VCAT Volume 10 No 8

1. Underdevelopment or no development

The Ringwood Metropolitan Activity Centre (RMeAC) is undergoing substantial urban renewal with significant office, retail, civic and residential development. Maroondah City Council has over a long period of time adopted a strong stance that residential development should maximise the opportunities provided in the planning controls.

In Investar Investments Pty Ltd v Maroondah CC [2023] VCAT 361, the Council refused an application for three, four-bedroom townhouses on the basis that the proposal is an underdevelopment that fails to meet the strategic direction for intensity and type of development that is envisaged for the RMeAC. Council had granted a planning permit for a three storey building comprising eight apartments on the subject site in 2020.

Amongst some of the arguments put by the Applicant in support of the proposal were that proposal, with each townhouse comprising four bedrooms, will contribute to some degree to increasing the mix of housing typologies within the RMeAC and that the construction costs “were disastrous”. It contended the underdevelopment was better than no development.

The Tribunal acknowledged that the proposal for four-bedroom dwellings may supply a diversity in the size of dwellings in this precinct and the RMeAC more broadly, however the average household size expected in Maroondah in 2041 is 2.3 people. It was not persuaded by the Applicant’s submissions that the purpose of the exercise is to get more people living in the Activity Centre Zone – Schedule 1 (ACZ1), and that three four-bedroom dwellings in essence cater for the same number of people as six two-bedroom dwellings, and that the net difference between the permitted development and this proposal is four bedrooms.

With respect to construction costs, the Tribunal held it was not a relevant consideration and carried no weight.

As to whether underdevelopment is better than no development, the Tribunal found that, if permitted, the dwellings in this current application would be there for a long time, and if these dwellings were subdivided the site would be fragmented and preclude the long term achievement of the policy for the RMeAC. It considered refusing a permit for this proposal would retain the potential for the subject land (whether, or not, consolidated with the adjoining property) to be developed in a manner consistent with the expectations for the ACZ1 and RMeAC.

It will be interesting to see whether the current permit is acted upon. Current constraints of supplies and increase of costs is having an impact on all residential development, not just taller buildings.

In another case involving the question of underdevelopment, CKRA Developments Pty Ltd v Banyule CC [2023] VCAT 430, the Tribunal refused an application for five, two storey dwellings on a site in the Residential Growth Zone near an activity centre and on the Principal Public Transport Network. The Tribunal stated:

The proposal will provide a net increase of only four dwellings on the land in a two-storey townhouse building form. The provisions and policies that apply to the subject land’s main road location anticipate a change to higher density and more intensive built form outcomes. The proposal is similar in density and scale to other townhouse developments in the surrounding are that pre-date the introduction of the RGZ6 and DDO14, and those within the GRZ1 hinterland to the east and west of the Oriel Road ‘Area 2 – Main Roads’ area. The planning and policy context demands a greater density and scale of development.

I place considerable weight on the expectations for a greater density, scale, and form of housing in the RGZ6/DDO14 and Postcode 3081 in the circumstances of the subject land’s proximity to the Bell Street Mall Neighbourhood Activity Centre. [49-50]

See also:

  • Guide to Planning Appeals: Underdevelopment

2. Who is the assumed representative in a joint application?

Section 67(3) of the Victorian Civil and Administrative Act 1998 (VCAT Act) provides for two or more persons entitled to make an application for review to make a joint application. VCAT’s website (If more than one person is applying) makes it clear that the joint applicants choose who will receive the correspondence and the application for review form requires a person/organisation to provide their details.

In White v Glen Eira CC (Costs) [2023] VCAT 345, which involved a costs application over $50,000, the nominated contact person, who was named in the costs application, argued that he never agreed to be joint applicant’s representative, and that there was no agreement amongst the other joint parties.

The matter got rather messy. There was a compulsory conference where a number of the joint parties agreed to withdraw from the proceedings following their satisfaction with the amended plans. However, the joint application’s representative (as understood by the Tribunal) did not attend because he was required to be overseas to attend to a personal tragedy. He had requested an adjournment at short notice and just prior to the scheduled dates and times (which were denied).

The Tribunal struck out the joint applicants’ representative from the proceeding following a practice day hearing.

