VCAT Volume 10 No 4

1. Supreme Court deletes condition requiring works to protect childcare centre from oil pipeline

It may be recalled that in Viva Energy Australia Pty Ltd v Glen Eira CC (Corrected) [2021] VCAT 701, the Tribunal approved a childcare centre that was approximately 20 metres from an underground crude oil pipeline (the Western Port-Altona-Geelong Crude Oil Pipeline (‘WAG pipeline’) that transports crude oil from Western Port Bay to refineries at Altona and Geelong).

The Tribunal’s approval was subject to a condition that amended plans were to be submitted showing:

  • Materials and finishes to the ground floor boundary fences and the balustrade/screen to the first floor play areas, facing South Road and Valerie Street, that are resistant to radiant energy of up to 4.7kW/m2 for at least two minutes.
  • Amended access to the first-floor lobby area so that there is internal access to the stairwell from the northern teaching rooms to aid unexposed egress from the first floor to the emergency assembly point in the basement of the building.
  • Notation on the plans that the basement is designated as the evacuation assembly point in any emergency response plan for the centre.

During the Tribunal proceedings, there was discussion whether an interim order should be made to provide parties an opportunity to address the potential of such a condition. However, no interim order was made and the condition was included in the Tribunal’s order. The Tribunal justified the condition from a planning perspective, stating that [94-95]

Given this policy setting and the broader requirements of clause 65 [of the Scheme], that in turn require consideration of the objectives of the PE Act, we conclude that safety risk is relevant to our consideration. Further, in reflecting of Tribunal’s position about risk in Wilcon [2016] VCAT 1929, it follows from these policy considerations that:

It is not necessary to demonstrate that there is no risk, before a planning proposal can be approved.

    • What must be demonstrated is that the risk is acceptable.
    • What is an acceptable risk depends on the nature of the proposal. 

However, having regard to our earlier conclusions about the operation of the Pipeline Act and the obligations of Viva to ensure public safety, we consider that any response through the planning framework should properly be on the basis that Viva has addressed matters of public safety to the full extent that it is required to under the Pipeline Act, that is to ALARP. Any subsequential action required under the planning decision making framework would then be appropriate and proportionate to the level of residual risk after Viva achieves ALARP.

In Viva Energy Australia Pty Ltd v Glen Eira City Council [2022] VSC 726, the Applicants submitted to the Supreme Court that the Tribunal’s finding that any residual risk could adequately be addressed by a change to the materials of the proposed boundary wall and balustrade was not open on the evidence or was made in denial of procedural fairness. In granting the appeal, the Court stated:

The Tribunal is an expert body, and at least since the observations of Stephen J in Spurling v Development Underwriting (Vic) Pty Ltd, it has been accepted that supervisory courts should be reluctant to conclude that a factual conclusion was not open to an expert planning tribunal. However, the issue of fact involved an assessment of the ability of a wall to respond to fire. As the reasons of the Tribunal show, these issues were not typical planning issues. Of course, the Tribunal was not obliged to accept the expert evidence and once the risk had been assessed by reference to expert evidence of the kind given by Ms Polich and Mr Cann, the question of whether the risk was acceptable or needed to be addressed was a matter for the Tribunal. However the primary facts as to the protective qualities of the proposed wall were a matter for expert evidence. It is not apparent that the Tribunal used its specialised knowledge to make its finding, nor that it had the relevant expertise to address the critical questions concerning protection against radiant heat of a kind generated by a pool fire. Fairness to the parties also dictated that before reaching its conclusion, the Tribunal should have given the witnesses and the parties the opportunity to comment.

Thus, in arriving at that conclusion the Tribunal denied procedural fairness to the parties. On the basis of the evidence that was adduced, ECM submitted to the Tribunal that an interim decision would be appropriate in fairness to Viva and the Council so that they could consider the detail of what might be proposed. The matter was left on the basis that the Tribunal would either refuse the permit or make an interim decision to deal with any uncertainty over the potential design of the barrier. It was not put to the parties that it would be adequate to change the composition of the wall nor was it put to them that one option would be to approve subject to a secondary consent process. It is likely that had they been asked, the experts would have expressed an opinion on the proposed condition, however, they were not asked. And, it may be that the evidence ultimately establishes that a change to the composition of the wall and balustrade would be adequate to the task, having regard to the Tribunal’s conclusions as to risk and the primary role of the Act in ensuring the safe operation of the WAG pipeline. [93-94]

See also:

  • Guide to Planning Appeals: Conditions, Risk, Natural Justice

2. Challenge to Minister’s powers dismissed by Court of Appeal

It may be recalled that in W Everton Park Pty Ltd v Minister for Planning [2021] VSC 465, the Supreme Court dismissed a challenge to the exercise of the Minister for Planning’s power to approve a planning scheme amendment concerning a disputed boundary that divides businessman’s Lyndsay Fox’s private property at Portsea and the beach, known as Point King beach.

