Clause 1 Planning is currently involved in a very interesting and convoluted matter including a planning permit application, VCAT appeal and planning scheme amendment associated with land in the City of Frankston.
The matter concerns approximately 5 hectares of land that was acquired and developed by Telecom Australia in 1980 and used as a depot and store by Telecom Australia, and later Telstra, until 2014. Between 2014 and 2016, the land was used primarily as a car park associated with the nearby Peninsula Private Hospital. More recently, it has resumed use as a store for predominantly construction materials, equipment and vehicles.
In the recent preliminary VCAT hearing, Leadon Group Pty Ltd v Frankston CC (Red Dot) [2026] VCAT 439, the Tribunal was required to interpret a planning scheme provision within the Public Use Zone that states (our emphasis added):
Application requirements
An application for a permit by a person other than the relevant public land manager must be accompanied by the written consent of the public land manager, indicating that the public land manager consents generally or conditionally either:
- To the application for permit being made.
- To the application for permit being made and to the proposed use or development.
In the current circumstances Telstra had become a private/listed company (and therefore ceased to be a public land manager) and sold the land to a private owner in 1992.
Given there was no public land manager (for the past 34 years), the question before the Tribunal was essentially:
- Is the requirement to obtain the written consent of the public land manager a mandatory requirement?
- Can Council issue a permit if that written consent is not provided with the application?
- Should the Tribunal use its powers to disregard the lack of written consent, from the public land manager, on the basis that it is just and fair to do so?
In summary, the Tribunal found that yes, the requirement to obtain the written consent of the public land manager is a mandatory requirement and yes, Council cannot issue a planning permit unless that consent has been provided.
However, the Tribunal also found (based on the facts of this matter) that it was in the interests of justice and fair for the Tribunal to disregard the non-compliance and ultimately determined the matter in favour of the permit applicant. Finally, the Tribunal in its Red Dot decision suggested that the Minister should consider:
“amending the application requirement in public land zones so that the application requirement was not mandatory if the land was not public land when the application was lodged.”
Although the wheels of justice turn slowly, and can be expensive for permit applicants, this is an example of how issues tested at VCAT can help change the planning process for the better.
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