1. There are two frameworks that are relevant to the consideration by the Tribunal of any application for review brought under the PE Act. The first is the statutory context in which the Tribunal exercises its review jurisdiction under the VCAT Act and the second is the PE Act itself as the relevant enabling enactment.
2. The following succinct and apt description of the Tribunal's review jurisdiction under the VCAT when considering an application for review commenced under the PE Act is taken from the reasons of Emerson J in The Sisters Wind Farm Pty Ltd v Moyne Shire Council [2012] VSC 324 ('The Sisters Wind Farm'):
   1. The VCAT Act provides that the Tribunal has an original jurisdiction and a review jurisdiction. In its review jurisdiction the Tribunal has such jurisdiction as is conferred upon it by the enabling enactment is the P&E Act and the reviewable decision is a decision made by a responsible authority under s 61 of the P&E Act to refuse to grant a permit. Section 77 of the P&E Act provides that an applicant may apply to the Tribunal for review of a decision by a responsible authority to refuse to grant a permit.
   2. Section 51 of the VCAT Act provides that when exercising its review jurisdiction, the Tribunal has all the functions of the original decision-maker and has other functions conferred upon it by or under the enabling enactment, as well as by or under the VCAT Act and Regulations. In determining an application for review, it may affirm or vary the decision under review, or set it aside and make another decision in substitution for it.
   3. It is trite law that in exercising its review jurisdiction, the Tribunal does not review the propriety or legality of the decision made by the initial decision-maker. Its task is to 'stand in the shoes' of the original decision-maker and make the correct or preferable decision, having regard to the material before it. The review therefore takes place without any presumption as to the correctness of the decision under review. It is carried out on the basis of the facts and the law at the time the review decision is made.
   4. Section 84B of the P&E Act sets out the matters for the Tribunal to take into account of or have regard to in determining an application for review under the P&E Act. Section 84B(1) provides that the Tribunal must take account of or have regard to any matter which the responsible authority properly took into account of or had regard to, or was required to take into account of or have regard to in making its decision.
   5. In this regard, s 60 of the P&E Act provides that before deciding on an application for a permit, the responsible authority must consider the relevant planning scheme. It may also, if circumstances appear to so require, consider any amendment to the planning scheme which has been adopted by a planning authority but not yet approved.
   6. Section 84B(2) provides that, in addition to the matters referred to in sub-s (1), the Tribunal must take into account a variety of things, including 'any relevant planning scheme'. It must also (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but has not, as at the date on which the application for review is determined, been approved by the Minister or the planning authority.
   7. Consideration of a relevant planning scheme is therefore central to the exercise by the Tribunal of its review jurisdiction under the P&E Act.
   8. This underlines the importance of planning schemes under the P&E Act. Section 4(2)(b) describes one of the objectives of the planning framework established by the P&E Act to be 'to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land.' Section 14 of the P&E Act imposes a duty on a responsible authority to efficiently administer and enforce 'the planning scheme', and s 16 provides that a planning scheme is binding one every Minister, government department, public authority and municipal council.
   9. Importantly, s 5 of the P&E Act states that:

This Act applies to any planning scheme approved under this Act as in force from time to time under this Act.

