VCAT Volume 10 No 12

1. Relevance of bushfire impacts revisited

It may be recalled that in Clifftop at Hepburn Pty Ltd v Hepburn SC [2023] VCAT 201, the Tribunal held that third party objectors were not able to make submissions on Clause 13.02 (Bushfire) because the parties had no third party notification or review rights under the Bushfire Management Overlay (BMO). The permit application was for a camping and caravan park (glamping).

In Booth v Strathbogie SC [2023] VCAT 782, a preliminary hearing was held to consider the relevance of Clause 13.02 having regard to the permissions required under the Strathbogie Planning Scheme for the proposed use and development. Following the conduct of the preliminary hearing, the parties were afforded the opportunity to provide further written submissions on the relevance, if any, of the decision of the Tribunal in Clifftop at Hepburn Pty Ltd.

The proposal in Booth was for the use and development of land for a distiller and associated sales; use and development for a manager’s dwelling and associated outbuilding. Council supported the proposal.

The subject site is in the Farming Zone. It is not in the BMO but in a designated bushfire prone area under Building Act 1993.

All parties submitted, “in one way or another”, that Clause 13.02 is relevant to the consideration of the planning application the subject of this proceeding. Given that the Tribunal’s determination is contrary to the submissions of all parties, it considered it necessary to provide detailed reasons that underpin the determination.

The Council’s submissions, as summarised by the Tribunal, are fully replicated below [at 13]:

In summary, Council submitted as follows: 

    • The permit triggers under the Farming Zone are ‘general’ and require broad consideration of the acceptability of the proposed use and development from a planning perspective;
    • The words of clause 13.02-1S require the policy to be applied to all planning and decision making under the P&E Act relating to land that is within a designated bushfire prone area;
    • Simply because a permit is not required under the Bushfire Management Overlay does not mean that policies intended to apply to land in bushfire prone areas have no application.
    • Consideration of the risk of bushfire to people and property is relevant to the exercise of the Tribunal’s discretion when assessing the permit application because:
      • Section 60(1)(e) of the P&E Act requires that the responsible authority ‘must’ consider any significant effects the ‘environment may have on the use or development’. The substance of Council’s submission in this regard is that s.60(1)(e) applies independently to the requirements of the scheme;
      • Clause 35.07-6 (Farming Zone) requires the responsible authority to consider as appropriate, the suitability and capability of the site to accommodate the use and development. In this respect, Council submitted that the designation of the site as bushfire prone clearly comes within the concepts of capability, suitability and capacity of the subject land to accommodate the proposal; and
      • Clause 65(1) of the scheme requires the responsible authority to consider, as appropriate, the degree of ‘fire hazard associated with the location of the land’.
    • Given the links identified by Council between the permit triggers and clause 13.02-1S, Council submitted that the objective and strategies of clause 13.02 are relevant to the exercise of the Tribunal’s discretion in arriving at an integrated decision consistent with its obligations under clauses 65 and 71.02-3 and consistent with the reasons of the Victorian Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd & Ors [2015] VSCA 27 (1045 Burke Road). 
    • Council distinguished the decision in Clifftop at Hepburn by noting that in that matter the Tribunal left unanswered the essential question of the relevance of clause 13.02-1S to the consideration of a permit application for land only within a ‘bushfire prone area’.
    • Council submitted that it was troubled by the application in Clifftop at Hepburn of the reasoning of the Tribunal in Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191 (Brunswick Investment). Council takes issue with the Tribunal’s conclusion in the Clifftop at Hepburn that because the permission for use required for that proposal under the Farming Zone does not enable consideration of matters contained in clause 13.02-1S as those matters sit outside the purposes of the Farming Zone. Put another way, clause 13.02-1S is not engaged by an application in the Farming Zone because the focus of the Farming Zone is on supporting agriculture rather than on managing fire risk.
    • Relying on the reasons of Garde J in 1045 Burke Road, particularly those reasons found in paragraphs 137 to 143, Council submitted that simply because the purposes and decision guidelines of the Farming Zone do not specifically reference bushfire and are primarily directed towards the protection of agriculture, it does not follow that non-agricultural policies in the Planning Policy Framework cannot be taken into account in assessing a proposal under the Farming Zone.
    • In conclusion, Council submitted that –
      • Where a Bushfire Management Overlay permission is not required and land is in a bushfire prone area, the decision maker must consider the policy at clause 13.02-1S when assessing a permit application under the Farming Zone; and
      • A failure to consider clause 13.02-1S will lead to outcomes contrary to the objectives of planning in Victoria (which must be considered under section 60 of the P&E Act).

