Planning Tid Bits

Despite Clause 52.06 Car Parking specifying the required aisle-widths, car parking dimensions and other vehicle movement design standards, more and more Councils are requesting swept path diagrams be provided with permit applications.  Requests for such diagrams are especially prevalent in multi dwelling developments where vehicles are required to enter and alight a site in a forward direction.

These diagrams can be prepared using automated applications that confirm layouts and ensure the efficient and safe manoeuvring of vehicles.

It will be the experience of regular permit applicants that many Council’s often prefer no corrective movement (a “four-point-turn”) when cars are accessing or egressing a parking space.  Some Engineering Departments consider any more than two vehicle movements unacceptable. And argue that residents and visitors are often unwilling to use such spaces due to perceived difficulties in manoeuvring vehicles in and out.

However, a ‘corrective manoeuvre’ is permitted under the relevant standards in AS2890.1:2004 for residential car parking.

This conflict was clarified by the Victorian Civil and Administrative Tribunal, in Karl Degering & Associates Pty Ltd v Bayside (2017) VCAT 372, in which the Tribunal was forced to consider the appropriate interpretation of the relevant Australian Standard.

In Degering, Council had submitted that a proposed four-point turn to exit a car stacker space would not be permitted by the relevant Australian Standard. However, the Tribunal took a different view, and whilst noting that the Standard did not define what a “point turn” was, surmised the difference in interpretation hangs on whether a vehicle could:

The Tribunal went on to find that:

The Tribunal also noted, that of more importance was whether access was convenient and safe. The Decision Guidelines of Clause 52.06-10 of the Victorian Planning Provisions include:

The ease and safety with which vehicles access and circulate within the parking area.

In summary, these findings show that a corrective manoeuvre, or “4 point turn” (as show below), is permissible in residential development where car parking access and circulation is , generally, considered to be in accordance with other requirements and provides for safe and efficient access and egress.

Not to be confused with a Statement of Compliance (required as part of a subdivision), the Victorian Civil and Administrative Tribunal (VCAT) as previously noted (in Studley Street Developments  Pty Ltd v Yarra CC  [2013] VCAT 1762) that ‘Certificates of Compliance’ are:

… intended to provide a quick, simple and cheap means for obtaining documentary evidence that a particular proposed or existing use or development can be carried on without a permit.

Section 97N of the Planning & Environment Act includes a seldom utilised provision that states:

Any person may apply to the responsible authority for—

           (a)           a certificate stating that an existing use or development of land complies with the requirements of the                                 planning scheme at the date of the certificate; or

           (b)          a certificate stating that a proposed use or development (or part of a use or development) of land would                            comply with the requirements of the planning  scheme at the date of the certificate.

Some significant advantages of utilising the certificate of compliance process include:

• No public notification of the application is required and;
• Council has a 30-day statutory timeframe to determine the application.

Similar to a planning permit application, the certificate-applicant has a right to Review at VCAT against any decision to refuse to grant a certificate and Council’s failure to grant a certificate within the statutory timeframe.

Practitioners should be aware of what a certificate of compliance can offer their clients and how they assist with your projects. The following case provides some insight into the benefit of these certificates.

In one of our more memorable appeals, Clause 1 was asked to represent the interests of a business owner operating a DVD reproduction, sales and hire shop out of a garage in a residential zone. Council had commenced enforcement proceedings and issued a fine against the shop operator, who also lived at the premises. Council’s action was initiated by complaints from a similar type of DVD shop located within a nearby activity centre/commercial zone.

Under the provisions of the residential zone the use of the site as a retail premises or shop was outright prohibited by virtue of the use being listed as a Section 3 use.

Our initial site visit found thousands of copied DVDs piled up on tables in the garage of the house, multiple DVD burners and three staff operating a busy little enterprise.

After a detailed review of the use we lodged, on behalf of our client:

• An application for Internal Review seeking reconsideration of the Planning Infringement Fine imposed, pending the outcome of;
• An application for a Certificate of Compliance seeking to confirm that the DVD reproduction, sales and hire shop was in accordance with the provisions of the Planning Scheme;
• Later, an appeal to VCAT after Council refused to grant the Certificate of Compliance.

As a result of the appeal the Tribunal agreed with our assertion that the use met the tests associated with a Home Occupation and ordered that a Certificate of Compliance be issued, without the need to notify neighbours or competing DVD Shop, stating that the use was lawful.

The certificate of compliance process can be of particularly interest in matters where applicants are seeking formal confirmation of:  existing use rights, whether or not a permit is required to extend an existing use or commence a new use, whether a permit is required to undertake development or remove vegetation and numerous other scenarios.