A new Victorian Civil and Administrative Tribunal, VCAT, hearing has been ordered by the Supreme Court of Victoria to review the rejection of a permit to develop dwellings on 21-27 George Street, Kilmore.

Mitchell Shire Council rejected the application to build 12 new dwellings on George Street land. The decision was upheld in a VCAT hearing on June 2, 2022.

The developer appealed to the Supreme Court, stating it was not given the opportunity to submit evidence or respond to findings made during the original VCAT tribunal member’s unaccompanied, independent investigation.

The findings were used in the original hearing that supported council’s application rejection.

Nobody at the initial VCAT hearing had an issue with investigation occurring or the process.

Supreme Court Trial Division Judge Stephen Andrew O’Meara heard the appeal.

He said with ‘considerable hesitation, and not without regret’ he was satisfied there was a realistic possibility a different outcome might have occurred if the developer could have responded to the inspection’s findings.

Mr O’Meara said he was ‘troubled’ by the thought even if the findings had been raised ‘the outcome for the proceeding would have been no different’.

He also said in his opinion, hearing representatives should have been aware potential inspection findings could confirm issues already raised in the hearing, which did in fact occur.

This led Mr O’Meara to not accept the developer was ‘wholly blindsided’ by the findings.

“The representatives of the parties, particularly the representative of the [developer], should have been alert to the potential [findings] and should have raised it with the tribunal member when the issue of the inspection was discussed. It is unfortunate that did not occur,” he said.

However, Mr O’Meara said he could not conclude that just because considerations about the risk of the inspection’s findings impacting on the hearing’s outcome should have been considered means the developer should be assumed to have ‘actually thought’ about the risk.

He said the issues found during the inspection could not be said to have been necessarily assumed by representatives during the hearing based on submissions made in the VCAT hearing, therefore not allowing them to address them during formal proceedings.

Judge O’Meara said it seemed to be at least possible some of these matters could or should have been further developed or addressed, therefore accepting the developer was deprived the opportunity to respond to the findings.

Mitchell Shire Council chief executive Brett Luxford said council were aware of the Supreme Court’s decision.

“As this matter is before VCAT, it would be inappropriate for council to comment at this time,” he said.

Kilmore and District Residents and Ratepayers Association were an objector to the development. President Vyvienne Whitehurst said developers were consistently ‘moving the goal posts’ with no thought for residents and livelihoods undertaken in the equine precinct.

“It is distressing when council refuse the building application, then VCAT refuse the application then the developers go to the Supreme Court and the result is that it will go back to VCAT at a date to be set and we do it all again,” she said.

“Horses and high density housing don’t mix. It becomes a health and safety issue. [The property at] 21-27 George Street is located in an equine precinct and if these multiple houses are permitted to be built the bedrooms will be about two metres from racehorses being domiciled.”

Ms Whitehurst said constant noise, smell, rodents and early morning training noise were some of the issues that would disrupt adjoining properties.

“It would be an unsatisfactory situation for any new resident and unsatisfactory for the horse trainers who make their living training racehorses from this street,” she said.

“We hope the developers move on as George Street is not the right place for multiple houses interspersed with training racehorses. One would think that is common sense.

“There is plenty of land available outside the equine precinct for development.”