Mondib Group Pty Ltd v Moonee Valley City Council
[2021] VSC 722
•5 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2020 03958
| MONDIB GROUP PTY LTD | Applicant |
| and | |
| MOONEE VALLEY CITY COUNCIL | First Respondent |
| and | |
| CORAL RISE PTY LTD | Second Respondent |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 and 11 October 2021 (date of last submission: 29 October 2021) |
DATE OF JUDGMENT: | 5 November 2021 |
CASE MAY BE CITED AS: | Mondib Group Pty Ltd v Moonee Valley City Council |
MEDIUM NEUTRAL CITATION: | [2021] VSC 722 |
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ADMINISTRATIVE LAW – Judicial review – Application for leave to appeal from decision and orders of Victorian Civil and Administrative Tribunal – Tribunal found proposed amendment to a permit was a transformation – Whether proposed amendment to a permit was lawful under the Planning and Environment Act 1987 – Addicoat v Fox (No 2) [1979] VR 347 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Morris QC with Mr R Chaile | Best Hooper Lawyers |
| For the First Respondent | No appearance | |
| For the Second Respondent | Mr A Walker | BSP Lawyers |
HIS HONOUR:
This appeal on a question of law brought from the Victorian Civil and Administrative Tribunal (‘the Tribunal’) raises an important question about the width of the power to amend a planning permit under s 72 of the Planning and Environment Act1987 (‘the Act’).
Although s 72 is cast in broad terms, in a longstanding series of cases, which includes the present one, the Tribunal has construed s 72 of the Act in a way that makes the power unavailable when the proposed amendment would involve the ‘transformation’ of the permit into an entirely different permit. On the receiving end of that construction, Mondib Group Pty Ltd (‘the applicant’) had its application to amend a permit to change a development for a multi-storey residential apartment building to a hotel summarily dismissed[1] by the Tribunal on the basis that the proposed change would, if granted, involve a ‘transformation of what is allowed’ under the permit.[2]
[1]Victorian Civil and Administrative Tribunal Act1998 s 75 (‘the VCAT Act’).
[2]Mondib Group Pty Ltd v Moonee Valley CC [2020] VCAT 1031, [35] (Member Halliday) (‘Reasons’).
I have come to the conclusion that the language and purpose of the provision, when understood in its context, cannot accommodate the limitation that the Tribunal applied. The amendment power empowers the responsible authority to alter an existing permit subject to the procedure that the Act requires. The word ‘amendment’ in s 72 means a change or alteration to an existing permit. The ambit of the power, and the obligation of a responsible authority to consider an application to amend, does not depend on the extent of the proposed changes. That does not mean, and this is an important qualification, that a very extensive or transformative amendment should be made. The outcome of any application to amend will turn on its merits and entail the exercise of the powers to grant or refuse the amendment, which as will appear, are relevantly the same powers as exist to grant or refuse to grant a permit.
For the reasons that follow, I would grant leave to appeal and allow the appeal. The application to amend will be remitted to the Tribunal.
The facts
On 21 July 2016, Moonee Valley City Council (‘the Council’), as a responsible authority, granted to the applicant a permit under the Act permitting it to develop land on Mount Alexander Road, Moonee Ponds. The proposed development comprised the construction of a multi-storey building containing apartment dwellings and ground floor retail space. As is common, the permit incorporated approved plans for the construction. Because accommodation is a permitted use under the planning scheme for the relevant land, no permit was required to use the building, once constructed, for accommodation.
The permit has been extended a number of times and remains in force.
For its own commercial reasons, the applicant no longer wants to develop the site as an apartment building with retail but wishes to construct a building to be used as a hotel with a restaurant at the bottom. Although the overall building envelope and the scale of the built form will be similar, in order to achieve its goal, fairly significant changes are required to the internal structure and layout. To this end, the applicant applied to the Council to amend the permit under s 72 of the Act.
Although the applicant’s application to amend the permit was supported by Council officers, it was ultimately refused by the Council. The applicant applied to the Tribunal to review the decision to refuse to issue to the applicant an amended permit. Applying s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), which permits the Tribunal to summarily dismiss an application, the Tribunal dismissed the application on the basis that the proposed changes could not fall within the amendment power because they involved a ‘transformation’ of the permit and this fell outside the power of amendment in s 72 of the Act. Before turning to the Tribunal’s reasons, it is convenient to set out the proposed changes to the permit as the Tribunal understood them to be.
In its reasons, the Tribunal set out the relevant terms of the existing permit and the proposed changes as follows:
The Permit was issued on 21 July 2016. It allows the following:
Construction of a multi-storey building accommodating ground floor retail, dwellings, reduction in the car parking requirements and works within a Road Zone.
An extension of the time to commence the works has been granted twice by the Council, with the works now due to commence by 21 July 2022 and be completed by 21 July 2024. The most recent set of plans endorsed under the Permit show the following:
a. A 14-storey mixed use building comprising 187 dwellings and commercial premises (including four retail premises at ground floor level). The Permit allows for 36 three-bedroom dwellings; 109 two-bedroom dwellings and 42 one-bedroom dwellings);
b. Five levels of basement car parking with access via a rear right of way;
c. A total of 212 car parking spaces and 67 bicycle spaces;
d. A maximum building height of 50.07 metres;
e. A separation of the building into two separate forms from level 10 and above.
