General News
20 March, 2023
VCAT hearing overturns council decision to reject Bowenvale planning application
A residential planning application for a lot in Bowenvale initially refused by council has been overturned by the Victorian Civil and Administrative Tribunal (VCAT), with the lot owners expressing their relief — and frustration — after more than...
A residential planning application for a lot in Bowenvale initially refused by council has been overturned by the Victorian Civil and Administrative Tribunal (VCAT), with the lot owners expressing their relief — and frustration — after more than a year of mental and financial stress.
The decision has implications for other lots on the same block of land, with other owners indicating their intent to build to The Advertiser.
The saga began when a planning application for the use and development of a lot on Denyers Road for a single dwelling, outbuildings and associated buildings and works was submitted to Central Goldfields Shire Council in August 2021.
The lot was one of seven land titles located on a parcel of land on Denyers Road created more than 155 years ago, with the allotments recently sold individually — which can occur without the need for a further subdivision of land.
However, when the first lot owners submitted their application to build to council, it was rejected.
One of the major reasons for rejection was that the land falls under a Rural Living Zone (RLZ) designed to provide low density, rural living and protect the rural ambiance of the area.
In passing the motion to deny the application at the March 2022 ordinary council meeting, councillor Geoff Lovett cited that the lot was significantly undersized (4047m2) and did not satisfy the purpose of the RLZ, that development would have a detrimental impact on the rural character of the area, and that it did not achieve the objective of “net community benefit for both present and future generations”.
During the meeting Cr Lovett said he had “great symptathy” for the applicants and encouraged land buyers to do their “exhaustive due diligence” prior to signing contracts.
The application also received three objections from neighbouring land owners with similar sentiments.
At the time, council was also assessing a second application for another lot on the same parcel of land, and indicated it would be rejected due to it not meeting size requirements under the RLZ.
However that decision has now been overturned by a VCAT ruling, with the permit to build granted.
The report stated council’s reasons for refusing the application were that:
• The proposal does not meet relevant planning policy
• The subject site is significantly undersized and does not satisfy the purpose and decision guidelines of the RLZ
• The proposal is not consistent with the established character of the area due to the significantly undersized lot and would result in detriment to the area
• The proposal does not contribute to the orderly planning of the area as required by Clause 65.01 of the Central Goldfields Planning Scheme.
Member Wickramasinghe said hewas not persuaded by council’s submission that the proposal was not consistant with the established character of the area due to the size of the lot.
Member Wickramasinghe also found development of the site for a dwelling is consistent with the objective of Clause 16.01-3S (rural residential development), as the site and surrounding land has been identified as suitable for rural residential development by virtue of the current zone.
“Further, the site is located in an area that includes 11 dwellings and the township of Maryborough is located approximately four kilometres to the south-east and has a population of 8160 persons,” the report read.
“In this context I do not agree with council that the lot is isolated to the extent that it should be consolidated with adjoining land and find the proposed residential use is compatible with the existing residential use in the area.”
The small size of the lot was an issue for council, which submitted that development of a dwelling on that size (approximately 0.4 ha) was unacceptable as “the settlement pattern of dwellings is on larger lots that range from two to 12 ha, with only one dwelling being on land less than four ha”.
Member Wickramasinghe noted council should consider amending its planning scheme if it wished to address lot sizes under the RLZ.
“If council is concerned about land in a RLZ with an area less than four ha being developed, then it could consider amending the planning scheme to require consolidation of lots that it considers to be undersize,” he said.
“I was informed council is not pursuing such an amendment.”
Central Goldfields Shire general manager infrastructure, assets and planning Matthew Irving said council accepted the outcome and acknowledged the comments of the VCAT member.
“Council considered the application on its merits against the provisions of the planning scheme and number of objections received from surrounding residents, and in doing so formed the view that the application should be refused,” he said.
“As with all VCAT decisions council accepts the outcome and issued a permit immediately following the decision.
“Any future applications will be assessed against the provisions of the planning scheme and where relevant the VCAT decision will be a consideration in those applications.
“More broadly, council is also looking to current and future strategic planning work that might need to be done in this space to ensure the amenity for residents and environmental landscapes in rural settings can be protected and enhanced throughout the shire.”
Mr Irving said the VCAT decision will form part of council’s consideration of similar applications in the future, but noted the second planning application submitted on the Denyers Road block will be considered on its own merits.
“All applications will be determined on their merit and individual circumstances, however the recent decision from VCAT will form part of council’s consideration for any future applications of similar nature,” he said.
“The other application located in the close proximity had very different circumstances to the site subject to the VCAT decision and therefore the decision was not a relevant consideration at the time of determining this application.”
Decision a relief for land owners
Briony and Dean Richards
The Denyers Road lot owners who submitted the application, Dean and Briony Richards, said they felt relieved at the outcome, but frustrated as to why it took a VCAT hearing to get the plans approved.
“We feel vindicated and that we’ve proved we did our due diligence,” Briony said.
The couple are keen prospectors and had been travelling to Maryborough for years, making local connections, before deciding to make the move permanently.
“We liked the town, it’s got a hospital, supermarkets and most things you need, plus being close to Melbourne if you need to go there,” Dean said.
“We’re community-minded people.”
The couple sold their home and Dean’s business which he’d built over 30 years, expecting to only be renting or staying in alternative accommodation for up to 12 months.
However, with the unexpected planning application rejection, the Richards found themselves essentially homeless.
Dean said the process put undue stress on the couple, and that they believed they had ticked every box ahead of purchasing the land and submitting their planning application — something they had done before with a previous home.
“It’s a relief. We had no idea if we’d be able to stay here or have to move on, or if our land value had just plummeted,” he said.
“We’ve gone through the expense and stress to prove that the council decision was wrong, but that shouldn’t have been our job.
“We were told verbally it would be okay to build. If they’d said ‘you might have a problem but put the application in and see how it goes’ I’d wear that.
“We had four town planners tell us we could build and not one gave any indication we could have a problem with this.
“When we first put the application in, we were asked by the coordinator of statutory planning to move the house over five metres to give more room for the septic system, which we did. We were doing our best to comply.
“We’ve done everything by the book. Everybody who’s bought those lots had the same story.”
The couple said they also felt councillors’ attitudes towards them during the rejection process were unfair.
“We were basically belittled and told we didn’t do our due diligence,” Briony said.
“We were described as tree changers — we’re from the Yarra Valley. My family are generational farmers.
“They made us out to look like people from the city who didn’t do our homework and just bought a block of land and wanted to put a house there straight away.
“We and the people in that subdivision were let down.”
Briony said ultimately, she hopes the VCAT result will help other people looking to build in the shire.
“We wonder how many other people in the shire — and we’ve heard there’s others — have had the same thing happen, but don’t have the capability to fight it,” she said.
“Hopefully us going to VCAT and winning helps a lot of other people in the same position.