The industry has been grappling with the various changes that have been made to the Planning Schemes of late.

What has become apparent is that the transitional provisions introduced by Amendment VC110 on 27 March 2017 in relation to the reforms to the residential zones and more recently in relation to the apartment guidelines introduced by VC136 on 13 April 2017 in Clause 58, have already begun to cause confusion as to the applicability of the transitional provisions in relation to current applications, amendment of current applications and existing planning permits.

The transitional provisions in the Neighbourhood Residential Zone (NRZ) and General Residential Zone (GRZ) introduced by Amendment VC110 are intended to provide an exemption from the minimum garden area requirement, maximum building height and number of storey requirements introduced into these zones in certain circumstances.

One of the first Tribunal decisions that has considered the transitional provisions in the reformed residential zones introduced by Amendment VC110 is Harsley v Banyule City Council [2017] VCAT 623. The facts in that case were:

• A proposal was put forth to construct a part three-storey dwelling together with associated works and vegetation removal.
• No planning permit was required under the Neighbourhood Residential Zone. Under the Significant Landscape Overlay (SLO), a planning permit was required given it was proposed to construct a building in excess of six metres in height.
• Council had issued a Notice of Decision to Grant a Permit well before the introduction of Amendment VC110 that was the subject of an Application for Review by a third party.
• The objector applicant for review raised the issue that the transitional provisions did not apply to the application (which if successful would have required a mandatory maximum height of two storeys and imposed a garden area requirement) given that no planning permit application was required under the zone and given the permit trigger in the SLO related to a building over a certain height rather than to construct a dwelling.
• Both the permit applicant and the council contended that the transitional provision in Clause 32.09-14 of the Planning Scheme in relation to “a planning permit application for the construction or extension of a dwelling or residential building lodged before the approval date of Amendment VC110” applied.

The following questions of law were referred to a legal member to be determined:

Does the following transitional provision set out at Clause 32.09-14 which exempts from the control at Clause 32.09-9 on the maximum number of storeys:

• A planning permit application for the construction or extension of a dwelling or residential building lodged before the approval date of Amendment VC110 apply to the current planning permit application made under the Significant Landscape Overlay to construct a building and construct or carry out works associated with a dwelling, and removal of vegetation, and where no planning permit is required to construct or extend a dwelling under the Neighbourhood Residential Zone?

Alternatively, does the proposal subject of the proceeding in P1641/16 have the benefit of any of the other transitional provisions set out at Clause 32.09-14 in relation to the control within the Neighbourhood Residential Zone on the maximum number of storeys?

In the opinion on the questions of law by the deputy president, the Tribunal held in relation to the first question that the transitional provision applied. In particular, the Tribunal rejected the argument that because the permit trigger under the SLO was for a building of a particular height that the transitional provision did not apply to the proposal which was a dwelling.

The Tribunal accepted that the transitional provision was intended to have a broader application to all pre-existing planning permit applications for the construction of a dwelling affected by the changes, rather than only to applications made under the NRZ itself. A contrary interpretation would result in unfair disadvantage or unjust impacts contrary to the purposes of the transitional provisions as expressed in the relevant contemporaneous documents released by the Department and the Minister in relation to the Amendment. This means even if a planning permit application for a dwelling was only required under an overlay control that the transitional provisions will continue to apply.

The Tribunal in its decision remarked that “the transitional provision is poorly drafted and contains some anomalies beyond those relevant to this proceeding.”

This decision is likely to be a first in a series of Tribunal decisions that will need to grapple with and interpret these transitional provisions in different circumstances. What is apparent is that the transitional provisions would benefit from revision to provide greater certainty and clarity and to ensure that the intention expressed by the Minister for Planning in his Reasons for Intervention in approving Amendment VC110 to offer “comprehensive exemption and transitional provisions to ensure that no individual is unjustly impacted by the changes” is properly given effect to.