Making Amendments to your Application Could Render it Prohibited
A recent VCAT decision has sent shivers through the industry by concluding that an applicant who makes amendments to a planning permit application throughout the assessment process (pursuant to Section 50 and 50A of the Planning and Environment Act) will forfeit the ability to utilise the transitional provisions contained within the new residential zone.
Regular permit applicants will recall that those transitional provisions contained in the NRZ exempt applications lodged prior to the implementation of the new zones, from:
1. The mandatory maximum height provisions (default 8m) and;
2. The maximum number of dwellings provisions (default 2 dwellings).
In Samsons (Shoobra) Pty Ltd v Glen Eira CC  VCAT P235 the Tribunal was required to determine whether an amendment to an application, made as a result of negotiations with Council, resulted in the proposal being unable to benefit from the transition provisions and therefore prohibited. The proposal was for four dwellings.
Section 50(7) of the Planning and Environment Act (1987) states:
(7) On the amendment of an application under this section, the amended application is to be taken—
(a) to be the application for the purposes of this Act; and
(b) to have been received on the day that the request for amendment was received by the responsible authority. (emphasis added)
The Tribunal determined that the application was now prohibited (due to the amendment) even though the originally application was lodged prior to the new zones being implemented. Once extinguished the transitional provisions cannot be reignited. In striking out the Application for Review as misconceived, the Tribunal noted:
4 … I answer the question of law affirmatively in that I find that application for review No. P235/2014 has lost the transitional protection under clause 32.09-3 of the Glen Eira Planning Scheme (i.e. ability for consideration of an application for more than two dwellings on a lot in the Neighbourhood Residential Zone) by reason of the substitution of plans by the permit applicant on 29 October 2013.
5 Although the applicant intended for the amended plans to be considered in place of the originally submitted plans, it is clear that neither it nor the responsible authority at the time appreciated the ramifications that would follow the amendment of the permit. This is unfortunate, especially where the amendments were proposed to address preliminary concerns expressed by officers of the responsible authority. This is compounded by the fact that the effect of amending the application is terminal for the proposal, since permission for more than two dwellings can no longer be granted at the present time.
6 Notwithstanding, the Tribunal is obliged to apply operative provisions of the legislation as it finds it. In this case, it is necessary to strike out the application as misconceived without consideration of the merits of the development proposal.
It is critical that permit applicants carefully consider the implications of making amendments to any application. The effect of such an amendment will mean the application was received by Council on the date of the amendment and could render your proposal/application as prohibited under the new zones.
If you find yourself in a situation where you must make amendments to an application affected by the above issues we would strongly suggest that you consider one of the following methods, rather than a Sec.50 or 50A amendment:
In situations where Council is requesting changes but generally supports your proposal we would recommend:
- Highlighting the above issue to Council’s planning officer;
- Encouraging Council to deal with any alterations via permit conditions, Including referencing any plans that show those changes (but have not been formally substituted as part of Sec. 50 amendment).
Substitution of Plans Prior to VCAT
In situations where Council is unwilling to make alterations via permit conditions and a Sec. 50 or 50A amendment would render the application prohibited, an appeal to VCAT might be the only avenue available.
Importantly, the Tribunal has recently confirmed that applicants seeking to substitute plans prior to a hearing (pursuant to s.127 and Clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998) retain the ability to utilise the transitional provisions contained in the Neighbourhood Residential Zone. Applicants seeking to substitute plans via this method should familiarise themselves with the extent of alterations acceptable under the VCAT Act.
For more information or clarification on this significant transitional issue please don’t hesitate to contact our office.
Seek Professional Advice Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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