Effect of third party appeal exemptions on Omibus permits

In Myers v Southern Grampians Shire Council [2023] VSC 658, the Supreme Court of Victoria was asked to review a decision of VCAT. The matter before VCAT was an objector’s appeal against a notice of decision to grant a permit for tourist accommodation on the subject land.

The land was in a Rural Living Zone and affected by an ESO and DDO. A permit was triggered under all three controls. However, only, the permission required under the DDO was exempt from third party notification and review rights.

The significant-question that arose was in a situation where multiple permit triggers are present as part of a single application – how should the Tribunal deal with those triggers that are exempt from notice and review rights?

In its decision the Supreme Court noted:

  1. In an application where there are multiple permit triggers for a proposal overall, but the permission under review pursuant to the Planning Act and the VCAT Act is limited by operation of the exemptions applying to the review, the ambit of the Tribunal’s review enquiry will be restricted to the non exempt provisions…

VCAT has since posted a statement on its website that informs practitioners:

In circumstances where an application is heard under s.82(1) of the PE Act [objectors appeal] and some of the permissions sought in the permit application are exempt from notice and review, VCAT cannot direct the responsible authority to issue a permit with any permissions exempted from review. 

Parties to such proceedings should carefully consider the orders they seek from VCAT in such circumstances.

The impact of this interpretation appears to be that VCAT can only issue a partial approval for omnibus permits (with multiple triggers), if some of them are exempt from review rights.

The exact practicalities of this issue, will play out in future VCAT decisions. Stay tuned…

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