The applicant wishes to amend the Permit to allow for the construction of a multi-storey building comprising a ground floor restaurant, residential hotel and works within the RZ1 (Proposed Amendment). This would include the following changes:
a. An amendment to the preamble to refer to the construction of a multi-storey building accommodating a residential hotel and a restaurant;
b. Amendment to the plans to show a 15-storey mixed use building comprising 335 residential hotel rooms, with a lobby, a pick-up and drop off area, a restaurant at ground floor level, and meeting rooms and a lounge at first floor level. Forty, two-bedroom suites and 295 one-bedroom suites are proposed;
c. Three levels of basement car parking with access from the rear right of way;
d. A total of 94 car parking spaces, 3 pick-up and drop off spaces, 6 motor bike spaces and 86 bicycle spaces;
e. A maximum building height of 46.55 metres (excluding service equipment);
f. Changes to the built form, including fewer external balconies and the deletion of the break above 10 storeys; and
g. Amend the permit conditions through the deletion of certain conditions and the introduction of new conditions.[3]
[3]Reasons [7]–[9].
The Tribunal’s reasons
After setting out the terms of s 72 of the Act, to which I will come, the Tribunal referred to a series of decisions of the Tribunal in which it has been held that although broad, the power does not include a power to ‘transform the permit’ so that it is a different permit or where ‘nothing would be left of the original permit’.[4] It will be necessary to refer to these decisions in some detail but is convenient to defer that discussion.
[4]BestwayGroup Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860 (‘Bestway’); Coles Property Group Developments Limited v Boroondara CC (Including Summary) (Red Dot) [2014] VCAT 342 (‘Coles Property’); Central Estate Properties Pty Ltd v Manningham CC (Includes Summary) (Red Dot) [2014] VCAT 343 (‘Central Estate Properties’); Alkero Development Pty Ltd v Stonnington CC (Red Dot) [2018] VCAT 1120 (‘Alkero’).
The Tribunal observed that there is a difference between a dwelling and a ‘residential hotel’ and that the proposed residential hotel is ‘a different planning concept’ to the existing multi-dwelling development approved under the permit.[5] Those differences include the duration of stay; the type of amenities provided; and activities associated with a hotel such as function or conference rooms, entertainment, dancing, amusement machines, gambling, and the sale of liquor which are generally not found in a multi-dwelling development.
[5]Reasons [27].
The Tribunal concluded that the layout and appearance of the development shown in the plans of the proposed amendment were qualitatively different to what was allowed under the permit. The Tribunal gave a number of examples of the differences as follows:
a. At ground floor level, the six retail tenancies are replaced with an entrance foyer/lobby; a port cochere; a restaurant and facilities including luggage storage;
b. At first floor level, the dwellings are replaced with meeting rooms; a lounge and a games room;
c. Above first floor, dwellings are replaced with hotel rooms; access space leading to hotel rooms, and there are significantly fewer balconies;
d. Externally, there are changes to the facade at the lower levels to accommodate the residential hotel use and vehicle and pedestrian movements;
e. There are changes to the height, overall appearance and materials used, including the deletion of the break above the tenth storey; and
f. There are two less basement levels, with a reduction of 118 car parking spaces.[6]
[6]Reasons [28].
The Tribunal noted that the terms ‘dwelling’ and ‘residential hotel’ both fall within the accommodation ‘nesting term’ in the planning scheme and both uses are as of right within and do not require a permit.
The Tribunal acknowledged that the description of the permitted use was substantially the same and many of the conditions, in common form, remained. It concluded:
Some of the differences between what is approved under the Permit and the Proposed Amendment may, in isolation constitute an amendment of the Permit (rather than a transformation). However, based on the facts and circumstances of this matter, I find that the combination of changes proposed leads to a transformation, rather than an amendment of the Permit. This includes the changes to the proposed uses, the changes to the internal layout and external appearance of the building and the modified conditions discussed above. The differences in the appearance and layout, and the permit conditions are a product of the change in the purpose of the uses proposed. In my view, the development approved by the Permit is proposed to be changed, and what results is a different permit, as opposed to a modified permit.[7]
[7]Reasons [31] (citation omitted).
The Tribunal rejected the applicant’s submission that, in the event the Tribunal found that the amendment entailed a transformation, it should be given an opportunity to amend the plans so as to come within the amendment power. The Tribunal said that it was satisfied that the application was ‘misconceived or lacking in substance’ because the proposed amendment was a transformation of what was allowed under the permit.[8] It expressed its conclusion in the following way:
a. The Proposed Amendment is a transformation of what is allowed under the Permit, rather than an amendment to the Permit. The Tribunal therefore does not have the power to consider the application under s 72 of the Act; and
b. The application for review is misconceived or lacking in substance on the basis that the Tribunal cannot exercise its power under s 72 of the Act because the Proposed Amendment would transform, rather than amend the Permit.[9]
[8]Reasons [34].
[9]Reasons [36].
The Tribunal said it would strike out the application under s 75 of the VCAT Act.
The grounds of appeal
The applicant seeks to appeal on two grounds:
Ground one
(a)The Tribunal erred in construing the words ‘amendment to the permit’ in s 72(1) of the PE Act because, in reaching its construction of those words, the Tribunal:
(i)adopted a concept – that of ‘transforming’ a permit – which is not found in, or to be implied by, the text, context or purpose of the PE Act and which is based upon common law principles developed in a different context;
(ii)failed to give proper effect to, and to properly consider, the meaning of the word ‘amendment’ in s 72(1) of the PE Act;
(iii)failed to construe the words ‘amendment to the permit’ in accordance with the text, context and purpose of s 72(1), including by failing to properly consider the intent of s 72(1) that a person who is entitled to use or develop land in accordance with a planning permit should be permitted to apply for an amendment comprising the addition of elements, the deletion of elements and the substitution of elements; and
(iv)had regard to an irrelevant consideration, namely that the proposed use of the development would change from dwellings to a residential hotel, in circumstances where both these uses were Section 1 (as of right) uses under the applicable zone control in the Moonee Valley planning scheme.
Ground two
(a)The Tribunal erred in exercising its power in s 75(1)(a) of the VCAT Act to strike out the application in circumstances where, as a matter of law, this was not open.
