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The process of obtaining a planning permit can often times be a lengthy procedure and typically the size of the development will be commensurate with the length of time required; smaller developments may move through the planning process at different local Councils faster than other larger developments.

The planning procedure is often very early in the project development timeline and amendments are often required to allow variations, whilst conditions on any given construction site may differ at any given time.

This sentiment was expressed in the VCAT decision of Mentone Mansions Pty Ltd v Kingston CC [1] wherein it was noted:

. . . Most planning projects undergo a design and development process which takes a considerable time, and the planning approval phase is early in that process.  As a consequence, after planning approval, the development of a design for construction purposes, and the construction process itself, can result in a need to amend the development no matter how well resolved the development is at the planning stage.

A similar statement in Obiter to the one above was made in Zuzek v Boroondara CC [2]:

Given that the planning approval phase often occurs relatively early in the design and development phase for a project, it is important that the planning system contains within it a degree of flexibility to allow for the reasonable changes that sometimes inevitably arise as a project proceeds. The secondary consent mechanism is intended, to a large degree, to provide that process.

When seeking to amend an endorsed planning permit, there are generally two avenues available. These avenues are:

1. Section 72 Application; or
2. “Secondary Consent”.

Section 72 Application

A permit including any approved plans, drawings or other documents can be amended under Section 72 of the Planning and Environment Act 1987 (Vic).  This amendment process essentially follows the same process as an application for a permit and Councils generally treat each application as though it were a fresh application.

Councils may request further information and more significantly, may exercise their discretion to insist on public notification and referral of the application. The availability of these third party review rights can be seen as a negative to some developers as this can hinder the progress of the development; especially in instances where egregious neighbours are at play.

Secondary Consent

The secondary consent pathway is available in instances of minor planning amendments and often provides a simpler way to make changes to a permit or endorsed plans.

Of significance is that secondary consent applications do not require public notification and accordingly third-party appeal rights do not exist.

In the leading VCAT decision of Westpoint Corporation Pty Ltd v Moreland CC [3],  the Tribunal was tasked with determining whether an application for amendment to a planning permit was necessary to be advertised to the public.

In that case, the “alterations to the development shown on the endorsed plans [were] quite substantial in some respects”. These changes included an increase in the number of dwellings from 181 to 237. In addition to this infilling of buildings, there were changes to the architectural design and an increase in the exemption for the required car parking spaces from 117 to 220.

Despite this, Deputy President VCAT Member Gibson still found that as a result of her analysis, the proposed alterations to the development were “consistent with the permit and are inconsequential having regard to the purpose of the planning controls which led to the grant of primary permission.”

Member Gibson also provided that [4]:

it should not automatically be assumed that all changes to a use or development can only occur via this mechanism. An important role will remain for secondary consents to facilitate the practical implementation of proposals large and small, which should involve a fairly robust approach to assessing what is or is not of consequence having regard to the purpose of the planning control under which the permit was granted.

In assessing whether amendments were able to be considered by way of Secondary Consent, the following criteria should be referred to by a decision maker:

• If there is a transformation of the proposal.
• If there is the authorisation of something for which primary consent is required under the planning permit.
• there is no consequence having regard to the purpose of the planning control under which the permit was granted.
• the changes are not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.

Section 72 or Secondary Consent?

When determining whether Secondary Consent or a Section 72 Application should be used, the VCAT decision of APAC Design & Construction v Whitehorse City Council [5] provides some insight:

Changes to plans under a permit need to be considered in a context of a continuum. At the lower end there are minor changes that have no external impact and are entirely uncontentious. Changes of this nature are best considered by way of secondary consent without the need for notification, the involvement of third parties, or an extensive formal process. At the other end of the continuum are major changes that will have external impacts and affect third parties. Changes of this nature should be considered in the context of an application to amend the permit under s 72 of the Act.

Councils are quick to suggest that section 72 Applications are the preferred avenue to follow, hence this is usually the avenue followed.

In Zuzek v Boroondara CC [6] the Member stated:

“I do not agree… that the mere fact that a neighbour thinks that he is affected… is sufficient to negate a secondary consent process.

Similarly, in Bendetti v Moonee Valley City Council. [7] the applicant in that case suggested that “because an investigation had commenced following complaints from the applicant that any amendment of the planning permit by way of secondary consent was not available to the council.” His honour Osborn J of the Supreme Court of Victoria, went as far as to say: “Presumably, what is really being submitted is that a prudent council would have required an amendment under section 72 of the Act.  I do not agree.”

Conclusion

As observed in Zuzek v Boroondara, the planning approval phase is very much at the embryonic stage of the project, hence it is recognized that it is important that the planning system is sufficiently malleable to have regard to changes down the line. Section 72 and supplementary and secondary consent mechanisms serve this end.

It is very important that statutory decision makers have regard to apposite considerations that affect both planning applicants and parties which may be affected by the proposal. Decision makers should exercise a high level of vigilance in the exercise of discretion mindful of the fact that there are very significant issues in play in terms of time and cost impacts that attach to the applicants and potential amenity loss of impacts that can be visited upon affected parties proximate to the development.

This is a Lovegrove and Cotton publication.

Disclaimer

This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact a construction law firm. The experienced team at Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute.

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[1] Mentone Mansions Pty Ltd v Kingston CC [2000] VCAT 1947.

[2] Zuzek v Boroondara CC [2007] VCAT 2174 at para 6.

[3] Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049.

[4] Ibid.

[5] APAC Design & Construction v Whitehorse City Council [2006] VCAT 101 at para 5.

[6] Zuzek at para 40.

[7] Bendetti v Moonee Valley City Council [2005] VSC 434.