Mr. John Cicero, solicitor of the firm of Best Hooper Solicitors, appeared for the applicant company Hope and Percy Pty Ltd. He presented written and oral submissions.

Mr. Loudon Luka, town planner of the City of Moreland appeared for the responsible authority. He made oral submissions.

Mr. Anthony Field appeared in person and made oral submissions.

Mr. Hugh Moore appeared for Sarah Davey Moore and made oral submissions.

Application under s.80 of the Planning and Environment Act 1987 (PE Act) for review of conditions in a Notice of Decision to Grant a Permit.

Four storey building containing 41 dwellings and home offices

Business 2 Zone and Mixed Use Zone. Also subject to a Heritage Overlay, an Environmental Audit Overlay and an Incorporated Plan Overlay.

Condition 1(b) on the Notice of Decision to Grant a Permit issued by the responsible authority on 4 April 2006.

1 The land to which this proceeding relates is, amongst other planning controls, subject to an incorporated plan overlay. The incorporated plan in question is known as City of Moreland 21-35 Hope Street, Brunswick Incorporated Plan - September 2003. That incorporated plan covers a wider area of land than just this site. I recently dealt with another case namely Meehan v. Moreland City Council and Hope Care Services Pty Ltd No. 1 [2006] VCAT 1422 in relation to adjoining land to the review site in this case, which was also within the area covered by the incorporated plan. That case has the VCAT reference number of P1038/2006. The decision I was called upon to make in that case was a preliminary question, somewhat similar to that which arises in this present case.

2 The relevant planning scheme provisions provide an exemption in relation to applications subject to the incorporated plan if the proposals are "generally in accordance with" the incorporated plan.

3 The specified extent of that exemption is that the permit application is, firstly, exempt from the requirement that would otherwise arise under s.52(1) of the Planning and Environment Act 1987 (PE Act) for the giving of notice of the application. It is by the giving of such notice that potential objectors have an opportunity to know of an application and thus to have an opportunity, if they see fit, to object to the application. When I say object in this context I mean to lodge a written objection pursuant to the PE Act.

4 By and large that exemption denies potential objectors the opportunity to become actual objectors under the Act.

5 The exemption also specifically provides that notice of the decision of the responsible authority in relation to the application, which would otherwise be required to be given to objectors, is exempted from being given to them. Thus potential objectors are not given notice of the decision of the responsible authority, and thus are denied the opportunity to apply to the Tribunal to review that decision. Objectors might well otherwise seek to review a decision of the responsible authority to grant a permit. Section 82(1) PE Act provides objectors with that opportunity. It affords them "standing" for an objector's review against the decision to grant a permit. Standing means the legal right to bring the proceeding.

6 However, the third aspect of the exemption specifically provided for in the legislation is an exemption that denies objectors the right to apply for such a review. The exemption, where it applies, effectively prohibits a review under s.82(1) PE Act.

7 That accounts for the specified exemptions in the legislation. However, the legislation gives rise to further exemptions. A permit applicant, dissatisfied with the decision of the responsible authority, may apply to the Tribunal for a review. For example, a permit applicant can apply under s.77 of the PE Act for a review of the responsible authority to refuse to grant a permit. In the event of a failure of the responsible authority to make a decision within the prescribed time on an application for a permit the permit applicant can apply for a review under s.79 PE Act. Even where the responsible authority determines to grant a permit, a permit applicant can apply for a review of the decision of the responsible authority to impose one or more of the conditions it has imposed or proposed as part of its decision. That right is given by s.80.

8 These three varieties of permit applicants' reviews (ss.77, 79 and 80) are, of course, brought by permit applicants. Ordinarily, objectors, if they have lodged valid objections under the Act, would be entitled to participate in such review proceedings. The exemption provisions do not specifically state that objectors are excluded, although it is unlikely that there will be any valid objectors where the other specific exemptions apply. Nevertheless, the absence of a specific spelling out in words of an exemption does not mean that there is no legal exemption that excludes objectors or would be objectors from being respondents to reviews brought by permit applicants. In fact, the decision of the Tribunal in West Valentine Pty Ltd v. Stonnington CC, Grey and others [2005] VCAT 243 deals with these questions in carefully reasoned detail. It comes to the view that objectors or would be objectors in such circumstances are not parties to the review and have no standing to be parties. I indicated at the hearing that I have examined the reasoning in the West Valentine case and that it appears to me that the reasoning and the decision in that case are both sound. This does not mean that I was unprepared to listen to arguments to the contrary, or that I was unprepared to be persuaded to the contrary, if sound arguments in support of that view could be produced. However, in the event, nobody sought to disagree with West Valentine, so I have proceeded on the basis that it is good law.