The statutory provisions
The focus of the proceeding is the meaning and application by the Tribunal of s 72 of the Act. That section is in the following terms:
Application for amendment of permit
(1)A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit.
(2) This section does not apply to—
(a)a permit or a part of a permit issued at the direction of the Tribunal, if the Tribunal has directed under section 85 that the responsible authority must not amend that permit or that part of the permit (as the case requires); or
(b) a permit issued under Division 6.
Although its application to s 72 is in dispute, the word ‘amendment’ is defined in s 3 to mean:
amendment includes addition, deletion or substitution.
Sections 72 to 76D are found within division 1A of part 4 of the Act. As its terms make plain, s 72 allows for an application to a responsible authority for an amendment to a permit. Sections 73 to 76D then provide the process that must be adopted in response to the application. Given the arguments of the parties, it will be necessary to refer to some of those provisions. The second respondent in particular seeks to derive support for its arguments from the precise text used in some of those provisions. Before turning to the text of those provisions it can be said that, in broad terms, the process for considering an application for an amendment to a permit mirrors that which applies to an application for a permit. In other words, an application for an amendment is treated as if it were an application for a permit. It involves a formal application, referral and notice, the prospect of third party objections, and rights of review.
Section 73 provides that, subject to s 73 itself, ss 47 to 62 (with any necessary changes) apply to an application to the responsible authority to amend a permit as if— (a) the application were an application for a permit; and (b) any reference to a permit were a reference to the amendment to the permit. The qualifications in s 73 concern certain provisions relating to development contributions,[10] and limit the power of the responsible authority to impose conditions by providing that any conditions must relate to the amendment to the permit.[11]
[10]By providing that sub-ss 47(1)(ab), (1A) and (1B) do not apply to the amendment application.
[11]Planning and Environment Act1987 ss 73(2) and (3) (‘PE Act’).
Sections 47 to 62 set out the process for the making and determination of an application for a permit for a use or development of land. Section 47 sets out the formal requirements for the making of an application. Section 50 provides that an applicant for a permit may ask the responsible authority to amend an application before notice is given under s 52 of the Act. Section 51 requires the application be made public and s 52 sets out the persons who must be given notice of the application including adjoining landowners, persons required to be given notice under the planning scheme, persons benefiting from restrictive covenants affecting the land, and any other person if the responsible authority considers that the grant may cause them ‘material detriment’.
Returning to s 50, which deals with amendment before notice to affected persons, sub-ss 50(2) and (5) provide:
Amendment to application at request of applicant before notice
…
(2)An amendment to an application may include—
(a)an amendment to the use or development mentioned in the application; and
(b)an amendment to the description of land to which the application applies; and
(c)an amendment to any plans and other documents forming part of or accompanying the application.
…
(5)The responsible authority may refuse to amend the application if it considers that the amendment is so substantial that a new application for a permit should be made.
Section 50A also permits the responsible authority, with the agreement of the applicant and after giving notice to the owner, to make amendments to the application before notice is given under s 52.
Sections 53 to 56 prescribe various procedural requirements and s 57 provides that any person affected may object to the grant of a permit.
Section 57A, another amendment power, allows an applicant to ask the responsible authority to amend an application after notice is given under s 52. Sections 57A(2) and (5) are in the same form as ss 50(2) and (5) respectively. Sections 57B and 57C deal with giving notice of an application that is amended under s 57A.
Section 60(1) sets out the matters that a responsible authority must consider before deciding an application including the relevant planning scheme,[12] the objectives of planning in Victoria,[13] any objection,[14] and any significant social effects and economic effects which the responsible authority considers the use or development may have.[15] In addition to the mandatory considerations in s 60(1), s 60(1A) identifies matters that the responsible authority may consider, if the circumstances appear to so require, including strategy plans and ‘any other relevant matter’.[16]
[12]PE Act 1987 s 60(1)(a).
[13]PE Act 1987 s 60(1)(b).
[14]PE Act 1987 s 60(1)(c).
[15]PE Act 1987 s 60(1)(f).
[16]PE Act 1987 s 60(1A)(j).
Section 61 provides for a decision on the application and provides that the responsible authority may decide to grant the permit, grant it subject to conditions, or refuse to grant the permit.[17] Once the decision to grant is made, the Act then provides for the subsequent step of issuing the permit.[18] The timing of the issue of the permit depends on whether or not there have been objections to the grant.[19] Section 67 deals with the date of commencement of the permit and s 68 deals with the circumstances in which a permit expires.
[17]PE Act 1987 s 61(1).
[18]PE Act 1987 s 63, if there are no objectors and s 64, if there are objectors.
[19]PE Act 1987 s 64 and s 64A.
Returning then to division 1A of part 4, which as already noted, contains s 72, it is plain that an application to amend a permit is treated in the same way as if it were an application for a permit. The provisions governing procedure including notice, third party objections, and the making of the decision are relevantly the same. The outcome of the application to amend is addressed by s 74 which provides that once it has been decided in favour of an application to amend and if there are no objections under s 57, the responsible authority must issue an amended permit.
Section 75 provides:
Decision to amend permit if there are objectors
Section 64 (with any necessary changes) applies to a decision to grant an amendment to a permit as if—
(a)a reference to a decision to grant a permit were a reference to the decision to grant the amendment; and
(b)a reference to the issue of a permit were a reference to the issue of an amended permit.
Section 76B provides that an amendment to a permit operates from the date specified, or if no date is specified, from the date of decision if it is made by the Tribunal or the day on which the amended permit is issued. Section 76C provides for a review by the Tribunal of a decision relating to an application to amend a permit by adopting the provisions of division 2 of part 4, relating to a review of a decision on a permit application.
