Both the Supreme Court of Victoria and the Victorian Civil and Administrative Tribunal (VCAT) have recently highlighted the power of a planning permit in two important decisions to the planning law regime.
Planning Permit v Owners Corporation Rules: The Supreme Court Decision – Elwick 9 v Freeman  VSC 234
An occupant and member of the Owners Corporation of a residential building which contained a gym initiated proceedings in VCAT alleging that excessive noise and vibration emanating from the gym caused a nuisance in breach of the Owners Corporation Rules (Rules).
VCAT ordered compliance with the Rules and restricted the gyms hours of operation to reduce noise. However, the hours of operation imposed by the Tribunal were inconsistent with the opening hours authorised under the relevant Planning Permit.
The Supreme Court decided that the hours of operation permitted by the Planning Permit were to take percedence over the Owners Corporation rules, therefore reversing the Tribunal’s decision.
The Court held that the planning permit conferred a right that was protected by Section 140(b)(v) of the Owners Corporation Act (the OC Act). That section provides that a rule of a Owners Corporation is of no effect if it is inconsistent with any other Act or Regulation.
A planning permit should therefore be given primacy over any inconsistent Owners Corporation rules.
Planning Permit v Prohibited Use and Development: The VCAT Decision – Alkero Development Pty Ltd v Stonnington CC  VCAT 1120
A permit was issued by the Stonnington City Council in 2014 to allow demolition of buildings and construction works for an aged care facility. Following the grant of the permit, a number of amendments to the planning scheme occurred which meant that the development approved by the permit would no longer be permitted if applied for now.
An amendment to the use and development approved by the permit was sought under section 87A of the Planning and Environment Act 1987 (P&E Act). Both the amendments to the use of the land and to the approved built form were prohibited under the amended planning scheme.
Section 28(2)(e) of the Interpretation of Legislation Act 1984 provides that where a subordinate instrument or a provision of a subordinate instrument is amended, the amendment shall not, unless the contrary intention expressly appears, affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision. Consequently, the Tribunal held that 28(2)(e) creates an accrued right to use and develop land under a permit.
From this starting point VCAT then considered whether a permit can be amended to allow a prohibited use or development.
In relation to use of land, VCAT’s findings are consistent with the line of authority that the ability to amend a permit does not extend to allowing a new prohibited use. The extent of any accrued right protected by s28(2)(e) is restricted to the use approved at the time the Scheme was amended.
In relation to the right to develop land, VCAT noted that under s28(2)(e) a permit may create an accrued right to develop land in a way that is now prohibited. VCAT found that amendments to developments that do not exceed this accrued right, even though prohibited by the Scheme, could be permitted; whether they should be permitted is to be assessed on the merits. (In this case the VCAT decided that the amendments should not be permitted).
The Supreme Court decision is relevant to Owners Corporations and Council’s. Owners Corporations need to have regard to relevant planning permits when determining rules and in the case of any planning permit being issued affecting Owners Corporation land, ensure that the conditions of that permit are consistent with any owners corporation rules.
The VCAT decision is particularly important to Council’s as any amendments to permits cannot exceed an accrued right of development arising under Section 28(2)(e) of the Interpretation of Legislation Act 1984.
How can we help you?
HWL Ebsworth advise and represent developers, owners and Councils in relation to all stages of planning permit applications, including applications for a planning permit and applications to amend, review or object to a planning permit. Please do not hesitate to contact us to discuss the implications of these decisions.
This article was written by James Lofting, Partner and Sarah Roberts, Law Graduate.
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