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[2003] VCAT 342
defendant. The application for review was struck out pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that it was misconceived and lacking in substance. The...
The Tribunal struck out a planning appeal because the objectors were challenging aspects of a development that the law said they couldn't appeal. The permit included building works and a change of use. The building works part was exempt from appeal rights under the planning scheme because the objectors' property was in an industrial zone, not a residential zone. Because the objectors only complained about the building design (the exempt part) and not the change of use (which they could have appealed), the Tribunal had no power to hear the case. The Tribunal followed earlier court decisions saying that mixing exempt and non-exempt parts in one permit application doesn't remove the exemption.
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3 cited instruments linked from this judgment.
Application for an order summary dismissing or striking out a proceeding pursuant to Section 75 of the Victorian Civil and Administrative Act 1998 on the basis that the application for permit is exempted from subsection 1 of Section 82 of the Planning and Environment Act 1987 and subsection 3 of that section includes an application for review
1. The application for review is struck out pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that it is misconceived and lacking in substance.
2. The applicants may apply to have the proceeding reinstated at any time prior to 5pm on Friday 4 April 2003.
There was no appearance on behalf of either of the applicants for review.
Ms Tania Cincotta, Solicitor of Best Hooper appeared for the Respondents/Permit Applicants.
1. This application was made on behalf of the permit applicants pursuant to Section 82 of the Planning and Environment Act 1987 ("the Act") and Clause 33.01-4 of the Yarra Planning Scheme ("the Planning Scheme") seeking that the application be struck out or dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act").
2. At the commencement of the hearing it was noted that the applicants for review did not appear in person nor were they represented. The Tribunal member was advised of their phone number by Ms Kueng and attempted to contact them. There was no response to the telephone call and a message was left on an answering machine that these proceedings would proceed in their absence and that they would receive a written notification of any decision the Tribunal made.
3. On 22 November 2002 Yarra City Council ("the Council") issued an notice of decision to grant a permit for the "construction of a three storey building and a 10 space basement carpark, for the purpose of a warehouse, office and showroom with the waiver of 1 car space".
4. On 12 December 2002 the applicants for review lodged with this Tribunal an application to review Council's decision to grant a permit on the following grounds:
* The proposed building will have an unreasonable impact on our rear garden by way of
* The height and unrelieved extent of the wall on our boundary will cause an overwhelming 'sense of enclosure' of our rear private open space.
* Whilst the subject site and surrounding properties are located in an industrial zone this does not mean a development can disregard its context and its boundary condition. The design and architectural detail of the office building has no regard to the existing streetscape rhythm or its interface with our property.
5. A merits hearing of the application has been listed for 7 April 2003.
6. The proposal comprises of the following components:
(a) construction of a three storey building with basement car parking ("the building and works application");
(b) use of the land for the purpose of warehouse, office and showroom;
The use of the premises as a "warehouse" is as-of-right.
7. The following is an extract from a written submission tendered by Mr Cincotta on behalf of the permit applicants:
DOES THE TRIBUNAL HAVE JURISDICTION TO DETERMINE THE APPLICATION FOR REVIEW?
Pursuant to Clause 33.01-4 of the Industrial 1 Zone a permit is required to construct a building or carry out works. Clause 33.01-4 provides inter alia that:
"An application is exempt from the notice requirements of Section 52(1)(a), (b) and (c), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act. This exemption does not apply to an application for building or works within 30 metres of land (not a road) which is in a residential zone of Business 5 Zone, land used for a hospital or an eduction cne4tre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre".
Although the applicants for review's dwelling is located within 30 metres of the subject site, their land is located within the Industrial 1 Zone and is a non-conforming use as use of the land for the purpose of accommodation is prohibited in the zone.
It is submitted that none of the exceptions in Clause 33.01-4 apply as the proposed building is located more than 30 metres from land:
* In a Public Acquisition Overlay to be acquired for a hospital or education centre.
Accordingly, the permit application insofar as it relates to building and works is exempt from the notice requirements in Section 52 of the Act and the review rights of Section 82(1) of the Act.
8. The Tribunal was referred to a decision of this Tribunal in Sweetvale Pty Ltd v Minister for Planning [2001] VCAT 1427 and the decision of the Supreme Court which upheld the Tribunal's decision on appeal Sweetvale Pty Ltd and Anor v VCAT and Ors [2001] VSC 426.
9. Having regard to these decisions the Tribunal accepts that it is irrelevant that a single permit application was made and that the building and works component of the application is exempt from the review rights of Section 82(1) of the Act on the basis that the grounds of appeal relate solely to the proposed building and works. The Tribunal concludes that by virtue of Section 82(3) of the Act, no application for review can be made and the matter should be struck out for want of prosecution.
10. As the applicants were not present at the hearing it was not possible for the Tribunal to consider whether it was appropriate to amend the applicants' grounds of appeal so that they related to the planning permissions required either for the use of the premises as an office and showroom or the waiver of car parking.
11. At the conclusion of the hearing the Tribunal indicated that the application for review would be struck out on the basis that an application could be made for its reinstatement no later than 5pm on Friday 4 April 2003.
Forge & Anor
Yarra CC [2003] VCAT 342
The application for review was struck out pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that it was misconceived and lacking in substance. The applicants were permitted to apply for reinstatement prior to 5pm on Friday 4 April 2003.