CS Town Planning advocates on behalf of our clients to have conditions removed from planning permits that are considered to be overly onerous. These conditions can come as a surprise to an applicant as they can be applied by a Council without the prior knowledge of or discussion with the applicant.
A recent ruling by VCAT in Tsourounakis v Cardinia SC on 20 November 2024 has served as a reminder that the consequences of removing or altering a condition from a planning permit needs to be carefully considered. In this case, a planning permit was granted for an education centre which included a condition of capping the number of students below the threshold that would trigger a requirement to apply parking provisions under Section 52.06 Parking Overlay of the Cardinia Planning Scheme.
In summary (T)he applicant sought to vary that condition to increase the number of students, the result of which would introduce a permit trigger under clause 52.06 and considerations under the Parking Overlay which were not included in the description of what the permit allows and were not considered by the responsible authority in deciding to grant a permit.
As a result, it was determined that an appeal of the planning condition under Section 80 of the Planning and Environment Act was inappropriate. Removing the condition of capping the number of students would introduce a scenario of increasing the number of parking spaces, which was not considered by the responsible authority when reviewing the application and granting the permit.
When working with our clients, CS Town Planning recommends that if considering an appeal to remove or alter a condition of a planning permit, there should be an assessment of the cost of implementing a condition against the time/cost of appealing a condition and the potential for a successful appeal.