ADAPTED FROM: Developer Planning Update, March 2009 Volume 2 Number 1 – by Clem Newton-Brown <cnb@vicbar.com.au>
When is a deal really a deal when negotiating with objectors?
It is common for developers to negotiate with neighbouring objectors in the course of seeking planning permission. These negotiations often result in changes being made to the plans which should result in a better outcome for the objector (e.g. lower height, more window screening, greater setbacks).
In return for the developer apparently being prepared to make the desired changes, the objection is withdrawn and the modified project has a greater chance of success at Council or VCAT in obtaining a planning permit.
However, the case of Kukas v Stonnington City Council (P2045/2008) establishes that agreements to modify designs are NOT BINDING on the developer and that once the permit has been obtained, there is no reason why the developer cannot resubmit the original design for planning approval.
In this case, a permit was originally sought for a four storey apartment building in South Yarra. The 4th storey was removed from the planning application following negotiations with objectors. Approval was granted for three storeys without objection. Construction commenced and then a further application was made for planning permission for the (virtually identical) 4th storey.
The objectors appealed to VCAT, which stated:
“We have given careful consideration to what we regard as the unfortunate circumstances forming the background to this application. We appreciate that the objectors feel unfairly treated or ‘duped’ but, at the same time, it appears that the agreement did not legally prevent further planning applications being made in respect of the same land, although the objectors may have thought it did. As a matter of law, we find that we are empowered to consider the grant of a permit for the development sought, and this was not contested by any party“.
From a public policy point of view it is an unfortunate outcome which will erode the public’s faith in the planning system if the developer’s methods become a widespread practice. It is significant to note that while the developer was able to get some of the objectors to withdraw their appeals, they insisted on a covenant restricting any further development on the site in the future. A situation where parties feel they need lawyers to draw up covenants to ensure agreements are honoured is not in anybody’s interests.
Ian Wood Comment (SOS):
Any changes agreed to a planning application by a developer are not binding unless the developer conveys those changes in writing to the council before the assessment of the application, AND those changes are then incorporated as WRITTEN PERMIT CONDITIONS approved by Council, including corresponding changes to the application plans.
It’s unfortunate that objectors are not allowed to inspect final plans submitted to Council for endorsement when the permit is actually granted because it is not unusual for developers to make unrequested and unauthorised changes to plans to be endorsed. This occurs because there’s a good chance the extra changes will slip through and be endorsed too, since council planners usually only check that the final plans match the final permit conditions, they don’t have the time (or often the inclination) to check every detail.
This obviously becomes a problem later on during construction, when the developer can claim that the “unauthorised changes” are legitimate because they were stamped by Council – which is why councils are loath to enforce permit breaches in this situation in case they become subject to an order for damages (see FAQ – Enforcement of planning permits)