VCAT Precedents

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).

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.

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’.

VCAT determined that a public open space contribution should be limited to one lot only in this subdivision in the Maroondah City Council.

This land subdivision in the City of Casey utilised a drainage reserve to satisfy a public open space contribution.

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 usage of water.”

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.

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%.

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.

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.

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.

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.

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.

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.