REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PRACTICE OR PROCEDURE - consideration of individual instance or systemic issues

The Tribunal's decision refers to the Kantor principles and identifies some additional principles.

That the approved use/development is now prohibited does not mandate a decision refusing to extend the time to commence a development. However, it is something that would usually be expected to be one factor weighing against an extension of time. Each case needs to be decided on its own facts and circumstances including whether and how the development in question would undermine or offend the changed policy or planning control regime.

ANALYSIS - exposition of how to asses an issue or matters to consider

APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

In 2011, the Moreland City Council granted a permit for five dwellings to be developed on the subject land. A number of steps were taken by the permit holder to act on the permit without commencing the development. The permit has been extended once by the Council.

On 30 April 2015, an application was made to the Council to extend the time to commence the development, the permit having expired in February 2015. The same day, the land was rezoned from General Residential to Neighbourhood Residential Zone [NRZ1]. Schedule 1 to this NRZ sets a mandatory limit of four dwellings on the lot. Applying the Kantor principles, the Council refused to extend the time for the commencement because of the rezoning - being a significant change in policy and because no fresh permit could be granted for five dwellings on one lot.

The Tribunal's decision refers to the Kantor principles and identifies some additional principles.

The Tribunal finds that the change in policy and the fact a permit could not issue for the same development are significant factors against an extension of time being granted.

But, a fair assessment of the request does not stop there and these factors should be weighed with other findings in favour of the extension. Critical to the latter is the land's context and the proposal's response to current local policy. Taking into account the site's context that is heavily skewed with existing multi-unit developments, and the acceptability of the design response when assessed against the current local character policy in the Moreland Planning Scheme, the Tribunal finds that allowing the development an extension of time to commence does not lead to a poor planning outcome, undermine the directions of the local policy, nor create a situation of a development that is discordant with its surrounds. The Tribunal comments that a design with a larger development footprint, or the same development in an area with fewer existing multi-units of the intensity and density found around the subject land, may have caused a different decision to be reached. This shows that each case must be fairly considered on its merits and the rezoning to Neighbourhood Residential, alone, is not an automatic "knock-out".

Application under Section 81(1)(a) of the Planning and Environment Act 1987; Moreland Planning Scheme; Refusal to Extend Permit; Kantor Principles; Rezoning to Neighbourhood Residential; Maximum Number of Dwellings; Approved Development Now Prohibited; Change in Scheme.

AMV Homes Pty Ltd v Moreland CC (Includes Summary) (Red Dot) [2015] VCAT 1699

1. The decision of the Responsible Authority is set aside.
2. Pursuant to Section 85(1)(f) of the Planning and Environment Act 1987, I direct that the time within which the development described in Permit No. MPS/2010/646 is to be started is extended to 30 April 2016 and the time within which the development is to be completed is extended to 30 April 2018.

Construction of five dwellings in a tandem layout. The dwellings share a common driveway. The front four dwellings are two storey and the rear unit is single storey.

Application under Section 81(1)(a) of the Planning and Environment Act 1987 - to review the refusal to extend the time for the commencement of the development.

Neighbourhood Residential Zone Schedule 1 Low Density Residential Area [NRZ1]. This Zone replaced the previous General Residential Zone on 30 April 2015. NRZ1 has a mandatory limit on the number of dwellings allowed on the land as four. It also has a mandatory height limit of 8 metres and, in the Schedule, includes application requirements and decision guidelines.

Clauses 9, 10, 11, 15, 16, 18, 21, 22.01, 32.09, 52.06, 55 and 65.

The subject land is on the south-east side of Prospect Street. It is 920 square metres in area. The land contained a single storey dwelling until September 2014. The land is now vacant.

The land abuts single storey dwellings with rear yards at No. 41 Chapman Avenue and No. 16 Kennedy Street. It abuts a four unit development at No. 17 Prospect Street and one house in a dual occupancy at each of Nos. 15A Prospect Street/43 Chapman Street. It abuts two dwellings in a four unit development to its rear and one unit in a dual occupancy at No. 39 Chapman Street.

The area comprises a mix of single and two storey dwellings. There are many multi-unit sites with two, three and four dwellings. Some lots have been redeveloped with five or six units in the land's environs - Nos. 47 Chapman Street as well as Nos. 23 and 35 Prospect Street.

Peninsula Junction Pty Ltd v Mornington Peninsula SC [2013] VCAT 2169; Kantor v Murrindindi Shire Council (1997) 18 AATR 285; 12 Fitzroy Street St Kilda Pty Ltd v Port Phillip City Council 3VPR 103.

