Limits of Tribunal Consideration where some permit triggers are exempt from third party notice and appeal

Further to the below article; The Victorian Civil and Administrative Tribunal (VCAT) decision in Dance v Colac Otway SC [2024) VCAT 443 considered an application for group accommodation and a caretaker’s house in Johanna, Victoria. The appeal was brought by objectors to the planning permit application. The application included six planning permit triggers:

  • Use of land for group accommodation in the Rural Conservation Zone (RCZ)
  • Use of land for a caretaker’s house in the RCZ
  • Building and works associated with the land uses in the RCZ
  • Buildings and works in the Significant Landscape Overlay (SLO)
  • Buildings and works in the Environmental Management Overlay (EMO)
  • Building and works in the Bushfire Management Overlay (BMO)

Of the planning controls triggering a planning permit, only two controls provided the opportunity for the appellants to appeal, being the permissions sought under the RCZ and the permissions sought under the SLO. This is because the planning scheme provisions of the EMO and BMO exempted planning permit applications from third party notice and appeal rights.

The Tribunal decision noted that:

Whilst the Tribunal’s jurisdiction is limited to a review of the RCZ and the SLO4, it cannot be ignored that the permit application as a whole is seeking multiple permissions including under the EMO1 and the BMO. The Tribunal’s limited jurisdiction creates something akin to an artificial demarcation in this planning application in a planning system that otherwise encourages omnibus planning applications capturing all the necessary planning permissions. The Respondent permit applicant has appropriately lodged an omnibus permit application, which the Council has considered and decided to approve, granting all the necessary planning permissions. It is the Tribunal’s limited jurisdiction that creates the complexity for the parties in terms of what is relevant and what is not relevant in this proceeding, including in any final order issued. It also creates complexity for the ultimate outcome sought by the Respondent permit applicant and the Council – being one permit for the whole proposal as was sought in the omnibus planning application.

While the Tribunal found it was in a position to grant a permit subject to amendments to the application, it did not have the jurisdiction to require amendments to those parts relating to the BMO and EMO, for which no third party appeal right applied. Further, the Tribunal found that the permissions required under all permit triggers were intertwined (in matters such as accessway design and building placement under the BMO and EMO), creating addition complexity, noting:

…when a proposal is amended by the Tribunal for only some of the necessary permissions, separate additional processes are then required to amend the remainder of the permit application and gain the planning permissions to facilitate the proposal.

The permit applicant had amended the plans prior to the hearing, including changes which affected the BMO and EMO controls, matters over which the Tribunal had no jurisdiction. The permit applicant had not amended the proposal for the EMO and BMO permissions which were the responsibility of Council. However, neither Council nor the permit applicant wanted two separate planning permits to issue covering the separate planning permit triggers and suggested the Tribunal could issue an Interim Order which foreshadowed its support of the proposal and then give Council 6 months to enable the amendments to the other planning permissions to be reconsidered by Council. Council could then combine a final order from the Tribunal in regard to the RCZ and SLO with its own decision under the EMO and BMO.

The Tribunal referred to the VCAT decision of Myers v Southern Grampians SC (Red Dot) [2022] VCAT 695 and Supreme Court decision Myers v Southern Grampians Shire Council [2023] VSC 658 which pointed out that part of the Tribunal’s task under section 84B of the Act is to:

(a) take account of any matter which the person or body in respect of whose decision the application for review is made—

(i) properly took account of in making its decision; or

(ii) was required to take account of in making its decision; and

(b) have regard to any matter which the person or body in respect of whose decision the application for review is made—

(i) properly had regard to in making its decision; or

(ii) is required to have regard to in making its decision.

In this case, this means the Tribunal considering the matters properly considered by Council, including the weight given to the Council decision to grant permissions under the EMO and BMO. The Tribunal noted that to consider only the RCZ and SLO provisions would lead to a piecemeal application, where other permissions were decided elsewhere and separately.

The Tribunal issued an Interim Order to:

  • Enable the Respondent permit applicant to seek the necessary amendments to the permit application, and
  • Enable the Council to consider the amendments sought to the planning permissions required under the EMO1 and the BMO for this amended proposal

The Tribunal found that if either EMO or BMO amendment permission was not granted by Council, the Tribunal would not issue a planning permit under the RCZ and the SLO, given the approvals would then be piecemeal. The Tribunal’s conclusion noted:

If the Council’s decision is to grant an amended permit with conditions under the EMO1 and the BMO, the Tribunal will then issue another interim order allowing for any submissions, if necessary, from the parties regarding any further changes required to the draft permit conditions under the RCZ and the SLO4 as a consequence. If a further hearing is requested or required, the Tribunal will consider this. The Tribunal will then consider those submissions before issuing the final order.

The issues raised in the Myers and Dance decision provide a perplexing new interpretation of the how VCAT will deal with objector’s appeals that include both, permit triggers that are exempt from third party review rights and permit triggers that are open to third party appeals.

Practitioners need to be aware of this distinction and the potential protracted procedural consequences.

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