• VCAT

November 17, 2022

Section 72 vs Secondary Consent – How are Planning Permits Amended?

The processes involved in obtaining a planning permit are often lengthy. Council planning departments face increasing scrutiny for delays in delivering permits to applicants. In following the question of “why does it take so long to obtain a permit?”, the question of “how do I amend my planning permit” is also quite common. In the development industry planning permit amendments come in all forms and scales. Amendments are often required to allow variations to residential and commercial development, whilst conditions relating to operating hours and patron numbers are varied from time to time also.

The Planning and Environment Act allows permits to be amended in three ways: by way of Secondary Consent, via the provisions of Section 72 of the Act or via Section 87A of the Act. This article will address the first two options, which are the two primary pathways to amend planning permits.

Secondary Consent

An application for secondary consent is commonly required when seeking a minor change to the plans that have been endorsed with the planning permit.

The Secondary Consent pathway is applicable in the instance where a permit condition enables amendments to be made to a permit or endorsed plans via the consent of the Responsible Authority. One such condition may read like this:

“The location and details of the signs as shown on the endorsed plans, must not be altered without the written consent of the Responsible Authority”.

This condition relates to a planning permit for the display of signage and allows amendments to occur to the signage endorsed by the permit with the consent of Council.

As signage is a fairly minor item respective to the wider approvals and developments occurring, it can be considered that Council’s consent warrants these changes.

Following this logic, in Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049, the Tribunal concluded that the following requirements would need to be met for a permit to be amended under Secondary Consent:

  • The changes do not result in a transformation of the proposal.
  • The changes do not authorise something for which primary consent is required under the Planning Scheme.
  • The changes are of no consequence having regard to the purpose of the planning control under which the permit was granted.
  • The changes are not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.

This decision has been referenced countless times in justifying where the provisions of Secondary Consent apply in determining the pathway for a permit to be amended.

Section 72 Amendments

Section 72 Amendments are commonly required when changes to the conditions of a permit is sought, or the changes to plans are more significant.

Section 72 Amendments apply where the proposed amendment exceeds the scope as determined by the aforementioned decision, and generally take effect for more comprehensive amendments.

A Section 72 Amendment application follows a process typical to a standard planning application and generally involves RFI’s, public notification and is substantially longer than a Secondary Consent application. These applications also make third party review rights available.

A common example of a Section 72 Amendment to a permit is whereby a change is proposed that would trigger a planning permit requirement. For instance, if a two-dwelling proposal in a General Residential Zone was granted approval by Council, and the applicant sought to amend the permit to allow a three-dwelling development, the permit would require an amendment under the Section 72 pathway.

If you are seeking to amend a planning permit, or require further advice on this topic, feel free to get in touch with one of our experts today at www.cstownplanning.com.au.