1. Given the legal opinion by Bisucci DP, I have issued final orders in this proceeding that amend the application pursuant to clause 127 of the Victorian Civil and Administrative Tribunal Act 1998 with respect to the description of what the permit allows.
2. Consistent with my findings on the merits set out in my order dated 20 September 2022, my final orders also:
   • Amend the application pursuant to clause 127 of the Victorian Civil and Administrative Tribunal Act 1998 to vary condition 1 with respect to the substituted plans.
   • Vary condition 1f).

1. This proceeding was listed for a practice day hearing to consider the form of orders requested by Emily Townsing (applicant) in her correspondence dated 28 September 2022.
2. In brief, the following material is relevant to the issues for my consideration.
3. The application for review seeks review of condition 1f) of Planning Permit 0201/21 (permit) issued by Stonnington City Council (council) on 4 January 2022.
4. The permit allows:

Partial demolition, building and works to an existing dwelling on a lot in a heritage overlay in accordance with endorsed plans and subject to the following conditions....

Before the commencement of the development, one (1) copy of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the Advertised Plans (dated 9 June 2021) prepared by Glenvill Homes but modified to show:

...

f) The second dwelling facing Russel (sic) Street deleted from the plans.

1. On 13 September 2022, a hearing was conducted with respect to the application for review. On 20 September 2022, Baird SM made findings about the application for review and stated:[2]
   1. For the reasons set out below, I find the proposed second dwelling is acceptable and condition 1f) should be deleted and replaced with several modifications to the layout of the second dwelling arising from the recommendations contained in expert evidence.
   2. There are however consequential changes required to the Permit and to reflect the substituted plans in condition 1. This interim order invites submissions with respect to the next steps.
2. The applicant's submissions to the Tribunal at the hearing on 13 October 2022 raised consequential amendments required to 'what the permit allows', if the Tribunal determined that condition 1f) of the permit should be deleted. The applicant relied upon section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) to make consequential amendments to what the permit allows. The applicant also relied on previous decisions of the Tribunal to support her submission regarding the power under section 127 of the VCAT Act to make the consequential amendments to what the permit allows.
3. Later in her reasons Baird SM stated:

1. I have power pursuant to section 85(1)(e) of the Planning and Environment Act 1987 (Vic) to make orders to modify condition 1f).
2. The Permit also must refer to the substituted plans. I expect this could be addressed by an amendment to the application under section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) by amending the application for review to include this requested modification to condition 1.
3. Deleting condition 1f) and replacing it with a short list of minor plan changes to accord with my findings would result in the plans and description of what the Permit allows being inconsistent.
4. The Permit has been issued allowing:

Partial demolition, building and works to an existing dwelling on a lot in a Heritage Overlay in accordance with the endorsed plans and subject to the following conditions:

1. This will need to be amended to reflect the original application including construction of the second dwelling, a reduction in parking for the second dwelling, and the fact that some works associated with the second dwelling are within HO155. A suggestion is:

Partial demolition, buildings and works in a Heritage Overlay, the construction of a second dwelling on a lot in a General Residential Zone, and a reduction in the car parking requirement in accordance with the endorsed plans and subject to the following conditions:

1. Procedural steps were considered in the applicant's submission and discussed at the hearing. Mr Natoli considered it possible to use section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to give effect to a consequential amendment arising from allowing the second dwelling by modifying or deleting condition 1f).[3] The possible use of the same clause to amend the application for review to include an amendment of the Permit description was also canvassed. The Council did not object to identifying and giving effect to the appropriate next steps.
2. I have subsequently considered whether powers are available to achieve the desired outcome.
3. The scope of 85(1)(e) of the Planning and Environment Act 1987 (Vic) enables the Tribunal to direct that a permit must or must not contain any specified condition. I have some concerns about the use of section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to amend the Permit description, even though it is a document in the proceeding.
4. In absence of a related proceeding, such as under section 87 of the Planning and Environment Act 1987 (Vic) to amend the Permit, two pathways could be:
   • As part of this proceeding, a declaration pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) whereby a presidential member or member who is an Australian lawyer may make orders to resolve the inconsistency.
   • For the Council to use its powers under the Planning and Environment Act 1987 (Vic) to amend the description of what the Permit allows, to align with Tribunal orders to delete or modify condition/s that will allow the development and buildings and works associated with the second dwelling.
5. I am inviting submissions from the parties with respect to the use of these, or any other suggested, pathways so as to enable the proceeding to be concluded in line with my findings on the planning merits. I am also inviting the parties to comment on whether these matters can be delt with through submissions considered 'on the papers' or if a further hearing is required.
6. The applicant's submissions to the Tribunal in response to the above seek the following orders from the Tribunal:[4]