The Tribunal concluded that the reasoning in 1045 Burke Road:

  • does not stand for the proposition that the broader planning framework, that is all planning policy, is relevant to all permit applications;
  • does not stand for the proposition that the relevance of planning policy to the exercise of a discretion is not determined by consideration of the purpose of the planning controls required under the relevant planning scheme;
  • supports the ongoing validity of the National Trust principle.

And the reasoning in Brunswick Investment:

  • applies the reasoning in 1045 Burke Road; and
  • applies the reasoning in National Trust.

Further, as to the application of the decision guidelines in Clause 65 and the matters in section 60 and section 84B of the P&E Act, the Tribunal agreed with the observations in Victorian National Parks Association Inc & Anor v Southern Grampians Shire Council (2004) 16 VPR 98 at [104]

It can be observed that the apparent scope of relevant considerations is extremely broad. This is typically the case with all planning permit decisions. Yet if all apparently relevant factors need to be considered in a particular case, with reasons being articulated as to how the matter was taken into account, the making of the planning permit decisions would be quite impossible. In the real world, most decisions revolve around just one or two key considerations.

Having regard to the permit triggers and the decision guidelines under the Farming Zone, and having regard to the authorities above, the Tribunal held:

Clause 32.07 Farming Zone read as a whole against the background of clauses 14.01-1S, 14.01-1L supports a conclusion that when assessing the use or development permission sought under the Farming Zone the purpose of that assessment is to enquire whether the proposal will support, and not detract from, agriculture.

Further, the complete absence in clause 32.07 of any express requirement to undertake any bushfire planning, the lack of applicable performance standards or requirements leads to the conclusion that to the extent that the policy desires bushfire planning to occur on land other than land affected in by BMO, those aspirations of clause 13.02-1S are unfulfilled because of a lack of integration of that policy into the controls triggered under clause 32.07. Whilst the policy may exist, the necessary machinery or control provisions in the Farming Zone do not exist.

As can be seen from these reasons, the extent to which any of the considerations under clause 65.01 of the scheme or s.60 or s.84B of P&E Act are relevant to consideration of the permit application is intrinsically linked to the scope of the discretion conferred under the Farming Zone (and the Erosion Management Overlay and clause 52.27). Hence, if clause 13.02 is not relevant to the discretion conferred under the Farming Zone, then it is not a relevant consideration under clause 65.01 or s.60(1)(e) or s.84B of the P&E Act. [98-100]

It will be interesting to see whether submissions on the relevance of policy and the scope of consideration under permit triggers will be made in future cases, or whether this case puts the matter to bed. One suspects that further submissions will be made, particularly having regard to the commentary made in Booth in Council’s submissions (made by a legal representative) that it found some aspects of Clifftop at Hepburn “troubling” .

See also:

  • Guide to Planning Appeals: National Trust principle > Relevance of specific clauses and decision guidelines in the planning scheme with control trigger

2. Do verandahs and balconies form part of the total floor area of a rooming house under Clause 52.23? 

Clause 52.23-2 of the planning scheme provides exemptions for a permit for the use of a rooming house in a GRZ, including:

  • The total floor area of all buildings on the land, measured from the outside of external walls or the centre of party walls, does not exceed 300 square metres, excluding outbuildings.

And Clause 52.23-3 of the planning scheme provides exemptions for a permit for buildings and works in the GRZ:

  • The total floor area of all buildings on the land, measured from the outside of external walls or the centre of party walls, does not exceed 300 square metres, excluding outbuildings.

