Kinson Wong - CS Town Planning Permits

As COVID 19 restrictions ease, the Victorian Civil and Administrative Tribunal (VCAT) has recently announced new measures leading to partial reopening of the tribunal. With VCAT putting in place a digital system to allow hearings to be heard via online platforms, phones and “On the Paper”, some less complex cases were able to conduct hearings with other matters adjourned. According to VCAT data, there have been up to 12 per cent of cases were able to be determined on the paper without a formal face-to-face hearing during the shutdown.

To date, cases that were adjourned between March and May are in the process of being relisted for hearing in the last quarter of this year and cases listed for hearing between 18 May to the 29 May 2020 have been adjourned until October this year. Majority of the cases will be determined “on the paper” with a small number of compulsory conferences occurring in this period over the telephone or via video conferencing.

If the participants opt for a traditional face-to-face hearing the matter will be adjourned until 2021 due to the backlog of existing cases and the need to consider social distancing criteria.

VCAT also noted that new applications would not have been receiving initiating orders from VCAT because resources have not been available to facilitate this as VCAT is working on this backlog and all applications that have been filed will soon be receiving initiating orders.

To deal with the backlog of cases, the Planning and Environment Division launched the revamped Short Cases List which has been set up to deal quickly and efficiently with certain cases in the Division.

Applications in the Short Cases List will be those that are suitable for hearing and determination within an allocated time of three hours. Two hours will be allocated for the presentation of submissions and evidence. A further one hour will be available to allow members to prepare and deliver a decision.

The main features of the revamped list include cases that:

have limited parties
have issues which are limited in number and extent and where a site inspection is unlikely to be required
are capable of being heard and determined within an allocated time of three hours
have addressed any Cultural Heritage Management Plan issues.
Hearings to be listed at approximately 12 weeks from lodgement of the application.

Parties will be required to give VCAT and each other their submissions ahead of the hearing. Parties are encouraged to use a template for the preparation of submissions, which identifies the issues in dispute.

VCAT also announced that all objector appeals will be listed for compulsory conferences which will be conducted by telephone, online platform or “on the paper” as appropriate.

For all applications received in the Major Cases List, these applications will no longer be automatically listed for a practice day hearing. If an applicant requests a practice day hearing, justification for it will need to be provided. If procedural orders are sought, those orders should be included within the application for review.

The process of VCAT hearings are changing rapidly and these initiatives are assisting to reduce the lengthy process. These new methods of hearings are likely to become the new normal and in turn allowing more cases to be heard in a shorter timeframe.

During the past three months of lock down, CS Town Planning successfully represented a number of clients in VCAT and achieved satisfactory results via the “on the paper” method. If you have any queries in relation to the changes to the VCAT hearing process, please contact our office to see how we can assist. For the full announcement by VCAT, please click here.

A Planning Scheme Amendment (C186dare) with the aim to increase Open Space Levy, similar to Monash City Council’s C148 Amendment, been proposed by the Darebin Council. The council is proposing to increase the open space levy to ensure Darebin improve the existing open spaces and increase open space within Darebin.

It is understood that Darebin Council engaged the same planning and economic consultancy firm as City of Monash, SGS Economics & Planning, to analyse Darebin’s open space contribution requirements. According to the report, The Open Space Contributions Review Report (SGS Economics and Planning, 2019), with no increase in contribution rates from developers, there will be a per-capita reduction in the amount and quality of open space available to the Darebin community.

The Darebin Planning Scheme currently collects an open space contribution rate as follows:

Type or location of subdivision	Amount of contribution for public open space
The subdivision of land that creates:
1 additional lot	None specified
2 additional lots	2%
3 additional lots	3%
4 additional lots	4%
5 or more additional lots	5%

The report finds that there is need for an 18.2% open space contributions rate across land uses in Darebin to reach optimum quality of open space (30 square metres per capita). However, the report recommends an increase in the levy to a 10% open space contributions rate in Darebin across all land uses, to help ensure that the future community will have access to a reasonable standard of public open space provision. A 10% open space contributions rate equates to approximately 16 square metres (or equivalent) of open space provision per capita. Similar calculation and reasonings as the report prepared for City of Monash which Monash’s C148 Amendment was based on.

The proposed new open space levy required is calculated based on the following factors:

Open space need per person
Projected population grown
Net developable land

The amendment proposed by Darebin Council is pursuing a flat rate levy that applies to all subdivisions of two or more additional lots, as every development, regardless of its location or size, has the same proportional responsibility to contribute towards the open space needs of the future population. The increase in the Open Space Levy rate to 10 per cent will apply to all subdivisions for residential, industrial or commercial purposes within the municipality (exemptions continue to apply).

The full Planning Scheme Amendment documents released by Darebin Council can be found here.

The Independent Panel Hearing for Monash City Council’s C148 Amendment took place in February 2020 and the Interim Panel Report was released recently. Monash’s amendment was widely opposed by the public with 36 submissions opposing the amendment out of the 44 submissions received. The Panel took the view that a municipal wide benchmark of 30 square metres was something of an unrealistic target in a built-up area like Monash. In the case of City of Darebin, it is expected same view will apply as it is also a built-up area.