Other amendment powers
Although the focus of the proceeding is s 72, there are other provisions that deal with amendments to which the parties referred. In relation to amendments to permits or applications for permits, I have already mentioned ss 50, 50A and 57A. Division 3 of part 4 confers powers on the Tribunal to amend a permit in certain circumstances.
Section 87 confers a power to cancel or amend a permit where there has been a material mis-statement or mistake, failure to comply with provisions, or a material change in circumstances. The power in s 87 is exercisable at the request of certain persons including the responsible authority and the person entitled to use or develop the land concerned.
Section 87A confers additional powers to cancel or amend a permit but only at the request of the owner or occupier or any person entitled to use or develop the land concerned.
In addition to powers of amendment relating to applications for permits, there are a number of powers dealing with amendments to planning schemes.[20] The second respondent accepted that the power of amendment related to planning schemes would include the power to substitute entirely different provisions but said that the word amendment is to be given a narrower meaning in relation to an amended permit.
[20]See for example, PE Act ss 4B, 4J and Part 3.
Legislative history and extrinsic materials
Section 72 was amended by the Planning and Environment (General Amendment) Act2004 (‘the 2004 Amendment Act’) which introduced, for the first time, a broad power of amendment to a planning permit. The stated purpose of the 2004 Amendment Act was succinctly expressed as being to improve the planning system in Victoria.
Amongst the changes introduced were to substitute ss 50 and 50A dealing with amendments to applications for permits, and a new division 1A dealing with amendments to permits. In her second reading speech in support of the Bill, the Minister referred to the changes to ss 50 and 50A, and the introduction of a new s 72.
In relation to the former, the Minister said:
Development proposals often change during the permit process. This is a good thing because it allows a proposal to be improved in response to the concerns of objectors and the responsible authority.
The current process does not recognise this and changes cannot be made to an application after notification has occurred. This means that changes have to be specified as conditions on the permit. Objectors do not get to see the final form of the development and applicants are not provided with an opportunity to fully resolve their application before a decision is made.
At its worst, the current process encourages applications to be modified through a review of a decision rather than during the course of the application.
The bill sets out a new process to allow an applicant to modify an application while the application is being assessed, to respond to any concerns of objectors or the responsible authority. Any modification to an application must not be so substantial as to be a new application.
The responsible authority can consider whether any additional notification is needed where the proposed modifications may cause material detriment.
In relation to the changes to s 72, the Minister said:
Modifying a permit after it is issued
Currently, responsible authorities can make only ‘minor’ changes to planning permits. Many responsible authorities are reluctant to classify a change to a permit as ‘minor’. The alternative is to require a new application to be submitted and the whole proposal is reassessed. This would be costly and inefficient and would open the whole application to reassessment.
The bill allows an applicant to request modification to a permit, including any associated plans, without being unnecessarily restricted to ‘minor’ modifications. The existing provisions in relation to minor amendments to permits are repealed.
The responsible authority will now simply need to consider whether material detriment is likely to be caused by the proposed modifications. Notification will be given in the normal way if the modifications may cause material detriment. The tests for notification will be the same as for any permit; however, only the effect of the proposed modification will be assessed, so that the whole development is not opened to reassessment.
The bill also provides for a review of a decision about modifying a permit by the Victorian Civil and Administrative Tribunal, in the same manner as a decision about the original permit application.
The new process will avoid the need to make artificial judgements about whether the effect of a proposal is minor or not. This means that the processes for determining a permit or a modification to a permit will be essentially the same. A new fee will be prescribed in the planning and environment regulations for this new process.
Allowing an existing permit to be modified will also reduce confusion where a number of ‘live’ but superseded permits continue to exist for a single piece of land.
The reference to ‘minor amendments’ in the second reading speech needs some context to be fully understood. Before the 2004 Amendment Act, s 72 allowed the responsible authority to amend a permit if asked by the owner. That power was subject to s 73 which relevantly provided that such an amendment could only be made if it did not change any conditions, did not increase the detriment to any person, and did ‘not change the use for which the permit was issued other than a minor change to the description of the use’.
Decisions of the Tribunal on s 72
The approach taken to s 72 of the Act by the Tribunal in this case is consistent with many decisions of the Tribunal. The fountainhead of those decisions is the judgment of Brooking J in Addicoat v Fox (No 2),[21] which was not concerned with a power to amend a permit but with the question of whether a permit could be granted that differed from that sought in the originating application. In that context, Brooking J said:
In my opinion, a power to grant a permit subject to conditions authorizes the responsible authority to grant a permit for a use or development which differs from the use or development the subject of the application for a permit, provided that the difference is not so radical as to enable it to be said, viewing the matter broadly and fairly, that to grant a permit on the supposed conditions would not be to grant the permit applied for with modifications, but to grant a different permit. This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without necessarily bringing it about that the permit granted is a different as opposed to a modified permit. Whether more may be countenanced by way of limiting the development or use, as opposed to extending it, before the point is reached at which alteration ceases to be modification and becomes transformation, is a question which I find it unnecessary to decide.[22]
[21][1979] VR 347 (‘Addicoat’).
[22]Ibid 363.
From that decision a general principle or approach has emerged to the effect that the power of amendment in s 72 does not extend to an amendment that would ‘transform’ the permit. For example, in Bestway the Tribunal said:
If a proposed use or development is totally unrelated to the permit as it exists and would entail completely new conditions, I consider that the amendment process would be inappropriate. There would be no point in attempting to amend a permit in such circumstances where nothing would be left of the original permit. An application for a new permit should be made. However, where the permit is not transformed but retains significant elements of its previous content, and simply adds to, expands or alters what has been previously allowed, I consider that amending a permit, rather than always having to apply for a new permit, is now clearly contemplated by the provisions in the Act.[23]
[23]Bestway [2008] VCAT 860, [23] (Deputy President Gibson).
