• EXPERTS IN
  • STATUTORY TOWN PLANNING
  • PLANNING PERMITS
  • VCAT

We are delighted to share the news that Wendy Cui has been promoted to the role of Senior Associate.


Wendy joined us as a very technically knowledgeable, astute town planner and over the last 12 months she has combined this technical ability with developing negotiation and stakeholder management skills to secure excellent outcomes for our clients on a combination of difficult applications. She will continue this role as a senior planner within our team and take an active role in VCAT cases also. We look forward to celebrating her victories on behalf of our clients for the rest of 2024 and beyond.


The appearance of expert witness’ in town planning appeals is common practice. All parties can call experts they believe are pertinent to their case and all the other parties in the matter have the right to cross examine the witness. This article will explain the role of witness, set out the pros and cons of engaging them, debunk some common perceptions and describe the circumstances under which you might consider engaging one.


The role of an expert witness?

It is to inform the tribunal. Specifically on an area of technical knowledge that the witness has demonstrated professional expertise in. The witness will provide an opinion based on a combination of their professional expertise and the instructions they receive from the advocate running the appeal. The tribunal can then decide how much weight to place on the evidence in forming their decision.


Do they act in their clients’ interests?

There is a stark distinction between an advocate and an expert witness in planning appeal at VCAT. It is the role of the advocate to represent their clients interests. It is true to say that the opinions and interests of the client align if a witness has been engaged to appear in a hearing. However, expert witness’ must base their opinion on a professional assessment only. This includes opinions that may not wholly align with their own clients interests.


What are the most common expert witness’ that appear in planning hearings?

Professional experts on traffic impacts, landscape architecture, arborists, town planning and urban design are amongst the most frequently used experts at VCAT. Other experts we have engaged in the past include professional risk assessors for threats to human life and civil engineers.


The most common circumstance under which an expert witness appears is when there is disagreement between decision makers and permit applicants about whether a proposal presents an acceptable outcome. For example, local councils frequently refuse applications seeking a dispensation of car parking. If an applicant elects to appeal this decision then they would likely appoint an experienced traffic engineer to present expert evidence during a hearing that supports their proposed dispensation based on the specifics of the site or proposal. Some of the features that would influence the opinion of the professional engineer might include the availability of public transport, or the availability of public street car parking. The engineer would then prepare an expert witness statement, also known as their evidence in chief, that outlines their opinion, the rationale and the information relied on to inform that opinion.


What are the pros of engaging a witness?

  • The tribunal will typically give more weight to the opinions of an expert than the submissions of an advocate.
  • They provide invaluable support for your advocate running the case.
  • They can inform the tribunal on technical information that may be beyond the scope of knowledge of the individual tribunal member.

What are the cons?

  • Their professional opinions may not align with the clients’ interests.
  • Expert witness statements are circulated 10 business days before a hearing giving other parties time to prepare cross examination questions that must be answered during a hearing and ‘on the spot’.
  • The tribunal is not obliged to agree or accept the opinions of expert witness

The use of expert witness is common for legal practitioners such as barristers acting as advocates in planning appeals. They are also common for larger or publicly contentions developments. The decision on whether or not to engage an expert witness is case specific and depends on the matters in dispute. The previous example of a traffic engineer is an obvious example of a situation where a client should always appoint an expert witness. Other common examples are where there is a disagreement about the extent of landscaping opportunities (landscape design witness) or a proposal is inconsistent with neighbourhood character (urban design or planning witness).

Need a planning permit expert witness for VCAT?

Call us to discuss your case with an experienced town planner

Landowners burdened by a restrictive covenant often want to remove it to maximise the potential of their land. This article describes the process, risks and includes two case studies of successful applications as well as tips you can follow to achieve a successful outcome.

A successful application can unlock the development potential of a site in a relatively inexpensive way. However, the process of removing a restrictive covenant via a planning permit is best described as risky. Not all proposals carry the same level of risk of failure, but usually covenant related applications carry a higher level of risk than standard planning applications.

