Provisions in this clause apply to an application to construct or extend an apartment development, or to construct or extend a dwelling in or forming part of an apartment development, if: ...

1. This clause must be interpreted in the context of the planning scheme. I find that reference to an application in this provision refers to an application for a permit as required under clause 34.01-4 or any other relevant zone provision, which requires a permit for buildings and works and provides that an apartment development must meet the requirements of clause 58.
2. An application for such a permit is an application made pursuant to section 47 of the Planning and Environment Act 1987. Section 47(1) sets out certain requirements relating to applications for permits if a planning scheme requires a permit to be obtained for a use or development of land.

12 The provisions of section 47 apply to an application made pursuant to section 72 of the Act for amendment of a permit by reason of section 73(1).[1]

1. An application to amend a permit pursuant to section 87A of the Act is not an application for a permit (or amendment of a permit) within the meaning of the planning scheme or section 47. When we refer to 'an application to amend a permit pursuant to section 87A of the Planning and Environment Act 1987', this is a short hand way of referring to an application made pursuant to the Victorian Civil and Administrative Tribunal Act 1998 in its original jurisdiction to consider a request to cancel or amend a permit pursuant to section 87 or 87A of the Act.
2. Division 3 of Part 4 of the Act, which deals with cancellation and amendment of permits by Tribunal, does not use the word application in any of its provisions. Rather, it refers throughout to a request that may be made to the Tribunal to cancel or amend a permit. Thus;
   • Section 87(3) provides that the Tribunal may cancel or amend a permit at the request of various persons.
   • Section 87A(2) provides that the Tribunal may only cancel or amend a permit under this section at the request of various persons.
   • Section 89(1) provides that various other persons may ask the Tribunal to cancel or amend the permit in various circumstances. Section 89(2) provides that the request must be made in writing in accordance with the regulations. Section 89(3) provides that the Tribunal may refuse to consider a request under this section or section 87 unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request.
   • Section 90 provides that the Tribunal must or may hear from various people at the hearing of any request.
   • Section 90A sets out matters which the Tribunal must take into account in determining a request.
   • Section 91 provides for determination by the Tribunal after hearing a request.
3. The reference throughout Division 3 to a request to cancel or amend a permit contrasts to the provisions elsewhere in Part 4 of the Act, which deals with permits, and refers throughout to applications for permits or applications for review by the Tribunal under various provisions.
4. Under the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal has two types of jurisdiction - original jurisdiction and review jurisdiction.[2] Section 43 of the Victorian Civil and Administrative Tribunal Act 1998 provides for how the original jurisdiction of the Tribunal is invoked:

The original jurisdiction of the Tribunal is invoked -

(a) by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67; or

(b) by a matter being referred to the Tribunal under an enabling enactment in accordance with section 69; or

(c) in any other way permitted or provided for by the enabling enactment.

1. Section 67 sets out how to make an application to the Tribunal.
2. Thus an application to the Tribunal under section 67 to invoke the Tribunal's original jurisdiction to amend a permit pursuant to section 87A is not an application pursuant to the Planning and Environment Act 1987. Rather, it is an application pursuant to the Victorian Civil and Administrative Tribunal Act 1998 to consider a request under the Planning and Environment Act 1987 to amend a permit.
3. Thus in my view, based on the statutory interpretation of clause 58, there is no justification to find that it applies to a request to amend a permit pursuant to section 87A of the Planning and Environment Act 1987.
4. I am not persuaded by the council's argument that because there is no definition in the planning scheme or the Planning and Environment Act 1987 of the word application, there is no reason why the use of this word in clause 58 is limited to applications for permits (or amendments to permits under section 72) made to the responsible authority and that an application can equally include applications made to the Tribunal.
5. For the reasons I have set out, I consider that reference to the word application in clause 58 must be read contextually. It must relate back to the relevant zone provisions, which impose a requirement to apply for a permit to construct or extend an apartment development, or to construct or extend a dwelling in or forming part of an apartment development.
6. I therefore conclude that the answer to the first question is that the provisions of clause 58 do not apply to an application to amend an existing permit brought in the Tribunal's original jurisdiction under section 87A of the Planning and Environment Act 1987.

If the provisions of clause 58 apply, do they apply to the extent of the amendments or to the building as a whole?

1. In light of my findings in respect of question 1, this question of law does not arise or require determination.

If clause 58 does not apply to an application under section 87A, is it relevant in the assessment of whether or not a permit should be amended?

1. In considering a request to amend permit under section 87A, the Tribunal may amend a permit that has been issued at its direction if it considers it appropriate to do so. There are various other matters set out in Division 3 that it must consider. Section 90A provides as follows:

90A Matters which Tribunal must take into account

(1) In determining a request, the Tribunal must take into account the matters set out in section 84B(2) as if the request were an application for review.