In Bestway, the Tribunal identified the limit on the amendment power by reference to Addicoat. Earlier in its reasons however, it gave a number of reasons why a generous construction to the amendment power should be given. It referred to the concept of a permit as a comprehensive document containing all consents relevant to a piece of land and evolving over time as circumstances change, a business expands or alters, and as further development occurs. Importantly, the processes for an application and amendment are the same, prompting the Tribunal to say:
As a matter of principle, I see nothing more special about an application for a new permit compared to an application for an amendment to a permit. The processes are the same and eligible third persons have the same rights to notice and review in each case.[24]
[24]Ibid [16].
Addressing the need for flexibility in the ‘real world’, the Tribunal added:
The planning system needs to be able to cope efficiently with such changes or other subsequent changes to the use or development of a site for whatever reason. It is important that changes are handled in a way that addresses their substantive merits; ensures that when eligible third persons may be genuinely affected, they are notified and given an opportunity to be heard; and that applications are processed and decisions are made about changes efficiently and in a timely way. The reforms to the Planning and Environment Act 1987 by the introduction of Division 1A and section 87A enables these objectives to be achieved by focussing on the proposed changes, rather than re-opening debate about the whole proposal. Importantly, what happens on a site, can be managed through a single permit document, which is a more transparent process and less likely to result in inconsistencies than having multiple permits for the same site accumulate over time.[25]
[25]Ibid [19].
As is apparent, and despite those observations, which supported a generous construction of the amendment power, the Tribunal applied the Addicoat approach.
In Central Estate Properties, another case concerning s 87A, the Tribunal identified as a threshold issue the question whether what was proposed in that case was ‘properly characterised as an amendment’. After referring to Addicoat, the Tribunal continued:
It is not possible to lay down a universal rule which identifies where the line is to be drawn between amendment and transformation. It is possible only to say in any particular case on which side of the line the proposal falls. However I consider that the line must be drawn in a town planning context so the question is whether from a town planning perspective what is proposed is a modification of what the permit allows, or alternatively a transformation into something different. If it is the latter it goes beyond the jurisdiction conferred by section 87A and requires a new application for permit with all the statutory process that entails.[26]
[26]Central Estate Properties [2014] VCAT 343, [20] (Senior Member Wright).
In so concluding, the Tribunal contrasted s 87A of the Act with the power given by clause 64(3) of schedule 1 of the VCAT Act to amend an application for a permit, which empowered the Tribunal to amend the application to substitute a use or development which was different from the use or development applied for. The Tribunal held that this allowed an amendment which does transform the application.
Central Estate Properties involved a proposal to amend a permit that allowed for the development of a retirement village, so as to allow for the construction of residential units in its place. The Tribunal noted that both a multi-dwelling development and a retirement village fell within the rubric of accommodation in the relevant planning scheme but that there were differences. The Tribunal concluded that a retirement village connotes communal living that may entail a different scale and density of development. For that reason, the retirement village involved a ‘different planning concept’ and the proposal was a transformation of the development and therefore it ‘cannot be done using the mechanism of section 87A of the Act.’[27]
[27]Ibid [27].
A similar process of reasoning can be seen in Alkero which involved similar facts to those in Central Estate Properties. In Alkero, the applicant wanted to amend a permit to construct an aged care facility into a permit to enable the use of the building for dwellings. The Tribunal, again as a threshold issue, held that the proposed change involved a transformation and was outside the power in s 87A. The Tribunal said that the issue was not so much about the extent of change to the approved envelope within which the buildings were to be constructed, but that ‘in a town planning sense’, the right to construct buildings and works for an aged care facility was fundamentally different to the right to construct buildings and works for a multi-dwelling development.[28] It also took into account that the appearance and layout of the proposed development were qualitatively different and the proposed car parking provisions were significantly increased both of which were a function of the change in use. The vice was that the proposal transformed the permit ‘into something different’.[29]
[28]Alkero [2018] VCAT 1120, [24] (Deputy President Gibson and Member Sibonis).
[29]Ibid [25].
In order to expose further the reasoning underpinning this line of cases, it is useful to refer to one other decision.
In Coles Property, the Tribunal explained that the power in s 87A of the Act is a power to amend and not a power to transform a permit so that what results is something completely different. In reaching that view, the Tribunal said that the use of the word ‘amendment’ in other parts of the Act, including in the context of amendments to planning schemes, was irrelevant and the definition of ‘amendment’ in s 3 did not change its view.[30] It said that the ‘concept of transformation’ had been widely applied since Addicoat and that it was used as a question of power.[31]
[30]Coles Property [2014] VCAT 342, [41]–[42] (Deputy President Gibson and Member Wilson).
[31]Ibid [44].
The Tribunal said that the rationale for the power of amendment was to ‘enable the planning system to function efficiently in the real world’[32] and that where a completely different proposal is involved, the ‘structure of the Act contemplates that a new permit application will be made’.[33] The Tribunal cautioned:
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.[34]
[32]Ibid [54].
[33]Ibid [55].
[34] Ibid.
A number of themes emerge from the above decisions. First, as a matter of text, to amend a document or instrument means to change it, provided that some aspect of the original thing remains. Second, as a matter of structure and policy, where there is to be a transformation, the Act requires a new permit to be applied for. To keep a permit alive but at the same time to transform its content is inconsistent with orderly planning. Third, to allow a transformation ‘has implications for existing use rights’.[35] This last point requires some explanation. Essentially it starts from the premise that permits confer, or recognise, existing use rights[36] and an amendment might allow a permit holder to obtain a permission for a use or development that was allowed at the time the permit was granted but prohibited at the time of the amendment. In other words, the amendment process would produce a different planning outcome than would be the case if a new permit was applied for. Implicit in this argument is that a transformational amendment would confer some illegitimate or unintended benefit on a permit holder or a circumvention of current planning prescriptions.
