Tribunal not a “rubber stamp” to consent orders.

In Giardina v South Gippsland SC [2011] VCAT 924 (18 May 2011) the Tribunal has restated the principle that it will not simply grant a planning permit even when parties seek one by consent. The Tribunal declined to grant a planning permit “on the papers” and stated as follows

The Tribunal has consistently held the view that it cannot be a mere “rubber stamp” to consent orders requested by parties in a proceeding. Whilst the Tribunal is constituted to hear and determine appeals between parties, its determinations have a wide effect upon the public. It is required to make its determinations based upon considerations and public interest and public policy. This distinguishes the Tribunal from the court exercising civil jurisdiction. Unlike a court, the Tribunal has, and must exercise, an independent responsibility in judgement as to the appropriateness to any determination it makes. The Tribunal always has an obligation to be satisfied that any permit it grants, even by way of consent, is lawful and produces acceptable outcomes within the meaning of clause 65 of the planning scheme.[34]

The matter has been listed for a hearing.

When does a power pole require a planning permit?

In the recent case of Sulomar v Wyndham City Council & Anor P3548/2010 (18 May 2011) VCAT (unreported) the Tribunal has considered the question of whether a new power pole installed in a Public Conservation and Resource Zone required “use” permission.

In its decision the Tribunal applied the principles set out in Central Highland Water v Ballarat City Council (No 1) [2006] VCAT 1297 at paragraphs [9] to [11].

In the present case the Tribunal distilled the following principles

  • in going through the planning characterisation exercise, the decision maker is not simply looking at “use” per se, but rather is considering the use of land for a purpose
  • not all activities taking place on any one piece of land will necessarily constitute “the use of land for a purpose”
  • in considering whether an one activity is so significant so as to constitute the use of the land for a separate/additional purpose, the benchmark for the Tribunal to apply is the ” real and substantial” purpose test,and
  • each of these disputes  tend to ultimately turn on their facts.” [16]

The Tribunal posed the following question for itself “does the the installation of the New Pole constitute the use of the subject land for a separate and distinct additional purpose, or was the installation of the New Pole merely an ancillary activity” [21]

The Tribunal found that in the circumstances of this case the New Pole was an ancillary activity to the “use” of public open space, and did not require separate use permission.  The Tribunal  made the following relevant findings – the public reserve was large, the New Pole was modest in scale and appearance and that the utility pole was not a foreign feature in a public open space. The Tribunal reasons that these finding support the conclusion that the New Pole is an ancillary use, accordingly it does not require separate “use” permission.

In its conclusions the Tribunal notes that this decision should not be seen to endorse an “open slather” approach for power infrastructure  in public open space areas. Each case will turn on its own facts.

Liquor Licensing and harm minimisation

In Director of Liquor Licensing v Kordister Pty Ltd & Anor [2011] VSC 207, the Supreme Court has considered the principals for liquor licence cancellation. The case was an appeal by the Director against a decision of VCAT refusing to amend the trading hours of a “take away liquor licence” held by premises located in the CBD. In considering the objects of the relevant statute the Court observed that;

Contributing to minimising harm arising from the misuse and abuse of alcohol is a broad regulatory object which was included in the Liquor Control Reform Act as it was enacted in 1998 and has been strengthened by subsequent amendments since. When making liquor licensing decisions, harm minimisation is the primary consideration, although not the only consideration. The application of that object requires a range of social, economic and cultural factors to be taken into account, which must then be weighed in the balance with the positive benefits which are brought to the community by the liquor industry, as reflected in the other objects.“[270]

The Court then assessed the manner in which VCAT had dealt with the “harm minimisation” evidence;

In this case, what the tribunal was required to do, and did not do, was to make an evaluative judgment about the contribution which ending late-night trading at the bottle shop would make to minimising harm arising from the misuse and abuse of alcohol. That required the tribunal to consider the degree and nature of the harm which was occurring or likely, from whatever cause, and how, if at all, ending that trading would contribute to minimising that harm, even if the bottle shop was not responsible for it.“[276]

The matter has been remitted to VCAT for further hearing in accordance with the Court’s ruling.

