VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P738/2023
Permit Application no. PP18/01107.01	
CATCHWORDS	
Boroondara Planning Scheme; Heritage Overlay; Section 127 and Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); Amendment of application for review as a result of expired permit; Variation of a restrictive covenant.	

Applicant	Stuart Lewin	

Responsible Authority	Boroondara City Council	
SUBJECT LAND	34 Sackville Street
KEW  VIC  3101	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	18 August 2023	
DATE OF ORDER	25 August 2023	
CITATION	Lewin v Boroondara CC [2023] VCAT 991	

Order
Strike out application 
1	The application is struck out as misconceived under s 75(1) Victorian Civil and Administrative Tribunal Act 1998 (Vic) for the following reasons:
(a)	Permit PP18/01107, which is sought to be amended by the application, has expired.

Judith Perlstein
Member	

Appearances
For Stuart Lewin	Daniel Robinson of Counsel, instructed by Chris Wiseman, lawyer, Mills Oakley Lawyers.	
For Boroondara City Council	Daniel Murphy, town planner.	

Reasons
1	The practice day hearing was convened for the following purpose:
a.	to consider the jurisdiction of the Tribunal to consider the application given the planning controls that apply or other statutory provisions,
b.	if it is found there is a valid application before the Tribunal:
i.	to consider the applicant and responsible authority's request for consent orders in accordance with Proposed Minute of Consent dated and filed 23 June 2023,
c.	to consider the future conduct of the proceeding.
2	Planning permit PP18/01107 was issued by the council on 1 May 2019 with respect to land at 34 Sackville Street, Kew, for:
Part demolition and construction of alterations and additions to existing dwelling in a Heritage Overlay and variation to restrictive covenant in accordance with endorsed plans.
3	An application was made to the council in December 2022 to amend the permit, described by the applicant in its written submissions as follows:
7.	The applicant proceeded with works on the subject site, which are now complete.
8.	The works as completed differ from those endorsed under the permit in certain discrete aspects regarding driveway materials, front fence location, and the replacement of unfinished terracotta roof tiles with new ‘charcoal’ glaze terracotta tiles.
9.	On around 13 December 2022 the applicant lodged an application under s 72 of the Planning & Environment Act 1987 (P&E Act) to amend the permit, to regularise the works as constructed (amendment application).
4	The application before the Tribunal is an application to review the refusal of the council to amend the permit in the manner sought.
5	In assessing the application for review documentation, the Tribunal reviewed the expiry condition of the permit (condition 7) and asked the parties whether the permit was a live permit. Although the council had assessed the amendment application as if this was the case, after further consideration both parties agreed that the permit had expired for the following reason: 
12. 	The Permit which is the subject of this Application was issued by Council on 1 May 2019. It has not been extended at any point since it was issued.
13. 	The expiry condition on the Permit is outlined at paragraph 5 of this written submission. Notably, the things that cause the permit to expire are in the alternative (“or”).
14. 	An instrument to vary the restrictive covenant has not been certified which was required to be done within two years of the issue date of the permit. That date was 30 April 2021.
15. 	As the restrictive covenant was not certified within two years of the issue date of the permit, there is no dispute from Council that the permit has expired.
6	As set out by the applicant in its written submissions, at paragraph 12, consequently:
a. 	the permit expired on 1 May 2021 by operation of condition 7(c); and
b. 	by reason of the six-month time limit to request the extension of an expired permit under s 69(1), and the limitation in s 81(3) on seeking an extension from the Tribunal unless the underlying request to the responsible authority was made within time, the P&E Act now provides no possibility to extend the permit.
7	Not only was the variation not certified within two years, leading to the permit expiry, condition 5 of the permit required the variation of the covenant to be registered prior to the commencement of any building and works. The entire proposal was constructed in breach of this condition.
8	In an effort to allow the application to proceed through the Tribunal process, the parties filed the following proposed consent orders:
1 	Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic):
(a) 	The Applicant’s application to amend their planning permit under section 72 of the Planning and Environment Act 1987 (PE Act) is amended to be an application for a new planning permit under section 47 of the PE Act.
(b) 	The Council’s notice of refusal to amend the permit is amended to be a notice of refusal to grant a new permit.
(c) 	The application for review under section 77 of the PE Act against the refusal of an amendment is amended to be against the refusal to grant a new planning permit.
(d) 	The application is amended to be an application for a new permit in the same form as planning permit PP18/01107 issued on 1 May 2019 with the changes sought in the permit amendment application PP18/01107.01.
9	The orders also included notice to be provided to beneficiaries of the covenant, referral authorities and persons who may have a material interest in the application. 
10	Parties were ordered to file submissions in advance of the practice day hearing. Both the applicant and the council did so, and both submitted that the Tribunal has the ability to make the consent orders sought, through the use of section 127, and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
11	Section 127 provides that, at any time, the Tribunal may order that any document in a proceeding be amended.
12	Clause 64 of schedule 1 provides that:
64 	Amendment of application
(1) 	This clause applies to the following proceedings—
(a) 	a proceeding for review of a decision under the Planning and Environment Act 1987 of a responsible authority in respect of an application for a permit or the failure of a responsible authority to grant a permit;
…
(2) 	At any time in a proceeding to which this clause applies the Tribunal may make any amendment it thinks fit to the application for the permit, works approval or licence the subject of the proceeding.
(3) 	Without limiting the generality of subclause (2), the Tribunal may make an amendment to an application for a permit under the Planning and Environment Act 1987—
(a) 	as to a use or development different from the use or development mentioned in the application;
(b) 	as to the land to the use or development of which the application relates.
(4) 	This clause is in addition to, and does not limit or affect section 127.
13	The parties brought several Court and Tribunal decisions as examples of when the Tribunal has used its power under these provisions, including cases that are the converse of this, where the Tribunal has amended a permit application under section 47 of the Planning and Environment Act 1987 (Vic) (‘PE Act’) to become an application to amend a permit under section 72 of the PE Act.
14	I accept the following submissions of the applicant with respect to the broad powers of the Tribunal as a result of these provisions, and the role of the Tribunal as set out in sections 97 and 98 of the VCAT Act:
5. 	And as Senior Member Byard put it in Ritchie’s Stores Pty Ltd v Bass Coast SC, the purpose of the powers of amendment in s 127 and cl 64 (and similar powers, like cl 62) is:
… to enable matters to be determined, rather than avoided, and determined on their real and substantial merits, not on the basis of technical points or slip-ups.5