Declaration

Pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998:

• Stonnington City Council has failed to determine all applications for planning permission that were applied for as part of Permit Application No. 0201/21 to allow for the construction of a second dwelling on land at 78 Williams Road, Prahran, specifically:

- An application for a permit to construct a second dwelling on a lot, pursuant to clause 32.08-6 of the Stonnington Planning Scheme.

- An application for a permit to reduce the number of car parking spaces required, pursuant to clause of the Stonnington Planning Scheme.

• Any other declaration the Tribunal considers necessary.

Amend application

In application P57/2022, pursuant to section 127 of the Victorian Civil & Administrative Tribunal Act 1998, the application is amended from an application to review conditions pursuant to section 80(1) of the Planning and Environment Act 1987, to an application pursuant to section 79 of the Act to review the failure of the responsible authority to grant a permit.

1. Council advised that it has '... no objection to the course of action ...' proposed by the applicant.
2. Declaratory relief under the VCAT Act requires a presidential member or a member of the Tribunal who is an Australian lawyer. For the purposes of the hearing on 13 September 2022, the Tribunal was not constituted to consider declaratory relief.
3. Given the position of the parties, it is necessary to nominate a legal member to consider the declaratory relief and orders that are sought. Pursuant to Clause 66(1)(b) of Schedule 1 of the VCAT Act as the delegate of the President of the Tribunal, I nominate myself as the member of the Tribunal who is an Australian lawyer to determine the declaratory relief sought.[5]

1. An application for review of a condition in a permit is brought under section 80 of the Planning and Environment Act 1987 (PE Act) which provides:

1. Applications for review of conditions on permits

(1) An applicant for a permit may apply to the Tribunal for review of any condition* in a permit which the responsible authority has issued or decided to grant to the person. > > (2) ...

1. Section 85 of the PE Act, as relevant to an application under section 80 of the PE Act provides:
   1. Determination of applications

After hearing an application for review, the Tribunal may -

...

(e) direct that a permit must or must not contain any specified condition*.

...

(g) cancel a permit if -

(i) it upholds an application for review of a condition specified in a permit on the ground that the responsible authority had no power to impose the condition; and

(ii) it considers that the permit should not or would not have been granted without the condition.

(*my emphasis)

(2) In determining a proceeding for review of a decision the Tribunal may, by order - > > > (a) affirm the decision under review; or > > > > (b) vary the decision under review; or > > > > (c) set aside the decision under review and make another decision in substitution for it; or > > > > (d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

2. For completeness, section 127 of the VCAT Act provides:

(1) At any time, the Tribunal may order that any document in a proceeding be amended. > > (2) An order under subsection (1) may be made on the application of a party or on the Tribunal's own initiative.

1. The applicant submits the following:
   • the application for planning permit embodied a series of applications, notwithstanding that one application was made to council;
   • the series of applications were:
     • buildings and works to the existing dwelling under Heritage Overlay, Schedule 155 (HO155) of the Stonnington Planning Scheme (scheme);
     • buildings and works for the second dwelling on the lot under HO155 and the General Residential Zone, Schedule 12 (GRZ12) of the scheme; and
     • reduction in the number of car spaces required for the second dwelling under clause 52.06 of the scheme.
2. The council officer recommended that council authorise its officers to issue a notice of decision to grant a planning permit. This recommendation was not adopted by council at its meeting on 15 November 2021.
3. Instead, it appears that council resolved to authorise its officers to issue a notice of decision to grant a planning permit for the additions and alterations to the existing dwelling only. A copy of the minutes of council's meeting was not provided however, the minutes are available on council's website.[6]
4. The recording of the council meeting makes it clear that the second dwelling was refused because council believed that the proposal contained two separate elements. Council supported the additions and alterations to the existing dwelling. However, council assessed the second dwelling, and refused it due to its dominance, the lack of car parking and impacts on amenity.
5. On 30 November 2021, council's delegate issued a notice of decision to grant a planning permit for the 'partial demolition, buildings and works to an existing dwelling on a lot in a heritage overlay'. It included condition 1f) that required the deletion of the second dwelling.
6. On 4 January 2022, council issued a planning permit consistent with the notice of decision to grant the planning permit.
7. The applicant says that in the absence of any decision concerning the second dwelling, council failed to make a decision with respect to the permissions related to the second dwelling. The applicant's submissions state:[7]

