1. The answers to the questions of law raised in this proceeding are as follows:

Question 1

Do the provisions of Clause 55 as amended by Amendment VC267 (the 'Townhouse and Low-rise Code') apply to an application to amend an existing permit brought in the Tribunal's original jurisdiction under section 87A if the original permit application was lodged before the approval date of Amendment VC267?

Answer

No

Question 2

If the answer to Question 1 is 'yes', and the provisions of Clause 55 as amended by Amendment VC267 do apply, do they apply only to the extent of the amendments to the existing permit sought by the application made under s.87A, or do the provisions apply to the building as a whole?

Answer

Unnecessary to answer

Question 3

If the provisions of Clause 55 as amended by Amendment VC267 do not apply to an application made under section 87A if the original permit application was lodged before the approval date of Amendment VC267, do the historic provisions of Clause 55 as they existed in the Monash Planning Scheme immediately prior to the approval date of Amendment VC267 apply to an application made under section 87A?

Answer

Yes

Question 4

If the answer to Question 3 is 'yes', do the historic provisions of Schedule 3 to the Residential Growth Zone (RGZ3) as it existed in the Monash Planning Scheme immediately prior to the approval date of Amendment VC276 apply to an application made under section 87A?

Answer

Yes

1. Papermite Pty Ltd ('Papermite') has requested, under section 87A of the Planning and Environment Act 1987 (Vic) ('PE Act'), that the Tribunal amend permit TPA/49621/A (corrected) ('permit') issued under the Monash Planning Scheme ('planning scheme').
2. The permit allows the construction of five dwellings in a three-storey building on the land at 25 Thomas Street, Clayton ('subject land').
3. The request includes amended plans to be endorsed under the permit that provide for construction of a three-storey building containing nine dwellings.
4. Monash City Council ('Council') opposes the request on various grounds.
5. At the hearing conducted on 12 August 2025, the Council and Papermite agreed there is a question(s) of mixed law or fact as to whether the transitional provisions in clause 32.07-6 relating to clause 55 of the planning scheme apply to the request. The Tribunal decided the questions must be answered before the hearing of the merits resumed. The hearing was adjourned to 16 December 2025.
6. The parties subsequently filed four agreed questions of law.
7. The Tribunal is currently constituted by a member who is not either a judicial member or a member who is an Australian lawyer. The Council notified the Tribunal that it disagreed that the member should decide the questions. Accordingly, I am a member who is an Australian lawyer and the President has nominated me to decide the questions.[1]
8. The Council has filed written submissions.
9. Papermite notified the Tribunal that the only submission it wishes to make (which it described as a 'neutral position') was that:

... the application equally as acceptable on the merits irrespective of whether it is considered under the provisions of the planning scheme as they currently stand or as they stood prior to March 2025 (whether this critical date be when [the request] was lodged, the permit initially issued or the permit application initially made - all of which are prior to March 2025) ...

1. Papermite originally lodged the permit application with the Council on a date no later than early 2019.
2. The Council originally issued the permit on 17 December 2019 at the direction of the Tribunal.[2]
3. Papermite requested, under section 87A of the PE Act, that the Tribunal amend the permit on 8 February 2024.
4. The Tribunal directed the amendment of the permit by order dated 30 October 2024.[3]
5. The Council issued the amended permit on 1 November 2024.
6. Papermite filed its request to the Tribunal in this proceeding under section 87A of the PE Act on 28 February 2025.
7. The subject land at all relevant times has been in, and remains in, the Residential Growth Zone ('RGZ') under the planning scheme.
8. The provisions in Amendment VC267 commenced on 31 March 2025. Those provisions included a transitional provision in clause 32.07-6 of the planning scheme relating to specified applications in the RGZ ('transitional provision').
9. The Council has extended the permit on two occasions and the development allowed by the permit must start before 17 December 2025.

Do the provisions of Clause 55 as amended by Amendment VC267 (the 'Townhouse and Low-rise Code') apply to an application to amend an existing permit brought in the Tribunal's original jurisdiction under section 87A if the original permit application was lodged before the approval date of Amendment VC267?

Clause 55 of this planning scheme, as in force immediately before the approval date of Amendment VC267, continues to apply to:

• An application for a planning permit lodged before that date.
• An application for an amendment of a permit under section 72 of the Act, if the original permit application was lodged before that date.[4]

1. W Property Group Pty Ltd v Boroondara CC[5] ('W Property Group') is a leading Tribunal authority on the effect of transitional provisions in planning schemes. As in this case, the Tribunal considered a request to amend a permit under section 87A of the PE Act. The Tribunal considered the effect of the following transitional provision that commenced when a new clause 58 was introduced into the relevant planning scheme:

• An application for a planning permit lodged before the approval date of Amendment VC136.
• An application for an amendment of a permit under section 72 of the Act, if the original permit application was lodged before the approval date of Amendment VC136.[6]

1. In W Property Group, the Tribunal held a request under section 87A is not 'an application' to which that transitional provision refers.[7] I will not set out or summarise the Tribunal's careful reasons.
2. By my count, the reasoning in W Property Group has been considered or referred to in the reasons of 13 reported Tribunal decisions. Two of those decisions - Heiyu Auta Pty Ltd v Stonnington CC[8] ('Heiyu Auto') and Blueprint Developments Pty Ltd v Bayside CC[9] ('Blueprint Developments') - related to requests under section 87A. In none of the 13 decisions has the reasoning in W Property Group either not been followed or not been favourably commented upon.[10] In summary, the reasoning in W Property Group remains good authority.
3. I adopt the reasoning in W Property Group. It suffices to state the applications referred to in clause 32.07-6 are the same as the applications referred to in clause 34.01-4.
4. Accordingly, a request under section 87A is not an application to which clause 32.07-6 applies.
5. The answer to question 1 is 'no'.

