One of the recent amendments to the Victorian planning provisions has been the introduction of Amendment VC136 on 13 April 2017 known as the ‘Better Apartment Design Guidelines.’ The amendment introduced apartment design requirements in the Victorian Planning Provisions under clause 58 and amended existing clause 55 requirements.

The transitional provisions of Amendment VC136 state:- “Clause 58 does not apply to:-

  • An application for a planning permit lodged before the approval date of Amendment VC136.
  • 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.”

Under the Planning and Environment Act 1987 (Vic), a permit holder can seek to cancel or amend a permit issued at the direction of Tribunal via section 87A or, via section 72. Section 87A involves a direct application to VCAT, whereas section 72 involves an application to responsible authority. There has been confusion within the industry as to whether an application under s.87A receives the benefit of the transitional provisions as it was not stated in the transitional provisions. This question of law was recently tested in W Property Group Pty Ltd v Boroondara City Council [2017] VCAT 740.

The questions of law to be determined were:-

  • “Do the provisions of clause 58 apply to an application to amend an existing permit brought in the Tribunal’s original jurisdiction under section 87A?
  • If the answer to question 1 is “yes” and the provisions of clause 58 do apply, do they apply only [to] the extent of the amendments to the existing permit sought by the application made under S.87A, or do the provisions apply to the building as a whole?
  • If the provisions of clause 58 do not apply to an application made under S87A, are the provisions relevant at all in the assessment of whether or not a permit should be amended?
  • Are the provisions of clause 58 relevant at all to an application to amend an existing permit brought pursuant to S72 of the Act where the original application for the existing permit was made before the coming into operation of clause 58?”

In relation to the first question, the applicant submitted that clause 58 does not apply to a S.87A application, whereas the Council submitted that clause 58 does apply and that an application under S.87A does not receive the benefit of the transitional provisions.

The Tribunal accepted the applicant’s position and found that the wording of ‘application’ under Clause 58 does not extend to an application under S.87A at all.

The Tribunal stated that the clear purpose and intent of clause 58 and its transitional provision is to remove its retrospective element. Thus, the provisions of clause 58 were found to be an irrelevant consideration in the assessment of whether or not a permit should be amended pursuant to a S.87A or S.72 application where the original permit application was lodged before the approval date of Amendment VC136.