticulture because:

  • the accommodation is provided only to workers who are actively working on the land in connection with the harvesting of the fruit
  • the accommodation is only provided during the harvest season
  • the accommodation is provided at no cost to the workers
  • the accommodation (or room) is not serviced.

Council submitted, inter alia, that:

  • the proposed use is properly characterised as ‘rural worker accommodation’ pursuant to Clause 73.03 of the scheme
  • given the scale and intensity of the proposed use, it requires a permit under the Farming Zone (FZ) because it does not meet all of the conditions set out in table 1 at Clause 35.07-1 of the scheme. In particular, the number of persons to be accommodated is greater than 10 and there is no existing dwelling on the land
  • given that a permit is required for the use of the land for rural worker accommodation, a permit is also required for any buildings and works associated with a permit required use in the FZ.

Whilst the Tribunal held that under the FZ a permit could be granted for the use if the prescribed conditions were not met, this does not mean the use cannot be ancillary. One of the key issues in determining ancillary was whether the use was in conjunction with agriculture. It stated:

VC202 and the changes to the scheme including to the FZ, recognise and provide parameters for accommodation when it is a separate land use albeit, still supporting agricultural activity and with a functional relationship to it. But even if the use does not require a permit because the conditions in table 1 at clause 35.07-1 are met, this does not mean the rural workers accommodation will be ancillary to an agricultural use. Rather, the condition in table 1 says:

    • Must be used in conjunction with Agriculture…

It noted that the use of the land for worker accommodation occurs during harvest season approximately six months of the year. The workers will only work on the land during the time they are accommodated on the land that is during harvest season and they will not pay for the accommodation. If the land was not used for horticulture the worker accommodation would not be required.

See also:

  • Guide to Planning Appeals: Characterisation of use, Rural workers accommodation

5. Where are upper level setbacks measured from?

In BEG Projects Pty Ltd v Merri-bek CC [2023] VCAT 483, which involved a proposal for a multi-level, mixed-use development accommodating dwellings, shop, food and drink premises and associated car parking, there was considerable debate during proceedings regarding the interpretation of the requirement for a 5.0 metre upper-level setback in the Activity Centre Zone provisions.

Council and its expert witness position was that the setback is measured from the street wall/ podium. The Applicant’s position, supported by the evidence of its planning and urban design experts, was that the setbacks are measured from the boundary. In this respect, attention was drawn to the definition of ‘setback’ at Clause 73.01:

The minimum distance from any allotment boundary to a building.

The Tribunal observed that there is no guidance within the provisions of the ACZ1 as to how (or where from) the upper level is to be calculated. It considered there was a legitimate debate about this issue and the case put by each of the parties was an arguable one.

Reference was made to the Amendment C123 Panel report that considered the introduction of the ACZ. It stated:

We consider that the setback of upper floors from the facade of any podium should be a minimum of 5 metres. This distance will ensure that the taller elements are visually separated from the podium and do not dominate the street environment. It will also provide a space of sufficient dimension on the roof of the podium that it could be used as functional open space. The facade of the upper floors should adhere to a height-to-setback angle of 45 degrees or a ratio of 1:1 to ensure that upper levels are adequately recessive from the street environment.

The Panel concluded that upper levels above podium height should be set back a minimum of 5.0 metres from the façade of the podium, and above podium height be further set back at an angle of 45 degrees. Consistent with this, the Panel included the following recommendation:

Require development above podium height to be set back a minimum of 5 metres from the ‘street wall’ and with a further set back [sic] are a ratio of 1:1 (45 degrees).

However, the recommendation was not included in these specific terms in the approved amendment and does not form part of the Planning Scheme’s provisions, though it appeared that the diagram which forms part of the Precinct requirements is an attempt to reflect this recommendation (at least in part) in the provisions. The Tribunal stated:

We agree with the applicant that we must take the Planning Scheme as we find it, and the ACZ1 provisions do not contain any requirement that the levels above podium height be set back 5.0 metres from the street wall.

