This decision relates to an application to amend a permit which established an existing use right to operate a restaurant in a Green Wedge Zone. The Tribunal considered whether a planning permit which establishes an existing use right can be amended to introduce a new use in addition to that existing use right. The Tribunal considered the Victorian Supreme Court Seventh Columbo case. Deputy President Helen Gibson found that permit ammendments are made under the original permit or permission, as a result an amendment can only expand the primary permission. A permit may not be amended to include a separate and distinct permission.

This decision of the Victorian Civil and Administrative Tribunal (VCAT) relates to a proposal to expand the seating capacity of a restaurant located in a Green Wedge Zone, and to create a new function center on the site. In order to do this the developer sought to have their planning permit amended under Section 149B of the Planning and Environment Act (the Act). This section gives the Tribunal discretion to make any declaration it thinks is appropriate in the circumstances.

The Tribunal discussed a Victorian Supreme Court decision referred to as the Seventh Columbo case, in which a permit holder had applied to have a permit condition removed. The condition restricted the time that the premises could be used as a massage parlor. The Tribunal also considered other relevant case law, concluding that when exercising its discretionary power to allow an amendment to a planning permit under the Act, the Tribunal is not not constrained by whether or not the development meets the requirements in the local Planning Scheme. Deputy President Helen Gibson said;

Permit amendments operate under the primary permit or permission; they may expand the operation of the primary permission, as in Seventh Columbo and Beaufonte but they cannot alter the permission to include a separate and distinct permission.¹⁾

The Tribunal also noted that, where an application was applying for a permit for a new use, the appropriate course of action was to apply for a new permit.

Although in the Seventh Columbo case the court said that the Tribunal was not constrained by the Planning Scheme when exercising its discretionary power to allow an amendment to a planning permit, VCAT Deputy President Helen Gibson stated that the local Planning Scheme could still be a relevant consideration. The Tribunal considered that this development was inconsistent with the provisions of the Planning Scheme. The Tribunal considered the proposed expansion and change of use and determined that the rural nature of this site required a “more moderate scale development than what was proposed”.²⁾ Had the landholder been making a new application for this planning permit this use would not have been allowed on the site and the permit application would have been refused.

The Tribunal ordered that the permit could be amended with respect to an increase in numbers and other matters that fell under the existing use, but that it could not be amended with respect to function center which was an additional new use.

• The full VCAT decision on Austlii

• The 'Seventh Columbo' decision on Austlii