Red Dot Decision – Objector Locked Out of VCAT.

In the recent decision Box v Stonnington CC (Red Dot) [2023] VCAT 289, the Victorian Civil and Administrative Tribunal (the Tribunal) considered a request for an objector to be joined as a party to proceedings. The application for review (appeal) was lodged by other objectors as a joint appeal, pursuant to Section 82 of the Planning and Environment Act (the Act), against Council’s decision to issue a Notice of Decision to Grant a Planning Permit.

On the same day as some objectors lodged a joint appeal, another objector, not part of the joint appeal, wrote to the Tribunal stating he wished to participate in proceedings. The Tribunal informed him that he needed to lodge a separate appeal. The objector instead lodged a Statement of Grounds to join the proceedings and paid the requisite fee ($21.40).

The Tribunal subsequently held a practice day hearing to determine his status as a party and determined that:

  • Section 82 of the Act does not entitle an objector to be given notice or be serviced with the appeal documentation
  • If an objector opposes the Council’s Notice of Decision and wishes to be part of the appeal proceeding, they must either lodge their own application for review (appeal) or be part of a joint application for review with others. Lodging a Statement of Grounds, seeking to be joined to, after other objectors have lodged an appeal is not sufficient.
  • While the Tribunal had the discretion to join the objector as a party to proceedings as a Joint Applicant (pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act)), the Tribunal decided that it would be inappropriate, taking into account principles set out in previous case law, and in particular Wade v Manningham CC [2004] VCAT 816, finding:
    • It is open for an objector to appeal against a decision either jointly or separately.
    • If the objector wanted to join late, the correct process would be to apply for an extension of time then lodge an appeal in their own name.
    • To seek to join a joint objectors’ appeal using only a Statement of Grounds avoids the obligation of paying the VCAT fee for an appeal (at the time of writing the fee to lodge an appeal as an objector under Section 82 of the Act is $899.10 whereas the fee to lodge a Statement of Grounds is $21.40).
    • In this case the joint applicants (objectors) did not support the “new” objector joining their application for review

In summary, if you are an objector who wishes to be part of an appeal proceeding against a Council’s decision to issue a notice of decision to grant a planning permit, you must either lodge your own appeal under Section 82 of the Act or be part of a ‘joint appeal’. It is not possible to join an existing proceeding by submitting a statement of grounds, in these types of matters.

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