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Significant planning decisions
These summaries are of past cases you may find useful about planning. They are of general interest and have not been provided with a ‘red dot’. They show how the law was applied.
Interpretation of section 2 condition for Store in General Residential Zone
Droffelaar v Mildura RCC [2025] VCAT 562
In Doffelaar v Mildura RCC [2025] VCAT 562, the Tribunal considered the meaning of the following section 2 condition for use of a store in the General Residential Zone (‘GRZ’):
Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.
The key question was whether permission could be granted to use land in the General Residential Zone if that land was vacant. In particular, whether the reference to ‘dwelling’ in the section 2 condition included a ‘proposed’ dwelling. The applicant in the proceeding showed a proposed dwelling on application plans and said a permit condition would be accepted that required the use to start only after construction and occupation of the dwelling.
The Tribunal held the proper interpretation of the section 2 condition was that a dwelling must exist and be occupied before the use for a store could be permitted. Use for a store was therefore prohibited because the section 2 condition was not met. The Tribunal struck out the proceeding.
Remittal
In Lang v Merri-bek CC [2025] VCAT 205, the Tribunal set aside a residential noise improvement notice issued under the Environment Protection Act 2017 (Vic) and remitted the matter for reconsideration by the Merri-bek City Council as decision-maker. The Tribunal made this order under section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) following proposed consent orders that were lodged by the parties. The proposed consent orders included directions and a recommendation that the parties sought the Tribunal to include in the order. The Tribunal’s order to remit did not impose the proposed directions and recommendation because the Tribunal determined that the proposed first direction was, in effect, fettering the council’s discretion in relation to a future decision that it would need to make regarding the noise issue. Further, in the circumstances of this matter, the Tribunal considered that it was sufficient to record the proposed consent orders, received in open forum, in the Tribunals reasons.
The Tribunal stated:
‘30. Our key concern in relation to the ability of the Tribunal to make the orders sought is the request that the Tribunal direct the council to make a particular decision in the future.
31.In asking the Tribunal to remit the proceedings with a direction that council must make a particular decision in accordance with the consent order, in effect the parties are asking the Tribunal to fetter the discretion of the council, requiring the council to issue a new notice on the stated terms. Under the first direction, the council is not left with any discretion and cannot choose not to issue the notice, or not to issue the notice on those terms, if it considered that was the appropriate course of action in the circumstances at that time.
…
33. Notwithstanding the silence of the VCAT Act as to the ambit of s 51(2)(d) of the VCAT Act, we regard it to be an important consideration that any decision accords with principles of administrative law, including that the Tribunal should not fetter the discretion of another statutory decision-maker in a future decision that is yet to be made. As the first proposed direction would do that, we are not prepared to impose that direction.’
Can responsible authorities require fees for plan checking?
In AV Jennings Properties Ltd v Whittlesea CC [2024] VCAT 836 the Tribunal considered an application under section 39(1) of the Subdivision Act 1988 (Vic) (‘Act’).
The application sought review of a decision by the Whittlesea City Council (‘Council’) to charge fees for checking landscape plans and for supervision of landscape works under planning permits issued for various estates developed by the AV Jennings group of companies. Council contended that it was able to charge these fees pursuant to sections 15 and 17 of the Act and regulations 9 and 11 of the Subdivision (Fees) Regulations 2016 (Vic) (‘Regulations’).
The applicant agreed that Council was able to charge fees for the checking of engineering plans and the supervision of certain works under the Act and the Regulations, however the applicant disagreed that Council could charge fees for checking landscape plans or for the supervision of landscape works under the relevant provisions.
In its determination, the Tribunal found that landscape plans are not engineering plans –
‘ …because these plans have been prepared for the purpose of meeting the landscape plan requirement in the relevant planning permit and contain the element of a landscape plan. Whilst these plans might also include earthworks (for example, grading of land) and the construction of structures (for instance, paving), this will not result in a ‘landscape plan’ becoming an ‘engineering plan’ for the purposes of section 15 of the Act. This is because a plan that includes things that may constitute ‘works’ as defined in section 3 of the Act will not become an ‘engineering plan’ if it was not prepared for that purpose.
As the landscape plans were not ‘engineering plans’, Council could not charge fees for the supervision of the landscape works under regulation 11.
This decision considers the principles of statutory interpretation in deriving the meaning of the terms ‘engineering plan’ and ‘landscape plan’ for the purposes of the Act and Regulations.
Practical implications of third party exemptions in an integrated omnibus permit application at VCAT
This bulletin brings attention to the VCAT decision Dance v Colac Otway SC [2024] VCAT 443.
This proposal for tourist accommodation in Johanna required various planning permissions under four planning controls. Two of these controls were exempt from third party objection and review rights and the other two controls were not exempt.
VCAT’s decision examines how to deal with the planning permissions, both exempt and not exempt, that have intertwined and integrated considerations. The decision also considers the relevance of the Bushfire planning policy in the circumstance where the Bushfire Management Overlay is exempt from review rights but planning permission is required for the land uses and development under the Rural Conservation Zone.
VCAT’s decision explores the possible processes required to reconcile an amended proposal before the Tribunal with the various permissions being sought and the decisions made/to be made on the various planning permissions by the Responsible Authority and the Tribunal.
VCAT’s decision facilitates a process to enable one omnibus permit to issue. This is achieved by issuing an interim order to allow the permit applicant to seek necessary amendments and for the Responsible Authority to consider these under the exempt controls. If these permissions are granted without raising new issues, the Tribunal will issue the final permit under the controls within its’ jurisdiction, resulting in a single, integrated permit. This approach achieves the principles of integrated decision-making in Victoria's planning system, despite procedural complexities and jurisdictional constraints.