Second Thoughts About Secondary Consent

In last month’s Planning News, Andrew Clarke raised a number of questions that had confronted him while sorting through the case law regarding amendments to plans and permits. That article highlighted the tendency of the planning system to make hard work of what should be simple matters: I suspect the seemingly arcane quandaries he mentioned will be familiar to many practising statutory planners. At the centre of many of those difficulties is the issue of secondary consent: the amendment of plans not through Section 72 of the Act, but by acting upon flexibility built into the conditions of permits. It is supposed to be the simpler option, a shortcut that saves time compared to the path laid out in S.72. However, there is always a danger associated with leaving the marked path: you risk getting lost in the undergrowth. That, unfortunately, is where we now stand with regards to secondary consent.

There is, of course, no reference to “secondary consent” in the Act. Instead, the process has its pedigree in many VCAT decisions over the years, with the most recent “state of the art” – notable for being made after the 2004 amendments to the Act – being the Tribunal’s decision at Westpoint v. Moreland CC ([2005] VCAT 1049). The idea that a permit condition can specify that a set of plans can be further amended seems harmless enough, and on the face of it the approach of the Tribunal is difficult to quibble with. We issue a permit, the permit says we can amend plans, so later we can we just come back and amend the plans as we see fit. Simple.

What does cause some misgivings, however, is the end result. Our system now has two parallel processes for amending plans: one derived from the Act, and one derived from Tribunal precedent.

The first point this raises is the approach we take to the decisions of the Tribunal. In practical terms, the Tribunal is the final arbiter of 99% of planning matters, and understandably we treat its decisions with a great deal of seriousness. Yet we should never forget that the Tribunal is at the end of the day just that: a Tribunal. It is not the parliament, and it is not a court. We should be careful of treating it as if it has the ability to legislate new procedures, and we should not forget that ultimately it is the Act that we should use to govern our decision-making. When an applicant requests an amendment to plans, and we ignore the sections of the Act that outline the process and the decision guidelines for just that situation and instead apply a Tribunal-derived procedure, we are in danger of elevating Tribunal decisions above the Act.

This is only a problem, of course, if conflict arises between the approach of the parliament, as expressed through the Act, and the approach of the Tribunal. In one of the most recent decisions on the subject, Zuzek v Boroondara CC ([2007] VCAT 2174), the Tribunal suggested that one if its previous decisions had created just such a conflict, when in the earlier case the Member had applied tests along the lines that used to exist for amending plans in the repealed former Section 62(3) of the Act. The Deputy President of the Tribunal rejected such an approach, noting at paragraph 17 of the Zuzek decision that “the parliamentary intent that underscored the repeal of s 62(3) must be respected.”

Fair enough. But what is striking about this is that the Tribunal then doesn’t complete the thought and consider in any detail the parliamentary intent of the simultaneous insertion of the new Division 1A (Sections 72-76D). Those changes to the Act, it seems clear, were intended to remove the uncertainty and double standards about amending permits and plans. The previously existing difference in approach for permit changes and plan changes was removed; indeed, the Act now made it clear – in S. 72(3) – that changes to plans and permits were for all intents and purposes exactly the same thing. The regulations now required that a running list of amendments be kept at the footer of the permit. The scope of S.72 was widened by allowing Councils to amend permits in circumstances where it felt that notice should be provided. And by directing that amendments be considered through process outlined in sections 47 to 62, the new section 73 now brought the test for notice and decision-making neatly into line with those for permits (ie the tests in sections 52 and 60, respectively).

Looking at the new Division, and S. 72(3) particularly, the “parliamentary intent” seems inescapable: the sections of the Act that outline in some detail how to consider a request to amend plans should, remarkably enough, be applied to applications to amend plans.

So what happened? Reading both Zuzek and Westpoint, it seems that the Tribunal may have been bothered by the permit application-like quality of this procedure. This concern is raised explicitly at paragraph 19 in Zuzek, and in Westpoint (the first crucial test of secondary consent following the insertion of Division 1A) the Tribunal noted that “the planning system needs to be sufficiently flexible to accommodate the sort of changes likely to occur with a use or development over time or as a development proposal is implemented,” before quoting with approval these comments in the previous (pre-Division 1A) Mentone Mansions decision:

. . . Most planning projects undergo a design and development process which takes a considerable time, and the planning approval phase is early in that process.  As a consequence, after planning approval the development of a design for construction purposes, and the construction process itself, can result in a need to amend the development no matter how well resolved the development is at the planning stage.

The Tribunal then concluded that notwithstanding the new Division 1A, “secondary consents within permit conditions will retain an important role and the tests for exercising those consents as set out in Mentone Mansions will remain relevant.”

