Victorian Civil and Administrative Tribunal|2006-11-01

Brimbank CC v LS Planning Pty Ltd [2006] VCAT 2218 (1 November 2006)

Amendment to planning scheme does not affect a permit previously granted when no additional permission is required - Presumption of regularity

Brimbank CC v LS Planning Pty Ltd [2006] VCAT 2218

(a)

A planning permit is required under the provisions of the Heritage Overlay of the Brimbank Planning Scheme for demolition of the existing dwelling on the subject land. Demolition is not authorised by permit P040233.

(b)

Planning permit P040233 is a valid permit that allows the construction of five dwellings on the land. No further permissions are required pursuant to the Planning and Environment Act 1987 to allow construction of the five dwellings.

Ms Lorraine Stupak, town planner, of LS Planning Pty Ltd

(given orally at the hearing and subsequently revised)

1 This is an application for declaration under section 149A of the Planning and Environment Act 1987 [1]. To understand the declarations sought, it is necessary to recount the background.

2 Planning permit P040233 was issued on 3 May 2005 at the direction of the Tribunal for development of the subject land with five dwellings[2]. At the time the land was in a Residential 1 Zone with no overlays affecting it.

3 On 16 February 2006 Amendment C84 to the Brimbank Planning Scheme included the subject site in a Heritage Overlay. Pursuant to the provisions of clause 43.01-1 a permit is required to demolish or remove a building, and to construct a building or construct or carry out works.

4 Development pursuant to the permit has not yet commenced. Council seeks clarification of two matters: whether the existing permit allows the construction of the five dwellings on the site despite the new controls; and whether a planning permit is required to demolish the existing dwelling. Accordingly, the following declarations are sought:

•

Whether planning permit No. P040233 remains valid and allows the construction of five dwellings on the land with no further permissions required pursuant to the Planning and Environment Act 1987.

•

Whether a planning permit is required for demolition of the existing dwelling despite the existence of planning permit P040233.

Development of the land with five (5) dwellings (four (4) double storey and one (1) single storey) in accordance with the endorsed plans.

6 The permit does not allow demolition of the existing dwelling. Under the planning controls that now apply to the land a permit is required for demolition. Therefore, I find that a permit is required under the Heritage Overlay for demolition of the existing dwelling.

7 The key question is whether a new permit is also required under the Heritage Overlay for construction of the new buildings. The existing permit was granted under the provisions of the Residential 1 Zone but not the Heritage Overlay.

8 I find that no further permit is required for construction of the buildings. The permit allows development of five dwellings. The presumption of regularity requires that permits should be taken as authorising what they purport to allow on their face without needing to look behind them to ascertain their validity or the adequacy of the decision making process underlying them. If there is any question about a permit, the correct procedure is to apply for a declaration regarding its validity or seek to have the permit cancelled. Otherwise, permits should be regarded as authorising what, on their face, they purport to allow. Any other approach would create uncertainty about a document that creates rights and obligations and that can be expected to be relied upon by various people in various contexts. Public policy requires certainty to attach to such documents.

9 This view is supported by section 28(2) of the Interpretation of Legislation Act 1984, which expressly preserves acts done under the previous planning scheme, in the case of amendments, and preserves rights and privileges acquired or accrued under the previous provisions. Section 28(2) provides:

(2) Where a subordinate instrument or a provision of a subordinate instrument -

(b) expires, lapses or otherwise ceases to have effect -

the repeal, amendment, expiry, lapsing or ceasing to have effect of that subordinate instrument or provision shall not, unless the contrary intention expressly appears -

(d) affect the previous operation of that subordinate instrument or provision or anything duly done or suffered under that subordinate instrument or provision;

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision;

10 Planning schemes are subordinate instruments within the meaning of section 38 of the Interpretation of Legislation Act 1984. The grant of the permit in this case was something that was duly done under that subordinate instrument within the meaning of section 28(2)(d). No contrary intention expressly appears in the amendment, which introduced the Heritage Overlay to the Brimbank Planning Scheme, to affect permits previously granted or to require a new permit under the Heritage Overlay for exactly the same matters that a previous permit has been granted for.

11 I find there is therefore no need to obtain a further permit for development of the five dwellings. The right acquired by the permit holder under the permit is a right to develop the land with five dwellings.

[1] The application was made under section 149 of the Planning & Environment Act 1987. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the application was amended at the commencement of the hearing.

Brimbank CC v LS Planning Pty Ltd [2006] VCAT 2218

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Judgment (19 paragraphs)

Brimbank CC v LS Planning Pty Ltd [2006] VCAT 2218 (1 November 2006)

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