In recent issues we have discussed the extension of the VicSmart system, set out in Clauses 90-95 of the Victorian Planning Provisions (VPP). VicSmart provides a shorter planning permit process for simple and straightforward applications. Two recent VCAT decisions have dealt with the VicSmart provisions and will be of interest to regular permit applicants:
Changing to VicSmart from non-VicSmart?
Wittenbach v Cardinia SC  VCAT 793 was an appeal by an objector against Council’s decision to grant a permit to develop a shed and a pergola in the Green Wedge Zone. Between the Tribunal hearing on 20 March 2017 and the Tribunal making a decision, the planning scheme changed, including the introduction of additional development classes to the State VicSmart provisions. The permit applicant sought to have the appeal struck out on the basis that the changes to the planning scheme resulted in the matter qualifying as a VicSmart application.
The permit applicant notified the Tribunal of the change and noted that VicSmart applications are exempt from third party notice and appeal rights. The matter was put to a practice day hearing where the Tribunal considered:
- Whether the VicSmart provisions now apply to the permit application?
- Whether the proceeding should be dismissed because the objectors no longer have any right of review?
The Tribunal commented that the VicSmart provisions did not introduce new planning controls to the planning scheme, but rather changed the process requirements relating to the making of an application, decision guidelines and third party notice and review (appeal) rights. The Tribunal noted in this decision that
“…there is no justification for reading the provisions as applying retrospectively to any existing applications, which were made prior to their application. Such applications would not have been applications that were specifically made pursuant to the VicSmart provisions with the necessary information specified in the provisions accompanying the application.
…I consider that the VicSmart provisions provide an opportunity for a permit applicant to pursue the VicSmart fast track permit application process….if a permit applicant chooses to do so. …But unless a specific VicSmart application is made, I do not consider that those provisions automatically apply to any other permit application notwithstanding it may be eligible for a VicSmart application to be made and so considered…
In light of these findings, the Tribunal considered that the application in Wittenbach v Cardinia SC was not automatically a VicSmart application, it had not been applied for with the necessary information requirements for a VicSmart application (it was not eligible at the time) and was therefore not exempt from third party notice and appeal rights.
The Tribunal also referred to Section 28(2) of the Interpretation of Legislation Act 1984 which protects the objector’s appeal rights, where a subordinate instrument or a provision of a subordinate instrument (such as a planning scheme) is amended, the amendment shall not (unless expressly stated to the contrary) affect any right, privilege, obligation or liability accrued or incurred under that subordinate instrument. At the time that the appeal was lodged with the Tribunal, a right of review had accrued to the appellant and had been exercised.
The findings from the practice day hearing were that the objector appellant maintained a right to have the matter heard on appeal and that the application was not a VicSmart application.
Quick, poor, irrelevant and unreasonable decision making
In Portland Historic Building Restoration Committee Inc v Glenelg SC  VCAT 519 an appeal was made pursuant to Section 149a of the Planning and Environment Act 1987 (a general appeal for a declaration) against Council’s decision to grant a planning permit to demolish a bluestone wall included in a Heritage Overlay. On receipt of the planning permit through the VicSmart process, the wall was demolished. The appellant sought a declaration that the proposal to demolish the wall was not exempt from notice (advertising) and appeal under VicSmart provisions or the Heritage Overlay.
The appellant submitted that the way in which Council officers dealt with the permit application was inadequate having regard to the provisions of the planning scheme and the heritage significance of the wall.
Clause 91 of all Planning Schemes limits and specifies the matters which Councils can consider in VicSmart applications, and exempts other matters which non-VicSmart applications remain subject to.
In this case the Tribunal reached the conclusion that the Council was unreasonable when it decided to grant a permit for the demolition of the stone wall, being a decision so unreasonable that no reasonable responsible authority acting reasonably could ever have come to it.
In summary, the Tribunal found that:
- At Clause 92.04 of all Planning Schemes, to demolish or remove a fence is a class of VicSmart application unless the fence is identified in the schedule to the Heritage Overlay;
- Because the specific Heritage Overlay control did not identify the stone wall, it is exempt from third party notice and appeal rights;
- On consideration of legislative and dictionary definitions, a “wall” is considered a “fence” for the purpose of the exemption from third party notice and appeal rights under the Heritage Overlay;
- While VicSmart provisions are intended to speed up the planning process, the same standards of decision making are required as for non-VicSmart applications. The matters required to be considered under the relevant decision guidelines of the VicSmart provisions were not properly considered and irrelevant matters were considered, in this case:
- The safety concerns about the wall.
- The Council officer’s assessment of the heritage significance of the wall was misguided and failed to give proper weight to evidence and to the opinion of the Council’s heritage adviser (who had recommended the wall be retained, stabilised and conserved as there was there was no adequate engineering advice to support demolition of the wall)
- There was a manifest objective on the part of the owner to get rid of the wall for reasons that were not relevant to consider under a VicSmart assessment.
- Council had not properly considered whether it was possible to avoid or manage the adverse impact on the heritage significance of the wall; a relevant decision guideline in the VicSmart provisions; and
- To the extent that safety or cost matters were considered, they were irrelevant considerations. The Tribunal stated … the only factors upon which weight can be placed in the decision-making process for demolition or removal of a fence under the Heritage Overlay pursuant to Clause 92.04 are heritage considerations.
In summary the Tribunal found that the Council as responsible authority had failed to properly discharge its duties and that the Council’s decision to grant a permit to demolish the stone wall was a decision that was beyond its power.
The Tribunal also suggested that all Councils review their Heritage Overlays to ensure that important heritage items, which can be characterised as fences or outbuildings, are listed as not exempt from notice and appeal, otherwise they are able to be considered as VicSmart applications.
In this instance, the wall had already been demolished prior to the matter getting to VCAT. So the Tribunal’s finding were more a reprimand to Council than anything else.
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