VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P898/2024
permit application no. PLN23/0379

Applicant	Lei Wang	

Responsible Authority	Manningham City Council	
Respondent	26-28 Churchill Street Pty Ltd	
SUBJECT LAND	26-28 Churchill Street
DONCASTER EAST  VIC  3109	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	8 November 2024	
DATE OF ORDER	12 November 2024	
CITATION	Wang v Manningham CC [2024] VCAT 1066	

OrdER
Hearing schedule
1	The details set out in the Tribunal’s initiating order are changed.  
2	The hearing scheduled at 10:00am on 14 March 2025 is vacated.  No attendance is required.  
The proceeding is listed for a short cases list hearing as detailed below.
If there is any change to these details, the Tribunal will notify you.  
Hearing:	
Date and time	11 December 2024
10:00am – 1:00pm 	

Conduct	Online platform	

The details of the online platform will be provided to the parties before the hearing.
Grounds for review
3	Grounds 1 and 2 in the applicant’s statement of grounds for review are dismissed as misconceived under section 75(1) Victorian Civil and Administrative Tribunal Act 1998 (Vic).
4	The applicant for review must file by no later than 4:00pm on 15 November 2024, further and better particulars explaining the basis of ground 3 in the application for review.  
Amend name
5	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by changing the name of the permit applicant to:
26-28 Churchill Street Pty Ltd
6	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the statement of grounds submitted by the respondent is amended by changing the name of the respondent to:
26-28 Churchill Street Pty Ltd
Providing submissions and associated material before the hearing
7	No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
8	All expert evidence must be provided in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Hearing fees
9	If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees 

Ian Potts
Senior Member

Appearances
For applicant	L. Wang in person.  	
For responsible authority	Dean Neofitou, a town planner from Maroondah City Council	
For respondent	Mr M. Stanojevic, a town planner from ASK Town Planning.   	

REasons
(Given orally and subsequently revised)
1	On 22 September 2023 Planning Scheme Amendment VC243 introduced the following provisions into Victorina Planning Provisions’ clause 55 requirements for a development:
If a development meets standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32, it is deemed to meet the objective for that standard.  
Where standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32 is met the decision guidelines for that standard do not apply to the application
2	To be clear, these provisions of clause 55 do not carve out any exclusions from notice or appeal rights under section 82 of the Planning and Environment Act 1987 (Vic) (‘PE Act’).  A person seeking a review of a clause 55 provision to which these standards apply would need to demonstrate how the objective has not been met.  One way this may occur is to demonstrate that a standard has not been met and / or an alternative design to the standard is not acceptable when considering the relevant clause objective and decision guidelines.  
3	However, where a standard has been met and the above ‘deemed to comply provision’ apply, a responsible authority and a tribunal on review, is directed to accept that the related objective has been met.  If an objective has been met it is futile to argue otherwise, at least where there is a clear match between say numerical standards and objectives not involving neighbourhood character.   
4	Grounds 1 and 2 of Ms Wang’s application for review are that the proposed development will result in unacceptable overshadowing of her existing secluded private open space and there will be unacceptable overlooking to her dwelling.  
5	Clauses 55.04-5 and 55.04-6 of the Manningham planning scheme have the following relevant objectives:
•		To ensure buildings do not significantly overshadow existing secluded private open space.
•		To limit views into existing secluded private open space and habitable room windows.
6	These objectives align with one of the purposes of clause 55 of the Victorian Planning Provisions, which is to: 
… encourage residential development that provides reasonable standards of amenity for existing and new residents.
7	A careful reading of the above clauses and purpose identifies that planning scheme does not seek to prevent any overshadowing or overlooking.  The planning scheme operates to avoid unreasonable impacts.  Meeting the standards of B21 and B22 mean the object gives of the related clause 55 provisions have been met, ‘i.e. the overshadowing and overlooking, if they were to occur, are not unreasonable.  
8	The development being proposed by 26-28 Churchill Street Pty Ltd, (‘Churchill Street’) was assessed by the council and was found to comply with standards B21 and B22.  Accordingly, the application was deemed to comply with the relevant clause objectives and so not have unreasonable impacts. 
9	In this hearing, with the benefit of the council’s submissions and the submission and plans provided for Churchill Street, I am satisfied that standards B21 and 22 are met by the proposed development in relation to overshadowing and overlooking of Ms Wang’s property.  Accordingly, in respect to her grounds, the objectives of clauses 55.04-5 and 55.04-6 are deemed to have been met.  
10	I am therefore satisfied that a review of whether the potential for unreasonable overshadowing and overlooking to her property arising from this development would be bound to fail based on all of the relevant facts and the application of the relevant clauses of the planning scheme.  
11	On this basis the grounds are misconceived and should be dismissed in the interests of efficiency in the conduct of this proceeding. 
12	I have exercised the power available under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) to dismiss grounds 1 and 2 of Ms Wang’s application.  
13	It must be understood that reaching this conclusion and making the order dismissing these grounds is not done lightly.  
14	Many tribunal decisions have highlighted that the use of such a power is subject to a high bar of satisfaction that it is the appropriate course.  
15	The decision of Dwyer, DP in Axicom Pty Ltd v Melton CC provides a convenient summary of the principles underlying this high bar and I have had regard to these in arriving at my decision.  
16	I am also mindful of the primary duty of a tribunal in a review jurisdiction to focus on its review role.  The use of powers under section 75 of the VCAT Act are ancillary to this primary role.  Dismissing an applicant’s opportunity to pursue their concerns by an independent review is not to be done lightly and without sound reasons.   
17	Ms Wang’s third ground of review refers to the unacceptable degree of development occurring around her property and the impact on her amenity.  She seeks to review the notice of decision on this basis.  
18	Churchill Street has requested that the basis of this ground be clarified.  
19	This is reasonable request given the broad nature of the concerns expressed to date.  It will assist the council and Churchill Street to respond to it.  It will also assist a future tribunal to understand this ground 
20	I have framed my orders accordingly.  

Ian Potts
Senior Member

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