1. The Tribunal finds that the Applicant is not a person "who objected or would have been entitled to object to the issue of a permit" for the purposes of Section 89(1) of the Planning and Environment Act 1987.

2. Accordingly, the Applicant does not have standing to bring its Application for Cancellation of the planning permits No.s D/445/2004 and D/447/2004 both dated 27 September 2004, and the Application for Cancellation is void.

1

This matter involves Stages 9 and 10 of the Springthorpe Estate, where Council has issued planning permits for the subdivision of each of these stages. Relying on the fact that the whole Estate has been developed pursuant to a Development Plan Overlay, Council did not publicly advertise the two permits. Stages 9 and 10 lie close to areas of high environmental values and the subject land itself requires the removal of native vegetation for development. Having become aware of the granting of the two permits, the Applicant (an incorporated community group whose main aim is the preservation of the local wildlife reserves) initiated an Application to Cancel the two permits, including a stop work application. The stop work application was considered and struck out at the first hearing before the Tribunal on 14 December 2004.

2

This decision deals with the next stage of this matter, being the need for the Tribunal to make a ruling with the Applicant has standing to bring its Application to Cancel, with particular reference to the need for the Applicant to have been "entitled" to make an objection under Section 89(1) of the Planning and Environment Act ("Act"). In this regard, the starting point is that Clause 43.04-2 of the Planning Scheme (in simple terms) provides that there is no subsequent third party right to object to the granting of a permit, where a Development Plan has been approved through the ODP process. The other main provision considered was Section 57(1) of the Act, which provides that "Any person who may be affected by the grant of a permit may object to the grant of a permit".

3

In summary, I have held that the Application has not established standing to brings its Application to Cancel, relying on the broad exclusion of third party rights of objection under Clause 43.04-2, and also on my finding that the right of "affected" persons to object under Section 57 is subject to the "checks and balances" of other relevant planning provisions.

4

This matter involves an Application to Cancel in relation to the two planning permits No.s D/445/2004 and D/447/2004 both dated 27 September 2004 ("Permits"), which allow the subdivision of what is known as stages 9 and 10 in the Springthorpe Estate, MacLeod.

5

The first and most urgent aspect of this matter was the "stop work application" aspect of the Application to Cancel. I heard this "stop work application" on 14 December 2004 and gave an oral decision striking out this application, with my written decision being issued on 15 December 2004.

6

As part of this written decision, I made further directions about the conduct of the balance of this matter, including that a further half day hearing would occur on 14 January 2005 to hear submissions from the parties regarding whether the Applicant has standing to bring its Application to Cancel (this issue was raised at the 14 December hearing but I made no finding regarding same at that time).

7

In terms of the nature of the locality, the main features of the Permits and other background matters, to avoid duplication, I refer to paragraphs 3 to 5 of my earlier decision. Similarly, see my description of the relevant planning controls at paragraphs 6 to 10 of my earlier decision.

8

In relation to the basic points relied upon by the Applicant in seeking the cancellation of the Permits, see paragraph 13 of my earlier decision. Also see paragraphs 24 to 38 of my earlier decision where I set out the main submissions of Council and the Respondent.

9

I note that since the first hearing, the Applicant provided written Further and Better Particulars, which I reviewed during the second hearing.

10

After the second hearing on 14 January I received a letter dated 20 January 2005 from the Public Interest Law Clearing House ("PILCH"). This letter indicates that PILCH does not act for any party in this matter but had, at the request of the Applicant, enclosed further information about the definition of "biosites" (being an issue discussed during the second hearing). As I had not granted leave for any party to provide further information to the Tribunal after the second hearing and bearing in mind PILCH's advice that it is not formally involved in this matter, I have disregarded the PILCH letter and attachment. I note however that for the reasons set out below, my decision in this appeal has turned on other matters rather than the "biosite implications" of the subject land.

11

On the second hearing on 14 January 2005 I heard submissions on behalf of the parties from Ms Marshall for Council, then from Ms Davis representing the Applicant, then from Ms Macindoe representing the Respondent.

12

See pages 3 to 5 of the written submission by Ms Marshall, which gives a useful overview of the background to and main issues arising in this matter.

13

At paragraphs 25 to 29 of Ms Marshall's written submission there is a good summary of the nature of the standing issue and Council's basic position regarding same, as follows.

