Noise at VCAT

It has been said that the law is an ass, and sometimes it seems so, and no system is always perfect. But our planning system too often fails our green wedges, and VCAT, the Victorian Civil and Administrative Tribunal, is a part of that failure.

The problem, in relation to green wedge cases, is that most have little or no background in the green wedge. This means that they are vulnerable to drawing conclusions based on planning scheme detail which is at odds with the essential intent of the scheme.

Subjected to argument from barristers and town planners who have cherry picked planning scheme details favourable to their developer clients, they miss out on the big picture: the essence and purpose of the green wedges.

Most of the green wedge cases that come before VCAT concern so-called discretionary land uses, that is uses which are not prohibited, but are only allowed subject to the issue of a permit by the local Council. In relation to the green wedge, most of these concern residential development. Every land use zone definition begins with the purposes of the zone. In no green wedge zone is ‘residential living’ listed as a purpose, but ‘dwelling’ is a discretionary use, thus creating a fundamental tension which must be balanced in assessing permit applications.

All green wedge zones mandate minimum lot sizes in order to support rural character by reducing housing density. The existence of so called ‘small lots’, that is undersized lots which predate green wedge establishment, is a recognized issue, hence a range of planning scheme provisions aimed at discouraging development on small lots.

Last year saw VCAT twice overturn refusals by Nillumbik Council to issue permits for residential development in Kangaroo Ground. Both lots were undersized, 35 Flat Rock Road at 1.21 hectares, and 50 Watery Gully Road at 1.98 hectares. Mr Frank Dawson, hearing the 35 Flat Rock Road case, thought that the fact there were existing nearby houses on nearby small lots was a reason to approve this permit.

Mr Chris Harty, hearing the 50 Watery Gully Road case, took the same view, but went further in his justification, suggesting that the fact that the property was ‘not isolated’ meant that residential development was ‘not prohibited’. He also said that the “policy discouraging residential development of small lots in the Nillumbik Green Wedge is meritorious, however, it is policy, not a control.”

These judgements are seriously at odds with proper green wedge protection.  Does Mr Harty consider that the purposes of the Rural Conservation Zone are policies or controls? And what might be the actual, relevant distinction between policies and controls? The judgement in both cases amounts to a recipe for irreversible white anting of the green wedges. Any undersized small lot adjacent to the Urban Growth Boundary would be fair game.

In both cases the would-be developer was represented by a barrister, and in both cases they hired the same expert witness, while Nillumbik was represented by planning staff. But no expert spoke for the green wedge.

There is no green wedge commissioner, or any permanent part of the machinery of government devoted to the green wedge and which might balance the situation in favour of green wedge protection. In the absence of such a green wedge advocate it is left to concerned community groups to monitor threats to the green wedge and use their best efforts to save the day – but their ability to do that is limited because they are only ever heard at VCAT under sufferance, and because they don’t have any money.

There must be a green wedge commissioner. It's way past time for the Government to start caring about the green wedge, instead of just saying that they do.

Don Macrae