1. This reflects an intention that the provisions of the P&E Act be read so as to automatically pick up amendments to planning schemes. Where there is a reference in a provision of the P&E Act to a planning scheme, it is a reference to the planning scheme as in force from time to time. Section 6(3) of the P&E Act is a complementary provision that protects existing uses and provides that nothing in a planning scheme or planning scheme amendment requires the removal or alteration of any lawfully constructed buildings.
2. The functions of the original decision-maker referred to in the above extract includes all relevant duties and powers of the original decision-maker.[1]
3. As observed by Emerton J in The Sisters Wind Farm, planning schemes are of central importance to the planning framework established under the PE Act. The statutory regime contemplates that the content of planning schemes is not fixed but can be changed in accordance with the procedures set out in the PE Act.
4. A responsible authority has a duty to administer and enforce the planning scheme, to comply with the planning scheme and to implement the objectives of the planning scheme 'as in force from time to time' under the PE Act. A responsible authority is obliged to apply the planning scheme provisions in force at the time and as relevant when assessing and determining a permit application.
5. The requirements of s 84B and s 60(1)(a) of the PE Act make it clear that in making the preferable decision on review, the Tribunal must consider the relevant planning scheme as in force at the time of making the decision. As a matter of fact, the provisions of the relevant planning scheme in force presently includes the transitional provisions set out in clause 32.08-7.
6. In respect to transitional provisions, Deputy President Gibson in Estia stated:
   1. Transitional provisions, like any other statutory provisions, must always be interpreted on the basis of the particular words used in the provision. It is open to introduce a change to a planning scheme without any transitional provisions, and sometimes this happens. In those circumstances, the general principle will apply that a decision must be made in accordance with the planning scheme control on the day a decision is made. Thus if there are no transitional provisions and a planning scheme is changed between the time an application is made and a decision is made, it is the controls as at the date of the decision that must be applied.
   2. For this reason, transitional provisions are very important. They enable permit applications prepared and lodged in accordance with the current planning controls to be assessed and a decision made in accordance with these controls may have changed before the date of the decision.
7. The decision that the Tribunal is required to arrive at is whether to grant a permit (and direct its issue by the responsible authority) or refuse to grant a permit on the material before it, which unquestionably must include a permit application for use and/or development.
8. While the applicant correctly submitted that the function of a responsible authority concludes upon the making of a decision under s 61 of the PE Act, this does not result in the permit application (that was the subject of the responsible authority's decision under review) ceasing to be the very matter upon which the Tribunal must make the preferable decision when its review jurisdiction is enlivened.

Does a power to amend a permit application alter the Tribunal's jurisdiction?

1. The short answer to this question is - no. The reasons for this conclusion are set out below.
2. An additional power conferred on the Tribunal in the case of a proceeding for review of a decision of a responsible authority under the PE Act in respect to an application for a permit or the failure of a responsible authority to grant a permit is the power found in clause 64(2) of Schedule 1 to the VCAT Act ('clause 64(2)'):

(2) At any time in a proceeding to which this clause applies the Tribunal may make any amendment it thinks fit to the application for the permit, works approval or licence the subject of the proceeding.

1. Clause 64(2) confers a discretionary power on the Tribunal and does not confer any right on a permit applicant to amend the permit application the subject of the review proceeding before the Tribunal. Similarly, the process set out in PNPE9 does not confer any right on a permit applicant to amend the permit application the subject of the relevant review application before the Tribunal. As a practice note made under s 158 of the VCAT Act, PNPE9 can only relate to the practice and procedure of the Tribunal and not confer legal rights on parties before the Tribunal or provide for anything that conflicts with the provisions of the VCAT Act or the PE Act.
2. PNPE9 sets out a process that permit applicants are required to follow if they intend to request the exercise of the Tribunal's discretion to vary a permit application.
3. Absent the power conferred on the Tribunal under clause 64(2), it is strongly arguable that there is no opportunity for a permit applicant to seek to amend a permit application in a review proceeding before the Tribunal commenced under the PE Act.
4. The power conferred on the Tribunal under clause 64(2) is distinguishable from the opportunity provided to a permit applicant under s 50 of the PE Act.
5. Section 50 of the PE Act provides:

Amendment to application at request before notice

(1) An applicant may ask the responsible authority to amend an application before the notice of the application is first given under section 52.

(2) An amendment to an application may include -

(a) an amendment to the use or development mentioned in the application; and

(b) an amendment to the description of land to which the application applies; and

(c) an amendment to any plans and other documents forming part of or accompanying the application.

(3) A request under this section must -

(a) be accompanied by the prescribed fee (if any); and

(b) be accompanied by any information or document referred to in section 47(1)(c) to 47(1)(e) that relates to the proposed amendment to the application and that was not provided with the original application; and

(c) if the applicant is not the owner of the land to which the application applies, be signed by the owner or include a declaration by the applicant, that the applicant has notified the owner about the request.