9.1 The Permit Application, although singular in nature, embodied a series of applications and Council was required to determine each application, including the application for the Second Dwelling Permissions. > > 9.2 Given the distinct nature of the permissions applied for and their geographic severability, it was open for Council, to make a decision determining to issue a notice of decision to grant a permit in relation to the application for only the Heritage Building Permission. Council issued a NOD for the Heritage Building Permissions, rather than a global NOD for all of the permits applied for. > > 9.3 Council was, however, still required to make a decision to determine each application for the Second Dwelling Permissions. > > 9.4 If Council wanted to refuse to grant a permit for the Second Dwelling Permissions, it was required to adopt a further resolution making a decision to issue a notice of refusal (NOR) in respect of the application for the Second Dwelling Permissions, in accordance with section 65 of the Act. The NOR form would have required Council to clearly identify "what has been refused" and the "grounds of refusal". This did not occur. > > 9.5 The Permit Application, though singular in form, was not 'indivisible' and the procedural requirements that apply to the making of a 'decision' under the Act, must be read as applying to each application for permit that was made. This would include the requirements of sections 64 and 65. > > 9.6 Having regard to the above, in both substance and form, Council failed to make a decision that determined the application for the Second Dwelling Permissions in accordance with the Act.

8. The applicant relies on previous Tribunal decisions that used section 127 of the VCAT Act to amend what the permit allows in association with an application under section 80 of the PE Act. The most relevant decision is Lilley A and Tyas G V Mornington Peninsula SC[8] (Lilley).
9. Lilley concerned an application for review under section 80 of the PE Act with respect to a number of conditions. The grounds of review included a request for an amendment to what the permit allowed to reflect the correct number of units being considered. At paragraph 41 onwards the Tribunal stated:
   1. The Responsible Authority and the Objectors submitted the provisions of section 85 PE Act limits the powers of the Tribunal. In an application for review of conditions under section 80 PE Act the Tribunal they submitted, cannot go outside the subject of the application, namely the conditions sought to be reviewed and amend the words of permission in the permit. The sub-sections of section 85 are stand-alone provisions and refer to what the Tribunal may do in relation to the different applications for review that can be brought under the PE Act. In this respect in an application under section 80, section 85(1) (e) and (g) only relate to the Tribunal's powers following an application for review of conditions. The Responsible Authority referred to the decision of Antonopoulos v City of Collingwood & Others 5 PABR 179 which considered section 22 Town and Country Planning Act which was similar to the current section 85 said:

I am of the opinion that it would be manifestly unfair if the law operated so that the Applicant's own actions by appealing against conditions worked so as to place in jeopardy what has been already granted to him. The proper interpretation of Sub-section 22(1) is that, unless Sub-Section 22(1A) is applicable, the limits of an appeal against conditions involve a consideration of the issues which arise from those conditions. The Board has a clear power to amend, delete, reword or add conditions (see Pentland park Amusements Pty Ltd v MMBW, [1972] VicRp 61; (1972) VR 540) but it does not have power to overturn the whole decision (unless of course Sub-Section 22(1A) applies).

