Should an extension to a permit be granted after an amendment to a planning scheme prohibits a proposal?

Regular readers may recall previous discussions that highlighted Kantor v Murrindindi Shire Council (1997) 18 AATR 285 as the lead case setting out relevant considerations for applicants seeking to extend a planning permit (prior to commencement of works).  The tests in Kantor can be summarised as:

  • Whether there has been a change of planning policy;
  • Whether the land owner is seeking to warehouse the permit;
  • Any intervening circumstances which bear upon the grant or refusal of the extension request;
  • The lapse of time between the permit and the request;
  • Whether the time limit imposed was adequate;
  • The economic burden imposed on the land owner by the permit;
  • The probability of a permit issuing should a fresh application be made;

A more recent VCAT case revisited these tests and in doing so the Tribunal made some interesting observations.

In AMV Homes Pty Ltd v Moreland CC [2015] VCAT 1699, the Tribunal considered a request for an extension of time to a planning permit for the construction of 5 dwellings on a lot. The request was made some 3 months after the expiry of the permit. It so happened that the day on which Council received the request, the zoning of the land changed from General Residential Zone to Neighbourhood Residential Zone (NRZ). The Schedule to the new NRZ included a mandatory maximum limit of 4 dwellings per lot.

Council refused to grant the extension, relying primarily on two of the Kantor tests, those being:

      i.        The recent change in planning policy and;

    ii.        The improbability of a permit issuing should a fresh application be made.

The Council considered the rezoning to NRZ to be a significant change in policy, and noted that if the same application was made at the time Council considered the extension request, a permit could not be issued due to the 4 dwelling mandatory limit.

In its consideration of the matter, the Tribunal found that while the rezoning of the land (with its limit of 4 dwellings) weighed heavily against the granting of an extension to the commencement date, weighing up the other relevant factors or tests it noted the following:

24.         On my assessment, the influential factor weighing against a permit extension is the rezoning, with its mandatory limit on dwelling numbers. This is influential because it represents a significant change in the applicable planning regime and it prevents a fresh permit for the same number of dwellings issuing today.

  1. Taking into account the site’s context that is heavily skewed with existing multi-unit developments, and the acceptability of the design response when assessed against the current local character policy, allowing the development an extension of time to commence does not lead to a poor planning outcome, undermine the directions of the local policy, nor create a situation of a development that is uncomfortably discordant with its surrounds. A design with a larger development footprint, or the same development in an area with fewer or no existing multi-units of the intensity and density found here, may have caused me to reach a different decision.  This shows that each case must be considered on its merits and the rezoning, alone, is not an automatic “knock-out”. 

In ordering that the permit be extended by 6 months to allow the development to commence, the Tribunal made the following additional comments regarding the commonly used Kantor tests:

  1. It is important to appreciate some additional relevant principles:
  • An applicant should advance good reasons as to why an extension should be granted; a request should not be approved simply because it has been asked for.
  • The Kantor “tests” are not mandatory nor exhaustive.
  • There may be other relevant considerations to those articulated in Kantor, including matters of natural justice and equity.
  • That the approved development is now prohibited does not mandate a decision refusing to extend the time to commence a development. However, it is something that would usually be expected to be one factor weighing against an extension of time.
  • Each case needs to be decided on its own facts and circumstances including whether and how the development in question would undermine or offend the changed policy or planning control regime.

The Tribunal’s decision in this case includes careful consideration of the proposal against the existing local policy and the site’s surrounding built context. Also assisting the Tribunals decision was the applicant’s submission to the Tribunal which detailed:

The applicant’s commitment to the project including:

  • The endorsement of plans and a more recent request to make minor amendments to the plans;
  • Completing engineering plans prior to expiry;
  • Gaining the relevant utility and infrastructure approvals prior to expiry;
  • Demolishing the existing building (no planning permit required in this instance) prior to expiry;
  • Obtaining project quotes prior to expiry;
  • Economic circumstances preventing the permit applicant from previously commencing;
  • The applicant’s readiness and willingness to now commence the development.

Permit applicant’s seeking to extend planning permits should be aware of the above principles. The Tribunal’s decision in the AMV Homes case provides an opportunity to extend planning permits that may now be prohibited (as a result of changes to the Planning Scheme), providing that extension does not lead to poor planning outcomes.

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