REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PRACTICE OR PROCEDURE - consideration of individual instance or systemic issues

Limited discretion in s 80 applications hence substitution of amended plans in accordance with PNPE1 misconceived.

This case involves a permit issued for a multi-storey apartment building. At the start of the hearing, the applicant sought to substitute amended plans circulated in accordance with clause 11 of PNPE1 General Procedures Practice Note.

The ambit of discretion available to the Tribunal under a section 80 application is limited to considering whether the conditions included in the permit by the Council should be imposed.

To substitute amended plans for the plans that form the basis of the permit issued is not a step open to an applicant in the context of a section 80 application. A permit has already issued and therefore attempting to amend the permit by substituting amended plans is misconceived. There are other ways a permit may be amended - in secondary consents, s 72, s 87 or s 87A of the Planning and Environment Act 1987.

Application under section 80 of the Planning and Environment Act 1987; Boroondara Planning Scheme; Permit issued for a residential apartment building; Three conditions to be reviewed requiring the deletion of one apartment, an increased first floor setback and an increase in balcony areas; Request to substitute amended plans misconceived; Leave not granted; Limited Discretion in a Section 80 application; Hearing adjourned.

A Wilks, A Richardson, Z Zhu, C & B Davie, M Stapleton, J Johnson and I Eichfuss & J Lorenz

Statewide Services Pty Ltd v Boroondara CC (includes Summary) (Red Dot) [2010] VCAT 180

1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Mr I Eichfuss and Ms J Lorenz are joined as a party to this proceeding.
2. The hearing of the merits of this proceeding is adjourned to Tuesday 8 June 2010 for a duration of 1 day.

Mr L Trickey, Planning Consultant of Bosco Jonson Pty Ltd

Mr N Sutton, Planning Consultant of Hansen Partnership Pty Ltd

Ms M Stapleton appeared in person and on behalf of Ms A Richardson

Mr C Davie appeared in person and on behalf of Ms B Davie

Mr I Eichfuss appeared in person and on behalf of Ms J Lorenz

The Council granted a permit on 15 September 2009 for the construction of ten dwellings, a reduction of the associated car parking requirements and creation of access to a road in a Road Zone Category 1 for the land at 136 Church Street, Hawthorn.

Section 80 Planning and Environment Act 1987

To construct two or more dwellings on a lot on land zoned R1Z

To create access to a road in a Road Zone Category 1

Pierrepoint Planning v Moyne SC [2008] VCAT 2494 (the Pierrepoint decision)

1. This is an application to review three items contained in condition 1 of a planning permit issued by Boroondara City Council ('the Council') for the development of an apartment building at 136 Church Street, Hawthorn. The three conditions in dispute relate to:
   • The deletion of an apartment at the rear of the top floor of the building;
   • A requirement to increase a side setback at the first floor level of the building; and
   • To increase the size of three balconies from 8 to 12m2.
2. This permit was the result of a planning application process through the Council that included receipt of a number of objections and the issue of a Notice of Decision to Grant a Permit. None of the objectors sought to review the Council's decision to grant a permit and hence the planning permit was issued on 15 September 2009. As a result of this application for review, statements of grounds were received from a number of the original objectors to the permit application, essentially supporting the inclusion of the three conditions in dispute.
3. One of the statements of grounds received was from Mr I Eichfuss and Ms J Lorenz, who were not original objectors to the permit application. Mr Eichfuss sought leave at the start of the hearing to be joined as a party and this was not opposed by either Council or the applicant, so I granted leave.

1. Before this hearing, the applicant circulated amended plans that it wished to rely upon during the hearing in accordance with the Tribunal's practice note requirements[1]. This request is misconceived and no leave was granted for the substitution of the amended plans. This had ramifications for the presentation of the submissions by the Council, the respondents and the applicant, including the applicant's intention to call an expert witness that was relying upon the amended plans. As a result, the hearing of the merits of the case has been adjourned to a further hearing day in June 2010.
2. This situation[2] has arisen on a few occasions in recent times at the Tribunal and it is, perhaps, a matter that is not clearly understood - that is the limited scope of a section 80 application to review conditions contained in a planning permit. This limited scope is different to considering the entirety of a proposal as part of an application against Council's failure to make a decision[3], the Council's refusal to grant a permit for an application[4], or an application by objectors to review the Council's decision to grant a permit for an application[5]. In each of these cases, it is the entirety of the permit application that is before the Tribunal for consideration and, as such, the opportunity exists to amend any plans in a permit application.
3. I agree with the reasons of Deputy President Gibson in the Pierrepoint decision about a section 80 application that had a request to amend the plans:

However, Pierrepoint Planning then decided to submit amended plans to substitute for the plans submitted with the planning permit application. This was not a step open to the applicant in the context of a section 80 application. A permit had already issued and therefore attempting to amend the permit application by substituting amended plans was misconceived. The permit application cannot be amended once a permit is granted and issued.

1. There is a distinction to be made between a permit application and a permit. The opportunities to amend a permit once it has been issued are provided through secondary consent conditions in the permit, and in the Planning and Environment Act 1987 either pursuant to Division 1A commencing at section 72 of the Act, or pursuant to section 87 or section 87A if it is a permit that has been issued at the direction of the Tribunal.
2. I reiterate that the ambit of discretion available to the Tribunal in considering an application under section 80 is limited to the consideration of whether the conditions included in the permit by the Council should be imposed.
3. The general opportunity provided by the Tribunal to substitute amended plans in Tribunal proceedings is commonly known and understood, but it appears there may be some misunderstanding about the limitations associated with section 80 applications. The distinction to be made is that a section 80 application relates to a permit where a decision has been made and issued by the Council. Clause 11.1 of the General Procedures Planning and Environment List Practice Note (PNPE1) sets out the process for a permit applicant to seek to amend any plans in a permit application or other application before the Tribunal, and perhaps this wording may cause some confusion. Hence, Council planners and planning consultants need to be cognisant of the fact that the discretion associated with a section 80 application is limited to the consideration of the conditions in dispute only.
4. Accordingly, this matter is adjourned to a hearing of the merits of the case based on the three conditions in dispute and the application plans considered by the Council on Tuesday 8 June 2010 for a 1 day duration.

[1] Clause 11 of PNPE1 - General Procedures Planning and Environment List Practice Note

[2] Requests to substitute amended plans in section 80 applications for review

[3] Section 79 of the Planning and Environment Act 1987

[4] Section 77 of the Planning and Environment Act 1987

[5] Section 82 of the Planning and Environment Act 1987