(un)Transforming a principle of Section 72 Amendments


(un)Transforming a principle of Section 72 Amendments





(un)Transforming a principle of Section 72 Amendments

It’s been a long-held statutory planning principle that an amendment to a permit should not transform the original approval. This is no longer the case.

(un)Transforming a principle of Section 72 Amendments

A recent Supreme Court decision (Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722[1]) determined that due, in part, to changes to the provisions of Section 72, an amendment to a planning permit no longer needs to pass the ‘transformation’ test.

To amend or reapply?

A common angst amongst town planners lies in deciding whether to lodge a change to an approved development as an amendment to the original permit or as a fresh application. The attractiveness of lodging an amendment is that only the changes to the proposal are subject to the approval process. For example, changing an 80-metre office building into an 80-metre apartment building will only bring up issues of use and car parking, whilst the height wouldn’t be ‘on the table’ for discussion.

Planners’ indecision about how to proceed stems primarily from the concept of ‘transformation’[2], which has been established as a common-law principle in relevant town planning jurisdictions (commencing with Addicoat v Fox (No 2)[3] and most notably in Bestway[4]).

In plain terms, this principle establishes that the proposal should not transform the original approval so that the revised scheme is still relatively ‘close’ to the original.

The absence of ‘transformation’

The words ‘transform’ or ‘transformation’ do not appear in the Planning and Environment Act 1987 (‘the Act’), particularly in Section 72. Throughout decades of AAT and now VCAT precedents, this terminology has found its way into common planning language as a principle to be abided by when considering Section 72 Amendments. Accordingly, it’s been common practice since the late 1970s for substantive changes to be the subject of a fresh planning application.

The verdict is in: misinterpretation 

The Supreme Court decision reviewed the history of case law and determined that the Tribunal has misinterpreted the operation of Section 72 of the Act.

One of the key considerations taken into account by the Supreme Court was changes to the Planning and Environment Act 18 years ago. These changes enabled a S72 Amendment to be publicly notified where, previously, planning legislation (which did not include Section 72 in its current iteration) only allowed ‘minor’ amendments to planning permits where the decision maker was satisfied that there would be no increase in material detriment. It remained at the discretion of the Responsible Authority to determine if the proposal was indeed minor, otherwise a fresh application was required.

However, changes to the Act in 2004 allowed for Councils to advertise amendments, remove the material detriment assessment in the same manner as fresh planning permit applications and introduce appeal rights to the Tribunal. This was a key factor in the Supreme Court deciding that a proposal seeking to be amended under Section 72 did not need to pass the ‘transformation’ test as public notification is still a central part of the approval process.

This decision also makes a distinction between S72 Amendments and those which seek to amend live applications under Sections 50/57. These provisions make specific reference to amendments being so significant that they should be lodged as a new application, an altogether different issue to amending a planning permit. Section 50(5) of the Act notes: ‘The responsible authority may refuse to amend the application if it considers that the amendment is so substantial that a new application for a permit should be made.’

A flexible outcome for the industry

The decision is a welcome change in planning law for the development community who no longer run the risk of having an Application for Review thrown out based on transforming a permit.

Amendments under Section 72 may be solely confined to the proposed changes instead of opening up the entire development scheme to a second (new) review. This way, the planning process can be adaptive to market considerations and allow greater flexibility in reworking development schemes.

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[2] [para 76]

[3] [1979] VR 347

[4] Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860