Planning Permits, Heritage Overlays and When Councils Move the Goal Posts

In Victoria, the considerations and obligations of Councils are laid out in the Planning and Environment Act 1987 (Vic), the Planning and Environment Regulations 2015 and the relevant Planning Scheme of the particular council. Therefore, some considerations for all Councils will have common elements while others will be specific to each Council.

One of the most common issues arising with regards to Planning Permit applications is heritage overlays and the heritage grading of properties. While the preservation of a heritage precinct is a worthwhile and mandatory cause it can cause issues with people wishing to develop properties under such scrutiny.

Some people automatically jump to the conclusion that if a house is listed within a heritage policy and is graded as being contributory to the heritage precinct then it must be a very desirable property. However, as we know, heritage is a word that is also associated with age, and an old home just may not be practical in the 21st century. Therefore the need to renovate and/or rebuild a house is a genuine consideration.

While some may argue that aesthetics are all important, the ergonomics, practicalities and functions of a home are becoming critically important in this day and age. As such, the development of heritage listed properties is a hot topic of contention.

We’ve seen a number of instances arise where a Council has changed, or has flagged their intention to change the heritage listing of a property subject to a Planning Permit Application. While it hardly seems fair on the Home Owner, the Council is unfortunately not precluded from doing so.
One particular example was quite harsh, where a young family wanting to build their ‘forever’ family home bought a property with the intention of developing it, only to have the Council change the heritage listing midway through the process. The family would not have bought the property had it not been for the “non-contributory” grading that it was given 19 years prior.

However, not all is lost in such circumstances. If you find yourself in a dispute with a Council over a Planning Permit application, you need to seek the advice of a planning lawyer expert in dealing with these matters. The lawyer will have intimate knowledge of the relevant legislation and the process in dealing with the dispute and will be able to provide you with the best possible advice for your particular situation.

In matters such as these it may be necessary to ‘up the ante’ and progress the matter against the Council to VCAT. It would therefore be prudent to engage a lawyer from the beginning that is an expert litigator.