The Victorian Civil and Administrative Tribunal has provided further commentary concerning the use of section 87A of the Planning and Environment Act 1987 to modify existing planning permits.
Concerns have previously been raised by the Tribunal (see King David School) about the use of the section as a de facto appeal mechanism to seek more favourable permit conditions without sound justification soon after the grant of the original permit.
In King David the Tribunal stated ‘In short, s 87A should not be used as a de facto review of the original Tribunal decision in order to seek a more favourable outcome, or as an attempt to ‘win back’ development aspirations that were not supported in the original Tribunal decision. In our view, this would rarely (if ever) be “appropriate”.
Union Apartments Pty Ltd v Stonnington CC  VCAT 96 concerned an apartment building on the corner of Glenferrie Road and Union Street in Malvern. The developers filed an application under section 87A to modify the existing permit to allow a fourth storey apartment instead of the three storey building with a rooftop terrace that had previously been approved. This would increase the number of planned apartments from 11 to 12. The developer openly acknowledged that they had initially planned a four storey building.
The key issue for the Tribunal in this application was whether the proposed amendment would modify or transform the existing permit. The Tribunal determined that the application was “sailing close to the wind” but it did not transform the permit. The determining factors were the unchanged height of the building, negligible changes to the relevant streetscapes and the inclusion of additional on-site parking.
The Tribunal’s decision illustrates that there is some flexibility in the use of section 87A to obtain post permit development changes shortly after approval, provided that the impact of the development on the surrounding environment remains relatively unchanged.
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