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“The death of transformation” – The Supreme Court interpretation of what can be considered under an application to amend a planning permit
The Supreme Court (Court) in the decision of Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722 (Mondib) overturned the decision of the Tribunal to dismiss our client’s application to amend an existing permit on the basis that it was a ‘transformation’ of the original planning permit and was ‘misconceived or lacking in substance.’
The Mondib decision represents a significant change to the way that the concept of ‘transformation’ had been interpreted in previous VCAT decisions.
Our client’s case focused on the power of a decision maker to amend a permit as granted under Section 72(1) of the Planning and Environment Act 1987 (Vic) (the Act) which states:
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.
In considering the Appellant’s submissions that Section 72 does not confine or limit the extent to which an existing permit can be amended, the Court found, at paragraphs 88 and 89 of the decision that:
Section 72 allows a person to use or develop land in accordance with a permit to apply for an amendment to the permit. An amendment is an alteration to the terms of the permit. The text, purpose and context of the provision does not support a limitation on the power of the kind adopted by the Tribunal. The word amendment does not carry any particular limitation of the kind ascribed by the Tribunal and neither the purpose or overall scheme of the Act requires a limitation to be applied. A so called transformative change would, if made, still be an amendment to the permit. 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.
The Tribunal erred in dismissing the application on the basis that the proposed changes were transformative. The nature and extent of the changes were properly a matter to be assessed on the merits of the application and not at the threshold.
In other words, the scope by which a planning permit can be amended is not limited under Section 72 of Act.
This overturns numerous VCAT decisions which have held that if the planning permit amendment application ‘transformed’ the original permission granted, then a decision marker cannot amend the planning permit and a fresh planning permit application would be required instead.
The Mondib decision makes it clear that decision makers have the jurisdiction to amend a planning permit even where the amendment may substantially vary the permission originally granted under the permit.
This is an important and binding decision on the Tribunal which provides Applicants with the flexibility to amend an existing planning permit rather than going through a fresh planning permit application process. This has numerous benefits including, but not limited to:
- Not being required to pay for fresh Metropolitan Planning Levies;
- Potentially cheaper application fees;
- Limiting the extent of advertising/notice required of the application on neighbouring properties and referral authorities;
- Limiting the relevant considerations;
- Reduced processing time
Please contact a member of our planning law team if you have any questions on how the Mondib decision may impact on your development application.
