MAV Rural and Regional Planning Conference 2017

1. MAV Rural and Regional Planning Conference 2017 Megan Carew, Member

2. Agenda • What’s been happening at VCAT? • Challenges for 2017 • Case notes: • Plan Melbourne 2017, New Residential Zones and the BADS • Private Agreements • Need for a full assessment • Subdivision in the Farming Zone • Intensive Animal Husbandry • Earthworks and landfill • Bushfire MAV 2017

3. VCAT Snapshot • 2695 cases in Planning and Environment List in 2016. • Tracking 5% increase so far for 2017. • $20.34 billion development value, with increasing complexity. • 2017 significant increase in Major Cases List (due to de-regulation in 2016). • No other discernible change to case mix. MAV 2017

4. VCAT Snapshot • Mornington Peninsula 10th, Greater Geelong 18th in terms of number of cases lodged. • Use of regional venues where possible (58 across the State). • Increasing use of Alternative Dispute Resolution (Compulsory Conferences) • Alternative Dispute Resolution 60% success rate. MAV 2017

5. Challenges for 2017 • Case management and pre-set hearing dates: • Standard cases – 24-26 weeks from lodgement to hearing • Major Cases List – 17-18 weeks from lodgement to hearing • Compulsory conference – 10-11 weeks after lodgement • Decision – 6 weeks after last day of hearing • Greater access to Alternative Dispute Resolution for standard cases. • SCL List and Practice Day style hearings for conditions appeals • E-Tribunal/ technology MAV June 2017

6. Case notes • Difficult to select cases which are of general interest or significance. • Every decision is unique and determined by the merits of each case and the law that applies at the time of the decision. • It is important to understand the nature of the application before the Tribunal, the relevant legislation that applies and the nature of planning controls in the planning scheme that apply. MAV 2017

7. Broad range of rural and regional matters Tree removal Coastal development Telecommunication facilities Gambling Liquor licensing Drug rehabilitation Enforcement Music Festivals Etc... • Urban and township cases • Rural dwellings • Subdivision • Accommodation • Intensive agriculture • Horticultural structures • Fill/ works • Extractive Industry • Places of Assembly MAV 2017

8. Plan Melbourne 2017, New Residential Zones and the BADS • Significant Amendments to planning schemes this year including VC110, VC134 and VC136. • Amendment VC134 has introduced Plan Melbourne 2017 and a restructured State Planning Policy Framework (SPPF) that includes new planning for Regional Victoria under Clause 11.07. • VC110 and VC136 have transitional provisions that apply- VCAT will not start to see cases for a while. MAV June 2017

9. New Residential Zones • New Residential Zones have changes to the purposes and provisions which are relevant now: See Ronge v Moreland CC [2017] VCAT 550: Although Tribunal decisions discussing transitional provisions were about the earlier NRZ transitional provisions in 2014, the key point to be taken from them all, and which remains relevant, is that a proposal must be an appropriate response to site context. MAV 2017

10. Private Agreements • Increasing use of private agreements, often arising from ADR. • SeeGurner 57 Johnston Street developments Pty Ltd (Red Dot) v Yarra CC [2017] VCAT 333 (overturned on appeal to Supreme Court [207] VSC 290 for other reasons): In the absence of an Order of the Tribunal under Section 84AB, private agreements reached between some parties seeking to confine issues are not binding on the Tribunal. determining the application. MAV 2017

11. Need for full assessment • Need to ensure sufficient information • See Houghton v Strathbogie SC [2017] VCAT 243: • The general lack of information that occasionally accompanies planning permit applications, and the difficulty this creates for decision makers, has been the subject of Tribunal decisions in the past. The decision of Williams v Indigo SC [2016] VCAT 1166 documents some of these problems and refers to a number of previous decisions. It as frustrating for the Tribunal, as well as other parties, when these situations arise. It is preferable therefore for the standard of documentation prepared to accompany such planning permit applications to improve. MAV 2017

12. Need for full assessment See also: Williams v Indigo SC [2016] VCAT 1166, Taylor v Ballarat CC [2015] VCAT 198, Macarthur Wind Farm Pty Ltd v Moyne SC [2006] VCAT 1423) Need to look out for CHMP requirements. See for example Tisdall v Mount Alexander SC [2017] VCAT 267 Tuckett v South Gippsland SC [2017] VCAT 424 2016: Year in Review (PIA presentation), Mark Dwyer DP, February 2017

13. Subdivision in the Farming Zone • Common type of application before the Tribunal in rural and regional areas: • See Parry v Moorabool SC [2017] VCAT 790 • The loss of areas of rural land which contains highly productive and versatile attributes for farming enterprises is a serious matter which is enhanced when the amount of such productive areas are naturally in short supply. I find that the loss of even a small area of land containing such high quality soils from continued agricultural use is unacceptable irrespective of how small an area may be lost. MAV 2017

14. 1954 Plan for Melbourne MAV 2017

15. Intensive Animal Husbandry • See Buttigieg v Melton CC [2017] VCAT 986 Proposal for broiler farm in RCZ, existing use rights, Good Summary of previous decisions • See Qulech v Benalla Rural CC [2016] VCAT 1192 Application for piggery (retrospective). Extensive vs. Intensive. • In summary, we find against this application because the Applicants have not persuaded us that the proposed buffer distances are appropriate. We find that the piggery relies on buffer distances that are well less than the industry standards, and there would be ongoing, intractable conflicts with neighbours if unreasonable degrees of odour perpetually emanated from the site. MAV 2017

16. Earthworks and Fill There appears to be an emerging issue on urban fringe with extensive disposal of soil on land as a means of avoiding high cost of disposal to landfill. See Calleja Properties P/L v Hume CC (Red Dot) [2016] VCAT 253 • 320,000 m3 of soil placed on GWZ land. Permit sought only for development (earthworks). VCAT agreed with Council that nature of proposal also comprised a ‘use’ for the disposal of clean fill (and refused both on planning/amenity grounds). See Yarra Ranges SC v Bibiano SC (Red Dot) [2016] VCAT 1881 1400 truckloads of soil placed on 6.8 ha site. • Decision in Calleja endorsed. However, here, ‘use’ was ancillary to dominant purpose as dwelling/hobby farm, and did not require a separate use permit. Soil was being deposited to deal with long-standing drainage/erosion/access issues on the land itself, rather than the disposal of soil for the benefit of a third party. • Concluding comments noted underlying issue, and recommended policy review. MAV 2017

17. Bushfire • Continuing issues… • See McRae v Yarra Ranges SC [2017] VCAT • While I am obliged to proceed in my assessment of the proposal on the basis that permit conditions when imposed will be complied with, planning permit conditions are required to be practically enforceable. I do have concern about the enforceability of permit conditions that require a dwelling, situated in an isolated landscape exhibiting an extreme fire risk, to be evacuated on Code Red or any other day coinciding with a specified event. The implementation of that condition is a fundamental component of the fire risk mitigation measures recommended for the site, and is a prerequisite for the CFA’s somewhat cautious non-objection to the application. The condition therefore is directly applicable to the consideration of the protection of human life. See also Barclay v Macedon Ranges SC [2017] VCAT 422 MAV 2017