VicSmart: The Onus is on the Applicant

We recently wrote about two VCAT decisions that discussed the VicSmart provisions. As regular readers will be aware the VicSmart provisions have been significantly widened this year to incorporate a larger number of application types.

In Wittenbach v Cardinia SC [2017] VCAT 793, one of the issues the Tribunal was required to consider was; if an application meets the requirements specified in the VicSmart provisions is it automatically a VicSmart Application.  In consideration of this question the Tribunal noted:

28           I do not find there is any intention in the VicSmart provisions to make them the exclusive means of consideration of classes of applications that can be a VicSmart application.  Rather, I consider that the VicSmart provisions provide an opportunity for a permit applicant to pursue the VicSmart fast track permit application process for assessing VicSmart applications as provided for by clauses 90-95 of the planning scheme if a permit applicant chooses to do so.  If a VicSmart application is made, then the provisions of clauses 90-95 apply.  But unless a specific VicSmart application is made, I do not consider that those provisions automatically apply to any other permit application notwithstanding it may be eligible for a VicSmart application to be made and so considered, but where such an application has not been made.

In this passage, the Tribunal makes it clear that the onus of confirming an application meets the requirements of VicSmart and making a VicSmart application is on the permit applicant. Applications not lodged as VicSmart applications can and will be considered as normal applications, even if they fall within the classes of applications specified within VicSmart.

Permit applicants should familiarise themselves with the classes of VicSmart applications and ensure they utilise the fast-track VicSmart application system whenever appropriate.

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