The decision was appealed to the Court of Appeal in W Everton Park Pty Ltd v Minister for Planning [2022] VSCA 243. The grounds of appeal were that:

  • The primary judge erred in holding that the Planning Minister did not act for an improper purpose in making the decisions to exempt himself under section 20(4) of the Planning and Environment Act 1987 (P&E Act) and to approve Amendment VC115 because, in making that holding, the primary judge:
    • erroneously disregarded statements and comments made by the Minister;
    • failed to undertake the correct analytical exercise by focussing upon the effect of Amendment VC115 rather than the purpose that the Planning Minister had in making and approving the Amendment; and
    • failed to apply the applicable and correct legal test in determining whether the Planning Minister acted for an improper purpose.
  • The primary judge erred in holding that the power conferred upon the Secretary by Clause 36.03–3 of the Planning Scheme is not antithetical or repugnant to the P&E Act because, in making that holding, the primary judge failed to properly construe and to ascertain the true ambit of the power conferred upon the Secretary.

The Applicants challenge was in only in relation to the Amendment Decision, not the Exemption Decision.

In dismissing the appeal, the Court of Appeal held:

  • It was not persuaded that the primary judge disregarded statements and comments made by the Planning Minister or that she failed to undertake the correct analytical exercise by focussing upon the effect of Amendment VC115 rather than the purpose that the Planning Minister had in making and approving the Amendment.
  • The fact that Amendment VC115 may have been prompted by the Registrar’s decision to amend the title boundaries of the Fox land does not establish that the Amendment was specifically directed to the applicants or that the Amendment Decision was made for any improper purpose. The fact that a particular event provides an impetus for a planning decision does not mean the decision was not made for a proper planning purpose.
  • Clause 36.03–3 applies to the process for making an application for a permit for the use or development of land in the Public Conservation and Resource Zone. It requires an applicant for a permit to obtain the public land manager’s consent to the making of a permit application; it does not require that the applicant obtain consent to the use or development proposed. Insofar as Clause 36.03–3 refers to consent ‘to the proposed use and development’, it does not require such consent to be obtained before an application can be made. Rather, it enables the public land manager or the Secretary (as the case may be) to indicate such consent at the same time as giving consent to the making of the application. Accordingly, the Court of Appeal did not consider that any implication arises from any of the provisions of the P&E Act that precludes a requirement in a planning scheme that an applicant obtain the consent of the Secretary before making an application for a planning permit. (Court of Appeal emphasis)
  • In the Court of Appeal’s view, the consent requirement in Clause 36.03–3 is to be distinguished from the impermissible ‘interpositions’ considered in the Shire of Sherbrooke cases. In Shire of Sherbrooke v Aitken [1981] VicRp 82; [1981] VR 873, the planning scheme provided that the responsible authority could permit certain subdivisions if it was ‘satisfied by prior resolution that the grant of a permit would not prejudice the objective of orderly and proper planning of the area in which the land is situate and that special circumstances exist which warrant the grant of a permit’. In Shire of Sherbrooke v FL Byrne Pty Ltd [1987] VicRp 29; [1987] VR 353, the relevant requirement was held to be invalid to the extent that it purported to prohibit the grant of a planning permit until a development plan was promulgated. These were not application requirements, but impediments to the process of having a permit application considered and determined by the responsible authority.

See also:

  • Guide to Planning Appeals: Planning Scheme Amendments > Relief against Minister’s decision

3. Supreme Court dismisses appeal that amended plans could be approved under a s 173 agreement

In Hancock v Nillumbik Shire Council & Ors [2022] VSC 67, the Supreme Court has dismissed an appeal involving a dispute as to whether plans could be amended under a section 173 agreement.

The section 173 agreement was entered into as a condition of permit on a two lot subdivision requiring plans to be endorsed by the Council. The original owners had subdivided the land and the owners of the new lot subject to the section 173 agreement received Council approval to amend the endorsed plans.

