VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P434/2020
Permit Application no.YR-2019/125 	

Applicant	Linh Vu	

Responsible Authority	Yarra Ranges Shire Council	
Respondents	Geraldine Rosier & Others	

SUBJECT LAND	21 Alice Street
SASSAFRAS VIC 3787	

HEARING TYPE	Hearing 	

DATE OF HEARING	4 May 2022	

DATE OF ORDER	12 May 2022	

CITATION	Vu v Yarra Ranges SC [2022] VCAT 501	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Drawing numbers:	Sheets 01–13 (inclusive)	
•	Revision:	J	
•	Dated:	09/05/2021	
2	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by amending the description of the application to the following:
•	To carry out earthworks with a height or depth of more than one metre, being the earthworks associated with the pond (item 2 on the application plans) and dam (item 4 on the application plans) in the Green Wedge A Zone.
•	To remove, destroy or lop vegetation, including trees numbered 3, 11, 16, 17, 18, 48, 51 and 52 on the application plans, in the Significant Landscape Overlay – Schedule 9.
•	To construct or carry out works associated with the use as accommodation being the soccer field (item 3 on the application plans) in the Bushfire Management Overlay.
•	To remove, destroy or lop vegetation, including trees numbered 3, 11, 16, 17, 18, 48, 51 and 52, under clause 51.03 (Upper Yarra Valley and Dandenong Ranges regional Strategy Plan) of the Yarra Ranges Planning Scheme.
•	To construct or carry out earthworks within two metres of vegetation that is subject to a planning permit under the provisions of clause 51.03, to construct or carry out earthworks more than one metre in height or depth, and to construct or carry out earthworks located beneath the canopy (drip line) of indigenous vegetation over 5 metres in height where a planning permit would be required to remove the vegetation, under clause 51.03 (Upper Yarra Valley and Dandenong Ranges regional Strategy Plan) of the Yarra Ranges Planning Scheme.
•	To remove, destroy or lop native vegetation, including dead native vegetation, including trees numbered 3, 11, 16, 17, 18, 48, 51 and 52 on the application plans, under clause 52.17 (Native vegetation) of the Yarra Ranges Planning Scheme.
Decision set aside and application remitted
3	In application P434/2020 the decision of the responsible authority to refuse to grant a permit in application YR-2019/125 is set aside.
4	Permit application YR-2019/125 is remitted for reconsideration by the responsible authority in accordance with the following directions:
(a)	reconsider the application as if the application has been amended under section 57A of the Planning and Environment Act 1987 (the PE Act); including but not limited to:
i	determining whether to request further information under and in accordance with section 54 of the PE Act;
ii	determining whether notice of the amended application should be given under and in accordance with section 57B of the PE Act;
iii	giving a copy of the amended application to every person or body that the planning scheme specifies as a referral authority for applications of that kind, under and in accordance with section 57C of the PE Act; and
iv	any other consequential processes under the PE Act.
Hearing vacated
5	The hearing day listed for 5 May 2022 is vacated.

Sarah McDonald
Member			

Appearances
For applicant	Daniel Bowden, SongBowden Planning	
For responsible authority	Peter Whebell, Yarra Ranges Shire Council	
For respondents	Geraldine Rosier	

