1. Pursuant to s 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the application filed on 7 November 2014 under s 89 of the Planning and Environment Act 1987 (Vic) to cancel permit no 2012/002933 issued by the responsible authority on 16 November 2012 is dismissed.
2. Pursuant to s 75(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the applicant is ordered to pay the costs of this proceeding, including the costs of the strike out application, of the responsible authority and of the respondent on the standard basis on the County Court scale.

Mr S. Morris QC with Mr A. Walker of counsel, instructed by Hoeys lawyers

Mr G. Peake of counsel, instructed by the Victorian Government Solicitors Office

Mr J. Gobbo QC with Ms S. Brennan SC, instructed by Norton Fulbright solicitors

1. Colonial Range Pty Ltd ('the applicant') is the registered proprietor of a property at 128-146 Queen Street, Melbourne. The applicant has made an application under s 89 of the Planning and Environment Act 1987 (Vic) ('the Act') to cancel permit no 2012/002933 dated 16 November 2012, relating to the adjoining land at 150 Queen Street, Melbourne. CES - Queen (Vic) Pty Ltd ('the respondent'), is the owner and occupier of the land at 150 Queen Street.
2. The s 89 application form was completed by the applicant's solicitors. Part 7 of the application form contains a number of questions. The first question is, "Did you lodge an objection to the issue of a permit?" The applicant responded, "No". The second question is, "Do you believe that you should have been given notice of the application for the permit and were not given that notice?" Again the applicant responded, "No".
3. The attachment to the application entitled, 'Material Facts Relied on in Support of the Application', states at paragraph 26 that the applicant is a person who is affected by the grant of the 150 Queen Street permit. This permit was issued by the Minister for Planning ('the responsible authority'). A development known as Tower Melbourne was approved by the delegate of the responsible authority on 23 July 2013. The approval plans show a 67 storey multilevel building, including 581 residential apartments, lower level retail premises and 200 car parking spaces.
4. By an affidavit sworn on 13 February 2015, Adrian Charles Salmon, Assistant Director, Development Approvals, Department of Environment, Land, Water & Planning, deposes to the fact that the land at 150 Queen Street, Melbourne is zoned Capital City Zone Schedule 1 under the Melbourne Planning Scheme. By virtue of the provisions of the scheme, applications for planning permits to use land, demolish buildings, construct buildings and carry out building and works are exempt from the notice requirements of s 52(1)(a), (b) and (d), the decision requirements of s 64(1), (2) and (3) and the review rights of s 82(1) of the Act. In other words, all of the usual rights and entitlements of objectors have been the subject of exemptions.
5. Mr Salmon also deposes to the fact that a copy of the completed application form relating to the proposed development at 150 Queen Street, a letter from Urbis dated 26 March 2012 and various expert reports, including town planning and traffic reports and a copy of the application plans were all given to Melbourne Management Pty Ltd, acting on behalf of the applicant on 16 September 2012. There was no objection or submission by or on behalf of the applicant to the responsible authority concerning the 150 Queen Street application. Subsequently, there has been a dispute between the applicant and respondent, mainly concerning access to 150 Queen Street via Penfold Place, but also concerning other issues.
6. An applicant under s 89 of the Act must be either " a person who objected, or a person who would have been entitled to object to the issue of a permit". The applicant concedes that it was not entitled to notice of the application. Counsel for the responsible authority highlights that an application for the demolition of a building, the use of land and the development of land is exempt from the notice requirements of s 52(1)(a), (b) and (d), the decision requirements of s 64(1), (2) and (3) and the review rights of s 82(1) of the Act by virtue of clauses 37.04-2, 37.04-4 and clause 3.0 (Buildings and Works) of Schedule 1 to the Capital City Zone, clause 4.0 (Demolition or Removal of Buildings) of Schedule 1 to the Capital City Zone and clause 52.06-4 of the Melbourne Planning Scheme.
7. As a result, any representation that might have been made by the applicant to the responsible authority prior to the issue of a permit would not have attracted any of the rights that objectors normally have under the Act. The Tribunal has previously considered the standing necessary to bring an application under s 89 of the Act.[2]
8. Deputy President Gibson's decisions in the footnoted cases were preceded by her decision in West Valentine Pty Ltd v City of Stonnington[3], where she examined in some detail the implications of provisions in the Act and in planning schemes that exempt certain categories of permit applications from third party notice and appeal rights. The critical point is that s 89 stands to be interpreted having regard to the provisions of the Act as a whole with respect to the opportunities and rights of third parties to participate in the decision making process preceding the grant of a permit.
9. The effect of the Act is that in the case of exempt applications, third parties have no right to object. They may in fact lodge submissions or make objections, but they have no right to object, or seek review of a decision to grant a permit as a result of any objection. They cannot be said to be 'entitled to object'.
10. The cancellation of a permit is a serious business because it tends to undermine the certainty of permits and persons acting in accordance with them.
11. In Lee v Mornington Peninsula Shire Council[4], it was noted:

It is important that there be certainty about the status of planning permits and that once issued they are able to be relied upon and acted upon. For this reason they are not to be lightly set aside and the Act contains a number of hurdles that third party requestors in particular must overcome.

1. In Phillips v Greater Shepparton City Council[5] , the Tribunal noted:

The opportunity to make a request under s 87 of the Act is open to certain categories of third persons, but they must first establish that they have standing and meet other criteria. They must then establish that there are grounds under the Act for cancelling or amending the permit. Then they must satisfy the Tribunal that they have acted properly in making the request. Even if all these criteria are satisfied, the Tribunal may still be precluded from exercising its discretion to cancel or amend if things that the permit authorises (or an amendment may authorise) fall into certain categories. The provisions of the Act are complex and each hurdle must be separately surmounted if a request is to succeed. It is also important to recognise that the power to cancel or amend a permit is discretionary and that in all cases the Tribunal must be satisfied that it is just and fair in the circumstances to cancel or amend the permit.

1. The responsible authority's research did not identify any decision of the Tribunal or of the Supreme Court of Victoria in which the correctness of Cardoso's decision has been doubted or called into question. Senior counsel for the applicant to the Tribunal conceded that if Cardoso's decision is correct, then the applicant has no standing to apply under s 89 of the Act.
2. Cardoso's case and the other cases have stood as the law applied by the Tribunal at Practice Days and generally for almost ten years. Despite the arguments advanced by senior counsel for the applicant, there is no reason to doubt the correctness of these decisions. Where third party rights including notice and review rights are excluded as is the case here, it is impossible to say that the applicant is 'entitled to object' to the issue of a permit. There is no entitlement under the Act to make an objection or have it considered.
3. I accept the arguments advanced by the respondent and by the responsible authority as to the correct construction of s 89. I do not believe that the construction of the words 'entitled to object' in s 89 is open to any real doubt. Whilst other meritorious submissions were also made on behalf of the respondent, including the lack of answering affidavit material from the applicant, the significant delay by the applicant in making this application and the provision of all relevant plans, reports and information concerning the proposed use and development of 150 Queen Street to the applicant two months before permit no 2012/002933 was granted (none of which are in dispute on the affidavit material before me), the absence of standing to bring this application is decisive.

1. As a result, the respondent's application under s 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the VCAT Act'), made on 30 January 2015, to strike out the application to cancel must succeed on the basis that the application is misconceived and lacking in substance. The applicant does not have standing under s 89 of the Act because it is not a person "who objected or who would have been entitled to object to the issue of a permit".

1. Having regard to the success of the application to strike out and to the reasons and findings that I have made, this is an appropriate matter in which costs should be ordered. The order for costs will be made under s 75(2) of the VCAT Act. I note that if I had considered the matter of costs under s 109 of the VCAT Act, the relevant considerations would include the relative strengths of the claims made by each of the parties including whether a party has made a claim that has no tenable basis in fact or law, the nature and complexity of the proceeding, and any other matter the Tribunal considers relevant. These considerations, particularly the absence of a tenable basis in law based on the decided cases, point to the appropriateness of an award of costs.

[1] This is an edited version of oral reasons given on 20 February 2015.

[2] Cardoso v Greater Bendigo City Council (Red Dot) [2006] VCAT 2043 [13]-[20] ('Cardoso'); Geelong Community for Good Life Inc v Greater Geelong City Council [2008] VCAT 1687 [43]-[47]; and Driller v Frankston City Council [2009] VCAT 2198 [14]-[18].

[3] [2005] VCAT 224.

[4] [2007] VCAT 1560 [14].

[5] (2005) 19 VPR 266; [2005] VCAT 653 [64]-[65].