In the Interim Panel Report for Monash’s C148 Amendment, the Panel concluded:

There is a lack of an implementation plan which nominates areas in which land acquisition will be sought, in addition to open space projects and works with cost estimates.
The exclusion of regional open space and open space outside the municipality overstates the areas within the municipality that are not within 400 metres of open space.
Whether a change in the rate is justified depends on the basis for calculating the new rate.
The treatment of the whole municipality as a single planning unit is appropriate.
An inclusionary requirements approach is reasonable.
Applying the same rate to employment land is not justified.
Council’s standard of 30 metres square per person does not adequately support the calculation of a 10 per cent contribution rate.
An implementation plan which nominates precincts in which land acquisition will be sought and projects and works in open spaces with cost estimates is a more appropriate basis for the calculation of a contribution rate

Based on the reasons set out in the Interim Report, the Panel recommends that Monash Planning Scheme Amendment C148 not proceed at this time and recommends the Monash Council to review the Amendment documents and undertake additional work before re-exhibited to the public. The Panel will then reconvene to consider any submissions. Alternatively, Council should abandon the Amendment proposed by Monash. More on Monash C148 Amendment: here

Darebin Council’s proposed Planning Scheme Amendment C186dare was on exhibition from 14 November 2019 to 16 December 2019 with Panel Hearings originally planned to take place in early 2020 but due to the impacts of the Covid-19 pandemic and the associated social distancing laws, Planning Panels Victoria (PPV) have been unable to hold face to face planning panel hearings. A directions hearing was held via teleconference on 16 April 2020 to consider the way that the planning panel should be heard with a further directions hearing has been scheduled for 29 May 2020. More updates by the council will be posted here.

The Amendment C148, proposed by City of Monash, proposes to increase the public open space contribution requirement for subdivisions of 3 lots or more to 10% cash, 10% land, or a mix of both. More on Amendment C148 can be found here. Currently Council requires a public open space contribution of between 2% and 5% depending on the number of lots created. A contribution rate of 10% has been determined as necessary by the City of Monash to deliver a reasonable standard of open space provision across the whole of Monash for a growing population. The Monash Council claims this contribution rate reflects the need to ensure that all residents in the future have contributed to providing an appropriate level of public open space services and earmarks a need of 30 square metres per person, according to a report prepared by Dr Marcus Spiller.

On Monday 17^th Feb 2020, an independent Planning Panel took place for the hearing of the Amendment C148. Dr Spiller, who supports the council’s amendment provided justification on why Council should adopt a rate of 30 square metres of Open Space per person which in turn, translates to requirement of 620.72 hectares of Open Space in City of Monash by 2028. Ultimately arriving at the uniform 10% contribution rate for Monash. You can download the Evidence statement prepared by Dr Marcus Spiller here. Matt Ainsaar, Managing Director and founder of Urban Enterprise, representing Salta Properties, Golf Road Project Development and Talbot Road Finance objected to the amendment, identified three main issues with the Amendment relevant to open space contributions:

The appropriateness of the open space calculation method applied to determine the 30 square metres per person;
The suitability of the provision standard of 30sqm per person; and
The equity of applying a single rate to all land uses and areas within the municipality.

An Interim Panel Report has recently been released by Planning Panels Victoria on 5 May 2020.

From the report, it is clear the amendment was widely opposed by the public with 36 submissions opposing the amendment out of the 44 submissions received.

In the report, the Panel takes the view that a municipal wide benchmark of 30 square metres was something of an unrealistic target in a built-up area like Monash. The opportunity to acquire additional open space is severely constrained, a view supported by the evidence presented to the Panel.

In addition, as population increases the ratio per person will, of necessity, decrease and so a per person provision has only limited value. The Panel concluded that it was a flawed metric for the calculation of an appropriate open space levy rate. In fact, the MOSS, which was prepared by Dr Spiller to support the amendment, said as much when it stated:

However, the 30m² per capita benchmark will not be considered as a blanket figure for determining open space as there are other factors that need to be considered, such as ‘proximity-based’ standards.

The absence of an implementation plan as part of the MOSS was deemed a significant shortcoming in arriving at an appropriate open space levy rate by the Panel. Although, the Panel accepts that, with a growing population there may be a need to increase the amount of the open space levy. However, the amount of the increase in the open space levy and the increase in its scope was not justified by the information presented.

The Panel listed out matters that need to be addressed:

An implementation plan should be developed. More detail on each of the implementation tasks, responsibilities, cost estimates and priorities need to be included.
More analysis and justification are needed to apply the same open space levy rate to residential and non-residential subdivisions.
There is a lack of clarity and consistency in the use and meaning of community open space.
The identification of public open space gaps in Monash should be clarified. The Panel considers that the use of ‘Monash community open space’ as the primary measurable is too narrow and does not take into account open space in adjacent municipalities or regional open space.

In the Interim Panel Report, the Panel concluded:

There is a lack of an implementation plan which nominates areas in which land acquisition will be sought, in addition to open space projects and works with cost estimates.
The exclusion of regional open space and open space outside the municipality overstates the areas within the municipality that are not within 400 metres of open space.
Council’s expenditure on open space is not a relevant consideration for the Panel.
Whether a change in the rate is justified depends on the basis for calculating the new rate.
The treatment of the whole municipality as a single planning unit is appropriate.
An inclusionary requirements approach is reasonable.
Applying the same rate to employment land is not justified.
Council’s standard of 30 metres square per person does not adequately support the calculation of a 10 per cent contribution rate.
An implementation plan which nominates precincts in which land acquisition will be sought and projects and works in open spaces with cost estimates is a more appropriate basis for the calculation of a contribution rate

Develop an implementation plan either as part of the Monash Open Space Strategy or as a separate document, which nominates precincts in which land acquisition will be sought and projects and works in open spaces with cost estimates.
Use the implementation plan as the basis for the calculation of an open space levy rate in place of the 30 square metre macro-provisioning standard.
Develop a detailed justification for the application of the same open space levy rate to residential and non-residential subdivisions.
Clarify the use and meaning of community open space in the Monash Open Space Strategy and Clause 22.15.
Review the areas designated as public open space gaps.

