Members will be aware that a planning permit applicant has the ability to amend plans or amend an application before the hearing, where the matter has been appealed to the Victorian Civil and Administrative Tribunal (VCAT).
The ability to amend plans or amend an application relates to appeals:
- against Council’s refusal to grant a permit;
- against Council failure to make a decision within the statutory timeframe;
- against Council’s decision to grant a permit (“objector appeal”);
- for an application to amend or cancel a permit ; and
- against the refusal of the Environmental Protection Authority in relation to certain applications.
The ability to substitute amended plans can be a useful tool to address issues raised by Council, objectors or other parties before the VCAT hearing and to improve the chances of a successful outcome.
Recent changes to the Tribunals practice notes now stipulate that any amendments should not be used to materially increase the scale or intensity of a proposal or introduce significant new aspects that have not been considered in the planning permit application. Substituted plans with changes which increase the scale or number of buildings, the uses proposed, access arrangement or other aspects which have material impacts are unlikely to be accepted/substituted by the Tribunal. In such circumstance the original permit application plans will be considered at the hearing.
This is somewhat of a change from the principles previously established by the tribunal. Applicants should be aware that any significant changes would best be dealt with through a new planning permit application.
The new practice note sets out the procedures which are to be followed by applicants seeking to submit amended plans or seeking to revise other aspects of an application. VCAT may decide whether or not to accept the request to substitute plans either at the start of the hearing as a “preliminary matter” or at a directions day hearing some time before the actual merits hearing.
It is also important that all relevant parties to the application are given notice of the request to substitute plans, including those persons originally notified of the planning permit application, objectors, parties to the VCAT appeal, referral authorities and the responsible authority or primary-decision maker (usually Council). Notice of an amendment must be posted not less than 33 business days prior to the first day of a hearing, which may equate to more than 50 calendar days. So a request to substitute plans needs to be undertaken well in advance of a hearing.
A copy of the relevant practice note (PNPE9) and the relevant forms for giving notice to amend an application can be found on VCAT’s website at www.vcat.vic.gov.au.
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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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