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I See Red at Creswick: Concurrent session on Red Hot Panels & VCAT decisions/current issues

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 Gaming Bushfires Liquor licensing Windfarms & chicken farming

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I See Red at Creswick: Concurrent session on Red Hot Panels & VCAT decisions/current issues

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  1. I See Red at Creswick: Concurrent session on Red Hot Panels & VCAT decisions/current issues

  2. Presentation by Philip Martin (VCAT) - Overview • Key VCAT decision areas of on-going importance for regional Victoria • Gaming • Bushfires • Liquor licensing • Windfarms & chicken farming • Development in water catchments • Key organisational developments • Major cases list • New fee regime • Waiting time for hearings • Consolidation of Lists • Liaison with peak user groups • Updated Practice Notes and Legislative reform

  3. I SEE REDABOUTGAMING • 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

  4. GAMING CASES • Mt Alexander SC v VCGLR & Ors [2013] VCAT 101 • DP Dwyer • 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

  5. 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.

  6. GAMING CASES • Beaumont Investments v Warrnambool CC[2013] VCAT 366 • 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

  7. I SEE REDABOUTLIQUOR • Hunt Club Commercial v Casey CC [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

  8. I SEE REDABOUTBUSHFIRES • 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

  9. MAJOR BUSHFIREDECISIONS • 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

  10. I SEE REDABOUTWINDFARMS • 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

  11. I SEE REDABOUTCHOOKS • 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

  12. I SEE REDABOUTWATERCATCHMENTS • 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

  13. I SEE REDABOUTVCAT’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

  14. I SEE REDABOUTTHE 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

  15. 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

  16. 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

  17. I SEE RED AS I LOOK AHEAD • Case volume in P & E List flattening out • Renewal of our Membership • Bigger major cases list • 55 King Street refurbishment • Cases getting more complex

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