The Panel recommends once these works are complete, the Amendment should be re-exhibited to the public. The Panel will then reconvene to consider any submissions. Alternatively, Council should abandon the Amendment. At this point in time, Monash Council is currently considering the Panel recommendations to determine the next steps.

The full Interim Panel Report can be downloaded here

Melbourne City Council and the Department of Environment, Land, Water & Planning (DELWP) have been taking each other to court since 2014 surrounding a permit for a hotel development at Melbourne’s Forum Theatre and its neighbouring land. The key issue concerned was the floor area of the proposed project. Under the Melbourne Planning Scheme, the Minister of Planning is the responsible authority for considering and determining applications for developments with a gross floor area exceeding 25,000 square metres. If the floor area does not exceed 25,000 square metres, the council normally assess the application and issue the planning permit.

In the permit application at the Melbourne Forum site, the permit applicant had combined the floor area of the Forum Theatre (6,387 square metres) with the gross floor area of the development scheme for the neighbouring site (19,620 square metres). Melbourne City Council successfully argued that the Minister’s decision to grant the permit was invalid because the floor areas could not be combined in such a way. Initially, The Victorian Civil and Administrative Tribunal (VCAT) held that the hotel development was not physically or functionally connected to the Forum Theatre building. Accordingly, Melbourne City Council was the responsible authority, not the Minister.

However, with The Minister of Planning taking the case to Supreme Court of Victoria, the key issue no longer surrounds the permit for the development at Forum Theatre but Melbourne City Council’s & the state planning departments different interpretation of the Schedule to Clause 72.01 (Responsible Authority for this Planning Scheme) of the Melbourne Planning Scheme. Although the case is still not yet settled, this issue surrounding the interpretation has been evolving over the past six or so months, led by the Victorian Supreme Court’s decision in relation to the Forum Theatre’s permit application.

Previously, the general public’s understanding is that only applications for new developments that exceeds Gross Floor Area of 25,000 sq.m will be considered and determined by the Minister of Planning. However, it has been determined that, other than VicSmart & Subdivision applications, any use or development application that engages a building with a Gross Floor Area greater than 25,000sq.m sits with the Minister for Planning, based on Melbourne City Council’s current interpretation of the provision.

The lack of consistency in how this provision was being interpreted across Melbourne City Council and the State government planning department (and across application types) have caused confusion to those who are looking to apply for planning permits within City of Melbourne. It is important that permit applications are lodged to the correct responsible authority to ensure the statutory authorisations issued by Council or the Minister for Planning are valid and lawful.

The team at CS Town Planning have put together the below to explain the process on how to make applications to the Department of Environment, Land, Water and Planning:

The Best Starting Point: Speak to a Town Planner

A town planner with experience in dealing with Department of Environment, Land, Water and Planning can provide you with advise on what types of applications are assessed by the department. View the full list of applications and decisions on planning permits where the Minister for Planning is responsible for making the decision at this link.

Preparing for the application

The Department of Environment, Land, Water and Planning (DELWP) do not offer pre-application meetings so it’s important to have professional assistance in the early stages. A professional town planner will be able to confirm and check the requirements before you submit an application to the department. You’ll need to provide different information for different types of permit applications. That might include site plans, elevation drawings or a written report. This information will need to be at professional town planning standard for council to conduct assessments on. A professional town planner will be able to justify your project in a way that the department will be more likely to support your idea, leading to a more seamless approval process. Having a town planner to assist you earlier on, can identify all the requirements right from the start and help you to prepare what is required for you to get your dream design approved.

Below outlines the different stages your town planning application will go through after it has been lodged to DELWP.

Request for Further Information

After your town planner lodges the application, a planning officer of DELWP will be assigned to assess the application and may advise you (in writing) further information is required. This stage is called Request for Further Information stage, this request is common and 99% of applications will go through this stage. If they do, they will contact your town planner who will then be able to work with you and your other consultants to gather all the required information and provide them promptly to the council. If the information can’t be provided in time, the application won’t be processed further.

Referral Authority

The Minister for Planning will generally seek comments from the local council of the subject property when assessing a planning applications. In specific circumstances, Councils are a Referral Authority for the application, and the Minister for Planning must formally refer the planning application to Council.

Officer’s Report

Once all information required has been lodged and Referral Authorities provided comments, a report will be prepared by the assigned officer. The report assesses the proposal against the relevant planning controls and policies, and contains technical advice used to inform the Minister’s decision.

Minister’s decision

The Minister of Planning will assess the proposal and decide to:

Grant a permit
Refuse a permit.

A permit can be granted with or without conditions, and a proposal can only go ahead if all conditions are met. For example, a permit for a restaurant might be issued on the condition that a certain number of car-parking spaces are provided. There are opportunities to apply to VCAT for a review such as if a permit condition is unacceptable, similar to normal council applications.

The COVID-19 pandemic has changed our way of life dramatically. As the pandemic continues, it’s impacting our community in many different and difficult ways. We have seen a lot of our daily activities going digital and online. Schools suspended all face-to-face teaching, doctors moved to consultations over the phone and majority of us are now working from home with meetings taking place over video conferences. All to protect the health and wellbeing of our community. These are unprecedented times and these changes are also happening within the Planning sector, especially VCAT hearings which traditionally rely heavily on face-to-face hearings. VCAT is currently closed to the public and can only limited amount of cases by phone during the coronavirus (COVID-19) pandemic.

