In Eddy v Yarra CC (Red Dot) [2024] VCAT, Council had issued a Notice of Decision to grant a permit (NOD) for a double storey dwelling on a lot less than 500 square metres (but greater than 300 square metres). No other planning permissions were required. Amendment VC243 to the Yarra Planning Scheme, which came into effect after the Council’s NOD was issued but before the appeal was lodged, changed all planning schemes to set the minimum lot size for which the construction or extension of a single dwelling required a planning permit under zone provisions, to 300 square metres. The appeal was lodged under Section 82 of the Act by an objector to the planning permit.
The Tribunal found that the appellant did not have standing to bring the application for review as planning permission was not required when the appeal was lodged and there were no transitional provisions to the amendment. Had the appeal been lodged prior to the Amendment coming into effect, the appellant would have had standing and the Tribunal would have had jurisdiction to decide the matter. In that instance, given planning permission would no longer be required when Tribunal made its decision, it would be likely that the decision of the Tribunal would have been to order than no permit issue.
The Tribunal found that Amendment VC243 removed the appeal rights under Section 82(1) of the Act because no planning permission was required when the appeal was made. The Tribunal found that it did not have jurisdiction and struck out the proceeding. Of interest, the Tribunal also noted in its decision:
71 I accept that this outcome means the responsible authority will need to turn its mind to whether it has the power to grant a planning permit in circumstances where planning permission is no longer required despite the existence of the NOD.
72 This is a matter for the responsible authority given there were no transitional provisions introduced when Amendment VC243 came into force.
73 If the responsible authority considers it is bound to issue a planning permit but that this is an uncertain or undesirable outcome, it may wish seek advice about whether there are other statutory avenues available to the responsible authority (or indeed any other parties) to address the consequences of a planning permit being issued.
There may be other instances where planning permits for construction or extensions of single dwellings on lots between 300 and 500 square metres once required a planning permit, but no longer do.
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