1. The Applicant submitted, the Tribunal has broad powers under section 85 PE Act and the Tribunal is not limited in an application under section 80 as to what it can do. The Applicant further submitted the reference in section 85(e) to any specified condition means any condition by the Tribunal. In this respect the Tribunal was referred to Pentland Park Amusements Pty Ltd v M&MBW [1972] VicRp 61; (1972) VR 540.
2. The Applicant submitted, the Tribunal has jurisdiction to amend the description of the use and development in so far as it refers to a number of dwellings because:
   • The number of units to be permitted forms part of the decision under review; and
   • The inclusion of a number of units in the description of the use and development in this case constitutes a condition of the permit.
3. The decision under review, the Applicant submits is the decision, inter alia, to permit a reduced number of units than that applied for. The reference to the 28 units is contained within the wording of the permit that forms the basis of the permit. These words are not as submitted by the Applicant a preamble but rather as submitted by the Responsible Authority the words of permission. They are the basis of the permit and it is not the basis of the permit that is under review.

1. It was submitted that the grounds of review requesting review of the number of units does not enable the Tribunal wider jurisdiction to deal with such request on a limited application for review of conditions under section 80. The Tribunal has been requested to consider whether a condition is or is not appropriate. In the present case the Tribunal reviewing the condition the subject of the application is reviewing the number of units. The plans before the Tribunal for consideration are the plans, which were before the Responsible Authority when it made its decision. The decision referred to 31 units, as did the first notice of decision to grant a permit. It is not clear on what basis the Responsible Authority amended its notice of decision to grant the permit it was said it could rely on section 71 PE Act, however this section relates to the correction of mistakes to permits once issued not to notices of decisions to grant.
2. The Tribunal does have wide jurisdiction under section 51 VCAT Act it not only has the powers of the decision maker, the powers it is given under the enabling act, but it also has its own powers under its own act.
3. Section 127 VCAT Act provides:

1. In the present matter the proceeding before the Tribunal is a review of conditions contained within a permit. The document in the proceeding is the permit in which the conditions are contained. The number of units is the basis of the condition being reviewed.
2. The decision in Lilley was followed in Associated Town Planning Consultants v Knox CC[9] and TM Mitchell Holdings Pty Ltd v Mitchell SC [10](TM Mitchell). I note that in TM Mitchell the Tribunal considered whether what the permit allows could be amended. Having heard from the parties the Tribunal states:
   1. Having considered these submissions and my findings on the conditions review below, I consider it is fair and appropriate to amend the permit description of PLP150/19 in this review proceeding under relevant provisions of the VCAT Act available to me, more particularly those under Section 127.
   2. I am satisfied there is a direct correlation and relationship between the conditions under review and what the permit ultimately allows[11]. I am also satisfied the tests of fairness and natural justice have been appropriately addressed, as notice of the application and plans was directed to adjoining persons, seeking approval for the development of seven dwellings on the land[12].
   3. Importantly, both parties agree that a change to the permit permission would be required to ensure consistency and clarity if Condition 1(c) was deleted as a result of this review proceeding.
   4. Given my comments above it is not necessary for me to make any specific findings on the council's proposition that it could apply Section 71 of the P & E Act to correct the permission description. I note this provision can only be applied where the permission description was amended as a mistake or omission by the council_._ It is also not necessary to make findings on the applicant's submission in respect to the use of a declaration under section 124 of the VCAT Act.
3. In Bread of Life Church (Melbourne) Inc. v Whitehorse CC[13] (Bread of Life) the Tribunal considered whether it should amend the application it was considering. It stated:
   1. The Tribunal has power under section 127 of the Victorian Civil and Administrative Act 1988 (VCAT Act) to amend an application. The additional submissions from the applicant included reference to amending the detail of what the permit allows (the preamble) and amending condition 5 (as well as different wording for conditions 3 and 6). I consider, however, that these amendments can be facilitated through the current application for review rather than requiring an amendment to the application.
   2. The Tribunal decision of Gallco Pty Ltd v Moonee Valley CC [2011] VCAT 2320 concerned an application for review of a car parking condition. It appears that during that application, a request was made to the Tribunal to amend the permit preamble to refer to a three storey rather than a two storey building. The Tribunal determined that it was unable to amend the preamble as there appeared to be no correlation with the condition under review and the preamble, and for that reason a separate application under section 87A was required.
   3. In this case, although the preamble was not included in the initial application for review, it is directly relevant to the conditions being challenged and the considerations of the Tribunal. So too, amendment or deletions of the other conditions under review requires consideration of the implications to the hours of operation included in condition 5.
   4. I note the comments of the Tribunal on this point in CMA Corporation Pty Ltd v Maroondah CC
      1. Typically, a conditions review is in relation to one or more specified conditions. The scope of the review is limited to those particular conditions and it does not throw open for consideration other conditions not specified. Furthermore, it does not create the opportunity for the introduction of new conditions not even mentioned or contemplated in the decision of the responsible authority.
      2. The only scope for a new condition would be if it arose as an incident, result or ramification of the removal of or alteration to a condition under challenge.
   5. In this case, the introduction of any 'new' condition or amendment of the wording to the preamble arises directly as a result of the removal or alteration of the conditions under review. As such, I find that I can direct that these changes, and others related to these matters, be made as part of the current application for review.

