VCAT Red Dot Decisions – Development Plans

The recent Victorian Civil and Administrative Tribunal (the Tribunal) case ID-FLK Gisborne Pty Ltd v Macedon Ranges SC [2019] VCAT 1336 considered whether VCAT has the power to amend and/or consider a version of a Development Plan that differs from the Development Plan that formed the basis of the responsible authority’s decision.

A Development Plan Overlay (DPO) is a planning control which requires an overall ‘Development Plan’ to be prepared before planning permits can be issued for land use or development, so that change within a specified area is co-ordinated. The Development Plan usually sets out conditions for land uses and new built form and may be prepared by Council or by landowners. Development Plans are often associated with the subdivision of multiple parcels of land in different ownership and/or of substantial size

The Development Plan Overlay requires that any use and development must be generally in accordance with the development plan.

In ID-FLK Gisborne Pty Ltd v Macedon Ranges SC the permit applicant appealed Council’s failure to indicate that it was satisfied with a proposed Development Plan within a reasonable time, under Section 149 of the Planning and Environment Act 1987 (P&E Act).

After a partial resolution through mediation, and to facilitate the final determination of the matter, the applicant distributed an amended Development Plan prior to the final VCAT hearing. The question then arose: Does VCAT have the power to amend or substitute a Development Plan under Section 127 of the Victorian Civil And Administrative Tribunal Act 1998 (VCAT Act), which provides that at any time, the Tribunal may order that any document in a proceeding be amended?

This issue arose partly because of a decision in another case (TC Rice Pty Ltd v Cardinia SC [2019] VCAT 64) which found that the Tribunal did not have the jurisdiction to amend an application which was made under the Gambling Regulation Act 2003, as that application was not a document “in a proceeding” [and] as such a document was created prior to the commencement of the relevant proceeding. That case involved both a planning application and a Gambling Regulations application, and the Tribunal found that:

Section 51(1) of the VCAT Act does not confer power on the Tribunal to accept an amended application under s 3.3.4 of the GR Act. In its review jurisdiction, the Tribunal acquires only those powers and discretions of the Commission necessary to make the decision under review and not any powers and discretions relevant for any other purpose.

Clause 64 in Schedule 1 of the VCAT Act sets out provisions for the amendment of an application, expressly empowering VCAT to amend an application made to the original decision-maker.

However, Clause 64 does not apply to appeals made under Section 149 of the P&E Act. There is no formal application requirement under the P&E Act for the approval of a Development Plan, nor any notice requirements, and therefore no formal application which might later be sought to be amended at VCAT. The approval of a Development Plan is considered a “secondary consent” matter, or a “to the satisfaction of” matter, rather than a primary statutory approval (such as a planning permit). The Tribunal considered that an amended Development Plan that differs from the Development Plan that formed the basis of the responsible authority’s decision, that is then under appeal, can be amended because:

  • Under Section 51 of the VCAT Act, in determining a proceeding for review, VCAT can (amongst other things) vary the decision under review or set aside the decision and substitute another decision. That may involve simply filing or producing an alternative version of the Development Plan, similar to the secondary consent process; or
  • Section 127 of the VCAT Act allows for an amendment to “a document in the proceeding”. In this instance the Development Plan is considered to be such a document.

Practitioners working within DPOs should be aware of the requirement to be generally in accordance with the approved development plan – or their obligation to seek approval for a new or amended development plan as part of their planning approval.

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