When a schedule and a map to a Planning Scheme are in consistent with each other, is priority given to the schedule or to the overlay maps. In the recent case of Alphington Grammar School v Yarra CC [2008], this question was asked of VCAT.
In this instance a property was identified in the Schedule to Clause 43.01, Heritage Overlay, in the Yarra Planning Scheme, however, the Planning Scheme Map relating to the Heritage Overlay did not include the property. The tribunal had to establish whether the Heritage Overlay provisions applied to this site.
The Tribunal referred to Clause 4 of the User Guide contained at the beginning of the Victorian Planning Schemes. This clause states (inter alia):
The planning scheme map
The planning scheme map shows how land is zoned and whether it is affected by an overlay.
The Tribunal considered the matter to be clear cut. Planning Scheme Maps determine how land is zoned and whether it is affected by an overlay. The Tribunal went on to note that the planning scheme is not to be interpreted in any other way.
The tribunal did recognise that an error had occurred however noted that the only means to rectify this error was to undertake an amendment to the Planning Scheme. It was determined that the requirements Heritage Overlay did not affect the subject site.
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Last updated 021008