“Under the Counter” Policies – Again

We remain bitterly disappointed that we continue to come across cases in which Councils rely upon policies to stifle development despite those policies not being included in the planning scheme or incorporated documents.

Such policies may have been adopted by Council, without having been introduced into the local planning scheme, and as such should have very limited, if any, weight when balanced against incorporated policy and documents.

The worst use of under the counter policies occurs when such policies expressly contradict policy that is incorporated in the Victorian Planning Provisions or Local Planning Policy Framework.

In a recent VCAT case, Architectural v Frankston CC [2015] VCAT 383 (2 April 2015), Council had included in its grounds for refusing a planning permit the non-compliance with Council’s Multi Dwelling Visitor Car Parking Guidelines. The Guidelines set out preferred car parking rates for multi-unit developments, in excess of those specified in the Frankston Planning Scheme.

The Guidelines are not a reference document nor an incorporated document in the Frankston Planning Scheme. The Tribunal in its decision stated:

  1. … I therefore understand why Council is concerned about overflow parking and the reason for Council’s visitor car parking policy. However, the adequacy of car parking has to be assessed against Clause 52.06, not a policy sitting outside the Planning Scheme. In this case the development is fully compliant with the rate set out in Clause 52.06 and a permit is not required to reduce on-site parking.

The Tribunal made similar findings in Modularc v Frankston CC [2013] VCAT 48 in which the Tribunal found:

  1. While the council made reference to its own parking policy this policy has no statutory effect and clause 52.06 is the requirement to be applied in this instance.
  1. Given Clause 52.06 is satisfied parking on site is simply not an issue in these applications.

The Council has the opportunity to include municipal specific policy either:

  • As an incorporated document at Clause 81.01 of the Planning Scheme, part of the Victorian Planning Provisions which includes a Schedule to list Council specific documents incorporated into the Planning Scheme, or:
  • As local policy in Clause 21 or 22 of the Planning Scheme, or:
  • As a Schedule to a Parking Overlay which can specify maximum or minimum parking requirements.

These options would require a publicly-notified Planning Scheme Amendment, opportunity for independent scrutiny and ultimately the blessing of the State Government.

Our advice to applicants that find Council making reference to a Council policy which is not part of the planning scheme or part of a current planning scheme amendment is to seek confirmation in writing as to the status of the relevant document/policy and what weight Council is giving to it. Should the answer to those questions not provide a satisfactory response, applicants can then escalate the issue through Council’s hierarchy or seek assistance from the Tribunal.

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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