Recently VCAT released two statements in relation to the process of VCAT hearings during the Coronavirus restrictions after new laws been passed this week, making procedural and process changes to enable the courts, corrections and wider legal system to continue to deliver vital justice services while complying with coronavirus related restrictions. This includes a temporary power to make further procedural changes by regulation, so that justice processes can be quickly adapted to changing public health requirements. You can read the full press release by the premier by clicking this link.

Victorian Civil and Administrative Tribunal (VCAT) has a very important role within Victoria’s planning environment. Ensuring VCAT can hear important planning and other matters remotely during this difficult time can ensure billions of dollars’ worth of projects can continue and keep the economy afloat.

As the Premier’s media release stated, work has already started on the $5.2 million upgrades required for VCAT hearings to go digital, which will be rolled out over the next 12 weeks.

The upgrades will include project management software, software programmers, software licenses, information technology hardware and digitisation and scanning of paper files. VCAT will also consider how these upgrades can also help ensure others matters can be heard digitally.

Only urgent matters have been scheduled since late March because of the coronavirus. This has meant that many current and pending matters, especially Planning and Environment List related issues were on hold since.

After the upgrades are completed and tested, VCAT stated directions hearings and less complex matters will generally continue to proceed by telephone. Video technology will only be used for suitable matters. All parties will soon be contacted by VCAT to advise if their matter is to proceed by telephone or video technology. Some matters may also be progressed ‘on the papers’ where possible.

With these matters able to proceed after VCAT gone digital, businesses and individuals will have certainty on their planning and development matters. These projects help create jobs and will support economic activity during the coronavirus crisis.

Frequently Asked Questions

Existing cases

Will my case still be heard?

VCAT is still hearing certain cases, primarily about residential tenancies, guardianship and some critical matters by phone. Other matters, such as planning permit related cases are deemed non-critical have been postponed to a future date to be set.

CS Town Planning are representing a number of clients in VCAT during the pandemic. From our experience, the hearings are likely to proceed “On the Papers” or being postponed to August 2020.

My case has been adjourned, what’s next?

VCAT is currently working out its schedules and how to proceed with these cases. At the moment, limited cases are heard telephone or “On the Papers”.

All parties will be contacted by VCAT to confirm if all parties are agreeable to proceed in such format. From our experience, some cases are better to proceed “On the Papers” to avoid delays.

My case is being heard by phone, what is the process?

VCAT will contact you to let you know the scheduled time for the hearing.

At the time of the hearing, VCAT will contact each party by phone on the number that the party has provided.

A phone hearing is no different to a hearing in person, so ensure you are in a quiet location and have any relevant paperwork at hand.

How can I pay my application or hearing fee?

Application and hearing fees are paid online or by post. Hearing fees can be paid from 4.30pm the day before the hearing. For more information, check fees at VCAT.

I want to change or withdraw my application. What do I do?

To change or withdraw your application, you must let VCAT know in writing.

New cases

Is VCAT still accepting new cases that do not involve residential tenancies, guardianship or other critical matters?

VCAT is still accepting any matters, such as planning permit approvals, that fall in VCAT’s jurisdiction.

CS Town Planning also remains operational throughout the pandemic to assist you with your planning needs or to represent you in VCAT.

Given the current circumstances are existing timeframes for applications still relevant?

Yes, current application time limits are still relevant. If you are planning to appeal a council’s decisions made for your planning application. Ensure you contact your town planner within the timeframe.

When will my case be resolved?

If your application is deemed critical, VCAT will schedule a phone hearing date with you.

If your application is not deemed critical your case will be adjourned (postponed) to be heard on a date to be fixed in the future.

At present, VCAT is unable to confirm precise timeframes for non-critical cases. From CS Town Planning’s experience, hearings are likely to be adjourned until August 2020.

When you look into the process of obtaining a planning permit for your project, no matter if it is residential subdivision or commercial change of use application, you may encounter a number of terms which you are not familiar with. In this post, our team have summarised some of the most frequently used terms so you can be more informed about the permit application process.

What is a property title?

A property title is an official record of who owns a piece of land. It can also include information about mortgages, covenants, caveats and easements affecting the land. When you purchase a property, you receive a Certificate of Title that confirms you are the owner of the property and indicates your registration in the online land register. (If you have a mortgage, the bank keeps the original Certificate of Title until you’ve paid off the loan.). In most cases you will need to produce the Certificate of Title when applying for planning permits in Victoria.

What is a covenant?

Covenants are noted on the property’s Certificate of Title. A covenant is a written agreement between the seller and purchaser of a piece of land restricting what the land can be used for. A covenant can date all the way back to when the property was first developed and be passed onto the current owner of the property. It is important to understand what covenant is in place when you plan to apply for a planning permit to develop and subdivide your property.

Some covenants will restrict your ability to develop on the land. For example, restricting the type of building material the purchaser can use or restricting the number of dwellings can be developed on the land.

What is an Easement?

Easements are drawn on the property’s Plan of Subdivision. An easement is a right held by someone to use land belonging to someone else for a specific purpose. Common examples of easements are drainage, sewerage and carriageway easements. At the design of your subdivision project, it is important to take these easements into account as it is quite often you cannot build on easements. Common ways to make the most out of the land which is affected by easements are to use these areas as Private Open Space or drive way.

