Planning Decision Flip, Flop, Flip, Flop… FLOP!

Only for the brave: Council refuses to support a planning permit application, then amends its position to support the application, then seeks to argue for the application to be refused, is then forced to support the application – but in the end the permit is refused and the permit applicant left to ponder how this ‘whole-planning-thing’ works.

In a recent VCAT matter, One 11 Dendy Street Pty Ltd v Bayside CC [2019] VCAT 4, the Tribunal was  perplexed by the position taken by Council.

Flip: Council had received a number of objections and originally issued a Notice of Refusal relating to an application seeking permission for the development of eight dwellings on the subject land.

Flop: The permit applicant sought review of that decision at VCAT. After a compulsory conference amended plans were prepared that included a reduction in the number of dwellings to six. All parties, including objectors, informally agreed to settle the matter subject to those changes.  In November, Council’s Planning and Amenity Committee met, formally changed Council’s position and wrote to all parties notifying them that Council now supports the proposal, subject to conditions.

Flip: However, following the resolution of Council’s Planning and Amenity Committee one of the objectors withdrew support for the Consent Order. As a result, Council then sought to disregard the resolution of their own Planning and Amenity Committee and argue against the granting of a permit at the VCAT hearing.

Flop: The sitting Tribunal Member seemed somewhat perplexed and noted:

I was informed that a Council officer decided that the decision of Council’s Planning & Amenity Committee could be disregarded if an agreement had not been reached between all of the parties…

I determined that I could give no weight to [Council’s] attempt to make submissions to the Tribunal that amounted to one officer’s opinion on the amended plans, and present it as Council’s formal position in this proceeding, in defiance and opposition of Council’s actual formal position.

The Tribunal did not hear submissions prepared by Council that sought to have the application refused, effectively forcing Council to adopt the position determined by the Planning and Amenity Committee at the November meeting.

FLOP:  Despite all that toing and froing the Tribunal eventually resolved to refuse to grant a permit on grounds relating to neighbourhood character and built form.

Spare a moment for the permit applicant in that one…

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