In a recent VCAT matter, Kostandinov Investment Pty Ltd v Merri-bek CC [2025] VCAT 494, the Tribunal was asked to determine whether it was appropriate for a permit holder to seek an amendment to endorsed plans that would effectively reduce the BESS Score previously approved by Council.
The permit applicant was seeking to remove external shades over windows. Council had argued that the BESS score of 55% should be achieved/maintained based on the endorsed SDA achieving a 55% BESS score.
However, the Tribunal did not support Council’s stance, noting:
- I am not persuaded that the BESS score to be achieved ought to be 55%. The condition imposed by the council in September 2019 states that a minimum 50% BESS score should be achieved. At the determination of the application, council must have been satisfied that a BESS score of 50% would achieve best practice of ESD sought under clause 15.01-2L-05.
- The wording contained within condition 6 refers to a built-in council discretion to vary the requirements subject to the development achieving equivalent (or greater) ESD outcomes in the development. However, there is a parameter provided under condition 6(c) that states the sustainable design assessment should ‘continue to achieve a minimum BESS score of 50%.
- It would be unfair to the permit holder for the council to apply the built-in council discretion that effectively changes the goal post with regards to the acceptability of the development in relation to ESD. The goal post in this instance has been set as a minimum 50% BESS score and the permit applicant does not seek to challenge the compliance of this.
In our experience, some Council’s do seek to impose permit conditions that result in a BESS score greater than the 50% bench-mark. The above VCAT case reinforces the need for permit applicants to meet industry best practice (of 50% BESS rating) and no more.
Subscribe to receive regular updates on planning issues relevant to Victorian planning permit applicants here.
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. Copyright If you would like to reproduce or use for your own purposes any part of this publication please contact enquiries@clause1.com.au for assistance. Clause1 Pty Ltd Phone: 03 9370 9599 Email: enquiries@clause1.com.au Web: www.clause1.com.au