The scales have tipped
with the new res zones
Two recent VCAT decisions Samsons (Shoobra) Pty Ltd v Glen Eira CC and Estia Health Pty Ltd v Glen Eira CC have tested the effect of the transitional provisions under the new Victorian residential zones and whether an amendment made after the introduction of the new zones will still benefit from the transitional provisions.
The Samson hearing relates to submission of amended plans to Council and whether this action effectively “reset the clock” and lost the benefit of the transitional provisions.
The member found:
- “the applicant made a clear request to amend the permit under section 50(1) of the PE Act when it submitted the amended plans to the responsible authority on 29 October 2013 in addition to the response to the request for further information;
- the request met the pre-conditions in section 50(3);
- the responsible authority amended the application, such that the proposal was constituted by the amended plans and notification was carried out and a decision was made on this basis; and
- by virtue of section 50(7) of the PE Act, the application was amended on the date the amended plans were received by the responsible authority and superseded the application as originally made. This event post-dated the introduction of the Neighbourhood Residential Zone provisions; therefore,
- the application (as amended) cannot take the benefit of the transitional provision (clause 32.09-3) which provides that an application made before the approval of the planning scheme amendment is not limited to a maximum of two dwellings.”
The Estia Health Decision relates to the applicant seeking to amend the application in the VCAT process, and whether or not the substitution of amended plans would result in a loss of the transitional provisions.
“Deputy President Gibson… decided that if the permit application is amended by the Tribunal pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998, the permit application will not lose the benefit of the transitional provision.”
In light of the above decisions, it is important for applicants to be very careful about when and how amendments are dealt with for any planning permit applications lodged before the introduction of the new residential zones.
This is particularly important where the zone has changed to a Neighbourhood Residential Zone. In the Samsons case, the request to amend the permit under section 50 (1) of the Act during the Council process, resulted in the loss of protection under the transitional provisions. As such, the Tribunal was obliged to strike out the application as misconceived without consideration of the merits of the proposal since the application exceeded the maximum number of dwellings on a lot under the Neighbourhood Residential Zone.