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In April 2022 the Supreme Court issued a precedent setting decision that reversed the commonly held statutory planning principal that an amendment to a statutory town planning permit should not lead to a transformation of the proposal. Previously, where an amendment constitutes a ‘transformative change’ then a fresh application needed to be made for the proposal.

The Decision

In the recent case of Mondib Group Pty Ltd V Moonee Valley Council the permit applicant sought a review by the court of a decision issued by the tribunal to refuse an amendment application on the basis that the amendment constituted a transformation of the original approval. The court found that the ‘transformation test’ was no longer applicable to amendment applications on the basis that an amendment application goes through the same statutory assessment process as would be applied to a new application. Critically, the court found that because amendment applications are advertised to the public they are subject to the same level of scrutiny as normal applications. On that basis there was no reason for the transformation test to be applied and the scope of what can be considered under an amendment becomes much broader.

Implications

This decision has far reaching implications for planning permit holders. The favourable implications are that it will allow permit holders to make amendment applications and not be concerned about the qualification of the changes to be considered as an amendment. There is also the benefit of likely reduced fees and a more refined assessment that comes with a permit amendment application in lieu of a fresh application for a permit. The decision does beg the question ‘Can a live permit be amended indefinitely?’ The removal of the transformation test does allow for development to now be considered for approval under the guise of an amendment to a historic planning permit. There is a very real issue of this, particularly for historic developments that would not nowadays receive a permit under the modern version of the planning scheme. Akin to most precedent setting decisions, it has benefits and negatives depending on your permit situation and perspective. The vast majority of permit holders will benefit from the decision but for decision makers, referral authorities and third party objectors there is more planning ambiguity arising from the decision.

The new minimum garden area requirement that came into act in March last year meant bad news for developers. The new rules gave less space to develop on with stricter rules on garden space.

Now the government’s new amendment which came into effect in June gives more flexibility and freedom and clarification on what garden area can include.

The new amendment still incorporates the mandatory percentage based on the lot size as can be seen on the table below. But what can be classed as garden area and what is exempt has been identified more clearly and given wider parameters.

Lot size Minimum percentage of a lot set aside as garden area

  • 400 – 500 sqm 25%
  • Above 500 – 650sqm 30%
  • Above 650 sqm 35%

The definition of the Garden Area has been amended to include any area on a lot with a minimum dimension of 1 metre that does not include:

  • a) a dwelling or residential building, except for:
    • an eave, fascia or gutter that does not exceed a total width of 600mm;
    • a pergola;
    • unroofed terraces, patios, decks, steps or landings less than 800mm in height;
    • a basement that does not project above ground level;
    • any outbuilding that does not exceed a gross floor area of 10 square metres; and
  • domestic services normal to a dwelling or residential building;
  • b) a driveway; or
  • c) an area set aside for car parking.

 The old definition states:

An uncovered outdoor area of a dwelling or residential building normally associated with a garden. It includes open entertaining areas, decks, lawns, garden beds, swimming pools, tennis courts and the like. It does not include a driveway, any area set aside for car parking, any building or roofed area and any area that has a dimension of less than 1 metre.

The confusion came from the reference to ‘any building or roofed area’ and the ambiguity over what this includes. One issue was whether space under the eave of the house could be considered garden area or not.  What These New Changes Allow – The amendment now allows areas under eaves, fascias, gutters as well as everything listed in the definition – provided they meet the criteria – to be included as garden area. This gives less limitations and more flexibility to developers.

It is important to note upper level balconies and roof terraces are not classed as garden area. 

In addition the Council now have the power to overturn the minimum garden area requirement in certain general residential zones which are thought to need higher density housing by amending the schedule to the zone.  This gives developers more opportunities in places close to jobs, services or places in need of redevelopment.

The minimum garden area has been lifted for homeowners wanting to construct or extend a house where a planning permit is not required.

For a full description of the changes to the garden area as released by the state government click here.
 

Effective planning of a housing subdivision project is essential to ensure efficiency throughout the project. A subdivision project should encompass a number of tasks, all of which need to be completed as a simple a manner as possible. From obtaining permit approval to connecting vital sewerage, water, and electricity, a careful step-by-step subdivision planning process ensures that your project gets off to a flying start.

