1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, application P1334/2007 is amended to be an application for review under section 149(1)(d) of the Planning and Environment Act 1987 to review the failure by the responsible authority to approve a development plan under the Development Plan Overlay Schedule 1 of the Macedon Ranges Planning Scheme.
2. The application by Graham and Elaine Woolley to be joined as parties to application P1334/2007 pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998 is refused.
3. Leave to withdraw application P1334/2007 is refused.
4. Applications P1331/2007 and P1334/2007 are listed for hearing on 24 October 2007 at 2.15 pm.
5. In application P1331/2007, by no later than 1 October 2007, Graham and Elaine Woolley must file and serve a statement of grounds relating to the planning merits of the subdivision which they intend to rely upon at the hearing and they may not raise any other matters without leave of the Tribunal.

Mr Paul Connor, of counsel, instructed by Macpherson and Kelly.

1. Under the Macedon Ranges Planning Scheme, a Development Plan Overlay applies generally to all newly developing residential areas within the municipality. Under the Development Plan Overlay, a permit must not be granted to use, subdivide or develop land until a development plan has been prepared to the satisfaction of the Responsible Authority. The council's practice is not to approve development plans in advance of permit applications. Rather, a permit application for subdivision will commonly be accompanied by a proposed development plan, which reflects the subdivision proposed in the permit application. That is what has occurred in this case.
2. The subject land is included in a Residential 1 Zone and is affected by the Development Plan Overlay Schedule 1. A planning permit application for a 12 lot subdivision has been made. Application P1331/2007 is an application for review by the permit applicant, Ivankovic Enterprises Pty Ltd, under section 79 of the Planning and Environment Act 1987 in respect of the failure by the council to grant a permit.
3. Application P1334/2007 is also made by the permit applicant pursuant to section 149(1)(a) of the Planning and Environment Act 1987 ostensibly to review a decision by the Responsible Authority to refuse to approve a development plan under the Development Plan Overlay. I say "ostensibly" because there is no evidence that when the section 149 application was lodged with the Tribunal on 25 May 2007 the council had made any decision. In fact, it appears that the application should have been made pursuant to section 149(1)(d) of the Act in respect of the failure by the Responsible Authority to make a decision about the development plan. That this is the case is evidenced by the council's letter to the Tribunal dated 19 June 2007 which states:

At Council's Planning Committee Meeting on 13 June 2007, it was resolved to advise VCAT that had the appeal against failure to determine and the application for review not been lodged, that the Planning Committee would have resolved that the development plan for lots 1 and 2, LP69840, 147-159 Aitken Street, Gisborne prepared by Taylors Development Strategists and dated February 2007 be approved for the purposes of Clause 43.03, Schedule 1 of the Macedon Ranges Planning Scheme in relation to land at 147-159 Aitken Street, Gisborne. The Development Plan recommended for approval includes:

1. Report prepared by Taylors Development Strategists and dated February 2007.
2. Site Analysis and Neighbourhood Description prepared by Taylors Development Strategists.
3. Services Report and Draft Functional Layout Plan, Revision C prepared by Cardno and dated 14/2/07.
4. Arboricultural Assessment 147 and 159 Aitken Street, Gisborne prepared by Treelogic P/L and dated 8/12/05.
5. Development Plan, Ref 0714/P prepared by Taylors Development Strategists, dated 7/2/07.
6. At the directions hearing, council advised that it has not resolved to support the grant of a planning permit, notwithstanding that the decision it has made with respect to the development plan.

1. The purpose of the directions hearing was to consider an application by Graham and Elaine Woolley (objectors and nearby neighbours) to be joined as parties to the section 149 application (P1334/2007) pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998.
2. In the section 79 application (P1331/2007) the Woolleys have lodged a statement of grounds objecting to the grant of a permit for subdivision on the basis that no permit can be granted for the subdivision because no development plan has been prepared to the satisfaction of the responsible authority. Clause 43.04 of the Development Plan Overlay makes it a condition precedent to the grant of a permit for a subdivision that there be a development plan prepared to the satisfaction of the responsible authority. Therefore no permit can be granted.
3. There is a history to the Woolleys' involvement with this proposal to subdivide the subject land. An earlier application for a permit to subdivide the land was the subject of earlier Tribunal proceedings.[1] By order dated 8 January 2007, Member Martin ruled that there was no approved development plan for the purposes of clause 43.04 of the Macedon Ranges Planning Scheme and consequently the council's notice of decision to grant a permit must be set aside and no permit granted.
4. The statement of grounds lodged by the Woolleys in the section 79 application raises the same issues. Both the permit applicant (Ivankovic Enterprises) and the council now contend that this defect is cured by the council's resolution on 13 June 2007 to approve a development plan for the subject land. At the directions hearing, the permit applicant sought leave to withdraw application P1334/2007 or to have it struck out because the council has now approved a development plan.
5. The Woolleys opposed withdrawal of the section 149 application as this would remove any possibility of testing the development plan on its merits. It would also mean that if there is now an approved development plan under the Development Plan Overlay, the Woolleys would have no rights of review in respect of the section 79 application. Clause 43.04-2 of the planning scheme provides that an application under any provision of the scheme which is generally in accordance with the development plan is exempt from third party notice and review rights.[2]
6. Of course, the Woolleys may only object to the withdrawal of application P1334/2007 if they are parties.
7. There are therefore three issues that I must determine:

1. Should the Woolleys be joined as parties to application P1334/2007 pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998? 2. Should leave be given to Ivankovic Enterprises Pty Ltd to withdraw application P1334/2007?