In order to bring these proceedings, the applicant must establish that it is a person under Section 89 of the Act [ie Planning and Environment Act 1987]

That is, in order to establish standing, the applicant bears the onus of proof in satisfying the two limbs of the requirements contained within section 89, namely:

• objected; or

• would have been entitled to object

to the issue of a permit (Section 89(1)(b)(iii); or

• it believes that it should have been given notice of the application and that it was no given that notice (Section 89(1)(a)); or

• that it believes that it has been adversely affected by any material mistake in relation to the grant of the permit (Section 89(1)(b)(iii).

In relation to the first limb, it is clear that the applicant did not object to the permit. Accordingly, to satisfy the first limb of section 89(1), the applicant must establish to the satisfaction of the Tribunal that it would have been entitled to object to the issue of a permit. It is Council's contention that this entitlement cannot be established in this case.

In relation to the second limb, it is submitted that the applicant is not able to establish that it believes that it should have been given notice of the application and that it was not given that notice. It is clear that the Development Plan Overlay exempts any application made under any provision of the Scheme from the notification requirements in Section 52 of the Act and it is apparent on the face of the request itself that the applicant does not believe that they should have been given notice. For instance, at paragraph 13(b) of the request "The area is subject to a Development Plan Overlay which eliminates the need to give notice...".

Accordingly, to satisfy the second limb, the applicant must be able to establish that it believes that it has been adversely affected by any material mistake in relation to the grant of the permit and it is Council's contention that this requirement cannot be made out in this case.

14

Ms Macindoe also challenged whether the Application to Cancel had been made "as soon as practicable" in terms of the Applicant's knowledge of the situation, in terms of the requirements of Section 89(3) of the Act.

15

It was common ground that no public notice of the application for the Permits was given by Council, and that no objection to the Permits had been made by the Applicant prior to the Permits being issued. Hence in this context, the issue is more whether the Applicant was entitled to object, had the Applicant known of the application for the Permits.

16

Dealing initially with the first limb of the standing issue, I have already set out in paragraph 13 above the nature of the test under the first limb, and a brief statement of Council's views regarding same.

17

Apart from relying on Clause 43.04-2 of the Planning Scheme in terms of the blanket exemption from public notification requirements that applies to "any provision of the Scheme" once a Development Plan is approved under that clause, Council in addition relied on Section 60(3) of the Planning and Environment Act 1987 ("Act"). These two provisions are set out below.

43.04-2 An application under any provision of 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.

60(3) Despite subsection (1)(a)(i), if no notice is required to be given under section 52(1) of the planning scheme for an application, the responsible authority is not required to consider any objection or submission received in respect of the application before deciding the application.

18

Ms Marshall submitted to me that the combined effect of these two provisions was to "lock out" the Applicant from any third party involvement in the granting of the two Permits, and that even if the Applicant had physically forwarded an objection to the Council before the Permits were granted, Section 60(3) of the Act would have empowered Council to ignore any such objection.

19

Ms Marshall also pre-emptively referred to Section 57(1) of the Act, on the basis that she anticipated (correctly) that the Applicant might seek to rely on this sub-section in attempting to demonstrate that the Applicant was "entitled" to lodge an objection for the purposes of Section 89(1) of the Act. Section 57(1) provides as follows.

Any person who may be affected by the grant of the permit may object to the grant of a permit.

20

Ms Marshall urged me to read Section 57(1) in the context of any restrictions on third party rights of objection in other sections of a Planning Scheme or the Act, on the basis that where there is inconsistency, these restrictions prevail. In particular, she argued that the word "affected" in 57(1) needs to be read with a practical consideration of whether the person wishing to make the objection in reality has any legal right to object. In other words, the person is not "affected" for the purposes of 57(1) if they are legally blocked from objecting under another provision of the Act or the Planning Scheme.

21

By way of example, following Ms Marshall's submission, the restrictions on third party involvement under Clause 43.04-2 override the right to object under Section 57(1) of the Act.

22

Ms Macindoe on behalf of the Respondent endorsed Ms Marshall's submissions regarding these "first limb" issues. Ms Macindoe also urged upon me that the whole approach behind the use of Development Plan Overlays is that the public consultation is concentrated in the initial stage (ie when the Development Plan is approved), so as to allow a streamlined process without third party involvement for the subsequent processing of planning permits (such as in a staged development as we have here). Ms Macindoe put to me that this "up front consultation" approach would be inappropriately usurped if Section 57(1) is given priority over Clause 43.04-2.

