In the recent decision of Mornington Peninsula SC v Premier Homes Pty Ltd (Red Dot) [2021] VCAT 94, the Tribunal considered an application made by Mornington Peninsula Shire Council (Council) for declarations as to whether six dependent person units (DPUs) are ‘movable buildings’ for the purposes of the Mornington Peninsula Planning Scheme (Scheme).
The decision is significant as the Tribunal:
- provides guidance as to how the definition of a DPU and a ‘movable building’ as set out in the Victorian Planning Schemes (VPS) should be practically applied in the absence of any regulatory criteria; and
- considers whether regulatory change is required.
BACKGROUND
Under clause 73.03 of the VPS, DPUs are defined as ‘a movable building on the same lot as an existing dwelling and used to provide accommodation for a person dependent on a resident of the existing dwelling’. To be a ‘movable building’, a DPU must be ‘designed to be moved from place to place on more than one occasion‘ as set out in clause 73.01.
Whilst a planning permit is often required for a second dwelling on a lot, it will not typically be required for DPUs. Under clause 62.02 of the VPS, a planning permit is not required for buildings and works associated with DPUs as they typically provide accommodation for persons afflicted by medical, economic or social disadvantages (Exemption).
When DPUs were introduced into the VPS they were often modest 40m² ‘granny flats’, however, modern DPUs have swelled up to 100m² and may include sizeable living areas, kitchens, multiple bedrooms, bathrooms, and verandas.
In this matter, Council contended that lengthier construction and deconstruction of modern DPUs means they are no longer ‘movable’. Further, Council submitted that the DPU planning permit Exemption is being pushed beyond its intended limits with the distinction between DPUs and second dwellings becoming increasingly blurred.
Council was unable to satisfy its burden that the six dwellings were not ‘designed to be moved’. Consequently, the Tribunal dismissed the application and opted to make no declarations.
WHAT IS A ‘MOVABLE BUILDING’?
The Tribunal found that the meaning of the phrase ‘designed to be moved from place to place on more than once occasion‘ in the definition of a ‘movable building’ should be determined without reference to a rigid test as no strict criteria are provided in the regulatory control.
However, the Tribunal:
- noted evidence about the design process and intent, nature of building parts, levels of wastage, construction techniques, and the level of retrofitting may be relevant in evaluating whether a DPU design enables the building ‘to be moved’ but will not be determinative as a set of fixed criteria;
- indicated that more weight is to be given to the design of key structural and servicing components rather than minor fittings and fixtures; and
- determined that a DPU must be designed so that it is capable of being located on at least three separate sites with two processes of disassembly, transportation, and reassembly to meet the definition of movability ‘on more than one occasion’.
IS REGULATORY CHANGE REQUIRED?
The Tribunal noted two areas of significant disconnect between VPS policy and the practical application of the DPU Exemption being:
- the emphasis on whether a DPU is ‘designed’ to be moved in the regulatory definition as opposed to whether it is constructed in that way and the difficulties this definition presents in establishing clear and deliberate design elements; and
- the existing building permit process in failing to allow for a clear inquiry as to whether a building has been ‘designed to be moved’.
Without advocating for any particular change, the Tribunal referred a copy of this decision to the Minister for Planning seeking further consideration as to whether regulatory reform may be required.
IMPLICATIONS OF THE DECISION
The implications of this decision are that:
- the Tribunal must have regard to the totality of evidence and there are no strict criteria in determining whether a DPU is a ‘movable building’.
- other local government bodies questioning the legality of DPUs may be required to opt for section 149A declarations rather than enforcement proceedings; and
- potential regulatory reform may be required to how the definition of a ‘movable building’ is framed and the lack of specificity required by the current building permit process.
HOW CAN WE HELP YOU?
HWL Ebsworth Lawyers have extensive experience advising and representing developers, affordable housing providers, and local government bodies. Please do not hesitate to contact us to discuss how the implications of this decision may affect your matter.
This article was written by James Lofting, Partner, David Vorchheimer, Partner, and Sonia Narduzzo, Law Graduate.
