The Victorian Civil and Administrative Tribunal (VCAT) decision Tsourounakis v Cardinia SC (Red Dot) [2024] VCAT 1104 considered whether a permit applicant’s appeal of a permit condition under Section 80 of the Planning and Environment Act 1987 could lead to a new permit trigger being approved.
In this case the condition under review limited the number of students onsite for a proposed Education Centre. The limit had the effect of ensuring the car parking quantum provided was in accordance with the requirements of Clause 52.06 (and no permission for a reduction in parking spaces was required).
A planning permit had issued, but not for a reduction in car parking, as none was required. Through an appeal, the applicant sought to amend the planning permit by varying a condition to allow more students, but without increasing on site car parking quantum.
The Tribunal found that to change the condition and increase student numbers a new planning permit would be triggered, that is a reduction of the car parking requirements of Clause 52.06. This would then require the Tribunal to amend the preamble of the permit (what the permit is being issued for) to include a new permit trigger for car parking reduction (under Cl52.06).
The powers of the Tribunal are limited in a Condition’s appeal under Section 80. The Tribunal can alter the wording of a condition, delete and replace the condition or delete in its entirety. The Tribunal noted:
- Introducing new permit triggers in addition to the permissions that have already been granted is beyond the scope of a section 80 review, having regard to the powers conferred on the Tribunal under section 51(2)(b)
In this case the Tribunal decided to dismiss the appeal as it found that it did not have the jurisdiction to amend the condition, due to the limitations under Section 80 of the Planning and Environment Act 1987.
In the case of a Section 80 (conditions) review, practitioners should be aware of the implications of changing conditions on a permit, particularly in relation to creating new permit triggers where these have not been expressly referenced in the permit preamble or considered as part of Council’s original decision.
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