By Callum Ludwig
A lapsed planning permit for a property in Healesville won’t be extended following a recent decision in the Victorian Civil and Administrative Tribunal (VCAT).
Applicants Michael Cole and Erika Martino sought a review of Yarra Ranges Council’s decision to refuse an extension of a planning permit for a property on Cornelius Crescent.
VCAT Member Cassandra Rea presided over the case and said in the decision that the permit allowed for the use and development of a dwelling, associated earthworks and native vegetation removal.
“The council states that the permit expired on 20 July 2023 as the development was not completed. The permit holder sought an extension of time on 10 July 2024 which is within 12 months of the expiry of the permit,” the decision reads.
“Council refused the request for an extension of time on the following grounds:
The planning permit has expired in relation to use of the land for a dwelling.
There has been ample time since the current owners purchased the site in 2018 to prepare the documents required by conditions on the permit, but this has not occurred.”
The applicants said the permit had expired on 15 September 2024, having been extended initially by two years following an amendment made to the permit. The applicants claimed that the works were delayed by costs associated with native vegetation offsets, Covid-19, inflation and building costs and personal reasons, as well as delay and incurred costs due to Yarra Ranges Council.
In the decision, Rea said since the first permit (for the property) was sought in 2001 there have been two other permits sought in 2010 and 2016 respectfully, an amendment to the current permit and two extensions of time issued to the current permit and there had also been planning investigations into potentially illegal works, and change of property ownership.
“All three permits issued for the site, effectively allow for the removal of vegetation and earthworks to accommodate a dwelling on the site,” the decision reads.
“The removal of some of the vegetation and earthworks occurred in approximately 2014 prior to the current landowners purchase of the property. A shed has also been constructed on the land,”
“The Tribunal was advised that the applicant purchased the land in October 2018.”
The tribunal had to consider whether the case warranted seeking an extension to the commencement timeframe, completion timeframe, or both due to the request but found that an amended plans approval acknowledged works had already commenced and previous earthworks and vegetation removal was consistent with previous permits, though Council suggested that commencement had not properly occurred. VCAT ruled that the request for an extension of time applied only to the completion of the works.
Rea said in the decision that overall, she was not satisfied that the extension of time should be granted for this site.
“The applicant has owned the site since October 2018 and there have been lengthy periods of time when there has been no demonstrated action to progress the project,” the decision reads.
“Based on the material filed with the Tribunal, other than a request to extend time, there was no substantial activity by the current owners to progress the permit between October 2018 and the lodgement of an amended permit in September 2021. Since the amended permit was issued in September 2022, the only substantial action to progress the project was the request to extend time,”
“Conditions that need action prior to the commencement of the development such as the native vegetation offset and entering into a section 173 agreement under the PE Act (Planning and Environment Act) has not been undertaken.”
The PE Act sets a default of two years to commence a project.
Rea was not satisfied that the applicant is ready to progress the project.
“I say this in light that there is an additional set of plans prepared where they intend to seek approval from council to change the plans again. There are no building permits issued or building contracts that indicate any firm commitment to the project,” the decision reads.
“It is over ten years since the vegetation removal and earthworks have been undertaken in preparation to construct the dwelling. The current permit was issued six and a half years ago. On the basis of the last extension of time, the project should have been completed by 20 July 2023, but instead council received a request for a third extension of time on the 10 July 2024,”
“I cannot be satisfied that the permit holder is not warehousing the permit. The site is currently for sale. A selling feature of the land is the existence of planning approval. The applicant states that the land is more valuable with the current planning permit. While the applicant states that if an extension of time is granted they will withdraw the sale of the property and build their ‘dream’ home, I cannot be assured that this will be the case.”
A fresh planning permit application may results in the same or similar proposal being approved in the future by the Council due to the lack of significant change in planning policy, the extension request was refused.
