1 The application to summarily dismiss the application for review under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.

2 The hearing of this matter, which is scheduled for 8 June 2005, will proceed as listed.

Mr David Barnes, town planner, of Hansen Partnership Pty Ltd

1 Application P602/2005 is made by an objector, Kim Chadband, pursuant to section 82 of the Planning and Environment Act 1987 in respect of the decision by the responsible authority to grant a permit for a 2 lot subdivision in Terip Terip, a remote rural location approximately 30 kilometres north of Yea. The proposed subdivision is effectively a boundary realignment of two existing parcels of land, one of which is a former government road.

2 The case is listed for hearing on 8 June 2005. However the respondents/permit applicants have requested this directions hearing to consider their request to dismiss the application for review under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the grounds that it is frivolous, vexatious and an abuse of process.

3 In support of their application for summary dismissal Mr Barnes submitted that Ms Chadband is not a person who may be affected by the grant of a planning permit pursuant to section 57(1) of the Planning and Environment Act 1987. In lodging an objection to the planning permit application, Ms Chadband has not stated how she would be affected by the grant of the permit as required by section 57(2) of the Act. Ms Chadband lodged a late objection (electronically) on the day of the Council meeting at which the planning permit application was decided. This was some 4 months after the advertising period closed. The permit applicants are concerned that Ms Chadband's originally objection and subsequent notice of review were not instigated at her own initiative due to a concern about the effect of the grant of a permit on her interest. To the extent that they are brought for collateral purposes and not for the purpose of having a Tribunal adjudicate on the issues to which they give rise, the proceedings can be said to be vexatious (see Attorney General v Wentworth [1998] 14 NSWR 481). It was submitted that Ms Chadband is a resident of the town Yea, which is some 30 kilometres from the subject land. The permit application is for a house lot excision in an isolated rural area, which is a relatively minor matter and the issue of a planning permit would not have the potential to result in a direct effect on persons other than abutting neighbours or with property interests in the immediate area.

4 Mr Barnes relied upon the case of Proctor v Melton Shire Council [2003] VCAT 1520. That was a case in which a large number of applications for review were made by Mr Proctor as an objector to various two lot subdivision applications, which the Shire of Melton had decided to grant a permit for. Mr Proctor was not an owner or occupier of any land in the vicinity of any of the subject sites or within the Melton Shire. The Tribunal concluded that Mr Proctor was not a person who may be affected by the grant of the permit. The Tribunal noted that each permit application deals with a particular site located in various locations, each of which has it own individual set of facts. As the Tribunal said:

[41] .... The class of person 'who may be affected' either directly or indirectly, is therefore likely in such circumstances to be extremely limited. It is not considered that the class of person likely to be affected would extend to a person who does not live or own property within the municipality.

[45] That Mr Proctor has acted, and may still act, for persons who own property in the area, as a consultant, does not in my view elevate his status to one that would be attributed to a principal not a mere agent. The special interest said to be shown by Mr Proctor would fall into the category of what was referred to as "mere intellectual or emotional concern": Australian Conservation Foundation Inc v Commonwealth of Australia and Others [1980] 146 CLR at 493 Gibbs J:

I would not deny that a person might have a special interest in a preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage other than a sense of grievance ort a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law should be prevented does not suffice to give it possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring action could maintain it.

5 Mr Barnes submitted that Ms Chadband was in a similar category to Mr Proctor. Whilst she might be someone with a general interest in planning in the area and who may have strong feelings regarding the use of excision provisions in the Rural Zone and the fragmentation of rural land, this could not be categorised as more than an intellectual or emotional concern. Ms Chadband's own interests will not be affected, directly or indirectly, rather her issues are ones of principle. No matter how strongly held, they do not give rise to a sufficient interest such that Ms Chadband could be described as a person who may be affected by the grant of the permit.