This infographic is made available to help property developers understand the processes involved for a successful subdivision.

If you have noticed development in your local area, you have no doubt looked out in to your backyard and wondered what your options are. 

We receive many calls from people (mostly in Melbourne, Victoria) looking into the potential of their own properties to make the most of the very strong housing market right now.  The most common question is “How large does a block need to be to subdivided ?” and the answer can sometimes be unexpected, especially when we let people know their expectations were far higher than their property will allow.  The answer is often dependant on local regulations* so an answer to the question “How large does to block need to be subdivided in Melbourne, Victoria” may differ in other locations depending on local planning regulations.

(More information on local planning regulations and information about subdividing land in Melbourne / Victoria may be found at the Victorian Property and Land Titles office If considering subdividing a block in Melbourne (Victoria), we recommend consulting Land Use Victoria and their website as the Subdivision Act in Victoria governs many considerations in Subdivision including the process required, property boundaries, consolidation of land, involvement of body corporate and owners corporations as well as matters relating to easements and boundaries with other Melbourne properties.  More information including information about fees and guides may be found at Land Use Victoria.)

So, is there a minimum site size you need to subdivide?  While issues regarding size of land and ability to subdivide in your local area can be influenced by regulations such as local planning schemes in place from the Town Planning department of your Local Council, unfortunately, the short answer is no.  The size of your specific block can be established by reviewing the copy of plan attached to your land title.  Professional surveyors are also able to assist with establishing block size. 

However, there is a quick and easy set of steps you can follow to work out the subdivision potential of a block. There are typically five types of subdivisions in established neighbourhoods:

  1. Mid street blocks, retaining the existing house and building one at the back;
  2. Mid street blocks, demolish the existing house, construct two or more;
  3. Mid street blocks demolish the existing and construct two houses side by side;
  4. A corner site, retaining the existing house and building one at the back;  
  5. A corner site, demolish the existing house and build two or more. 

Select which site type is applicable to you and apply the process set out for it below to get an indication of the subdivision potential of the site. It is important to point out that this DIY process is for use as a helpful indicator only and once you have done it is important to confirm your results with a subdivision expert in your local area (in our case Melbourne, Victoria) to confirm if you are accurate. 

1. Mid street blocks, retaining the existing house and building one at the back.

  • The distance between the side boundary fence and the side of the house must be 3 metres or greater to provide car access to the rear for the new house;
  • The distance from the back of the house to the back boundary fence should be 16 metres or greater;
  • The width of the backyard between the two side boundary fences should be 18 metres or greater.

There are situations where your site may not meet the required distances above but still may be suitable for subdivision. For example, if the distance between the back fence and the house is 14 metres it would fail to qualify for subdivision by applying the above rule. However, in this example the shortfall in the length may be compensated if the site width was greater than 20 metres. If your site fails one of the distance tests above but is well in excess of the requirements of the second distance test you must speak to a professional with local expertise to confirm a house will fit in the backyard. 

For those considering subdividing a block in Melbourne, Victoria, we can assist you with the process from start to finish.  

2. Mid street block demolish the existing house, construct two or more

  • The front setback of the front house must be the average of the two neighbours or nine metres from the front property boundary, whichever is the lesser. It must be the average of the two neighbours even if the existing house is set forward of the two direct neighbours. For example – if we were to demolish the house with the blue roof in the image below (an example of a property located in Forest Hill in Melbourne, Victoria). The front house of the new development would have to be setback the average of the two neighbours. It would not be permitted to take the setback of the current blue roof house.
  • Subtract the required front setback distance from the overall length of the site. Divide the result by 13. The answer is the likely maximum number of houses you can achieve on the site. Examining the photo above, you can see the front setback of the neighbours is 8.56 metres and 7.02 metres giving a required front setback for development on the site of 7.79 metres. The overall length of the site is 34.07 metres and subtracting the required 7.79 metres from this gives a remaining length of 26.28 metres. Dividing this figure by 13 gives a result of 2.02. This means this site can be developed for 2 house site if the existing house is demolished.

