How to win at VCAT

A client recently approached us with a problem. His proposed Dual Occupancy drawn up by another firm was refused its Planning Permit by the local authority, Yarra Ranges Shire Council. He asked us if we could help him at VCAT to overturn the Council decision and gain his Planning Permit.

We ended up securing his Planning Permit – WITHOUT going to VCAT.

Before attempting to overturn Council’s refusal at VCAT, we had to understand why the dual occupancy planning permit was refused in the first place.

We went back to Yarra Ranges Shire Council with the intention to collaborate and found out that the two major issues of contention were:

  1. There were 3 signficant Swamp Gums that were removed in the original proposal that Council believed contributed greatly to the character of the area as per local Planning Schemes.
  2. The proposal resulted in overdevelopment of the site as per local Planning Schemes.

Because Council’s rejection of the Planning Permit was valid as per their own local Planning Schemes, we realised that any attempt to overturn the refusal at VCAT without modifying the design would be futile!

We decided to go back to First Principles.

Go back to First Principles

This client’s goal was, in fact, not to win at VCAT but to secure a Planning Permit.

Council’s goal was not to refuse Planning Permits but to encourage responsible development that aligned with local Planning Schemes.

VCAT’s goal was to uphold Local and State Planning Schemes.

By going back to first principles, we realised that there was an opportunity to resolve this issue with Council and obtain a planning permit through significant amendments thus avoiding a sure loss that would be handed down to us at VCAT.

We kept in mind that the goal was not victory at VCAT, but a successful Planning Permit.

Collaborate with Council

We received the original drawings and the notice of refusal then systematically worked with Council through each issue they presented – redesigning the rear unit to achieve their objectives:

1. Overcoming Objection #1: the 3 Swamp Gums

We designed a solution so that the rear unit was able to keep the 3 swamp gums. We realised that these trees not only contributed to the character of the area (Council was right!), but to the beauty and ‘feel’ of the finished development.

2. Overcoming Objection #2: Over-development

We applied some lateral thinking into the redesign by incorporating a mezzanine level into the rear unit. This had the multiple effect of:

  • Decreasing the building footprint (thus overcoming the overdevelopment objection).
  • Taking advantage of the slope in the land, thereby making the unit design site specific (which Council likes).
  • Allowing for an extra room downstairs.
  • Resulting in a north facing double height living/dining/kitchen area that has a beautiful leafy treed outlook over National Parkland.
  • Simplifying the overall form and roofline.

Everybody wins

Together with Council we finalised the above changes as an amendment to the original town planning application over 2 meetings and a few emails.

With no further reason to refuse the design, Yarra Ranges Shire Council reversed their prior Planning Permit refusal and issued us a permit with conditions that all parties consented to.

Our final step was a 10 minute resolution at VCAT (rather than a hearing) confirming that all parties were happy and no overturning of the original decision was necessary.

Our Client:

  • Received his Planning Permit.
  • Saved thousands of dollars in legal fees by avoiding a hearing at VCAT.
  • Saved thousands of dollars in building costs through having a simpler, redesigned form and roofline.
  • Gained tens of thousands of dollars in comparable property value by having an extra downstairs room, retaining the 3 beautiful swamp gums and having a large, double height north facing living/dining/kitchen area with views towards National Parkland.

VCAT is happy.

Council is happy.

Our client is happy.

How to win at VCAT: Conclusion

Here are a few lessons that we learned that helped our client to ‘win at VCAT':

  • When faced with a challenge, always go back to first principles.
  • Collaborate with Council – don’t fight against them
  • Respond to the site specifically – steer clear of ‘cookie cutter’ designs
  • Respond to the Council’s local planning scheme specifically
  • Think laterally
  • Pay now for good design – it’s far better than paying later in legal fees

While we achieved a great outcome, the client should never have had to resort to VCAT in the first place – this application should have ended at council with a planning permit the first time.

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