Council Planning Submissions at VCAT

In light of recent planning scheme reforms, advocates for responsible authorities in planning cases at VCAT should ensure that they:

• address the Tribunal on the reforms and any consequences for their case, as part of their submissions
• specifically raise and address as a preliminary issue at the commencement of the hearing:
  • any changes to the permit triggers for an application
  • any changes to third party rights in respect of an application
• carefully settle or review any draft permit and conditions to ensure that:
  • the description of what the permit allows (or would allow) reflects the current permit triggers
  • the permit conditions are valid considering the current permit trigger/s for the permit application.¹

Advocates for responsible authorities should note that the Tribunal's website specifically requests that their submissions address:

• any amendments to the zones, including details of any relevant schedules, since the authority's decision
• any other changes to the planning scheme affecting the permit application
• why a permit is currently required under each relevant provision in the planning scheme (i.e. identify the current permit triggers)
• any changes to third party rights and provide a current statement of third party rights in respect of each permit trigger.

In preparing any submissions (and draft permit conditions) to the Tribunal, advocates should also remember that:

• the Tribunal is bound to apply the facts and the law (including the planning scheme) as they are at the time of making the determination (not at the time Council made its determination)²
• where a proceeding no longer needs to be heard and determined on its merits (for example, due to the effect of the planning scheme reforms), the procedural order the Tribunal makes to dispose of the proceeding must be made in accordance with the law having regard to the outcome that should flow from the order.³

Disposal of cases by the Tribunal

In some instances, the effect of the planning scheme reforms will render a review application moot, either because the proposed use or development no longer requires a permit or because of changes to third party review rights.

In these cases, a responsible authority should consider how the Tribunal is likely to dispose of the proceeding. The Tribunal has issued two recent Red-Dot decisions on the subject: Friends Of The Surry Inc v Minister for Planning (includes Summary) (Red Dot) [2013] VCAT 157, (Friends Of The Surry) and Tambo Ash Pty Ltd v Port Phillip CC [2013] VCAT 1390 (Tambo Ash).

Friends Of The Surry concerned eight applications for review by Friends Of The Surry Inc of decisions by the responsible authority, the Minister for Planning, to grant various permits. Four days before the merits hearing was due to commence, Amendment C93 to the Glenelg Planning Scheme was gazetted and came into force. The Amendment had been prepared by the Minister for Planning under section 20(4) Planning and Environment Act 1987 (Planning Act). The Tribunal, constituted by Deputy President Gibson, described the effect of the Amendment as follows:

[9] The effect of the Amendment was to provide that no permit was required for the specific uses, developments and/or subdivision approved by the Minister. In substance, it rendered the review applications moot, as even if the review applications were successful, the relevant activities would no longer require a permit under the Scheme.

In essence, there was no longer any need to hear or determine the application for review on its merits. The issue then for the Tribunal was whether it should:

• set aside the decision of the responsible authority pursuant to section 51(2) of the Victorian Civil and Administrative Act 1988 (VCAT Act) and section 85 of the Planning Act so that no permit was granted; or
• pursuant to section 124 of the VCAT Act, declare that following the Amendment, the notices of decision to grant a permit are of no force and effect and that the proceedings are struck out as being misconceived pursuant to section 75 of the VCAT Act.

Ultimately, the Tribunal disposed of the proceeding by making an order setting aside the decisions of the responsible authority and directing that no permit is granted.

The Tribunal did not consider it appropriate to strike out the applications for review, finding that none of the grounds for doing so under section 75 of the VCAT Act were satisfied. Most relevant to these grounds, the Tribunal found:

• the applications were not misconceived but were valid applications for review
• the Tribunal did not lack jurisdiction because, in its review jurisdiction, the Tribunal's jurisdiction rests on the making of a valid application for review and the applications here were valid.⁴

Additionally, the Tribunal found there was no basis for it to make a declaration under section 124 of the VCAT Act that the notices of decision were of no force and effect because they were valid at the time they were issued and the Amendment did not alter their status.⁵

The Deputy President further noted:

[23] …Even if I was minded to strike out the applications under section 75, the outcome that would flow from such an order would be to confirm the status quo as under section 64(3)(b) Planning and Environment Act 1987 permits in accordance with the notices of decision would be required to be issued by the responsible authority.

More recently, Tambo Ash concerned an objector's application for review of a decision to grant a permit for use and development of land for a beauty salon.

As a consequence of the gazettal of planning scheme Amendment VC100, a permit was no longer required for the proposed use of the land. While the Tribunal found that several permits were still required in connection with the proposed beauty salon, none of them were subject to third party notice and review rights. Consequently, the objector applicant had no right of review and consequently, the Tribunal found it had no jurisdiction to determine the merits of the application for review.

Unlike Friends Of The Surry, the Tribunal found a permit was still required for certain matters here, but in a different form from what Council had decided to issue.

To this end, the Tribunal observed that:

• there should be no reference to use in what the permit allowed
• because the use was as-of-right, it was no longer possible to impose conditions over hours of operation
• the permit was deficient because it omitted any reference to the permissions required under the Heritage Overlay and under clause 52.06 to reduce car parking.⁶

In the circumstances, the Tribunal made an order setting aside the decision under review and pursuant to section 51(2)(d) of the VCAT Act remitting the matter back to the responsible authority for reconsideration in accordance with a direction. The direction required the responsible authority to consider the permit application and determine whether to grant a permit for all matters requiring a permit under the planning scheme in accordance with the planning controls applicable at the time of making the decision.

VCAT Practice Note – PNPE2 Information for Decision Makers

Early this year the VCAT Rules Committee issued a revised Practice Note PNPE2 Information for Decision Makers.

The revised Practice Note requires the responsible authority to serve a copy of the completed table (but not attachments) on:

• the applicant for review and the permit applicant in the case of applications for review under sections 77, 79, 80 and 82 of the Planning Act
• the applicant (if the applicant is not the responsible authority) in the case of:
  • an application for an enforcement order under section 114 of the Planning Act
  • applications under sections 149A or 149B of the Planning Act for a declaration, determination or direction
• the applicant for review in the case of:
  • applications under sections 87, 87A or 89 of the Planning Act to cancel or amend a permit
  • an application for review of a decision of a specified body under section 149 of the Planning Act
  • applications for review of extension of time under section 81(1)(a), 81(1)(aa) and 81(1)(b) of the Planning Act
  • an application under section 81(2) of the Planning Act for review of a decision to extend time under section 54A to provide further information under section 54
  • an application for review of a requirement under section 78 of the Planning Act.

These requirements are in addition to the requirement for Council to provide the requisite practice note material to the Tribunal within 10 business days of receiving notice of each VCAT application.

Changes to the Major Cases List

On 1 June 2013, the Victorian Civil and Administrative Tribunal (Fees) Regulations 2013 came into operation, changing the eligibility criteria for inclusion in the Major Cases List and introducing a 'user-pays' fee system.

Under the new Regulations, an application is eligible for inclusion in the List if:

• it is an application under sections 77, 79, 80, 82, 82B or 87A of the Planning and Environment Act 1987 and the proceedings are in respect of either:
  • a development that does not include a 'dwelling' (as that term is defined in the Victorian Planning Provisions); or
  • a development of any kind, provided that the estimated cost of development is $10 million or more
• it is an application under sections 33, 33A or 33B of the Environment Protection Act 1970 and the proceedings are in respect of a development of any kind, regardless of the estimated cost of the development.

The Tribunal has published information about the changes together with an updated Practice Note – PNPE8 – Major Cases List (Planning) and relevant forms on the website.