28 Apr VCAT Decision Limits Scope for Decisions
A recent VCAT (Victorian Civil and Administrative Tribunal) decision has confirmed the limit of issues to be considered when making a decision on some types of planning applications.
In determining a recent appeal, the Tribunal member first ascertained the scope of issues that could be considered. The Tribunal member considered several relevant cases, including one from the Supreme Court of Victoria. They concluded that where a use is as-of-right and the only non-compliance is with a specified condition listed in the table of uses, the only relevant considerations in determining a decision are those that relate directly to this specified condition.
How This Works in Practice
The decision, Kanzburg v Bayside CC [2015] VCAT 278 (4 March 2015), was for consideration of a medical centre.
With the introduction of the new residential zones, medical centres become an as-of-right use (Section 1 use), provided that certain conditions are met. The conditions to be met in the Neighbourhood Residential Zone (where the above application was located) are:
- The gross floor area of buildings does not exceed 250 square metres.
- The use must be located within an existing building.
- The site must adjoin, or have access to, a Road Zone category road.
- The required car parking must be provided (as set out in Clause 52.06).
The above application met all of the above conditions. except for the parking provision. The Tribunal member concluded that the only relevant consideration is the adequacy of the proposed car parking.
The Tribunal member concluded the decision by determining that the parking dispensation was satisfactory and directing that a planning permit be issued.
This red dot decision provides certainty on the scope of issues that the Council should consider for similar types of planning applications and provides evidence to call upon if Council’s decision making is seen to be outside this limited scope.