In Colinx Nominees Pty Ltd v Frankston CC (Red Dot) [2023] VCAT 679, which involved an application against Council’s refusal to issue a Certificate of Compliance, the Council submitted the balcony and verandah areas are contained within the building structure through various wall and roof components and are to be calculated as part of the total floor area. The Applicant submitted the balcony and verandah areas should be excluded from the total floor area calculation as each area is not fully enclosed.

The plans before the Tribunal showed a fully covered verandah for each room, but had significant wall openings typical of many balconies associated with apartment developments.

The Applicant contended the verandahs and balconies fall outside the ‘external walls’ of the building and should not be included in the building area calculation for the following reasons:

  • The purpose of Clause 52.23 to facilitate domestic-scale shared houses including rooming houses;
  • The ordinary meaning of the words “external”, “wall” and “outside”; and
  • The floor plans and elevations which demonstrate the only partly enclosed nature of those elements i.e. they are not enclosed by four walls.

In relation to the upper level balconies, the Council contended these areas should be included in the calculation of total floor area because:

  • By reference to the definition of ‘building’ under section 3 of the Planning and Environment Act 1987 (P&E Act), the balconies form part of the building or alternatively, constitute a ‘structure’ in and of themselves and in turn a building on the subject land;
  • The floor area of the balconies is within ‘the outside of external walls or the centre of party walls’;
  • Each of the first floor balconies are roofed, attached to the remainder of the building; and
  • Are enclosed by a 1m high ‘timber framed wall … with 10mm blueboard cladding and rendered finish’ along the southern edge.

Further, the Council contended “the balconies for rooms 6 and 7 are enclosed by floor-to-ceiling party walls on both sides, whereas the balconies for rooms 5 and 8 are enclosed by a floor to-ceiling party wall on the internal facing side only”.

In finding that the verandahs and balconies should be excluded from the floor area calculation, the Tribunal stated:

The verandahs and balconies form what under the planning scheme are ‘private open space’ areas defined in clause 73.01 as ‘an outdoor area of a dwelling or residential building’. Taking account of the ordinary meaning of verandahs and balconies they remain external to the internal part of the building. Even roofed, separated by timber walls, as well as having timber balustrades in front of each balcony they remain exposed to open air, light and weather. They sit beyond the enclosed external walls.

I accept that the reference to ‘total floor area’ in clause 52.23 whilst not defined in the planning scheme, has a similar meaning to the definition of ‘gross floor area’ in clause 73.03 being ‘the total floor area, measured from the outside of external walls or the centre of party walls, and includes all roofed areas’. The separation of the balconies and verandahs by a timber wall or party wall is not relevant as they sit outside the external walls of the building and do not form in terms of the consideration of the total floor area part of the building.

I adopt the ordinary meaning of verandah and balcony being external to the building and conclude that although roofed, enclosed in part by walls and balustrades they sit outside the external walls of the building.

I conclude that the balcony and verandah areas do not form part of the ‘total floor area’ calculation for the purposes of the exemptions in clauses 52.23-2 and 52.23-3 of the planning scheme. [33-36]

It will be interesting to see whether the floor space encompassing the verandahs and balconies will be included in the marketing of the rooming houses.

See also:

  • Guide to Planning Appeals: Dwelling > Rooming house

3. Tribunal declares permit for filling of former quarry has not expired

In a somewhat complicated matter involving a permit issued in 1975 for sand extraction that had been subject to more recent enforcement actions and a Supreme Court hearing, the Tribunal declared in Kingston CC v Lantrak Developments Pty Ltd [2023] VCAT 633 that the 1975 permit had not expired.

The substance of Council’s position was that it wanted to see the subject land properly filled/capped/remediated in a timely way and consistent with the relevant requirements of any current permits and/or licences.

The permit applicant submitted they were also wishing to achieve the same outcome as Council per se, but there is uncertainty/disagreement about:

  • the nature of the current operations occurring on the site
  • what permits/licences currently affect the site
  • the more gradual remediation process that needs to occur.

