• VCAT

February 21, 2024

Does the planning process foster a sense of objector entitlement?  

The majority of people are aware that planning applications can be subject to objection by members of the public. However, this does not translate to mean the application will be refused if objections are lodged. Nor does it mean that a proposal must be altered to address objectors feedback.

So why do objectors get disgruntled when proposals are supported?

One obvious answer is because they have a vested interest in the outcome.  

Another simple cause is false expectations.  

The planning process in Victoria fosters the ideal that members of the public should be involved and influence planning outcomes. However, there is a distinction between an invitation to share your opinions and the weight your opinion will be given by decision makers. The purpose of the public advertising process of a planning application is an invitation to respond, however you would be forgiven for thinking that it is an invitation to decide whether a proposal should be approved.

A critical feature of public advertising process of applications is that it elicits a response from people, distinct from a process which informs people. People are requested to respond through a direct letter, email or viewing a large florescent poster on a site advising of the application.

The fact that some people feel obliged to contact council to inform them they are unaffected by a proposal supports the notion that the planning permit advertising process solicits objections.

Below is typical boilerplate text that appears on a council issued public notification letter or poster about a planning application. Some notable features of the language:

  1. It does not inform people that objections must be based on the planning scheme;
  2. The phrase ‘may be affected’ has negative connotations that will elicit a fearful response;
  3. It explicitly invites people to explain ‘how’ they will be affected with no qualification criteria to set expectations of what can be considered;
  4. It implies that objections based on perceived impacts are given weight.

Objections themselves are not the issue. The issue is the false expectation the process creates.

A person who has been elicited to provide their opinion through a direct letter will conclude their opinion is held with higher regard than if their view was not actively sought out.

This is a seminal reason for confusion and feelings of being ignored when a planning decision is not consistent with an objectors views. It is a fair observation that the active solicitation of their opinion created the perception that their opinion would form the basis of the decision.

This matter recently came to the fore in a VCAT decision where objectors had lodged an appeal against Booroondara’s council approval of a house extension and renovation at 69 Broadway, Camberwell. The grounds of appeal lodged by the objectors included heritage impacts related to demolition. However heritage grounds were struck out by the tribunal as there were no third party appeal rights under this heritage overlay. This means, compliance of the development with the overlay was subject to councils assessment only and no objectors had the right of appeal to this assessment.

This decision was unsurprising can be read in full here; however it does raise some questions about the planning process and procedural fairness, specifically –

  • Why did the objectors form the incorrect view about their appeal rights?
  • Should there have been an obligation on the objectors to be informed?
  • It also begs the question, is this fair on the planning permit applicant?
  • Would a planning permit applicant be given the same flexibility if, for example they had not met their ‘application requirements’ under the scheme?  
  • Would it lead to greater transparency in the process if there was a greater ‘burden of proof’ on objectors to substantiate their grounds.

There is a compelling argument to suggest the objections process is overly accessible and this has created an unnecessary delay to approvals being issued. It is relatively easy and inexpensive to lodge an objection and an appeal at VCAT. Self representation is permitted so there is little financial burden on proponents to run an appeal. 

The ability of objectors to be involved in outcomes is undoubtedly an important part of the planning process that exists in almost every country in some form. We don’t question whether objectors should be involved, however when we compare the expectations of planning permit applicants in meeting their obligations in seeking approval, to the ease at which objectors can object and lodge appeals, it is clear the balance in the process is disproportionately skewed towards making it ‘easy’ for objectors. It appears, permit applicants are expected to largely accept this as the ‘cost of doing business’ and this is an issue for the industry.

The Victorian Planning process is likely to undergo some significant changes on the back of the state governments commitment to build 80,000 homes each year in Victoria between 2024 – 2034. Objector appeal rights is an area the government has already targeted by removing appeal rights entirely for specific projects that you can read about here. The industry will benefit if this process continues for more classes of planning applications and it will remove the issue of false expectations being fostered by the planning process.