When is a Change not an Amendment?

Leading on from the article above – it is important that applicant’s understand the potential consequences of Council seeking an amendment to your application form and how to protect your applicant’s rights.

Pursuant to section 50 of the Planning and Environment Act (1987), making an amendment to an application will change the date upon which the application is considered to be received by the responsible authority, to the date of the amendment.

Making an amendment to the application can have significant impacts on issues such as exemptions under transitional planning provisions, like those included in the apartment standards and garden area requirements.

So does a change to the description of a proposal on an application form constitute an amendment, pursuant to Section 50, that would reset the statutory clock?

In a recent  VCAT decision, 3 Dickens Street Pty Ltd v Boroondara CC [2017], the tribunal was required to consider just that. In 3 Dickens Street the permit applicant, at the request of council, had altered the application form to include the proposed alterations to access in a Category 1 Road Zone.

Prior to the merits hearing the Tribunal was required to determine whether the amendment to the application form, made after the introduction of VC136, reset the statutory clock and resulted in the loss of the applicant’s exemption under the transitional provisions contained in the new Apartment Design Standards.

In determining if the change to the application form constituted a formal amendment, the Tribunal referred to, Nelco Holdings Pty Ltd v Yarra Ranges SC [2006] as the authority on this issue. The principal established in Nelco Holdings was that a ‘substantial rethinking’ of the proposal might normally constitute an amendment to the application. It stated:

In this proceeding, the requested amendment is nowhere near such a re-thinking. The plans in the application were not proposed to be amended. I would not characterise the requested amendment as even a minor amendment of the type referred to in Kennedy v Cardinia SC [2012] VCAT 1057 because it had no substance in relation to any change to the proposal

As a general rule, Clause 1 Planning recommends that permit applicants remain very cautious about making any amendments to planning permit applications after lodgement with council. However, the above cases reinforces that minor amendments to application forms do not constitute a formal amendment pursuant to Section 50 and should not be considered to restart the statutory clock.

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