Council’s enforcement actions were decided by the Tribunal in Kingston CC v Lantrak Developments Pty Ltd (Corrected) [2020] VCAT 622. The Tribunal had concluded that the operator had breached condition 1 of the 1975 Permit “…because the use had not been conducted in accordance with the approved working plan in the licence which, in turn, requires work to be carried out in [compliance with] the Rehabilitation Plan”].

The enforcement orders made by the Tribunal included the requirements that the operator must prepare a land restoration plan by a certain date to the satisfaction of Council and that the operator  must then complete all of the relevant restoration works by another relevant date. The Tribunal’s decision was challenged in the Supreme Court in Lantrak Developments Pty Ltd v Kingston City Council  [2021] VSC 708. The sole ground of appeal was that “The Tribunal erred in holding that condition 1 of the Permit required that the use operate in accordance with the Rehabilitation Plan”.

The Supreme Court held the Tribunal had made an error of law with its findings about Condition 1 of the 1975 permit. Hence it granted the appeal and directed that the matter be remitted to the Tribunal.

Notwithstanding the Supreme Court findings, the Tribunal in the current proceeding accepted the operator’s contentions that in light of this significant new information, the Court’s ‘lack of nexus’ reasoning and findings should be essentially disregarded.

In finding the 1975 permit had not expired, the Tribunal considered that Condition 1 of the 1975 permit is of an ‘operational’ nature, and was not intended by its drafter to play any significant role with how the 1975 permit (as a whole) deals with its own potential expiry. Rather, it concluded that Condition 21 is the applicable condition intended to deal with when the 1975 permit might expire.

Condition 21 of the 1975 permit provides:

This permit shall expire if the development hereby authorised by this permit is not completed prior to the expiry date of the Extractive Industries Licence issued in respect of the subject land.

The Tribunal considered that:

  • It is critical that unlike with Condition 1, Condition 21 uses more open-ended and generic language in (with Tribunal emphasis) referring to “…prior to the expiry date of the Extractive Industries Licence issued in respect of the subject land”. Condition 21 does not identify any particular licence as being its point of reference.
  • Given this more open-ended and generic choice of text by the draftsperson(s) of Condition 21, a reasonable person would interpret the words ‘Extractive Industries Licence’ as meaning the relevant extractive industries licence from time-to-time.
  • The drafters of Condition 21 had the opportunity to insert in Condition 21 a specific reference to the Licence 716, but it is significant that this was not done.

The Tribunal considered this more flexible interpretation of the operation of the words is consistent with findings made in previous cases, including Pegasus Building Pty Ltd v Curlis [2018] VSC 484, Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157 and Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VicRp 93;  [1972] VR 781.

The Tribunal also considered its findings were reinforced by the following points:

  • If in theory the ‘life’ of the 1975 permit was tied to the expiry of the Licence 716, this would indicate that the day-to-day activities occurring on the subject land (including considerable remediation works) have prima facie been operating unlawfully since 2004;
  • It seemed counter-intuitive for there to be a situation where there was an on-going extractive industries approval WA 383 operating but no accompanying planning permit for the subject land;
  • If the operation of Condition 21 was such that the 1975 permit expired in 2004, this creates major uncertainty and doubt regarding the status of the reclamation/remediation requirements under Conditions 18 and 19 of the 1975 permit; and
  • The relevant legislation at the time only allowed the Minister in question to extend the Licence 716 on 10 May 1996 on the basis that the Minister was satisfied that there was a relevant planning permit on foot at that time.

In reaching its findings, the Tribunal reconciled its findings against the Supreme Court decision regarding this matter on the basis the Court adopted a narrower approach to the interpretation of Condition 1, compared to the Tribunal’s broader interpretation of Condition 21.