[35]Ibid.
[36]Eg. Elwick 9 v Freeman [2018] VSC 234.
As will appear, the second respondent relies on each of these arguments.
Applicant’s submissions
The applicant submitted, by reference to familiar decisions of the High Court,[37] that the meaning of s 72 of the Act is to be discerned from a close reading of the text read in its context. It submitted that, rather than starting with and giving primacy to the text, the Tribunal has applied a different test, namely, whether the proposed change to the permit amounts to a transformation. It said this puts an impermissible gloss on the language of the statute which cuts down the ordinary language which is designed to confer a facultative power without any limitation or constraint.
[37]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47]; [2009] HCA 41 (Hayne, Heydon, Crennan and Kiefel JJ); Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117,134 [27]; [2012] HCA 19 (French CJ, Crennan and Kiefel JJ); Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531, 556–7 [65]; [2014] HCA 9 (Gageler and Keane JJ); SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14]; [2017] HCA 34 (Kiefel CJ, Nettle and Gordon JJ).
Second, the Tribunal failed to apply the ordinary and natural meaning of amendment being an alteration and, in the context of a legal instrument, to alter its legal meaning.[38] It submitted, the ordinary meaning does not carry any express or implied limitation to the effect that, at some point, the changes become so great that they cease to reflect an amendment and constitute a transformation.
[38]Thiess Pty Ltd v Hall [2015] 2 Qd R 125, 133 [23]; [2014] QCA 129 (Holmes JA, McMurdo P and Morrison JA agreeing); Kartinyeri v The Commonwealth (1998) 195 CLR 337, 375 [67]; [1998] HCA 22 (Gummow and Hayne JJ).
In its written submissions, the applicant accepted that the term ‘amendment’ is not without bounds, pointing to a decision of Cavanough J, in a different context, that an amendment requires the thing in question to remain in existence.[39] It said that this is satisfied because after the changes that are sought, the permit will remain in force and ‘the fundamental requirements of the permit’ will continue.
[39]Port Phillip Scallops Pty Ltd v Minister for Agriculture [2018] VSC 589, [112].
In oral submissions the applicant went further and submitted that because amendment includes substitution, it is possible to replace entirely the existing content of a permit. It submitted that the only limitations that exist on the power in s 72 are that the permit that is being amended is in force, in the sense of an extant and continuing entitlement, and that it relates to the same land. It submitted that the breadth of the power to amend does not mean that the amendment will be granted and that questions of whether the amendment is appropriate or involves a change in planning use and the like are to be addressed on the merits of the application rather than as a constraint on power. In that context the applicant accepted that, in the exercise of the power to amend, the responsible authority could refuse the amendment on the basis that a fresh permit would be more appropriate having regard to the nature and extent of the changes. Such a matter could, it was said, amount to a relevant matter and therefore be taken into account in considering the merits of the application under s 60(1A)(j) of the Act.
Third, the adoption of the approach taken by Brooking J in Addicoat was erroneous because that case was not concerned with a power to amend but with a different power that was conferred in different terms. Addicoat was not concerned with the meaning of the word ‘amendment’ but with the power to grant a permit for use and development that differed from that sought in the application for a permit.
Fourth, the applicant submitted that, in any event, the proposed change did not amount to a transformation because both a dwelling and a hotel are forms of accommodation and both are uses ‘as of right’ under the planning scheme that do not require a permit.
Under cover of ground 2, the applicant submitted that the Tribunal erred in giving summary judgment under s 75 of the VCAT Act because it could have made changes to the proposal so as to bring it within the amendment power. As noted, in fact the applicant sought and was granted permission to amend the permit by a differently constituted Tribunal in the second VCAT decision.[40] The applicant accepted that, if it succeeds on ground 2, it would have established an error of law but there would be no reason to remit the matter because it has already obtained an amended permit reflecting changes that it would have sought at the hearing had summary judgment not been entered.
[40]Mondib Group Pty Ltd v Moonee Valley City Council [2021] VCAT 1027.
The second respondent’s submissions
The second respondent submitted that the finding made by the Tribunal, that the proposed changes did not involve an amendment, was a finding of fact that was open to the Tribunal and cannot be challenged in an appeal on a question of law under s 148 of the VCAT Act.
The second respondent submitted that the power to amend in s 72 of the Act has limits and that there comes a point at which the changes are so profound that they cease to be an amendment and constitute an impermissible transformation. The existence of such a line of demarcation is consistent with authority in the Tribunal which, it was said, this Court should accept unless there are compelling reasons to come to a different view.
The second respondent submitted that, as a matter of ordinary language, to amend means to alter in the sense of modify or make different in some particular way whereas to transform means to change to something of a different form or to ‘change in appearance, condition, nature or character, especially completely or extensively’.
The second respondent said that although Addicoat involved a different power, the principle is the same and the reasoning should be adopted. It said that the dichotomy between a modified permit and a different permit that Brooking J referred to can be applied with equal force to s 72 of the Act.
The second respondent submitted that the definition of amendment in s 3, which includes, addition, deletion or substitution does not apply to s 72. It accepted that the definition will apply unless there is a contrary intention and also acknowledged that, by reason of s 39 of the Interpretation of Legislation Act1984 and subject to contrary intention, where a word or phrase is given a particular meaning the same meaning will be given to other parts or speech and grammatical forms of the word. It said a contrary intention is manifested once the provision is read as a whole and because s 74 of the Act refers to an ‘amended permit’ and not an amendment to the permit or amendment. This was said to reinforce the construction that the section is concerned with limited changes to an existing permit and not the creation of, what is in substance, a new or different permit.
