Planning Permit holder timed out in recent VCAT red dot decision

Red Dot Planning Decision Review – Moorabool Shire Council v Ethanwray Developments Pty Ltd (2016)

Beck Legal recently represented Moorabool Shire Council in the recent VCAT red dot decision of Moorabool Shire Council v Ethanwray Developments Pty Ltd .

 Red dot decisions are significant decisions made by VCAT in the Planning and Environment List, which provides guidance with respect to important planning matters.

This case concerned two interesting questions of law stemming from a Planning Permit issued by Council which permitted the development of land for the purposes of offices and a 10-lot subdivision.

The first question of law which the VCAT was called upon to answer was – had the entire permit expired as consequence of the subdivision not being certified in time, which, if answered in the affirmative, would mean that the development works undertaken on the land were undertaken without a permit.

Member Whitney decided in favour of Council, that is the permit had expired as consequence of the subdivision of the land not being certified in time, primarily on the basis that an extension in time to a planning permit could only extend the time in which that condition could be satisfied, it could not change the mechanics and operation of the condition itself, as argued by the Respondents which if accepted would have allowed the permit to remain active.

The second question of law that needed to be answered was just what had been constructed at the land? Had offices, as was permitted to be constructed under the permit, been constructed or had the Respondents constructed dwellings for which no planning approval had been granted.

Member Whitney determined in favour of Council that the existence of built in robes with mirrored sliding doors, kitchens including substantial cabinetry, laundry troughs and clothes lines all gave rise an overall indication that the permit holders had sought to build dwellings from the outset, and not offices as permitted under the expired permit.

Consequently, Member Whitney ordered, amongst other things, that the buildings on the land could not be used until planning approval had been obtained for the development of the land and the development completed in accordance with the permit.

If you have any questions or issues related to planning law please contact Beck Legal on 03 5445 3333.

Written by Jamie O’Regan, Solicitor at Beck Legal

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