A restatement of the relevant case law in respect of relevant considerations

The recent decision of the Tribunal in Warrandyte Brewing Co. Pty Ltd v Manningham CC [2026] VCAT 485 (Warrandyte Brewing Co) reinforces the previous authorities on relevant considerations and the application of the ‘National Trust’ principle. It also clarified that a Cultural Heritage Management Plan does not need to be prepared where there is no change in the use for the purpose of the Aboriginal Heritage Regulations 2018.

The Tribunal’s preliminary hearing decision in Warrandyte Brewing Co. Pty Ltd v Manningham CC [2026] VCAT 485 represents a firm restatement of the application of the ‘National Trust’ principle and confirmation that the scope of a planning discretion is set by the purpose for which that discretion was conferred and cannot be broadened by the general decision guidelines of clause 65 of the Planning Scheme or section 60 of the Planning and Environment Act 1987.

Warrandyte Brewing Co  background

The context of this case was unique in that our client, the permit applicant, sought permission to amend an existing planning permit to change the use permitted from “shop (art and craft sales)” to “shop and retail premises (food and drink premises)”. Importantly, there was no change proposed to permit conditions, and no buildings and works were proposed.

In terms of the planning context, the land was located in the Urban Floodway Zone, it was affected by a breadth of overlay controls, being the:

• Land Subject to Inundation Overlay,
• Environmental Significance Overlay;
• Significant Landscape Overlay;
• Bushfire Management Overlay;
• Heritage Overlay Schedule 191 (Warrandyte Township Heritage Precinct).

The land was also within an area of Aboriginal cultural heritage sensitivity by virtue of its proximity to the Yarra River.

Relevantly, both the existing use and the proposed use were prohibited in the Urban Floodway Zone. The only way that a permit for these uses can issue is pursuant to clause 43.01-9 (i.e. the Heritage Overlay), which allows prohibited uses to be permitted in accordance with that provision.

Council refused the amendment application on five grounds, all of which related to flood hazard and risk. Melbourne Water was also notified of the application (noting it had no status as a referral authority because the application arose under the Heritage Overlay and not the Urban Floodway Zone because the use was prohibited under that control).

An application for review was then filed at the Tribunal on behalf of our client, the permit applicant.

The VCAT proceeding

Two questions of mixed fact and law were referred to a preliminary hearing being:

1. whether a Cultural Heritage Management Plan  was required to be prepared for the application; and
2. whether the flooding grounds were relevant to the amendment application.

The Tribunal determined that the answer to both questions was ‘no’.

We elaborate below.

Cultural Heritage Management Plan Regulation 7 of the Aboriginal Heritage Regulations 2018 requires a Cultural Heritage Management Plan where the activity area is in an area of cultural heritage sensitivity and the activity is a high impact activity. Regulation 58(1) of the Aboriginal Heritage Regulations 2018 makes the use of land for a purpose specified in regulation 46(1)(b) of the Aboriginal Heritage Regulations 2018 a high impact activity where a statutory authorisation is required to change the use of the land for that purpose.

Regulation 46(1)(b)(xxiii) specifies “retail premises”. It does not specify “shop”, and it does not specify “food and drink premises”. Under clause 73.04 of the Planning Scheme, both of those terms nest under “retail premises”.

Our client  argued that the land was used as a retail premises and will continue to be used as a retail premises. In that way, there is no change in the purpose of the use for the purposes of regulation 46(1)(b) of the Aboriginal Heritage Regulations 2018, so no statutory authorisation is required to change it, meaning regulation 58 of the Aboriginal Heritage Regulations 2018 is not engaged.

The Tribunal accepted this argument and made the following relevant observations:

• Where regulation 46(1)(b) of the Aboriginal Heritage Regulations 2018 does drill down into individual uses nested under a broader term, for example, camping and caravan park, corrective institution, residential building, residential village and retirement village all sit under accommodation, this demonstrates  that the drafter was purposefully granular in certain circumstances and elected not to be with retail premises (at [39]).
• Applying section 35 of the Interpretation of Legislation Act 1984, a construction promoting the purpose of the Aboriginal Heritage Act 2006is preferred. No useful purpose is served by requiring a Cultural Heritage Management Plan where one retail use inside an existing building is swapped for another retail use on that same footprint, with no other change to the permission (at [40]).

Relevant considerations

Council and Melbourne Water each argued that the first purpose of the Heritage Overlay (which is “to implement the Municipal Planning Strategy and the Planning Policy Framework”), the clause 65 decision guidelines and section 60 of the Planning and Environment Act 1987  together opened up a merits assessment of flood hazard and flood impact.  In making those arguments, the decision of the Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27 (1045 Burke Road) was cited and both sought to distinguish the recent line of Tribunal authority on the basis that none of it dealt with the Heritage Overlay, unlike the Court of the Appeal decision in 1045 Burke Road which did relate to a permission under the Heritage Overlay.

The Tribunal preferred the submissions of our client which relied on recent Supreme Court and Tribunal decisions all of which found that the scope of relevant considerations is to be ascertained by reference to the purpose for which the discretion has been conferred, and not broadened by reference to the general decision guidelines at clause 65 or sections 60 or 84B of the Planning and Environment Act 1987.

In terms of this case specifically, the avenue created by the Heritage Overlay to enable this permission  has the purpose of  enabling the re-adaptation of heritage buildings in specific circumstances. The Tribunal found that in the context of that purpose it is almost impossible to imagine a responsible authority assessing the purpose and decision guidelines of the Urban Floodway Zone — which prohibits the proposed use outright — and concluding the use is acceptable. Clause 43.01-9 exists precisely as a carve-out to allow a prohibited use and effectively exempt consideration of the purposes and decision guidelines of the control pursuant to which that use is prohibited. It was argued by our client, and accepted, that if the full policy framework were enlivened every time it was used, the exemption would practically never operate.

The Tribunal ultimately declared that neither of Council’s nor Melbourne Water’s grounds, all of which related to flood hazard and risk, were relevant to the application.

It follows from this decision that it is critical to understand the precise permission under which a planning permit is sought at the outset as this will have a bearing on the scope of the discretion to be exercised by a decision maker. Where a decision is made based upon reasons which stray beyond the purpose of the permission sought, those aspects of the decision may be irrelevant and/or unlawful having regard to the relevant case law on the point.

Best Hooper is a whole of property advisory law firm. Its approach ensures landowners and developers can be informed on how best pursue applications for planning permits for use and development of land. Early strategic legal input is beneficial in determining the most appropriate use and development of land, and strategy to get there.