VCAT Precedents

The following are a selection of significant VCAT decisions for projects that Millar | Merrigan have been involved in. Click on the VCAT name to download a PDF of each case.

(Download the most recent version of Adobe Acrobat)

Public Open Space

  • Fletcher v Maroondah CC [2006] VCAT 2205  17 Woodland Avenue & 21 Penhyrn Avenue, Croydon
    This case represents a significant determination of Justice Stuart Morris (then VCAT President) this decision is currently with the Supreme Court of Victoria (Court of Appeal).
  • Scott v Maroondah CC [2007] VCAT 1474  20 Barkly Street, Ringwood
    This is a significant case dealing with the exemption of two lot subdivisions from a public open space contribution and the interpretation of whether further subdivision was ‘prevented’ by particular wording of a 173 agreement.
    Unfortunately our client needed to quickly subdivide their land and decided not to contest the Supreme Court hearing (or the subsequent VCAT hearing that would have followed). Instead they applied for and received a second subdivision permit that contained a public open space requirement that they paid.
  • Thompson v Maroondah CC [2007] VCAT 2455  132 Dorset Road, Croydon
    The tribunal upheld the Councils decision to impose a 5% public open space contribution and provided some useful guidance on utilising 173 agreements to render a further subdivision ‘unlikely’.
  • Van Der Zweep v Maroondah CC [ 2007] VCAT 1806  11 Allendale Road and 32 Lindisfarne Avenue, Croydon
    VCAT determined that a public open space contribution should be limited to one lot only in this subdivision in the Maroondah City Council.

Water tanks as detention systems

  • Ricci v Maroondah CC [2006] VCAT 2051  19 Highton Street, Ringwood East
    This case addressed the appropriateness of rainwater tanks as a stormwater detention system. In overturning the City of Maroondah’s objection to the system that substituted rainwater tanks connected for flushing toilets and outdoor use for a conventional underground detention system, the tribunal accepted the modelling using the PURRS simulation model and the evidence of Professor Peter Coombes.
    ”In my view planning policies directed towards environmental sustainability, and the management of infrastructure, indicate that there should be a preference for rainwater tank ‘detention’ systems, because of their capacity to deliver additional environmental benefits. Indeed the usefulness of such systems for stormwater detention is secondary to their primary role in the more efficient useage of water.”
  • Siomos v Banyule CC [2007] VCAT 2145  57 Rosehill Road, Lower Plenty

Medium Density

  • TSA Architects v Boroondara CC [2007] VCAT 2334  11 Winfield Road, Balwyn North
  • Aaltonen v Yarra Ranges SC [2005] VCAT 1308  11 Peden Street, Chirnside Park
    The Tribunal set aside the decision of the Shire of Yarra Ranges for this 8 unit medium density development in Chirnside Park. In so doing comment was made on the Councils policies that recognise the need to provide more diverse forms of housing given the changing nature of household types and the trend to a reduction in the number of persons per household.
  • Harris v Yarra Ranges SC [2005] VCAT 1076  82 Hereford Road, Mount Evelyn
    In this case the Tribunal granted a permit for 3 new dwellings and a four lot subdivision in Mt Evelyn overturning the refusal of the Shire of Yarra Ranges. It was generally agreed that the proposal met applicable Rescode Standards. The Councils case was that the application should not be supported as it was outside of the preferred area of medium density development and set an undesirable precedent in a Foothills Residential Area. The tribunal agreed that the site was well located and that the decision maker needed to assess the application against all relevant planning scheme provisions. The Tribunal also agreed in this case in a reduction in the Public Open Space contribution from 5% to 2%.

Restrictive Covenants

  • Hawley v Yarra Ranges SC [2007] VCAT 268  10 Glendale Court, Kilsyth
    The Tribunal overturned the decision of the Shire of Yarra Ranges and ordered that a permit should issue allowing for the variation of a single dwelling covenant. In so doing the Tribunal determined that the application was correctly exempted from public notification and that the exemption for ‘removal of restritive covenant’ includes exemption from the lesser act of varying a restrictive covenant in respect of a development in existence for more that two years.
  • Hawley v Yarra Ranges SC [2007] VCAT 2318  10 Glendale Court, Kilsyth
    The Tribunal allowed the subdivision of the land and variation of the restrictive covenant in overturning the decision of the Shire of Yarra Ranges in this decision. The Tribunal provided a commentary on covenant variations and the assessment of perceived detriment.

VCAT Costs

  • Pelligra v Banyule CC [2005] VCAT 1207  182 Nell Street, Greensborough
    The tribunal issued costs against Banyule City Council in this case due to the insistence of the Council to stick to an “under the counter policy” that the tribunal had previously ruled against.

Pervious Pavement

  • Evertsz v Maroondah CC [2007] VCAT 547  13 Kalinda Road, Croydon
    This case involved the review of conditions placed on a permit for a specialist medical clinic in Croydon in Maroondah City Council.
    Millar Merrigan successfully argued against the conditions requiring a sealed car park and a restriction on the number of practitioners.
    The tribunal noted that the parking requirements in the planning scheme are often too onerous and that a practical solution is required. In this case the tribunal agreed that a reduction in car parking was warranted given the specialist nature of the clinic and the availability of public transport.
    The tribunal also agreed with our arguments that a sealed concrete or bitumen car park would be an overdesign and that a gravel car park as proposed provided benefits in reducing the quantity of stormwater runoff allowing infiltration into the garden which is a more environmentally friendly and sustainable solution.

Title Restructure – Green Wedge Zone

  • Johnson v Yarra Ranges SC [2007] VCAT 775  20 Connors Lane, Seville
    This case involved the re-subdivision or restructure of existing titles within the Shire of Yarra Ranges. The land is zoned Green Wedge (GWZ2).
    In determining that a permit should issue the tribunal discussed that of the total area of nearly 20 hectares approximately 6 hectares had been cleared and the balance contained native vegetation. In these circumstances the tribunal concluded that the land could not be regarded as an important agricultural resource and discussed the tension between land in a Green Wedge Zone which also seeks to protect environmental and landscape qualities.

Cases of interest

  • Bensen Development Pty Ltd v Monash CC [2005] VCAT 194  &
    Forsyth v Knox CC [2005] VCAT 195  1331-1335 Centre Road, Clayton & 3 Ash Grove, Bayswater
    Millar Merrigan successfully challenged the practices of Monash and Knox Councils in the charging of fees in these two cases that were heard concurrently. The case dealt with the issue of the power under the Local Government Act 1989 for Council to impose fees in respect of planning applications and also the jurisdiction of the tribunal under Section 149B of the Planning and Environment Act 1987.