Existing use Rights but not an Existing Building

In a recent VCAT proceeding, O’Callaghan v Boroondara CC [2018] 598, the Tribunal was forced to contemplate the question of whether a permit was triggered under the Neighbourhood Residential Zone (NRZ)  for an extension to an existing Medical Centre.

The Medical Centre had been in operation for more than 30 years. All parties to the proceedings agreed that the Medical Centre had acquired existing use rights pursuant to Clause 63 of the Victorian Planning Provisions. However, despite enjoying existing use rights the provisions contained within the Table of Uses, at Clause 32.09–2 of the NRZ, where placed  under the spotlight.

Under the NRZ; uses contained within Section 1 of the Table of Uses do not trigger a planning permit for buildings and works. The Table of Uses specifies that a Medical Centre is a Section 1 use if the following conditions are met:

  1. The gross floor area of all buildings must not exceed 250 square metres;
  2. Must be located in an existing building;
  3. The site must adjoin, or have access to, a road in a Road Zone;
  4. Must not require a permit under clause 52.06- 3;

It was generally agreed by all parties that three of the four conditions, above, were met by both the existing conditions onsite and the proposal. The contentious question was; is the use (Medical Centre) located in an ‘existing building’?  If it could be successfully argued that the use was located in an existing building – then it could be held that no planning permit was required/triggered under the NRZ for the buildings and works. There is no doubt that the ‘existing’ use/medical centre was located in an existing building – but what about the proposal?

The permit applicant argued that the use was in an existing building and that the small amount of works, including a small increase in footprint, did not constitute a new or different building.

Council conceded that the increased floor area proposed was small, however, they argued that the change to the building envelope meant that the use/Medical Centre was no longer located in an ‘existing’ building. Therefore, it was Council’s position that the use was a Section 2 use and that a planning permit was triggered by the proposed buildings and works under the NRZ.

In concluding that the use was not located in an ‘existing building’ and that a permit was required under the NRZ, the Tribunal noted:

  1. The applicant’s approach of allowing small changes to be considered as part of the existing building is confusing and subjective. What amount of new built form transforms a dwelling thereby requiring planning permission? I think the correct approach is to regard any external change as no longer being the existing building and therefore subject to a planning assessment. I consider that this approach is consistent with clause 32.09-5 whereby planning approval is required to extend a dwelling on a lot of a specified size. Under this clause any additions require planning approval. It does not exempt a small addition (whatever that might be) because it is minor while a larger addition requires a permit

Having concluded that a permit was triggered under the NRZ the Tribunal went on to approve the proposed additions to the Medical Centre. But this case does once again highlight the complexity of interpreting planning provisions.

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