When making a decision on any planning permit application, the decision maker must only consider issues relevant to that application. This principle has been reiterated in the recent case of Duster vs Boroondarah CC [2010] VCAT 1140 heard by the Victorian Civil and Administrative Tribunal. The proposal involved the demolition of a dwelling and the construction of a new dwelling in a Heritage Overlay. In this case the decision included a ruling on whether the impact or effect of the development on trees in the heritage place was a relevant consideration. The Tribunal found that the impact of the proposal on trees was not a relevant consideration. This was because the trigger for the planning permit was the Heritage Overlay, which did not include tree protection controls. There were no other planning permit triggers in the Boroondarah Planning Scheme protecting vegetation for that site.
The principle is outlined by the Supreme Court in National Trust of Australia (Victoria) v Australian Temperance and Mutual Life Assurance Society Ltd [1976] VR 592. The principle as expressed in the Duster case “is that the discretion of a decision-maker must be exercised in accordance with the purpose for which the discretion is exercised”.
Another useful example of where this principle is relevant is where a planning permit for a new dwelling is required for a site within a Special Building Overlay and where the Special Building Overlay is the only permit trigger. In this scenario only the Special Building Overlay considerations apply for the planning permit consideration. Other matters such as Clause 54 (ResCode) considerations of privacy or overshadowing can not be considered in the planning permit decision. However, such matters will need to be considered further down the track by the assessing building surveyor as part of processing the building permit application.
Seek Professional Advice Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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