3. Mid street blocks demolish the existing and construct two houses side by side

  • These are the simplest sites to qualify;
  • If the width of the site is 15 metres or greater and the depth of the site is greater than 20 metres then it is possible to achieve a side by side development.

4. A corner site, retaining the existing house and building one at the back 

  • The depth of the site from the back of the house to the back fence should be equal to or greater than 15 metres (this allows for the required carport/garage for the existing house to be newly built);
  • The width of the site should be equal to or greater than 15 metres. 

5. A corner site, demolish the existing house and build two or more

  • Check the front setback of the direct neighbour, the front house of the new development that faces the same street will have to align with this setback or be setback 9 metres, whichever is the lesser. Refer to the below Forest Hill, Melbourne (Victoria) example – If you want to demolish the house on the corner site – the new house that faces Hampshire Road, Forest Hill would have to be setback 8.5 metres from the boundary along Hampshire Road, Forest Hill. The side setback to Vanbrook Street, Forest Hill can be 2 metres for this house.
  • Subtract the required front setback distance from the overall length of the site. Divide the result by 13. The answer is the likely maximum number of houses you can achieve on the site. Examining the photo above, you can see the front setback of the neighbours is 8.51 giving a required front setback for development on the site of 8.51 metres. The overall length of the site is 37.62 metres and subtracting the required 7.37 metres from this gives a remaining length of 30.25 metres. Dividing this figure by 13 gives a result of 2.32. This means this site can be developed for 2 house site if the existing house is demolished.

These DIY steps are provided to give readers an indication only of the likely yield of the site and this advice is general in nature. These steps do not account for specific planning controls such as minimum lot sizes your local council have applied to your site. You should therefore discuss your findings of this exercise with a subdivision expert prior to making any decisions to move forward with an application. 

Useful resources

When considering How big your block must be to subdivide in Melbourne, Victoria, the following resources are likely to be of assistance:

How do you subdivide a block?

To subdivide a backyard in an established suburb you must first appoint a professional to design a house that fits on the vacant section of land you are creating. This design must then be lodged to your council for approval to be built. This approval from council is known as a ‘planning permit’.

The approved planning permit will normally have between twenty and forty conditions attached to it. When the conditions on the planning permit are met Council will issue a document called a ‘Statement of Compliance’.

You cannot get a statement of compliance until all the conditions on your planning permit are met. On issue of the statement of compliance you appoint a conveyancer to register the subdivision with the land titles office.

When the titles office complete the registration of the subdivision the new backyard can be searched by its new street number and the subdivision is complete.

How long does it take?

It will take a minimum of 9 months to obtain your statement of compliance and title as described above. The simplest backyard subdivision is of a corner site and these take an average of between 12 and 18 months to complete.

For a more detailed description of the 11 steps that occur during this time period click here for a free helpful PDF.

How much does it cost to subdivide?

The costs of permits, plans, consultant’s fees and application fees related to subdividing will be a minimum of $40,000.00 to complete a backyard subdivision.

In addition to this you should allow the following fees for onsite works that need to be completed to obtain your statement of compliance from council:

  • $18,000 – $23,000 to install an underground drainage system to effectively direct stormwater from the site to the legal point of drainage discharge;
  • $550 – $3,000 to install an underground electricity connection point for the new lot;
  • $1,500 to install a new paling fence to separate the existing house from the new block for privacy;
  • $1,600 – $2,500 in a contribution fee to the sewer and water provider (e.g. Yarra Valley Water, Western Water, South East Water) to issue consent for a plumber to connect the new block to sewer and water.
  • A minimum of $2,500 to widen the crossover to a double width for the site. If you are constructing a new driveway and crossover you should source a quote from a concreter to complete the pour.
  • $10,000 for a fully built carport extension for the existing home.
  • If you need to remove trees from the backyard you should source a quote from a tree removalist based on the number and size of the trees.

Can I pass these costs to the buyer of the subdivided property?

This work is required to be completed as a condition on the planning permit issued by the council. If it is not complete the statement of compliance will not be issued and the subdivision cannot be fulfilled. This means you don’t have a street address for your backyard and have nothing to sell a potential purchaser.

Why can’t I pass these costs to the new purchaser?

