Moyne Shire Council and Glenelg Hopkins CMA in VCAT battle

A three-day hearing in the Victorian Civil Administrative Tribunal (VCAT) didn't prove sufficient to resolve the stoush, with a flurry of late queries on the final day prompting the whole matter to be deferred for more than two months.

The saga started when two similar planning applications for residential developments at 194 and 196 Griffiths Street, Port Fairy came before Moyne Shire councillors in June 2022.

The council's planning experts advised the proposed developments on low-lying blocks created an unacceptable flood risk and should be rejected. But all seven councillors disagreed with the expert advice and voted to grant both permits.

In response the GHCMA - as the expert "referral authority" for flood risk in Moyne Shire planning matters - decided to take the council to VCAT. This meant the council planning experts who had recommended to reject the permit would have to argue at the tribunal for it to be granted.

The catchment authority said it was concerned the council hadn't fully taken its advice into consideration and that granting the permit could "increase the risk to life in the event of a flood". Cr Karen Foster said granting the permit was simply a matter of "common sense", while Cr James Purcell said the council didn't have to follow the authority's advice.

The two adversaries met for a practice day hearing at the tribunal over 196 Griffiths Street in August 2022, then again for a compulsory conference in December, where there was a final failed attempt to compromise before the matter went to a full hearing in early March. The council declined to say how much it had had to pay so far for legal representation.

When the three-day hearing ran over time, both sides said they weren't to blame for the resulting delay. Council economy and place director Jodie McNamara said the council hadn't asked for the deferral.

"It has been deferred, not based on council's request, but the applicant's lawyer and the VCAT chair," Ms McNamara said. "This was due to the CMA presenting really late unconsidered evidence - as of yesterday, during closing arguments."

The GHCMA said that was incorrect. "It was not the applicant's lawyer (the CMA is the applicant) it was the respondent's (developer's) lawyer querying the CMA's response to their earlier queries that has led to the deferral," a spokesperson said.

The VCAT adjudicator, or "member", scheduled a one-hour online hearing for March 20 to try to resolve the remaining questions quickly, but that also failed. The case has been rescheduled for a new hearing on May 11.

Before the dispute over 194 Griffiths Street could come to VCAT the developer offered to "set aside" or relinquish the planning permit granted by the councillors.