The reason these applications are described as risky is because of the role of covenant beneficiaries. These are the property owners that enjoy the benefit of the covenant. These parties are identified on the title documents when the covenant is created and can object to any proposed removal of the covenant. Objections by these parties are held in higher regard than normal objectors because of the additional rights afforded to beneficiaries under the 1987 Planning and Environment Act. These additional rights typically result in council refusing the application to vary the covenant if any of the beneficiaries object.


Before exploring the pros and cons of making an application, some background information:

What is a covenant?

It is a legal contract of agreement created by a landowner that establishes a restriction prohibiting or allowing specific actions to be taken on a site. Once the restriction is created it runs in perpetuity with the land unless it is formally removed or has a specific date of expiry also known as a sunset clause.

Why are they created?

They are created at the discretion of current landowners to avoid specific outcomes on the land by future purchasers. In modern times the most common use of covenants or restrictions are land developers of new housing estates. The creators of these estates will typically have a design guide aimed at creating a homogenous estate. These guides specify minimum setbacks, heights, building finishes and the like that apply to all lots. The purchasers of the new lots are bound to the design guide via a restriction or covenant.

What are the most common types of covenants?

Single dwelling covenants are commonplace, along with covenants specifying building materials, front fences heights or other specific outcomes. There are also covenants related to restricting specific use and development outcomes such as quarrying or excavation on a site.

How can you remove a covenant from your land?

A covenant can be removed from a deed of title by an order of the supreme court or a council issued planning permit. We will be focusing on the planning permit process for the purposes of this article.

Why are covenants difficult to remove?

They are considered legal contracts and were created by the original landowner to run in perpetuity with the land. Despite the fact some covenants are old and often seem superfluous, they remain legally binding agreements and hence there is a considerably high bar to their removal or variation.


Two case studies of successful approvals

A successful approval looks like a standard planning permit with few conditions attached per the image below we achieved from Glen Eira Council in 2024:

This case was a variation to a covenant created in 1955 that specified only brick construction was permitted in the upper levels of development. This is a prohibitively expensive method of construction and we sought to remove the requirement. Despite there being more than 250 beneficiaries, no objections to the proposal were received and the application was approved. Further on, we set out the tips in this article of how we set this application up for success.


This second case study was a single dwelling covenant removal in the City of Hume issued in 2017.

The photographs below show the site before and after dual occupancy and subdivision.


The pros and the cons of the permit process

As mentioned in the opening section, the main benefit of making an application to vary a covenant is the development potential it unlocks. This can be as major as creating an opportunity to develop multiple units on a site or as minor as changing the allowable finished building materials of a development.

Another major benefit of making an application for a council permit is that it is inexpensive compared to engaging in the supreme court process. You also have the added benefit of reserving the right to apply through the courts if you fail through the council planning permit process.


The largest downside of making an application is the likelihood of objections by the beneficiaries, which in turn will lead to a failure of the application. Receipt of objections is out of our control as the applicant. You can negotiate with beneficiaries to withdraw their objections but the success of these negotiations varies greatly depending on the perspective of the objecting beneficiaries.

As another downside, the court option provides more certainty (not guaranteed) of success than the planning permit process. The court enjoys a greater level of discretion than the local council to determine if the covenant can be varied based on legal tests.


Tips for success

  • Applications to remove a covenant entirely are more like to fail than applications to vary a covenant. Look for changes to the wording of the covenant that would allow you to complete the development you want while retaining an altered version of the covenant on the site.
  • The application is more likely to be successful if it is tied to a specific outcome. It is best to lodge plans depicting the future development on the land as the basis for your application to make changes to the covenant. This creates greater peace of mind for beneficiaries than a proposal that seeks to change the covenant without providing reasons or a rationale.
  • Identify the number of beneficiaries of the covenant as early as possible. The higher the number of beneficiaries, the more likely objections from one or more will be received and the less likely a successful outcome will follow.

For more information on how to identify covenant beneficiaries please contact our office for a discussion with a professional town planner.

Planner Allocation.