It is unfair to charge a potential buyer the price of a block of land if they are not provided the infrastructure and services that come with it. By making the seller of the backyard incur the above fees it means the buyer is getting a block with the same services as all of their neighbours.

Will council allow my subdivision?

If your site is in a residential zone and has the following features it is appropriate for a council approved subdivision:

  • Is free of a restrictive single dwelling covenant (refer to the Section 32 for the property to confirm);
  • a distance of greater than 3 metres between the side of the house and the side fence for a driveway;
  • A depth of greater than 16 metres between the back wall of the house and the back fence of the property;
  • A width of greater than 18 metres.

The above dimensions are indicative only and cannot be used as a ‘hard and fast’ rule.

For example your site may only have a distance of 14 metres between the back wall of the house and the back fence of the property but the width of the site is 22 metres. Although not meeting one of the criteria above the additional site width would make the site appropriate for a council approved subdivision.

To confirm if we work in your local council click here.

What are the common pitfalls?

People expecting to make a massive profit margin by flipping the property with the approved planning permit from Council. People dont realise they must meet all the conditions of their planning approval to complete the subdivision correctly.

You will have to pay the amounts listed under the ‘How much does it cost?’ section above to complete a backyard subdivision. You cannot sell the backyard and pass these on to the purchaser.

The minimum timeframe to complete the process is 9 months, with the average process taking 12 – 18 months.

Don’t expect there will be a ready market for your backyard when you complete your subdivision.

Yes, you may have land available in your suburb for sale cheaper than blocks with houses, but don’t be surprised if buyers are put off by the prospect of having to build themselves.

You will likely be more successful in selling your subdivision to a local builder who can then build the home and sell it at a profit.

Yes the builder will make a profit when the development is finished but you will make your profit before this and can move on to something else with your time.

What is a realistic profit margin to expect from a backyard subdivision?

If you build the approved home and sell it as a house and land package you should expect to make 15 – 22% of the price you sell for. Anything in excess of this is a good/excellent return.

If you sell the vacant land as ‘ready to build on’ you should expect to make 35 – 45% of the price you sell for. Be aware that there is more of a market for house and land packages than homeowners who want to build a home. Refer to the ‘What are the common pitfalls?’ question above.

To view photos of subdivision projects we have completed click here.

What do I do first?

If you own a site, have done the steps recommended in this article and believe you can proceed with subdivision reach out to us via this link for a conversation with a subdivision expert who would be happy to answer your questions.

Call us today to discuss with an expert your development concept.

In July 2016 the state government founded a department and established a two year programme tasked with making the Victorian planning system more effective and accessible.

The programme was backed by $25 million of tax payer money, earmarked to run from July 2016 to June 2018 and named SMART Planning. As the programme now enters its last six months we look back at what has been achieved, what is earmarked to be achieved by June 2018 and what will happen after the programme finishes.

What has been achieved?

The most notable achievement of the programme has been the expansion of the VicSmart planning permit process. This is a process that allows ‘simpler’ applications, such as minor buildings and works in a commercial zone to benefit from a ten business day turnaround from lodgement of a planning application to Council to receipt of a decision. Since the programme started in July 2016 the qualifying criteria for VicSmart applications has been broadened which has helped business’, in particular benefit from reduced waiting times for planning permits and has assisted them in opening or growing their business. The expansion of VicSmart has been a great success and we hope to see it continue to expand if the programme is extended beyond June 2018. Specifically, expanded to include house extensions in residentially zoned land that meet prescriptive section criteria.   

The programme also boasts the launching of VicPlan which is an online interactive mapping tool that allows users to search information on planning controls affecting a property in a quick, user friendly way. While VicPlan is undoubtly a more modern and user friendly website interface than its predecessor it still only provides the exact depth of information on planning controls that its predecessor did. It lists the council the property is within and a link to the zone and overlay controls for users to read. VicPlan is held up as one of the best outcomes of the programme to date and all be it, a much sleeker website interface it is an underwhelming outcome of the programme that presents the exact same depth of information as its predecessor.

