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  • Writer's pictureSwarup Dutta

Are Planning Permits Guaranteed?

I recently wrote for the Building and Construction Industry's leading online media Sourceable. In the Article I wrote how the continually evolving Planning Scheme makes Guaranteeing a Permit a difficult task. One can use one's experience , knowledge and apply one's best endeavours to secure a Permit. but guaranteeing it is a risk professionals should not undertake.

Each Council relies on the wording and application of the Planning Scheme to make decisions. The Planning Scheme is being continually amended and some councils may apply or implement Amendments which are yet to be incorporated into the Planning Scheme- in other words they could be on the "drawing board".

VCAT Members sometimes treat it as that- unenforceable till gazetted while others adopt it as if has been gazetted. The Planning Scheme itself is not science where 1+1=2. It can be subjective at times or loosely worded and open to interpretation.

I continue in my article and say as follows:

"A very successful town planning lawyer once advised me that offering a property subdivision guarantee in a world of so many variables was a high-risk promise to make.

I had managed to secure many hundreds of town planning permits for property subdivision applications across most of the councils in Greater Melbourne for property marketers and was well aware that each of those applications were a minefield requiring total involvement to the very end. They were always complex and quite challenging if one was maximising the yield, and the risk of a refusal was always there.

Coming back to the planning lawyer’s advice, I know lawyers do not guarantee success at the hearing as the judge or the VCAT member may interpret the law or planning regulations a bit differently to what the other professionals would. Does a lawyer guarantee to refund their fees if they lose? Or does a doctor or surgeon guarantee there will be no side effects to the procedure?

Do they say, “pay me after I win in court?” No, none of them would. All they can assure you of is their total focus on your project, applying the wealth of knowledge they have acquired over the years of practice.

Planning regulations are evolving and are often open to interpretation. Consider the Red Dot case of Lomaro v Hume City Council. The applicant had ticked all the relevant boxes of Rescode and secured a notice of decision to grant a permit (the NoD) from Hume. However, the neighbour appealed that decision at VCAT and the VCAT member overturned the decision to grant a permit because even though the planning standards were met, the planning objectives were not, in VCAT’s eyes.

Do all the VCAT Members agree with Lomaro? Not necessarily, based on other VCAT matters where the Lomaro case was cited as precedent.

Then, take the much publicised “Nightingale matter,” where VCAT overturned Moreland Council’s decision to grant a permit based on the fact “green travel” was merely an ideology. Cars and car parking was required even where councils were pushing for less dependence on motor vehicles.

Consider also the refusals that came not from council but from other statutory authorities like VicRoads, Melbourne Water or the CFA. These authorities have immense power when it comes to supporting or refusing a town planning application for a subdivision of a property. Councils do not have a word to say in such instances.

A true professional will use his or her skills and experience to win town planning permits not only through applying the “law” but also through skillful negotiations with the council officers and objectors, and by going a step up to bring the councillors onside and work collaboratively to achieve a win-win-win situation.

Planning permit success is obtained through working with all the stakeholders – the property owner wishing to secure a permit to develop the land on one hand and on the other stakeholders on the other. Those other stakeholders include the neighbours whose amenities could be under attack, the council planning officer who has to win support from their superiors in the planning department, the councillors who want to win votes and one property owner’s vote against a few dozen objectors whose votes do matter come election time.

It is not just the zoning; it’s schedules and overlays together with Rescode, if applicable, which decides success. There are so many variables and so many human interactions to consider.

So can a planning permit for a property subdivision be guaranteed? The answer is a clear and resounding “no.”

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