Significant Planning Decisions

Joinder and Grounds of Review

In Trickey v Mount Alexander SC [2024] VCAT 863 , the Tribunal considered an application under section 82 of the Planning and Environment Act 1987 (Vic).

The applicant sought the Tribunal’s review of the decision by the Mount Alexander Shire Council to issue a notice of decision to grant a permit for the use and development of the subject land as a place of assembly (place of worship) and removal of native vegetation. The subject land is located in the Low Density Residential Zone and a small part in the north-eastern corner of the site is subject to the Bushfire Management Overlay, with the remainder of the land included in a bushfire prone area.

The applicant sought to join additional persons as joint applicants to the review and the grounds of review to include reference to bushfire risk, flooding risk and potential impact on wildlife as a consequence of light spill and increased vehicle movements from the proposal.

The Tribunal declined to allow the joinder sought on the basis that the Tribunal was not persuaded in the circumstances that sufficient justification had been provided for the joinder stating –

‘…I am not prepared to grant leave for any of those twelve persons to become joint applicants for review. This is because each of those persons had the opportunity to lodge their own application for review, or a joint application for review, or seek to be involved in the current application for review, as a consequence of having been objectors to the Council. They did not take up any of these opportunities. 

The Tribunal also declined to allow the amendments sought to the grounds of review on the basis that these matters are not relevant to the decision that is before the Tribunal.

This decision contains discussion about the principles to apply when determining relevance of a particular issue and in doing so refers to Myers v Southern Grampians Shire Council [2023] VSC 658, Booth v Strathbogie SC [2023] VCAT 782, Clifftop at Hepburn Pty Ltd v Hepburn SC [2023] VCAT 201 and Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191. It also discusses clauses 13.02-1S and 71 of the Mount Alexander Planning Scheme.

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.