VCAT

If you feel your local council have misinterpreted or incorrectly applied the planning scheme, you may lodge a VCAT appeal regarding their decision to the Planning and Environmental Department at VCAT.

Your VCAT appeal will be heard by independent VCAT member(s) who have a legal or professional town planning background. During the VCAT appeal process, VCAT has the authority to uphold, set aside or vary the decision of Council. The decision of VCAT is solely based on the requirements of the planning scheme, so a successful case must be based on demonstrating how the decision of the Council is inconsistent with the policies and guidelines within the planning scheme. Your case must be based around this requirement - our experts can add value to this VCAT appeal process thanks to their extensive previous experience in successfully presenting these cases to VCAT members.  

As well as having an expert present at your case, our team will also complete all necessary formalities and paperwork involved in the lodgement of your appeal.

If you feel the Council have incorrectly applied or not given enough weight to the planning scheme requirements in a decision you have received, please call us to discuss your situation with an expert.  

For an overview of the formal process of lodging a VCAT appeal, please click learn more below, or enquire now with our team of specialists now to discuss your needs.

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Capital Avenue

This large French provincial design in Glen Waverley consisting of a basement cellar and four bedrooms per dwelling was refused planning permission By Monash Council but successfully appealed and overturned by CS at VCAT in October 2018. Council’s main issue with the development related to the size of the dwellings being markedly larger to the direct neighbours and the homes in the street. It is common place for council to reject applications consisting of more than one dwelling when the design is for larger style homes. This can be confusing for people when they see a number of ‘knockdown rebuild’ single dwellings in their street for homes that are bigger than what they want to build. The reason these knockdown rebuild homes are allowed to proceed is because you rarely require a planning permit from the local council to construct a single dwelling. Therefore council have no involvement or input into the design process of a single dwelling and that is how so many of them emerge in an area like Glen Waverley. When you are building two houses or more you automatically require a planning permit from the local council and they can force you to compromise on the design and sizes of your homes to get a permit. Council will often justify their requests for smaller homes on the basis that the emerging larger single homes you point to don’t require planning approval therefore you cannot rely on them. This is a flawed approach in assessing applications that is often reversed at VCAT. VCAT tend to have a much broader view of defining the neighbourhood character and do attach significance to an emerging character of a street created by single homes. In this case there was a strong presence of larger homes and even homes of a French provincial design and a Mansard roof. On the basis of this new and emerging context the tribunal ultimately agreed that the character of the neighbourhood was changing and the design was consistent with emerging homes.   

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Before
Capital Ave, Glen Waverley Capital Ave, Glen Waverley
AFTER
Capital Ave, Glen WaverleyCapital Ave, Glen Waverley
Petstock

Petstock have engaged the CS team to run planning applications for a number of their stores in Victoria. This particular site was an existing store that underwent an upgrade in 2013. The upgrade included substantially more signage than was previously on the site and this included installation of an electronic bill board at the front of the site which overhung the footpath. Boroondara Council were supportive of the application however Vicroads objected to the application based on the billboard sign. When a state authority such as Vicroads objects to an application it is a mandatory requirement that Council refuse the application. This is the case even if Council are supportive of the application. As Vicroads objected the Council duly refused the application and the CS team appealed the decision to VCAT in October 2012. The appeal was heard by one VCAT member on the 19th March 2013. Vicroads representative contended that the electronic billboard would distract drivers travelling along Burwood Highway. The applicants case was largely based around the fact that business signage and promotion signage of this nature was common place along this busy retail strip and that the sign presents no more of a distraction hazard in the street than the signs displayed by other business’. VCAT agreed with the applicants case presented by CS and order that the permit be issued in May 2013.

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AFTER
Petstock, Burwood highway
Mingay Close

This was a planning application consisting of ten town houses on a large corner site in Truganina. The application was lodged to Wyndham Council in February 2012. At the time the application was lodged Truganina was still a relatively new suburb, and ‘Mingay Close’ was only formally created in April 2009 and houses constructed in the street around this time. This meant an application to develop ten townhouses was perceived by Wyndham Council as being an overdevelopment of a quiet newly established suburban street. Council were clear that they wanted to see traditional single storey houses on the block on a land area of approximately 350 square metres. Our client identified a clear oversupply of these types of houses in the area and because he wanted to provide something different to the market place a VCAT appeal was lodged against Councils refusal of the application in May 2012. The VCAT hearing occurred on the 15th of January 2013 in front of one VCAT member. Council contented that the application was simply an overdevelopment in this newly established suburb and would be out of keeping with the suburban housing stock. The applicants case agreed with Councils observation that ten townhouses on this site would be different than other sites in the context but that diversity in housing type and character is important for all neighbourhoods. Our clients observation that ‘more of the same’ type of suburban housing would miss an opportunity provided by this large site. The VCAT member ultimately agreed with the applicants view of the development as presented by CS and ordered that Councils decision be reversed and a permit issued for the development in February 2013.       

