Town Planning Barrister

The Victorian Court of Appeal has recently considered the object of “harm minimisation” in the context of the Victorian Liquor Control Reform Act 1998. The Court cited with approval the following passage from a Western Australian decision

“to ‘minimise’ harm or ill-health, not to prevent harm or ill-health absolutely. The word ‘minimise’ is consistent with the need to weigh and balance all the relevant considerations.”

The case Kordister v Director of Liquor Licensing & Anor [2012] VSCA 325 can be found here.

In the recent case of McDonald’s Australia Pty Ltd v Yarra Ranges SC [2012] VCAT 1539, the Tribunal has recently decided to direct the grant of a Planning Permit for a McDonald’s Restaurant in Tecoma. The application faced community objections which raised numerous grounds. One of grounds raised was that the restaurant could lead to anti-social behaviour; the Tribunal made the following comments on this issue:

1. We are not persuaded that a McDonald’s restaurant is likely to lead to increased social problems in Tecoma. No alcohol is served in their premises. No gaming, music or entertainment occurs. In the context of the high volume of business conducted in McDonald’s stores, some antisocial behaviour may occur, but should not be exaggerated. Such behaviours also occasionally occur in petrol stations, supermarkets and other public places that are also open for long periods.
2. We refer again to the scope of our discretion. In our view patron behaviour is part of the use of the land, which does not require planning permission. There are no policies within the Scheme or expert evidence before us that provides a basis to elevate these concerns to being determinative in this case. To do so would be an error.
3. Nevertheless we think that the design of the building and the car park should make the convenience restaurant a safe place. It would be unacceptable that the building’s design, lighting and landscaping creates public spaces that are unsafe.

Ultimately the Tribunal found that the design of the restaurant was acceptable. The Age newspaper reported on 24 October 2012 that Yarra Ranges SC had voted to not appeal the decision.

VCAT Planning and Environment List has confirmed its attitude towards applications for adjournments of hearing dates. If you practice in this jurisdiction you must be ready to run on the day your hearing has been set down see E & M Investments (Vic) Pty Ltd v Boroondara City Council (Red Dot) [2012] VCAT 1223

“A permit applicant should not wait until it receives notice of a hearing before seeking to amend plans or otherwise prepare witness material. As soon as an application for review is lodged, this work should commence, if not before then when the responsible authority’s reasons for refusal are known (in the present case, in early January 2012) and a decision is made to review that decision. Either an applicant will have faith in the plans it has submitted with the permit application or it will consider that some modification should be made to respond to the council’s grounds of refusal. In any event, planning for a hearing needs to commence well in advance of any hearing date being known once an application for review is lodged.”

In McDonald’s Australia Ltd  v Greater Bendigo SC [2012] VCAT 610, the McDonald’s corporation has been successful in obtaining a permit for a convenience restaurant in a Residential Zone. In its reasons the Tribunal acknowledged that such use is sometimes incompatible with a residential neighbourhood but resolved the issue in the following terms

1. Convenience restaurants can have a range of amenity impacts as set out in Clause 52.20. These were discussed in McDonalds Australia v Knox CC (2011) VCAT 142 as follows:

Convenience restaurants do have the potential to contribute to adverse off site amenity impacts as a consequence of the combination of traffic movements onto and out of the site, late night operation, lighting, the congregation and movement of people on the site, the generation of noise and litter. The applicant company does have an established reputation for adopting and implementing management practices aimed at minimising the adverse affects of these uses and there is no reason for me to conclude that similar approaches would not be applied here.

1. I am satisfied that the following amenity impacts are addressed in this proposal:
   • The built form is generally low scale and well setback from neighbouring properties;
   • The property to the north enjoys some 17m separation from the common boundary. A 3m wide landscaping strip and acoustic fence are proposed on the subject site which will limit amenity impacts to the north.
   • There are no overshadowing impacts;
   • The proposed boundary fencing (1.8m acoustic timber fence) is consistent with standard residential fences;
   • Direct overlooking is restricted by the proposed boundary fencing and associated boundary landscaping;
   • Lighting can be designed to avoid spill to neighbouring properties;
   • Patron management, while a key issue for these uses has been addressed in the conditions;
   • Odour from cooking is managed through other legislation; and
   • Litter is addressed in the conditions.

In the recent case of Davies v Moreland CC & Anor [2012] VCAT 532 the Tribunal considered an application for an enforcement order to prevent the installation of a Smart Meter on a home within a Heritage Overlay.

The Tribunal dismissed the application on two grounds. The installation of a smart meter was routine maintenance which did not require a planning permit. Further the installation of the Smart Metre did not trigger a permit because it would not change the appearance of a heritage place.

The case provides a good analysis of the concept of “works” under the Planninng and Environment Act 1987.

Lane ways are traditional in Melbourne and the inner city, they are commonly used today to access car parking, however their use need not be restricted to vehicle access.

In Mrkonjic v Hobsons Bay CC [2012] VCAT 441, the Tribunal has considered an application for a development which relies on pedestrian access from a right of way (lane way). The Tribunal resolves the issue in the following way:

[21] In terms of the fundamental issue of dwellings facing onto a RoW, there is nothing in the planning scheme which prohibits such an outcome. Indeed, as I have set out earlier, planning policy and provision objectives look to consolidate development within existing residential areas when acceptable design outcomes can be achieved. While there may well be an absence of developments that use a RoW as the main frontage in this particular locality, such development is now becoming more common within a range of urban locations. Just because a RoW may have had other historical purposes does not prevent adaptation to address emerging urban needs.