Within 1 – 2 weeks of lodging your application, it will be allocated internally to a town planner who becomes your point of contact. You will usually receive a letter or email from council advising you of their contact details. Allocations will depend on a combination of the complexity of the application and resources available within council.

Request for Further Information.

Your allocated council planner will request any information they require to complete their assessment within 28 days of your application being lodged. This request will typically be on a formal council letterhead and it may also identify any concerns your planner has with the proposal. Your response to this letter should provide the information and resolve the concerns.

Referrals.

The application will be referred internally to council departments such as traffic engineers or arborists for specialist comments. Internal referrals will only be done to departments relevant to the application assessment. External referrals to stakeholder agencies such as the EPA will also occur at this stage if there is a trigger for a referral. Any concerns from these departments may need to be resolved for approval to issue. There maybe no referrals required for simple development applications. Internal

Advertising.

The application will undergo a 14 day advertising period where members of the public can make submissions or objections to the proposal that are considered by council in the decision making process. Some minor applications are exempt from this step.

Decision.

Your allocated planner will complete a report and issue a decision. A part of the decision documents will include information about how appeals against the decision can be lodged at VCAT. The elected councillors can ‘call in‘ an application, essentially retracts the delegation and reinstates the councillors as the decision maker instead of the planning department. In this scenario the vote of the councillors forms the decision.

Councils three step approach is to – Avoid, Minimise, Offset.

Councils default position on tree removal is to avoid it if possible, minimise it if required and offset any vegetation loss with replanting within the site as part of a landscape plan, typically at a ratio of 2:1 for each tree removed.

Trees have a defined ‘retention value‘ of high, medium or low. The retention value is determined by a consulting arborist. The lower the retention value of the tree, the more likely its removal will be supported.

What is an arborists role?

A credible arborists report will allow you to proactively predict whether council will support the tree removal. There needs to be compelling reasons for council to support the removal of high retention value trees. Circumstances where council might support the removal of high retention value trees include if it is centrally located on the site and retention is not possible as part of a development on the site.

Even low retention trees require offsets.

Expect Council to require replanting at a ratio of 2:1 for each tree removed on the site. This will likely form a condition of approval for the development. Trees with a low retention value will typically need to be replaced by a higher value tree. It is also typical for council to require a dedicated landscape plan by a professional landscape architect to nominate the location and species of the offset replanting.

Trees that are identified as weeds are not subject to replanting offsets.

Is approval or offsets required to remove shrubs, grass or garden beds?

Typically only trees with a trunk diameter greater than 150mm are considered ‘trees’ for the purposes of a planning application. Garden beds, shrubs and lawns are not subject to offset replanting requirements. A land survey that correctly distinguishes trees from shrubs and grasses, that is consistent with the consulting arborists report can avoid unnecessary downtime answering follow up queries from council.

Every Council prefer to retain ‘high retention value’ trees as part of a development. Contact our team for a preliminary, obligation free discussion if you need to remove any site trees your consulting arborist has classed as high retention.

What is a Compulsory Conference?

A formal mediation chaired by a VCAT member. The purpose of the conference is to bring parties together to collaborate and reach mutual agreement for a planning permit to be issued. The parties involved are the local council, the planning permit applicant and any objector parties that have lodged grounds of appeal with VCAT.

What is the format?

They are typically scheduled to last one day or a half day at VCAT or online via zoom. All parties will be in the same room at the beginning of the conference. All will be given the opportunity to make an opening statement and the chairperson will then facilitate open discussion between the parties so all parties outline the outcome they are seeking. The chairperson will then typically separate parties into different rooms and move between the rooms to provide advice aimed at brokering a settlement.

Are parties oblige to settle?

All parties are obliged to attend the conference but no one is oblige to settle or even actively partake in the conference.

What happens at the conclusion of the conference?

If agreement has been reached between all parties then the case will effectively conclude at the end of the conference and the tribunal will order that an approved planning permit will issue. The new permit will likely include updated conditions reflective of the terms agreed in the conference.

If agreement has not been reached then the case will proceed to a full hearing where each party will have the opportunity to present their case and the tribunals role changes from facilitator to decision maker.      