See also:

  • Guide to Planning Appeals: Permit > Expiry of permits

4. Does the Tribunal have power to endorse a variation to a Work Plan?

In Secretary, Department of Environment, Energy and Climate Action v Hanson Construction Materials Pty Ltd [2023] VSC 353, the Head Department of Environment, Energy and Climate Action (Head) challenged a Tribunal decision to endorse a variation (a second variation) to a Work Plan associated with the rehabilitation of a quarry. The second variation had been put directly to the Tribunal in a hearing involving a refusal to endorse an earlier variation (first variation) to the Work Plan by the Head.

The Supreme Court’s determination considers relevant provisions of the legislation, including various sections of the Victorian Civil and Administrative Act 1998 (VCAT Act) and the Mineral Resources (Sustainable Development) Act 1990 (MRSD Act). It stated that section 67 of the VCAT Act defines ‘an enactment by or under which jurisdiction is conferred on the Tribunal’, which in this case the enabling enactment is the MRSD Act. Specifically, section 77TI states:

Review by Tribunal

(3) A licensee, the holder of an extractive industry work authority or a person proposing to apply for an extractive industry work authority may apply to the Tribunal for review of—

(a) a decision of the Department Head under section 77TD to refuse to statutorily endorse a work plan or variation to an approved work plan; or

As to the scope of the jurisdiction conferred by the MRSD Act, the Court stated:

VCAT has jurisdiction to review the decision in respect of which its jurisdiction is invoked. In reviewing that decision, it looks at the merits and forms its own views. If it agrees with the decision under review, it has the power affirm it. If it thinks the decision under review should be varied, it has the power to vary it. If it thinks the decision under review should be set aside, it has the power to set it aside. It then has the power to make another decision in substitution for the decision under review, or to remit the matter to the original decision-maker. But VCAT has no jurisdiction to do more than to review the decision in respect of which its review jurisdiction was invoked and its powers may not be exercised other than for that purpose. Equally, the Tribunal does not have jurisdiction to ‘review’ a decision that has not been made. [47]

Reference was made to a number of authorities, including TC Rice Pty Ltd v Cardinia SC (Red Dot) [2019] VCAT 74 in which the Tribunal had refused an amended application by adding conditions that the gaming room operate on identified restricted hours. The Tribunal held that, in the absence of a contrary statutory provision, it may only review matters that are the subject of a decision by the original decision-maker, and that section 127 of the VCAT Act, as a ‘procedural power’, could not be used to confer jurisdiction on the Tribunal that it otherwise did not have.

The Supreme Court considered that “In summary, the case law, in my view, is consistent with the notion that VCAT or a body like it may have jurisdiction to review a decision made by others and not have jurisdiction to act instead as a primary decision-maker.”

Overall, the Court found:

I see no option but to express the limits of VCAT’s jurisdiction in somewhat uncertain terms that address the substance, rather than the form, of what is being asked of it: VCAT here had no jurisdiction to decide whether to statutorily endorse a particular work plan variation if the work plan variation it was asked to endorse was sufficiently different to the work plan variation that the Department Head had been asked to endorse such that it may fairly be said that VCAT was not reviewing the decision of the Department Head but was instead being asked to act as an original decision-maker.

Put another way, there may be changes between the document before the Department Head and the document before VCAT of such a dimension that they do not lead to a conclusion that VCAT, in considering the amended document, is, as a matter of practical reality, doing anything other than reviewing the original decision. [39-40]

Hence, the Court considered the Tribunal erred in law: it stated that when considering whether it had jurisdiction to determine whether or not to endorse the second work plan variation, the Tribunal did not approach the question by asking whether the effect of the substitution was that it was being asked to act as a primary decision-maker rather than as a body reviewing a decision made by another.

See also:

  • Guide to Planning Appeals: Jurisdiction of the Tribunal > Review of Tribunal’s original jurisdiction

5. Stay orders in environmental matters

There have been a number of recent VCAT decisions involving stay applications in environmental proceedings. Perhaps the primary driver of such applications for stay orders is that the recipient of an Environment Protection Authority (EPA) notice may suffer potentially significant commercial consequences by having to cease or modify its operations in accordance with the requirements of an EPA notice before the merits of that notice have been independently reviewed by VCAT. For instance, the recipient of a notice may incur substantial cost by for example costly upgrades or even shutdowns in complying with the notice’s requirements. If it were to later transpire that the recipient of the notice succeeded in its merits review, this cost will have been needlessly incurred. On the other hand, there may be circumstances in which the situation is sufficiently concerning from an environmental perspective that the effects of the notice need to take place immediately prior to the merits hearing of the substance of the notice.

