VicSmart: Narrow Focus Maintained

In the first VicSmart application to be determined by VCAT, Johnson  v  Banyule  CC  [2015] VCAT 444,  the Tribunal has provided a timely reminder to Councils & permit applicants  that only the limited number of matters set out for each application type are relevant for consideration.

In summarising the above case the Tribunal noted:

This is the first VicSmart application determined by the Tribunal. The application was to construct a fence within 10 m of a front boundary and a permit was required under a Design and Development Overlay.

Clause 91 of the scheme provides that a responsible authority must only consider the decision guidelines for the relevant class of VicSmart application and is exempt from considering the policy framework (and other matters) in deciding a VicSmart application.

The responsible authority did not comply with clause 91 because it took into account the policy framework. Accordingly, the need to integrate policies and balance conflicting objectives under clause 10.04 does not apply. The Applicant relied on various grounds that also did not comply with clause 91. The Tribunal held that the relevant considerations in this proceeding were confined to the design objectives and decision guidelines under the schedule to the overlay.

The decision is marked as a red dot decision because it is a reminder that a responsible authority and an applicant for review must not take into account or rely on grounds that go beyond the matters for consideration for a VicSmart application in clause 91.

In this instance the Tribunal actually found in favour of Council and no permit was issued. But the principle associated with simpler and faster consideration of VicSmart applications is the real winner.

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