Two recent VCAT cases looked at the validity of applications lodge by objecting parties, where the wrong form had been used by the appellant.
In Bridger v Yarra CC [2021] VCAT 98 an original objector sought to apply, within the statutory timeframes, to VCAT for a review against Council’s decision (under section 82 of the Act) to grant an amended permit for the partial demolition and additions to a single dwelling nearby. However, the objector used an incorrect application form, and actually lodged a form that sought to appeal conditions on Council’s decision (under s80).
The error resulted in Council not being notified of the VCAT application and subsequently issuing the planning permit.
The Tribunal noted that the need to use the ‘appropriate application form’ to ensure the efficiency of the legal process is important. However, went on to say that that was not end of it and that each matter turned on its own facts. In this instance, the objector had lodged additional information with the (wrong) application form, that in the mind of the Tribunal, made it clear that they ‘intended’ to contest the granting of the permit – not conditions on a permit. So, the Tribunal used its discretion to amend the application form and allowed the matter to proceed to hearing.
Conversely, in Albert v Whitehorse CC [2021] VCAT 188 objectors lodged an application for cancellation or amendment of a permit under S89 of the Planning and Environment Act. However, what they intended to lodge was an application for review of Council’s decision to grant the permit, under s.82
The applicant advised the Tribunal at a Practice Day Hearing of their confusion whilst completing the forms and that it was their intention to lodge a review of Council’s decision under s82. However, in this instance, the Tribunal was not satisfied it should use its discretion and the matter was summarily dismissed. Unlike the Bridger case, supplementary material lodged with the application form did not clearly indicate the applicant’s intent. Other differentiating circumstances also existed between the two cases.
Clause 1 Planning recommends a quick call to either our office or VCAT for clarification, if you are lodging your own appeal documentation.
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