A combination of these four actions will set up you up for a successful conference.

Prepare terms in advance.

A compulsory conference is a negotiation, like every negotiation both sides will have to make some compromises for it to be successful. Conferences are more likely to be successful if you proactively prepare the compromises you am willing to make in return for the outcome you are seeking. By proactively preparing you can retain more control on the direction of the conference

Make the opening offer

As a general rule of thumb in negotiations, the party that makes the opening offer usually sets the expectations of the and parties steers the negotiations to an outcome more favourable to their interests. For example, if you know car parking supply is the central objection for the other parties then you might proactively offer to increase the car parks by 1 – 5 spaces at the beginning of the conference and before the other side has a chance to air their requests. Making the opening offer can be very conducive to eliciting a favourable approach from the other parties.  

The decision to make the opening offer can vary depending on the circumstances of the conference. It may not be in your interests to make the opening offer if you are a permit applicant that has received council support so think carefully about whether you should make the opening offer.   

Be prescriptive in your requests.

The number one reason compulsory conferences are unsuccessful is because parties do not know what they want. Be specific and make tangible requests. Make it clear if you are requesting the other side to settle the matter if you agree to a concession they request. Most compulsory conferences fail because sides do not know what they want and make general, nonspecific requests during the conference.  

Practice Reciprocity

If the other party make a tangible offer, either accept or make a counteroffer. Do not flatly refuse an offer or request without making a counteroffer. For example, you might not be agreeable with objector’s request for a reduction in height but you could offer to increase a side or rear setback. This approach ensures the dialogue remains open and is conducive to an agreement being reached.

The societal shift towards environmental sustainability is a welcome self-evident shift in most areas of our lives nowadays. The property development industry is no different with the emergence of the concept of ‘future proofing’ in planning negotiations and decisions over the last five years. In other words, ensuring property developments, can adopt to new technologies as they become more mainstream. An easy example is providing electric vehicle (EV) charging infrastructure in private and publicly sections of a development or within a site.

Here’s the rub – technology becomes obsolete quickly. Technology in the sustainability sector is burgeoning BUT an emerging market. This goes hand in glove with rapid change. What is cutting edge and best practice today will be dated tomorrow.


To illustrate the problem this creates in the development industry, a case study;

The screenshot below is a list of the 18 mandatory sustainability measures required to be introduced to a three dwelling development in suburban Cheltenham.        

Most of these measures are reasonable and inline with modern building standards.

Image 1: 18 mandatory sustainability measures were required as part of the consent

However, should the following have been obligatory conditions of consent:

  1. Nominating a paint that mitigates the urban heat island effect? I.E. acts as a cold insulator.
  2. Use lower VOC paints? I.E. contains less solvents than normal paint.
  3. Provide a solar heating system?
  4. Provide EV charging infrastructure in garages?

To demonstrate our point – Toyota is the largest car manufacturer in the world and does not intend to develop an electric vehicle (EV).

Their chairman, Akio Toyoda described the EV market as ‘overhyped’, instead adopting a ‘multi pathway approach’ to future vehicle production quoted in this Forbes article.

We are not saying we agree. We don’t know. We are paying attention.  

Over the last five years a number of local government organisations have created a new job position, indeed a new department sometimes, aimed at assessing and requiring improved sustainability measures within new developments. The position titles are typically a version of the words ‘Sustainability Assessor’, a professional that is knowledgeable on best practice sustainability measures. We welcome this role, but akin to all professionals, they may see the world through the lens of their expertise. A balanced approach needs to be taken to their requests for sustainability measures.  

For example, in a recent application for a sports stadium including 37 car spaces, a requirement for 100% of car spaces to have EV charging stations was mandated by the sustainability assessor of an inner urban council. It was also tabled that openings in the roof be introduced to allow a row of canopy trees to establish down the centre of stadium to assist with cooling. We were able to renegotiate on both these requirements with councils planning department. 

