• VCAT

March 4, 2019

The importance of accurate plans for a VCAT town planning appeal

When lodging a planning application it is important to make sure your plans and the information provided are as accurate as possible.  This is especially important if your town planning application ends up going to VCAT.

The most common inaccuracies seen in planning applications are mostly to do with existing conditions of neighbouring sites such as the following:

•             Shadowing to neighbouring properties  

•             Location of windows and doors of neighbouring properties  

•             Tree locations of neighbouring properties  

•             Features of neighbouring properties

It is not enough to accurately map out your own properties site conditions you also have to accurately show neighbouring property conditions as well.

VCAT application for review

Tika v Yarra CC Red Dot [2018] VCAT 894 was a recent VCAT case that was made a red dot decision. It highlights the importance of accurate information and plans, particularly when it comes to assessing the impact of a development on neighbouring properties. The VCAT appeal involved a development proposal for two 3-storey dwellings. The application was approved by Yarra City Council even though there were numerous inconsistencies and inaccuracies in the plans. The council approval led to an appeal from objectors regarding the decision at VCAT. 

The applicant had significantly overestimated the amount of private open space on both their site and their neighbour’s site. Habitable windows and glazed doors were incorrectly shown, dwellings were incorrectly labelled as outbuildings, the footprint of neighbour’s buildings was wrong and existing trees on the neighbour’s site were either not correctly depicted or absent from the plans.

VCAT planning decisions

The permit applicant also did not meet the planning objective for overshadowing of open space when assessed correctly by VCAT. The objective ensures buildings do not significantly overshadow existing secluded private open space.

The overshadowing of open space Standard B21 Clause 55.04-5 is as follows:

‘Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9 am and 3 pm on 22 September.’

‘If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced.’

The inaccuracies along with the amount of overshading of private open space led to VCAT overturning Yarra City Council’s approval and issuing a refusal for the development. 

In its decision the tribunal stated: 

‘While it should be self-evident, the absence of accurate information makes it very difficult to undertake an accurate and properly informed assessment of a proposal’s impacts. It is therefore important that accurate information is provided before the giving of any notice and before decisions are made on permit applications.’

It was also noted that:

‘This case highlights the need for permit applicants to provide accurate plan information showing existing conditions in relation to the review site and neighbouring land.  Responsible authorities also have an obligation to endeavour to ascertain the accuracy of information submitted to it by permit applicants before requiring any notice to be given and determining a permit application.’

Amendment VC142 of the Victoria Planning Provisions removed the requirement that the responsible authority had to inform the applicant in writing that the neighbourhood and site description is satisfactory prior to the giving of notice or determining the application. It was felt that deleting this requirement would reduce the administrative burden on councils and streamline the permit process for residential development.

Tika v Yarra CC Red Dot [2018] VCAT 894 case noted that although the above amendment was a positive change:

‘…it should not, however, be confused with the obligation for responsible authorities to critically review such information before determining whether the neighbourhood and site description is satisfactory.  It remains that permit applicants must still submit a satisfactory neighbourhood and site description and the responsible authority must still be satisfied that the neighbourhood and site description is satisfactory before it requires notice of an application to be given, or before it decides an application.’

Although the council should be checking plans thoroughly and picking up mistakes the responsibly is with the applicant to ensure they have supplied accurate information so as not to end up with a refusal like the Tika v Yarra CC Red Dot [2018] VCAT 894 case.

Site access to neighbouring property 

As highlighted earlier most inaccuracies are due to incorrect depictions of the neighbours existing conditions. It is up to the applicant to get access to the neighbour’s property to correctly depict the existing conditions.  Neighbours have no obligation to let a permit applicant access their site which can lead to the applicant estimating certain conditions of the neighbouring site. 

This highlights the importance of a good relationship with your neighbour during the planning application process.  It is a good idea to talk to them about the application as soon as possible. This will let them know they are being listened to and consulted during the process. Getting their feedback in the early stages will make them more agreeable and less hostile to the application rather than finding out about the application when they receive notification from the council.

It is also better to ask for access to your neighbour’s house sooner rather than later. Asking for access late on into the planning process will mean they have had time to review the plans and may have decided against the application. Maintaining good relationships with your neighbours throughout the planning process is always an advantage to avoid objection and appeals to VCAT.

Remember just because council have not picked up inaccuracies in your plans or noncompliance issues in their assessment does not mean VCAT won’t address them. The VCAT member who will decide the case will have expert planning knowledge and incorrect information will be spotted.That is why accurate plans are essential when there is either an application for review by a permit applicant under section 77 Planning and Environment Act 1987 or an applicant for review by an objector under section 82 of the Planning and Environment Act 1987. Inaccurate information can and will most likely lead to a refusal as demonstrated in the Tika v Yarra CC Red Dot [2018] VCAT 894.