[15] The West Valentine case was concerned with the rights of third parties in respect of applications for review of a decision regarding the grant of a permit. I consider that the principle it establishes can be extended to applications to cancel or amend a permit under section 87 as well as applications concerning the initial grant of a permit. Indeed, it would be strange if it was otherwise. As I said in the West Valentine case:

[14] ... The Act and the planning scheme provisions set out certain classes of applications for permit that are exempt from the notice and review provisions of the Act by third party objectors. It would be contrary to the purpose underlying these provisions if, by nevertheless submitting an objection, a person could thereby gain rights to be a party in applications for review other than one concerning a decision to grant the permit.

It would equally undermine the purpose underlying the provisions of the Act and planning scheme regarding exempt applications if a person who was not entitled to notice or review rights could nevertheless challenge a permit, once granted, by lodging a request under section 87 to cancel or amend it.

[16] There is a very explicit scheme in the Act that exempts objectors from reviews in certain classes of permit applications. In my view, the words "entitled to object" in section 89 must be read having regard to the scheme established by the Act as a whole with respect to the opportunities and rights of third parties to participate in the decision making process about the issue of permits.

[17] It is true, as noted in West Valentine, that there is nothing in the Act that precludes a person who may be exempt from notice and review rights from submitting an objection. However, the point was made that:

[6] ... if no notice is required to be given under section 52(1) or the planning scheme of an application, section 60(3) provides that the responsible authority is not required to consider any objection or submission in respect of the application which may have been made. Again, the Act does not preclude a responsible authority from considering such objections if it wishes but that does not thereby create any rights for those objectors.

[18] The whole tenor of the provisions in the Act is that in the case of exempt applications, third parties have no 'rights' to object. They may in fact object but those objections carry no rights to be considered by the responsible authority, or for objectors to be given notice of the decision or to participate in a review of the decision.

1. This case is an example of the confusion that is caused when so-called 'notice' of a permit application is given to people when there are no third party rights of notice or review. It is very difficult if people are invited to participate in a process but are then denied what they perceive to be their 'rights' of review should they not agree with the outcome of the council's decision. In Saunders v Frankston CC[5] the Tribunal gave a clear direction that in any circumstances where a Development Plan Overlay applied to land, notice should not be given to people. Since that decision, the council has amended its former policy and hopefully this will eliminate the type of confusion, which has occurred here.
2. Of course, this will not necessarily mean that people will be happy about being shut out of the planning process as a consequence of the provisions of the Development Plan Overlay. However, the continued retention of the Development Plan Overlay over areas of established development is a strategic issue that the council in its role as planning authority must determine. In its role as a responsible authority, the council (and on review, the Tribunal) must apply the provisions of the Development Plan Overlay as set out in the planning scheme.
3. For these reasons, the application to cancel the permit will be dismissed.

An application under any provision to this scheme which is generally in accordance with the development plan is exempt from the notice requirements of Section 52(1)(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.

[2] I note that under section 64(5) of the Act, the council should have given a copy of its decision to each objector (as distinct from giving notice of its decision), but it does not appear that this was done. This failure has no legal effect in terms of the current application to cancel the permit.

[3] [2005] VCAT 243

[4] [2006] VCAT 2043

[5] [2009] VCAT 144