Is a man’s home really his castle? Planning Disputes in Victoria
People often believe that they can do whatever they want with their property. In Victoria, there are many planning provisions which determine the way land can be used and developed. The planning laws require local authorities to determine how land use impacts the character and amenity of an area.
Depending on where you live, you may require a planning permit from the Council to do things including renovating or extending your home, demolishing or erecting a garage, installing a pool, running a business from your home or even removing a tree from your property.
The best way to find out if you need a planning permit for the work you want to do is to contact your local Council before carrying out any work. Your Council should be able to tell you if a planning permit is required.
If you lodge a planning permit application with the Council, it will need to make a decision on whether it should grant the permit, grant it with conditions attached that you must comply with, or reject your application.
In some cases, planning permit applicants can end up unhappy with the decisions made by Council on their applications. If you have a dispute about a planning application with the Council, you should firstly approach the Council and explain your concern.
If that does not work, and where your application is rejected or you are unhappy with the conditions attached by Council, you can seek to appeal the Council’s decision to VCAT. In Victoria, VCAT is responsible for hearing all planning disputes. Strict time limits apply for seeking a VCAT review, so if this situation applies to you, you should get legal advice.
You can also make an application to VCAT if the Council fails to make a decision on your application within specified timeframes.
The people who may be affected by the permit application, including neighbors, can consider lodging an objection to a permit application, prior to the Council making a decision.
Common reasons for objecting to a planning permit include privacy concerns, overshadowing, noise, removal of significant trees from the neighborhood, neighborhood character and bushfire concerns.
Concerns surrounding the environment and natural resources can also form the basis of planning disputes. Environmental concerns may include issues to do with land contamination, pollution, threatened species or biodiversity (flora and fauna). Natural resources, such as water and mineral resources, may also be the subject of planning disputes. These may include disputes about licenses to use water from a river or stream, bore works or a quarry works.
If you lodge an objection, the Council should take that objection into account when determining the planning permit application. If the Council disagrees with your objection, it may decide to issue a ‘notice of decision’ which means that it is proposing to grant the permit, or a modified form of it, despite your objection.
If you get a notice of decision you can apply to VCAT for a review of that notice. The notice of decision is not the same as a planning permit. Instead, it signals the Council’s intention to grant the permit and lists any relevant conditions. An objector is under a strict time limit to lodge an application for review with VCAT if they receive a notice of decision.
When a Council grants a planning permit, it sometimes requires that the applicant enter into a ‘section 173 agreement’. This is an agreement between the landowner and council to control the use or development of land. These agreements impose restrictions on what you can and cannot do with your land. Generally, their purpose is to guide the character and development of neighborhoods. If you do not agree with the content of a section 173 Agreement you should discuss this with your Council. If you are not satisfied with their response, you should seek legal advice.
Time limitations apply for making an application to VCAT for any of the above types of planning disputes, so it can be important to act quickly.
If you have any questions about a planning dispute or the relevant dispute resolution processes, please contact us on (03) 9603 3000 and one of our experienced commercial lawyers will be happy to assist you.