Incomplete right of appeal

A recent VCAT case, Chin v Boroondara CC  [2017] VCAT 521, looked at the issue of exemptions from third party notification and review rights and provides a timely reassurance that these exemptions must be upheld.

In the above case, Ms Chin (who appears to be the owner of the neighbouring site) sought review at VCAT of Council’s decision to grant a planning permit for the partial demolition and construction of alterations and additions to an existing dwelling (including carport, swimming pool and outbuildings) on the subject land.

The subject site was over 1000m2 in size and the only relevant permit trigger was contained within the Heritage Overlay (HO) that affected the land.

At Clause 43.01-3 the HO lists several classes of application that are exempt from third party notice and review rights. In assessing how these exemptions impact Ms Chin’s right of appeal the Tribunal member noted:

  1. In my view, the carport and “store” aspects of the development are included within the above-cited exemption contained in clause 43.01-3 of the Scheme, with the “store” component of the development either falling within the concept of a “shed” or that of “a similar structure”. However, arguably, amongst the elements of the proposed development that are not exempt pursuant to clause 43.01-3 of the Scheme is the:

Construction of an extension to the dwelling, between the carport and the existing dwelling

Ms Chin’s Statement of Grounds included concerns relating to the proposed carport and store area. These appear to have been the elements with greatest impact on Ms Chin’s property.

After consideration of the exemptions contained at Clause 43.01-3 the Tribunal concluded that the majority of Ms Chin’s grounds were misconceived because she did not have a right of appeal against the carport and storage area:

  1. To the extent that Ms Chin ’s objections relate to elements of the development that are exempt from notice, decision and review requirements and rights – such as the carport and the store – Ms  Chin  is not able to seek the Tribunal’s review of these approvals under a section 82 review…

In this instance, the offending grounds were struck out as misconceived and it was left up to Ms Chin to confirm if she wanted to continue to pursue the appeal on, the relatively minor, concerns relating to the small addition proposed between the carport and the existing dwelling.

Exemptions to third party notification and review can be a powerful tool and permit applicants need to know how and when they apply.

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