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Environment and resources decisions
These summaries are of past cases you may find useful from the Environment and Resources list. They are of general interest and have not been provided with a ‘red dot’. They show how the law was applied.
Potentially contaminated land & Victoria Unearthed
Cleeve v Yarra CC [2025] VCAT 434
In Cleeve v Yarra CC, the Tribunal determined that five conditions of a planning permit should be deleted as a consequence of a proceeding lodged under section 80 of the Planning and Environment Act 1997 (Vic).
All of the relevant conditions addressed potential contamination and were challenged on the basis that they were invalidly imposed having regard to the permissions the subject of the permit and, alternatively, were unreasonable as a matter of planning discretion. Further, some of the conditions were challenged because, having regard to their drafting, it was contended that they went beyond the proper scope of the document the subject of those conditions, being a Preliminary Risk Screen Assessment.
This case addressed:
- The role of Planning Practice Note 30 ‘Potentially Contaminated Land’, July 2021, and the Victoria Unearthed website that is referenced in that document, in planning decision-making;
- Clause 13.04-1S ‘Contaminated and potentially contaminated land’ of the Yarra Planning Scheme;
- Whether the Environmental Audit Overlay ‘covers the field’ with respect to potential contamination;
- Whether potential contamination was a relevant consideration for the purposes of the permissions sought under the Neighbourhood Residential Zone – Schedule 1 and the Heritage Overlay – Schedule 334; and
- whether, in the event that potential contamination was not a relevant consideration under the permissions sought, it could nonetheless be addressed in conditions imposed in the permit.
This case compared the Tribunal’s preferred approach to decision-making of identifying the permissions required that then drive what are the relevant considerations in decision-making through an analysis of the purpose and decision guidelines for those permissions rather than allowing features of a site to direct assessment of the permit application.
Remittal
In Lang v Merri-bek CC IN [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.’
Barro Group Pty Ltd v Environment Protection Authority [2024] VCAT 888
In this decision the dates for complying with the requirements in the Environmental Action Notice had passed and could not be stayed. The Environment Protection Authority reconsidered its decision in accordance with section 51A of the Victorian Civil and Administrative Act 1998 (Vic) and varied it to change the dates.
Anderson v PWM (Lyndhurst) Pty Ltd [2024] VSC 417
This decision from the Supreme Court of Victoria considers several matters arising under the Environment Protection Act 2017 (Vic) including:
- Standing for landowner to bring action for breach of General Environmental Duty (GED).
- What constitutes GED, including consideration of breach of GED.
- Examination of what is 'amenity' in this context.
Cummaudo Asset Pty Ltd v Minister for Water
This decision considered an application for review under Water Act 1989 (Vic) and considers policies, guidelines and tools that may be relevant to determine if a dam is or is likely to be hazardous.
Determination of a waterway under the planning scheme
This bulletin brings attention to the VCAT decision Development Victoria v Knox CC [2023] VCAT 1094 (22 September 2023). The decision provides a summary of the legislative framework for the determination of a ‘waterway’ under a planning scheme.
This matter involved three separate applications brought under the Planning and Environment Act 1987 (Vic) (‘PE Act’) for review of decisions made under the Knox Planning Scheme (‘Scheme’) in respect of a proposal to develop the site for residential purposes and construct new wetlands in the location of an existing waterbody.
It was considered necessary to determine if the waterbody is a ‘waterway’ under the Water Act 1989 (Vic) (‘Water Act’) because the application of policy dealing with waterways is different if the waterbody is a ‘waterway’ under the Scheme compared with the application of policy if the waterbody is not a ‘waterway’.
VCAT’s decision found that, if a waterbody that is a ‘waterway’ under the Water Act, it is also a ‘waterway’ under the Scheme because:
- Clause 73 of the Scheme provides that a term used in the Scheme has its ordinary meaning unless that term is defined in the Scheme or in the PE Act or the Interpretation of Legislation Act 1984 (Vic) (‘IOLA’), in which case the term has the meaning given to it in those Acts.
- The PE Act does not include a definition of ‘waterway’, but section 38 of the IOLA provides that, in all Acts and subordinate instruments, unless the contrary opinion appears, ‘waterway’ means a waterway as defined in section 3(1) of the Water Act.
- The Scheme does not indicate that it is not intended that ‘waterway’ have the meaning given under the Water Act, therefore there is no ‘contrary opinion’.
VCAT’s decision also considered the application of the Waterway Identification Guidelines 2022, published by Department of Environment Land Water and Planning as a document under section 60(1A)(g) of the PE Act, specifically:
- the guidance on the interpretation of each paragraph of the definition of ‘waterway’ in the Water Act; and
- the decision pathway and flow chart that can be used to assess whether a waterway exists at a site.
Wyndham CC v Environment Protection Authority (Red Dot) [2022] VCAT 1061 (13 September 2022)
Interpretation of the new Environment Protection Act 2017, specifically whether the EPA has the power to revoke a notice to investigate if an application to review the notice to investigate has been lodged. Also, whether an application to review an amended notice to investigate and an application to review a revocation of the amended notice to investigate should be dismissed if the amended notice has been revoked.
Parklea Developments Pty Ltd v Strathbogie SC [2022] VCAT 938 (16 August 2022)
Consideration of the importance of the operation of the planning policy framework when assessing environmental impacts. The decision outlines the relevant environmental policy considerations, including the requirement to consider both the onsite impacts and the site surround impacts. The decision specifically considers the “core riparian zone”.