The Applicants’ concerns were:

a) the lack of notification and any formal opportunity to be heard prior to the granting of each of the Council’s consents; and

(b) the granting of each of the Council’s consents, and in particular –

(i) the differences between the various ‘endorsed plans’ and those earlier endorsed in connection with the original Development Permit and the Subdivision Permit; and

(ii) the claimed consequences to the Applicant of those variances, particularly in respect of what, in argument, was broadly referred to as ‘amenity’.

The Tribunal had rejected the Applicant’s applications in Hancock v Nillumbik SC [2021] VCAT 1551.

In dismissing the appeal, the Court held:

  • It was not accepted that the Tribunal erred in describing the purpose of the section 173 agreement as having been to ensure that the Council retained control over development at the subject site. Without such an agreement, as the Tribunal explained, no such control would exist because no planning permit would be required to construct a single dwelling on the land.
  • Further, there is nothing in the text nor context of the section 173 agreement that supports the submission that it should properly be read as requiring development by reference only to the plans originally endorsed (whether in February 2005 or as amended in November 2006) or, at most, with only ‘minor’ or ‘inconsequential’ changes. This is because the agreement allowed plans approved under the development permit (unless with further written consent of the Council).
  • In response to submissions that the Tribunal had erred when concluding that the Lot 4 Development Permit had expired at the time at which the Council consents had been granted and thereby misapplied section 180, the Tribunal was correct in rejecting this argument on the basis that, among other things, there was no breach of section 180 of the P&E Act because there was no ‘permit’ in existence capable of being breached.
  • The Tribunal gave proper regard to the evidence provided to it. It was open to the Tribunal to give the evidence limited weight, and in any case the main point of the planning evidence was to explain the difference between the original plans and the amended plans and how changes could be made to address the Applicant’s amenity concerns.
  • The Tribunal gave ‘adequate or sufficient reasons’ in its reasonings and in this regard, the Tribunal did not deny procedural fairness.
  • Nor did the Tribunal deny procedural fairness in not finding the Council should have given notice of the amended plans. Specifically, it observed that:
    • consent under a section 173 agreement is not a decision under the planning scheme;
    • such a determination is unaffected by the considerations expressly identified in section 60 of the P&E Act concerning permit applications; and
    • Tribunal authority – particularly, Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor [2010] VCAT 1226 – has long recognised that applications for ‘secondary consent’ arising out of the terms of a permit do not give rise to any right to notice.
  • In relation to submissions on materiality, it was considered vague as to what, if any, details before or able to be put before the Council might realistically have produced a different result.

See also: 

  • Guide to Planning Appeals: Section 173 Agreement

4. Is an easement a restriction?

In Lewis v Petrie [2022] VSC 673, the Supreme Court considered an appeal brought by an objector to an application for an extension to an attached dwelling that was approved by VCAT.

The dwellings share a party wall. Under a plan of strata subdivision, the lower boundary of the lots is one metre below the site and the upper boundary of the lots is ten metres above the site. An owners corporation owns the common property that surrounds the houses and the areas below and above the lots. The ‘model rules’ apply to the owners corporation.

In Lewis v Glen Eira CC [2021] VCAT 457 the Tribunal had held that section 61(4) of the Planning and Environment Act 1987 (P&E Act) did not apply to the model rules or to the implied easements. In Lewis v Glen Eira CC [2021] VCAT 1172, the Tribunal granted a permit for a two storey extension.

The objector who brought the proceedings to the Court was concerned about the loss of light to her property. Three questions of law were raised:

  • whether the grant of the permit was unlawful because of the implied easements and the rules of the owners corporation, which question turns on the proper meaning of the phrase ‘registered restrictive covenant’
  • whether the Tribunal erred in law by granting a permit in circumstances where the owners corporation did not consent (or by failing to impose the obtaining of consent from the owners corporation as a condition)
  • whether the Tribunal erred in law by finding that the proposed development was an acceptable planning outcome within the Glen Eira Planning Scheme.

On the first ground, the Court agreed with the Tribunal that when the legislature used the phrase ‘restrictive covenant or a restriction that can be registered, or recorded in the Register’ in the Subdivision Act 1988, it did not intend to include an easement or, more particularly for the purpose of this case, the easements implied by section 12(2) of the Subdivision Act. This was the case both in 1988 when the Subdivision Act was enacted, and in 2000 when the P&E Act was amended.

