Transformation of a planning permit through an amendment application

The Planning and Environment Act 1987 (the Act) provides the opportunity for a planning permit to be amended, including the permit text, plans or other documents endorsed under that permit. Section 72 of the Act provides

A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit.

The planning process for such applications is similar to that of a regular planning permit application in relation to notice/advertising and appeal rights.

In a recent application brought to the Victorian Civil and Administrative Tribunal (the Tribunal), a planning permit applicant had approval for a multi-storey building containing apartment dwellings and ground floor retail space which they wanted to amend. The amendment application was to construct a building to be used as a hotel with a restaurant at the bottom.  The most significant changes included:

  • One additional storey but a lowering of the building height
  • Fewer car parking spaces and fewer levels of basement parking
  • Changes to the external design
  • Changes to the interior layout
  • Changes to the use of the land as noted above

Council refused the application which was subsequently appealed to the Tribunal. The Tribunal found that because the proposal resulted in a “transformation” of the proposal, the appeal was dismissed, concluding:

The differences in the appearance and layout, and the permit conditions are a product of the change in the purpose of the uses proposed. In my view, the development approved by the Permit is proposed to be changed, and what results is a different permit, as opposed to a modified permit.

On appeal to the Victorian Supreme Court, the Tribunal’s findings on “transformation” were overturned and the matter referred back to the Tribunal. Of interest, the Supreme Court decision in Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722 found that:

  • Previous Tribunal decisions had formed the practice that a Section 72 amendment application should not result in a proposal being transformed into something which the original permit did not approve
  • In contrast to an event that brings the permit to an end, the word ‘amend’ does not carry with it any particular limitation on the extent of the change that may be involved.
  • The word amendment does not carry any particular limitation of the kind ascribed by the Tribunal and neither the purpose or overall scheme of the Act requires a limitation to be applied. A so called transformative change would, if made, still be an amendment to the permit.
  • The Tribunal erred in dismissing the application on the basis that the proposed changes were transformative. The nature and extent of the changes were properly a matter to be assessed on the merits of the application and not at the threshold.
  • The decision of the Tribunal should be set aside and the application remitted for hearing.

We may conclude from these findings that Section 72 of the Act provides permit applicants with broad scope for change to existing permits when applying for an amendment. It enables changes to planning permits which result in a different outcome without the need to go through the process of a new planning permit. It may allow changes to permits which would otherwise be prohibited or limited by changes to planning scheme provisions, although as with both permit applications and applications to amend planning permits, the merits of the applications still need to be considered by the Responsible Authority in coming to a decision.

The process of making an application to amend a permit (rather than apply for a fresh permit) does not mean an applicant avoids public notice of the amendment and it still gives third parties the opportunity to object and appeal the decision of the Responsible Authority. This provides for a fair and transparent process with opportunities for review.

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