  Reasons
1	Linh Vu (the applicant) sought a planning permit to undertake ‘buildings and works to construct garden bed structures and associated earthworks’ (the proposal) on the property at 21 Alice Street, Sassafras (the review site).  
2	The Yarra Ranges Shire Council (the responsible authority) decided to refuse to grant a planning permit for the proposal.  The applicant sought this review of that decision under section 77 of the Planning and Environment Act 1987 (the PE Act).
3	Geraldine Rosier and other residents of nearby properties who object to the proposal are joint respondents to this application.
4	Based on the permit application and application for review documents, the permit application sought permission for five elements comprising, in summary:
i	earthworks to create an orchard area and construction of a ‘garden cover’ comprising a timber-framed, wire-net enclosure (item 1 on the application plans);
ii	earthworks to create a small pond at the front of the land (item 2 on the application plans);
iii	earthworks to create a flat soccer field (item 3 on the application plans);
iv	earthworks to create a pond at the rear of the land (item 4 on the application plans); and
v	earthworks to create a raised garden bed with planter boxes and construction of a ‘garden cover’ comprising a timber-framed, wire-net enclosure (item 5 on the application plans).
5	While the original permit application plans also show a bike track and refer to landscaping along the track, it has been confirmed by the applicant that the bike track does not form part of the permit application.  This is consistent with the responsible authority’s delegate report, which did not include the bike track in the description of the proposal.
6	The buildings and works have already been undertaken and the permit application seeks retrospective approval for them.
7	The review site is zoned Green Wedge A Zone – Schedule 1 (GWAZ1), under the Yarra Ranges Planning Scheme (the Scheme).  The Significant Landscape Overlay – Schedule 9 (SLO9), Erosion Management Overlay (EMO), and the Bushfire Management Overlay (BMO), also apply to the review site.  The site is also in a designated bushfire prone area.
8	The review site is subject to the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan pursuant to the requirements of Part 3A of the PE Act and clause 51.03 of the Scheme.
9	The first hearing for this proceeding was held on 22 April 2021.  At that hearing various matters were discussed as preliminary matters.  These included clarifying what the application was seeking permission for, the relevant permit requirements/triggers under the Scheme, and whether the application was required to be referred to referral authorities, particularly the Country Fire Authority.  Before commencing to hear the merits of the application the hearing was adjourned, and procedural orders issued.  The procedural orders provided for the submission of further information and actions to be undertaken prior to a further hearing to consider the merits of the application.
10	Subsequently, at various times through 2021 and 2022, several Practice Day Hearings were held, further procedural Orders issued, and further information was provided by the parties.  The further information provided included, among other things, amended plans, and reports and witness statements relating to tree assessments undertaken by arborists for both the applicant and the responsible authority.
11	The hearing to consider the merits of the application was scheduled for 4 and 5 May 2022.  Prior to this hearing further information was filed by the parties.  This included, among other things, a native vegetation impact assessment report (including a native vegetation removal report) and a geotechnical assessment report prepared for and to be relied on by the applicant as part of submissions at the hearing.  In conjunction with filing these reports the applicant foreshadowed they sought to amend the application to include additional permit triggers relating to the EMO and removal/destruction/lopping of vegetation.
12	Prior to the hearing the responsible authority raised procedural issues regarding the further information provided by the applicant, including there being insufficient time for the responsible authority to fully review and consider the information and the information not being satisfactory to meet the requirements of the Scheme.
13	These matters were addressed as preliminary matters at the hearing on 4 May 2022.  In addition to these matters other preliminary matters addressed included:
i	The amended plans (Revision J plans dated 09/06/2021) filed by the applicant in response to a previous procedural Order had not been formally substituted for the permit application plans.

ii	The applicant’s request to amend the permit application to include additional elements and permit triggers had not been undertaken in accordance with the VCAT Practice Note – PNPE9 Amendment of Planning Permit Applications and Plans (as amended on 1 July 2020).
iii	Confirmation that the bike track does not form part of the permit application the subject of this proceeding.
iv	Confirmation by the applicant and the responsible authority that they consider, and my subsequent ruling that, the garden covers (crop protection structures) that formed part of the original permit application are exempt buildings and works under clause 62.02-1 of the Scheme.
v	Confirmation by the applicant and the responsible authority that the proposed works that form part of this application do not trigger a permit requirement under the EMO, which applies to only part of the review site.
vi	Acknowledgement by the responsible authority that the proposal (in relation to the soccer field, being item 3 on the application plans) does trigger a requirement for a permit under the BMO and would need to be referred to the Country Fire Authority.
14	Having considered the submissions of the parties on these various matters I sought the parties’ views on whether the decision of the responsible authority should be set aside, and the application remitted to the responsible authority for reconsideration.  The parties agreed this would be an appropriate course of action.
15	Having considered the information before me, including the submissions and documents filed in advance of the hearing and oral submissions of the parties at the hearing, and having regard to matters of natural justice and procedural fairness, I have determined the following:
i	that the application should be amended to:
o	substitute the Revision J plans for the permit application plans; and
o	amend the description of the application to include the additional permit requirements regarding the removal/destruction/lopping vegetation;
ii	to set aside the decision of the responsible authority to refuse to grant a permit; and
iii	to remit the application for reconsideration by the responsible authority.

16	In remitting the decision I have determined to include directions that require the responsible authority to consider whether further information is required and notice of the amended application should be given, and to refer the application to any referral authority as may be required under the Scheme.

Sarah McDonald
Member