VCAT has published a new guideline applicable to consent orders which will be of relevance to those who practice in the Planning and Environment List. The Guidelines need to be read together with the Planning and Environment List Practice Note PNVCAT01 (Common Procedures).
We thought it useful to highlight the following examples, where consent orders may not be endorsed on the papers, as described in the new guidelines. Examples include:
- Where costs are left unresolved.
- Where the consent orders grant a planning permit for a use or development of land that is prohibited under the relevant planning scheme.
- Where the consent orders make an enforcement order in respect of an erroneous contravention, such as failure to obtain permission to demolish a building when no permission was, in fact, required to demolish the building.
- Where the consent orders include a permit condition that allows or requires additional works (eg removal of vegetation) if a permit is required, and has been neither sought nor granted, for those works.
- Where the grant of permit in a consent order fails to include a condition that the planning scheme states must be included or the permit includes a condition in conflict with a condition that the planning scheme states must be included.
- Where a consent order in relation to a conditions review modifies conditions that are not subject of the conditions review.
Another relevant example is where consent orders dispense with or limit the requirement for notice to be provided to third parties (e.g. where there is a section 87A application or there are amended plans that could arguably give rise to material detriment). In some cases, agreeing to consent orders that are poorly worded can increase the risk that a permit may be cancelled or amended under Division III of Part IV of the Planning and Environment Act 1987. The Guidelines state that:
“A consent order request may include the grant of a planning permit based on amended plans. As well as the need for evidence that all parties have agreed to the amended plans, the consent order request must be accompanied by a statement of changes from the plans considered by the responsible authority when it made its decision. If the Tribunal considers additional notice must be given because of the nature and scope of the changes in the amended plans, the Tribunal may refuse to make the consent orders and may require the permit applicant to first apply to amend the plans in accordance with practice note PNPE9.”
It is incumbent on the responsible authority to be cognisant of the new guidelines.
|Barnaby McIlrath | Special Counsel
61 3 9258 3614