What is an overlay?

An overlay is a planning control that seeks to ensure an important building outcome is achieved for a specific street, neighbourhood or area. A typical example is a Heritage overlay. A heritage overlay will identify specific heritage outcomes sought to be preserved or carefully monitored in a specific neighbourhood or street that is deemed to be of heritage value. Where a heritage overlay affects a property it can be difficult to obtain a planning permit for entire demolition of a building because the heritage overlay specifies that buildings should be retained. A more proactive example of the use of overlays is in areas identified for regeneration. If a street is identified as a good location for higher density buildings an overlay can be placed on the street that identifies preferred building heights way in excess of what currently exists. Planning authorities use these overlays to encourage developers to build higher density in areas that the government see as important.

What is a council request for further information?

After you have submitted your planning permit application, your local council may request for further information, an exercise that is common to most of planning applications. A Request for Further Information is likely to take form in receiving a letter from Council or an email If application was lodged online.

The information council requests may be traffic reports, arborist reports or other third party consultancy reports. A request for further information may also explain any concerns that Council has with your application. This stage is the chance where you can amend your plans to address these concerns that Council raised.

What is public advertising?

The Victorian planning system is set up to ensure that all affected parties of an application have the opportunity to comment on a planning permit, before a decision is made. Your local council planner will decide if and how public notification needs to be given. This stage is known as public advertising stage.

This could take the form of:

Direct mail notification
On-site signage
Advertisements in the local newspaper

Your application will also be added to Council’s online register. If Council is satisfied that the application will not negatively impact anyone, public notification does not need to be given. If public notification is required, it must be carried out for a period of at least 14 consecutive days. During this period, a person can make a submission either in support or objection to the proposed permit. Anyone can lodge an objection to a planning permit application, although Council must consider all objections when assessing the application, objections need to have strong evidence to support the issues being raised.

What is an objector consultation meeting?

When you apply for a planning permit, there is a strong chance objections will be made to the proposal. Where a large number of objections are made a consultation meeting can be organised by Council and will usually occur at council offices outside business hours to give all parties an opportunity to attend. The meeting will often be chaired by the council planner or an elected councillor. There will often be a set agenda and there are opportunities for the applicant, council and the objectors to confer, ask questions and seek to negotiate for an acceptable outcome. The process can often be adversarial with the permit applicants often requested to make large concessions by both objectors and councillors. However, the meeting can be productive and should be attended by the permit applicant if organised by Council.

What is a referral authority and what is their role?

Some planning permit applications need to be referred to other authorities or organisations for advice and comment. For example, if you’re proposing to change the access to a road that is managed by VicRoads, your application will be referred to VicRoads.

The council will refer the application to other persons or bodies specified as referral authorities in the planning scheme. Referral authorities have 28 days to respond to the council. Some may object to the granting of a permit or specify conditions to be included on a permit. If a referral authority objects to your development then the Council is legally obligated to refuse your application.

What is a Notice of decision?

At the end of the notification period (if notice was undertaken), the council or responsible authority will assess the proposal and decide to issue one of the following:

Issue a Notice of Decision
Grant a pemit
Refuse a permit

If there are objections during the notification period, council can only issue a Notice of Decision to Grant a Permit; all concerned parties will receive a copy of the notice.

The Notice of Decision to Grant a Permit doesn’t have the same legal status as a permit, but it signals council’s intention to grant the permit and identifies the conditions to be included on it.

An objector of the application has 28 days to lodge an application for review. If VCAT confirms that no application has been lodged within the 28 days council will than issue the permit. If an objector lodges an application for review within 28 days of the notice being given council can’t issue the permit. The application will then be decided by VCAT in a hearing.

What are endorsed plans?

Most permits refer to and are accompanied by a set of endorsed plans. Endorsed plans are a set of plans that shows all components and layout of a development. This set of endorsed plans form part of the permit conditions and will become subject to the permit. So long as that permit is relied upon, new development cannot lawfully proceed on the land unless the permit is amended or consent is granted for development to depart from that shown on the endorsed plans. A set of plans become endorsed when they are stamped by the council and the stamp clearly identifies the permit number which the plans are endorsed under.

Condition number one of the vast majority of permits issued by council will list a set of changes to be shown on plans before council will actually endorse the plans. Only on receipt of the plans showing the changes listed within condition one will council stamp the plans and they become endorsed as part of the official planning permit.

What is a secondary consent amendment?

A Secondary Consent Amendment is an application to your local council if you would like to make minor modifications to your endorsed plans. Under normal circumstances, most Planning Permits contain the condition:

The development as shown on the endorsed plan must not be altered or modified without the prior written consent of the Responsible Authority.

Your Planning Permit must contain the above condition, then you will be able to apply for an amendment under Secondary Consent. In addition to the above, there are other issues that should be taken into consideration when submitting an application for Secondary Consent Amendment:

Your proposed amendment does not result in any amenity impacts and notification or public advertising is not required.
You cannot alter or delete any condition or pre-amble of a planning permit under secondary consent provisions.
The proposal does not result in a transformation of the development.
It does not authorise something for which primary consent is required under the planning scheme.
It is of no consequence having regard to the purpose of the planning control under which the permit was granted.
It is not contrary to a specific requirement (or condition of the permit) as distinct from an authorisation within the permit, which itself cannot be altered by consent.

If your proposed amendment does not meet any of the above requirements, you will be required to apply for an Application to Amend a Planning Permit pursuant to Section 72 of the Planning and Environment Act.

What is a section 72 amendment?

