VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P2019/2020
Permit Application no. PLN/2015/204	

Applicant	Rite Track Pty Ltd	

Responsible Authority	Macedon Ranges Shire Council	
referral authority	North Central Catchment Management Authority	
address	2-4 Davy Street, Woodend	
HEARING TYPE	Hearing	
DATE OF HEARING	31 May 2021	
DATE OF ORDER	3 June 2021	
citation	Rite Track Pty Ltd v Macedon Ranges SC [2021] VCAT 580	

Order

1	In application P2019/2020, the decision of the responsible authority is set aside.
2	In relation to planning permit No. PLN/2015/204 issued on 11 January 2017, pursuant to section 85(1)(f) of the Planning and Environment Act 1987 the Tribunal directs that:
(a)	the date by which the development must be completed pursuant to Condition 70(b) of the Permit is extended to 11 January 2023.

Christopher Harty
Member			

Appearances
For applicant	Mr Stephen Bitmead, Town Planner from Fastnet Consulting.  He called the following expert witness:
•	Mr Warwick Bishop, Flood Engineer from Water Technology Pty Ltd
Stephen O’Kane and Anna Cleaver, Directors observed	
For responsible authority	Mr Andrew Clarke, Town Planner from Clarke Planning Pty Ltd
Cr. Anne Moore observed	
For referral authority	No appearance	

Information
Description of proposal	Construction of fourteen (14) double storey dwellings, construction of associated buildings and works (earthworks, roadworks and fencing), and removal of vegetation including two (2) non native trees within the Davy Street road reserve, construction of works within the Black Gum Reserve (outlet drains and reserve).	
Nature of proceeding	Application under section 81(1)(a) of the Planning and Environment Act 1987 – to review the refusal to extend the time within which a development is completed 	
Planning scheme	Macedon Ranges Planning Scheme	
Zone and overlays	Part Neighbourhood Residential Zone Schedule 2 – Woodend Historical Residential Precinct (NRZ2)
Part Neighbourhood Residential Zone Schedule 3 – Woodend Township Residential Precinct, Woodend Garden Setting Precinct and part of Woodend Bush Rural Living Precinct (NRZ3)
Environmental Significance Overlay Schedule 4 – Eppalock Proclaimed Catchment (ESO4)
Land Subject to Inundation Overlay (LSIO)	
Permit requirements	Clause 32.09-6 to construct two or more dwellings on a lot
Clause 42.01-2 to construct a building or construct or carry out works
Clause 44.04-2 to construct a building or construct or carry out works	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 21.13, 32.09, 42.01, 44.04, 55, 65 and 71.02   	
Land description	The land at 2-4 Davy Street, Woodend (site) is located on the north west side of High Street, bounded by Davy Street to the north-west and an un-named fire track to the south-east.  The site abuts the Five Mile Creek corridor and a range of recreational facilities to the north of the Creek.  The site comprises a total area of 6,778 square metres and is currently vacant.  It is located around 250 metres from the Woodend Town Centre and 780 metres from the railway station.	