The Court noted that this conclusion is consistent with a number of decisions, including Hickey v Port Phillip CC [2000] VCAT 1919, Focused Vision Pty Ltd v Nillumbik SC [2003] VCAT 1393, Gray v Colac Otway SC [2005] VCAT 2266 and Richards v Hobsons Bay CC [2013] VCAT 527.

On the second ground, the Court held that the Tribunal was not obliged to be satisfied, to the extent required to establish that the grant of a permit was futile, that the work would damage or alter the common property, or that the owners corporation might not change its mind. This is because the Owners Corporation includes a rule that, in relation to the external appearance of lots, provides that an owners corporation may not unreasonably withhold consent. It had not been determined whether or not the owners corporation’s withholding of consent in this case was reasonable.

Nor was the Tribunal’s finding on futility incorrect. A number of authorities referred to in the Court’s reasonings all accepted that the owners corporation was able to prevent the development from proceeding notwithstanding the grant of a permit, and that, for the most part, the applications for a permit were not dismissed on that basis for the reason that the owners corporation might change its mind at some time in the future.

On the third ground, the Court was satisfied that Tribunal engaged in the evaluative process of the merits of the application and potential amenity impacts required of it, and reached a conclusion that was open to it.

Another issue raised in the proceeding was, if, as the Court had found, the restrictions in the owners corporations rules and the implied easements are not ‘registered restrictive covenants’, does the grant of a planning permit mean that the permit applicants may now renovate without having first to overcome any restrictions in the model rules or the implied easements? The Court considered that it is possible to obtain a planning permit even though other permissions, licences or arrangements would need to be made in relation to other obstructions to the project. It stated:

Accordingly, the Tribunal, in deciding whether or not to affirm the decision to grant a permit, applied what might be thought of as the usual planning considerations, and explicitly noted that, even with the permit, the Petries may not be able to carry out the renovation. The Tribunal did not evaluate whether or not the restrictions relied on by Ms Lewis that were beyond the usual planning considerations would be effective to prevent the build proceeding, notwithstanding the planning permit. 

In those circumstances, it would be surprising if the grant of the permit had the effect of denying to Ms Lewis whatever arguments she might have (outside the restrictions imposed by the various planning schemes) to prevent the build. Indeed, the law seems tolerably clear that, absent some planning permit that purports to alter an established right and that has some legal justification for doing so, the mere grant of a planning permit will not preclude a neighbour from relying on whatever rights outside the planning regime he or she might have. [49-50]

See also:

  • Guide to Planning Appeals: Easement > Meaning of restriction

5. Need for Council consent to end a section 173 agreement

In Montclair Realty Pty Ltd v Monash CC [2022] VCAT 1279, the Applicant sought to have a section 173 agreement requiring a car parking contribution ended on the basis of amendments to the planning scheme that had changed “the parking scene”.

The land is developed with a seven-storey building comprising various uses including cafes, restaurants, place of assembly, liquor licence and massage facilities. The purpose of the section 173 agreement was to defer the payment for car parking spaces.

The Applicant applied to Council to end the section 173 agreement. However, the Council advised the Applicant that it did not agree in principle to the ending of the agreements and thus, the application for the ending of the agreements was refused.

A Practice Day hearing was held to ascertain whether the responsible authority has provided in principle agreement to the ending of the section 173 agreements, in accordance with the decision of the Tribunal in Anderson v Moira SC [2018] VCAT 1882.

The Tribunal agreed with the analysis in Anderson that the Tribunal only has power to review a decision involving a proposal to end an agreement if there has been in principle agreement by the responsible authority to the ending of the agreement. The Tribunal has no jurisdiction if the responsible authority refuses to agree in principle to the ending of the agreement.

The Tribunal considered there is no ambiguity in the Planning and Environment Act 1987 (P&E Act). Section 178A(3) requires the responsible authority to notify the applicant (owner) whether it agrees in principle to the proposal to end the agreement. Notice of the application under section 178C(1) of the P&E Act can only occur if an application to end the agreement under section 178A of the P&E Act has been made and the responsible authority agrees to the ending of the agreement in principle. This much is clear from the opening words of section 178C of the PE Act which state:

(1) This section applies if —

(a) an application is made under section 178A and* the responsible authority agrees with the proposal in principle; or

(b) the responsible authority proposes to amend or end an agreement.

