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May 13, 2022

Supreme Court decision scraps the transformation test for amendment applications.

In April 2022 the Supreme Court issued a precedent setting decision that reversed the commonly held statutory planning principal that an amendment to a statutory town planning permit should not lead to a transformation of the proposal. Previously, where an amendment constitutes a ‘transformative change’ then a fresh application needed to be made for the proposal.

The Decision

In the recent case of Mondib Group Pty Ltd V Moonee Valley Council the permit applicant sought a review by the court of a decision issued by the tribunal to refuse an amendment application on the basis that the amendment constituted a transformation of the original approval. The court found that the ‘transformation test’ was no longer applicable to amendment applications on the basis that an amendment application goes through the same statutory assessment process as would be applied to a new application. Critically, the court found that because amendment applications are advertised to the public they are subject to the same level of scrutiny as normal applications. On that basis there was no reason for the transformation test to be applied and the scope of what can be considered under an amendment becomes much broader.

Implications

This decision has far reaching implications for planning permit holders. The favourable implications are that it will allow permit holders to make amendment applications and not be concerned about the qualification of the changes to be considered as an amendment. There is also the benefit of likely reduced fees and a more refined assessment that comes with a permit amendment application in lieu of a fresh application for a permit. The decision does beg the question ‘Can a live permit be amended indefinitely?’ The removal of the transformation test does allow for development to now be considered for approval under the guise of an amendment to a historic planning permit. There is a very real issue of this, particularly for historic developments that would not nowadays receive a permit under the modern version of the planning scheme. Akin to most precedent setting decisions, it has benefits and negatives depending on your permit situation and perspective. The vast majority of permit holders will benefit from the decision but for decision makers, referral authorities and third party objectors there is more planning ambiguity arising from the decision.