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.