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Amending a Planning Permit

VCAT’s longstanding ‘transformative’ change ‘test’ for amendment applications was rejected by the Victorian Supreme Court (VSC) late last year.

The VSC decision of Niall JA[i] reviewed all the amendment powers available under the Planning & Environment Act 1987 (PEA)[ii] in a case concerning an existing permit for apartments and ground floor retail space. The ‘amendment’ sought to change the use to hotel with ground floor restaurant and make internal and external alterations to height and design, alter car parking and change some conditions.

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VCAT[iii] had rejected the amendment on the basis that a residential hotel was a different planning concept due to duration of stay, amenities provided, liquor sales and entertainment. It also concluded that the layout and appearance of the development was qualitatively different. VCAT acknowledged both that the description of the proposed use was substantially the same and many original conditions remained; and that the terms ‘dwelling’ and ‘residential hotel’ both ‘nested’ within term ‘accommodation’ in the Planning Scheme. Nevertheless, VCAT determined ‘that the combination of changes proposed leads to a transformation, rather than an amendment of the Permit.[iv]

The relevant PEA power is s72(1) PEA:

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’.

Amendment’ is defined in s3 PEA to ‘include addition, deletion or substitution.

An amendment application may include amendment to the use or development, the land description and to any plans or other documents forming part of or accompanying the application (s50(2) PEA). An amendment application is treated as if it were a permit application, with a similar approvals process including notice, referral, third party objections, the manner of the RA’s decision and rights of review.

S73 PEA contains a qualification that any conditions imposed must relate only to the amendment.

The discretion of the Responsible Authority (RA) on an amendment application includes the usual considerations set out in S60(I1) PEA, i.e. it must consider the relevant planning scheme, the objectives of planning in Victoria, any objection and significant social and economic effects. It also includes an additional discretion permitting the RA to refuse ‘if it considers that the amendment is so substantial that a new application for a permit should be made’ (s50(5) PEA).

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In his Supreme Court judgment, His Honour examined the background to the 2004 PEA amendment that created the current controls, noting that its purpose was ‘expressed as being to improve the planning system in Victoria[v]‘. He quoted the Minister’s second reading speech as to the need to avoid artificial judgements on whether a proposal was a ‘minor’ modification and found that:

‘(T)he word ‘amend’ does not carry with it any particular limitation on the extent of the change that may be involved’.[69] ‘… (T)he word is to have a wide meaning that includes replacing the existing text with a different text. … (T)he process of substitution suggests the capacity to bring about a substantial change free of the existing text[vi].

The only limitations are that the permit be in force at least at the time the application is made, and that the permit is not spent or ceased to be operative[vii].

Given this, it rejected VCAT’s approach as introducing a level of uncertainty – the concept of ‘transformation’ being ‘somewhat vague’ and leaving a relatively wide area of decisional choice[viii].

In exercising the s72 PEA amendment power, His Honour noted that the RA will be focused on the proposed changes and that any conditions it may impose must relate to the changes.

That does not mean the RA must ignore those parts of the permit that are not the subject of amendment and again, the broader the change, the wider the potential scope for conditions to be imposed.[ix]

The changes in an application to amend may be profound and entail a different use or a different development of the same land but they do not, for that reason, fall outside the power contemplated by s72.[x]

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His Honour rejected previous VCAT cases[xi] and distinguished the 1979 VSC case of Addicoat v Fox (No 2) (Addicoat), upon which the VCAT cases relied[xii].

His Honour found that Addicoat was not concerned with the amendment power at all. Addicoat considered permit conditions. 

‘(A) power to grant a permit subject to conditions authorizes the [RA] to grant a permit for a use or development which differs from the use or development the subject of the application …, provided that the difference is not so radical as to enable it to be said … to grant a different permit.  …   (The question is as to whether) the point is reached at which alteration ceases to be modification and becomes transformative…[xiii].

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Two 2022 VCAT decisions, both decided by member Djohan, extrapolate and apply Mondib.[xiv]:

As in the case of an application for a permit, the contents of an application for amendment to a permit are fundamental to the identification of the relevant matters… when determining the application. It goes without saying that the matters relevant to the assessment of an application to amend a permit are those matters raised by the subject matter of the proposed amendments[xv].

It remains to be seen how the discretions become applied to amendment applications. It will also be interesting to see if there is any future revisiting of the ‘transformation’ concept within the context of the conditions powers. Mondib did not consider the conditions power or make any reference to Benedetti v Moonee Valley City Council[xvi] the 2005 VSC decision of Justice Obsorn holding that conditions have two functions – a ‘facilitative function’ and a ‘restrictive function’, the former being limited to minor changes and the latter setting the ambit of the permission granted.

29 July 2022

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[i] Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722.

[ii] Including powers to amend an application before notice (s50A PEA) [24] and after notice (s57A PEA) [26], the s87A PEA powers to cancel or amend a permit [33], amendments to planning schemes (e.g. ss4B, 4J and Part 3 PEA) [35].

[iii] Mondib Group Pty Ltd v Moonee Valley City Council [2020] VCAT 1031 (Member Halliday).

[iv] Ibid, [31].

[v] Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722, [36]

[vi] Ibid, [71].

[vii] Ibid, [73].

[viii] Ibid, [76].

[ix] Ibid, [85].

[x] Ibid, [88].

[xi] Bestway Group Pty Ltd v Monash City Council [2008] VCAT 860, Coles Property Group Developments Limited v Boroondara City Council [2014] VCAT 342, Central Estate Properties Pty Ltd v Manningham City Council [2014] VCAT 343, Alkero Development Pty Ltd v Stonnington City Council [2018] VCAT 1120. Two of these VCAT cases (Coles Property Group Developments Limited v Boroondara City Council and Central Estate Properties Pty Ltd v Manningham City Council) concerned s87 PEA amendment applications.

[xii] Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347 (20 October 1978)

[xiii] Ibid., 363.

[xiv] Drew v Manningham City Council [2022] VCAT 552 at [30] and Lakrindis v Manningham City Council [2022] VCAT 612 at [28].

[xv] Lakrindis v Manningham City Council at [28].

[xvi] [2005] VSC 434.