UGZ: The Power of Exemption

An important element of the New Urban Grow Zone will be the potential for applications to be exempt from public advertising and third party objector rights provided they comply with a local master plan, or Precinct Structure Plan (PSP).

In light of this recent development, it is worth noting the number of instances in which applications are exempt from advertising and third party appeal rights under the current Victorian Planning Provisions (VPPs).

Section 52 of the Planning and Environment Act (1987) relates to notification of an application and the obligation of councils to make relevant parties aware of an application. Section 82 of the Act refers to the rights of objectors to apply to VCAT for a review of a decision of the responsible authority.

With the aim of expediting certain permit applications, the VPPs identify a number of instances in which the application is exempt from both the notification requirements and the appeal rights referred to above. Typically these exemptions are on the condition that certain criteria are met such as under Business 1-4 Zones where the site cannot be:

within 30 metres of land (not a road) which is in a residential zone or Business 5 Zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre.

These exemptions apply to a variety of other zones and overlays through the VPPs with minor variations. Exemption may relate to all forms of permit applications including subdivision, buildings and works as well as use applications.

The importance of understanding exemptions has been reinforced by the VCAT cases Reilly v Brimbank CC [2007] VCAT 623 (18 April 2007) and West Valentine Pty Ltd v Stonnington CC [2005] VCAT 224 (9 February, 2005).

In both of these cases the Tribunal dismissed the concerns of permit objectors on the basis that they were not entitled to review rights afford under Section 82 of the act by virtue of this exemption.

Read the zoning provisions carefully. Exceptions of this nature can be of significant value to permit applicants, provide guidance for new proposals and save thousands of dollars in VCAT appearance fees and delays.

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.
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Last updated 200608