1. In Bread of Life the Tribunal referred to Pierrepoint Planning v Moyne SC[14] (Pierrepoint) and specifically to the following:
   1. There is a valid proceeding on foot before the Tribunal by which any necessary amendments to the permit to give effect to the amended plans can be achieved. This is the section 80 application, P215/2008. It is a situation where the Tribunal can and should exercise its discretion under section 127 of the Victorian Civil & Administrative Tribunal Act 1998 to amend the application for review in respect of both conditions 1 and 2 and the detail of what the permit will allow. In the event that any amended plans are approved by the Tribunal hearing the matter, the plans considered and approved should be referred to in condition 2 together with any modifications. I am satisfied that all parties understand and have had adequate notice of the changes and that this is the most expedient way of acting fairly and according to the substantial merits of the case.

1. As set out earlier, council did not oppose the course proposed by the applicant. Further, the Tribunal was advised that the council was willing to make an application under section 87(3) of the PE Act at the practice day hearing seeking to amend what the permit allows.
2. Council advised that it did not want to use section 71 of the PE Act to correct the permit as it considered the description of what the permit allows was not a clerical mistake or error.

1. To properly consider the declarations and the amendment of the application as sought by the applicant, it is necessary to consider the following matters:
   • Can section 127 of the VCAT Act be used to amend the application for review to include what the permit allows? If so, in what circumstances?
   • Should I grant the declaratory relief that is sought?
   • Can section127 of the VCAT Act be used to amend the permit or put another way is the permit, a document in a proceeding?
   • Can section 127 of the VCAT Act be used in this proceeding?

Can section 127 of the VCAT Act be used to amend the application for review to include what the permit allows? If so, in what circumstances?

1. To consider whether section 127 of the VCAT Act can be used to amend the application for review to include what the permit allows requires an understanding of the permit itself.
2. I start by setting out the regulatory regime with respect to permits.

What do the PE Regulations require to be included in a permit?

1. Regulation 22 of the Planning and Environment Regulations 2015 (PE Regulations) provides:

1. Form of permits other than permits granted under Division 5 or 6 of Part 4 of the Act

(1) The form of a permit, other than a permit granted under Division 5 or 6 of Part 4 of the Act, is Form 4 in Schedule 1. > > (2) The information to be included in a permit, other than a permit granted under Division 5 or 6 of Part 4 of the Act, is the information set out in Form 4 in Schedule 1.

2. Form 4 of Schedule 1 of the PE Regulations sets out the form of planning permits as follows:

PLANNING PERMIT

Permit No.:

Planning scheme:

Responsible authority:

ADDRESS OF THE LAND:

THE PERMIT ALLOWS: [All matters that the responsible authority has decided to grant the permit for must be included in the description of what the permit allows.]*

THE FOLLOWING CONDITIONS APPLY TO THIS PERMIT:

Date issued:

Signature for the responsible authority:

(*Tribunal emphasis)