Coupled with VicPlan the programme boasts the launching of a new website which contains all the council planning schemes in one location. This website is known as the Planning Scheme Information Management System (PSIMS). This outcome presents an improvement to the previous dated interface but is not a significant improvement that assists people involved in the planning industry.    

The content of planning schemes across the state has been condensed to remove 3000 pages of clutter from planning schemes. This was a practical and sensible outcome of the programme.

The team have prepared Amendment VC142 which will affect every council in the state. This amendment will update the language and land use definitions of the scheme to reflect more modern living standards, introduce some additional planning permit exemptions for works in a heritage area and introduce some new planning permit triggers for works that were previously exempt.

What is to be achieved by June 2018?

The approval of Amendment VC142 will be a key goal of the programme that should comfortably be completed.

Establishment of a website that will allow for electronic lodgement of both planning scheme amendments and planning permit applications to the state government. This is a website for state government planning applications only. It is not a website that can be used to lodge planning applications for local councils to assess.  

What will happen when the programme ends in June 2018?

If the programme successfully obtains funding to continue after June 2018 they will launch a new programme called ‘Transform’. As of January 2018 the objectives of transform were broad and no specific deliverables publically set out. Between September 2017 and December 2017 the team here were involved in direct consultations with the leaders of the programme to collaborate on what the goals of ‘Transform’ should be and where efforts should be focused if the programme is extended. Between January and June 2018 it will be up to the SMART plan team to formulate their business case to ensure additional funding is made available for ‘Transform’.  

At CS Town Planning Services we are well known for building design, town planning and VCAT representation mainly for multi-unit developments. 

Multi-unit developments take time to take from concept to decision due to the standard processes in place for planning applications at Local Councils.  From mum and dad investors through to experienced development companies, the process can be frustrating especially given the sometimes subjective clauses in planning legislation that can have different interpretations.  

But what is the process if you only want to make a simple modification to an already approved building?  What if you want to put a small sign up to advertise your business?  Will this require a long, complicated planning application?

The answer to that is not necessarily. At CS Town Planning Services we have a number of commercial clients and one such client has been rolling out minor alterations to their bank branches over the past twelve months.  The alteration is to replace an outdated item with a new version, with no changes to the building footprint or use and no alterations to the facade of the building.  Many of these minor works are considered exempt from planning due to the zone the building is located in; however when it comes to certain zones and in particular, a Heritage Overlay then planning consent is required.

This year we have explored the Vicsmart process for these projects in Victoria. Vicsmart is a planning process for minor works with a prescriptive list of what is and isn’t accepted under this system.  The main bonus of using Vicsmart instead of a traditional planning application is two fold: time and cost savings.  For example; minor buildings and works to a shop in a Heritage Overlay costing $9,000 would cost the applicant $1,102.30 and take approximately 60 days to get a permit.  Through Vicsmart the same process would cost $192 and take 10 business days.  The difference is due to the fact the applicant must only use Vicsmart for a set list of applications and therefore they are predetermined as appropriate for the process without needing in depth analysis or reporting.  The applications are also not advertised to the public. 

So, does it really work? 

The answer is a resounding yes!  In the last 6 months we have lodged 18 applications through the Vicsmart process.  All of these applications have resulted in an approved permit with very little interaction with Council between lodgement and permit receipt.  We have kept some statistics on the process and report the following:

Average days from lodgement to permit: 10.78 business days
Average days from lodgement to permit – metro Melbourne: 14 business days
Average days from lodgement to permit – regional Victoria: 9.17 business days

This process has allowed us to efficiently deliver tight deadlines and allow the flow from concept to construction for these minor alterations in a smooth and successful way.  Without the Vicsmart process, our client’s bill would have been $19,841.40 for planning fees and instead is $3,456.  This is a really important consideration too when looking at small businesses, where a simple alteration that costs $6,000 to construct may cost over $1,000 in planning fees! 

So, any down side to this process?

The Vicsmart process is really useful tool for many different purposes and is underutilised overall due to the fact that Local Councils often don’t inform applicants that they could use the process.  Whether intentional or more likely through confusion over what is applicable, it is a definite issue.  There is also a lack of clarity over certain applications and whether they are appropriate for the process.  The other issue is there aren’t enough minor works covered through the process so often something that should be available through Vicsmart is ruled out due to an Overlay that has no relevance to the application.  These points were echoed recently through the Victorian State Government in their Smart Planning Discussion Paper ‘Reforming the Victoria Planning Provisions’.