After a permit been granted and you wish to:

Make changes to the conditions on the pemrit or the pre-amble of what the permit allows
Nake notable or significant changes to the endorsed plans that could impact neighbouring propertie

A Section 72 Amendment to a Planning Permit will be required. An application to amend a Planning Permit under Section 72 of the Planning and Environment Act follows the same process as a brand new Planning Application (including advertising and / or notification processes).

If you have a question about town planning jargon you would like to have translated do not hesitate to give our office a call and we would be happy to help.

No matter if you are opening up your first physical shop or giving your existing shop a fresh new design, the first contact you likely to make is often to an architect or a builder because the feeling of getting a design drawn up and seeing your idea slowly becoming reality is always exciting. But there is always one step many business owners forget about and often scramble to find help at the last minute. This important step is identifying required planning permits and obtaining approval from local council. All properties in Australia have some form of planning controls in place. The Planning scheme contains state and local planning policies, zones and overlays and other provisions that affect how land can be used and developed. The planning scheme determines if a planning permit is required to change the use of land or to construct a building or make other changes to the land. It is quite often that a planning permit is required to construct a building, alter a building facade or construct or carry out works. This means that all external works require planning approval. Some works also required to be to the satisfaction of the Referring Authority, such as Melbourne Water or VicRoads. It is worth keeping in mind that other controls (such as Design and Development Overlay, Heritage Overlay, Special Building Overlay and so on) within the Local Planning Policy may still require a planning permit for simple matters. The planning scheme also specifies relevant assessment criteria when a planning permit is required. In most instances, no matter if the work is as big as constructing a new building or as small as installing an advertising sign, it must be approved by the local council through the planning permit application process.

The Best Starting Point: Speak to a Town Planner

A town planner with experience in obtaining building or planning permits can provide you with advise on what types of permits and approvals you’ll need when you want to set up or make fit-out changes to your retail shop, office, commercial or business premises.

Common planning and building permit applications:

Situations where you’ll probably need a planning or building permit for a shop or commercial premises are:

setting up your store, food premises or other business
changing the existing shop front
attaching signage to the building
updating the internal fit-out of your premises
putting outdoor seating or heaters on a footpath.

Each councils often have specific requirements for different type of businesses. It is important to understand the council’s requirements before you commence work. Heavy penalties will apply if council finds out the use of the premises or the building works have not been approved.

Preparing for the application

Each Council will often have their own specific requirements and checklists, so it’s important to have professional assistance in the early stages. A professional town planner will be able to confirm and check the requirements before you submit an application. You’ll need to provide different information for different types of permit applications. That might include site plans, elevation drawings or a written report. This information will need to be at professional town planning standard for council to conduct assessments on. A professional town planner will be able to justify your business in a way that council will be more likely to support your business idea, especially if you are applying for a Change of Use permit, leading to a more seamless approval process.

If your business is likely to draw high amount of traffic or your customers are expected to commute via personal vehicle, it is important to prepare a traffic report that addresses council’s concerns. Advertising signs or other form of signage quite often assessed under a different part of the planning scheme. Having a town planner to assist you earlier on, can identify all the requirements right from the start and help you to prepare what is required for you to get your dream design approved.

Below outlines the different stages your town planning application will go through after it has been lodged to Council.

Request for Further Information

After your town planner lodges the application, the planning officer of the council will check it and advise you (in writing) if further information is required. This stage is called Request for Further Information stage, this request is common and 99% of applications will go through this stage. If they do, they will contact your town planner who will then be able to work with you and your other consultants to gather all the required information and provide them promptly to the council. If the information can’t be provided in time, the application won’t be processed further.

Notice of a planning application (advertising)

This stage occurs unless the council is satisfied that granting a permit won’t cause material detriment to any person, or the planning scheme states that notice isn’t required. Council determines what notice should be given. They will let the applicant know which notice method is required, and explain what you need to do.

Notice of an application might be given via:

letters mailed to the owners and occupiers of adjoining / nearby properties (some councils require letters to be sent to owners and occupiers by registered post and others provide a mail-out service for permit applicants)

sign(s) erected on the land subject to the application
notice(s) in local newspapers
notice to adjoining municipalities and / or government authorities / organisations or utilities.

Through this process, neighbours are informed about a proposal and invited to inspect the plans. Other parties can object to your proposal at this stage and a town planner can assist you in addressing these objections.

Council’s decision

At the end of the notification period (14 days), the council or responsible authority will assess the proposal and decide to:

issue a notice of decision
grant a permit
refuse a permit.

The applicant and all objectors (if there were objectors) are informed of the council’s decision via a Notice of Decision or a Notice of Refusal. The notice will outline the next steps you can take. There are opportunities to apply to VCAT for a review such as if a permit condition is unacceptable or if council fails to make a decision in time.

Case Study – Telstra Melbourne Flagship Store, Bourke Street Mall, Melbourne

Telstra engaged CS Town Planning to successfully obtain planning approval from Melbourne City Council for their flagship store project. The project involved a successful negotiation with Council on the number of digital and illuminated signage elements that were proposed along the Bourke Street mall and the Swanton Street façade of the building.

Case Study – ANZ Branch

CS Town Planning provides ongoing assistance to ANZ and Lendlease to gain approvals for their branch fitout work across Australia.

Previously a disused shop, the scope of works at 47 Bulcock Street, Caloundra in Queensland included change of use, new signage, including illuminated under awning sign, an illuminated ANZ logo and an electronic sign. Each item required a different planning permit approval. We were successful and all the signs were approved.

