(1) If a planning scheme requires a permit to be obtained for a use or development of land or in any of the circumstances mentioned in section 6A(2) or for any combination of use, development and any of those circumstances, the application for the permit must -

(a) be made to the responsible authority in accordance with the regulations; and

(c) be accompanied by the information required by the planning scheme; and

1. Regulation 15 of the Planning and Environment Regulations 2005 provides that an application for a permit under section 47(1)(a) of the Act must be made in writing to the responsible authority and must set out certain prescribed information.
2. Section 58 of the Act requires the responsible authority to consider all applications. It states:

58 Responsible authority to consider all applications

(1) Subject to subsection (2), the responsible authority must consider every application for a permit.

(2) A responsible authority must not consider or make a decision in respect of a DAC application within the meaning of Part 4AA.

1. Under section 52(1A), the responsible authority may refuse an application and, if it does so, it does not have to give notice under the other provisions of section 52(1) or (1AA).
2. Under section 59, the responsible authority may decide on an application without delay if it is not required to give notice under section 52(1) or52(1AA).
3. Under section 61(1)(c) the responsible authority may decide to refuse to grant a permit on any ground it thinks fit.

Can a responsible authority refuse to accept a valid permit application?

1. In determining this issue, a distinction should be drawn between:
   • What constitutes a valid permit application; and
   • Whether the use, development or other permission applied for is prohibited.
2. In my view, the issue of whether there is a valid permit application turns on whether the requirements of section 47 are complied with.[1]
3. It is not in dispute that the permit application made by the applicant and lodged with the council on 24 January 2013 contained all the information required by regulation 15; was accompanied by the prescribed fee; and was accompanied by the information required by the planning scheme.
4. I therefore find that the application complied with section 47 and a valid permit application was made. The fact that the council says it was an application for a development, which was prohibited under the planning scheme, does not affect the validity of the application itself. Prohibition of the proposed use or development under the planning scheme (or Act) is a reason why the responsible authority should decide to refuse to grant a permit. However, the responsible authority should not be making this decision before it accepts the application.
5. In my view, arguments that a council is entitled to refuse to accept or to reject a permit application for something that is prohibited on the basis that there cannot be a valid application for something that a responsible authority has no power to grant a permit for, confuses the two issues referred to above - the validity of the application vis-à-vis the power to grant a permit.
6. A similar issue was dealt with in Schnapp v Nillumbik SC[2]. The permit application in Schnapp was for a subdivision with lot sizes considerably smaller than permitted in the planning scheme. A submission was made that as the subdivision proposal was prohibited, there was no requirement to obtain a planning permit under the planning scheme, and consequently the council was entitled not to process the application. Senior Member Rickards held that:

[24] In this case an application to subdivide land is not prohibited under the Rural Conservation Zone Schedule 3 of the Nillumbik Planning Scheme. It would in my view be different if for example what was applied for fell within section 3 of the Table to clause 35.06 which is clearly prohibited. What however is prohibited in this case is the lot sizes proposed by Mrs Schnapp in her application. In my view the Responsible Authority should have accepted the application and then if the proposed lot sizes were not in accordance with the requirements of the planning scheme, refused the application or allowed Mrs Schnapp, if she so wished, to amend her application.

1. The Tribunal went on to determine that Mrs Schnapp was entitled to make an application for review under section 79 against the council's failure to determine the permit application, but as what was proposed was prohibited under the planning scheme, the application for review should be struck out as being misconceived and vexatious.
2. I agree with the approach adopted by Senior Member Rickards, although I would reject her reservations about a potentially different view if a use applied for fell within section 3 of a table of uses in a zone. In my view, it does not matter how the use, development or other matter may be prohibited, the procedure to be adopted by a responsible authority in considering a permit application should be the same. It should accept the permit application if it meets the requirements of section 47 and then refuse to grant a permit on the grounds that it is prohibited.
3. To find otherwise and enable councils to reject applications for a prohibited use or development carries with it practical problems.
   • It effectively requires a council to consider the substance of a permit application and make a decision before, in fact, 'receiving' the application.
   • It creates difficulties for a permit applicant who disagrees with that decision. A permit applicant may have recourse to the Tribunal to seek a declaration under section 149A(1)(a) of the Act, but assuming the applicant is successful and the Tribunal makes a declaration that the use or development is not prohibited, the applicant must then return to the council to have its application properly considered and may then need to return to the Tribunal once more to review that decision. This is an unnecessarily convoluted process.
   • There is a potential lack of transparency or inconsistency in approach (as the applicant alleges in the present case) in decision making if a council can reject a permit application without considering it properly as required under the Act.
4. Nevertheless, aside from practicalities, I consider that the scheme set out in the Planning and Environment Act 1987 as a whole for achieving the objectives of the planning framework established by the Act, in particular section 4(2)(j) to provide an accessible process for just and timely review of decisions without unnecessary formality, and the framework of the Victorian Civil & Administrative Tribunal Act 1998 lead to a conclusion that the responsible authority does not have the power to reject a valid permit application on the basis that what is applied for is prohibited under the planning scheme (or Act).
5. If a permit application is made for a use or development that is prohibited, the council can act quickly to refuse to grant a permit (section 59). It does not require any notice to be given of the application (section 52(1)(A)). Any arguments of a technical legal nature, such that a council cannot refuse to grant a permit for something that is prohibited and consequently for which no valid application can be made, are addressed by section 4(2)(a), (b) and (c) of the Victorian Civil & Administrative Tribunal Act 1998, which provide as follows:

(2) For the purposes of this Act or an enabling enactment -

(a) a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;

(b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decisionmaker;

(c) a refusal by a decision-maker to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision;

1. In my view, the effect of these provisions is to remove any basis for arguing that a council should reject a permit application for a prohibited use or development rather than accept the application and make a decision to refuse the permit. These provisions enable the Tribunal to fulfil the obligation cast upon it under section 97 of the Victorian Civil & Administrative Tribunal Act 1998 to act fairly and according to the substantial merits of the case in all proceedings. The numerous provisions within the Act, which enable the Tribunal to rectify deficiencies in documentation or omissions in conduct,[3] similarly lead to a conclusion that the intention of the Victorian Civil and Administrative Act 1998 is to give the Tribunal capacity to review decisions in a straightforward manner on their merits, including whether there is any power to grant a permit. This view is reinforced by section 58 of the Planning and Environment Act 1987, which provides that the responsible authority must consider every application for a permit.

Has the responsible authority accepted the application and made a determination?

1. Notwithstanding the correspondence that has occurred between the parties and the council's view that it cannot consider the application, I find that, in fact, the council has accepted the application and has made a decision under section 61(1)(c) of the Planning and Environment Act 1987 on the application to refuse to grant a permit.
2. First, this is not a situation where the application was rejected at the counter. Rather, the application was lodged with the council; the council accepted the application fee and gave the application a file number. It kept and considered the application over a three week period before communicating with the applicant. I find that these actions constitute an acceptance of the application on the part of the council.
3. Second, the council's letter dated 13 February 2013 includes a detailed assessment of the application against the relevant provisions of the Mildura Planning Scheme. Whilst the council does not specifically say that it refuses to grant a permit on the basis that the development is prohibited, I find that the effect of the letter is to refuse to grant a permit and that there are grounds for this refusal set out in the letter.
4. Regulation 27 of the Planning and Environment Regulations 2005 provide that a notice of a decision to refuse to grant a permit given under section 65 of the Act must be in the form of Form 7. This form is set out in the schedule to the regulations. The council's letter dated 13 February 2013 does not comply with the regulations.
5. If, as I have found, the council has made a decision to refuse to grant a permit, then it must issue a refusal in the form required by the regulations and otherwise comply with the requirements of section 65 of the Act. Under section 149B(2) of the Planning and Environment Act 1987 I can make any declaration that I consider appropriate and direct the council (as responsible authority) to take action specified by the Tribunal. It is therefore open to me to make a declaration on this issue that the council has made a decision and that it must issue a refusal in the form required by the regulations and otherwise comply with the Act.

1. I have been asked to make a declaration that the council is required to accept the applicant's permit application and to make a decision on it. I have found that, in fact, the council has accepted the application and it has made a decision, although it has not given notice of its refusal in the form required by the regulations.
2. I consider that in order to determine this particular proceeding, I should make a declaration to the above effect and direct the council to issue a refusal in the form required by the regulations.
3. However, my findings about the first issue raised in this proceeding, that a responsible authority must not reject a valid permit application made under section 47 of the Planning and Environment Act 1987 on the basis that what is applied for is or may be prohibited under the planning scheme or Act, has broader implications for responsible authorities generally.
4. Under section 58 of the Act, a responsible authority must consider every application for a permit. Responsible authorities should confine their inquiries when a permit application is lodged with them, to whether the requirements of section 47 have been met. An application may be rejected if these requirements are not met. If a valid permit application is made, and it is evident that what is applied for is prohibited under the planning scheme or Act, the responsible authority should act quickly to refuse to grant a permit without requiring notice. It should then issue a refusal in the form required by the regulations. This then leaves it open to the permit applicant to apply to the Tribunal for a review of the decision under section 77. The issue of whether what has been applied for is prohibited is a jurisdictional fact, which the Tribunal must determine. It has the power to do this under the Victorian Civil & Administrative Tribunal Act 1998 because of the operation of section 4(2).

[1] Even if an application is deficient in terms of complying with the requirements of section 47, such as payment of the fee and provision of information required, this does not necessarily mean that there is not a valid application. See ML Design Pty Ltd v Boroondara CC [2005] VCAT 2088

[2] [2012] VCAT 951

[3] For example see sections 98, 126, 127, clause 62 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998