By David Passarella, Partner and Beth Barbour, Lawyer
The recent case of Owen v Boroondara City Council (‘Owen v Boroondara CC’) saw the determination of a question of law relating to accrued rights for garden area requirements and to what extent they apply.
In applying section 28(2)(e) of the Interpretation of Legislation Act 1984, the Tribunal adopted a restrictive interpretation of accrued rights and finding that the minimum garden area accrued under an existing planning permit cannot be varied by a subsequent amendment.
The question of accrued rights, as it arises in its various forms, has always been vexed with the Tribunal’s findings varying, depending on the circumstances of individual cases.
Background of Case
On 29 May 2015 the Respondent (permit applicant) was issued a Planning Permit (Permit) for construction of dwellings and subdivision works by Boroondara City Council (Council). The Permit was amended in November 2017 (First Permit Amendment). A further two amendments to the Permit were then lodged. Subsequently, Council issued a Notice of Decision to grant on 5 February 2020 for the third amendment (Third Permit Amendment).
On 27 March 2017, Amendment VC110 (VC110) was gazetted. VC110 introduced mandatory minimum garden requirements under clause 32.09-4 of the Boroondara Planning Scheme (Planning Scheme). Pursuant to clause 32.09-4, the Subject Site has a minimum garden area requirement of 35%.
A question of law arose as to the Third Permit Amendment’s requirement to comply with VC110. The First Permit Amendment was lodged before VC110 became enforceable and, as such, was not required to comply with the 35% minimum garden area requirement for the site. The First Permit Amendment had a garden area of 25.25% and the Third Permit Amendment was seeking a further reduction to 21.27%.
This question of law was referred to Senior Member Rickards for consideration.
Senior Member Rickards found that the First Permit Amendment and endorsed plans constituted an accrued right with respect to garden area. She found that the minimum garden area under clause 32.09-4 of the Planning Scheme is to apply, subject to the Respondent’s accrued rights.
The second part of this question was determining the scope of the accrued rights. Council argued that the accrued rights extended to include some minor variations, whereas the objector Applicants formed the view that these rights were fixed.
Senior Member Rickards held that:
“An accrued right cannot be varied by an increase or decrease in that right.”
As such, the Tribunal found that the 25.25% of garden area provided in the First Permit Amendment was the minimum garden area to be applied by the accrued right, which could not be reduced to 21.27% as sought be the Third Permit Amendment.
The Council’s decision was set aside.
What Does this Mean for Developers?
In light of this decision, the scope of accrued rights appears limited with respect to garden area requirements.
Whilst accrued rights are applicable in circumstances where a planning permit has already been issued prior to the introduction of minimum garden area requirements into the Planning Scheme by VC110, these rights do not extend to any further variation of garden area as provided for in the approval, establishing the accrued rights.
 (Red Dot)  VCAT 175 (‘Owen v Boroondara CC’).
 Owen v Boroondara CC (n1), Appendix A, 6.
 Owen v Boroondara CC (n1), Appendix A, 28.
 Owen v Boroondara CC (n1), Appendix A, 9.
 Owen v Boroondara CC (n1), Appendix A, 27.
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