If you are opening a commercial venture and would like to confirm if you do require a council permit please do not hesitate to give us a call.

Whittlesea Council will join the conflict-plagued South Gippsland Shire Council which was removed in June last year, after six resignations and the Casey City Council, which remains at the centre of an IBAC investigation, and now replaced by an administrator last month as the third council to be sacked by the States Government within 10 months. After an independent monitor been appointed for Whittlesea Council, Victorian Government made the decision on Tuesday to sack the entire council.

The drama unfolded in the end of 2019 as Simon Overland became the third chief executive to be sacked by the council in the last four years, amid ongoing allegations of bullying and intimidation of staff by some councillors. The Australian Services Union (ASU) recently wrote to the council to raise concerns of a “very toxic workplace culture”. The independent monitor been appointed after receiving specific complaints about the behaviour of councillors and other matters over a number of months. Later discovered Simon Overland is the fifth chief executive sacked by the council in five years.

According to ABC News, The Victorian Government has moved to sack the dysfunctional City of Whittlesea council, three months after chief executive Simon Overland was removed and an independent monitor installed.

Legislation was introduced to State Parliament on Tuesday this week to dismiss the council due to serious governance failures revealed by municipal monitor Yehudi Blacher.

Mr Blacher found the council went through five chief executives within five years and spent $500,000 on legal disputes. Also found that an intractable toxic culture has developed of infighting and division and internal bickering, which has led to the total collapse of governance at the Whittlesea City Council.

“This council has spent $500,000 in legal fees as a result of their internal bickering rather than spending money on the upkeep of infrastructure’.

“An example of that dysfunction is the fact that the council has had five different CEOs within five years — that’s a huge, massive turnover of CEOs. I’ve never seen that before.”

Mr Overland, who was Victoria’s police chief commissioner between 2009 and 2011, was Whittlesea’s fifth chief executive in five years.

He was sacked from his job in December 2019 amid allegations of bullying and intimidation of staff by councillors.

He held a number of senior positions with Victoria Police during Melbourne’s “gangland wars” and was called to give evidence during the recent ‘Lawyer X’ royal commission about his involvement in the use of lawyer Nicole Gobbo as an informant.

Mr Blacher, the municipal monitor, recommended the council be dismissed and administrators appointed until the 2024 local government general elections, or later.

Councillor welcomes sacking

Despite being told he would lose his job, Councillor Tom Joseph said he was pleased the council would be sacked. He said the council was beset with internal fighting and he accused some fellow councillors of “pork-barrelling”, and making decisions that were “not in the interests of the community”.

“We’re seeing wrong decision after wrong decision, costing millions of dollars,” Cr Joseph told ABC Radio Melbourne.

At the time of Mr Overland’s sacking, Cr Joseph described the council as “in chaos” and said the State Government’s decision was in the best interests of Whittlesea residents.

“The monitor found councillors have stopped acting in the best interests of the City of Whittlesea and recommended its immediate dismissal and replacement with administrators. We accept the recommendations,” Local Government Minister Adem Somyurek said.

Mr Somyurek said it was unfortunate that in his short tenure there had been three councils the Government had needed to sack.

The monitor’s report was due to hand down in June, but the monitor said ‘I’ve seen enough now, mid-March and the longer this circus continues the more the people in the City of Whittlesea are missing out’.

Council’s Future

Just like Casey Council which was sacked earlier last month due to alleged corruption in relation to property development and town planning in the City of Casey. The government will appoint an interim administrator to make sure the Whittlesea council functions are delivered once the councillors are removed from their positions. As for Casey Council, the Independent Broad-based Anti-corruption Commission continues to examine council decisions related to property development and town planning in the City of Casey as part of Operation Sandon.

Both Casey Council and Whittlesea Council are likely to be without democratically elected representatives for the next five years after the State Government passed legislation to sack the councils and install administrators until 2024. Whereas South Gippsland Council will have an administrator in place until a general election to be held in October 2021.

For a long period of time, there has been no mandatory requirement in place for solar panels in Victoria and no protection for them from overshadowing by new developments. Although permits are required for installation of residential solar panels and solar panel permit applications have become increasingly popular, guidelines on new solar energy facilities and how to assess them as part of the planning permit application process have fallen far behind. Unlike overshadowing of private open spaces that are currently regulated by clear perspective standards and objectives, solar panels have been left in the dark when it comes to regulating new developments and assessing their overshadowing impact.

In 2018, a practice note (Planning Practice Note 88 – Planning considerations for existing residential rooftop solar energy facilities) was introduced by the State Government with the aim of providing guidance when assessing solar panel related planning permit applications. However, Councils are still free to make their own assessment of planning applications as they see fit and do not necessarily have to take into consideration the impacts of overshadowing to solar panels as the practice notes were guidelines to explain best practice when assessing planning applications rather than mandatory planning requirements like ResCode, a planning permit refusal on the grounds of solar panel overshadowing would be extremely unlikely.

The issue of overshadowing of existing solar panels usually only highlighted to council by objectors who have solar panels on their roofs or solar hot water heating systems and are concerned about the impact of a new house being built. It is more commonly addressed at VCAT when a planning permit application has been refused or an objector has appealed a council’s approval of a planning permit. A recent VCAT case where an objector has appealed a council’s approval for a planning permit has been successful with part of the objection being the new proposed development significantly overshadows the solar panels on his property. The VCAT case been marks as a ‘Red Dot Decisions’, meaning the decision is significant and will become the benchmark for all future cases involving overshadowing of existing solar panels.

