VCAT: Objector appeals for commercial advantage

Following on from the above article, with reference to Axicom Pty Ltd v Melton CC (Red Dot) [2020] VCAT 190, it is noteworthy that Axicom was a competitor of the permit applicant. In dismissing their objectors appeal the Tribunal also stated:

I consider that an objector application for review that is brought for a collateral purpose by a commercial competitor, and otherwise lacks planning merit, can be considered to be vexatious and an abuse of process for the purpose of section 75 of the VCAT Act. Again, there is a public interest in quickly disposing of such matters.

Not only did VCAT find that the objectors appeal was “misconceived or lacking in substance, because it is devoid of planning merit”, it also found that the proceeding was “vexatious or an abuse of process, because it has been brought for a collateral purpose, and is intended primarily to secure or maintain a commercial advantage.”

Notably, Section 150(4)) of the Planning and Environment Act 1987 provides:

(4)    If any proceedings are brought before the Tribunal under this Act and the Tribunal is satisfied that—

(a)     the proceedings have been brought vexatiously or frivolously or primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings; and

(b)     any other person has suffered loss or damage as a result of the proceedings—

the Tribunal may order the person who brought the proceedings to pay to that other person an amount assessed by the Tribunal as compensation for the loss or damage and an amount for costs.

As stated previously, the right of objectors to test the decisions of Council remains an important part of our planning system – but in instances where objector’s primarily seek to gain a commercial advantage over the permit applicant, and frustrate the process without planning merit, they not only run the risk of their appeal being summarily dismissed, they also run the risk of costs and damages being awarded against them.

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