(2) The matters set out in section 84B(2) are in addition to any other matters which the Tribunal can properly take account of or have regard to or is required to take account of or have regard to in determining a request.

1. Section 84B(2) sets out various matters that the Tribunal must take into account. It includes the following:

In determining an application for review under this Act, in addition to the matters referred to in subsection (1), the Tribunal -

(a) must take into account any relevant planning scheme;

(b) must have regard to the objectives of planning in Victoria;

1. The planning scheme, of course, includes clause 58 as well as the transitional provisions in the C1Z and other relevant zones where clause 58 applies. In addition, the planning scheme also includes clause 65, which provides as follows:

Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:

• The matters set out in Section 60 of the Act.
• The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
• The purpose of the zone, overlay or other provision.
• Any matter required to be considered in the zone, overlay or other provision.
• The orderly planning of the area.
• The effect on the amenity of the area.
• The proximity of the land to any public land.
• Factors likely to cause or contribute to land degradation, salinity or reduce water quality.
• Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.
• The extent and character of native vegetation and the likelihood of its destruction.
• Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
• The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.

This clause does not apply to a VicSmart application.

1. Section 60(1A)(j) provides that before deciding on an application, the responsible authority (and the Tribunal), if the circumstances appear to so require, may consider any other relevant matter.
2. The question is whether clause 58 is a relevant matter in all the circumstances, particularly having regard to the transitional provisions relating to the consideration of clause 58 in the planning scheme.
3. The applicant takes the view that clause 58 is not a relevant matter, whereas the council considers that it is.
4. Both parties rely on the following provision from the High Court decision in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (per Mason J):[3]

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

1. The important principle identified in this decision relevant to this matter is that the factors the decision maker is bound to consider, where not expressly stated, must be determined by implication from the subject matter, scope and purpose of the Act or, in this case, the planning scheme.
2. The council says that because the transitional provision only provides that clause 58 does not apply to a permit application lodged before the approval date of Amendment VC136 and an application for an amendment of a permit under section 72 if the original permit application was lodged before the approval date Amendment VC136, makes no express mention of amendment of a permit under section 87A, there is no reason why clause 58 should not apply to the amendment of a permit under section 87A. The council relies upon Popular Pastimes Pty Ltd v Melbourne CC[4] in support of its position that the transitional provision does not include reference to amendment of a permit pursuant to section 87A and there is no clearly stated planning policy, rationale or contextual basis for reading words into the transitional provision that are simply not there.
3. I agree with the council that there is no justification for reading into the transitional provisions any reference to an amendment of a permit pursuant to section 87A. However, whether clause 58 is a relevant matter to consider in the context of a request to amend a permit pursuant to section 87A by virtue of section 60(1A)(j) of the Planning and Environment Act 1987, will depend on the purpose and intent of clause 58 itself and the transitional provision.
4. In my view, the purpose and intent of the transitional provisions in clause 34.01-4 (and other relevant zone provisions) is to exclude the application of clause 58 to any permit applications where the current permit application or original permit application, in the case of an application for amendment under section 72, was lodged before the approval date of Amendment VC136. In respect of amendments of permits under section 72, there is no time constraint on how long prior to the approval date of Amendment VC136 the exemption applies. The clear intent is to exclude the application of clause 58 from the amendment of any permit issued before Amendment VC136.
5. Whilst the amendment of a permit pursuant to a request made under section 87A (or indeed, under section 87 or 89) is different in its nature to an amendment of a permit pursuant to section 72, the Tribunal has held in various cases that the ambit of changes that may be made to a permit under each provision of the Planning and Environment Act 1987 are the same. Thus in Fosters Group Ltd v Mornington Peninsula SC[5] the Tribunal said:

[53] In various cases the Tribunal has emphasised that what can be done by way of amendment under each of these provisions (sections 72, 87 and 87A) is the same. No distinction should be drawn between a permit issued at the direction of the Tribunal and a permit issued by the responsible authority (in the absence of an application for review) in terms of the type of amendment that can be made (eg. amendment to a condition, plans, drawings and other documents approved under a permit).[6]

[54] Each of the three mechanisms for amending a permit entails a different process even though what might be done by way of amendment is the same.

[55] An amendment under section 72 requires the same process as the grant of a permit. The procedure for amending a permit under sections 87 or 87A is set out in Division 3 of Part 4 of the Act. It entails a different process.