Background of the VCAT Case

The respondent of the case is seeking to obtain a planning permit from Manningham council to amend an existing planning permit involving extensions and alterations to an existing medical centre to allow its more intensive use by up to six practitioners which council has approved. The applicant of the case lives next door to the medical centre and seeks to overthrow the council’s decision. He submits that the impacts of the proposal have not been properly thought through and addressed by Manningham Council. In particular, the proposal has not properly responded to the features of the site and its context. The site is elevated above the applicant’s property and impacts the applicant in terms of overlooking, visual bulk and overshadowing of roof top solar panels.

The solar panels were placed on the west side of the roof to capture the afternoon sun. Supplementary information at 15 minute intervals for the 22 September and 22 June were prepared by the applicant:

Commencement of shadows over existing solar panels

	22 September	22 September	22 June	22 June
Panel row	Lower	Upper	Lower	Upper
Existing conditions	3:45pm	4:15pm	3:00pm	3:30pm
Proposed conditions	3:00pm	4:30pm	2:15pm	3:15pm

At the time council assessed the permit application, Manningham council determined the extent of additional overshadowing would not be unacceptable. The applicant asserts that the council could not have properly informed itself of the reasonableness of the proposal’s shadow impacts upon the neighbouring solar panels because the council did not have the supplementary shadow information described above or any details about the type of system installed when it determined the permit application.

Tribunal Assessment of Impacts on Solar Panels

The VCAT member assessed the permit application differently to Manningham Council and agreed with the applicant. Given no other specific guidance is available in the Victorian Planning Provision that might assist decision makers, such as planners of the council, in their exercise of discretion on this matter, plus the energy efficiency objectives and standards in clauses 54 and 55 of the planning scheme do not technically apply to this non-residential proposal. This leaves Planning Practice Note 88 as the main form of guidance for council planners. However, the practice note does not form part of the planning scheme and is neither a reference nor incorporated document.

The VCAT member also pointed out, there is no specific guidance either within Planning Practice Note 88, the Victorian planning scheme itself or local policy framework to help assess the extent of existing overshadowing, appropriateness of the panels’ location on an adjoining rooftop and the effect of overshadowing on an existing rooftop solar energy system. Importantly, in relation to understanding the actual effects of a development on the energy produced by a rooftop solar energy system – in other words changes to an existing system’s performance. Other than the general guidance provided by Planning Practice Note No. 88, there is no other specific planning scheme guidance to assist decision makers determine the acceptability or otherwise of overshadowing impacts on adjoining rooftop solar energy systems.
Where assessments are undertaken of overshadowing impacts as in this case and others, the Tribunal’s findings are frequently and superficially limited to the net change in shadow impacts rather than the actual effects on a system’s performance – that is, the net change to a system’s energy output. In many cases, the final assessment is primarily based upon or limited to the degree to which solar panels have been vulnerably sited on a rooftop relative to development proposals and the consequential change in hours of sunlight access they receive – as distinct from understanding the actual effects on a system’s performance. In the absence of suitable planning scheme guidance and more detailed information specific to the operating characteristics of the adjoining rooftop solar energy system. This means that any meaningful assessment of the proposal’s actual effects on the performance of the adjoining solar energy system cannot be made in this case.

Also pointed out by the VCAT member, the time of year chosen for assessing impacts and spread of hours for assessment throughout the day remain uncertain variables. Nor is there any guidance as to what might be regarded as a reasonable loss of a system’s overall performance – for example, in terms of reduced output as a percentage of average electricity generated over a specified period of time. This continues to make the assessment of proposals and most importantly their effects on existing rooftop solar energy systems and the reasonableness of those effects difficult to determine.

The absence of timely access to and ready availability of information about the type and operating characteristics of existing rooftop solar energy systems presents very real challenges for permit applicants formulating proposals and for decision makers tasked with assessing their effects.

For the full Case: Ramjee v Manningham CC (Red Dot) [2020] VCAT 1 (5 February 2020)

VCAT’s Suggestion

The VCAT member of this case suggested that clearer and more sophisticated guidance at a state-wide level should be introduced. Such guidance might as a starting point specifying suitable reference times (such as time of year and spread of hours) with consideration to the variable orientations of panels (whether north, west or east facing) and include more specific parameters on what might be regarded as an acceptable change in an existing system’s performance. Different standards might also be adopted for different strategic contexts. Desirably, these should also be supported in a secondary way by appropriate decision guidelines to assist the exercise of discretion and avoidance of ‘a one size fits all’ approach, thus allowing for nuanced and contextually sensible decision making.

Such guidance would create greater certainty about the issue of overshadowing of solar panels, in turn, benefiting all stakeholders in the planning process including responsible authorities and the Tribunal on review. It would also be of assistance to persons who are making decisions about suitable locations for the installation of solar panels on rooftops and whether to seek a review of decisions involving overshadowing of such systems. A more consistent policy approach would assist both developers and existing solar panel users and future users to understand their obligations and expectations in this evolving assessment area.

Effects on Future Cases and Council Decisions

Despite overshadowing of solar panels forming part of the argument in the abovementioned VCAT case and marked as Red Dot Decision, mandatory planning requirements in relation to overshadowing of solar panels in Victoria will continue to be absent until state government takes action and amend the current State Planning Policy Framework. However, the case will now become the benchmark for all future VCAT cases involving assessments of solar panels and VCAT members will refer to Practice Note 88 more often compared to previously. This in turn will require councils to include assessments against the practice note when forming their decisions.