Victorian Civil and Administrative Tribunal|2000-07-31

Anthony Stokes & Assoc v Greater Dandenong CC [2000] VCAT 1613 (31 July 2000)

RESPONSIBLE AUTHORITY: City of Greater Dandenong

A W and C A Oliver of 8 Osborne Street, Dandenong and A and M Waters of 6 Osborne Street, Dandenong are joined as parties (Respondents/Objectors) to the application pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act .

Mr R Kean and Mr D Burman, Planning Officers for the City of Greater Dandenong.

Mr Richard Umbers of Stokes Planning Pty Ltd, for the Applicant.

A and M Waters and A W and C A Oliver appeared personally.

1. This is a preliminary hearing in relation to an application by Anthony Stokes and Associates under Section 77 of the Planning and Environment Act 1987 against the refusal of the City of Greater Dandenong (Council) of an application for a permit to develop and use four double storey buildings with associated car parking on the subject land.

2. The preliminary hearing was sought by the Applicant to consider the status of the Objectors on the basis that as the proposed development is in a Residential 2 Zone (RZ 2) under the provisions of the City of Greater Dandenong Planning Scheme the application is exempt from advertising procedure and from third party appeal rights pursuant to Clause 32.02-4 of the Scheme.

3. The applicant for permit was lodged with Council on 3 September 1999.

4. Council required notice of the application be given by means of notices on the site and notification to adjoining and opposite properties. Four objections were received including Mr and Mrs Oliver and Mr and Mrs Waters.

5. Council refused the application on 29 March 2000.

6. On 10 April 2000 The Applicant lodged with the Tribunal a notice of application for review against the refusal of the permit. In accordance with the Tribunal's usual practice the Applicant was required to serve a copy of the application on the Objectors which was attended to, and Mr and Mrs Waters and Mr and Mrs Oliver filed statements of the grounds on which they wished to contest the application on 17 May 2000 and 18 May 2000 respectively.

7. Submissions were made by Mr Kean and by Mr Umbers as to the entitlement of the Objectors to object and appear at the hearing. The Objectors themselves indicated they wished the right to be a party to the hearing and to make a submission but being unrepresented did not contribute to the legal argument.

8. The requirement for a permit arises from Clause 32.02-4 of the Scheme relating to RZ 2 which states that a permit is required to (inter alia) construct two or more dwellings on a lot. The Clause contains a provision for exemption from notice and appeal as follows:

An application is exempt from the notice requirements of Section 52(A)(b) and (d). The decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act."

9. The question before the Tribunal is whether these exemption provisions prevent the objectors from being parties to the hearing.

10. Section 52 is the requirement for notice of the application for a permit to be given to other persons. In this case that the Responsible Authority was not under an obligation to require that this notice be given, but the Council choose to do so because of its obligation under Section 60(1)(a) and (i) to consider all objections and other submissions which have been received and have not been withdrawn, and under Section 60(1)(b)(iii) if the circumstances appear to so require may consider "any other relevant matter".

11. Accordingly the Council considered the objections and took them into account in the decision in refusing the permit.

12. The application is also exempt from the decision requirements of Section 64(1), (2) and (3) of the Act. These read as follows:-

"(1) The Responsible Authority must give the Applicant and each Objector a notice in the prescribed form of its decision to grant a permit.

(2) The notice must set out any conditions to which the permit will be subject.

(3) The Responsible Authority must not issue the permit to the applicant -

(a) until the end of the period within which an objector may apply to the Tribunal for a review of the decision to grant a permit; or

(b) if an application for review is made within that period, until the application is determined by the Tribunal or withdrawn."

13. These provisions only apply to a decision by the Responsible Authority to grant a permit. In the present case the decision was to refuse the application for a permit.

14. The Council in this case did give copies of its decision to refuse the permit. Section 65 of the Act requires the Responsible Authority to do so.

15. The final provision for which exemption is given is the review rights under Section 82(1) of the Act. This provision entitles an objector to apply to the Tribunal for review of the decision of the Responsible Authority to grant a permit.