The Respondents submitted the joint applicants’ representative conduct was vexatious; had unnecessarily disadvantaged the Respondents in a number of ways; and had displayed ‘a flagrant disregard’ for the time of all parties and the Tribunal.

With respect to the joint applicants’ representative, the Tribunal considered that a joint application assumes there is general consensus of the issues raised and the outcome sought amongst the joint applicants with one representative for the joint application. However, whilst the joint applicants may have shared general consensus on the issues to be raised when lodging the application for review, it was clear that the joint applicants’ representative did not consider his views on the development were being represented by the other joint applicants present at the compulsory conference. The Tribunal stated:

In preparing to file a joint application, the Tribunal’s website makes it clear that the joint applicants choose who will receive the correspondence (refer to the earlier extract from the website). The application for review form requires a person/organisation to provide their details. In this case, the details provided were those of Daniel Ben-Moshe.

Tribunal correspondence was sent to Daniel Ben-Moshe throughout the processing of this proceeding. In my view, he clearly had some understanding of his role to inform the other joint applicants. At no stage did he or any of the other joint applicants suggest or advise that an alternative person should receive the correspondence. This includes during the period following the compulsory conference and, in the period, leading up to the hearing. [52-53]

Ultimately the Tribunal found that the joint applicants’ representative should not be liable for costs because there were other reasons for the delay in settling the matter, including the reinstatement of some joint applicants at a practice day hearing and the failure of the Applicant to comply with Practice Note – PNPE9 – Amendment of plans and applications (PNPE9).

See also:

  • Guide to Planning Appeals: Appeals > Joint applications

3. Is the lodgement of a statement of grounds sufficient to be made party to a proceeding?

The Tribunal has red dotted the decision of Box v Stonnington CC (Red Dot) [2023] VCAT 289 because it confirms and provides detailed reasons for the Tribunal’s view that a person who objected to the grant of a planning permit and lodges a statement of grounds intending to participate in a review proceeding lodged under section 82 of the Planning and Environment Act 1987 (P&E Act) is not a party to the proceeding.

The person who was subject to the Tribunal’s determination objected to the application, which was for a 22 storey mixed use building. There were other objectors to the application. Council issued a Notice of Decision to Grant a Permit.

A number of objectors lodged an appeal as a joint application under section 82 of the P&E Act. However, the other objector was not a party to the joint application. He argued that because another person lodged an application for review under section 82, he was also a party to the proceeding.

In effect, as stated by the Tribunal, his main contention was that a proper construction of sections 83 & 83A of the P&E Act meant that because he objected to the responsible authority, all that was necessary for him to be a party was to be aware of a review proceeding and to lodge a statement of grounds in respect of that proceeding.

Further, he submitted the way an objector may participate in a proceeding was overly complex, requires the provision of more information than was necessary or lawful, and was contrary to ordinary principles of access to justice. The Tribunal stated:

In my opinion, Dr Kirkham’s submissions are in error and I do not consider him to currently be a party.

The starting point is that an applicant must serve an application on a person entitled to notice of the application under either the VCAT Act or (for present purposes) the PE Act.

There is no entitlement under either statute for a person who objected to the responsible authority against the grant of a permit to be given notice of or served with an application under section 82 of the PE Act.

Section 83(2) of the PE Act provides:

In addition to any other party to a proceeding for review under this Act, an objector is a party to a proceeding for review if the objector—

(a) is given notice of the application for review under this Act; and

(b) in accordance with the Victorian Civil and Administrative Tribunal Act 1998, lodges with the Tribunal a statement of the grounds on which the objector intends to rely at the hearing of the proceeding. [44-47] 

The Tribunal also considered it not desirable to join the objector having regard to the effect of section 83(2) of the P&E Act, to established authority which was referred to and to the uncertain party status of any joinder.

For completeness and in relation to section 60(1)(a) of the Victorian Civil and Administrative Act 1998 (VCAT Act) the Tribunal did not consider the objector ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding for reasons including the different grounds to those of other objectors and others upon which he intended to rely.

A section 80 proceeding in relation to the same Council decision was also to be heard by the Tribunal, which the objector was a party to the proceeding. The permit applicant applied for a direction by the Tribunal that that two proceedings be heard and determined together in accordance with section 82(1)(b) of the VCAT Act.

