Case Note: Altering a Planning Permit through Secondary Consent

Altering a Planning Permit through Secondary Consent

CASE NOTE

Cook v Mornington Peninsula SC (Red Dot) [2017] VCAT 1129, Deputy President Dwyer

EXECUTIVE SUMMARY

• Councils often give what is known as a ‘secondary consent’. This allows small changes to endorsed plans without a full amendment process.
• There are limits to the secondary consent mechanism.
• In this case, Council had no power to grant a secondary consent.
• It also found that the secondary consent was contrary to the purpose of the planning controls.

BACKGROUND Amanda and Malcolm Burge sought a planning permit for extensions to their home on the Mornington Peninsula. John Cook objected on the basis that a proposed deck and pantry window would overlook his land. VCAT decided to grant a permit, but with a condition (Condition 1(d)) requiring that the Burges’ plans with a window sill height of 1.7m, not 1.1m, to address overlooking issues. Council issued a permit with plans endorsed as VCAT ordered. Some months later, the Burges sought consent for a larger unscreened window, only part of which had a sill height of 1.1m. They relied on Condition 2 of the permit, which provided that:

The layout of the land, the size and type of the dwelling additions, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.

Conditions of this kind are routinely applied to planning permits. It is known as the ‘secondary consent’ condition. ISSUES Mr Cook discovered the alteration when construction began. He initiated VCAT enforcement proceedings, seeking a declaration that the larger window contravened Condition 1(d) and that Council did not have power to make the change as a secondary consent. He maintained that the proper way to deal with the Burges’ proposal was to apply to amend the planning permit. THE SCOPE OF THE SECONDARY CONSENT CONDITION The Secondary Consent Condition, read by itself, could justify the change to the window.‘Land’ is defined to include a building and a change to the window was a change to the building[1]. However, VCAT (constituted by Deputy President Dwyer) found that it must be read in light of VCAT’s amended sill height condition as well as the planning scheme as a whole. An earlier Supreme Court case, Benedetti v Moonee Valley CC [2005] VSC 434, gave further clarity to the interpretation of secondary consent conditions. Osborn J held that such conditions have two functions – a ‘facilitative function’ (to allow secondary consents for minor changes) and a ‘restrictive function’ (to prohibit secondary consents for material changes). Following Benedetti, VCAT found that the fundamental question is whether the change is ‘of material consequence’, and this is a question not of the scale of the change but its ‘possible impact or detriment’[2]. VCAT found that in determining what can be approved by secondary consent, the requirements set out in Westpoint Corporation v Moreland CC [2005] VCAT 1049 (Westpoint) must be met. These are:

1. It does not result in the transformation of the proposal.

2. It does not authorise something for which primary consent is required under the planning scheme.

3. It is of no consequence having regard to the purpose of the planning control under which the permit was granted.

4. It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.

THE ROLE OF CONDITION 1(D) One of the primary issues was whether Condition 1(d), ie VCAT’s amended condition, was ‘spent’ once the amended plans were approved with the 1.7m sill height. If so, the endorsed secondary consent condition could apply[3]. The change proposed by the secondary consent did not meet the third and fourth Westpoint criteria and VCAT’s sill height condition was not spent after the endorsement of the amended plans. It found that

the plans have some ongoing purpose in the administration, enforcement (and interpretation) of the Permit. More particularly, Condition 1 here also expressly refers to VCAT, and to specific modifications required to the application plans. There is clearly an additional requirement served by Condition 1 …[4]

If VCAT were to ignore that requirement, amended plans required by Condition 1(d) could simply be overridden by subsequent plans approved by secondary consent, making the condition useless. Thus, VCAT found its condition created a specific requirement to which the secondary consent was subject in order to meet the fourth Westpoint requirement. THE PURPOSE OF THE PLANNING CONTROLS VCAT also found that the third Westpoint requirement was not met. It found that the requirement looks to the planning controls, which included a Design and Development Overlay[5]. In addition, it found that the third Westpoint requirement ‘must be considered in the context of the permit that was in fact granted pursuant to those planning controls’[6]. The permit issued pursuant to the VCAT order contained the sill height condition, which demonstrated that significant weight must be paid to overlooking. In these circumstances, it was not open to Council to give a secondary consent that bypassed VCAT’s recognition of those planning considerations. In so doing, Council was giving a consent contrary to the purpose of the planning controls (as interpreted by the earlier VCAT decision):

It was not open to the Council and Burge to ignore [the previous VCAT decision], or the way in which VCAT had interpreted the planning controls in that decision in relation to the relevant window. It is not the case that you can simply start to assess the planning merits of the modified window from first principles, under a secondary consent process that ignores the permission already granted.[7]

Freeman Zhong 8 September 2017 Copyright © Kellehers Australia 2017 Liability limited by a scheme approved under Professional Standards Legislation This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances. [1] Cook v Mornington Peninsula SC (Red Dot) [2017] VCAT 1129, [61]. [2] Ibid [77]. [3] Ibid [29]. [4] Ibid [38]. [5] Ibid [102]. [6] Ibid [106]. [7] Ibid.