If the answer to Question 1 is 'yes', and the provisions of Clause 55 as amended by Amendment VC267 do apply, do they apply only to the extent of the amendments to the existing permit sought by the application made under s.87A, or do the provisions apply to the building as a whole?

1. As the answer to question 1 is 'no', it is unnecessary to answer question 2.

If the provisions of Clause 55 as amended by Amendment VC267 do not apply to an application made under section 87A if the original permit application was lodged before the approval date of Amendment VC267, do the historic provisions of Clause 55 as they existed in the Monash Planning Scheme immediately prior to the approval date of Amendment VC267 apply to an application made under section 87A?

1. In W Property Group, the Tribunal went on to find that there was:

... an implied limitation on the factors to which the Tribunal may legitimately have regard, in terms that it may not apply clause 58 to a consideration of an amendment of a permit under section 87A, if the original permit application was lodged before the approval date of Amendment VC136.[11]

1. This part of the reasoning in W Property Group was followed in both Heiyu Auto and Blueprint Developments. In both of those cases clause 58 was held to not be applicable ie the 'limitation' applied. However, I note that the Tribunal in Blueprint Developments chose to take into account some parts of clause 58, but this does not derogate from the limitation.
2. The Council also brought to my attention the Tribunal's recent decision in Greenberg v Glen Eira CC[12] ('Greenberg').
3. In Greenberg, the applicant requested amendment of a permit under section 87A of the PE Act. The permit allowed the construction of two dwellings. The permit was granted with consent and the amendment sought approval to change the number and location of outdoor condenser units for one of the dwellings.
4. The Tribunal's reasons state that the Council in Greenberg considered the condenser units 'would meet the objective of clause 55.04-8' and the footnote to this passage stated '[a]s preserved by relevant transitional provisions pre-Amendment VC267'.
5. The Council in this proceeding tentatively submitted that Greenberg therefore 'lends some support' to its submissions that the provisions of clause 55 as they existed before 31 March 2025 apply to a request made under section 87A before that date.
6. I discern that the Tribunal's footnote was not the product of a considered question of law and appears to only represent the Council's position or the agreed position of the parties.
7. Although the Tribunal's footnote is consistent with the reasoning in W Property Group, I would not go as far as finding that the reasoning was either followed or otherwise supported.
8. The answer to question 3 is 'yes'.

If the answer to Question 3. is 'yes', do the historic provisions of Schedule 3 to the Residential Growth Zone (RGZ3) as it existed in the Monash Planning Scheme immediately prior to the approval date of Amendment VC276 apply to an application made under section 87A?

1. The Tribunal has recently considered the legal status of schedules containing variations to clause 55 as they existed before Amendment VC267 commenced on 31 March 2025.
2. In Oakley Six Pty Ltd v Monash CC[13] ('Oakley Six'), the Tribunal considered the following question of law:

Which version of Schedule 3 to the General Residential Zone in the Monash Planning Scheme (either pre or post Amendment VC276) and its Clause 55 variations apply to this application, which benefits from the transitional provisions at Clause 32.08-7, due to it being an application for a planning permit lodged before the date of Amendment VC267?

1. The 'application' to which the proceeding applied (as referred to in the question of law) was an application for permit made before the commencement of Amendment VC267 (ie before 31 March 2025) and was not a request to amend a permit.
2. Clause 32.08-7, the transitional provision considered by the Tribunal, was identical to clause 32.07-6, the transitional provision in this proceeding. The two transitional provisions applied to applications made under different zones of the planning scheme. Both transitional provisions made no express reference to the variations specified in either the respective zones or the schedules under the respective zones that were made by Amendment VC267.
3. After giving careful consideration to the principles of statutory interpretation (especially the text, context and purpose of the transitional provision) and the provisions of the Interpretation of Legislation Act 1984 (Vic), the Tribunal answered the question as follows:

Schedule 3 to the General Residential Zone as it existed in the Monash Planning Scheme immediately prior to the approval of Amendment VC267 to the Monash Planning Scheme applies to the application for permit, the subject of the decision under review.

1. I would apply the reasoning in both Oakley Six and W Property Group in answering question 4.
2. Consequently, clause 32.07-6 does not apply clause 55 as varied by Amendment VC267 to a request under section 87A of the PE Act made before 31 March 2025. The variations to the RGZ and to schedule 3 of the RGZ do not apply to a request under section 87A of the PE Act made before 31 March 2025.
3. The answer to question 4 is 'yes'.

[1] Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 1 cl 66.

[2] Papermite Pty Ltd v Monash CC [2019] VCAT 1954.

[3] Papermite Pty Ltd v Monash CC [2024] VCAT 1045.

[5] [2017] VCAT 740.

[6] Boroondara Planning Scheme cl 34.01-4.

[8] [2025] VCAT 394.

[9] [2018] VCAT 926.

[10] For completeness, in one decision the reasoning in W Property Group was distinguished having regard to the drafting of the specific transitional provision under consideration.

[12] [2025] VCAT 611.

[13] [2025] VCAT 648.