9 The real issue before me was the question as to whether the proposal in the current case is generally in accordance with the incorporated plan. If it is, then the exemptions apply, including those discussed in West Valentine. This current case is a conditions review under s.80 PE Act. If the proposal is generally in accordance with the incorporated plan, then neither Mr. Field nor Ms. Moore, nor any other potential or purported objectors have standing to be respondents, or parties at all, in relation to this case.

10 I have had no real difficulty in concluding that this proposal is in general accordance with the incorporated plan. I come to that conclusion broadly on the basis of the reasons set out in the Meehan case referred to earlier. Having set out the reasoning in some detail in that case, I do not find it necessary to repeat all the arguments here. In brief summary, I accept that an incorporated plan that is clear, precise and detailed is in a different position to a broad or ambiguous or merely indicative incorporated plan. The clearer and more specific the plan, the more closely a particular proposal will need to comply with it to answer the description of being generally in accordance with it. Conversely, a broad, general, indicative and/or ambiguous plan provides a greater scope of variation whilst remaining within the description of being in general accordance.

11 In relation to the incorporated plan applicable in this case, which is the same one that was applicable in the Meehan case, there are ambiguities. The plan comprises some drawings or drawn plans and some written text. The drawings have notations on them which, amongst other things, indicate buildings to a height of 3 storeys. However, the written text makes it clear that, except in a particular area away from this review site, building height, measured in storeys, can go up to 5 levels. I have no difficulty in concluding that this 4 level proposal is generally in accordance with the incorporated plan.

12 The incorporated plans documentation include some indications of development to include 3 storey townhouses with home offices. However, there are other indications that ultimate developments and uses are not confined to 3 storey townhouses with home office components.

13 In the Meehan case I concluded that a proposal which included two areas depicted separately on the incorporated plan might be consolidated into one building and still be within general accord, and that the building could furthermore still be in general accord whilst being for accommodation for elderly persons.

14 This current case involves a proposal for 4 storeys with apartments, some of which are to have home office components. I remain satisfied that the reasoning in Meehan is correct. On that basis the proposal in the current case must certainly be in general accordance with the incorporated plans. Quite apart from Meehan's case, I would come to the view that it is in general accordance.

15 It is a surprising thing that Mr. Field, Ms. Moore and others received notice and were thus invited to react as objectors (an invitation which they accepted). They were given such notice because that was required by the responsible authority. The responsible authority now admits, somewhat reluctantly, that the direction requiring the giving of notice is not supportable in view of the decision in Meehan's case. I think that concession by Mr. Luka, who appeared on behalf of the responsible authority, was properly made.

16 At the time the applicant company protested against the direction claiming that it was inappropriate. However, faced with being required to give notice before the responsible authority would consider its application, the company did give the notice in accordance with the requirement imposed on it by the responsible authority. Mr. Cicero, who appeared for the company, observed that this was done prior to his involvement in the case.

17 I am satisfied, in accordance with his submissions made on behalf of the company, and as now conceded on behalf of the responsible authority, that the direction for the giving of notice under s.52 should not have been given because the proposal is exempt. It is unfortunate that the responsible authority behaved as it did in this respect. It has given a number of owners and occupiers of property the impression that they are entitled to object and participate in any review proceedings. It gives them that impression, but it is a false impression. It would be better that the responsible authority complied with the law on questions like this, even if it regrets that the law takes its present form.

18 It was argued by Mr. Moore that, if the company wanted to review the decision to require the giving of notice, it should have done so, and should have done so within a time limit of 30 days specified for that form of review. That time limit is not an absolute time limit. It could be varied by the Tribunal, if it was thought to be in the interest of justice to do so. However, the company is not really outside the time limit, as suggested by Mr. Moore, because it has not sought a review of the direction to give notice. On the contrary, it complied with that direction, without seeking a review of it, although it did so subject to its protest.

19 I therefore think that Mr. Moore's complaint of an exceedance of the 30 day limit does not apply in the circumstances.

20 Furthermore, I do not think that the acquiescence by the company in complying with the direction given to it by the responsible authority amounts to a waiver on its part of the exemption provisions or their ramifications. A company, in the position this company was in, faces certain practical problems including the need to get on with its project if it can and thus avoid the expense of delays, including holding charges. This would not be the first time that an applicant company has complied with directions that it believed to be inappropriate because it considered it would be more disadvantageous to attempt to assert its rights than to go along with the requirement demanded by the responsible authority. In any event, in this case, the company clearly protested the validity of the direction. Having then proceeded to give notice under protest, I do not think it can fairly be said that it waived the point. In any event, I should not be understood as saying that would-be objectors, who are not legally capable of being objectors or parties in subsequent review proceedings, can acquire status as objectors or parties by any waiver by a permit applicant.

21 Because of the exemption Mr. Field and Ms. Moore are not parties to this current review proceeding, and neither are any other would-be objectors. The only parties are the company and the responsible authority. The case can proceed on that basis.

_________________

RUSSELL BYARD

SENIOR MEMBER