In a recent VCAT decision (reported in the Victorian Planning Reports) the Tribunal has chastised Banyule City Council for relying on vague ‘uninformative’ grounds of refusal and put Councils on notice that repeat offences may result in costs being awarded.
In Bozinoski Consultants Pty Ltd v Banyule CC & Ors [2011] the presiding Member recited from a number of previous decisions and noted:
9. My other concern relates to the grounds of refusal set out in the notice of refusal provided by the responsible authority in this case. I mention this because it is a matter that has been drawn to the attention of this responsible authority on a number of previous occasions.
10. Section 65 of the Planning and Environment Act 1987 instructs the responsible authority as to what it is to do where it determines to refuse to grant a permit
65 (1) The responsible authority must give the applicant and each objector, a notice in the prescribed form of its decision to refuse to grant a permit.
(2) The notice must set out the specific grounds on which the application is refused and state whether the grounds were those of the responsible authority or a referral authority.
11. The form for such a notice of refusal is prescribed in regulation 27 and form 7 of schedule 1 in the Planning and Environment Regulations 2005.
12. I draw attention to the wording of subsection 2 above and in particular to the statutory requirement that the notice must set out the “specific grounds” on which the application is refused.
13. The tribunal has pointed out, from time to time, that this is a serious requirement that needs to be properly complied with. In John Gurry & Associates v Moreland CC[2] at [11] the tribunal said
The notice refusal should set out the grounds of refusal in clear and understandable terms. This also means that they need to be specific enough so that the applicant, Tribunal, and anyone else, can understand the true basis on which the refusal was determined upon.
One of the cases cited in the decision was Moccero v Kingston CC[2003] VCAT 1391. In the Moccero case the then President of the Tribunal, whilst discussing Councils vague and uninformative grounds of refusal, noted:
32. …that the responsible authority, in that case, had failed to give specific grounds to enable the applicant for review to know the real reasons for refusal and the issues to be contested at the review. That was rectified at a directions hearing. In that case the President did not make an order for costs against the responsible authority, but observed that failure to comply with the requirements of s. 65 (2) in relation to “specific grounds” where a party has to seek particulars, is likely to occasion an order for costs against the responsible authorities
Permit applicants seeking to contest Council refusals at VCAT should ensure the grounds relied upon by Council are clearly articulated and understood. If the grounds relied upon are not clear further and better particulars should be sought well in advance of the hearing date. Applicants for Review should also contemplate applications for costs if directions hearing are required to obtain more detail from Council.
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