Tribunal considers its jurisdiction to review 173 Agreement

In the recent case of Calderara v Banyule CC [2015] VCAT 274, the Tribunal considered whether it had jurisdiction to hear an application concerning a section 173 Agreement brought under section 149 of the Planning and Environment Act.

The case provides an interesting discussion of the principles surrounding the Tribunal’s power to review cases involving a Responsible Authority with holding its secondary consent under a permit or a section 173 Agreement. The Tribunal held effectively that for the purposes of its jurisdiction Council failing to “consent” or failing to reach “agreement” both give the Tribunal jurisdiction.

Another roof top. A different result.

I recently posted on a decision that allowed an amendment to a permit to contruct an apartment on what had previously been put forward to VCAT as a roof top terrace.

In the recent case of Tan v Melbourne CC [2015] VCAT 142, we see the other side of the story. As all practitioners know there is no such thing as a straight forward case in planning. In Tan the Tribunal declined to grant a permit for the contruction of a roof top terrace on a carport in East Melbourne. The Tribunal said;

26. I find the terrace’s rear screen does not reasonably limit the impact on the amenity of Ms Tan’s property. I find the design of Ms Tan’s property relies on its northern aspect to such an extent that the imposition caused by this screen is unreasonable. Ms Tan’s dwelling and courtyard relies on its northern aspect to provide its amenity with regard to the sense of openness from its living spaces and courtyard. Having inspected her property, I find this amenity value balances on a knife’s edge. The existing walls and fences impede and compress this sense of openness so that it is finely balanced with the dwelling’s requirements. 

27. In this context, I find the 1.7 metre screens would upset this balance to an unreasonable degree. I make this finding based on the proposed height and width of the entire structure (being the existing car port wall, the additional structure required for the terrace’s floor and the screens above this floor) in combination with its proximity to Ms Tan’s property. (my emphasis)

The decision confirms the principle that every planning case is about its individual facts.

Rooftop terrace replaced with?…an apartment.

In the recent decision of Union Street Apartments Pty Ltd v Stonnington CC [2015]VCAT 96, the Tribunal considered an application to amend a planning permit. The Tribunal had previously granted a permit for a 3 level apartment development with a rooftop terrace on the fourth level. The Applicant returned to the Tribunal pursuant to section 87A of the Planning and Environment Act seeking to build one large apartment on what had previously been approved as a rooftop terrace.

Applications of this nature are sometimes hotly contested. In the present case the Tribunal granted the application as it did not consider the proposal a transformation, but did describe it as “sailing close to the wind”. The decision is another that practitioners can add to their list of successful 87A applications.

VCAT confirms its role is not to find a more suitable site.

In the recent case of Country Fire Authority v Hepburn SC [2014] VCAT 16 the Tribunal has considered a question that arises from time to time. Objectors propose that another site in their local community is more appropriate for the proposed development. In the present case objectors submitted to the Tribunal that other more appropriates existed in Hepburn for the construction of a new fire station. The Tribunal made the following comments in its reasons for decision to grant a permit;

Are there better locations for a new fire station in Hepburn?

  1. Mr Holmgren submitted that there are other more suitable locations for the proposed fire station in Hepburn capable of meeting the CFA’s servicing requirements. Whether or not that is so, my task is to assess the acceptability of this proposal at this particular site. As the Tribunal aptly commented in the case of The University of Melbourne v Minister for Planning:

[14] The Tribunal’s task is not to identify alternative sites or more appropriate sites. It must assess the particular permit application, which has been made for this particular site. We must decide if the proposal will produce acceptable outcomes in terms of the decision guidelines set out in clause 65 of the planning scheme.

  1. It is therefore unnecessary to say anything further about this submission.

Planning and the Victorian Charter of Human Rights

In the recent case of McClelland v Golden Plains SC [2013] VCAT 749 the Tribunal has again considered the Victorian Charter of Human Rights and its interaction with Planning Schemes. The case concerned a permit for telecommunications infrastructure.

The Tribunal notes that with respect to privacy – the Charter is concerned with an arbitrary or an unlawful interference with privacy. The Tribunal made the following comments:

Although it is not necessary to finally decide the issue more broadly than as stated in these reasons, it is perhaps worth commenting that, given:

  • the way in which the right to privacy is qualified in s 13 of the Charter (i.e. interference with the right may not be unlawful or arbitrary);
  • the reasonable limits on the right to privacy that might be justified in a planning context by reference to s 7(2) of the Charter; and
  • the structure of the planning regulatory framework and planning schemes in Victoria–

– it would be a rare and exceptional case where a planning scheme provision was not Charter compatible, or that a planning discretion properly exercised within the limitations of the planning regulatory framework would be viewed as anything other than a lawful, reasonable, proportionate and justifiable limitation on a person’s right to privacy. Each case will however turn on its own facts and circumstances.

Latest on harm minimisation in liquor licensing

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.

Resident’s concerns and scope of discretion

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.

Can I see the notes?…..issues raised by enforcement proceedings.

In the recent case of Wilson v Harrison [2012] VSC 404, the Supreme Court of Victoria has considered an application by a Defendant to inspect notes taken by a “Prosecutor”, of a conversation with a potential witness. The proceeding involves an allegation that the Defendants failed to obtain building permits.

The case raises interesting questions with respect to the duties owed by prosecutors when acting on behalf of local councils. The case concerns matters commonly confronted by local council enforcement officers, and their legal advisers, when obtaining witness statements from members of the community. The Court did not need to decide the ultimate question of whether notes taken by prosectors are privileged. However, we are all on notice that this issue may arise when prosecuting and defending these matters. I recommend reading the judgement.

VCAT Adjournments……be ready to proceed.

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.”

Convenience Restaurant permitted in Residential Zone

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.