On ground 2, the second respondent accepted that if the applicant succeeds on ground 1 then it will also succeed on ground 2. However, if the Tribunal was correct to apply the ‘transformation test’ then it was open to it to conclude, in the exercise of its discretion, that s 75 of the VCAT Act applied.
Analysis
Ground 1
The starting point must be the text of the Act. Section 72 provides for an application for an amendment to a permit. Sections 74, 75 and 75A provide for a decision to grant an amendment and the issue of an amended permit.[41]
[41]By adopting ss 64 and 64A of the PE Act 1987.
The word ‘amend’ means to alter or change,[42] and in a legal context often refers to a change in legal meaning.[43] In Attorney General (WA) v Marquet,[44] the High Court said the central meaning of ‘amend’ is to alter the legal meaning of an Act or provision short of entirely rescinding it.[45] An amendment to a document or instrument often describes a change to an existing and continuing thing, and to that extent may be contrasted with a repeal, cancellation or rescission. In contrast to an event that brings the permit to an end, the word ‘amend’ does not carry with it any particular limitation on the extent of the change that may be involved.
[42]Macquarie Dictionary (online at 3 November 2021) ‘amend’; Oxford English Dictionary (online at 3 November 2021) ‘amend’.
[43]Kartinyeri v The Commonwealth (1998) 195 CLR 337; [1998] HCA 22.
[44](2003) 217 CLR 545; [2003] HCA 67.
[45]Ibid 564 [46] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
In some statutory contexts, a distinction is drawn between an amendment and a repeal.[46] However, even where an Act uses either or both of the terms it is clear that there may be an overlap. The repeal of a provision and the re-enactment of a provision in its place with an enlarged scope has been regarded as an amendment.[47]
[46]Mathieson v Burton (1971) 124 CLR 1; [1971] HCA 4.
[47]Beaumont v Yeomans (1934) 34 SR (NSW) 562, 568–70 (Jordan CJ).
Rather than limiting the width of the word ‘amendment’, the Act defines the term in a non-exhaustive way so as to include an ‘addition, deletion or substitution’. That strongly suggests that, within the Act, unless a contrary intention can be discerned, the word is to have a wide meaning that includes replacing the existing text with a different text. It is true that these words describe a mechanism by which a change to a permit may be effected, however, the process of substitution suggests the capacity to bring about a substantial change free of the existing text. I can discern no contrary intention in division 1A that would avoid the definition.
I reject the submission of the second respondent that s 74 of the Act uses the phrase ‘amended permit’ rather than ‘amendment to a permit’ deliberately and for the purpose of conveying a narrower meaning. First, I do not think the different forms of the word carry with it different meanings. Second, sub-ss 73(1)(b), (2) and s 75 of the Act all use the phrase amendment to a (or the) permit.
The only express limitation in s 72 of the Act itself is the requirement that the holder is entitled to use or develop land in accordance with a permit. That carries with it a requirement that the permit be in force at least at the time the application is made. Therefore, it would not be open to make an application to amend a permit that has expired under s 68 of the Act. Further, a permit may, in certain contexts, become spent or cease to be an operative permission, for example when a development has been completed. In those cases there would be nothing to amend.
In considering the breadth of the power to amend in s 72 of the Act, it is also instructive to contrast the language of s 72, which contains no relevant express limitations on the power of amendment, with the language used in ss 50(5) and 57A(5), both of which were introduced at the same time as s 72. Although those provisions deal with applications rather than permits, the relevant verb ‘amend’ is used in each. Importantly, where the Parliament sought to address the extent of the proposed change, it did so expressly and with a specific formulation that made it clear that the responsible authority could refuse the amendment if it considered that the amendment was so substantial that a new application for a permit should be made. In doing so, rather than confine the width of the power, those sections make clear that the responsible authority has the power to require a fresh application. I agree with the second respondent[48] that s 50(5) of the Act does not apply to the responsible authority in relation to an application to amend under s 72, and I do not need to say whether it would apply to an application to amend an amendment application, but the point is one of contrast with s 72.
[48]In post-hearing submissions filed with leave and at the invitation of the Court on the relevance of s 50(5) of the PE Act 1987.
The effect of the second respondent’s submission is to imply a limit on the power of amendment in s 72 of the Act. Since the Parliament has expressly addressed a limitation on an amendment application in a slightly different context but not done so in relation to s 72 suggests that the implication should not be drawn. The second reading speech reveals that the contrast was deliberate, in the sense that attention was specifically drawn to qualifying the exercising of the power in ss 50 and 57A.
The form of the amendment to s 50(5) illustrates that there could be a number of ways in which the issue might be addressed. Given that there is no single way to deal with the supposed problem of an excessive amendment, it is not easy to formulate a limitation in a precise way, and this also tends against the implication. The approach taken by the Tribunal in this and other cases introduces a level of uncertainty as to when the power exists. The concept of transformation is somewhat vague and although not impossible to apply, leaves a relatively wide area of decisional choice. Of course, discretions are common in planning but the content of them more comfortably arises in the exercise rather than the existence of a specific power.
Purpose
As the Tribunal observed in Bestway, a broad power to amend ensures that changes are handled in a way that addresses their substantive merits; ensures that when eligible third persons may be genuinely affected they are notified and given an opportunity to be heard; and ensures that applications are processed and decisions are made about changes efficiently and in a timely way. The achievement of this purpose is advanced by a broad power of amendment.
Although the second reading speech largely paraphrases the provisions, it is also revealing of a specific purpose to which the new s 72 was directed. The Minister referred to the arguments that were involved under the earlier s 72 as to what was a ‘minor amendment’. There is no suggestion that the Parliament intended that there should be similar, potentially fine grained, arguments about whether the amendments were transformative and therefore beyond power. The Tribunal’s construction introduces a potential problem that the amendments were designed to avoid.