See also:

  • Guide to Planning Appeals: Appeals > Joint applications

4. Application for stay against EPA Notice of Revocation refused

The Applicants operate a landfill with an EPA licence for the receipt of solid inert waste and shredded tyres. In late 2022, the EPA notified the Applicant that it had formed a reasonable belief that the Applicant had contravened sections 24(1) and 4(c) of the Environment Protection Act 2017 (EP Act). In forming that view the EPA had considered whether the Applicant:

  • … took ‘reasonably practicable’ steps to ‘minimise’ the ‘risk’ of ‘harm’ to human health from air pollution caused by hot spots at its Landfill.

The people at risk were members of the community of Kealba and other areas including St Albans, Sunshine North, Keilor Downs, Taylor Lakes, Keilor, Sunshine and Keilor Park (Community).

In Barro Group Pty Limited v Environment Protection Authority [2023] VCAT 297, the Applicant filed an application under section 430(1) of the EP Act seeking a review of the decision of the EPA to issue a Notice of Revocation of Licence. Further to the review application, the Applicant sought:

  • a stay of this review proceeding under section 50 of the Victorian Civil Administrative Tribunal Act 1998 (VCAT Act) until hearing and determination of pending criminal proceedings; and
  • a stay of the decision of the EPA to revoke the Licence.

The Applicant submitted that the decision to issue the Notice of Revocation should be stayed because the review proceeding may be rendered nugatory particularly if, the review proceeding is stayed pending the determination of the criminal proceeding.

The Applicant was concerned with adverse publicity and alleged that such publicity was encouraged by the Chief Executive Officer of the EPA. It claimed that the adverse publicity has resulted in significant damage to the Applicant’s reputation including its suitability as entity that others may want to engage in business. The Applicant also submitted that a revocation of its Licence is a serious matter and in a different category to other types of notices the EPA could issue.

The EPA opposed the grant of a stay of the Notice of Revocation and contended that the application will not be rendered nugatory in circumstances where the Licence had been suspended for one and half years prior to its revocation. The Applicant did not seek any review of the suspension of the Licence and moreover, has elected not to accept waste, a decision it made on 23 December 2020.

Further, the EPA submitted that the Applicant has not established any serious question to be tried to support its application for a stay of the Notice of Revocation. The application for review alleges administrative error but without any substantiated particulars as to its allegation.

The Tribunal refused to stay the operation of the Notice of Revocation for the following reasons:

  • It did not have any evidence to support or substantiate that there would be an impact on business operations or employees;
  • Further, there has not been any attempt to quantity or estimate any financial impacts to the operations;
  • Whilst the revocation of the Licence received some media attention and some of it was negative, there had not been any necessary link demonstrated between the ‘negative’ or ‘adverse’ media attention and the business operations;
  • There was no material to conclude that the application for review would be nugatory for the reasons articulated immediately above;
  • The Applicant had not received waste on the site since 23 December 2020, of its own volition;
  • The form of orders sought did nothing more than preserve the current status quo and would require the Tribunal or the EPA to further consider whether the hotspots had been abated;
  • The EPA continued to receive health and/or odour complaints and thus public and/or community safety was still compromised;
  • There was no evidence from the Applicant of what it had done on the site since being told by the EPA that it intended to issue a Notice of Revocation; and
  • There was no material from the Applicant that provides a timeline for the abatement of the hotspots.

Reference was made to a number of authorities, including McMahon v Gould (1982) & ACLR 202; Commissioner of Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46; Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; and Minister for Planning v 160 Leicester Pty Ltd [2017] VCAT 441. The Tribunal considered the analysis in CFMEU and 160 Leicester to be most directly relevant to its consideration. As such, it considered that:

  • The review proceeding required the Applicant or its directors to give any evidence in the review proceeding and it was not unusual for the hearing to proceed on the basis of only expert evidence and submissions;
  • Much of the background relating to the site had already been filed by the Applicant and the EPA either in application material or in the decision makers material required by Tribunal orders;
  • Further, the criminal proceedings were brought by the EPA and the review proceeding was brought by the Applicant. The criminal proceedings require the EPA to prove its case against the accused that a breach of the EP Act occurred between the relevant dates set out in the charge and summons;
  • In contrast, the review proceeding involved the Tribunal making the correct and preferable decision on the evidence before it at the time of the hearing; and
  • The Tribunal agreed with the EPA that the companion principle did not apply to the review proceeding and in any event, there was no evidence to conclude that the accusatorial nature of the criminal proceedings or the rights of the accused therein were interfered with by the review proceedings.

