The recent Tribunal decision in Coles Property Group Developments Ltd v Boroondara CC makes for essential reading by statutory planners when considering the limits on Councils and the Tribunal's powers to amend a permit, whether by section 72 or section 87A of the Planning and Environment Act 1987.
It is a case where Council generally supported the proposal subject to some amendments, but opposed the process because (it argued) the change from what was authorised by the permit and what was sought by the amendment to the permit so 'transformed' the permit that the applicant should have applied for a new permit. It argued that the Tribunal lacked power to amend the permit under section 87A.
What the permit authorised
The subject permit authorised a four storey building comprising a level of basement carparking, a combination of restaurant, office and small retail tenancies at ground level and three upper levels of apartments.
What was sought by the permit amendment
The applicant sought to amend the permit to authorise a single-tenancy, single-level supermarket with one mezzanine level of office (for the supermarket) and basement car parking.
The Tribunal's decision
The Tribunal (per Deputy President Gibson and Member Wilson) rejected Council's argument that the case raised a question of 'jurisdictional fact' but made the following salient observations before refusing to grant the amendment on the basis that it had no power to do so:
To understand the extent of change that may occur, it is necessary to have regard to the context in which the word ['amendment'] is used and the meaning of the word in that context. In this context, we consider there is a well established distinction between the concept of amendment and transformation.
This concept of transformation compared to amendment was articulated in Addicoat v Fox (No 2)and has been widely applied in planning decision making ever since. Bestway is an illustration. So too is Becton, where Morris J observed, "the power to approve an amendment to plans is a broad power; but it is not a power which would extend to the approval of plans which transformed the development shown on the plans which had been approved under the permit."
And as to the public policy reasons for placing a limit on the power to amend a permit:
… where the ambit of changes proposed result in a completely different proposal – a transformation – the structure of the Act contemplates that a new permit application will be made. If this were not so, then a single permit issued for one thing could be constantly changed over time for other things having little or nothing to do with the previous use or development permitted. This has implications for existing use rights and for compliance with current provisions of the planning scheme. In our view, it is contrary to the purpose of the Act as evidenced by the framework for dealing with permits set out in the Act.
The Tribunal determined that the amendment sought would have transformed the proposal given the completely different scale, design and typology between what was approved and what was sought, the removal of all the residential components, the removal of the ground level restaurant and offices and the conversion of seven individual shop tenancies to one single supermarket.
The significant aspect of the decision is that the Tribunal was prepared to make its ruling (that it had no power to amend the permit) even though:
A supermarket on the review site will positively contribute to the vitality of the Surrey Hills activity centre, provide convenience shopping for residents in an appropriate location and can be accommodated without unreasonable impacts on amenity, car parking availability or traffic flows. We consider that subject to alterations to the proposal to address the heritage values of 138 Union Road, an appropriate built form can be achieved.
As an interesting adjunct, on the same day that the Tribunal decided the Coles case, a differently constituted Tribunal (per Senior Member Wright QC) decided Central Estate Properties Pty Ltd v Manningham CC. In a proposal to amend a permit which authorised a retirement village to one which would authorise a conventional multi-dwelling development, the Tribunal determined:
I consider that a retirement village is a different planning concept to conventional multi-dwelling development, and that a proposal to convert one to the other would be a transformation of the development rather than an amendment. In my view this cannot be done using the mechanism of section 87A of the Act.
While the Tribunal in both the Coles and the Central Estate Properties cases was considering applications made to it under section 87A of the Act, we see no reason why the same principles would not apply in an application made to a council under section 72.