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 –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

I SEE RED ABOUT GAMING 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

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

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.

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

I SEE RED ABOUT LIQUOR 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 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

I SEE RED ABOUT BUSHFIRES Operation of Wildfire Management Overlay Black Saturday in February 2009 – 173 deaths Bushfire Royal Commission Report Introduction of more rigorous Bushfire Management Overlay – Nov Cooler summers then more heat/fires in early 2013

MAJOR BUSHFIRE DECISIONS 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

I SEE RED ABOUT WINDFARMS 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

I SEE RED ABOUT CHOOKS 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

I SEE RED ABOUT WATER CATCHMENTS 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

I SEE RED ABOUT VCAT’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

I SEE RED ABOUT THE 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

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

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

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