See also:

  • Guide to Planning Appeals: Appeals > Stay of proceedings

5. Removal of restrictive covenant refused despite sole beneficiary support

Section 60(2) of the Planning and Environment Act 1987 provides:

The responsible authority must not grant a permit which allows the removal or variation of a restriction (within the meaning of the Subdivision Act 1988) unless it is satisfied that the owner of any land benefited by the restriction (other than an owner who, before or after the making of the application for the permit but not more than three months before its making, has consented in writing to the grant of the permit) will be unlikely to suffer—

(a) financial loss; or

(b) loss of amenity; o

(c) loss arising from change to the character of the neighbourhood; or

(d) any other material detriment—

as a consequence of the removal or variation of the restriction.

In DZZ Pty Ltd v Greater Geelong CC [2023] VCAT 321, directors of a benefitting owner company, who were the sole beneficiaries, consented to the removal of the restrictive covenant that was sought concurrent with an application for a camping and caravan park. Should there be an expectation that with such consent that there are no obstacles to its removal?

The Tribunal pointed out that it was obliged to have regard to Clause 52.02 of the planning scheme, under which permission is sought to remove the covenant. The purpose of Clause 52.02 is:

To enable the removal and variation of an easement or restrictions to enable a use or development that complies with the planning scheme after the interests of affected people are considered.

The Tribunal refused to grant a permit for the camping and caravan park on the planning merits. With respect the restrictive covenant, it held that, although the permit application took the form of a singular application, it was comprised of multiple permissions under applicable planning controls. Thus, it was conceivable that a permit could be issued for one aspect of a proposal, but not for others. It stated:

Notwithstanding the consent of the sole beneficiary, our key finding below is that the proposed use and development do not ‘comply with the planning scheme’, to the extent the planning scheme is comprised of applicable planning controls and policies.

A restrictive covenant has particular force in the PE Act, beyond just a private agreement between two parties.

While clause 52.02 is facilitative, it is inherent in the purpose of the provision that an assessment should be made that the proposed use and development associated with the removal of the restriction would comply with relevant planning scheme provisions.

In our opinion, it would be premature to authorise the removal of the restrictive covenant unless the Tribunal was satisfied that the use and development of the land for this particular purpose would comply with the planning scheme provisions. [23-26]

See also:

  • Guide to Planning Appeals: Restrictive covenant

6. Should a road be within or outside the UGB?

In Kilcock Nominees Pty Ltd v Whittlesea CC [2021] VCAT 354, the Applicant appealed a condition on a subdivision permit for 400 residential lots requiring a road abutting a regional park to be located within the Urban Ground Boundary (UGB) and therefore not within the park reserve.

The Applicant contended that the Development Plan was prepared and endorsed supporting local streets positioned external to the UGB and it did not contravene a section 173 Agreement.

The Council did not dispute that the Development Plan provides that there will be a road abutting the open space land. However, it submitted that while there is a Local Access Level 1 road (Interface Road) shown along the boundary of regional parkland open space land, this was clearly intended to be on the residential side of the UGB. It further submitted that the encroachment of this roadway outside the UGB and into the regional parkland open space land is inconsistent with the Development Plan and the Section 173 Agreement that provides certainty about the boundary between the regional parkland land (which is outside the UGB and zoned RCZ) and the residential land.

In supporting the retention of the condition, the Tribunal stated:

While there may be some inference from the Development Plan plan itself at Figure 4 (rather than the body of the Development Plan text itself) that the street at the interface with the Quarry Hills Regional parkland is partly outside the UGB, this does not persuade me that the proposed subdivision layout is an acceptable outcome. The requirements of the DPO (at clause 43.04-2) are that a permit granted must ‘Be generally in accordance with the development plan’. This means that a permit granted need not be identical to any plan forming part of the Development Plan.