1. On 1 February 2011, the Moreland City Council granted a planning permit to develop five dwellings on the subject land. Condition 20 on the permit requires the development to commence within two years of the date of issue of the permit. Plans were endorsed in July 2011 and an extension of time to commence was granted by the Council in March 2013. That required commencement by 1 February 2015. Other than demolition of the dwelling, which did not need planning approval, no on-site works have commenced.
2. On 30 April 2015, the Council received a request from the permit holder to extend the time to commence the development. This request was, coincidentally, the same date as the land was rezoned from General Residential to Neighbourhood Residential [NRZ1] by Amendment C153. Essentially as a consequence of this rezoning, on 1 July 2015, the Council refused to extend the time.
3. An application to amend details on the plans was made to the Council in December 2014. It was refused on 30 July 2015 on the basis that the permit had expired.
4. The permit holder has applied to the Tribunal seeking review of the Council's decision to refuse to extend the time to start the development. The Tribunal must decide whether to grant that request.

WHAT IS BASIS FOR CONSIDERATION OF THIS REQUEST?

1. The parties agree as to the relevant case law and "tests" in relation to this type of proceeding. That is, the principles referred to in the decision of Kantor[2] and more recent commentary in Peninsula Junction Pty Ltd[3]. The principles are often summarised in the following terms:
   • Whether there has been a change of planning policy.
   • Whether the land owner is seeking to warehouse the permit.
   • Any intervening circumstances which bear upon grant or refusal of the extension request.
   • The lapse of time between the permit and the request.
   • Whether the time limit imposed was adequate.
   • The economic burden imposed on the land owner by the permit.
   • The probability of a permit issuing should a fresh application be made.

1. The underlying rationale is encapsulated in 12 Fitzroy Street St Kilda Pty Ltd[4]. The purpose of limiting the life of permits is so that they will not survive unacted upon until they are revived after they have become inappropriate due to changes in circumstances.
2. It is important to appreciate some additional relevant principles:
   • An applicant should advance good reasons as to why an extension should be granted; a request should not be approved simply because it has been asked for.
   • The Kantor "tests" are not mandatory nor exhaustive.
   • There may be other relevant considerations to those articulated in Kantor, including matters of natural justice and equity.
   • That the approved development is now prohibited does not mandate a decision refusing to extend the time to commence a development. However, it is something that would usually be expected to be one factor weighing against an extension of time.
   • Each case needs to be decided on its own facts and circumstances including whether and how the development in question would undermine or offend the changed policy or planning control regime.

1. Ms Merritt explained the matters considered by the Council in reaching its decision. These include the Kantor tests and the provisions of NRZ1 now applying to the land, the development potential of the site under NRZ1, and the transitional provisions under Clause 32.09-3. The Council's grounds are limited to two of the Kantor principles - a change in planning policy and the probability of a permit issuing should be fresh application be made. Ms Merritt fairly put that the other five principles are adequately addressed by the request.
2. On the two principles relied upon, the Council's submission is:
   • The rezoning to NRZ1, and revised local policy under Clause 22.01[5], is a very significant change in policy that renders the request unsupportable.
   • The rezoning means that a permit can only issue for four dwellings, not five. Consequently, if made today, a permit for five dwellings must be refused. The Amendment introducing NRZ1 has determined that five dwellings is not an appropriate outcome for this area.
   • NRZ1 does not render the land undevelopable nor prevent a multi-unit development. It limits the development to a maximum of four dwellings.

1. Mr Stanojevic explained that his client was unable to commence the development due to financial and market constraints. Other projects took two years to sell. His client has, however, maintained a commitment to the project evident in the endorsement of plans and a more recent request to make minor amendments to the plans. In addition, engineering plans were completed in 2011; approvals were in place from Yarra Valley Water and the Council with respect to stormwater detention, drainage, sewerage and water; the house on the land was demolished in September 2014 having been leased prior to that time; and project quotes were obtained in 2014. The applicant's readiness and willingness to proceed is evident, he said, in the request for a six month extension to commence the development.
2. Mr Stanojevic submitted the use of the land is not prohibited rather it is the form of the development that would not comply with the NRZ1 because there are five dwellings not four. He submitted the five unit development satisfies the expectations for change in this neighbourhood having regard to the local policies in Clause 22.01. Having regard to the existing extent of multi-unit dwellings in this area, including lots that have been developed with five dwellings, Mr Stanojevic contended the proposal responds well to the specific circumstances of its context and the policy directions in relation to diversity and neighbourhood character. Indeed, the same or a similar design could be approved today with four, rather than five, houses. Mr Stanojevic relied on Tribunal decisions where it is clear that an extension of time can been allowed even if a development is now prohibited[6].
3. The parties agree that the transitional provisions in Clause 32.09-3 do not apply to the type of request being considered in this proceeding.

1. The parties agree, and I accept, that there has been a significant change in planning policy. That relates to the zoning of the land and surrounding land as NRZ1. There is also an associated revised local policy in the Scheme addressing neighbourhood character.
2. NRZ1 prevents the same application for five dwellings being made today. The four dwelling mandatory development limit is a factor against granting an extension to the permit for five dwellings. It is a factor that carries significant weight. However, a fair assessment of the request does not stop there. When the approved five unit development is considered in its physical context and against the purpose of the NRZ1 and current local policy in Clause 22.01, I accept Mr Stanojevic's submission that the built form outcome remains acceptable and does not undermine local policy. This is a function of the site's context and the design response as I explain next.