23

In response, Ms Davis on behalf of the Applicant in summary argued that:

• I should read Section 57(1) (particular the word "affected") broadly and, where there is any inconsistency, Section 57(1) should prevail over any other restrictions on third party rights to object;

• It is irrelevant that Council has an ability under Section 60(3) of the Act to disregard objections where there was no requirement for notice to be given, because 60(3) is directed to Council's role rather than the third party's entitlement to lodge his or her objection. As Ms Davis put it, it is "irrelevant" for our purposes here that Council has an ability to ignore an objection under 60(3);

• On the basis set out above, the entitlement to object under Section 57(1) satisfies the first limb of the standing requirement.

24

Although in her written submission Ms Davis put forward the view that the native vegetation permit requirements of Clause 52.17 fall outside of Clause 43.04-2, after some discussion at the hearing of the broad effect of the words "any provisions" in 43.04-2, Ms Davis did not pursue this point further.

25

While Ms Davis in general terms queried the practical environmental merits of the Springthorpe Development Plan and several times put to me that "a Development Plan is not the same thing as a permit", the critical point here is that (whether the Applicant likes it or not) the Development Plan has been approved, and it is not the Development Plan that the Applicants are seeking to have cancelled. In relation to the more relevant question under Clause 43.04-2 of whether there is any demonstrable inconsistency between the environmental requirements of the Development Plan and the relevant aspects of the Permit (which I highlighted to Ms Davis during the hearing), no real challenge was made by Ms Davis on this issue.

26

Having considered these submissions and having reviewed the copy of the approved Development Plan provided to me, on balance I prefer the case put by Ms Marshall and Macindoe, and I find that the Applicant has not established that it was entitled to object to the granting of the Permits.

27

Given that no real challenge was made by Ms Davis to the Permits being "generally in accordance" with the approved Development Plan, and in light of the very broad nature of the words "any provision" in Clause 43.04-2 of the Planning Scheme (together with the effect of Section 60(3) of the Act), I am satisfied that Clause 43.04-2 removed any entitlement of the Applicant to object to the Permits, subject only to the debate about Section 57(1) of the Act.

28

In relation to Section 57(1), I find more persuasive Ms Marshall's submission that the insertion of the word "affected" in 57(1) signals an intention by Parliament that the right to object under 57(1) is not a "blanket right", but a right which is subject to any exclusions which operate under other relevant provisions. If it had been Parliament's intent to allow an express right of objection without restriction, then Parliament could have drafted 57(1) without the use of any "check and balance" such as the word "affected" (but this is not the case here).

29

I also greatly struggle with the whole concept of Section 57(1) overriding the intent under the Development Plan Overlay process for the public consultation to be concentrated at the front-end stage. There seems a real case that the whole purpose and value of using the Development Plan Overlay process will be "gutted" if proponents concentrate their efforts on this upfront public consultation, obtain approval of their Development Plan, then later still have to deal with unexpected objections to individual permits by third parties. This has a strong "second bite of the cherry" flavour that seems hard to justify in terms of good and orderly planning.

30

In this regard, I also note that:

• I was advised by Ms Macindoe that the approval process for the "Springthorpe Development Plan" took in the order of two years and involved extensive public consultation;

• In particular, the Development Plan was preceded and strongly influenced by the "A Masterplan for the Future" document produced by the "Bundoora-Mont Park Reference Group", with the membership of this Reference Group including persons from a wide range of groups including two representatives from the "Warringal Conservation Society";

• The Development Plan itself is a substantial document (82 pages including attachments) including sections dealing with "Natural Environment" (5.1), "Environmental Audit Process" (5.2), "Landscape, Environment and Heritage" (11.8) and "Tree Retention and Protection" (11.9);

• The reference documents listed in Appendix A to the Development Plan include two biology reports, an arborist report and a landscaping report. Ms Macindoe confirmed that over 4000 trees on the site had been individually surveyed and ranked, and that 100% of the Grade 1 ranked trees would be protected, and 70% of the Grade 2 trees would be protected.

31

It is also significant that during the course of the hearing, Ms Davis confirmed that while no current members of the Friends of the Wildlife Reserves Incorporated Committee were involved in the consultation process that led to the approval of the Springthorpe Development Plan, it was conceded that other members of the Friends of the Wildlife Reserves Inc. group (which I was told has existed for 20 years) had been involved in that consultation process.

32

Ms Marshall relied on this fact in putting forward her submission that the Friends of the Wildlife Reserves Inc. had already had what might in layman's terms be described as a "fair crack of the whip" in terms of public consultation, and that in this context it was a "back door approach" for the Application to Cancel to have been initiated. While I do not need to make any specific finding on this point, one does wonder to what extent the current Committee of the Friends of the Wildlife Reserves Inc. consulted with its members who had been involved in the development plan public consultation process, before the Committee initiated their recent Application for Cancellation.

