Victorian Civil and Administrative Tribunal|2004-06-23

Priority Properties PL v Frankston CC No.1 [2004] VCAT 1208 (23 June 2004)

Development Plan Overlay; notice requirements; whether medium density residential development is "generally in accordance with the development plan"

Mr Anthony Haddad of Taylors Development Strategists

1 Application P1170/2004 is an application for review pursuant to section 79 of the Planning and Environment Act 1987 in respect of the failure of the responsible authority to determine to issue a permit for 14 dwellings on Lot A of a proposed 25 lot subdivision at 130 Wedge Road, Carrum Downs. There is a contemporaneous planning permit application for the plan of subdivision, which is also the subject of a section 79 failure application for review in P1172/2004.

2 The subject land is included in the Residential 1 Zone and Development Plan Overlay Schedule 1 in the Frankston Planning Scheme. The development plan which has been approved under the Development Plan Overlay is the Carrum Downs Outline Development Plan. The subject land is not shown on the Carrum Downs Outline Development Plan for any special purpose or use.

3 Lot A on the proposed plan of subdivision is a large lot of 4,102m2 whereas the other lots on the plan range in size from 330m2 to 588m2. Fourteen single and double storey units are proposed on Lot A.

4 The purpose of the directions hearing is to determine whether or not the application is exempt from the notice requirements under section 52 of the Planning and Environment Act 1987.

5 The applicant contends that the permit application is for residential use, which is generally in accordance with the Carrum Downs Outline Development Plan, therefore the application is exempt from the notice requirements, decision requirements and review rights pursuant to clause 43.04-2 of the Development Plan Overlay.

6 The Council submits that the Carrum Downs Outline Development Plan does not specifically nominate subject land for multi dwelling development, therefore Council's view is that any application for more than 1 dwelling on a lot remains subject to the notification requirements of clauses 32.01 and 55 of the Frankston Planning Scheme, and section 52(1)(a) or (d) of the Planning and Environment Act.

7 I have decided that the permit application in application for review P1170/2004 for 14 dwellings is generally in accordance with the Carrum Downs Outline Development Plan and is therefore exempt from the notice requirements of section 52(1)(a), (b) and (d) of the Act pursuant to Clause 43.04-2 of the Frankston Planning Scheme for the following reasons.

8 The Carrum Downs Outline Development Plan does not draw any distinction between different types of residential development. There are no areas shown on the Carrum Downs Outline Development Plan specifically for multi dwelling development, therefore it is inappropriate to draw a distinction between applications for a single dwelling on a lot compared to multiple dwellings on a lot. The only special residential areas shown on the Carrum Downs Outline Development Plan are the proposed Sandhurst Residential Areas associated with the proposed Sandhurst Golf Community north of Wedge Road, which I do not consider is relevant to this issue.

9 Under clause 32.01 (Residential 1 Zone) of the Frankston Planning Scheme a permit is required for the construction of 2 or more dwellings on a lot. Such applications are subject to the normal notice requirements of section 52 of the Act. Clause 55 of the planning scheme does not specifically require a permit for development, but rather sets out requirements that a development must meet. It is the zone and overlay provisions that determine the need for a permit. The development plan overlay provisions do not remove the need for a permit under clause 32.01 nor do they affect the requirements under clause 55 that must be met. Rather, they provide that a permit must not be granted until a development plan has been prepared to the satisfaction of the responsible authority, and that an application under any provision of the scheme which is generally in accordance with the development plan is exempt from notice and appeal. Thus the Council's argument that other provisions of the scheme create a need for a permit and advertising under these provisions is required is misconceived. Specifically, clause 43.04-2 provides as follows:

An application under any provision to this scheme which is generally in accordance with the development plan is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the appeal rights of Section 82(1) of the Act."

10 It should be noted that one of the purposes of the development plan overlay is to exempt an application from notice and review if it is generally in accordance with the development plan. Another purpose is to identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land.

11 I do not consider it is appropriate for the Council to circumvent these specific provisions on the basis of a distinction between types of residential development which are not recognised in the development plan. It is even less justifiable to ignore the exemptions in the Development Plan Overlay on the vague grounds that "medium density development is quite unpopular" or that "people from further away" may have an interest.

12 The style of residential development proposed in this application is becoming a common and accepted form of accommodation for people throughout Melbourne. Resistance to this type of development is most often encountered in established urban areas where it may supplant existing, lower density development. In these locations, notice is important where interface, character and amenity issues are more likely to arise. However, in newly developing residential areas, especially on lots specifically created for this type of development, it is quite contrary to the purpose of the Development Plan Overlay to import these prejudices against medium density development. If the Council considers that there are now established urban areas within the Carrum Downs Outline Development Plan area where the introduction of medium density development may cause detriment and should require advertising, the correct course of action is to remove these areas from the operation of the development plan overlay. In this respect, I draw the Council's attention to the VPP Practice Note on applying the incorporated plan and development plan overlays (January 2003), where it states:

"It is valuable for all overlays and plans to be reviewed on a regular basis. The purpose of the review is to ensure that the plan is still relevant to and supportive of the proposed use and development of the land. ....

* If the proposal anticipated by the plan is substantially complete, the plan and indeed the overlay may no longer be necessary. There is no justification for retaining a plan or overlay providing exemptions from notice and review for compliant proposals when the plan area has become a normal part of the urban fabric, experiencing only incremental change."

13 However, whilst the Development Plan Overlay continues to apply to land, I consider that the benefits of the overlay in terms of exemption from notice and appeal provisions for compliant development should be accorded to applicants for permits. In the present case, I find that the proposed development is generally in accordance with the Carrum Downs Outline Development Plan and accordingly is exempt from the notice requirements of section 52(1)(a) and/or (d).

Environment Act 1987

Priority Properties PL v Frankston CC No.1 [2004] VCAT 1208

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Priority Properties PL v Frankston CC No.1 [2004] VCAT 1208 (23 June 2004)

Parties

Legislation Cited (1)