Victorian Civil and Administrative Tribunal|2006-10-12

Austcorp Group Limited v Monash CC [2006] VCAT 2061 (12 October 2006)

Austcorp Group Limited v Monash CC [2006] VCAT 2061

The decision of the Responsible Authority to refuse to endorse the amended plans is set aside.

1 This application for review requests the Tribunal authorise the endorsement of amended plans pursuant to condition 2 of Permit No. 33330 authorising the development of a Retirement Village, associated car parking, landscaping and access alterations to a Road Zone Category 1 on land situated at 161-169 Jells Road, Wheelers Hill.

2 The original decision to direct the grant of a permit in this application was made by the Tribunal in May 2006.

3 Plans were subsequently endorsed in accordance with the permit on 26 July 2006.

4 Shortly after the plans were endorsed the applicant lodged a request to have modified plans endorsed pursuant to condition 2, commonly referred to as the 'secondary consent' provision.

5 The changes which are primarily internal re-arrangement do not significantly alter the external appearance of the proposal and only affect the lower level of the proposed buildings.

6 Mr Lonie on behalf of the responsible authority fairly conceded that the responsible authority, per se, had no objection to the proposed changes but had taken a policy position, that given the community interest in the development of the site, notice ought to be given of the proposed changes to some of the objectors who objected and took part in the original hearing of this application. Mr Lonie submitted these persons ought to be given the opportunity to participate in the decision making process in respect of the amended plans.

7 The inclusion of a secondary consent condition on any permit is in my view a very purposeful action. These conditions do not appear on permits as a mere oversight or simply added to the permit to boost condition numbers. They are and form a very real and necessary part of the planning permit process. Without such a condition the process to amend the plans for what may be minor or even significant changes would in my view become resource intensive.

8 Secondary consent conditions provide the opportunity in my view to modify plans that have already been deemed satisfactory through the issue of a permit process (and its consequential assessment iterations) so that where such modifications effectively have 'no consequence' in terms of the original approval they can be done speedily and readily.

9 The test of whether a modified or amended permit plan can be endorsed by a secondary consent provision was clearly set out in the decision commonly known as Westpoint[1] where Deputy President Gibson and Senior Member Liston stated at paragraphs 38 and 39:

38. In summary, when deciding whether a use or development may be altered under a secondary consent provision in a permit, the scale of the change is not relevant per se. The change need not simply be "minor" to be allowable under a secondary consent provision provided it meets the following requirements:

a.

It does not result in a transformation of the proposal.

b.

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

c.

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

d.

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

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.

10 The principles set out in the Westpoint case have now been around for approximately 15 months and have been further developed and applied in numerous subsequent Tribunal decisions.

11 It is clear in my view that it is inappropriate for third parties to be involved in secondary consents where these changes satisfy all of the abovementioned principles. It is also inappropriate for the responsible authority acting within its legislative powers under the Planning and Environment Act 1987 to abdicate its determination as to whether an application will result in an adverse impact on adjoining properties to those adjoining property owners.

12 I have no difficulty in a responsible authority informing itself 'as it sees fit' before making a determination.

13 However that should not lead it to effectively wash its hands of a decision because of some level of concern or community interest in the original permit application determination.

14 In this case the decision on the development and use of the site has already been made, and all the parties with an interest, participated in that process. It would be in my view a waste of human resources, effort and finance to involve a range of persons or parties in a process where the extent of changes proposed clearly falls within the secondary consent provisions and importantly satisfies the test of 'no consequence'.

15 I also agree with Mr Tweedie that it is irrelevant in the determination of secondary consents whether the changes proposed are minor or something other than minor, if having considered the tests the conclusion is that the changes will effectively have no consequence on the development or its impact on surrounding area.

16 I have to add that the responsible authority needs to be careful in giving advice to third parties in such matters as to their rights or expectations. In its letter to the residents date 4 August the responsible authority stated inter alia:

It is anticipated that VCAT will require the applicant to notify you directly concerning the process for consideration of the amendments.

17 The advice given to residents by the responsible authority in that letter both misleading and wrong. It was presumptuous of the responsible authority to expect the Tribunal to undertake a procedural step that is simply not provided for or necessary under a secondary consent request.

18 As the Tribunal said in the Mentone Mansions[2] case:

Most planning projects undergo a design and development process which takes a considerable time and the planning approval phase is early in that process. As a consequence after planning approval the development of a design for construction purposes, and the construction process itself can result in a need to amend the development no matter how well resolved the development is at the planning stage.

19 In my view the planning approval which is sought by the amended plans is exactly the type of request secondary consent conditions were intended to deal with.

20 It would have been a far more efficient use of resources if the responsible authority considered the request on its merits pursuant to the provisions for secondary consent and endorsed the plans when it was requested to do so.

21 As indicated earlier the tests set out for secondary consents have now been around for at least 15months and well known to responsible authorities and planning practitioners.

22 I will direct the Council endorse the plans dated 27 July 2006 and noted as Revision C consisting of Plans TP03, TP04 and TP10 as forming part of the endorsed plans for Permit No. 33330.

[1] Westpoint Corporation Pty Ltd V Moreland City Council[2005] VCAT 1049

[2] Mentone Mansions Pty Ltd v Kingston CC [2000] VCAT 1947

Environment Act 1987

Austcorp Group Limited v Monash CC [2006] VCAT 2061

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Austcorp Group Limited v Monash CC [2006] VCAT 2061 (12 October 2006)

Parties

Legislation Cited (1)