33

Although I was referred to the case of Anthony Stokes & Associates v Greater Dandenong City Council [2000] VCAT 1613, I consider that this case turns on its own facts, in that the Tribunal did not take into account the effect of Section 60(3) of the Act. There is also an important distinction in that the Anthony Stokes case involved objectors wishing to be joined to an appeal that was already on foot (ie a Section 77 appeal by a developer), whereas here it is the objector that is seeking to initiate the appeal itself.

34

I was also referred to the decision of Lord Haven Pty Ltd v Greater Dandenong CC [1999] VCAT 177. This case involve the proposed expansion of a place of assembly, where certain parties alleged that they should have been notice of the application and were not. On this basis, these parties took out a Section 89 Application to Cancel the relevant planning permit. In its decision, the Tribunal dealt with inter alia the key issue of whether the car parking demands of the expansion of the place of assembly could be seen to cause material detriment to the parties seeking the cancellation of the relevant planning permit. In finding against these parties on this issue, the Tribunal made the following statement at page 12 of the decision.

Further, we do not consider that Mr Symons' evidence establishes that the Applicants are persons "who may be affected by the grant of a permit", for the purposes of Section 57(1). Because of the lack of evidence of an effect on the Applicants which would give them the right to lodge an objection under Section 57, they do not satisfy Section 89(1). They cannot show that they would have been entitled to object".

35

I consider that my relevant views set out above (ie that a person's ability to object to an application under Section 57(1) should not be read literally but as subject to other "checks and balances") are consistent with the Tribunal's interpretation of Section 57(1) in this Lord Haven decision.

36

In summary, for the reasons set out above, I am not satisfied that the Applicant was "entitled" to lodge an objection to the Permits for the purposes of Section 89(1) of the Act. Accordingly, the Applicant fails the first limb of the tests under Section 89 and does not have standing to bring its Application to Cancel.

37

Given the finding I have made on the first limb of the standing issue, I am not required to formally deal with the second limb.

38

In this regard, it was common ground at the hearing that the Applicant's main submission here was that it reasonably believed that it has been adversely affected by a "material mistake in relation to the grant of a permit". In particular, the core feature of Ms Davis's submission was that a material mistake had occurred in the Council failing to properly consider "Net gain" issues and requirements, in terms of the Clause 52.17 requirement for a permit for the removal of the relevant native vegetation for stages 9 and 10 of the Estate.

39

In brief, the response of Council and the Applicant was that the Net gain requirements which form part of the decision criteria in Clause 52.17 only need to be considered "where appropriate", and that it was reasonable in the circumstances here for the Council to simply rely on the environmental assessment, surveying and ranking work done as part of the approval of the Development Plan, particularly when Stages 9 and 10 are near the end of the expansion of the Estate.

40

Suffice to say here that even if the Applicant had satisfied the first limb of the standing test, its "material mistake" submission under the second limb is far from straight-forward, with some complex issues that would have to have been considered.

41

I find that the Applicant does not have standing to bring its Application to Cancel the Permits, as I have concluded that the Applicant was not entitled to object to the Permits under Section 89(1) of the Act.

42

In these circumstances, I have not been required to make any finding on the "second limb" issue or whether the Application was brought "as soon as practicable", although I have made some passing comments on the former.

43

In relation to costs, as I was advised by Ms Macindoe and Ms Marshall that their clients would not be making any application for costs if I held that the Applicant had no standing, I have dealt with this by stating in my orders that I have made no order as to costs.

44

This case has highlighted the important role which the Development Plan Overlay ("DPO") plays in our planning system, and in particular the need for all stakeholders to have proper regard for the absence of third party rights of objection once a development plan is approved under the DPO. I note here that Clause 43.04-1 provides that a development plan must be to Council's satisfaction, and Clause 43.04-3 sets out certain points which the development plan must address, but Clause 43.04 does not require formal advertising of a proposed development plan.

45

Given the otherwise broad rights of involvement of third parties in our planning system, the DPO system needs to be administered prudently.

46

During the course of the hearing of this matter, I was provided with good evidence that there had been substantial informal public consultation prior to the Springthorpe Development Plan being approved under the DPO. Apart from the obvious benefit to the community of such informal consultation allowing community input into the contents of the development plan, this consultation has played a role (albeit as one of many factors) in the conclusion I have reached here that the Applicant does not have standing to pursue its Application to Cancel. Accordingly, there can be benefits to both sides from informal consultation regarding a proposed development plan, and I commend this process where there are legitimate community concerns about a proposed development plan under a DPO.