The discussion paper raises the argument that Vicsmart should be utilised much more broadly and cover many more application types.  The way this would work is by setting either very clear preset codes for self assessment or a detailed list of application types much like they use in New South Wales or Queensland.  This opens the door for a much more efficient system for many application types, reducing cost and time for businesses and investors.  And it is really good news.  In Victoria we have a lot of activity in building and development and minor works are often delayed due to planning applications that are not necessary for the works involved.  Broadening the Vicsmart ‘net’ would allow for a smooth, more simplified planning process for appropriate applications.                      

To find out how we can improve planning efficiency for your company or project, give us a call on 03 9824 1902 or email info@cstownplanning.com.au  

Recently, we have seen an increase in enquiries to our office from people wanting to take their Council to VCAT over restrictive permit conditions or refusals.

So, we thought it would be interesting to find out some statistics relating to successes at VCAT for applicants taking on Council.  Below are results as recorded on the Victorian State Government website for VCAT hearings in the previous Financial Year.  We have narrowed the information down to the five Councils that we work in the most: Banyule; Boroondara; Glen Eira; Knox; and Monash.

Banyule
Total number of cases heard: 38
Cases affirmed (won by Council): 4 (11%)
Cases varied (changes made to application but ultimately approved): 12 (32%)
Cases set aside (won by applicant): 18 (47%)
Cases withdrawn (withdrawn before hearing): 4 (11%)

Boroondara
Total number of cases heard: 88
Cases affirmed: 30 (34%)
Cases varied: 19 (22%)
Cases set aside: 33 (38%)
Cases withdrawn: 6 (7%)

Glen Eira
Total number of cases heard: 155
Cases affirmed: 19 (12%)
Cases varied: 39 (25%)
Cases set aside: 86 (55%)
Cases withdrawn: 11 (7%)

Knox
Total number of cases heard: 26
Cases affirmed: 8 (31%)
Cases varied: 4 (15%)
Cases set aside: 13 (50%)
Cases withdrawn: 1 (4%)

Monash
Total number of cases heard: 99
Cases affirmed: 78 (79%)
Cases varied: 12 (12%)
Cases set aside: 9 (9%)
Cases withdrawn: 0 (0%)

So what does that tell us?  Overall, against Council, applicants have won their cases outright 43% of the time and applicants have had their applications varied but approved through VCAT 23% of the time.  This tells us that Councils have been overturned 66% of the time.  This figure is somewhat misleading overall as readers will note that Glen Eira has a success rate of 12% against Monash with a success rate of 79%.  This tells us that Councils have very different success rates to each other and that it appears to be a lot more challenging to take Monash to VCAT over a refusal than the other councils listed… or does it?

Let’s have a look at CS Town Planning Service’s VCAT statistics for the same period.  In the last financial year we represented clients in five VCAT hearings.  One of the hearings was against Glen Eira, and the other four were against Monash.  Our success was 100% in all matters, meaning our client came away with an approval for their development every time we took a case to VCAT.  If you look at the statistics above, you will note that Monash had nine cases set aside at VCAT in the last financial year, with CS Town Planning Services’ clients making up 44% of those!  This is quite remarkable when you consider that Monash is successful in 79% of cases at VCAT overall.

Like any appeal, you will always need strong evidence to support your case.  These may include alterations to the original application, including amending plans.  You may also need an expert witness to support your claims.  Most importantly though, you need someone representing you with a track record and proven success.  

So, if you are considering taking your Council to VCAT over a recent planning decision; give us a call for an informal and confidential chat today 03 9824 1902.

It is not unusual for planning applications to become contentious between neighbours.

In fact they can often become very heated and relationships can become strained and often breakdown between neighbours. We have seen it first hand on more than one occasion. While we accept this for what it is as part of the planning process it none the less saddens us when relationships between neighbours sour as a result of one developing their property at the perceived expense or detriment of another. The below tale of woe sets out an all too familiar occurrence and explains how perilous poor neighbourly relations can be in the planning approval process.  

