Part 2: Struck Out but Still Alive.

Following the above findings, the permit applicant filed a new approved CHMP with Council in early 2019. However, Council advised the applicant that a new planning permit application needed to be lodged, because the Tribunal did not remit the matter back to Council as part of the previous Order.

On review of this conflict, the Tribunal held it has no power to remit a matter for re-consideration by Council (under section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998) if it had no jurisdiction to determine the matter in the first place.

However, the Tribunal also found that a remittal was unnecessary because:

  • The permit application was still live with Council, that the Council still had a duty to determine the permit application;
  • The Tribunal may remit a matter only if it is determining a review proceeding (appeal) and if it is setting aside the decision-maker’s decision;
  • The Tribunal could not correct or add an order to remit the decision back to Council for consideration because it did not have jurisdiction to determine the application in the first place; and
  • A fresh failure review (appeal) could be made to the Tribunal after a complete CHMP had been lodged with Council and the prescribed time had expired from the date that complete CHMP was filed.

The key takeaway messages from the above articles are:

  • A CHMP should cover all of your activity area;
  • Council’s timeframes for processing a planning permit application do not commence until an approved CHMP has been filed;
  • The Tribunal cannot consider an application for review against Council’s failure to make a decision within the prescribed timeframe unless that timeframe has run from the date the approved CHMP was lodged;
  • A planning permit application remains live until such time it is formally determined by either Council or VCAT.
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