1. Form 4 of Schedule 1 of the PE Regulations requires a responsible authority to articulate what permissions have been granted by it in the section 'the permit allows'. In my view, the importance of the description of what the permit allows cannot be underestimated. The description must provide an understanding of the extent and nature of all the permissions considered and granted by the responsible authority. Further, an accurate description of what a permit allows assists with the inclusion of valid and lawful conditions. I note that an accurate description of what the permit allows also assists with enforcement of a planning permit.
2. Whilst a permit is a public document that should speak for itself and be able to be understood by an ordinary person,[15] that does not mean that an accurate description of what the permit allows with respect to the permit triggers is somehow not necessary. In other words, Form 4 of Schedule 1 of the PE Regulations does not mean that conditions of a permit can only be included in the section 'the following conditions apply to this permit'. This may be the conventional location for conditions, but it is imperative to examine the permit in its entirety to understand what conditions and limitations have been placed on the approval and where they are located in the permit.
3. In addition, it is now common practice for responsible authorities and the Tribunal on review to include some or part of the following phrase in what the permit allows:

...in accordance with endorsed plans and subject to the following conditions...

61 Decision on application

(1) The responsible authority may decide -

(a) to grant a permit; or

(b) to grant a permit subject to conditions; or

(c) to refuse to grant a permit on any ground it thinks fit.

1. Having regard to section 61 of the PE Act, it is clear that a permission that is granted may be limited in extent by a condition. This may occur regardless of whether the condition is specified in what the permit allows, is by reference to 'subject to conditions' or is listed as a condition in the permit itself.
2. In the first two examples above that is, when a condition is specified in what the permit allows, or by reference to 'subject to conditions', the permission is explicitly limited by or through the condition or conditions. In those two examples, what the permit allows is explicitly linked to the condition or conditions, such that the permission or permissions are part of the condition or conditions.
3. In those circumstances, an application under section 80 of the PE Act of any condition in a permit could include a review of what the permit allows. This view is consistent with the decision in Pierrepoint. Further, I add that the decision under review in such circumstances, includes the decision to explicitly refer to a condition or conditions in what the permit allows.
4. Therefore, section 51(2)(a) and (b) of the VCAT Act allows the Tribunal to affirm or vary the decision under review, respectively including to what the permit allows.
5. Whilst I have arrived at the same outcome as the Tribunal decisions cited earlier, I have done so for different reasons. To be clear, I have found that 'what the permit allows' can be a condition of the permit in certain circumstances. Further, I agree with the reasons in Gallco Pty Ltd v Moonee Valley CC[16], that if there is no connection between what the permit allows and the condition under review, then what the permit allows cannot be amended using section 80 of the PE Act. In this proceeding, this situation may have arisen if what the permit allows did not expressly refer to the permission being subject to conditions.
6. What follows is whether the application for review in this proceeding should be amended under section 127 of the VCAT Act. I deal with this later in this opinion.
7. I also note that in many cases under section 80 of the PE Act, the need to examine what the permit allows would not arise if, only the permissions were set out in this section rather than a limitation for example, the number of dwellings. It is this practice that leads to further complications before the Tribunal in applications under section 80 of the PE Act.

Should I grant the declaratory relief that is sought?

1. The applicant correctly says that she is not responsible for the complications that have arisen in this proceeding. However, for the reasons set out above and later in this opinion, I do not consider it necessary to make any declarations.
2. For completeness, having regard to the specific circumstances arising in this case, I make the following observations:
   • by including condition 1f) in the permit, council refused permission for the second dwelling. Having regard to the officer's report and the council meeting on 15 November 2021, it is clear that the permissions concerning the second dwelling were considered by the officer and council. To that end, I disagree with the applicant that council failed to consider the application it had before it. Rather, council issued a conditional approval, but such approval was tantamount to a refusal of the permissions sought with respect to the second dwelling. The legitimacy of council's action is problematic when one has regard to Boroondara City Council v 1045 Burke Road Pty Ltd & Ors[17] (1045 Burke Road) where Warren CJ stated:
     1. Whether an overarching permit application is made for an entire proposal or the required permits are applied for separately is a matter of form rather than substance. In either situation, the triggered permit requirements must each be considered by the responsible authority, in the context of the overall proposal. For a cover-all permit to be granted, the responsible authority must be satisfied that in the context of the overall proposal, a permit should be granted in respect of each permit requirement triggered by the proposal, and also that the cover-all permit which is sought should be granted.
     2. Put another way, the overall proposal is taken into account in the consideration of each permit requirement triggered by the proposal, and also as a final check before the project permit is granted. The individual permit requirements that are triggered are not to be considered in isolation or sequentially; instead each must be considered with regard for the other triggered permit requirements and the overall proposal.
     3. If the responsible authority would not give every triggered permit requirement a 'tick' in that context, then it would be improper for the responsible authority to grant an overall permit for the proposal. To do so would involve either authorising a use or development of land that the responsible authority is not satisfied should be authorised, or a failure to make a decision regarding the triggered permit requirement at all.

