It is not uncommon for planning provisions to be interpreted differently by different parties. The outcomes of such disputes will often determine whether or not a proposal is successful in gaining a planning permit – or whether a planning permit is even required.
It is impossible when drafting planning provisions (or any legislation) for the authors to envisage all possible scenarios upon which the provisions might be applied. As a result disputes often don’t arise until a real-life scenario presents itself that has not previously been contemplated.
This short piece focuses on the process of interpreting planning provisions and where regular uses of planning schemes might seek guidance.
Generally speaking words used in planning provisions have their ordinary meaning unless those words are defined in the Planning Scheme or Planning and Environment Act 1987. In addition, the Interpretation of Legislation Act 1984 provides a more pragmatic and purposeful approach to interpretation.
Victorian Planning Schemes
The starting point for any punter seeking clarification on the meaning of any planning provisions is to review the contents of Clauses 71-75.
Clause 72 of the Victoria Planning Provisions (VPP) ‘General Terms’ contains definitions of words and phrases commonly used in planning matters such as; basement, earthworks, gross floor area, native vegetation, private open space, storey and many others.
Clause 73 of the VPP contains definitions of works and phrases commonly applied to outdoor advertising signage such as; business identification sign, direction sign, high-wall sign, pole sign, sky sign and others. This is a mandatory resource for those working within the signage industry.
Clause 74 of the VPP lists and defines the ‘Land Use Terms’ referred to throughout Victoria’s planning schemes such as: dwelling, food and drink premises, agriculture, animal boarding, bottle shop, function centre and dozens of others. Understanding the use definitions can make a substantial difference to how an application is formed prior to lodging. As we have discussed in previous articles, incorrectly describing/categorising a proposed use may be catastrophic.
The Planning and Environment Act 1987
Section 3 of the P&E Act sets out a number of definitions for words frequently used within the Act pertaining specifically to issues of planning such as: development, works and building.
Disputes
Disputes relating to the interpretation of planning provisions are usually determined via a declaration by the Victorian Civil and Administrative Tribunal (VCAT). When determining the appropriate interpretation to set down for the planning scheme the Tribunal is obligated to rely upon the Interpretation of Legislation Act.
In most cases the first step in interpreting any provisions is to undertake a text-based approach by looking at the ‘ordinary’ meaning of the words or the meaning as defined within the VPPs or Planning and Environment Act. Australian courts and Tribunals generally prefer the Macquarie Dictionary to provide guidance into the ordinary meaning of words.
It is generally considered that if a text-based approach would result in an absurd outcome in practice, then the provision under review can be construed so as to avoid that outcome.
Interpretation of Legislation Act 1984
In addition to the definitions provided within the VPP and P&E Act, Section 35(a) of the Interpretation of Legislation Act provides that when interpreting legislation an interpretation that would promote the underlying purpose or objective of the provisions shall be preferred to one that does not.
When a strict text-based interpretation would result in an absurdity or outcome contrary to the objectives of the provision a purposive approach is preferred. Sec 35(a) has been successfully used to broaden narrow text-based definitions/interpretations.
Example of Text-Based vs Purposive Approach
The definition of a ‘storey’ is contained within Clause 72 of the VPP and reads as follows:
That part of a building between floor levels. If there is no floor above, it is the part between the floor level and ceiling. It may include an attic, basement, built over car parking area, and mezzanine.
A number of metropolitan Council’s have provisions within their planning schemes that prohibit development of a height greater than two storeys in some residential areas. Taking onboard the strict text-based interpretation it would not be possible to gain approval for a dwelling with a configuration over 3 or 4 split levels (as a result of the definition of storey provided above) even if the dwelling tiered with the land form and was essentially a two storey dwelling.
In Hill-Murray v Hobsons Bay CC [2007] VCAT 1764, VCAT Deputy President Gibson relied on the purposive approach when interpreting the relevant provision concluding that the two storey height restriction contained in the subject DDO did not prohibit a building incorporating multiple internal levels providing the overall appearance of the building is of no more than two storeys.
Regular permit applicants should ensure that they read planning provisions carefully. Your interpretation may not be the same as Council’s, VCAT’s or the BDAV Member around the corner – but only one of you is right.
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.
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