(4) Subject to subsection (5), the responsible authority must amend the application in accordance with the request.

(5) 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.

(6) The responsible authority must make note in the register if any amendment is made to an application under this section.

(7) On the amendment of an application under this section, the amended application is taken -

(a) to be the application for the purposes of this Act; and

(b) to have been received on the day that the request for amendment was received by the responsible authority.

1. The opportunity to amend a permit application available to a permit applicant under s 50 is subject to both limitations and also results in the consequence that on the amendment of the permit application, the amended application is taken to be 'the application' for the purposes of the PE Act, including for the purposes of calculation of relevant time periods remaining in the assessment process before the responsible authority.
2. Sections 50A and 57A of the PE Act also provide for the amendment of permit applications before a decision is made by the responsible authority. Sections 50A(5) and 57A(7) of the PE Act are identical to s 50(7) set out above. None of these provisions are of any relevance to the amendment of a permit application by the Tribunal in a review proceeding because they only apply at particular times during the assessment of a permit application by a responsible authority.
3. Although ss 50, 50A and 57A do not have any relevance to the amendment of a permit application by the Tribunal in a review proceeding, they do have relevance to determining the date on which a permit application was lodged for the purposes of the PE Act and the relevant planning scheme.
4. This conclusion reflects the very reasoning of the Tribunal in Estia when determining the following question of law:

If the permit application is amended by the Tribunal pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998, does the permit application lose the benefit of the transitional provisions in clause 32.09 of the Glen Eira Planning Scheme?

1. In considering this question, the Tribunal in Estia was required to determine when the relevant permit application was made or lodged. As part of this consideration, the Tribunal made the following observations that are directly relevant to the question that I must answer:
   1. Unlike sections 50(7), 50A(5) and 57A(7) of the Planning and Environment Act 1987, there is no aspect of the Victorian Civil and Administrative Tribunal Act 1998 which expressly states that any such amendment (or substitution of plans) undertaken at the discretion of the Tribunal either pursuant to section 127 or clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 will be deemed to amend the original permit application date (or lodgement date) of the application under review.

1. As a general principle, the date an application is made is not affected by any subsequent amendments to the application. The amendments are made to the application itself; the date the application is made is something different. To change that date would require some specific action, such as withdrawing and re-lodging the application or a provision, such as contained in sections 50(7), 50A(5) or 57A(7) of the Planning and Environment Act 1987, which specifies that the amendment of an application is deemed to change the date an application is made or received. There is no such deeming provision under the Victorian Civil and Administrative Act 1998 (sic).
2. Therefore, in the absence of any express provisions to the contrary in the transitional provision itself or the Victorian Civil and Administrative Tribunal Act 1998, I find that if the Tribunal amends a permit application pursuant to its powers under the Victorian Civil and Administrative Tribunal Act 1998, this will not affect the date that the permit application was made or deemed to have been made under the provisions of the Planning and Environment Act 1987.
3. On the facts of this matter, the permit application was originally made to Council by the permit applicant on 2 May 2024. By operation of s 50(7) of the PE Act, the date the permit application is deemed to have been made following its amendment was 19 July 2024. This is the permit application currently before the Tribunal upon which it must exercise its review jurisdiction under s 51 of the VCAT Act.
4. For the purposes of the relevant transitional provision set out in clause 32.08-7, the permit application was lodged before the approval date of Amendment VC267 being 6 March 2025, therefore the clause 55 in force immediately before 6 March 2025 applies to the Tribunal's consideration of the permit application.
5. Any amendment of the permit application by the Tribunal under clause 64(2) will not change the date that the permit application was deemed to have been made for the purposes of the relevant transitional provision because the transitional provision does not have an expiration date.

1. For the reasons set out above and pursuant to s 124 of the VCAT Act, I make the declarations set out in this order.

[1] See definition of 'function' under s 3 of the VCAT Act.