The VCAT Red Dot Decision Owen v Boroondara, issued on March 5 2021, has the potential to make some Planning Permit Amendments impossible when new restrictive planning controls are introduced.

In this case, a Planning Permit was issued for a development prior to the minimum Garden Area provisions being brought into Victorian Planning Schemes, meaning that the proposal was able to provide 25.25 percent Garden Area where under current planning controls, there is a mandatory 35 percent minimum Garden Area requirement for a site of this size.

The holder of the Planning Permit sought to amend the Permit with a design that would have resulted in less Garden Area. VCAT determined that because the mandatory Garden Area now applies it was not possible to amend the permit with a Garden Area even less than either the current minimum requirement or the approved plan.

We note that this ruling may have wider reaching implications for Planning Permit holders who wish to amend Planning Permits on sites that have been subject to policy changes. For example, to amend a Planning Permit to slightly increase a building height on a site that has a new lower mandatory height control may not be possible, even if the proposed increase to the building height is only to facilitate a more appropriate construction method.

We are interested to see how future decisions will draw on this decision and will provide further updates.

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