Some interesting issues have recently come to light regarding the obligations for joint Applications for Review to VCAT.
In a recent Red Dot decision of Whitelaw & Ors v Port Phillip CC [2013] VCAT 156 a joint application for review was lodged by a number of objectors against Council’s decision to grant a permit for a residential aged care facility. One objector lodged the appeal for himself and on behalf of 12 other people. Prior to the hearing the joint applicants for review had reached agreement with the permit applicant to settle the matter except for one person who wished the matter to be heard as set down. This raised the question of how to proceed given the application was no longer a joint application.
The Tribunal found that if the applicant for review intends to proceed with their application separately to the position of the other joint applicants, they would have to pay a separate application fee or withdraw as a party to the application. A separate fee is payable when applicants intend to rely on different grounds to those in the original application for review and must lodge a separate application, and file and serve an amended statement of grounds.
It is worth noting that if the matter is heard as a separate application and the appellant is unsuccessful an award of costs may be made against a joint applicant who was not prepared to settle a matter agreed to by other joint applicants. (refer Green v Ballarat CC [2006] VCAT 2535) .
In another matter, Heath v Boroondara CC [2012] VCAT 1762, the Camberwell Junction Residents Action Group (CJRAG) lodged a joint application for review against Council’s decision to grant a permit for a six storey mixed use development at Camberwell Junction. CJRAG was listed as the applicant representing 49 members but as it was not an incorporated association the Tribunal noted that according to Section 61(1) of the VCAT Act, it could not be party to a proceeding and held no standing.
In VCAT’s Guidelines for making a joint application (available on the Tribunal website) a joint application must contain:
(i) the name of the person who is authorised to receive all correspondence on behalf of the joint applicants; and
(ii) the names and addresses of each joint applicant and their signature.
Parties to a joint application for review must be original objectors to the permit application or if they are not, they must make a separate application and apply for leave under Section 82B of the Planning and Environment Act 1987.
In this case the Tribunal held that CJRAG was an umbrella name for the joint applicants and not acting as an applicant in its own right. Furthermore it was unclear which members were joint applicants given that only one person was listed as an authorised representative and whilst names and addresses and signatures were listed as association members, no evidence was presented showing the members were aware of the application for review.
The Tribunal held that as the representative of the group had signed and lodged the application on behalf of the Association, the application would be amended under Section 127 of the VCAT Act to substitute this same representative as the name of the applicant for review.
Joint applications for review should be made in the names of those seeking to be joined to the application and not under the name of an unincorporated association, otherwise the application for review might be struck out.