For statutory context, the commencement of a VCAT merits review of environmental notices issued by the EPA under the Environment Protection Act 2017 (EP Act) does not automatically stay the notice.

Section 50(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) relevantly states:

Effect of original decision pending review

(1) Subject to subsection (2), the commencement of a proceeding for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

However, an applicant may seek a stay order from VCAT pursuant to section 50(3): 

(3)  The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.

Vista Estate Pty Ltd v Environment Protection Authority [2023] VCAT 692 concerned an application for stay under section 50(3). VCAT reiterated the following general principles applicable to the stay application:

  • The power to grant a stay is discretionary to be exercised after full consideration of the circumstances and facts of each particular case.
  • The dominant principle is whether or not the failure to grant a stay would render the application for review before the Tribunal nugatory.
  • Whether or not there is a serious question to be tried on review is a matter of some importance.
  • Whether or not it is in the community interest to grant a stay is properly to be taken into account. This involves the balancing of private interests against the public interest.
  • It is relevant for the Tribunal to take into account the period of time which will elapse before the hearing of the application for review.

Further, VCAT adopted statements in a previous proceeding in which it had stated that the discretion to grant a stay is broad and the circumstances include considering the environmental protection principle of proportionality and other principles contained in, and the purpose of, the EP Act.

In applying these factors to the case:

  • VCAT held that the timeframes involved with the review proceeding and the compliance steps under the environmental improvement notice substantially overlapped which support the granting of a stay. In some cases this needed to be weighed against the risk to human health and/or the environment however in this proceeding the EPA had not sufficiently established the risk to human health or the environment was so immediately overwhelming so as to militate against the grant of a stay.
  • The operator had not provided evidence of irreparable harm however if VCAT’s ultimate determination of the application was to set aside or vary the requirements of the improvement notice, the requirements presently set out in the improvement notice would be of limited utility.
  • VCAT observed that the circumstances at hand were unusual because the operator claimed that it complied with the requirements of the improvement notice already.
  • The broad nature of the requirements under the improvement notice and test for compliance under the general environmental duty was a serious question to be tried.
  • It did not agree with the EPA’s submission that an expedited hearing ameliorated any prejudice to the operator.

Having regard to these considerations and others, VCAT on balance determined to grant the stay.

Barro Group Pty Limited v Environment Protection Authority [2023] VCAT 707 concerned an application requesting a temporary stay of proceedings. VCAT had previously refused a similar request for a stay, that decision of VCAT having since been appealed to the Supreme Court. In the previous proceeding, EPA had contested the Applicant’s stay application. In the current proceeding, EPA consented to it.

VCAT outlined powers to grant a temporary stay of a proceeding under section 93 of the VCAT Act and also general powers to adjourn proceedings given a combination of provisions at sections 80(1), 97 and 98(3) of the VCAT Act.

VCAT ultimately decided to refuse the stay. It gave considerable weight to the fact that in its previous decision it had refused a stay. The fact that EPA had now consented was a change of circumstance however it was mindful of VCAT’s previous decision to refuse the stay and that this decision needed to be afforded appropriate weight.

Your editors note that, bearing in mind that the EP Act establishes a still relatively new environmental regime for Victoria, principles around the way in which VCAT should appropriately exercise its discretion on stay applications should continue to be clarified as the body of jurisprudence involving stay applications of EPA orders and related matters develops. Other recent decisions of VCAT involving stay applications include Van Hessen Australia Pty Ltd v Environment Protection Authority [2023] VCAT 70 and Monsbent Pty Ltd v Environment Protection Authority [2022] VCAT 1487.

See also:

  • Guide to Planning Appeals: Appeals > Stay of proceedings