• VCAT

June 27, 2024

Some things are between the applicant and the Council only.

Planning permit applicants are often required to respond to objectors concerns and sometimes compromise with objectors to achieve their planning approval. A supreme court decision described in this article affirms that some things are between the applicant and the Council only. VCAT cannot even consider, much less overrule councils decision to approve where there are no third-party appeal rights.

It is commonplace for objector lead appeals at VCAT to lodge a broad number of grounds as the basis of an appeal where the council issue a notice of decision to grant a permit. This can be described as ‘seeing what sticks’.

However, an objector led appeal can only rely on grounds related to permit triggers where notice and review rights apply.

A 2022 VCAT decision in Grampians Shire reinforced this position and confirmed that the tribunal does not have the power to direct a permit on all permit triggers if any of the permit triggers are exempt from notice and review rights.

The case was for group accommodation, an ‘omnibus permit’, where a permit was triggered under multiple provisions of the planning scheme. Council issued a Notice of decision to grant the permit and third-party objectors lodged an appeal of that decision.   

While the permit triggers under the zone were subject to appeal rights, there was a trigger under a Design and Development Overlay (DDO) that was exempt from those rights. The tribunal did have the power to set the decision of the council aside under the triggers that were subject to third party appeal rights but it had no power to set the decision of the council to approve the proposal under the DDO aside. On this basis, the tribunal did not assess the proposal against the requirements of the DDO as part of the appeal. 

Objectors argued at the Supreme Court that the tribunal erred in this approach and that it was contrary to the principles of ‘integrated decision making’.

The supreme court dismissed the objectors argument finding that the approach was ‘not inconsistent with integrated decision making’.

The decision reinforced the idea that some aspects of a planning application are between the permit applicant and the council only and are not subject to a review.

The takeaway for permit applicants going to VCAT is to review the grounds of appeal against the planning scheme to confirm review rights apply. If they do not, then permit applicants can seek to have the appeal struck out or, at least, reduce the number of grounds being relied on by objectors.

For objectors, it is important to ensure the grounds they rely on to make their appeal are relevant to the clauses of the scheme where review rights apply.   

The original decision of VCAT on the planning merits is available at this link.

The supreme court decision that affirmed the approach applied by the tribunal was correct is available at this link.