The judgment of the Victorian Supreme Court in Myers v Southern Grampians Shire Council ^[1] was the subject of some commentary after its publication on 16 November 2023^[2]. It provides important guidance on matters of relevance where an application is made by an objector for a Tribunal review of a responsible authority decision to grant a permit where there are multiple permit triggers for a proposal, some of which are exempt from the right of review. In this article, we examine the Court’s commentary and ruling on the limits on the Tribunal’s jurisdiction and, thereby, on the matters relevant to the consideration of the application.

There is however one aspect of the judgment which appears to have flown under the radar. It has important implications on the way a responsible authority is to issue a notice of decision or agree to amend plans where an application for a ‘multi-trigger’ permit application is determined and where one of the permit triggers is exempt from the right of review. There is more to the judgment than first appears.

The facts briefly stated

An application for planning permit was made to the responsible authority to develop and use the subject land for group accommodation. A planning permit was required by operation of the Rural Living Zone (RLZ) and two overlays - an Environmental Significance Overlay (ESO) and a Design and Development Overlay (DDO). The owners of land in the vicinity of the subject land objected to the grant of a permit. They then sought a review of the responsible authority’s decision to grant a permit. The objectors raised and then sought to pursue a number of grounds, one of which was that the proposal failed to comply with the design objectives and outcomes of the DDO.

It appears that the objectors and the responsible authority overlooked that the DDO contained an exemption from the third party notice and application for review rights of the Planning and Environment Act (Act). Those rights only existed with regard to the RLZ and the ESO.

At the beginning of the hearing an application was made by the permit applicant to amend the plans to make design and layout changes to the development. The application was not opposed and the hearing proceeded on the basis of the amended plans. The Tribunal’s determination to direct the grant of a permit was made on the basis of the amended plans.

Two questions of law were referred to a legal member of the Tribunal (Member Djohan) for a legal opinion. The two questions were:

1. Whether the Tribunal has jurisdiction to consider the application for review under Design and Development Overlay Schedule 6 (DDO 6) of the Southern Grampians Planning Scheme having regard to the exemption from notice and appeal rights under that provision, and section 82(3) of the Planning and Environment Act 1987?
2. Is compliance with the built form requirement in DDO 6 a relevant consideration for the Tribunal in reviewing Council’s decision to grant a permit for buildings and works pursuant to the Rural Living Zone and/or Environmental Significance Overlay Schedule 3?

The legal member answered the two questions with the following legal opinion:

1. The Tribunal did not have jurisdiction to consider the application for review under DDO 6, having regard to the exemption from notice and objector appeal rights under that provision and s 82(3) of the Planning Act.
2. The Tribunal, in considering the proposal overall, must take the grant of the permit under DDO 6 as a matter that has been established. The weight to be given to the grant of a permit under DDO 6 in the consideration of the ‘cover all’ permit is a matter for the Tribunal.

Aspects of the legal opinion were the subject of an appeal to the Supreme Court.

1. If the Tribunal was correct in finding that it did not have jurisdiction to consider whether the permit application the subject of review complied with DDO 6, did the Tribunal err in making a decision which had the effect of varying the Council’s decision under DDO 6?
2. Alternatively, whether the Tribunal erred in finding that it was not required or permitted to independently consider whether the application under review complied with the requirements of the DDO 6 in the Southern Grampians Planning Scheme.

The two questions were answered against the objectors’ (now appellants’) contentions, the Court ruling that:

The legal opinion of the Tribunal was correct in law in identifying the jurisdictional limitation and determining that the existing DDO 6 decision of the responsible authority was a relevant consideration, the weight to be ascribed to it being a matter for the Tribunal. The Tribunal made its decision in accordance with these correctly stated legal principles and thus in doing so made no error of law.

The Court summarised its conclusions:

[22] The Tribunal is a creature of statute and only has the jurisdiction conferred on it by way of the relevant enabling enactment and the VCAT Act. By reason of the exemption from review in the DDO 6, s 82(3) operated to limit the jurisdiction of the Tribunal to the review of the permissions required under the RLZ and the ESO 3. This proposition was not in dispute.

[23] In taking into account the relevant considerations required by the Planning Act, in particular by s 84B including the effect of clauses 65 and 71.02, considerations relevant to an integrated decision-making approach do not extend the jurisdiction of the Tribunal to allow it to consider afresh the merits of the DDO 6. That decision of the responsible authority was ‘a given’. However, in exercising its discretion in respect of the permit triggers that were before the Tribunal, the DDO 6 permission was a relevant consideration. What weight the Tribunal afforded the DDO 6 permission was a matter for the Tribunal.

[24] Neither an order amending the application plans, nor an order requiring changes to the plans to be endorsed by the responsible authority as part of the merits determination by the Tribunal, has the effect of varying a decision of the responsible authority which was not before the Tribunal (here the DDO 6 decision of the responsible authority).

[25] In an application where there are multiple permit triggers for a proposal overall, but the permission under review pursuant to the Planning Act and the VCAT Act is limited by operation of the exemptions applying to the review, the ambit of the Tribunal’s review enquiry will be restricted to the non-exempt provisions. This approach is not inconsistent with integrated decision-making on the proposal overall. The respective decisions of Ashley J in Sweetvale, the Court of Appeal in Sweetvale and in 1045 Burke Road are not inconsistent and can be read together as establishing an approach to the proper consideration of multiple permissions, but recognising the Tribunal’s jurisdictional limitations on review where there are exempt provisions in play.

