Tribunal considers its jurisdiction to review 173 Agreement

In the recent case of Calderara v Banyule CC [2015] VCAT 274, the Tribunal considered whether it had jurisdiction to hear an application concerning a section 173 Agreement brought under section 149 of the Planning and Environment Act.

The case provides an interesting discussion of the principles surrounding the Tribunal’s power to review cases involving a Responsible Authority with holding its secondary consent under a permit or a section 173 Agreement. The Tribunal held effectively that for the purposes of its jurisdiction Council failing to “consent” or failing to reach “agreement” both give the Tribunal jurisdiction.

Another roof top. A different result.

I recently posted on a decision that allowed an amendment to a permit to contruct an apartment on what had previously been put forward to VCAT as a roof top terrace.

In the recent case of Tan v Melbourne CC [2015] VCAT 142, we see the other side of the story. As all practitioners know there is no such thing as a straight forward case in planning. In Tan the Tribunal declined to grant a permit for the contruction of a roof top terrace on a carport in East Melbourne. The Tribunal said;

26. I find the terrace’s rear screen does not reasonably limit the impact on the amenity of Ms Tan’s property. I find the design of Ms Tan’s property relies on its northern aspect to such an extent that the imposition caused by this screen is unreasonable. Ms Tan’s dwelling and courtyard relies on its northern aspect to provide its amenity with regard to the sense of openness from its living spaces and courtyard. Having inspected her property, I find this amenity value balances on a knife’s edge. The existing walls and fences impede and compress this sense of openness so that it is finely balanced with the dwelling’s requirements. 

27. In this context, I find the 1.7 metre screens would upset this balance to an unreasonable degree. I make this finding based on the proposed height and width of the entire structure (being the existing car port wall, the additional structure required for the terrace’s floor and the screens above this floor) in combination with its proximity to Ms Tan’s property. (my emphasis)

The decision confirms the principle that every planning case is about its individual facts.