Thus, if council did not consider the second dwelling an acceptable planning outcome, it should have issued a notice of refusal to grant the planning permit. If this was the case, matters as to what the permit allowed would not have arisen in any proceeding;

• the circumstances before me would readily lead to a conclusion that council's action was misguided, unfortunate and led to a series of complex consequences that are manifestly unfair to the applicant; and
• if my findings had been different with respect to the power under section 80 of the PE Act to include what the permit allows, a form of declaration or declarations may have been necessary to address council's action.

1. With the benefit of hindsight, and in the unique circumstances of this proceeding, the applicant may have chosen to file an application seeking a declaration that council refused the application for planning permit upon receipt of the notice of decision to grant a planning permit.

Can section 127 of the VCAT Act be used to amend the permit or is the permit, a document in a proceeding?

1. Having regard to my analysis above, I do not need to determine this issue however, I note that whether a permit is a document in a proceeding under section 80 of the PE Act, in my opinion, it is not free from doubt.

Can section 127 of the VCAT Act be used in this proceeding?

1. Having regard to my opinion set out above, I find that it is appropriate to amend the application to include a review of what the permit allows because it is fair and just in the circumstances. Further, I highlight that what the permit allows in this case is expressly limited by the endorsed plans and the conditions of the permit. Specifically, condition 1f) seeks to limit the development by the deletion of the second dwelling. In Townsing[18] the Tribunal found the development of the second dwelling to be an acceptable outcome, necessitating the deletion of condition 1f). It follows that what the permit allows should also be amended because it directly refers to the conditions and endorsed plans, this will ensure consistency between the permissions granted and the permit itself.
2. In passing, I note that if there was no connection between what the permit allows and the condition under review, then what the permit allows cannot be amended by including that as a condition under review. In those circumstances, an amendment to permit would need to occur using the various processes set out for such amendments under the PE Act.

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

[2] Townsing v Stonnington CC [2022] VCAT 1077 at [9-10] (Townsing).

[3] Citing Lilley A and Tyas G v Mornington Peninsula SC [2000] VCAT 2448 ([51] - [53]); Associated Town Planning Consultants v Knox CC [2004] VCAT 2197 ([19] - [21]); and TM Mitchell Holdings Pty Ltd v Mitchell SC [2021] VCAT 536 ([20] - [21]).

[5] The power to nominate a legal member is provided to each Deputy President of VCAT by the President of VCAT in an Instrument of Delegation dated 26 June 2014.

[6] I note that a recording of the meeting on 15 November 2022 is available on council's website.

[7] See Applicant's submission dated 28 September 2022. Page 4 at [9].

[8] [2000] VCAT 2448.

[9] [2004] VCAT 2197.

[10] [2021] VCAT 536.

[11] See Associated Town Planning Consultants v Knox CC [2004] VCAT 2197; Bread of Life Church (Melbourne) Inc v Whitehorse CC [2018] VCAT 1751; Lilley A and Tyas G v Mornington Peninsula SC [2000] VCAT 2448 and Gallco Pty Ltd v Moonee Valley CC [2011] VCAT 2320.

[12] See Associated Town Planning Consultants v Knox CC [2004] VCAT 2197 and Pierrepoint Planning v Moyne SC [2008] VCAT 2494.

[13] [2018] VCAT 1751.

[14] [2008] VCAT 2494.

[15] Vestey and Ors v Warrnambool CC [2008] VCAT 963 at [31] citing Gant v Greater Geelong City Council (2003) 15 VPR 230 at page 232.

[16] [2011] VCAT 2320.

[17] [2015] VSCA 27.