Thoughts

Sustainability has a central and growing role in planning decisions. Most of the measures are welcomed and accepted by applicants but decision makers in industry have to be cognisant of what is reasonable to require as a mandatory condition. Sometimes there is a dichotomy between best practice in the sustainability space and what constitutes an acceptable planning outcome. We are hopeful a pragmatic and balanced approach is taken as we move steadfastly towards more sustainable practices in all areas of our lives.  

The law of instrument, or Maslow’s hammer is a version of the words “To someone with a hammer, everything looks a nail” It is a fair preface that aptly describes how referral authorities sometimes approach their role in advising local councils about planning applications.

This descriptor is not intended to be a criticism of the professionals within these authorities, rather recognition of the fact that all professionals tend to assess developments from the lens of their expertise and experience. It is common in all areas of life that peoples advice and opinions are shaped by their experience. There is nothing wrong with this. The experience is the reason council town planners seek their advice. However, somewhat paradoxically, seeking the advice does not mean the advice should be followed. The advice should not be overly relied on as the basis for decision making as our case study shows.

Case Study

In 2020 The EPA (Environmental Protection Agency) was a referral authority for a development application processed by our team that included a residential land use near to a large petrochemical facility. The development fell short of the recommended separation distance of 250 metres between a sensitive land use and a use with a potential negative health impact, specifically from air emissions and odour. Image 1 below forms an excerpt of the referral response from the EPA to council on the acceptability of the shortfall.

Image 1 – EPA comments relevant to the referral requested.

The feedback recommended a rigid application of the 250 metre separation but a reduced separation could be supported if there were sufficient mitigating factors demonstrated by the permit applicant.

Image 2 below is an excerpt from the same letter:

Image 2 – Feedback beyond the scope that incorrectly formed the basis of the decision.

This was clearly beyond the scope of the purpose of the referral response as there were no planning controls affecting the site that related to contamination.

Based on the EPA requirements the permit applicant had to undertake a costly soil contamination report for the site and although there were no adverse findings the application was refused, inter alia because of the potential (not confirmed) presence of contaminated soil on the development site.


During a consequent planning appeal, VCAT accepted our submission that Council had incorrectly considered the EPA’s feedback on soil contamination as a relevant issue for the planning assessment. We were able to articulate to VCAT that the EPA’s role was confined to the separation distance and their opinion on matters not relevant to that role should not be accepted as the basis of a planning decision. The tribunal concurred with this view and found that soil contamination should never been a basis for refusing the planning permit. VCAT was satisfied that there were mitigating factors that meant the reduced separation distance was supportable. The development was approved, and construction was completed in early 2024.

Thoughts

This case study is demonstrative of the tendency for town planners to ‘accept – as – gospel’ the requirements of referral authorities. It is a difficult but necessary requirement for town planners to qualify those requirements.

If credible information is presented that refutes these requirements, it should be a reasonable expectation that a follow up negotiation with the referral authority is required. It is also perfectly acceptable for the feedback of the authority to be followed, followed in part or not followed if common ground cannot be met. The ability to exercise this discretion only applies where it is a ‘recommending’ referral authority in lieu of a ‘determining’ authority.

It is also relevant to point out that the professionals within these referral authorities are experts in their profession. It is reasonable to expect a technical professional to provide their feedback on what they know if solicited by decision makers. However, they are not knowledgeable on town planning requirements. Planners must reconcile how the professional advice fits within the planning assessment. Using another adage, it is incumbent on decision makers to ‘see the wood for the trees’ when assessing referral authority comments.

The tribunal has firmly reaffirmed this position in a recent decision, Hedley V Mornington Peninsula handed down on the 26th February 2024.

The case was an objector appeal against councils decision to approve a single dwelling in St Andrews. The appellant argued, inter alia that the overshadowing and overlooking impacts were unreasonable. In both matters, it was common ground the requisite rescode standards were met. At section 15 of the decision the tribunal noted that compliance with the required standard marked ‘the end of the story regarding these issues’.

This position supports the view taken by the tribunal in the D’Andrea v Boroondara decision of 11th October 2023.