16. Section 82(1) is not applicable in the case as Council did not decide to grant a permit but to refuse the permit and accordingly the exemption is not applicable.

17. The next question to be considered is whether the Objectors in the present case are parties to the application.

18. The right to object is conferred by Section 57(1) of the Act which provides:

"any person who may be affected by the grant of the permit may object to the grant of a permit."

19. Unlike the provisions of Section 52(4) which specifically allow for a planning scheme to exempt any class or classes of application from the requirements of Section 52(1) there is no provision in Section 57 or elsewhere for the planning scheme to contain an exclusion of the right of a person to object to the grant of a permit.

20. The Tribunal therefore concludes that the Objectors, notwithstanding that they were not entitled to notice of the application, were entitled to object.

21. Under Section 60(1)(a)(i) the Responsible Authority must consider all objections and other submissions which it has received and which have not been withdrawn.

22. Again there is no provision in Section 60 similar to that in Section 52(4) authorising the planning scheme to exempt a Council from this obligation and no such exemption or exclusion in contained in the Planning Scheme. Accordingly the Tribunal considers that the Council was entitled and obliged to consider the objections.

23. We have discussed above the fact that Council was obliged by Section 65 to send a copy of the notice of refusal to the Objectors and that this provision was not excluded by the exemption contained in the Planning Scheme.

24. Whilst Section 82 provides that a Planning Scheme may set out classes of applications for permits the decisions on which are exempt from Section 82(1), which entitles an Objector to apply to the Tribunal for review of a decision of the responsibility to grant a permit, no such provision exists in Section 77 under which this application is made, preventing an objector from being a party to the hearing.

25. Section 83A(1) would normally entitle an Objector to the grant of a permit to be entitled to notice of an application by the Applicant for the permit for review of a decision refusing to grant the permit, but Section 83A(2) provides that this provision does not apply to a person if under a planning scheme the person is not entitled to apply to the Tribunal under Section 82 for review of a decision to grant the permit.

26. Accordingly the Objectors in this case were not entitled to notice of the application for review. However, the Tribunal did direct that notice be given and notwithstanding that the Applicant had raised the issue, the Applicant complied. This led to the Objectors giving statements of grounds of their intentions to contest the application.

27. Notwithstanding Section 83A there is no consequent provision that provides that an Objector who does serve a statement of grounds pursuant to Clause 56 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, is not entitled to be a party to the application.

28. In the present circumstances the Objectors are unrepresented and unlikely to be represented at the hearing. They advised the Tribunal at the preliminary hearing that they would make short submissions in support of the Council's submissions.

29. Section 59 of Schedule (1)(b) provides that the parties to a proceeding in the Tribunal's review jurisdiction include:

"(iv) any other person specified by or under this Act or the enabling enactment as a party."

30. Clause 56(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act provides that :

"a person who wishes to contest a proceeding under a planning enactment must lodge with the Tribunal, in accordance with the rules, a statement of the grounds on which the person intends to rely at the hearing of the proceeding."

31. It is the Tribunal's view that the exemption provisions do not have the effect of excluding the Objectors from objecting to the permit application or from lodging a statement of grounds to contest the application for review against the refusal of the permit. Ordinarily, but for the exclusion provisions, the Objectors would be regarded as parties under the enabling enactment and the Tribunal considers that the exclusion provisions have not gone far enough to rebut this presumption.

32. However to put the matter beyond doubt the decision of the Tribunal is to exercise its power under Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998 which provides:

"(1) the Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that....

(c) the person's interest are affected by the proceeding;.......",

and order that the objectors be joined as parties to the application as Respondents/Objectors pursuant to Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998 for the reasons above.

Civil and Administrative Tribunal Act 1998

Anthony Stokes & Assoc v Greater Dandenong CC [2000] VCAT 1613

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Decision date

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Judgment (50 paragraphs)

Anthony Stokes & Assoc v Greater Dandenong CC [2000] VCAT 1613 (31 July 2000)

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Legislation Cited (1)