In two recent VCAT proceedings Clause 1 has utilised an establish VCAT principle to help win approval for a client’s application. The principle is based on the concept that any consideration of an application must have specific regard to the purpose of the planning controls which led to the primary permission (planning approval) being sought.
For example if a planning permit is triggered solely under a Heritage Overlay, the primary consideration must relate to issues of heritage not issues such as ResCode, vegetation protection, etc…
In one recent case Boroondara City Council approved an extension to a single dwelling on a lot but included a condition (Condition 1a.) that the Carport be deleted. The permit applicant engaged Clause:1 to prepare and lodge an appeal to VCAT.
Importantly, the subject site was greater than 500m2 and the only permit trigger was contained in an Environmental Significance Overlay (ESO) affecting the site. The ESO protected the environmentally sensitive area along the Yarra River from inappropriate vegetation removal and development.
At the hearing council’s position was that the proposed carport (within the front set back) was out of neighbourhood character, at odds with the established/preferred streetscape and should not be allowed to be constructed. Council also noted at the hearing that the vegetation required to be removed to make way for the proposed carport was of no significance.
In dismissing Council’s concerns the Tribunal noted that the issues raised by ResCode, neighbourhood character and links to local policy discouraging car parking structures within front setbacks where not related to the primary purpose for which the planning permission was required under the ESO (the protection of the sensitive Yarra River environ).
The carport stays.
In the second case, the same principle assisted in substantially narrowing the issues to be considered at a hearing relating to the development and use of land for a 4 storey building (including basement carpark) for the purpose of seven offices and two penthouse apartments with associated car parking dispensation under a Business 5 Zone in Moonee Valley.
Objections received from other parties related to the use of the building as an office block. However under the provisions of the Business 5 Zone both a Dwelling and an Office are Section 1 Uses (as of right – no permit required). However, a permit is required to combine the uses of an Office and Dwelling in the same building. In other words, the purpose for which planning permission was being sought related to the combined use of Offices and Dwellings.
Thus when it came to a discussion relating to the issues raised by objectors pertaining to the Use of the building Clause:1 submitted that only issues that relate directly to the combined use of a dwelling and offices should be entertained by the Tribunal NOT issues relating to the use of the Dwellings or Offices individually (which are as of right).
Therefore, the only matters to be considered by the Tribunal related specifically to:
The protection of the proposed Dwellings from inappropriate noise associated with the Offices and visa-versa and;
- The appropriateness of the entrances to the building to ensure no detriment resulted to either use.
An order was made at the hearing to issue a permit.
Seek Professional Advice: Information contained in this publication should be considered as a reference only and is not a substitute for professiional 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.
Copyright: If you would like to reproduce or use for your own purposes any part of this publication please contact enquiries@clause1.com.au for assistance.
Clause1 Pty Ltd Phone: 03 9370 9599 Fax: 03 9370 9499 Email: enquiries@clause1.com.au Web: www.clause1.com.au
Last updated 200607