We at Clause: 1 were interested to read the recent decision of Burnet v Yarra CC [2013] VCAT 1753. This case was an objector’s appeal against a mutli-storey mixed use development. Prior to lodging the appeal with VCAT the objector contacted the permit applicant by email (following the issue of a Notice of Decision in favour of the proposal and suggested that if the permit applicant paid for a development on her property she would not lodge an Application for Review against his NOD at VCAT.
Regular users of the planning system will be aware that based on the current wait times for a VCAT appeal, such an appeal would have constituted a real threat to the viability and timeline of the project. However, the permit applicant refused the objector’s offer, and the objector subsequently lodged the appeal to VCAT.
Rather than proceeding to a standard merits hearing, however, the permit applicant’s representatives sought to have the matter struck out as being an abuse of the process.
Despite the protestations of her legal Counsel, who argued that Ms Burnet had acted out of naivety and was not aware that her actions could be perceived as a ‘threat’ to a permit applicant, Deputy President Gibson found that the Applicant for Review’s actions did indeed constitute an ‘abuse of process’, in that the objector attempted to obtain financial advantage through using a VCAT appeal as a threat to the permit applicant. DP Gibson noted;
22. … In bringing this proceeding, she has compromised the integrity of the Tribunal’s processes and brought into disrepute the opportunities offered under Victoria’s planning system to third party objectors to participate bona fide in the decision making process about permit.
It was not in dispute that the objector had legitimate planning concerns relating to bulk, massing and streetscape impacts. However, by striking out the application, the Tribunal did not only remove the ability for the appellant to test their legitimate concerns relating to the merits of the proposal it also reserved costs, allowing other parties to seek to recover their consultants’ fees from the objector.
It is not uncommon for parties to negotiate with one another outside the Council’s or VCAT’s mediation framework. In many cases open lines of communication between parties can resolve issues and avoid costly and time consuming VCAT appeals. However, extreme care needs to be taken to ensure that attempts to work with parties are not perceived as attempting to thwart due process or unduly prejudice proceedings.
In closing we note that Victoria currently offers some of the broadest third party appeal rights in the country. While these appeal rights are unlikely to be significantly eroded in the near future, utilising them is a privilege that should not be abused.