A recent Red Dot decision by the Victorian Civil and Administrative Tribunal (the Tribunal) in Mornington Peninsula SC v Premier Homes Pty Ltd [2021] VCAT 9, considered whether six dwellings constructed as ‘dependent person’s units’ (“DPUs” – otherwise known as “granny flats”) met the planning scheme definitions of a ‘dependent person’s unit’ and a ‘movable building’. Such buildings which meet the Planning Scheme definitions are exempt from the requirement for a planning permit for buildings and works, under the zone provisions.
Council made a request to the Tribunal under Section 149(1)(a) of the Planning and Environment Act 1987 (the Act). Such an application seeks a determination relating to the interpretation of the planning scheme in relation to land or a particular use or development of the land.
This particular application was made in relation to six properties at various locations in the Mornington Shire, all constructed by one building company for the purposes of DPUs. Council’s position was that these dwellings did not meet the definition of “dependent person’s unit” or “movable buildings” and that over time, the type of dwelling that was being constructed under the guise of a DPU was getting larger and beyond the intent of planning provisions, to become second dwellings.
The Tribunal noted in their decision that:
- A ‘dependent person’ is not limited to the elderly or people with disability. However, in practice, a DPU provides a diverse and affordable housing option for these two groups in particular. In accordance with the government’s planning policy framework, a DPU commonly does not require a planning permit for either use or development. Under clause 62.02 of Victorian planning schemes, a DPU is exempt from the need for a planning permit for buildings and works unless specifically required by another provision of the scheme. This can be contrasted with a second dwelling on a lot that is not a DPU, where a planning permit will often be required, or where specific design and/or siting requirements apply.
The definition of “Dependent Person’s Unit” in the planning provisions is:
A movable building on the same lot Accommodation as an existing dwelling and used to provide accommodation for a person dependent on a resident of the existing dwelling.
The definition of “Movable Building” in the planning provisions is:
A structure, other than a tent, caravan, or vehicle, which is designed to be moved from place to place on more than one occasion.
The Council sought declarations from the Tribunal that the six subject buildings were:
- not, for the purposes of the Scheme, movable;
- not, for the purposes of the Scheme, dependent person’s units; and
- not exempt, pursuant to clause 62.02 of the Scheme, from the need for a planning permit for buildings and works.
Council submitted that the buildings were not “movable” due to the level of deconstruction and reconstruction involved, whereby each building had to be almost completely dismantled before being moved, and therefore not “designed to be moved”. The Tribunal found that:
- the proceeding should not be determined on prescriptive criteria drawn from previous VCAT decisions, where no rigid test exists in the planning scheme;
- The phrase “designed to be moved” does not prescribe how, or in what state the building is to be moved from place to place;
- There are no strict criteria as to the minimum number of parts or the process or time the moving of the building may take;
- There is clearly an emphasis on design in the definition of “movable building”. Relevant to the outcome of any case may therefore be:
- evidence about the design process and intent,
- the nature of the component parts
- the level of wastage or reuse
- construction techniques
- the level of retrofitting
- the ease or timing of deconstruction, transportation and reconstruction
- whether the design includes the objective that the building be moved at some point
- how it is constructed to enable disassembly and reconstruction or whether it is constructed in an ordinary way
- The DPU must be designed so that it can be moved more than once – that is, capable of being relocated within its lifespan on at least three separate sites, with at least two possible processes of disassembly, transportation and reassembly.
DPUs require a registered Building Surveyor to approve the building permit, which in practice means demonstrating that the building meets the exemption tests for a DPU in the Planning Scheme. By expert evidence, in this case, the Tribunal found that the preparation and approval of building plans for DPUs was very general and did not include design features which demonstrated whether the building was “movable” (and therefore exempt from a Planning Permit).
The Tribunal also provided commentary on the existing regulatory framework in the Planning Scheme which made it difficult to “draw the line” when making a determination as to whether a building had been designed to make it a “moveable building”, either looking at separate components individually or the design as a whole, noting:
….the fundamental basis upon which the planning permit exemption arises for a DPU is not transparently assessed through the building permit process nor made clear in the issue of the building permit itself.
The Tribunal found that, given it was Council’s application for declarations, that Council bore the persuasive burden of satisfying us that the buildings have not been ‘designed to be moved from place to place on more than one occasion’. The Tribunal found that submissions had not provided conclusive evidence that the six subject buildings had not been designed so as to be moveable, and that the lack of fixed criteria in the planning scheme made this determination difficult.
During the hearing, the Tribunal considered lists of individual items which parties believed were important in designing a building that could be considered as “designed to be moved”. Some items were not considered determinative, such as sheet roofing secured by screws, because that was in very common usage in colorbond roofing fixing in non-DPU buildings. The Tribunal noted that three elements identified during the proceeding were more important, at least in the facts of that case, in differentiating dwellings which may not have been designed to be move. They were:
- the manner of the construction of the wall segments.
- the manner of the wiring –to ensure that all electrical cables come to the top plate to facilitate the segmentation of the walls.
- the way in which all the plumbing goes through the floor and not the walls.
The Tribunal considered that these three items supported the view that Council had not made out its case, however, they were still not conclusive of the contrary view. The Tribunal noted that the process of determining whether a planning permit was triggered or not should be simple and that the current definition for “Movable Building” had an emphasis on whether the building was designed to be moved, rather than whether it is actually constructed in that way, or whether the building is actually moved (or required to be moved) once it ceases to be occupied by a dependent person, or at all.
The Tribunal did not make alternative declarations and dismissed the case, the order including a direction that the decision be sent to the Minister for Planning, to consider whether any regulatory reform or clarification was warranted. Given that the State Planning Department is currently trialling a program of code-compliant second dwellings through the VicSmart process, we may see further changes to the DPU provisions to improve the uncertainty identified in the above case.
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