I See Red at Creswick: Concurrent
session on Red Hot Panels &
VCAT decisions/current issues
Presentation by Philip Martin
(VCAT) - Overview
• Key VCAT decision areas of on-going
importance for regional Victoria
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Gaming
Bushfires
Liquor licensing
Windfarms & chicken farming
Development in water catchments
• Key organisational developments
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Major cases list
New fee regime
Waiting time for hearings
Consolidation of Lists
Liaison with peak user groups
Updated Practice Notes and Legislative reform
I SEE RED ABOUT GAMING
• Recent ending of duopoly for electronic gaming
machines (EGMs) in Victoria - commercial auction of
EGMs
• For any one venue, need both gaming and planning
approval
• P & E List at VCAT now exclusively deals with reviews of
both forms of approval
• Most common type of appeal – against refusal of
planning approval (single barrel)
• Some ‘double barrel’ appeals involving both gaming and
planning applications
• Gaming proposals in rural towns can be contentious
GAMING CASES
• Mt Alexander SC v VCGLR & Ors [2013] VCAT 101
• DP Dwyer
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Proposed 65 EGM facility in Castlemaine (only 30 EGMs then)
Strong opposition from Council & elements of the community
Only gaming appeal (Commission supported proposal)
Strongly contested hearing – 10 days & 80 page decision
Tripling of EGMs by the one proposal seen as a major concern
Tribunal held issues finely balanced but refused proposal – proposal
failed to meet ‘no net detriment’ test
• ‘Community apprehension’ a relevant factor
• Role of Geotech economic model queried
• Gaming decision maker can facilitate community contribution
GAMING CASES
• Melkat Pty Ltd v Campaspe SC [2012] VCAT
657
• DP Gibson
• Application for Declaration that hotel in Echuca not within
a “strip shopping centre” for gaming purposes.
• Tribunal rejected argument that “several different strip
shopping centres in Echuca for purposes of Clause
52.28” ie need a holistic approach.
GAMING CASES
• Beaumont Investments v
Warrnambool CC [2013] VCAT 366
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DP Dwyer
Planning approval sought for 19 EGMs in existing tavern
Land zoned Industrial 3
Opposed by Council, but on review approved by VCAT
No evidence led by Council about alleged social impacts
of proposal
• No net increase in EGMs in Warrnambool
• No local policy in scheme re ‘gaming’
• Limited residential properties nearby
I SEE RED ABOUT LIQUOR
• Hunt Club Commercial v Casey CC
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[2013] VCAT 725
DP Dwyer
Council seeking to amend Development Plan to restrict
sale of packaged liquor
Legal issue arising – scope of relevant considerations
with ‘liquor licensing’ planning applications under Clause
52.27 of Planning Scheme?
Held relevant ‘locational’ considerations could include
‘social effects’ which go beyond an ‘amenity impact on
the surrounding community’
However ‘global’ concerns about social impacts of
alcohol will rarely (if ever) be a relevant consideration
I SEE RED ABOUT BUSHFIRES
• Operation of Wildfire Management Overlay
• Black Saturday in February 2009 – 173
deaths
• Bushfire Royal Commission Report
• Introduction of more rigorous Bushfire
Management Overlay – Nov. 2011
• Cooler summers then more heat/fires in
early 2013
MAJOR BUSHFIRE DECISIONS
• 2010 – Masten Bennett v Nillumbik - dwelling
proposal rejected despite CFA support
• 2011 – Marsden v Macedon Ranges – school
student expansion near Romsey rejected due to
excessive bushfire risk
• 2011 – Carey v Murrindindi SC – new
Flowerdale community hall approved in area hit
badly by Black Saturday fires
• 2012 – Marsden again – approval granted on
strength of new fire safety evidence. Proposal
does not need to be risk-free but bushfire risk
needs to be fundamentally addressed
I SEE RED ABOUT WINDFARMS
• Cherry Tree Wind Farm v Mitchell
SC [2013] VCAT 521
• SMs Wright and Liston
• Proposed 16 turbine wind energy facility about 15
km east of Seymour – 19 day Tribunal hearing
• Preliminary issue of whether any ‘existing dwelling’
within two kilometres when application lodged
• Claimed by objectors that sound pressure emissions
from wind farm would cause human health problems
– hearing adjourned for further information on this
issue to be considered
I SEE RED ABOUT CHOOKS
• Heath Hill Poultry Pty Ltd v
Cardinia SC [2012] VCAT 1444
• DP Gibson, Member Potts
• Proposed 480,000 bird free range chook farm (trend
towards free range farms)
• Code of Practice not applicable but still relevant
• No expert evidence called by proponents
• Tribunal held insufficient evidence of acceptable amenity
outcomes (eg no odour modelling)
• Note VC93 then gazetted – no permit required for open
range facility if max. number of birds not increased and
overall cap no more than 150,000 birds
I SEE RED ABOUT WATER
CATCHMENTS
• Kapiris v Macedon Ranges SC [2012] VCAT 1969
• Members Bennett and Sharpley
• Proposed to build a dwelling and effluent disposal system on land
within a Declared Water Supply Catchment Area
• Two Water Boards opposed proposal as Referral Authorities
• Proposal exceeded the preferred 1:40 dwelling density under
Catchment Guidelines
• Tribunal considered risk to human health as minimal, but saw this
risk as unjustified, given strong emphasis on protecting water
catchments.
• Need for reasonable protection of a declared water catchment area
also reinforced by recent Grigg v Towong SC red dot decision
I SEE RED ABOUT VCAT’s
MAJOR CASES LIST
• Major Cases List was piloted during 2011
• Re-commenced in January 2012
• Provides a more dedicated and expedited service for
major development applications
• Aim is to have decisions handed down within 18 weeks
of commencement
• From 1/6/13 onwards – no project value threshold for
non-residential projects. Projects with a residential
component still must be worth over $10 million.
• Anticipated that MCL will expand over rest of 2013
I SEE RED ABOUT THE NEW
FEE REGULATIONS
• Govt. has introduced new VCAT fees from 1
June 2013 onwards
• Daily hearing fees will apply to all P & E List
matters extending over at least two days –
sliding scale.
• “Complex case” – with 2 Members and lasting at
least two days – higher fees
• Party bringing the application pays the fee
• Where several applications heard together and
one of them brought by Permit Applicant, PA
pays full fees
I SEE RED: HEARINGS, VCAT
LISTS & USER LIAISON
• Average waiting time for hearings now
about 4 months
• VCAT Lists re-structured from 17 down to
11 Lists
• Land valuation work now done within P &
E List
• Liaison meetings being run with user
groups
I SEE RED ABOUT STATUTORY
REFORM
• Updating of Tribunal Practice Notes
• New Practice Notes require better information
when planning appeal first lodged with Tribunal
• Planning & Environment Amendment (General)
Bill 2012 implemented.
• Councils now have power to amend permits
issued at the Tribunal’s direction
• Reform of ‘permit extension’ regime
• Tribunal can confine issues in dispute
• Changes to Section 173 Agreements
I SEE RED AS I LOOK AHEAD
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Case volume in P & E List flattening out
Renewal of our Membership
Bigger major cases list
55 King Street refurbishment
Cases getting more complex