How far does Benedetti stretch?
The continuing effect of permit conditions and secondary consent requirements have been considered in a recent case before VCAT, whereby the Supreme Court decision of Benedetti v Moonee Valley City Council  VSC 434 (Benedetti) was purportedly applied.
In the recent case of Box v Moreland City Council (Including Summary) (Red Dot)  VCAT 246 (Box), VCAT (the Tribunal) held that, even where:
the present dwelling on the lot could be demolished and a new dwelling constructed without the need for a permit,
the condition of the permit which authorised the dwelling which read:
the development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority,
continues to have effect, with the result that the owner of the land requires secondary consent from the responsible authority (or an amendment to the permit) before changing the development on the land.
The case involved:
- a development permit authorising construction of two dwellings on a lot
- a subsequent subdivision of the land into two lots, each greater than 390m2
on land in the Residential 1 Zone, unaffected by any planning overlays.
The Tribunal purported to decide the case on the basis of the Supreme Court decision in Benedetti.
Box appears to be a radical departure from the generally accepted position that development permit conditions cease to have effect if, as a result of a change in circumstances, a planning permit would no longer be required to construct the development in question.
The Benedetti decision
Benedetti is a Supreme Court decision of an appeal from the Tribunal. One of the arguments put in Benedetti was that the condition regulating the development of the land was 'spent'. It was argued before the Tribunal at first instance, and pursued in the Supreme Court, that:
once the building authorised by the permit was complete, the condition 'came to an end'.
The first question of law put to the court was:
whether on the proper construction of [the condition] the Tribunal misconstrued the scope and effect of [it] by giving [it] on going operation after completion of the works permitted by [the permit].
Osborn J said that this question was 'directed at the temporal ambit of' the condition and concluded that the condition:
continues to have effect while the owner of the land takes the benefit of the permit [our emphasis].
Under the relevant planning controls in Benedetti, buildings over six metres in height required a permit. This was so when the permit which authorised the dwelling in question was granted and continued to be the case even though the planning scheme changed to a VPP planning scheme and the overlay which imposed the permit requirements changed. Osborn J continued:
[the condition] will have no effect if the permitted development which includes an element over six metres is demolished, but while such development is maintained, the conditional obligation not to modify the layout or the size of the buildings persists.
In other words, His Honour ruled that:
- the condition will continue to have effect for as long as the development which triggered the need for a permit remained on the land
- but had there have been a change in circumstances (e.g. demolition of that part of the development which triggered the need for a permit) leading to the owner no longer taking the benefit of the permit, the condition would cease to have effect.
The reasoning in Box
After reviewing and quoting Benedetti, the Tribunal in Box concluded (at paragraph 26):
We are not persuaded that condition 2 of the subject permit ceases to have effect simply because the land has been subdivided… The applicant has taken the benefit of this permit. Having done so, condition 2 will continue to have effect while the development allowed by the permit is maintained. This means that matters such as fences… shown on the endorsed plans may not be changed without the consent of the responsible authority even though they may not otherwise require a permit…
[emphasis added, footnote omitted]
It can be seen that the Tribunal in Box refers to the taking of the benefit in the past tense, and concludes that as long as the development which has taken the benefit is maintained, the condition continues to have ongoing effect and remains enforceable.
With due respect to the Tribunal, this reasoning appears to miss the central point of Osborn J's identifying the question in Benedetti as being directed at the 'temporal ambit' of the condition. His Honour held that the condition continued to have force for as long as ('while') the owner takes the benefit of the permit, not because the owner took the benefit in the past. We say that it must follow (consistent with Benedetti) that once the owner ceases to take the benefit of the permit, either as contemplated in Benedetti due to demolition of part of the building or, it is submitted, due to some other change in circumstances where the development no longer requires any permit (such as subdivision into lots of the requisite size), the condition ceases to be effective.
The Box decision goes beyond the Benedetti decision and extends the temporal ambit of the condition beyond the period during which the owner takes the benefit of the permit. We have some doubt about the correctness of extending Benedetti in the above manner.
Where to from here?
To be certain about the ongoing effectiveness of conditions on development permits post-subdivision, responsible authorities should continue to consider imposing a condition on the subdivision permit requiring a section 173 agreement securing the built form outcomes of the permit. Such conditions will be appropriate when the subdivision will result in lots on which single dwellings are able to be developed without a permit.
In the meantime, if you wish to discuss the potential implications of the Box decision, please contact a member of the Planning & Environment Team.
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