A recent VCAT case highlights a significant established principle that continues to be overlooked by inexperienced permit applicants.
In Box v Moreland CC (Red Dot) [2014] VCAT 246 the dwelling owner found themselves facing enforcement proceedings after undertaking work that was not approved by a planning permit.
The dwelling had originally been constructed and subdivided under an earlier planning approval. Sometime after that original approval the contentious works were undertaken.
In an attempt to avoid further proceedings, the applicant submitted to the Tribunal that the subject site was greater than 300m2, no permit trigger existed for the works within the Moreland Planning Scheme and that the works could be undertaken as of right.
The applicant was correct in concluding that no permit trigger existed within the Moreland Planning Scheme. However, the works could not be carried out as-of-right due to the fact that Condition 2 of the early planning permit, allowing construction of two attached double storey dwellings in accordance with the endorsed plans, required that;
- The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Permit applicants will be familiar with this type of condition. It is routinely included on planning permits. However, the long lasting effects of this type of condition remain underappreciated.
In response to the applicant’s submissions the Tribunal reiterated the principles established by the Supreme Court in Benedetti v Moonee Valley City Council [2005] VSC 434.
In essence this principle states that:
i. Where a planning permit is issued (like the original permit in Box);
ii. And that land continues to enjoy the ‘benefit’ of that permit (like the construction of the approved dwellings in Box);
iii. Then any ‘burden’ contained within the permit also continues to apply.
The relevant ‘burden’ in the Box case is the requirement under Condition 2 that the written consent of the Responsible Authority be obtained prior to any alteration to the development as shown on the endorsed plans.
In this instance the Tribunal held that the works did require an amendment to the previously endorsed plans, to the satisfaction of the Responsible Authority, and could not be undertaken as of right.
This is a very common issue and permit applicants need to be aware that previous planning permits continue to restrict the use and development of the land they affect, as long as the benefit of that permit is being enjoyed.
We highly recommend applicants search the planning history of project sites to ensure you understand what skeletons lie within the closet.
Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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