Seriously Entertained

Not like after a night with Pink or One Direction – but like: ‘seriously entertained planning scheme amendments.

Over the last few months we have been contacted by a number of planning permit applicants seeking to clarify the definition of a “seriously entertained” planning scheme amendment/document and their affect.

The questions we get asked most often are:

  1. Is there a definition of a ‘seriously entertained’ planning scheme amendment/document?
  2. Can Council really require further information based on, what is essentially, a ‘draft policy that is not yet approved or included in the planning scheme?
  3. How much weight should be given to a ‘seriously entertained’ document/amendment?

A seriously entertained document is generally defined as a document that has:

  1. Been through the exhibition (public consultation) process;
  2. Been adopted in its final form by Council and;
  3. Submitted to the Planning Minister’s office for consideration.

The answer to the second question (above) is ‘yes’. Council can request information via a request for further information (RFI) and can even use a seriously entertained document as a basis to refuse a planning permit application. In support of this assertion we note:

Section 60 of the Planning and Environment Act (P&E Act) specifically gives Council the ability to consider:

any amendment to the planning scheme which has been adopted by a planning authority but not, as at the date on which the application is considered, approved by the Minister or a planning authority;

Similarly Sec 84B of the P&E Act stipulates that the Victorian Civil and Administrative Tribunal:

must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister or the planning authority;

The above extracts clearly illustrate that both Council and the Tribunal will generally treat any seriously entertained policy as a relevant consideration.

So how much weight will Council or the Tribunal give a seriously entertained policy?

Tests for giving weight to these type of policy/amendments have been outlined in the lead cases of  Australian Aluminium Shopfitters and Glazing Company Pty Ltd v City of Fitzroy (P82/1162) [1982] and Lyndale and Black Pty Ltd and I O Black v MMBW (P82/1729 and P82/1730) [1983]. The relevant parts of these cases where succinctly summarised in the more recent finding of O’Connell Street Developments PL v Yarra CC (VCAT 448 ) [2003] where the Tribunal stated:

29.The following passages of Lyndale & Black are relevant.

At page 75

“For many years the courts have held that the existence of a “seriously entertained planning proposal” is an important circumstance to be taken into account in the exercise of planning discretion.

At page 477

“The true position is that a proposed change to the operative planning controls is a relevant consideration to be taken into account, whether or not the planning proposal is in the form of an adopted amendment to a planning scheme. However, the weight that should be given to such a planning proposal will vary according to a number of factors. Some of these factors are:

(a)The form of the planning proposal – a formal planning scheme amendment will be given much more weight than a planning proposal of a less formal nature.

(b)The stage which the planning proposal has reached in the planning process – greater weight will be given to a planning proposal which has reached an advanced stage in the planning process than to a proposal of an embryonic nature.

(c)The seriousness with which the responsible authority or State Government is pursuing the implementation of the planning proposal.

(d)Whether the grant of a permit would impair the objectives of the planning proposal and not merely be inconsistent with the strict letter of the planning proposal.

(e)The nature of the development or use for which a permit is sought – for example: a planning proposal will generally have greater weight when a permit is sought to develop vacant land or to subdivide land than when a permit is sought to use an existing building especially for temporary purposes.

This list is not intended to be an exclusive list of relevant factors that may determine the weight that should be given to a planning proposal.”

Permit applicants faced with Council requests that are based on policy (or other documents) not yet incorporated into the planning scheme, should seek clarification as to the ‘status’ of those documents. The information presented above can be used to determine if the policy meets the definition of a seriously entertained amendment/document and what weight or impact it is likely to have on your proposal.