I also find that the Development Plan must be read in its entirety and my reading of the text and plans leads me to the conclusion that while the Development Plan supports a road at the interface with the Quarry Hills Parkland, that this roadway is intended to adjoin the parkland, and this parkland is land outside the UGB.

I also accept that even though the location of the proposed road is inconsistent with the Section 173 Agreement, this does not mean that a permit cannot issue. Unlike restrictive covenants, the Act does not contain any corresponding provision preventing a permit from authorising something that is prohibited by a Section 173 agreement. However, the Section 173 Agreement and its genesis is a relevant consideration, and the weight to be given to this is also a matter for my consideration.

I also accept that a road can be constructed within a Rural Conservation Zone. However, I do not consider it to be orderly and proper planning to allow a roadway (that is principally designed to provide access to residential lots) to be built outside the UGB on land that is to be set aside for regional open space purposes. Given the body of strategic work clearly articulating how the land outside of the UGB is to be incorporated into the Quarry Hills Parkland, I find that extending the street network necessary for the residential subdivision of the GRZ1 (urban) land into the RCZ (non urban) land will prejudice the orderly use and development of the RCZ (non urban) land. [33-36]

See also:

  • Guide to Planning Appeals: Conditions, Development Plan > Generally in accordance

7. Are eaves part of a building and does site coverage apply to the whole of the land or to the subdivided lots?

In van der Beek v Yarra Ranges SC [2023] VCAT 264, declarations were sought as to (a) whether the calculation of the total area of the site covered by buildings under Clause 3.0 of Schedule 6 to the Design and Development Overlay (DDO) of the Yarra Ranges Planning Scheme includes eaves and (b) whether Clause 3.0 of Schedule 6 to the DDO allows for a permit to be obtained for lots of less than 500m² in a subdivision of three or more lots.

On the first declaration, which was similar to a question of law considered in the Tribunal in van der Beek v Yarra Ranges SC [2022] VCAT 902, the Tribunal held:

  • the eaves are part of a building for the purposes of Clause 3.0 of Schedule 6;
  • in light of what is meant by ‘cover’, the eaves could be said to contribute to the total area of the site that is covered by buildings, given an eave is located above and it will ‘serve as a covering for’, ‘extend over’ or ‘occupy the surface of’ the ground beneath; and
  • as such, for the purposes of clause 3.0 of Schedule 6, in determining the total area of site covered by buildings, the eaves should be included.

Underpinning the Tribunal’s reasoning was that it is reasonable to conclude that an eave, forming part of the roof of a building, would be part of the building.

On the second declaration, the Tribunal held that the part of Clause 3.0 of Schedule 6 to the DDO that deals with the creation of three or more lots requires the entire subdivision area to comply with the percentage site coverage requirements, rather than each individual lot in the proposed subdivision. It said so for four reasons:

First, the actual wording of the clause, when considered in the context of the surrounding wording in the paragraph, the references to the percentage site coverage requirements are most logically understood to apply to the site as a whole, where the accompanying permit application being required to show ‘the ultimate development of the site’ then links to the percentage site coverage requirements expressed as regards the ‘total area of the site’/ ‘total area of site’.

Second, the need for consistency with the operation of Clause 2.0. It would be an unusual outcome if a multi-dwelling development did not require a planning permit for buildings and works when the land was in one parent title because it met the percentage site coverage requirements but then, when the subdivision was applied for, some individual lots did not meet the percentage site coverage requirements, resulting in the subdivision being prohibited.

Third, also having regard to Clause 2.0, the reference in that clause to ‘total area of site covered by impervious surfaces (including buildings)’ includes any driveway, footpaths and garden created on common property when the land is subdivided. It was noted that the percentage calculation undertaken in Clause 2.0 takes these things into account because it is assessed on the entire parent title. When the land is subdivided it is divided into ‘lots’ and ‘common property’, noting that the Scheme provides that ‘common property’ is not a ‘lot’.

Fourth, and finally, having regard to the purposes of DDO6, which is the facilitation of limited infill residential development and ensuring that residential development and subdivision occurs in a more spacious style and at a lesser density than in preferred consolidation areas. This was because the parent title, when viewed as a whole, would still accord with the perceptions of spacious development consistent with the achievement of the percentage site coverage requirements for the site as a whole.

See also:

  • Guide to Planning Appeals > Building, Subdivision