1 This matter is listed for hearing on 9 March 2006 commencing at 2.15pm.

Mr David O'Brien of counsel, instructed by Dominic Esposito

(given orally at the hearing and subsequently revised)

1 This is an application pursuant to section 149(1)(a) of the Planning and Environment Act 1987 in respect of the refusal by the responsible authority to consent to changes to plans pursuant to a secondary consent condition in permit WH/13297. This permit was issued at the direction of the Tribunal.[1] on 8 July 2003 for the use and development of a retirement village comprising 217 dwellings

2 The changes proposed would increase the height by one level of two buildings (condominium 2 and condominium 3) and involve an internal reconfiguration of the buildings. There will be no change to the number of dwellings.

3 The responsible authority does not consider that the changes can or should be made by way of a secondary consent. It considers that the potential impacts of the increased height and bulk of the buildings may increase detriment to adjoining properties and the proposed changes should therefore go through a formal notification process.

4 By contrast, the applicant relies upon the Tribunal's decision in Westpoint Corporation Pty Ltd v Moreland City Council[2], which sets out the ambit of the authority that may be exercised under secondary consent provisions. Essentially, a change can be approved by way of secondary consent if:

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It does not result in a transformation of the proposal.

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

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

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

The applicant considers that the proposed changes fall within these parameters and therefore are suitable for consideration under the secondary consent condition in the permit.

5 Changes to plans under a permit need to be considered in a context of a continuum. At the lower end there are minor changes that have no external impact and are entirely uncontentious. Changes of this nature are best considered by way of secondary consent without the need for notification, the involvement of third parties or an extensive formal process. At the other end of the continuum are major changes that will have external impacts and affect third parties. Changes of this nature should be considered in the context of an application to amend the permit under section 72 of the Act. This process enables third party participation in the decision making process, unlike the secondary consent process.

6 It is the cases in the middle of the continuum that raise questions about which process should be used. There is no hard and fast rule for determining this. Rather, there are a set of criteria, which the Tribunal has summarised in the Westpoint Corporation case, that will provide guidance. It will be a question of judgement in each case as to whether changes to plans meet those criteria. In the present case, this is the fundamental issue in dispute between the applicant and the responsible authority.

7 As a normal rule I do not consider it is appropriate to direct advertising of applications for secondary consent or applications for review under section 149 of the Act relating to such consents. As the Tribunal said in the Westpoint Corporation case:

[39] Alterations to a use or development allowed by a permit pursuant to a secondary consent provision in the permit do not attract third party participation or rights of review. The tests that have been developed for deciding whether a secondary consent should be granted tacitly acknowledge this. The process now offered by Division 1A of Part 4 of the Act does involve third party participation and it provides a mechanism for changing a permit, including situations where the proposed change falls outside the parameters of a secondary consent provision and it is hence appropriate for third parties to be involved. However, as we have noted, it should not automatically be assumed that all changes to a use or development can only occur via this mechanism. An important role will remain for secondary consents to facilitate the practical implementation of proposals large and small, which should involve a fairly robust approach to assessing what is or is not of consequence having regard to the purpose of the planning control under which the permit was granted. The present case illustrates that change within the framework of the permit can be quite substantial provided this and the other criteria relevant to secondary consents are observed.

8 In deciding to proceed with this application for review, the applicant does so in the full knowledge that the responsible authority challenges its contention that the changes proposed fall within the criteria required for the exercise of a secondary consent. However, it is not possible to determine this issue without a consideration of the detailed effects of the proposed changes. This should be done in the context of a hearing on the merits when there will be two issues that will need to be determined:

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Do the changes come within the criteria identified in Westpoint Corporation Pty Ltd v Moreland City Council thereby making them suitable for consideration under a secondary consent provision?

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If so, should the changes be supported on their merits?

9 I therefore decline to direct that any formal notice be given of the proposed changes and will simply list the matter for hearing.

[1] 500 Burwood Highway Pty Ltd v Boroondara City Council P3326/2002

[2] [2005] VCAT 1049