Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit.

Clause 44.02: Salinity Management Overlay (SMO1)

Clause 45.06: Development Contributions Overlay Plan (DCPO1):

Clause 32.01-2: A permit is required to subdivide land. An application to subdivide land must meet the requirements of Clause 56.

Clause 44.02-2: A permit is required to subdivide land, unless exempted by a schedule to the Overlay. Pursuant to the Schedule, a permit is not required for buildings and works or subdivision which is undertaken on land with an approved "Salinity Action Statement" as required in accordance with the Site Salinity Management Plan (Final Report) 2004.

Clause 45.06-1: A permit must not be granted to subdivide land, construct a building or construct or carry out works until a development contributions plan has been incorporated into this scheme. The Mildura South Development Contributions Plan (3 March 2005) is incorporated in the planning scheme.

Clause 43.04-1: A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority. The exemptions under the schedule to the Overlay do not apply to this application.

An approved Development Plan titled Fifteenth Street and Riverside & Ontario Avenues Draft Report for Residential Development Plan for Mildura Rural City Council, August 2006, prepared by Freemen and Freeman Land Surveyors, was approved by the Council on 14 December 2006.

1. This is an application by objectors to review the decision of the Responsible Authority to grant a permit for the subdivision of land at 7 Delta Court, Mildura. The application is made on grounds relating to concerns about increased car parking and traffic in the court, and the collection of rubbish within the court.
2. At the conclusion of the hearing I advised the parties that having regard to the merits of the application, and having considered the submissions of the parties, I am satisfied that a permit should issue for this proposal. I gave oral reasons for my findings on this point.
3. A Development Plan Overlay (DPO1) however affects the land. Under the provision of the Overlay a permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority. This does not apply if a schedule to this overlay specifically states that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority. There are no exemptions in the schedule that apply to this application_._
4. At the hearing, I was advised that a Development Plan has not been prepared for the land.
5. By Order dated 20 February 2014, I provided the parties with the opportunity to make further written submissions about the implications for this application of the absence of an approved Development Plan.
6. I subsequently received submissions from the Council, the objectors and the permit applicant.
7. Significantly the Council has advised me that, contrary to the submissions made at the hearing, an approved Development Plan does apply to the review site. A copy of the approved Development Plan and related documentation was provided to me_._
8. Having regard to the fact that a Development Plan has been approved by the Council, the provisions of Clause 43.04-1 of the overlay, are relevant. The Clause states:

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority.

This does not apply if a schedule to this overlay specifically states that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority.

• Be generally in accordance with the development plan.
• Include any conditions or requirements specified in a schedule to this overlay.

1. In the circumstances of this case, where the Council was unaware of the existence of the approved Development Plan, I am not able to infer from the Council's Notice of Decision to Grant a Permit, that the Council has formed a view that the application is generally in accordance with the Development Plan.
2. The existence of the approved Development Plan, and the Council's conclusion about whether the current application is generally in accordance with the Plan, is also relevant having regard to Clause 43.04-2 which states:

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.

1. Having regard to these circumstances, I provided[1] the Council with the opportunity to advise me whether it has formed a view about the application to subdivide land at 7 Delta Court, Mildura and whether it is satisfied that it is generally in accordance with the approved Development Plan.
2. The Council has advised that it has assessed the application for the subdivision of the land against the provisions of the approved Development Plan. The Council has concluded that the application is generally in accordance with the Development Plan. A copy of the Council's assessment of the application, in the form of a delegate report on the application is appended to the Council's advice.
3. The Council has also provided a copy of the approved Development Plan[2]. Having reviewed the plan, I record my finding that the proposed subdivision is generally in accordance with the approved plan. I note in this respect that the plan identifies that this is an area in which smaller than average lots are appropriate.
4. As I have mentioned above, pursuant to Clause 43.04-2, where an application is generally in accordance with the development plan, the application is exempt from the notice requirements, decision guidelines and review rights of the Act. Consequently the application for review in this case is misconceived, because it has been brought by objectors who do not have a right to seek a review of the Council's decision.
5. Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal may at any time summarily dismiss all or any part of a proceeding that is in its opinion frivolous, vexatious, misconceived or lacking in substance.
6. In this case, because objectors to the application who do not have a right to seek a review of the Council's decision have brought the application for review, the appropriate course of action is to strike out the application for review, pursuant to Section 75 of the Act.
7. In making this order, I hasten to add that the objectors in this case have not acted in a frivolous or vexatious manner, and the application for review has not been pursued as an abuse of process. The objectors lodged objections with the Council on the basis that the Council had erroneously given notice of the application in the first instance. The Council accepted the objections, processed them and then subsequently issued a Notice of Decision to Grant a Permit, thereby inviting objectors to lodge an application with the Tribunal to review the Council's decision. The unfortunate circumstances surrounding this case therefore derives directly from the Council's actions in processing the planning permit application, which proceeded on the basis that it was unaware of the existence of the approved development plan.

[2] Fifteenth Street and Riverside & Ontario Avenues Draft Report for Residential Development Plan for Mildura Rural City Council, August 2006, Freemen and Freeman Land Surveyors