The application was summarily dismissed.

See also:

  • Guide to Planning Appeals: Section 173 agreements > Ending and amending agreements

6. Modified plans in response to Interim Order fail to achieve a holistic design

Despite an opportunity to submit amended plans following an interim order, the Tribunal has, in D & G Brothers Management Group Pty Ltd v Monash CC [2022] VCAT 1280, refused the proposal as a result of concerns that the proposed to changes to address concerns raised by the Tribunal resulted in deficiencies of other aspects of the design.

The proposal was to construct a 14 storey, mixed-use building on the subject land. The Tribunal’s interim order found that, subject to modification/s to ensure that at 2.00pm on the equinox the development would not cast shadow within 4.0 metres of the property boundary of sites on the eastern side of Clayton Road, the proposal could represent an acceptable planning outcome.

The order did not prescribe how the building should be modified to address the shadow impact, other than observing that the preferable treatment would be some reconfiguration of the upper level. The order provided the opportunity to review the design as a whole in order to achieve the required increase in solar access.

The principal change to the building shown on the amended plans included the removal of a segment of the building on the north-east corner (approximately 10 metres by 11 metres, being at Levels 6 to 13) in order to achieve the reduction in shadow specified in the order. This modification reduced the number of apartments by 15 and included a reorganisation or the removal of proposed communal open space.

The Council submitted that the Applicant’s response was unsatisfactory. It described the modifications made to the proposal as resulting in a building which relates poorly to its context. It submitted that the amended plans raise other issues in regard the overall appearance and that the design response no longer retains the positive attributes that the Tribunal relied upon in supporting the height of the initial proposal. The Council asserted that the proposal no longer achieved a high quality architectural and urban design outcome positively contributing to the neighbourhood character.

In agreeing with the Council’s submissions, the Tribunal stated:

Having considered the amended plans, submissions and evidence, in addition to the ‘information plans’, we are not satisfied that the modified building is an acceptable response to its context. Whilst the ‘podium’ level shown in the amended plans represents an acceptable response to the street, the tower above it does not. By, in the Council’s words, ‘taking a scalpel to the building’ to reduce the overshadowing, the applicant has failed to achieve a building that reflects an acknowledgement of the urban design responsibility inherent in the site. This requires a holistic consideration of the building from all aspects. Both the Planning Scheme and the CACPP seek good quality urban design and built form outcomes that make a positive contribution to the site’s context. [15]

See also:

  • Guide to Planning Appeals: Interim decisions

7. Quarry operator granted approval to be joined to proceeding

In Peet Funds Management Limited v Wyndham CC [2022] VCAT 1328, the Tribunal has approved a request by a quarry operator to be a party to a proceeding involving an application to allow an additional 60 residential lots.

The proposal was considered to be generally in accordance with the PSP (and invoking the exemption), however an issue to be resolved was whether it was appropriate to permit residential subdivision of the land within the designated quarry buffer.

The application was exempt from notice. The Department of Jobs, Precincts and Regions (DJPR) objected to the application in its capacity as a referral authority because of concerns with the potential impacts of the quarrying operations. The resource contained within the quarry Works Approval is considered to be a State Significant Resource and contains in excess of 40 years of high quality basalt resource.

In considering whether the quarry operator Holcim should be joined, the Tribunal noted that case law has established that it may be relevant to consider whether allowing the application for joinder would circumvent the provisions of the enabling enactment.

The Tribunal referred to a number of authorities, including Buckhurst Developments Pty Ltd v Minister for Planning [2015] VCAT 1048. In that case, the Tribunal joined the municipal council as a party, recognising it was the responsible authority for a component of the permit application and also a local government authority responsible for the provision of services and infrastructure in the relevant urban renewal precinct.

In the current proceeding, the Tribunal stated that it was clear that Holcim’s interests have the potential to be directly and materially affected. However, given the legislative regime limiting third party participation, this would have been unlikely of itself to have satisfied the Tribunal to exercise the discretion in its favour.

However, the Tribunal further stated that the capacity for its interests to be affected combines with a more significant consideration in the current proceeding. It noted that the Tribunal will be required to undertake a complex task in arriving at the correct and preferable decision on the amended subdivision proposal and that, therefore, it was highly desirable that Holcim was joined to enable all relevant information to be put before the Tribunal for assessment.

See also:

  • Guide to Planning Appeals: Appeals > Leave