6. 	He went on to observe that is consistent with ss 97 and 98 of the VCAT Act, which enjoin the Tribunal to act fairly and according to the substantial merits of the case, with as little formality and technicality and as much as speed as the requirements of the legislation and a proper consideration of the matters before it permit. 
7. 	The Tribunal’s powers under s 127 and cl 64 of schedule 1 have been variously described as ‘wide ranging’, ‘discretionary and unrestricted’, and as examples of the Tribunal’s ‘very wide’ powers to ‘cure defects in documents or procedures’.6
8. 	Osborn J, in Roads Corporation v McCarthy, described cl 64 as ‘a broad power to amend which is clearly directed to facilitating appropriate outcomes in accordance with the merits of the situation’.7
5 	(2003) 14 VPR 82 at [8] (cited by Quigley J in Mondib Group Pty Ltd v Moonee Valley CC [2023] VCAT 369 at [148]).
6 	Pizer’s Annotated VCAT Act (7th ed) at [VCAT.127.40] and [VCATAS1.64.20] (respectively citing MIG Pty Ltd v Glen Eira CC [2010] VCAT 1761 at [4]; Yim v Victoria [2000] VCAT 821; Phan v Maribyrnong CC [2009] VCAT 68 at [7]).
7	[2004] VSC 369; (2004) 137 LGERA 433 at [50].
15	However, even if I find that the Tribunal can use these provisions to amend the application in the manner sought, I am not persuaded that it is appropriate to do so in this case. The council submitted that the Tribunal should be guided by concepts of transparency, equity and procedural fairness and the applicant referred to the Tribunal’s use of these powers whenever the interests of justice allow. 
16	It is in consideration of these concepts that I find that the most appropriate course of action is to strike out this proceeding, which will require the applicant to make a fresh application to the council for planning permission for buildings and works in a Heritage Overlay and for variation of a restrictive covenant.
17	I make this finding for the following reasons.
18	On its face, this is an application to amend a permit which has expired. For that reason, the application is misconceived, and the Tribunal is unable to review a decision made with respect to an expired permit.
19	The solution proposed is for the Tribunal, not to cure that defect, because it cannot, but to amend the application itself to become a different application that could have been considered by the council and that can be reviewed by the Tribunal.
20	The parties submitted that the consequence of not amending the application would be a new application to the council, which would be refused in the same way and would result in another application for review to the Tribunal on the same terms as this application, involving wasted time, expense and resources for all involved. The parties submitted that there were no material intervening changes since the original permit was granted and that any potential prejudice could be overcome by giving notice to anyone whose interests may be affected.
21	I do not agree with these submissions. I accept that much time has been ‘wasted’ due to an application for amendment being made with respect to an expired permit, and due to that application being assessed and refused by the council, and an application for review being lodged with the Tribunal. However, there are several differences, in this case, between an application for amendment to this permit and a new application.
22	The amendment application involved amendments to a permit already approved and was exempt from third party notice and review requirements. The council was required to consider only the amendments sought, without an analysis of the entirety of the proposal.
23	A new application, in this matter, would require an assessment of the entire proposal, and would generally be accompanied by a full set of application plans and other supporting material as required by the Heritage Overlay and its schedule, as well as consideration of the decision guidelines included in the overlay and its schedule. In addition, a new application under the Heritage Overlay would not be exempt from notice and review requirements. 
24	A new application would also include an application to vary the restrictive covenant. There is a separate permit trigger associated with an application for variation, which was not considered by the council in the amendment application. In addition, notice must be provided to beneficiaries of the covenant with respect to an application for variation. 
25	The officer’s report assessing the original application for permit stated that there were no beneficiaries adjacent to the subject site. However, the quantity and location of the beneficiaries was not clear from the report. 
26	As this matter was not the subject of submissions in advance, the parties were not prepared to answer questions with respect to the notice provided to beneficiaries at the time of the original application. The applicant said that they thought there was only one beneficiary but was not certain. The council confirmed that 14 properties were notified of the application, but it does not appear that beneficiaries were notified separately. It seems that the same notice was provided to the 14 properties, which advised that an application had been made under the Heritage Overlay and that a variation of the covenant was sought. However, this form of notice would not have made it clear to the beneficiary that they were a beneficiary and were being notified of the application for variation in that capacity. 
27	I am, therefore, concerned that the beneficiaries (even if only one) to the covenant were not sufficiently notified initially. 
28	The test for this application is the test under section 60(5) of the PE Act, which requires the responsible authority to determine that the owner of any land benefited by the restriction will be unlikely to suffer any detriment of any kind (including any perceived detriment) as a consequence of the variation of the restriction. 
29	Several Tribunal decisions have referred to the ‘extraordinarily high’ bar set by this provision.
30	If a new application was made to the council, formal notice would be required to be given to the beneficiaries and the council would need to consider whether this test is met, and consider any objections filed by beneficiaries.
31	In addition, the parties submitted that there were no material changes since the original permit had been granted. After further discussion, it became clear that Amendment C354 was introduced to the Scheme on 26 May 2022 which, among other things, replaced the Local Planning Policy Framework with a new Municipal Planning Strategy at Clause 02, local policies within the Planning Policy Framework at Clauses 11 to 19 and selected local schedules consistent with changes to the Victoria Planning Provisions introduced by Amendment VC148 and The Ministerial Direction - The Form and Content of Planning Schemes. While these changes are intended to be policy neutral, this is not always the case and, if a fresh application for permit were made, the council would assess it under the current policies that apply. This assessment has not been undertaken. 
32	It may be that a full assessment of the application in 2023, considering both the application under the Heritage Overlay and the application for variation of the restriction, and taking into account the current policies within the Boroondara Planning Scheme, would not result in the same decision. In addition, the application itself is different, including the amendments sought to the proposal originally approved. It may be that when the council considers the new proposal in totality, from a first principles approach, without being confined only to the amendments, it will not reach the same conclusions as it did for the amendment proposal.
33	The parties submitted that any concerns, including notice, can be resolved in the lead up to the hearing. I am not satisfied that this is appropriate for the Tribunal in these circumstances. While the Tribunal has broad powers to amend the application under review, it is still tasked with reviewing the council’s decision, as opposed to a matter in the Tribunal’s original jurisdiction. 