Context
The construction adopted in relation to s 72 of the Act must take into account the structure of the Act and the possibility that a broad construction might undermine aspects of the scheme embodied in the Act. It is at this point that the reasoning in Addicoat has been seen to be relevant.
In my view, Addicoat is of little assistance in the construction of the amendment power in s 72 of the Act. Most obviously, that decision is not concerned with an amendment power.
Second, the lynchpin of the reasoning is that a power should not be read in a way that undermines or circumvents particular restrictions that are contained within the scheme. In Addicoat, Brooking J was concerned to avoid a result that meant that a permit could be granted in terms that had not gone through the processes of advertisement and objection. To grant a permit that was different in material respects to that which was sought in an application would deny the opportunity of third parties to object. The point is familiar enough.
That line of reasoning has little or no relevance to s 72 because the amendment application is subject to exactly the same process as would attach to a new permit application. With some minor exceptions,[49] the procedure that an application for an amendment must observe is the same that would attach to a new permit application.
[49]Eg. PE Act s 73(1A).
The second respondent submitted however, that the process of amendment would allow the holder to circumvent or avoid current planning controls that would apply to a fresh permit application. I do not find this argument persuasive.
The matters that the responsible authority must take into account or may take into account in deciding an amendment application made under s 72 are set out in s 60 of the Act. The significance of the terms of the existing permit and the permissions granted under it will depend on the nature of the changes and all of the relevant matters to which the decision maker must or may have regard.
In exercising the power of amendment on an application under s 72 of the Act, the responsible authority will be focused on the proposed changes, and any conditions that may be imposed must relate to the changes. Importantly, the greater the changes the less significant the permissions in the existing permit might be. That does not mean that the responsible authority must ignore those parts of the permit that are not the subject of amendment and again, the broader the change, the wider the potential scope for conditions to be imposed.
It emerges clearly from the decisions in the Tribunal applying the ‘Addicoat test’ that to allow a transformative amendment might not be consistent with good planning practice and current controls. So much may be accepted. Indeed, the applicant accepted the validity of that proposition. However, those matters go to the merits of the application rather than the width of the power to amend. In this case, the application was dismissed on a summary basis because the Tribunal considered the proposed amendments to be transformative. There was no consideration of whether the changes could or should be permitted having regard to the matters that inform the exercise of the power, which are the same as those that apply to an application for a permit. It is neither necessary nor desirable for me to say how the presence of existing permissions in the permit might influence any application to amend. The outcome of the amendment process will involve the consideration of many disparate matters. I have little doubt that, having regard to ss 60 and 61, the breadth of the decision making power on an application to amend is adequate to deal with any contrivance or illegitimate grandfathering based on an existing permit.
I do not consider that the factors that inform the exercise of the power should be used to constrain the power itself.
Conclusion on ground 1
Section 72 allows a person to use or develop land in accordance with a permit to apply for an amendment to the permit. An amendment is an alteration to the terms of the permit. The text, purpose and context of the provision does not support a limitation on the power of the kind adopted by the Tribunal. The word amendment does not carry any particular limitation of the kind ascribed by the Tribunal and neither the purpose or overall scheme of the Act requires a limitation to be applied. A so called transformative change would, if made, still be an amendment to the permit. The changes in an application to amend may be profound and entail a different use or a different development of the same land but they do not, for that reason, fall outside the power contemplated by s 72.
The Tribunal erred in dismissing the application on the basis that the proposed changes were transformative. The nature and extent of the changes were properly a matter to be assessed on the merits of the application and not at the threshold. I would uphold ground 1.
Ground 2
Given that I would uphold ground 1 it is unnecessary to decide ground 2. However, in deference to the arguments of the parties, I will deal with it, and can do so briefly.
On the assumption that the Addicoat test applied to s 72, the issue raised by ground 2 is whether the Tribunal was correct to dismiss the proceeding under s 75 of the VCAT Act. In Chopra v Department of Education,[50] the Court of Appeal said of s 75:
In our opinion, the key to resolving the issues raised by the parties is the nature and scope of s 75 of the VCAT Act. A provision similar to s 75 is typically found in the enabling Acts of most courts and tribunals. Its purpose is to enable the court or tribunal to protect the integrity of its processes by expeditiously disposing of a proceeding without a full hearing on the merits where the proceeding is frivolous, vexatious, an abuse of process, misconceived or lacking in substance. The expressions ‘frivolous’, ‘vexatious’ and ‘abuse of process’ have well established meanings which do not require exposition in the present case. The expressions ‘misconceived’ and ‘lacking in substance’, in essence, refer to proceedings in respect of which it is readily apparent that they are hopeless and bound to fail.[51]
[50][2019] VSCA 298.
[51]Ibid [134] (Tate, Whelan and Kyrou JJA).
In my view, in circumstances where the applicant wanted a further opportunity to revise the amendment application, this was not an appropriate case for the application of s 75. The utility of allowing the matter to proceed to trial can be seen in the course of events that followed the summary dismissal of the Tribunal application.
As things transpired, the applicant again applied to amend the permit but in a less drastic way by providing for only a small number of floors to be converted to a hotel. Ultimately, that application found its way to the Tribunal and was successful and the permit was amended.[52] The applicant acknowledged that given the amendment was approved there would be no point in remitting the matter if it only succeeds on ground 2. I agree.
[52]Mondib Group Pty Ltd v Moonee Valley City Council [2021] VCAT 1027.
I have also considered whether the fact that a decision to allow an amendment was subsequently made by the Tribunal might have rendered the original decision of the Tribunal, which is the subject of the present application, moot. However, I accept the applicant’s submission that if it succeeds on ground 1, it is entitled to have its original amendment application reconsidered by the Tribunal.
Conclusion
I would give the applicant leave to appeal and uphold both grounds of appeal. The decision of the Tribunal should be set aside and the application remitted for hearing.
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