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VCAT update: extension to planning permit granted despite Better Apartment Design Standards

Gagliano v Moreland CC [2018] VCAT 527

VCAT recently granted an extension to a planning permit for a seven storey building, despite non-compliance with the recently introduced Better Apartment Design Standards (BADS).

James Lofting of HWL Ebsworth Lawyers successfully represented the applicant.

The decision is significant as it provides clear guidance on the weight to be afforded to non-compliance with the BADS when considering extension requests.

Non-compliance with the BADS

A planning permit for the proposed 7 storey apartment development was issued in 2011. Two extensions were subsequently granted, and the applicant sought a further extension that was refused. Moreland City Council submitted that the introduction of BADS represented a significant change in planning policy that warranted the refusal of the extension, citing the proposal’s non-compliance with standards relating to bedroom dimensions and access to daylight.

Clause 58 is not a significant change in planning policy for the purpose of an extension request

When considering a request to extend a planning permit, it is the Tribunal’s established practice to refer to the principles outlined by the Supreme Court of Victoria’s in Kantor v Murrindidi Shire Council (1997) 18 AATR 285. While no single factor is determinative, a significant change in planning policy is one factor that weighs against the grant of an extension.

In finding that the BADS are of limited relevance as a change in planning policy, the Tribunal had regard to the transitional provisions that apply to Clause 58. The effect of the transitional provisions is that the BADS do not apply to a permit that was applied for prior to 13 April 2017, or to an amendment of such a permit.

The transitional provisions do not expressly refer to requests to extend time. Nevertheless, if an extension were granted, the approved development would enjoy the benefit of the transitional provisions in relation to any request to amend the permit. The decision built on the Tribunal’s earlier finding in W Property Group Pty Ltd v Boroondara CC [2017] VCAT 740 that the BADS are not relevant to an amendment pursuant to sections 87 or 87A of the Planning and Environment Act 1987 of a planning permit that has the benefit of the transitional provisions.

As such, the Tribunal found that non-compliance with the BADS was not a reason to refuse the applicant’s request to extend the permit.

Implications

Landowners who enjoy the benefit of a permit that was applied for prior to 13 April 2017 should be aware that:

  • Non-compliance with the BADS, including internal amenity standards may not be fatal to a request to extend a planning permit; and
  • A request to extend a permit will continue to be assessed having regard to the Kantor principles, none of which are determinative in their own right.

Planning officers should be aware that, when assessing a request to extend a permit that has the benefit of the transitional provisions, the weight to be afforded to Clause 58 as a change in planning policy should be significantly reduced.

How can we help you?

HWL Ebsworth Lawyers has advised extensively on permit extension applications and appeals in relation to a range of developments at various scales. Please do not hesitate to contact us to discuss the implications of this decision for your development.

This article was written by Mark Bartley, Partner and Alex Gelber, Solicitor.

Mark Bartley

P: +61 3 8644 3712

E: mbartley@hwle.com.au

James Lofting

P: +61 3 8644 3414

E: jlofting@hwle.com.au

David Vorchheimer

P: +61 3 8644 3421

E: dvorchheimer@hwle.com.au

Important Disclaimer: The material contained in this publication is of a general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.