This article does not consider the Court’s reasoning or the implications of the Court’s conclusions on the questions of law. In large part, neither the reasoning nor the conclusions are controversial or a departure from what the Court had previously said. While the appellants advanced arguments as to why the Court’s decisions in Sweetvale and 1045 Burke Road were inconsistent, in truth the Court had determined similar questions in Sweetvale and it was easy to see why 1045 Burke Road was not inconsistent with that decision.

In short, where the Tribunal reviews a decision of the responsible authority to grant a permit which includes multiple permissions, the Tribunal will not (because it is not permitted to do so) assess the merits of permissions granted by the responsible authority which the planning scheme exempts from the notice and review provisions of the Act. The decision to grant such permission is to be taken as “a given” and then given such weight in the Tribunal’s overall assessment of the application as the Tribunal considers appropriate. So that, in the case of the DDO that applied in the matter before the Tribunal, the objectors were not permitted and the Tribunal was not empowered to argue or consider the merits of the council’s decision.

To be clear, though, that is not to say the responsible authority is not empowered to consider the merits of a permission that is exempt from the notice and review provisions of the Act. Most definitely that is part of the responsible authority’s duty. It is also part of its duty to integrate the decisions with decisions required to be made under other permit triggers required by the proposal. The integrated decision-making is undertaken in accordance with the planning scheme and as explained by the Court in 1045 Burke Road.

The Court’s view on the Tribunal’s dispositive powers

In a less publicised part of the judgment, the Court turned its attention to the unopposed amendment of the plans that occurred as part of the Tribunal hearing and to the fact that the Tribunal’s determination was to direct the issue of a permit in accordance with the amended plans. Following leave being granted to amend the plans, the Tribunal directed the responsible authority to issue an overall permit for all permissions required for the proposa,l including the DDO permission.

The Court determined that that is not permitted.

[168] In my view, the Tribunal does not have the dispositive power to direct a permit on all permit triggers where it otherwise has no jurisdiction to consider certain exempt permit triggers due to the nature of the review right being exercised by a third party. That is not the effect of the legislation as drafted. In this review, the correct disposition is to direct the issue of the permissions under the RLZ and the ESO and it is a matter for the responsible authority, the entity with jurisdiction over the decision under the DDO 6, to issue a permit for the DDO 6 permission. If there is any inconsistency between the two sets of permissions there is ample jurisdiction in the responsible authority under the terms of Condition 1 of the Notice of Decision or via the use of s 72 of the Planning Act to harmonise any inconsistency.

And later:

[170] The Tribunal’s powers on disposition are set out in s 85 of the Planning Act and s 51(2) of the VCAT Act. The Tribunal’s orders were couched in terms of the application for review P789/2021. As the application for review is jurisdictionally limited to the decisions in respect of the ESO and the RLZ, direction to issue a permit in accordance with the endorsed plans and proposed conditions can only have force in respect of those parts of the proposal overall. As set out at [168] above, if there is any material difference or inconsistency between the plans supported by the Tribunal and the conditions, it is a matter for the applicant for permit and the responsible authority to harmonise, if necessary, by endorsing plans in accordance with Condition 1 of the decision made by the responsible authority or by making a s 72 application to bring all of the permissions into conformity. This application would only be required if there was any material difference that could not be accommodated by endorsement of amended plans in respect of the DDO 6 permission, which is a matter of opinion on which the Court will not proffer a view and which is properly a matter for the responsible authority to be satisfied.

What does this mean for responsible authorities?

In what we can only describe as a ‘surprising twist’, the judgment has significant impact on the way a responsible authority is to, firstly, issue a notice of decision to grant a permit and, secondly, consent to the amendment of plans where a proposal requires multiple permissions under the planning scheme, some of which are exempt from the notice and review provisions of the Act, where the responsible authority receives objections to the grant of a permit.

In such cases, the responsible authority is required to issue a planning permit with respect to that part of the proposal which triggers the exempt provision of the planning scheme and to include permit conditions referable to such permission and, separately, issue a notice of decision to grant a permit with respect to those parts of the proposal that trigger the non-exempt provisions of the planning scheme and to include permit conditions referable to the non-exempt permissions. Then, if there was to be a review of the decision to grant the permit, and that review resulted in changes to the plans (either by consent or at the direction of the Tribunal), two planning permits will come into existence, with inconsistent (potentially materially inconsistent) plans.

The Court’s answer to this is to invite the responsible authority and the permit holder to reconcile the inconsistency by decisions made by the responsible authority in the course of endorsing the plans under condition 1 or by a section 72 amendment.

In terms of consenting to the amendment of plans as part of the Tribunal application for review, the Court made it clear that such amendment is permissible but the amendment can only be with regard to those parts of the proposal for which a non-exempt provision of the planning scheme is triggered. The responsible authority should not consent to an amendment other than with this in mind. In addition, whether with consent or not, the amended plans can only be the basis for a permit for the non-exempt provisions of the planning scheme (remembering that a permit would already have been issued for the exempt provisions of the scheme).