A permit for development of a dwelling and earthworks was issued on 19 August 2004. The permit required the development to be started and completed within 5 years. The permit expired on 19 August 2009.
Due to personal and financial circumstances, the applicants have not been in a position to construct the dwelling they had planned. They have entered into a contract to sell the land subject to obtaining a 12 month extension of the permit by 8 January 2010.
The land has an area of 1.093 hectares. When the permit was first granted in 2004, the land was in a Rural Zone. Since then, the land has been rezoned and is now in a Farming Zone. Amendment C48 was a recent Ministerial amendment to the South Gippsland Planning Scheme, which now effectively prohibits the use and development of a dwelling on any lot of less than 40 hectares in the Farming Zone.
The generally accepted criteria, which guide the exercise of discretion about extensions of permits, were established by the Supreme Court in Kantor v Murrindindi Shire Council[1]. They can be summarised as:
Whether there has been a change of planning control or planning policy.
The probability of a permit issuing should a fresh application be made.
The total elapse of time.
Whether the land owner is seeking to warehouse the permit.
Intervening circumstances.
Whether the time limit originally imposed was adequate.
The economic burden imposed on the landowner by the permit.
At the conclusion of the hearing, I gave an oral decision. The following is an edited version of my reasons for refusing to grant an extension of time.
Planning permits are granted for specific proposals to be undertaken within a specific time frame. They are not intended to be a guarantee of adding value to land on an ongoing basis. For this reason, all planning permits are subject to expiry provisions either as specified in the permit itself or under the Planning and Environment Act1987.
Permits grant rights to use or develop land that continue for the life of the permit notwithstanding there may be changes to the planning controls. However, the expiry provisions mean that the ongoing appropriateness of permits can be re-evaluated from time to time in the light of changed circumstances and they also prevent permits from becoming stale. There is opportunity to extend a planning permit even if the use or development may now be prohibited, but the appropriateness of doing so must be weighed against a range of criteria. The Supreme Court in Kantor's case has set out a summary of what are generally accepted to be the criteria that must be considered.
It also needs to be remembered that planning permits apply to land: they are not individual to people.
The criteria in Kantor allow for the individual circumstances of applicants to be considered to a certain extent, but simply extending a permit on compassionate grounds when a proper application of the Kantor criteria would indicate otherwise, and in circumstances where the same hardship is being experienced by many other people without relief, would not be a proper exercise of my planning discretion. I have to decide cases on a consistent basis in accordance with established planning law and principles. I must apply the criteria impartially to the particular facts and the circumstances of each case. I cannot decide to extend this permit simply because I feel sorry for Mr and Mrs Bulliard.
If I go through the criteria in Kantor, they do not support an extension of time. There has been a change of planning policy and planning controls since the permit was first granted. In fact, as there have been two changes to the planning controls. There has been a change from the Rural Zone to the Farming Zone which tightened the criteria for granting permits on small losts, and then there has been Amendment C48. A permit would not be granted now if a fresh permit application was made.
The total elapse of time of five years has been considerable. Five years is a generous time for allowing construction of a relatively modest dwelling and there has been no undue or unusual economic burden placed on the landowner as a result of the permit. It may well be that the Bulliards have not had the financial means to personally pursue construction, but that is a different thing to there being expensive or onerous conditions in the permit, which might in themselves have precluded it from being acted upon.
There have been personal and financial circumstances, which have resulted in the Bulliards not being in a position to construct the dwelling. I accept that they are genuine and that they are the reason why they were not able to proceed. Unfortunately, I do not consider they are so unusual or of such a nature that they outweigh the other planning considerations in this case.
The fact is that whenever a planning control is brought in overnight like Amendment C48, which prohibits use or development that might otherwise have been permitted, there is someone or some people left 'holding the baby'. The Bulliards are in this situation as a result of this amendment. There are lots of other people, I gather, in South Gippsland who are in a similar situation. It is not easy for them and it is not easy for the Bulliards, but any solution to the problems of people owning small lots who cannot get a permit for a dwelling lie in a strategic assessment of the situation by the council and not in an ad hoc response to individual applications.
It may be that it is the result of too many ad hoc decisions in the past and the lack of a strategic vision, which has led to the Minister's decision to intervene in the way that he has - I cannot say. But in the present case, I consider it would be contrary to the purpose of Amendment C48 to grant an extension of this permit. The intention of Amendment C48 was to put a stop to dwellings on lots less than 40 hectares and subdivision of small lots less than this size. Having put a stop to these practices, it has provided an opportunity for the council to look critically at the stock of land it has got, how it should be used, the rationale for its use, what patterns of development exist in certain locations, presumably whether certain rezonings may be appropriate, and to address the issues that led to the introduction of the amendment in the first place.
So for those reasons, the application will be refused. It does not give me any pleasure to make this decision and I sympathise with the Bulliards. Nevertheless, it is my professional responsibility to make a decision in accordance with the planning law and principles that I have outlined.