In our view, the depiction of construction to the boundary and a 5.0 metre setback for the upper levels indicates the intent of a spatial (and, therefore, visual) separation between the lower and upper sections of buildings. We consider this should be reflected in the design in a manner which is legible and meaningful. [46-47]

On some of the contested setbacks, the Tribunal found they were insufficient to achieve a legible distinction within the overall building composition and having regard to the significant departure from the nominated 7.5 metre height for the street wall/podium.

Overall, the Panel found the proposal did not represent an acceptable planning outcome and a permit should not be granted for it in its current form.

See also:

  •  Guide to Planning Appeals: Setbacks

6. Is the setback to a foreshore boundary mandatory?

In another case involving questions about a setback, Conlan v Kingston CC [2023] VCAT 654, an issue arose as to whether the extension of a dwelling would breach a provision in the Design and Development Overlay Schedule 7 (DDO7) Urban Coastal Foreshore Setback Control Area that states:

Permit not required

A permit is not required to construct or carry out any of the following buildings or works within 4.5 metres of the foreshore reserve boundary:

    • Eaves up to 500mm.
    • A fence.
    • A clothes line.
    • A clothes hoist.
    • A swimming pool.
    • A change to the existing conditions or topography.

Permit requirement

A permit must not be granted to construct a building or construct or carry out works within 4.5 metres of the foreshore reserve boundary.

There were two questions considered by the Tribunal:

  • Is the western boundary of the subject site the ‘foreshore reserve’ within the meaning of DDO7 of the Kingston Planning Scheme?
  • If the answer is ‘yes’, is the proposed setback from the western boundary prohibited because it is less than 4.5m?

On the first question, it was agreed by parties that there is no express definition in the planning scheme for the phrase ‘foreshore reserve boundary’ or the individual words ‘foreshore’, ‘reserve’ or ‘boundary’. Further, neither is the composite phrase nor the individual words making up that phrase defined in either the Planning and Environment Act 1987 (P&E Act) or the Interpretation of Legislation Act 1984 (IoL Act).

In the context of DDO7, the Tribunal considered the phrase ‘foreshore reserve boundary’ is a composite phrase and what is meant by ‘foreshore reserve boundary’ is not derived by consideration of the dictionary meanings of each component word, as had been argued by the Respondent. The Tribunal was satisfied that:

  • As a matter of historical fact, it may be the land included in the permanent reservation gazetted in 1872 was identified by reference to the location of the high water mark at that time, however it is clear from consideration of the planning scheme map DDO7 that the affected area is not presently derived by location of, or measurement from, the high water mark.
  • The phrase ‘foreshore reserve boundary’ as it appears in Clause 2.0 of DDO7, on the present facts and in the context of the design objectives of DDO7 and the corresponding planning scheme map, means the eastern boundary of Crown Allotment 1A2, Parish of Lyndhurst at its common boundary with the subject land.

On the second question, the Tribunal stated that the final sentence of Clause 2.0 of DDO7 unambiguously states that a permit must not be granted to construct a building or construct or carry out work within 4.5 metres of the foreshore reserve boundary for the following reasons:

  • When the final sentence of Clause 43.02-2 is read as a whole, what must be specified otherwise is whether a permit may be granted that varies the particular requirements of the schedule.
  • Contextually interpreted against the design objectives of DDO7, the final sentence of Clause 2.0 of DDO7 is a requirement relating to building setbacks. It requires, by necessary implication, that all development must be setback 4.5 metres from the foreshore reserve boundary in order for a permit to be granted.
  • The final sentence of Clause 43.02-2 commences with permissive terms namely, ‘A permit may be granted to…”. In direct contrast to that permissive language, the final sentence of Clause 2.0 of DDO7 commences with mandatory language requiring that ‘A permit must not be granted…’ The final sentence of Clause 2.0 of DDO7 expressly displaces the discretion conferred under Clause 43.02-2.