In June 2015 we applied to Nillumbik Council to develop a second house on a large block of land in Eltham. Anyone who knows Nillumbik Council will be aware of their strident position on tree retention within sites as part of development. This was our main concern at the outset of the project as the site was semi-rural in character and surrounded in large native trees. However, our client had a different concern. He was convinced from the outset of the project that his neighbour would take them to VCAT even if Council supported the application. The reason he was convinced was because there was a long history of dispute between them and this planning application was going to present the next battle. The combative saga had been ongoing for a number of years and involved a wide ranging, yet typical neighbourly disputes such as fencing, noise complaints etc. The Council approved the planning application on the 9th October 2015 but as expected an appeal against this approval was lodged to VCAT by the neighbour. The development itself comfortably complied with the regulations as set out in the planning scheme and hence received Council support. Despite this any neighbour can still appeal the decision of Council without the need to provide any compelling evidence to support the grounds of their appeal. The case was heard by VCAT on the 28th April 2016 and the VCAT order upholding the Councils approval was issued on the 24th June 2016. Although a positive outcome, this unnecessary saga cost our client a full nine month delay in the commencement of his project. The development commenced construction in late 2016 and is scheduled to be complete in late 2017 as an owner builder project. Predictably our client wanted to know if there was any avenue to pursue costs associated with the delay and the appeal from his neighbour after the decision was issued by VCAT. The simple answer is no. It would require a very unique set of circumstances for VCAT to award costs against an objector appealing an approval decision by a local Council, despite the clear weakness in their case. The reason for this is because it would be seen as a deterrent to any future objector to a planning decision to appeal if the threat of costs being awarded against them looms. This could be perceived as being unjust towards objectors in the planning process and an advantage for developers.  

Planning permit approvals is an adversarial process and if a dispute emerges it is likely neither party will end up happy with the outcome. The test for professionals in the industry is to reach an outcome that is acceptable to parties. It is always in your interests to maintain amicable relationships and open communication with your neighbours if you intend to develop your site. A simple concept but not an easy one when the stakes are high and emotions are charged.

Back in 2011 our client approached us about subdividing his backyard and selling the land as a vacant block.

Our client was clear that he didn’t want to develop the back of the property and he also did not want to undertake the process of designing a house for the purposes of getting the subdivision approved. He simply wanted to subdivide the land and let the future purchaser build whatever house they wished on the property. This is a common request for the team here at CS. In this particular case we successfully applied to Banyule to approve the subdivision without house plans through the use of a ‘Building Exclusion Zone’ on the back section of the site. As the name suggests this was an area we designated on the plan as being exempt from any buildings or structures. This exclusion zone essentially hugged the property boundary line but was set back from the boundary by a distance of three metres on all sides. The remaining area on the site became known as the ‘Building Envelope Area’ and this was the area any future house could be constructed on the site. The city council were comfortable with this proposal but as part of Banyule Council’s approval of the subdivision the Building Exclusion Zone had to be registered on the title for the land as a Restriction. This meant that in the future if any landowner of the back section of the site wanted to build outside the designated building envelope they would have to apply to Banyule City Council for consent to do so. Our client placed the back yard on the market as a vacant block on completion of the subdivision in 2016. It was quickly acquired by a new owner eager to build their dream home in Greensborough on an affordable block of land. The new owner complied with the Building Exclusion Zone as registered on title and was able to obtain a building permit for their new home prior to settlement of the land. It was a great success story for both our client and the new owner of the site.

Approvals for vacant lot land subdivisions such as this one in Greensborough are difficult to obtain. This is because the local council planning department prefer approving subdivisions with house plans attached to provide them and the neighbours more certainty about how the new house will look. In the town planning process if the council approve a vacant lot land subdivision there is rarely any avenue for the community or councils planning department to have a say in the design and appearance of the new building. Almost every metropolitan Council will discourage vacant lot subdivision applications in established neighbourhoods and for this reason we discourage our clients from pursuing them.

It is much easier to get Council on board with a subdivision where house plans are included and a vacant lot subdivision application has a much higher chance of rejection by Council.