Reasons
1	I delivered reasons for my decision orally at the conclusion of the hearing consistent with the Tribunal’s practice in the Short Cases List and this summary is provided containing the reasons for the decision.  
Procedural matter
2	Mr Todd Langtry and Mr Bradley Dean who were both original objectors to the permit application lodged statement of grounds late and sought to be joined to the matter.
3	Although Macedon Ranges Shire Council (Council) had no objections to the request, Rite Track Pty Ltd (applicant) did object to the joining of Mr Langtry and Mr Dean as parties in the matter.
4	I determined to refuse to join Mr Langtry and Mr Dean.  My reasons are that I found that this is a matter involving a review of a refusal to extend the time of a lawfully granted permit and that there is no reference in the legislation to any requirement that previous objectors should be notified of an application to extend a permit (even though there is the discretion to do so).
5	I find that this is a review of the refusal to grant an extension of time for completion of a development and not commencement.  It is not a review of merits or even of past actions that may or may not have enforcement issues.  I have read the statement of grounds which were lodged, and I consider they are unlikely to contribute to matters that will likely be aired and considered in this matter. 
Reasons
6	This matter involves an application made by the applicant under Section 81(1)(a) of the Planning and Environment Act 1987 seeking a review by the Tribunal of a decision by Council to refuse to grant an extension of time to complete the development allowed under Planning Permit No. PLN/2015/204.
7	The permit was issued on 11 January 2017 by the Tribunal (Langtry v Macedon Ranges SC [2016] VCAT 2201) and relates to land at 2-4 Davy Street, Woodend.  The permit allows for:
Construction of fourteen (14) double storey dwellings, construction of associated buildings and works (earthworks, roadworks and fencing), and removal of vegetation including two (2) non native trees within the Davy Street road reserve, construction of works within the Black Gum Reserve (outlet drains and reserve).
8	The permit included the following Condition:
Permit Expiry
70 The permit will expire if one of the following circumstances apply:
(a) 	The development is not commenced within two years of the date of this permit.
(b) 	The development is not completed within four years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within 6 months afterwards if the development has not commenced, or 12 months after if the development has commenced but not yet completed. 
9	The applicant lodged a request to extend the completion date in May 2020.  Council considered the request at its meeting on 16 December 2020 whereby, despite a supportive recommendation from Council Officers, Council determined to refuse the request.
10	Primarily, Council’s grounds for refusing the request to extend the completion of the development was that there has been a change in policy context and that the applicant is warehousing the permit.
11	I have been provided with a detailed description of the review site and its environs, the proposal, the planning scheme provisions and applicable policies.  It is not necessary for me to repeat that material other than to record that:
•	The subject land at 2-4 Davy Street, Woodend (site) is located on the north-west side of High Street bounded by Davy Street to the north-west.  The site abuts the Five Mile Creek corridor and a range of recreational facilities to the north of the Creek.  It is located approximately 250 metres from the Woodend Town Centre.
•	The site comprises a total area of 6,778 square metres.  It is currently vacant and has a fall towards Five Mile Creek.  Groups of exotic vegetation exist at the site’s edges.  A stand of pines towards the south east corner and clusters of poplar trees along the northern and south-western boundaries have been removed since the original approval.
•	To the north and east of the site are mostly single dwelling residential lots that are of regular proportions of around 900-1,000 square metres each that face either Davy Street or High Street.
•	The south-east of the site is in the Neighbourhood Residential Zone Schedule 2 – Woodend Historic Residential Precinct (NRZ2), while the north-west of the site is in the Neighbourhood Residential Zone Schedule 3 – Woodend Township Residential Precinct, Woodend Garden Setting Precinct and Part of Woodend Bush Rural Living Precinct (NRZ3).  The whole of the site is also affected by the Environmental Significance Overlay Schedule 4 – Eppalock Proclaimed Catchment (ESO4) and the Land Subject to Inundation Overlay (LSIO).
12	Council outlined in submissions that, since the permit was granted, Amendment C98 to the Macedon Ranges Planning Scheme was introduced on 15 June 2017 which rezoned the site from the General Residential Zone (GRZ) to partly NRZ2 and NRZ3 and relevantly amended policy at Clause 21.13 and introduced the Woodend Town Structure Plan & Neighbourhood Character Study, May 2014 as a reference document in the planning scheme.
13	Balancing the principles established by the Supreme Court in Kantor v Murrindindi Shire Council (1997) 18 AATR 285 (Kantor), Council submits the change in planning controls since the permit was granted weighs strongly against extending time, indicating that the zoning emphasis has now shifted in favour of greater weight to be given to neighbourhood character considerations.
14	I also note that flood risk is an issue, which although was considered at the time when the permit was granted, may be subject to change with a forthcoming new flood study for Woodend.
15	Whilst I acknowledge, this, I note the support provided by the North Central Catchment Management Authority (NCCMA), a recommending referral authority under the Macedon Ranges Planning Scheme who say, having considered information from Mr Bishop, the applicant’s expert flooding witness from Water Technology and the draft Woodend Flood Study consider that it is unlikely flood risk on the site will be increased and previous flood modelling undertaken to assess the appropriateness of development on the site is still relevant.  
