An interesting Red Dot Decision caused Bayside City Council to be censured for over-reaching itself in applying permit conditions. In Forza Capital Pty Ltd v Bayside CC [2013] VCAT 984, the decision of the Responsible Authority was varied and a condition of permit removed. An approved amended permit for 541 car parking spaces in association with a part three and part five-storey building contained a condition stating ‘all parking provided onsite must be available free of charge to users of the site’. It is unclear from the Order what motivated Council to imposing such a condition on the permit. It is particularly perplexing noting that the original permit was being amended, and that the original permit which allowed for 357 parking spaces contained no such restriction.
During the course of the hearing, Council’s representative was forced to concede that such a condition was highly unusual and had the ability to create huge precedent implications for the Victorian planning system if endorsed by the Tribunal. Member Martin found that the condition was ‘intruding into ‘private economics’ to an extent which goes against the grain of the normal range of matters with permit conditions can deal with’. The ‘private economics’ referred to was the ability of the permit holder or developer to recoup some of the costs of construction and management of the car parking area through the charging of users (in this case, the 500 or so staff employed by the lessee of the building).
In ordering that the permit condition must be removed, the Tribunal found that the proposal failed the ‘validity test’ outlined at Domus Designs Pty Ltd v Frankston CC 2006 VCAT 1127, which states;
To be valid, a condition in a planning permit must fairly and reasonably relate to the permitted development or the condition must be reasonably capable of being regarded as relevant to the implementation of planning policy as ascertained from the PE Act and relevant planning scheme.
This decision is interesting to permit applicants saddled with seemingly unreasonable or untenable conditions of permit. While it is rare for the Tribunal to wade into matters of ‘project feasibility’, in circumstances where the nexus between a permit condition and planning policy is unclear or cannot be easily established, an ability to contest such a condition is available and, where costly, should be explored.