In reaching this conclusion, the Tribunal disagreed with Carrum Sailing Club Inc. v Kingston CC [2010] VCAT 755 and Li v Kingston CC [2014] VCAT 213, where it was held the 4.5 metre setback requirement in DDO 7 was not mandatory. Rather, the Tribunal considered the approach Court of Appeal’s decision in Shadda Abercrombie v Salter Architects [2018] VSCA 74, whilst not dealing with the same provision, was the correct approach to adopt when considering whether a schedule to a DDO that ‘specifies otherwise’.

See also:

  • Guide to Planning Appeals: Setbacks

7. Refusal of childcare centre in proximity to a Major Hazard Facility

In Bujar Pty Ltd v Hobsons Bay CC [2023] VCAT 635, the Tribunal considered an amendment to a permit to include the use and development of the land for a childcare centre and restricted recreation facility (gymnasium and yoga studio). A permit granted on the subject site in 2017 allowed use and development of the land for a neighbourhood activity centre including a shop (other than an adult sex product shop), food and drink premises (other than a hotel and bar), postal agency, office (including medical centre) and dwellings. A two storey extension was proposed to allow the additional uses.

The subject land is located approximately 400 metres north-west of the Viva Newport Major Hazard Facility (MHF). Following notification, WorkSafe advised Council against the granting of the amendment application having regard to the following matters:

  • the proposed location within the Outer Safety Area of the VIVA Newport Major Hazard Facility
  • the increase in numbers, occupancy, and vulnerability of persons likely to be present at the proposed development
  • the ability of those persons present at the proposed development to be organised and safely respond to an emergency at the above facility
  • that the proposed development may set a precedence for similar residential development in the area, potentially initiating a further increase in population density over time near an MHF.

The permit applicant engaged a consultant to prepare an Impact Assessment Report (IAR) which identified potential risks associated with toxic cloud and explosions. To address these concerns the preliminary recommendations were that the following be undertaken:

  • early incident detection for incidents at the Viva Energy MHF either using on-site or industry-supported monitoring such as that provided by the Environment Protection Authority
  • modification to the childcare ventilation system
  • installation of laminated glass windows at the childcare centre to prevent glass shards being created and ‘shrapnelling’ users of the centre in the event of a rare, unconfined vapour cloud explosion.

The IAR concluded as follows:

Overall, based on the hazard consequence contours provided by WorkSafe Victoria and the advice from Viva Energy, we believe the further controls suggested for these hazards as described above would appear to make the presence of the proposed child care centre reasonable in the circumstances, that is, SFAIRP.

The IAR was referred to WorkSafe, however it maintained its opposition to the proposal.

The Tribunal referred to Wilcon Projects Pty Ltd v Hobsons Bay CC [2016] VCAT 1929, which also involved a proposal for a childcare centre in proximity to the MHF. In Wilcon Projects, the Tribunal recognised that [at 67]:

I find that ‘the bar is set higher’ with the risk assessment for this proposed child care centre where:

    • The children involved would be of a more vulnerable and less independent pre-school age, such that their ability to react to risks and act with their own initiative would be quite limited.
    • I accept that pre-school age children may well find it more emotionally traumatic to deal with an emergency-response situation, as they are less emotionally mature.
    • Pre-school age children have a less reliable ability to follow instructions (eg to congregate in a certain area or to evacuate) in an emergency response situation.

Further, the Tribunal in that case expressed concern that there would be little or no warning of an impending vapour cloud explosion, going on to say [at 70]:

… Hence the safety precautions taken against this risk at this facility need to fundamentally be in place as part of its ordinary day-to-day operation. Compare this to bushfire risk, where it is common for residents to either have a refuge or an ‘Evacuation safety plan’ for the situation where they are made aware that a bushfire may be heading in that person’s direction.

In the current proceeding the Tribunal supported the approach in Wilcon Projects, and stated:

We agree with the Tribunal’s approach in Wilcon to determining the acceptability of risk to pre-school age children and acknowledge that, in the event of a major incident children may suffer adverse effects and/or be vulnerable to some extent. Vulnerable users such as children would require assisted evacuation, or even just require assistance to move from outdoors to indoors in an emergency response situation. [58]

See also:

  • Guide to Planning Appeals: Childcare centre > Risk