These decisions compound the commonly held view that changes made to how rescode operates in September 2023 confirmed that if a rescode standard is met, the objective is deemed to be met and that decision makers have no discretion to form an alternate assessment.   

The majority of people are aware that planning applications can be subject to objection by members of the public. However, this does not translate to mean the application will be refused if objections are lodged. Nor does it mean that a proposal must be altered to address objectors feedback.

So why do objectors get disgruntled when proposals are supported?

One obvious answer is because they have a vested interest in the outcome.  

Another simple cause is false expectations.  

The planning process in Victoria fosters the ideal that members of the public should be involved and influence planning outcomes. However, there is a distinction between an invitation to share your opinions and the weight your opinion will be given by decision makers. The purpose of the public advertising process of a planning application is an invitation to respond, however you would be forgiven for thinking that it is an invitation to decide whether a proposal should be approved.

A critical feature of public advertising process of applications is that it elicits a response from people, distinct from a process which informs people. People are requested to respond through a direct letter, email or viewing a large florescent poster on a site advising of the application.

The fact that some people feel obliged to contact council to inform them they are unaffected by a proposal supports the notion that the planning permit advertising process solicits objections.

Below is typical boilerplate text that appears on a council issued public notification letter or poster about a planning application. Some notable features of the language:

  1. It does not inform people that objections must be based on the planning scheme;
  2. The phrase ‘may be affected’ has negative connotations that will elicit a fearful response;
  3. It explicitly invites people to explain ‘how’ they will be affected with no qualification criteria to set expectations of what can be considered;
  4. It implies that objections based on perceived impacts are given weight.

Objections themselves are not the issue. The issue is the false expectation the process creates.

A person who has been elicited to provide their opinion through a direct letter will conclude their opinion is held with higher regard than if their view was not actively sought out.

This is a seminal reason for confusion and feelings of being ignored when a planning decision is not consistent with an objectors views. It is a fair observation that the active solicitation of their opinion created the perception that their opinion would form the basis of the decision.

This matter recently came to the fore in a VCAT decision where objectors had lodged an appeal against Booroondara’s council approval of a house extension and renovation at 69 Broadway, Camberwell. The grounds of appeal lodged by the objectors included heritage impacts related to demolition. However heritage grounds were struck out by the tribunal as there were no third party appeal rights under this heritage overlay. This means, compliance of the development with the overlay was subject to councils assessment only and no objectors had the right of appeal to this assessment.

This decision was unsurprising can be read in full here; however it does raise some questions about the planning process and procedural fairness, specifically –

  • Why did the objectors form the incorrect view about their appeal rights?
  • Should there have been an obligation on the objectors to be informed?
  • It also begs the question, is this fair on the planning permit applicant?
  • Would a planning permit applicant be given the same flexibility if, for example they had not met their ‘application requirements’ under the scheme?  
  • Would it lead to greater transparency in the process if there was a greater ‘burden of proof’ on objectors to substantiate their grounds.

There is a compelling argument to suggest the objections process is overly accessible and this has created an unnecessary delay to approvals being issued. It is relatively easy and inexpensive to lodge an objection and an appeal at VCAT. Self representation is permitted so there is little financial burden on proponents to run an appeal. 

The ability of objectors to be involved in outcomes is undoubtedly an important part of the planning process that exists in almost every country in some form. We don’t question whether objectors should be involved, however when we compare the expectations of planning permit applicants in meeting their obligations in seeking approval, to the ease at which objectors can object and lodge appeals, it is clear the balance in the process is disproportionately skewed towards making it ‘easy’ for objectors. It appears, permit applicants are expected to largely accept this as the ‘cost of doing business’ and this is an issue for the industry.

The Victorian Planning process is likely to undergo some significant changes on the back of the state governments commitment to build 80,000 homes each year in Victoria between 2024 – 2034. Objector appeal rights is an area the government has already targeted by removing appeal rights entirely for specific projects that you can read about here. The industry will benefit if this process continues for more classes of planning applications and it will remove the issue of false expectations being fostered by the planning process.