Are Common Land Applications Futile?

A number of Supreme Court and Victorian Civil and Administrative Tribunal (“the Tribunal”) decisions consider the principles of futility; should a planning permit application be considered where its approval or subsequent implementation is so remote that it should instead be dismissed. This issue sometimes arises where the other parties to common land in an owners corporation (previously known as “body corporate”) or the owners corporation itself, have objected or refused consent requirements.

The leading case on futility is the Supreme Court decision Port Phillp CC v Hickey [2001] VSC 129. In this case, the permit applicant was one member of a Body Corporate where other members did not consent to development on the common property. In that case the Supreme Court decision stated:

I have great difficulty understanding how the owner’s refusal to give consent and the owner’s views can be said to be irrelevant to a planning permit application. It is implicit in the legislation that the position of the owner and his or her views may be relevant. In addition, to take an extreme case, if the owner of the property refuses to give consent, it would be highly relevant for the authority and, subsequently the Tribunal, to know whether there was any realistic prospect of such consent being given. If not, it could be highly relevant to the authority and the Tribunal in deciding whether to reject the application as futile. It should be borne in mind that while a permit may be given a lengthy duration, in the absence of express provision, the permit lasts for two years. An application in those circumstances may well be futile. Councils and VCAT ought to be able to deal summarily with futile applications.

However, in subsequent Tribunal cases, it was found that the prior approval of the Body Corporate was not required for the Responsible Authority to consider and issue a planning permit.

In Ryan v Frankston CC [2003] VCAT 762 (30 June 2003) the Tribunal considered an application to construct an extension to an existing dwelling, in which part of the proposal fell within common property. In its decision the Tribunal summarised the main findings of the Hickey case:

  • the Planning and Environment Act 1987contemplates persons other than the owner of the property in question applying for a permit;
  • there is no statutory or regulatory provision which renders invalid an application for a planning permit over common property of a Body Corporate by a member of the Body Corporate;
  • the owners’ refusal to give consent and the owner’s views are relevant to consideration as to whether a permit should or should not be granted and could be highly relevant in deciding whether to reject the application for permit, either by the Responsible Authority or the Tribunal as futile.

In the Ryan case, the Tribunal compared the facts of the case compared to the facts in Hickey, and found significant differences, including the amount of common property to be developed.

In Spencermill Pty Ltd (PLN Planning Pty Ltd) v Mornington Peninsula SC [2007] VCAT 1289 Council considered the planning permit application to be futile, where the Council was a part owner in an owners corporation arrangement and had not given consent to the applicant in its capacity of owner. Council submitted to the Tribunal that the proposal required 100% support from the body corporate in order to proceed and that it was pointless to have the planning permit application determined by the Tribunal as the proposal was futile, relying on the findings of the Hickey case above. In contrast, the applicant argued that other cases clearly demonstrated that Hickey is limited to its particular facts, and has not been universally applied by the Tribunal.

The Tribunal’s decision stated:

… the applicant in the present case …has an opportunity to challenge the body corporate refusal through an application to the Supreme Court under s 38(3)(a) of the Subdivision Act 1988.

And that

The s 38 process …. provides an opening which takes the matter beyond what one might ordinarily consider “futile” as that word is commonly defined.

In the circumstances … the planning application should not be struck out as futile, and should proceed to a hearing on its merits. The applicant assumes the risk that it may not ultimately be successful in achieving its intended outcomes for the site even if it obtains a planning permit.

In Octopus Media Pty Ltd v Port Phillip CC [2008] VCAT 313, an application for signage was to intrude into airspace owned by Council, and Council in its capacity as owner had refused its consent. The Tribunal found that the lack of owner’s consent was not futile as to justify summary dismissal, and that the case should proceed to consider the merits of the proposal. The Tribunal also noted that:

Section 48(1) of the Planning and Environment Act 1987… provides that the permit applicant can be someone other than the owner, provided the applicant provides a declaration that the owner has been notified about the application. The important point here is that there is no requirement that the owner must agree to the application, merely that the applicant must be able to prove that the owner was kept informed.

In Gore v Stonnington CC [2018] VCAT 555, the Tribunal considered an application including minor buildings and works over common property, where three attached dwellings each had their own title around the building footprint, but all side, front and rear yards were part of the common area under the owners corporation. One of the dwellings made planning permit application for a change of use and minor works within an area of common property (fenced off from the front and rear yards of the two other dwellings). Owners of the other two dwellings had brought an appeal to the Tribunal on grounds including the futility of applying for works on common property without the consent of the owners corporation. In this case the Tribunal found that because the rear and front yards, while in common property, had been fenced off between each dwelling, that the issue might otherwise be resolved. In considering the decisions of Hickey and Octopus Media above the Tribunal also stated:

Ultimately if there is no consent to the parking of vehicles on the common property at the rear of the subject land (Unit 1) then the permit cannot be acted upon or it may be that a permit would require amendment.

So in summary, the lack of owner or owners corporation consent is not necessarily futile to the consideration or granting of a planning permit application. The relevant case law indicates relevant considerations in determining whether an application should be dismissed on the futility arguments, being:

  • The particular facts of each case;
  • Owner’s refusal to give consent and the owner’s views;
  • The extent to which a proposal encroaches onto common land or land controlled by the permit applicant;
  • The likely impact on the owner who has not provided consent;
  • The status of the owner withholding consent – natural person, public body or private corporation;

The absence of owners consent does not prohibit the consideration of a planning permit application affecting common property or other land not controlled by the applicant. There are alternative means of resolving owners corporation consent through the Subdivision Act 1988.

Planning permit applicants should take care, when lodging an application for a planning permit where the applicant is not the owner of the land, or where the application affects land controlled by another person or owners corporation. It such circumstances, the applicant is obligated to notify all owners of the application. While you will not require their consent to make the application, you are required to advise them that you are doing so. That fact that you do not own the land does not automatically make your application futile.

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