Poor Planning - VCAT in need of reform

MEDIA RELEASE: 18 November 2010

At its meeting on 16 November 2010, Council passed a resolution endorsing an advocacy agenda for VCAT reforms.

The City of Casey believes, based on past experience, there are opportunities for reform of current VCAT process and practices.

Acting Mayor, Cr Shar Balmes said that the City of Casey supports the existence of a review mechanism for all parties involved in administrative decisions, and believes this to be a valuable feature of the Victorian Planning System.

However, Council has resolved that reform, considering five general themes, is required to ensure that state and local government policies and strategic vision are more closely aligned.

Cr Balmes said that such reform would reduce the number of instances where applications previously rejected by a local council, but approved by VCAT, resulted in costly litigious action.

‘The City of Casey has numerous examples of situations where, in accordance to Casey planning strategies, developers have been denied permits or residential subdivisions for which permission has subsequently been granted by VCAT.

‘Prominent examples, such as housing development in the Brookland Greens Estate on the buffer zone of the Stevensons Road closed landfill and the residential subdivision of 260 Hallam Road, Hampton Park along-side the concrete batching plant and landfill, are just the tip of the ice berg.

‘There have been many cases where Council’s fears regarding environmental factors or land use being inconsistent with local amenity and planning policies, which were over-ruled by VCAT at the time, have been borne out – often in court’, Cr Balmes said.

The full resolution, passed at the Council meeting 16 November 2010, reads:

That Council’s public advocacy program for the November 2010 State Government election and beyond include the following matters for VCAT reform:

  1. Greater weight should be given to local planning policies.
  2. For matters of environmental significance, VCAT should apply the precautionary principle and seek its own expert evidence independent of parties to the appeal.
  3. Local amenity and character concerns should be given greater weight.
  4. Greater support for achieving compliance with enforcement proceedings is needed.
  5. Greater recognition needs to be given to the financial implications of decisions for Council and the community.

Examples of VCAT decisions disputed by the City of Casey:

945 South Gippsland Highway and 4 Huon Park Road, Cranbourne North

(VCAT Ref: P419/08)

VCAT directed the issue of a permit for a service station, ambulance depot, car wash and convenience restaurant.

Council had issued a refusal, in part, on the grounds of non-compliance with Council’s local ‘Non Residential Uses in Residential Zones Policy’.

In approving the proposal, VCAT dismissed Council’s local policy grounds which were concerned with the ad hoc establishment of activity centres inconsistent with local strategic plans.

23 Hilden Drive, Harkaway

(VCAT Ref: P217/09)

VCAT directed the issue of a permit for the use of the land for a contractor’s depot.

Council had issued a refusal, in part, on the grounds of non- compliance with Council’s ‘Non Agricultural Uses in Green Wedge Areas Policy’.

VCAT determined that the proposed use was not an urban or industrial use and, despite Council’s local policy, was acceptable on a rural lifestyle property.

Brookland Greens Estate, Cranbourne and the Stevensons Road Closed Landfill

(VCAT Ref: P210/02)

Council refused the application for a residential subdivision adjacent to a landfill on the grounds of inadequate buffers from the landfill use with adverse amenity potential.

VCAT accepted the applicant’s expert evidence and issued an order that reduced the buffer distance of the subdivision from the landfill.

This VCAT decision eventually resulted in an emergency evacuation and has ultimately resulted in significant financial and other costs being incurred by the Council and community.

In effect, the decision made by a State Government body has burdened Council with tens of millions in additional costs (through reducing of the buffer) when it had resolved in its own right not to issue a permit.

260 Hallam Road, Hampton Park

(VCAT Ref: P406/08)

Council refused the application for a residential subdivision, in part on the grounds of inadequate buffers from a concrete batching plant and regional landfill use with potential adverse amenity potential.

VCAT was presented with various expert opinions on the likely nuisances, and ultimately issued a permit in favour of the permit applicant and their expert evidence.

Council has appealed this decision to the Supreme Court, in part on the grounds that the Tribunal did not sufficiently address environmental protection standards in its decision.

1-9 Lyall Road, Berwick

(VCAT Ref: P801/08)

Council issued a refusal for a mixed use and retail development. VCAT determined that as the proposal was within a location identified as a Major Activity Centre under metropolitan planning policies, it was worthy of support over and above local amenity and character concerns.

240-246 Clyde Road, Berwick

(VCAT Ref: P436/08)

Council refused the application for two convenience restaurants, a car wash and removal of native vegetation, in part on the grounds of amenity impacts.

VCAT issued a permit on the basis that the residential site was considered appropriate for non-residential purposes despite the significant amenity concerns of Council.

2360 South Gippsland Highway, Five Ways

(VCAT Ref: P1729/04)

Following an application by Council against the landowner, VCAT issued an order to remove illegally dumped and stored tyres. The first enforcement order issued in 1999 was never complied with, necessitating a second order having to be pursued by Council in 2004.

The owner was granted another 6 months to comply with the subsequent order and, ultimately, never complied with the VCAT directive despite considerable expense by Council in securing the enforcement orders.

248 Clyde Road, Berwick

(VCAT Ref: P50546/2001)

Following an unsuccessful appeal to the Supreme Court in 2005 by the landowner against an Enforcement Order issued by VCAT in March 2003 (after it was lodged in July 2001), it took a further five years for the outstanding works to be completed.

The works were only completed due to the perseverance of Council officers, took a significant time and resulted in legal cost to Council.

Hunt Club Estate, Narre-Warren Cranbourne Road, Cranbourne

(VCAT Ref: P1159/2006)

This VCAT decision related to the distribution of Developer Contributions funds and has the potential to undermine the Developer Contribution Plan (DCP) system.

The Tribunal’s view was that a developer that provides an early DCP item before the item is fully funded by the plan is entitled to the project cost of that item whether or not that amount has been collected by the DCP.

VCAT directed that funds collected under the DCP for all the specified items in the plan be redistributed toward particular items required by the one developer leaving little or no funds for other DCP items required under the Plan.

Council submitted that Council will ultimately bear the financial burden of any shortfall in infrastructure when development is complete. On this basis, Council does not believe that VCAT should be able to decide on the collecting and expending of DCP funds. Council was then forced to successfully take the matter to the Supreme Court.

This took up considerable officer time taking resources away from other important planning matters. The Supreme Court ruled in favour of Council.