Expiring Permits in New Zones

The extension of time to enact two such permits were considered by recent VCAT cases Sally-Anne Property Nominees Pty Ltd v Yarra Ranges SC [2016] VCAT 214 and Mondland Projects Pty Ltd v Bayside CC [2016] VCAT 220.  In these two instances, the decision to approve or refuse the extensions of time appeared to turn on the prevailing neighbourhood character of the surrounding area, and whether the area was flavoured by multi-unit residential developments or not.

The Kantor Supreme Court decision set down the tests for applications for extensions of time to existing permits. The tests are generally;

  • whether there has been a change of planning policy;
  • whether the landowner is seeking to “warehouse” the permit;
  • intervening circumstances as bearing upon grant or refusal;
  • the total elapse of time;
  • whether the time limit originally imposed was adequate;
  • the economic burden imposed on the landowner by the permit; and
  • the probability of a permit issuing should a fresh application be made.

The starting point is the consideration of whether the planning controls have changed. Historically, the introduction of, say a DDO or SLO which would require additional matters to be considered has not necessarily caused an extension to be refused. However, the prohibitions that the NRZ introduce explicitly prevent many applications, including the two cases cited, being approved at any time until the NRZ is modified. This strengthens significance of the final ‘test’ above. These proposals could not be approved if a fresh permit was sought, they would be prohibited.

This has led to the Tribunal developing some additional guidelines for the consideration of permit extensions, set out in AMV Homes Pty Ltd v Moreland CC (Red Dot) [2015] VCAT 1699;

  • An applicant should advance good reasons as to why an extension should be granted; a request should not be approved simply because it has been asked for.
  • The Kantor “tests” are not mandatory nor exhaustive.
  • There may be other relevant considerations to those articulated in Kantor, including matters of natural justice and equity.
  • That the approved development is now prohibited does not mandate a decision refusing to extend the time to commence a development. However, it is something that would usually be expected to be one factor weighing against an extension of time.
  • Each case needs to be decided on its own facts and circumstances including whether and how the development in question would undermine or offend the changed policy or planning control regime. (our emphasis).

These additional tests, as well as Kantor, have led to two different determinations;

In Sally-Anne, a six-unit development, the Tribunal found;

I would therefore characterise the neighbourhood as predominantly dwellings on single lots but with materially fewer medium density housing units… I find the permit does not allow development that respects the existing neighbourhood character for the purposes of the NRZ and in the context of the altered policies. (our emphasis)

In Sally-Anne the Tribunal refused to extend the expiration date of the permit.

Conversely, the Mondland case considered a three storey apartment building containing 17 dwellings, and granted an extension of time. The Tribunal observed;

I find that the height of the development would sit comfortably both next to the three storey, substantial built form of The George and opposite the large, industrial and commercial buildings in the C2Z. This will not be a small building, but nor are they. And it is one that the Council saw fit to approve in relatively recent times against the backdrop of essentially the same policy framework, but for the change in zoning.

A reason must also be given for a request for an extension of time. While the Tribunal accepted that the delay in enacting the permit was in part due to the land changing hands, it also appears that the purchase of the Sally-Anne site a couple of weeks after the introduction of the NRZ by the now-applicant appeared to have influenced the member’s determination.   The Tribunal concluded that the purchase of land within the NRZ would have alerted a developer that if it did not start the development before expiry 11 months hence, it faced the risk that if an extension was not granted it would not have the option of applying for a new permit for 6 dwellings.

We once again stress that permits obtained prior to the introduction of the new residential zones should be treated as valuable commodities. Proponents should not rely on their ability to extend aging permits where the zoning controls have changed since the permit was granted.

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