The Law Handbook 2024

Chapter 11.3: Environment and planning law 1023 would be caused by animal keeping and training is Cremin v Cardinia Shire Council [2004] VCAT 1288. In 2015, sections 60(1B) and 84B(2)(jb) were added to the PE Act to recognise that the number of objectors may be relevant when considering whether a proposed use of land or a development will have a significant social effect. These amendments followed Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505 and Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45. These decisions found that while the number of objectors alone cannot be grounds for refusing a planning permit, the extent of opposition may be relevant in determining whether a proposed use of land or a development will have a significant social effect. The 2015 amendments to the PE Act were tested in Backman & Co Pty Ltd v Boroondara City Council [2015] VCAT 1836, which held that objections to the construction of an apartment building that were based on the demographics of the likely occupants were not relevant because the alleged social effect did not have a direct connection to the permit ‘triggers’ (i.e. the basis on which a planning permit is required). Objections to broiler farms in Vukadinovic v Mount Alexander Shire Council (No 6) (Correction) [2015] VCAT 1993 confirmed that having a large number of objectors contributes to whether the development will have a significant social effect but is not grounds in itself for refusing a planning permit. However, the planning permit issued by VCAT was the subject of an appeal by a group of neighbouring objectors. This group was ultimately successful on a separate ground and the permit applicant abandoned the development (see Forbes v Vukadinovic [2018] VSCA 138). The relevance of nature conservation as a priority in planning has been recognised in many cases (e.g. Clare v Maroondah City Council [2004] VCAT 770; Jazownick v Wodonga City Council [2006] VCAT 952). Environmental and conservation issues may be central to a permit decision under consideration where a zone, overlay or planning provision is specifically concerned with those issues. Certain zones are intended to protect these values in land uses (e.g. Rural Conservation Zone and Public Conservation and Resource Zone). Standard overlays (e.g. Environmental Significance Overlay and Significant Landscape Overlay) are intended to control development to protect environmental or landscape values. Particular provisions (e.g. cl 52.17 relating to native vegetation) can require a planning permit to remove, lop or destroy native vegetation. Objections need to address the permit trigger(s) in the particular circumstances. In some instances, particular overlays may not permit review rights (e.g. heritage overlay, erosion management overlay, development plan overlay or incorporated plan overlay). The objectives of planning in section 4 of the PE Act (see ‘Land-use planning’, above) could provide other possible grounds of objection; although, the objection still needs to respond to the permit trigger. Similarly, planning schemes contain an extensive planning policy framework, comprising both state and local policies. These policies provide the context to statutory planning and permits. The policy framework provides the purposes and rationale for permit decisions in any particular set of circumstances. Permit conditions and special agreements Responsible authorities can impose any conditions they think are appropriate on a permit, as long as the conditions are fair and reasonably related to the permitted development (s 62 PE Act) (see Hand v Warrnambool City Council [2004] VCAT 19; Melbourne Water Corporation v Domus Design Pty Ltd [2007] VSC 114). The conditions may require the owner or person using the land to comply with other permissions, such as under the EP Act (see ‘Environment Protection Act 2017’, below), consolidate land titles, or impose restrictions on sub- division of the land. A condition in a planning permit that requires compliance with other permits or licences can be useful because any breaches of the other licences can then be enforced under the PE Act. The advantage of this is that a breach of a condition in a planning permit can be enforced relatively easily by going to VCAT. Other environmental licences and permits generally cannot be enforced by members of the public (although, see Part 11.4 EP Act). Section 173 agreements A ‘section 173 agreement’ is an agreement between a landowner and the responsible authority. A requirement that the landowner enter into such an agreement may be included as a permit condition