1. It is relevant to note in this context that the Fosters Group case found that it would be possible to amend permit under section 87A in a way that could not be considered under the current provisions of the planning scheme, but the permit could not be amended to introduce a new prohibited use.
2. I have already noted in my response to question 1 that a request under section 87A is not the same as an application for a planning permit or to amend a planning permit under section 72. It is therefore not an application to which clause 58 applies. Consequently, it would not have been relevant to include any reference to a section 87A permit amendment in the transitional provisions of the various zones. On the other hand, if the outcomes of a permit amendment under section 87A would be the same as a permit amendment under section 72, it would be anomalous if clause 58 did not apply to a permit amendment under section 72 (if the original permit application was lodged before the approval date of Amendment VC136), but it could apply and could be a relevant consideration to a permit amendment under section 87A in identical circumstances (where the original permit application was lodged before the approval date of Amendment VC136). In my view, this would be contrary to the objectives of planning in Victoria to provide for the fair use and development of land.[7] It would not be fair to consider clause 58 in the context of amending a permit under one process and not under the other process where the outcomes are the same This cannot have been intended. It is also a perverse outcome that could be stymied by the applicant choosing to pursue an amendment pursuant to section 72 and not proceeding with its application under section 87A.[8]
3. In conclusion, I find there is a clear legislative intent that clause 58 is not intended to apply retrospectively to any permit applications lodged before the approval date of Amendment VC136 or to the amendment of any permits if the original permit application was lodged before the approval date of Amendment VC136.
4. Having regard to the principles of relevance identified in Peko-Wallsend, whilst the exercise of discretion to amend a permit under section 87A might appear to be unconfined, I find that having regard to the subject matter, scope and purpose of the planning scheme so far as it applies to clause 58, there is 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.
5. It follows that my response to question 3 is no, the provisions of clause 58 are not relevant at all in the assessment of whether or not a permit should be amended under section 87A.

Is clause 58 relevant at all to an application to amend an existing permit pursuant to section 72?

1. For similar reasons to my finding in response to question 3, I find that the provisions of clause 58 are not relevant to an application to amend an existing permit pursuant to section 72 of the Act where the original application for the existing permit was made before the coming into operation of clause 58.
2. The transitional provisions mean what they say: clause 58 does not apply to 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. There is no qualification on the exemption, no partial exemption, and no additional policy basis within the legislative framework which might be read to qualify the phrase does not apply.
3. I agree with the applicant that the effect of that phrase is such that if a planning decision maker were to use clause 58 as a tool in the assessment of whether or not an application for an apartment development achieves an acceptable outcome within the meaning of clause 65 of the planning scheme, the decision maker would take into account an irrelevant consideration.
4. Absent the express words to the contrary in the transitional provisions, clause 58 would apply to an application under section 47 for an amendment under section 72, which was to be decided after the introduction of clause 58, on the basis that planning decisions have to be made in respect of applications for a permit on the basis of the planning scheme in force at the time of the decision. This principle was established by Ungar v City of Malvern[9] and confirmed by the Supreme Court in Sisters Windfarm Pty Ltd v Moyne Shire Council[10]. However, there are express words to the contrary in the planning scheme that negate this principle.
5. The only meaning that can be given to the phrase does not apply in the transitional provisions is that applications in the categories set out in the transitional provisions must be assessed without regard to clause 58. For the reasons set out in response to question 3, this also applies to consideration of a request to amend a permit under section 87A.
6. This does not mean that the internal amenity of apartments is not a relevant matter to consider, but in assessing internal amenity the decision maker cannot refer to clause 58 in forming a judgement or exercising its discretion. Factors that may have been relevant in assessing internal amenity of apartments prior to the introduction of Amendment VC136 will continue to be relevant. However, the introduction of clause 58 does not mean that apartment development approved pursuant to an original permit application lodged before the approval date of Amendment VC136 now become unacceptable or substandard.
7. It follows that my response to question 4 is no, clause 58 is not relevant at all to an application to amend an existing permit pursuant to section 72.

[1] Section 73(1) provides as follows:

(1) Subject to this section, sections 47 to 62 (with any necessary changes) apply to an application to the responsible authority to amend a permit as if -

(a) the application were an application for a permit; and

(b) any reference to a permit were a reference to the amendment to the permit.

[2] Section 40 Victorian Civil and Administrative Tribunal Act 1998

[3] [1986] HCA 40; 1986 (162) CLR 24 at 39; [1986] HCA 40

[5] [2010] VCAT 104

[6] See Jolin Nominees Pty Ltd v Moreland CC (Red Dot) [2006] VCAT 467; Zuzek v Boroondara CC (Red Dot) [2007] VCAT 2174; Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT at 60

[7] Section 4(1)(a) Planning and Environment Act 1987

[8] Indeed, I was advised that the applicant has already lodged such an application with the council. However, to abandon the section 87A application in the present proceeding would be a waste of resources.

[9] [1979] VicRp 25; [1979] VR 259

[10] [2012] VSC 324 at [56]- [58]