Planning Tid Bits
01 What’s Up
Council made a request to the Tribunal under Section 149(1)(a) of the Planning and Environment Act 1987 (the Act). Such an application seeks a determination relating to the interpretation of the planning scheme in relation to land or a particular use or development of the land. This particular application was made in relation to six properties at various locations in the Mornington Shire, all constructed by one building company for the purposes of DPUs. Council’s position was that these dwellings did not meet the definition of “dependent person’s unit” or “movable buildings” and that over time, the type of dwelling that was being constructed under the guise of a DPU was getting larger and beyond the intent of planning provisions, to become second dwellings. The Tribunal noted in their decision that:
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Dependent Person’s Units and Movable Buildings A recent Red Dot decision by the Victorian Civil and Administrative Tribunal (the Tribunal) in Mornington Peninsula SC v Premier Homes Pty Ltd [2021] VCAT 9, considered whether six dwellings constructed as ‘dependent person’s units’ (“DPUs” - otherwise known as “granny flats”) met the planning scheme definitions of a ‘dependent person’s unit’ and a ‘movable building’. Such buildings which meet the Planning Scheme definitions are exempt from the requirement for a planning permit for buildings and works, under the zone provisions.
4. A ‘dependent person’ is not limited to the elderly or people with disability. However, in practice, a DPU provides a diverse and affordable housing option for these two groups in particular. In accordance with the government’s planning policy framework, a DPU commonly does not require a planning permit for either use or development. Under clause 62.02 of Victorian planning schemes, a DPU is exempt from the need for a planning permit for buildings and works unless specifically required by another provision of the scheme. This can be contrasted with a second dwelling on a lot that is not a DPU, where a planning permit will often be required, or where specific design and/or siting requirements apply. The definition of “Dependent Person’s Unit” in the planning provisions is: A movable building on the same lot Accommodation as an existing dwelling and used to provide accommodation for a person dependent on a resident of the existing dwelling. The definition of “Movable Building” in the planning provisions is: A structure, other than a tent, caravan, or vehicle, which is designed to be moved from place to place on more than one occasion. The Council sought declarations from the Tribunal that the six subject buildings were:
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• not, for the purposes of the Scheme, movable; • not, for the purposes of the Scheme, dependent person’s units; and • not exempt, pursuant to clause 62.02 of the Scheme, from the need for a planning permit for buildings and works. Council submitted that the buildings were not “movable” due to the level of deconstruction and reconstruction involved, whereby each building had to be almost completely dismantled before being moved, and therefore not “designed to be moved”. The Tribunal found that: • the proceeding should not be determined on prescriptive criteria drawn from previous VCAT decisions, where no rigid test exists in the planning scheme;