1. First, the development is sufficiently limited and incremental in its intensity and density when considered in its existing physical setting. The overwhelming majority (around two thirds) of lots fronting Prospect Street, between Chapman Street and William Street are developed with two, three, four or five dwellings. The Scheme extract that I have included below demonstrates this in part. It shows some, but not all, of the existing multi-unit developments in the vicinity of the subject land. For example, it does not show units at Nos. 33 and 35 Prospect Street each with five dwellings.

1. Second, with respect to considerations in the new local policy at Clause 22.01, NRZ1 and its schedule:
   • The permitted five units exceed the current NRZ1 limit by one dwelling. It is relevant that the dwellings are modestly sized with two bedrooms and one car space each. They have small footprints compared with four larger dwellings that could be applied for today.
   • The layout respects the pattern of existing development with its good side setbacks and lack of boundary construction (except Unit 5's garage).
   • The layout provides one crossover and a common driveway with garaging behind the first dwelling, thereby facilitating a landscaped presentation to the street. There is an endorsed landscape plan.
   • While much of the surrounding development is single storey, there are some new two storey unit developments. The upper levels of all four two storey dwellings are well setback from the ground floors, are all separated, and each only has one or two bedrooms at the first floor level. The rear unit is single storey as desired for the NRZ areas.

• There is no indication that the bare minima of the Clause 55 numerical standards have been adopted in this design response. For example, the site coverage is cited on the plans as 45% (compared with 60% under Standard B8) and the dimensions of the secluded private open spaces are wider than Standard B28. NRZ1 does not vary these standards.

1. The Council does not contend that the permit holder is warehousing the permit and there is no evidence of such based on the material before me. This is a factor in favour of the extension requested.

1. The permit holder is now in a position to act on the permit. This is a factor in favour of the extension of the permit. I was advised that there is no intent to pursue amendments to the design although some of the servicing authority approvals will need be resubmitted. In other words, the permit holder is close to being ready to build and seeks a six month extension to enable this to occur.

1. The total lapse of time since the permit first issued in February 2011 is some 4½ years. The permit has been extended once and, on the material before me, would have been extended by the Council again if the extension request had been received and processed prior to the gazettal of Amendment C153. This is another factor in favour of the extension request.

1. The time allowed in the permit was the standard usually applied to permits and cited in Section 68 of the Planning and Environment Act 1987. There is nothing before me to indicate that the time was insufficient to start and complete a development of this scale in this location. This is a factor against the request but not a matter relied upon by the Council.

1. Economic circumstances prevented this development from starting based on Mr Stanojevic's submission but the permit holder is now able to proceed. There is no evidence of a particular economic burden that is influential in favour or against the extension request.

1. It is self-evident that there is no possibility that a fresh permit would be granted because of the mandatory limit on dwellings (of four) in NRZ1.

1. Another limb of this consideration expressed in Kantor relates to the probability of new considerations by potential objectors. I have not been provided with information about changes in land ownership. The aerial images indicate that there has been relatively recent development in the environs in the form of multi-units but less so in relation to the abutting properties. No party suggested that this factor has a particular bearing in this case.

1. On my assessment, the influential factor weighing against a permit extension is the rezoning, with its mandatory limit on dwelling numbers. This is influential because it represents a significant change in the applicable planning regime and it prevents a fresh permit for the same number of dwellings issuing today.
2. Taking into account the site's context that is heavily skewed with existing multi-unit developments, and the acceptability of the design response when assessed against the current local character policy, allowing the development an extension of time to commence does not lead to a poor planning outcome, undermine the directions of the local policy, nor create a situation of a development that is uncomfortably discordant with its surrounds. A design with a larger development footprint, or the same development in an area with fewer or no existing multi-units of the intensity and density found here, may have caused me to reach a different decision. This shows that each case must be considered on its merits and the rezoning, alone, is not an automatic "knock-out".

1. For the above reasons, I will set aside the Council's decision. I will order that the permit be extended so as to allow the development to commence within six months from today.

[1] I have considered the submissions of all parties that appeared, all written and oral evidence, all exhibits tendered by the parties. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Kantor v Murrindindi Shire Council (1997) 18 AATR 285.

[3] Peninsula Junction Pty Ltd v Mornington Peninsula SC [2013] VCAT 2169 particularly paragraphs 7-12.

[4] 12 Fitzroy Street St Kilda Pty Ltd v Port Phillip City Council 3VPR 103 at paragraph 22.

[5] Amendment C123 gazetted on 15 October 2015.

[6] For example, Bulliard v South Gippsland SC [2009] VCAT 2743; Lazaroy v Yarra Ranges SC [2006] VCAT 1451.