1. Specify the date and time scheduled for the hearing as set out in item A of order 1 of the Tribunal's orders dated 29 July 2019.

1. If applicable, include a statement setting out those matters within the application for which there is no right of review under section 82 of the Planning and Environment Act 1987.

Deletion of the requirements of condition 15 of planning permit PP10/00061 to remove the requirement for visitor car parking spaces to be available at all times.

Amendment of plans endorsed under planning permit PP10/00061 to show the visitor car parking spaces as ordinary car parking spaces.

Application under section 87A of the Planning and Environment Act 1987 - amendment of a planning permit issued at the direction of the Tribunal.

1. The applicant has made an application under section 87A of the Planning and Environment Act 1987 to amend planning permit PP10/00061 issued by the Boroondara City Council on 30 August 2015 (Permit). The Permit applies to land at 121 Barkers Road, Kew and authorises the construction of 24 dwellings on that land, and alteration of access to a Road Zone, Category 1.
2. The development authorised by the Permit has now been completed and the land has been subdivided into a separate allotment for each residential apartment. However, condition 15 of the Permit imposes an ongoing requirement for visitor parking spaces within the development to be available for visitor usage at all times.
3. The applicant seeks the deletion of condition 15 of the Permit on the basis that there is no longer a requirement in the Boroondara Planning Scheme for visitor car parking spaces to be provided for the development. The applicant also proposes the amendment of plans endorsed under the Permit so that the car parking spaces which are currently shown as being for visitors, would be shown as being standard/ordinary car parking spaces.
4. I was advised that the visitor car parking spaces in question are now within a separate common property allotment, over which the applicant has been granted a long-term licence.
5. In making its application under section 87A, the applicant raised a question as to the extent of notice which need be given of its application. The purpose of the Practice Day Hearing before me was to consider the extent of notice required to be given.
6. The relevant statutory provisions of the Planning and Environment Act 1987 (the Act) include:

1. Section 87A: which provides that the Tribunal can only cancel or amend a permit under section 87A at the request of 'the owner or occupier of the land concerned' or 'any person who is entitled to develop the land concerned'. 2. Section 90(1): which provides that the Tribunal must give the following people a reasonable opportunity to be heard of the request under section 87A to cancel or amend a permit: * the responsible authority; * the owner and the occupier of the land concerned; * any person who asked for the amendment of the permit under section 87A; * any relevant referral authority.

1. Section 90(2): which provides that the Tribunal may also give any other person who appears to it to have a material interest in the outcome of the request an opportunity to be heard at the hearing of the request.
2. The applicant says that as it is the occupier of the lot comprising the visitor car parking spaces, it is entitled to bring the application and that no notice of the application need be given, other than to the responsible authority. In making this submission, it says that the reference to 'the land concerned' in section 90 of the Act should be read as being the land which will be affected by the particular amendment which is sought to the Permit. In this instance the applicant says that its proposed amendment only affects the common property lot containing the visitor car parking spaces.
3. The Council says that section 90 of the Act requires notice of the application to be given to all of the owners and occupiers of the land which is the subject of the Permit being amended. It also says that notice of the application should be given to owners and occupiers of land which adjoins the land subject of the Permit.
4. Having considered the submissions of the parties and the relevant regulatory framework, I have determined that:
   • Notice of the application must be given to all of the owners and occupiers of the land which is the subject of the Permit.
   • No notice of the application need be given to owners and occupiers of adjoining land.
5. My reasons for this decision are:

1. Part 4, Division 3 of the Act relates to the amendment or cancellation of permits by the Tribunal. The term 'land concerned' is used in various parts of this Division of the Act, including in both section 87A and in section 90. In my view, this term should, where possible, be interpreted consistently throughout this Division. The term is used in section 87A to limit those who can apply to amend or cancel a permit to the owner, occupier or developer of the land concerned. In that context the term is, in my view, clearly referring to the land to which the relevant permit is concerned. It is a stretch to interpret section 87A as referring to the owners and occupiers of land which may be physically affected or impacted by the changes arising from the proposed amendment. In my view, if this was the intent of the section it would be more plainly expressed. Rather, it seems clear to me that the intent of section 87A is for it to allow applications to be brought by a person with a proprietary or development interest in the land which is the subject of the permit. 2. Similarly, when section 90(1) is read in the context of it providing a right to be heard in respect of an amendment to a permit, I find that the reference to 'land concerned' is a reference to the land with which the relevant permit is concerned, not the land which will be practically affected by the amendment.

1. This means that section 90(1) of the Act grants a right to be heard to owners and occupiers of the land which is the subject of the permit proposed to be amended or cancelled, irrespective of whether they have a town planning interest in the outcome of the request. In other words, the right of owners and occupiers to be heard arises from their proprietary interest in the land to which the relevant planning permit relates, not their planning interest in the matter.

1. The Tribunal has no discretion to vary the rights provided by section 90(1) of the Act, even if it considers some or all of those persons will not have a planning basis upon which to object to the proposed amendment or cancellation. 2. I do not consider the provision of a right to be heard to owners and occupiers to be unexpected. Planning permits, once granted, give rise to proprietary rights and obligations on land owners and occupiers. In my view, it is to be expected that the Act would require such persons to be notified of a proposed change to a permit applying to their land. I also note that a similar requirement exists at planning permit application stage, with section 48 of the Planning and Environment Act 1987 requiring notice of a permit application to be given to the owner of the land on the basis of proprietary rather than planning interests. 3. The position of owners and occupiers is to be contrasted with other persons which the Tribunal has discretion to hear from under section 90(2) if the Tribunal considers they may have a material interest in the outcome of the request. The Council submitted that adjoining land owners and occupiers should be notified and provided a right to be hearing in respect of the request on the basis of their material interest. However, as I have explained, there is no longer a planning basis for requiring visitor car parking spaces to be provided on the land which is the subject of the Permit. There is therefore no planning basis for any person to object to the proposed amendment to the Permit to changes these spaces from visitor to general car parking spaces. For this reason, I do not consider adjoining land owners or occupiers, or any other person to have a material interest in the outcome of the proposed amendment to the permit. I have therefore determined that no notice of the application or opportunity to be heard need be provided to other persons under section 90(2).

1. For the above reasons, I conclude that:
   • Notice of the application must be given to all of the owners and occupiers of the land which is the subject of the Permit.
   • No notice of the application need be given to owners and occupiers of adjoining land.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.