34	In circumstances where the council did not have before it an application for permit under the Heritage Overlay or an application for variation of the restriction, and where notice has not been provided to third parties or beneficiaries and the responsible authority has not considered the application in totality, or considered the application after hearing from potentially affected persons, it is not sufficient to simply amend the application, require notice to be provided and proceed with the hearing.
35	These are matters that should be dealt with prior to an application for review to the Tribunal. The Tribunal regularly assists parties in resolving disputes by extending or abridging time, facilitating different hearing dates, and using its powers to amend applications or amend plans to ensure that matters can be resolved efficiently. However, as noted earlier, the Tribunal is required to act fairly and according to the substantial merits of the case, with as little formality and technicality and as much as speed as the requirements of the legislation and a proper consideration of the matters before it permit. 
36	In this case, the substantial merits have not been assessed at first instance, notice has not been provided and a proper consideration of the matters will only occur once the application has been made to the council and the merits of that application, as well as any objections, have been considered fully.
37	I consider that it would be both difficult for the Tribunal to facilitate, and potentially prejudicial to potential third parties and beneficiaries, to provide a process where the application is amended as sought without any changes to the actual documentation that accompanied the amendment application. It would also be difficult for notice to be provided in a manner that would clearly explain the application to a potential objector or a beneficiary, given that the amendment application did not involve the variation of the restriction or the application in its entirety. 
38	I find that, in the interests of justice and efficiency, the better course is for a fresh application to be made to the council and for that application to be processed in the usual way, including notice to be provided as appropriate.
39	I have, therefore, made orders striking out the application for review of the amendment of the permit.

Judith Perlstein
Member