16	The NCCMA also state that with respect to the 2019 Guidelines for Development in Flood Affected Areas, the existing flood risk on the site does pose some issue regarding risk but consider the applicant has been able to demonstrate that the safety criteria for new development as per the guidelines can be achieved without adversely affecting neighbouring properties.  Finally, regarding climate change, a freeboard of 600mm above the existing 1% AEP flood levels will highly likely mean the development will be sited above the worst-case climate change scenario flood levels.  I accept that the NCCMA offer no objection to the permit extension of time. 
17	I have heard the submissions from Council and the applicant, and I note that the decision to be made here is whether the life of a lawfully granted permit should be extended.  The accepted principles for considering this type of application are set out in Kantor as well as in Juric v Banyule CC [2002] VCAT 396 and summarised in Hotel Windsor Holdings Pty Ltd v Minister for Planning [2016] VCAT 351 for those extensions of time relating to completion as distinct from commencement and for which the effect of a change in planning controls or policy may be less relevant.
18	In this case the development has commenced which, although only relates to tree removal, has been recognised by Council.  
19	The applicant says the changes to zoning and policy do not result in prohibition of the development that was permitted.  For example, both NRZ schedules include height limits of 9 metres or two storeys.  Measured from natural ground level the proposed dwellings would have a maximum building height of approximately 10.66 metres.  However, Clause 32.09-10 relating to building heights if the land is subject to inundation requires building heights measured from the minimum floor level determined by the relevant floodplain management authority.  In this case, Council recognises that the building heights are in fact, 8.8 metres approximately.
20	I also note that the change to the NRZ and their respective schedules still include considerations of neighbourhood character which remain relevant.
21	Flooding is not an issue given the evidence of Mr Bishop and the response from the NCCMA and warehousing of the permit is not realistic given the commencement of works by the applicant with tree removal, endorsement of plans including a landscape plan and waste management plan, consolidation of tiles and appointment of building contractors and other activity.
22	The applicant has said that illness has delayed completion and no doubt limitations due to the COVID-19 pandemic may well have contributed to slowing the project down.
23	Having considered these arguments, I find it appropriate to grant an extension for completion.
24	I note that the change in zoning and policy do not result in prohibition of a development such as what has been permitted and the likelihood of approval if a fresh application were to be made would be a discretionary one. 
25	I note the plans that have been endorsed by Council under the permit show the development of the 14 double storey dwellings are concentrated at the Davy Street end of the site, they are located on a lot of 6,778 square metres or one dwelling per 485 square metres.  This is a lower density than one would often see in a medium density form of residential development (I make these comments noting that lot density associated with say a subdivision is not what has been permitted and is not before me.  That is obviously for some future determination to be considered).  
26	The Tribunal in 2016 considered that the proposal achieved a built form outcome consistent with the strategic objectives for Woodend as outlined in C98, which appear to be generally consistent with what is now in the Macedon Ranges Planning Scheme.  A large part of the site, to remain undeveloped as open space, is proposed on the site closer to High Street that is associated with the floodplain of the Five Mile Creek.  This enhances the prospect of built form nestled within a landscaped and open environment and makes a significant contribution to preserving the landscape qualities of the neighbourhood and sense of openness of the neighbourhood character of the area.  The location of the site close to sporting and recreational open space also assists in respecting neighbourhood character as was determined when the permit was granted.  
27	Regarding, the other principles set out in Kantor I find that:
•	The applicant is not seeking to ‘warehouse’ the permit given that this is the first extension of time request and one that relates to completion, as distinct from commencement.  Arguments about the site being on the market and demonstrable of warehousing have little weight in my considerations as it is speculative of what may or may not happen.
•	Restrictions that have been put in place during the COVID -19 pandemic have made it more difficult to commence and complete development projects within the same timeframes that apply when such restrictions do not apply.
•	The permit has technically commenced, and the applicant made the request to extend the life of the permit promptly, as was the lodging of this application for review.  These are all signs that the applicant wishes to pursue the permission granted.
•	The original time frame for the commencement and completion of development as set out in Condition 70 is not unusual for a permit of this type, but neither is the granting of the first extension of time.
28	I find the approved development will support other provisions in the planning scheme including the purposes of the zone and policies around residential development given the location of the site close to recreational, natural and town centre services in Woodend. 
29	For the above reasons I will grant an extension of time of a further two years for the completion which I consider appropriate given the constraints, delays and uncertainties with building and construction including the additional effects of a pandemic.

Christopher Harty
Member