But why? Presumably because the Tribunal considered the application-like process outlined in the Division was too cumbersome and lacked the flexibility to deal with minor changes. Yet in practice, section 72 allows for a process as simple or as complex as the matter demands. While complex amendments under S.72 (such as ones requiring Notices of Decision to Amend a Permit, or imposition of conditions that apply to the amendment but not the permit) are notoriously confusing, for simple matters such as minor changes to plans the Division is actually extremely elegant. In practice, of the litany of complications foreseen by the Tribunal in Zuzek – “a formal application, referral and notice, and the prospect of third party objections and the rights of review” – only the first (the making of an application) would usually apply to a truly minor plan change. In effect, by activating sections 52 and 60, the Division simply asks us to consider the question of notice against the usual material detriment test, and to have regard in our decision to any relevant matters under the Act and Scheme. Planners should be uncomfortable considering anything less.

If a matter is simple, then, Section 72 provides as neat and straightforward a tool as we could want to assess it. We can turn our minds to familiar, well-tested sections of the Act. If we have to change only a minor detail, we can conclude that it doesn’t contradict anything in the scheme, and issue the amendment with as little – or less – fuss as we could under secondary consent. No doubt there are Councils who insist on over-documenting minor amendments and thereby make hard work of simple things, but why would these Councils not make equally hard work of requests under secondary consent?

There are also distinct pragmatic advantages to keeping the assessment under the Act. There is far less room for confusion about the currently applicable plans, for example, because all amendments to plans are recorded on the permit (so an applicant who obtains an up-to-date copy of the permit from Council can check the dates against the endorsed plans in their possession). By re-opening the door to secondary consent, the Tribunal rendered the “amendment record” that the new regulations added to permits largely useless, because the secondary consent amendments are not recorded in the listing (as the permit is not reissued). All this while abandoning the well-understood tests of the Act and Scheme in favour of murkier criteria about “transformation” and “consequence.” Not to mention, of course, that we create a redundant parallel process, leading to confusion amongst the general public. Councils have to be clear about how applicants are seeking to amend their plans, but what are “mum and dad” applicants supposed to conclude when asked if they seek to amend their plans under Section 72 or secondary consent?

This kind of impenetrability of process reflects poorly on the planning system. Yet the more serious underlying threat to the system’s credibility is how non-binding it makes the endorsed plans. All of this debate emerges from a few words on the typical permit – “…except with the further consent of the Responsible Authority…” – and few outside the secret club of planning would realise the far-reaching implications of those words.

My hunch is that many, perhaps most, planners who applied such conditions over the years simply meant that Council could provide further consent through the appropriate application process; ie, Section 62(3) in the old days, and Section 72 more recently. Even where the planners issuing the permit specifically envisaged that the plans could be amended without recourse to S. 62(3) / 72, I doubt that they often imagined such sweeping changes as the Tribunal allowed in Westpoint (in that instance, 56 extra dwellings on a site). That level of extremely wide application has crept up on us, and as the application of secondary consent has expanded, the principle of transparency that is so central to the Act has been undermined.

If an application meets the secondary consent criteria, the planner doesn’t give notice and potential objectors don’t get a look-in. That erosion of the principle that notice is required where material detriment could occur should, I think, be of enormous concern to all planners with a commitment to transparency and accountability. So, too, should the misleading nature of our permits and notices of decision. Objectors reading a NOD make a decision about whether to forfeit their right to appeal based upon documentation that refers to a particular set of plans. If they give any thought to what options might exist for the applicant to make changes down the track, I suspect they would envisage a process like that under S.72, where they will be told of changes that might cause detriment. But how many objectors would accept the inclusion of a standard secondary consent condition if they understood the breadth of discretion that existed to modify the plans without notice? A widespread awareness of the flexibility provided by secondary consent would cripple the ability of planners to get objectors to accept the issue of permits. A system should not rely on the ignorance of its participants to function.

In short, the widespread use of secondary consent has meant that the increased certainty and clarity that was surely intended to be achieved by the abolition of S. 62(3) and the introduction of the new S.72 has not been achieved. The Tribunal overestimated the burden of applying Division 1A, and in effect fell back on an old habit – a workaround, really – that was no longer necessary and which had its own significant downsides. Our permits now feature an “amendment list” that is largely useless. We are amending things without turning our mind – at least in a formal sense – to material detriment. We are confusing applicants by presenting an array of means to alter their permits rather than a single method. We are applying tests that aren’t mentioned in the Act and are demonstrably causing difficulty in their interpretation. It’s time for the planning community to turn back to the clear guidance of the Act by considering Section 72 of the Act as the best-practice method for amending plans. The Tribunal should be more tolerant of Councils that choose not to employ the secondary consent provisions, and DPCD should amend practice notes and / or Using Victoria’s Planning System to direct planners back to Division 1A. Because sometimes those tempting shortcuts leave you lost, and it’s better to get back on the path and follow the signs.

Cases cited

Westpoint: http://tinyurl.com/2kcpae

Zuzek: http://tinyurl.com/36tgsy

Mentone Mansions: http://tinyurl.com/39n6a8

Originally published in Planning News 34, no. 2 (March 2008): 12-13.