A recent case before the Victorian Civil and Administrative Tribunal Elcheikh v Bayule CC [2010] VCAT 404 dealt with the issue of an existing dwelling to be kept on a site where additional dwellings were proposal on the same site. The case raised the question of whether the permit application for the multi-unit development should consider and control the existing dwelling (which itself did not require a planning permit). Tribunal noted that it was quite common to consider changes to an existing dwelling kept as part of a multi-unit development. However, in this case it was found that the existing dwelling would not be altered by the proposed dwellings, did not rely on those dwellings for access, had no design or functional relationship with the other proposed dwellings and was physically separated from the proposed dwellings. It was found that the dwelling could be easily subdivided from its parent lot and that it was the applicant’s intention to do so. For these reasons the Tribunal found that the application should relate to the new houses only and not the existing dwelling, subject to a condition o the permit requiring the existing dwelling to be subdivided from the rest of the development, as per the applicant’s intention.
The ruling suggests that each case will need to be considered on its merits. Whether an existing dwelling should be considered as part of a larger proposal will depend on how it is altered by or relates to the proposed development.
However, in Munjal v Casey CC [2010] VCAT 1026, a different approach was taken. The application involved the construction of a second dwelling on the lot to the rear of the existing dwelling. The existing dwelling (which did not require a planning permit) had a front garden carport and open space which Council did not support in the application for a second dwelling. Council had refused the application and included it its reasons that the proposal did not achieve acceptable outcomes in terms of Clause 55 (ResCode) including parking location objectives. Tribunal noted that the permit for the second dwelling relates to the whole of the land and when assessed “the assessment must be made in relation to the whole allotment”. It was further noted that the Planning Scheme provision which requires the permit for the second dwelling (Clause 32.01-4) refers to “the lot” and not just part of it. Tribunal considered that it is necessary to consider the site as a whole. This approach potentially results in conditions requiring changes to existing buildings, or refusal of an application where the existing buildings are not acceptable on planning grounds.
The two decisions do not appear to be consistent. While the Elcheikh case identifies particular circumstances on which a merits-based assessment might be made, the Munjal case enables the decision maker to consider existing buildings within the lot.
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Last updated 160311