In Eddy v Yarra City Council ^[1], the Tribunal had to deal with an application for review made by an objector under section 82 of the Planning and Environment Act 1987 (Act) where an amendment to the planning scheme was gazetted, resulting in a planning permit being no longer required. It arose because Amendment VC243 amended all planning schemes so that the construction of a single dwelling on a lot of 300 square metres or more no longer required a planning permit, with the Amendment coming into operation after the notice of decision to grant a permit was issued but before the objector’s application to review that decision was filed.

Presented with the options of either setting aside the decision to grant a permit and direct that no permit be granted and striking out, or summarily dismissing the application for review, the Tribunal chose to strike out the application. This article briefly examines why the Tribunal chose the strike out option.

The case also brings to light the question of what to do with a notice of decision to grant a permit for development which no longer requires a permit where there is no application to review that decision. It also considers the status of planning permits that were issued for single dwellings prior to Amendment VC 243 for which a permit is no longer required.

The facts

An application was made to the council for a planning permit to construct a single dwelling on a lot in the general residential zone. The lot was in excess of 300 square metres but smaller than the 500 square metres specified in the council’s schedule to the zone.

The applicant for review objected to the grant of a permit. The council issued a notice of decision to grant a permit. Amendment VC243 was then gazetted, removing the scheduled 500 square metres and thereby removing the need for a planning permit. Twenty-eight days after Amendment VC 243 was gazetted, the applicant filed the application to review the decision

A practice day hearing was listed to consider how to dispose of the application for review given that all the parties (the council, the applicant for review and the permit applicant) agreed that the application for review could not proceed in the circumstances.

How the Tribunal disposed of the application for review

The applicant for review argued that the Tribunal should set aside the notice of decision to grant a permit and direct that no permit be issued. That course, said the applicant, was open to the Tribunal by combination of the preservation of rights by section 28(2) of the Interpretation of Legislation Act 1984 and by section 85(1) of the Act. The permit applicant and the council argued that the Tribunal did not have jurisdiction to set aside the decision and direct that no permit be granted. They argued that the application should be either struck out or summarily dismissed as being misconceived.

After carefully considering the decision of the Supreme Court in Van Hartel & Ors v Macedon Ranges SC and the Tribunal decisions in Koneska v Greater Dandenong CC and Owners Corporation No 1PS 028089W v Melbourne CC, the Tribunal considered the right course to be to strike out the application as being misconceived. The Tribunal determined that gazettal of Amendment VC243 removed any right the applicant for review “may have had flowing from s 82(1) of the P&E Act to have the application heard and determined”. The applicant for review did not have standing when he filed the application to review.

The effect of striking out the application

The Tribunal suggested that the application may have been disposed of differently had the application for review been filed before Amendment VC243 was gazetted. The Tribunal pointed out the difference between an application for review that is filed after the gazettal of a planning scheme amendment that removes the need for a permit and one filed before the gazettal. In the first circumstance, the applicant had standing to file the application, whereas in the latter the applicant did not have standing. Ultimately, the Tribunal did not need to decide that matter but hinted that if the first circumstance existed, it would have set aside the notice of decision to grant a permit and direct that no permit be granted.

We express no opinion as to the soundness of the distinction between ‘before gazettal’ and ‘after gazettal’ applications for review. In reality, if there are pending Tribunal applications to review a notice of decision to grant a permit, those applications will either be disposed of by agreement of the parties or will work their way through the system.

Of greater interest is the question of what to do with notices of decision to grant a permit that were issued before Amendment VC243 and what to make of the many thousands of planning permits that have been issued, and in many cases, acted on for single dwellings where a permit is no longer required.

The Tribunal gave thought to the first of these matters of interest, where at paragraphs 71-73 the Tribunal said:

[71] I accept that this outcome means the responsible authority will need to turn its mind to whether it has the power to grant a planning permit in circumstances where planning permission is no longer required despite the existence of the NOD.

[72] This is a matter for the responsible authority given there were no transitional provisions introduced when Amendment VC243 came into force.

[73] If the responsible authority considers it is bound to issue a planning permit but that this is an uncertain or undesirable outcome, it may wish seek advice about whether there are other statutory avenues available to the responsible authority (or indeed any other parties) to address the consequences of a planning permit being issued.

[Note: the “this outcome” means the decision to strike out the application].

The Tribunal left it to the council to decide whether it should issue a permit. It suggested that the council seek advice.

For our part, we do not see how the council has any option but to issue the permit. This is because the law applies, and must be applied, at the time the substantive decision to grant a permit is made. On the facts of the above case, the planning scheme required a planning permit at the time the substantive decision was made. The task of issuing the permit is a purely administrative step predetermined by the Act. In the absence of an application to review the substantive decision (i.e. to grant a permit), the Act dictates that a permit must issue.

What about the planning permits that already exist?

It is no exaggeration to say that there are many (many thousands) of planning permits for single dwellings that, had the permit been granted after Amendment VC243, would not now require a planning permit. Many of those permits have been acted upon and the dwelling constructed and occupied. Many, however, have not been acted upon.

For those that have not been acted upon, there is a need to consider whether the dwellings authorised by those permits now fall to be assessed against the siting, design and access requirements of the Building Regulations 2018 and section 188A of the Building Act 1993. That is because the siting, design and access requirements and section 188A are only excluded if:

• a planning permit is required for the construction of that building; and
• the relevant planning scheme regulates the same matter as that regulation in relation to the siting of that building

A permit is no longer required “for the construction of that building” and so arguably the requirements apply.

For the permits that have been acted on (i.e. the dwelling has been constructed), there is a real question as to whether the permit conditions attached to those permits have ongoing operation. Arguably, such permits no longer impart benefit on the land and the conditions attached to those permits no longer bind the land. This brings into focus the significant, and little understood, difference between the Supreme Court in Benedetti v Moonee Valley CC and the Tribunal in Box v Moreland CC as to how the question of the ongoing operation of permit conditions is determined (see a previous article on this subject here).

Key takeaways

The Tribunal’s disposition of the application was sensible and raises no legal or practical issues where the notice of decision to grant a planning permit is followed by an objector application to review the decision.

There are however legal and practical issues with regard to un-reviewed notices of intention to grant a permit and planning permits that have been issued for dwellings which no longer require a planning permit.

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