A recent ‘red dot’ decision (7-Eleven Stores Pty Ltd v Nillumbik SC & Ors [2011] VCAT 2418) came to our attention where a permit holder approached VCAT to amend a permit under Section 87A of the Planning and Environment Act. The permit (for the use and development of a 7/11 convenience store and petrol station) was granted by the Administrative Appeals Tribunal (AAT) in 1990. The AAT predates VCAT, which was created in 1998.
In considering the application to amend the permit, VCAT Member Taranto found that in the absence of transitional arrangements between the phasing out of the AAT and the introduction of VCAT, the Tribunal did not have jurisdiction to amend permits issued at the direction of previous legislative bodies, including the AAT and predating that, the Planning Appeals Board and the Town Planning Appeals Tribunal, which dates back to the 1970’s.
Based on her findings in the above case, Member Taranto struck out the matter as being misconceived, and recommended that a fresh application be made to Council in order to obtain approval.
The implication of this decision is that; a planning permit issued at the discretion of a predecessor to VCAT cannot be amended under the provisions of 87A. Rather a permit holder will be required to seek a new permit from Council.
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