VCAT’s power to amend a permit granted by consent.
I have previously written on section 87A of the Planning and Environment Act which allows the Tribunal to amend a permit granted by the Tribunal.
In Exploration Lane Developments Pty Ltd v Melbourne CC  VCAT 152, the Tribunal has used this power to allow amend to plans to increase the height of a building by 9 storeys.
The case is interesting because it involves permit issued by the Tribunal as a consequence of an application for a consent order by the parties. Council argued that these circumstances made it inappropriate for the use of section 87A. The Tribunal said:
- As to background this hearing, the first Tribunal decision about this matter, was based on an application for a consent order. There was no mediation before the Tribunal and no hearing at which the Tribunal considered the proposal’s merits.
- The consent order did not involve any concessions by the permit applicant in relation to the building’s height as indicated on the drawings that Council had considered.
- Section 87A of the Planning & Environment Act 1987 provides a wide discretion to the Tribunal, stating that the Tribunal may amend a permit issued at its direction if the Tribunal considers that “it is appropriate to do so”. The Act does not specify any relevant considerations. It now appears to be widely accepted that the scope of the Tribunal’s consideration should be limited to the effect of the amendment as it would vary the approved development, rather than undertaking a review of the amended proposal de novo.