6 In my view this case can be distinguished from the situation in Proctor v Melton Shire Council. Ms Chadband is a resident, ratepayer and rural land owner in the district. As a former councillor Ms Chadband is probably in a better position than most to understand the effects that the fragmentation of rural land and an increase in non-rural residential use can have. She appears equally aware that individual decisions may not appear to have significance for persons other than abutting or nearby property owners, but that it is the cumulative effect of many small decisions that can affect the continued use of land generally for productive agriculture within an area and its rural character. Therefore, whilst Ms Chadband might not be directly affected by this proposed subdivision, I consider that as a resident and rural land owner, her interests may be indirectly affected. The implications of this decision, as one small step in a potential cumulative process, may well affect her interests in the way that the cumulative process of house lot excisions and fragmentation of rural land ownerships can affect whole areas. I regard the strength of passion expressed by Ms Chadband as being the passion born of someone who is a member of a local community rather than a passion purely of intellectual concern without any direct connection to the outcome or potential consequences of the decision or the pattern of which this decision may be part. To the extent that it was suggested that Ms Chadband is acting for a collateral purpose and at the behest of others, this is mere speculation and I was presented with no evidence to lead me to this conclusion.

7 I consider this is a case that will be best decided on its merits rather than summarily dismissing it on a technicality. Cases are generally best decided on their merits where possible and appropriate in accordance with the precepts of section 97 of the Victorian Civil and Administrative Tribunal Act 1998, which states:

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

8 I agree with the Tribunal in Proctor v Melton Shire Council that the rights of third parties to make objections to planning permit applications and lodge applications for review are not open ended. The requirement of the Planning and Environment Act in section 57, which is that only persons who may be affected by the grant of the permit may object to the grant of the permit, must be contrasted with the provisions of section 21 of the Act, which provide that any person may make a submission to a planning authority about a planning scheme amendment. There is no requirement for a person to be affected by an amendment to a planning scheme in order to make a submission about it in the way that a person must be affected by the grant of a permit in order to make an objection to a permit.

9 Third parties have very generous rights to object and participate in the planning decision making process within Victoria. However, in the case of permits those rights are not unlimited as the contrast between persons entitled to make submissions to a planning scheme amendment and to object to a permit demonstrates.

10 The Tribunal has generally taken a liberal view in construing the way in which an objector may be legitimately affected by the grant of a permit. The Tribunal recognises that people may be affected by the grant of a permit not just personally but as members of a community. The bottom line in planning decision making is the concept of net community benefit. The principle of planning and making decisions in the best interests of the overall community underpins the objectives of planning in Victoria and the objectives of the planning framework established by the Act. It is therefore not unreasonable that if a member of a community considers that the grant of a permit will affect the interests of that community, they may be regarded as being indirectly affected and may legitimately make an objection. In Guiness Mahon Pty Ltd v Moonee Valley City Council[1] (quoted with approval in Proctor v Melton Shire Council) the Tribunal said:

Whether an objector can convincingly claim to be affected will depend upon the circumstances of the case, it is not just a question of having a house near the appeal site. An application for permission to erect a garage on a backyard residential boundary might be reasonably said to affect only those in the immediate locality. A proposal that will have a dramatic affect on the amenity of the central trading area of a country town, or some principal feature in such a town, might affect all those who live, work or own property in that town. Some proposals have regional or even statewide significance. I do not wish to create a fashion for interstate objections but a proposal that would seriously impair the appearance and integrity of the Sydney Harbour Bridge or the Sydney Opera House or Uluru (Ayers Rock) would, I think, legitimately excite the interest of all Australians.

11 There will be limits to the extent that a person can rely upon community interest to justify affect by the grant of a permit. A point comes where that interest ceases to be one of a person having a legitimate interest as a member of a community and becomes merely the interest of a busybody or someone with a barrow to push. The circumstances of each case must be examined to determine if an objector's interests are so remote that they cannot be said to be a person who may be affected by the grant of the permit.

12 In Proctors case the Tribunal found that Mr Proctor had no interest that would be affected by the grant of the permits for subdivision either directly or indirectly as a member of the community or a class of persons who may be affected. By contrast, in the present case I find that Ms Chadband is a member of the local community and that indirectly her interests as a member of that community and as a local rural landowner may be affected by a decision regarding small lot subdivision in a rural area, which may be part of a cumulative process having wider implications.

13 For these reasons I refuse the application to summarily dismiss this application for review. In doing so I make no comment about the merits or otherwise of the grounds relied upon by Ms Chadband. The merits will be heard and determined by the Tribunal at the hearing listed for 8 June 2005.

[1] (1995) 15 AATR 176 at 181-182