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AFTER
Mingay Close, TruganinaMingay Close, Truganina
St Helena Road

This site was subject to two VCAT appeals. The first appeal was in March 2013 against Banyule Councils decision to refuse two additional houses on the property. The second appeal was in September 2015 against Councils decision to refuse an extension of time to the permit that was approved by VCAT in March 2013. Council refused the original development application due to the fact that one of the new houses was proposed in front of the existing house and they did not feel the front setback of the new house was appropriate. This argument was unsuccessful at VCAT as the new house was still setback well in excess of the 9 metre prescribed required front setback under rescode. VCAT found in favour of the applicant and ordered that the permit be issued. By mid 2015 the applicant had not started the development and applied to Council for an extension to the date of the permit. Banyule Council refused this application due to the fact the zoning of the site had changed from Residential 1 to the Neighbourhood Residential Zone since the permit was issued. Council stated that because the Neighbourhood Residential Zone had a mandatory two dwelling per site maximum it was not appropriate to extend a permit to allow three houses on the site. An appeal to VCAT was lodged against this decision and a hearing was held in September 2015. After examining aerial photographs during the hearing it became apparent that some large trees had been removed from the site since the permit was issued in March 2013. The removal of these trees was approved as part of the permit meaning the applicant had acted on their permit within the timeframe allowed and did not need an extension to their permit. The VCAT member agreed with the applicant’s case in this instance and issued an order specifying that the permit was still valid despite the change in zoning. 

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AFTER
St Helena Road, GreensboroughSt Helena Road, GreensboroughSt Helena Road, Greensborough
Wallace Avenue

This was an application to use a building in an industrial estate in Wyndham Council for the purposes of an after school children’s art centre. The application was lodged to Council in August 2015 but because the building was in excess of 300 square metres in size Council had concerns about the volume of cars visiting the business to conduct drop off and pick up of children. This concern was compounded when the application was advertised and received more than ten objections from neighbouring business related to car parking demand. The tenancy only had two allotted car parks in front of the building. Council were placing stringent conditions on our client to operate the business and the opening hours so we requested a refusal from Council with a view to getting a better outcome for our client from VCAT. Recognising there was an obvious car parking issue for business in the area CS engaged reputable traffic firm One Mile Grid to conduct traffic surveys for the site and make recommendations to the client regarding workable class times for the facility. In consultation with the client and One Mile Grid CS were able to present staggered class times and acceptable patron numbers to VCAT at a hearing in January 2017. VCAT reversed the decision of Council and ordered that a permit be issued to our client for the business in February 2018.

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AFTER
Wallace Avenue, Point Cook
Glen Park Road

In June 2015 we applied to Nillumbik Council to develop a second house on a large block of land in Eltham. Anyone who knows Nillumbik Council will be aware of their strident position on tree retention within sites as part of development. This was our main concern at the outset of the project as the site was semi-rural in character and surrounded in large native trees. However, our client had a different concern. He was convinced from the outset of the project that his neighbour would take them to VCAT even if Council supported the application. The reason he was convinced was because there was a long history of dispute between them and this planning application was going to present the next battle. The combative saga had been ongoing for a number of years and involved a wide ranging, yet typical neighbourly disputes such as fencing, noise complaints etc. The Council approved the planning application on the 9th October 2015 but as expected an appeal against this approval was lodged to VCAT by the neighbour. The development itself comfortably complied with the regulations as set out in the planning scheme and hence received Council support. Despite this any neighbour can still appeal the decision of Council without the need to provide any compelling evidence to support the grounds of their appeal. The case was heard by VCAT on the 28th April 2016 and the VCAT order upholding the Councils approval was issued on the 24th June 2016. Although a positive outcome, this unnecessary saga cost our client a full nine month delay in the commencement of his project. The development commenced construction in late 2016 and was completed in late 2017 as an owner builder project. Predictably our client wanted to know if there was any avenue to pursue costs associated with the delay and the appeal from his neighbour after the decision was issued by VCAT. The simple answer is no. It would require a very unique set of circumstances for VCAT to award costs against an objector appealing an approval decision by a local Council, despite the clear weakness in their case. The reason for this is because it would be seen as a deterrent to any future objector to a planning decision to appeal if the threat of costs being awarded against them looms. This could be perceived as being unjust towards objectors in the planning process and an advantage for developers.

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AFTER
Glen Park Road, ElthamGlen Park Road, ElthamGlen Park Road, ElthamGlen Park Road, Eltham