Tribunal ‘s latest on borrowed light.

In South Y v Stonnington City Council  (VCAT) P1011 of 2010 (unreported) 5 May 2011, the Tribunal has endorsed the approach taken in Broadland Capital Pty Ltd v Port Phillip CC & Ors [2010] VCAT 1007 on determining when “borrowed light” is acceptable in a multi-unit development.

In South Y the Tribunal adopted the following passage from Broadland Capital “Factors such as the orientation of units, the depth of the room across which light would be borrowed, what else might intervene between the window and internal bedroom (such as a bathroom wall), the number of units relying on borrowed light, and the overall amenity of other habitable spaces might all be relevant to a decision on this point [42].”

In South Y the Tribunal issued a permit for a limited number of units with borrowed light, the Tribunal required a sliding glazed panel in the wall that separated the bedroom from the living areas. The distance from the light source was 4-6 metres.

Major Cases List may return

In an informative address to a UDIA Monthly Lunch on Friday 13 May 2011 Justice Ross, President of VCAT,  tackled the issue of the Major Cases List for planning matters which exceed $5 million in value. As practitioners are aware the Major Cases is not currently operational. His Honour discussed the potential return of the List and two possible funding models.

First, a grant from government to specifically fund the list. The second option is a higher filing fee for matters that wist to enter the list. His Honour explained that a similar model is used by the Supreme Court for cases that wish to enter the Commercial Cases List.

His Honour also confirmed that although Planning and Environment is an important part of VCAT, the reality remains that it is only a relatively small part of the Tribunal’s work. Unfortunately for the industry, although Planning in VCAT gets headlines, the Tribunal faces competing challenges for its limited resources.

Cancellation of Licence

In Hodgkins v Planet Platinum [2010] VCAT 725 the Victorian Civil and Administrative Tribunal determined that it would cancel the liquor licence held by Show Girls Bar 20 (“Bar 20”) which trades in the nightclub precinct on King Street, Melbourne.

The case is interesting for a number of reasons. First it summarizes the law governing liquor licensing under the Liquor Control Reform Act 1998. Secondly, it addresses the particular controls that apply to venues such as Bar 20 pursuant to the Prostitution Control Act 1994.

It seems that each time a violent incident involving alcohol occurs in the CBD there is a media clamor for more legislative control. Hodgkins suggests that a strong legislative framework already exists. The real issue seems to be the resourcing that is given to enforcing the legislation that is already in place.

Ultimately this case turns on findings by the Tribunal that the continuing operation of Bar 20 is likely to have a negative impact of the amenity of the area. The Tribunal notes that it’s determination must be in the public interest. It will be interesting to see whether this case is the first in a series of cancellations for “trouble spots” or whether it will be a one off.

When to demolish?

In The University of Melbourne v Minister for the Planning [2011] VCAT 469 the Victorian Civil and Administrative Tribunal (VCAT) considered an application to demolish an existing heritage building and to permit the construction of a scientific research institute.

The case was decided early in late March 2011 and resulted in immediate media interest and criticism of the planning process.

It is interesting to consider cases such as this away from the media glare and investigate the issues at the heart of the Tribunal’s decision.

This case is a prime example of the types of matters the Tribunal must weigh up when determining whether to grant a permit to a large public project.

The University commenced this application because it wants to construct a scientific research institute that will conduct research into infectious disease. The benefit that such an institute will bring to the wider community must be weighed against the detriment caused to the community by the demolition of a heritage building.

In this case the Tribunal determined that the community would suffer greater detriment if the scientific institute were not constructed.

What some commentators appeared to miss at the time that this issue was discussed in the media is that the Tribunal did give weight to the heritage value of Ampol House. However, the Tribunal determined that its heritage value was not sufficient to warrant retention of the building.

This case also confirmed the concept that town planning is not about achieving ideal outcomes. Land particularly close to the CBD is a scarce resource. As a result town planning is about achieving acceptable outcomes that will generate the greatest benefit to the community as a whole. Identifying that benefit and how to achieve it is ultimately what keeps practitioners in the jurisdiction occupied.