The decision of Koneska v Greater Geelong CC (Red Dot) [2023] VCAT 359 concerned the standing of objectors who had appealed Council’s decision to grant a permit for a telecommunications facility. The appeal was made pursuant to Section 82(1) of the Planning and Environment Act 2023 (the Act) which enables objectors to appeal Council’s decision to grant a planning permit.
After hearing the merits of the application, including submissions from the appellants (objectors), the permit applicant and Council, but prior to the Tribunal making a decision, planning scheme amendment VC226 was incorporated into the statewide provisions. VC226 caused Clause 52.19-3 (Telecommunications Facility) of the Greater Geelong Planning Scheme to be changed to the effect that:
An application under any provision of this planning scheme to construct a building or construct or carry out works for a telecommunications facility is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act. [subject to some exclusions].
Clause 52.19-3 also provides the same notice and review exemptions to use or develop land for a telecommunications facility…if the telecommunications facility is funded, or partly funded, by the Commonwealth through the Mobile Black Spot Program or the State of Victoria.
The permit applicant then applied to the Tribunal for an order to dismiss the objectors’ appeal, on the basis that the planning scheme no longer gave objectors rights of notice or review.
The Tribunal was strongly persuaded by the decision of the Supreme Court in Von Hartel v Macedon Ranges Shire Council [2014] VSC 215, a similar case. In both Koneska and Von Hartel the changes to the planning scheme did not include any transitional provisions, meaning the changes applied immediately to any “live” undecided applications, including any before the Tribunal. The Supreme Court in Von Hartel v Macedon Ranges Shire Council found that the effect of Section 5 of the Act was that it must be read ‘so as to automatically pick up amendments to planning scheme’ and that the Tribunal must have regard to and apply those amendments.
The objector-appellants in that case submitted they had “accrued rights” for the matter, to be heard and determined under the provisions of the scheme as it existed before the amendment (i.e. the time it was lodged or advertised). The Court found that the clause which held the new exemption applied in its amended form and because it removed third party rights, it removed the Section 82(1) objector appeal rights.
The Tribunal in Koneska v Greater Geelong CC found that the proceedings, lodged by the objectors, were misconceived and the appeal was dismissed.
We note that, even if the amendment was retrospective and continued to apply the previous provisions to “live” applications, the permit applicant might always lodge a fresh planning permit application which would benefit from the new notice and appeal provisions.
The decisions referred to here supports the case for practitioners keeping up to date with planning scheme amendments which might affect your planning permit applications. The Department of Transport and Planning for Victoria provides regular updates on planning scheme amendments via the Planning Matters webpage which you can subscribe to here https://www.planning.vic.gov.au/planning-matters-newsletter.
Subscribe to receive regular updates on planning issues relevant to Victorian planning permit applicants here.
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