Practice and Procedure – Amendment of permit applications

Jacquier v Maroondah CC [2015] VCAT 217 (‘Jacquier’) is the latest in a series of Tribunal decisions to consider whether a permit application has lost the benefit of the Transitional Provisions in the recently introduced Neighbourhood Residential Zone (NRZ).

The decision is of interest in that it addresses the transitional provisions, amendment of permit applications and the conduct of the relevant council.  

The proposed development involved the construction of 4 dwellings, subdivision and the removal of trees – a development that would now be prohibited under NRZ but for the transitional provisions relating to applications lodged prior to the introduction of the new zone.

A hearing was constituted to resolve a factual dispute concerning whether the permit application had been amended. The applicant had submitted amended plans to the Council after the land was re-zoned NRZ3.

If this constituted an amendment to the permit application section 50(5) of the Planning and Environment Act 1987 would have deemed the amendment date to be the date of the permit application, thereby depriving the applicant the benefit of the transitional provisions.

The applicant had not formally requested the Council amend the application and on the evidence had in fact taken steps to ensure no amendment occurred. This scenario gave rise to the question whether the permit application could have been inadvertently amended.

The Tribunal cited the decision in M L Design Pty Ltd v Boroondara CC [2005] VCAT 2088 in concluding that

‘It is not open to the responsible authority to treat something as a request to amend an application unless it is quite clear that this is what it purports to be. Thus simply submitting amended plans is not of itself sufficient to constitute a request….to the responsible authority to amend the permit application’

On this reasoning, the Tribunal held the permit application had not been amended, listed the proceeding for a full hearing and invited the Council to reconsider its decision.

Permit applicants and Councils should note the Tribunal’s adherence to M L Design Pty Ltd v Boroondara CC in holding that a permit application may only be amended after a formal and unambiguous request from the applicant.

Additionally, parties to VCAT proceedings should note the potential consequences of not being represented at a Practice Day Hearing and failure to comply with procedures under the Act.

The Tribunal expressed it’s ‘disappointment’ with the relevant council’s conduct and reserved costs, stating:

Costs will be reserved as I am not satisfied with the council’s conduct in this particular matter. It has failed to provide me with additional information. It has failed to attend the hearing today whereby some of these matters might have been tested. It appears to have not complied with the Planning and Environment Act 1987 and has made a decision that there has been a formal amendment when I am not satisfied that there has been.

For further information contact:

Greg Tobin
Principal
Harwood Andrews
T: 03 5225 5252
E: gtobin@harwoodandrews.com.au

Sophie McGuinness
Senior Associate
Harwood Andrews
T: 03 9611  0117
E: smcguinness@harwoodandrews.com.au