1. In their application to be joined as parties to the section 149 application, the Woolleys have failed to demonstrate how they may be affected by the council's decision to approve a development plan in such a way that elevates their interest in being joined as a party over and above that of any other neighbour or person who may be generally interested in the planning of the development plan area. They point to the close proximity of the Woolleys residence to the subject land, but in my view this does not of itself give rise to a sufficient reason why they should be joined under section 60 of the Victorian Civil and Administrative Tribunal Act 1998. This is because there is a very clear statutory scheme set out in the Planning and Environment Act 1987 and the planning scheme both to exclude third party rights of review under the Development Plan Overlay and to restrict the parties to applications for review under section 149 of the Planning and Environment Act 1987 to "specified persons" as defined in section 148 of the Act. The Woolleys are not specified persons. Therefore they cannot apply for a review of the council's decision to approve a development plan under section 149 and nor do they have any rights to be parties to such a review.[3]
2. On behalf of the Woolleys, Mr Austin relied on the comments I made in the case of Raydan v Maroondah City Council[4] where I said:

[14] I consider that section 60 is a provision that is directed to achieving natural justice and achieving the objective set out in section 97 of the Victorian Civil and Administrative Tribunal Act that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings. The power in Section 60 of the Victorian Civil and Administrative Tribunal Act is a general reflection of similar powers found in other parts of the Planning and Environment Act, which ensure that people whose interests may be affected by a proceeding are given the opportunity to be heard. Specific provisions include, section 82(B) in respect of permits; section 90(2) in respect of applications to cancel or amend permits; and section 115(e) in respect of enforcement orders.

1. However, these comments must be considered in the context of the specific facts in Raydan's case. The section 149 application in Raydan concerned an increase in patron numbers at a restaurant which required consent under a section 173 agreement. Whilst acknowledging that persons who are not party to a section 173 agreement are not normally parties to proceedings under section 149 of the Planning and Environment Act 1987 concerning those agreements and that as a general rule disputes under section 173 agreements should be confined to the parties, I held that the circumstances of the case were unusual in that the section 173 agreement operated as a de facto planning permit. Originally, consent for the restaurant was given by way of a site specific planning scheme amendment to the former Croydon Planning Scheme, which allowed the restaurant subject to a section 173 agreement being entered. The section 173 agreement effectively operated as a planning permit and contained conditions which would normally be found in a planning permit. Affected persons would normally have an opportunity to be heard in connection with any amendment to such conditions, if they were in a planning permit. In this context it was therefore appropriate to use section 60 to give persons an opportunity to be heard who would normally be heard except for the special circumstances of the case.
2. However, in the case of an application for review under section 149 of the Planning and Environment Act 1987, third persons who are not specified persons would not normally have an opportunity to be heard. That is the scheme or system set up under the Act. There may be special circumstances which would make it appropriate for third persons to be joined under section 60 of the Victorian Civil and Administrative Tribunal Act 1998, but they have not been demonstrated to exist in this case. There is nothing about the Woolleys' interests which place them in any different position to any other neighbouring landowner.
3. The Macedon Ranges Shire Council has chosen to impose a statutory regime through its use of the Development Plan Overlay that is exempt from third party participation in the approval of development plans and the subsequent approval of subdivision and development under them. I understand that the council consults informally, but third persons have no rights of review. Therefore, I do not consider that Raydan's case can be interpreted as being general support for the use of section 60 of the Victorian Civil and Administrative Tribunal Act 1998 in joining parties to section 149 applications who are not specified persons. There needs to be some special circumstances to make this appropriate.
4. The Woolleys submitted that if they were not joined, they would be disenfranchised from participating as objectors and as a party in the section 79 application concerning the grant of a permit for the subdivision. They claim it is critical that they "have an opportunity to be heard in demonstrating why the Development Plan should not and indeed, could not have been approved by the Responsible Authority." However, as I have said, the disenfranchisement identified by the Woolleys is a deliberate intent of the planning scheme provisions and the Act where a Development Plan Overlay applies to land. In the case of West Valentine Pty Ltd v Stonnington City Council[5], I said with respect to a similar argument about disenfranchisement:

[21] The objectors' concerns about equity are not determinative of the issue of whether they should be made parties. They are not entitled to be parties pursuant to the Planning & Environment Act and the provisions of the Heritage Overlay, and those provisions cannot be altered by the Tribunal. Such an explicit scheme should not be circumvented by the Tribunal through the exercise of its powers under section 60 of the Victorian Civil and Administrative Tribunal Act unless there are very compelling reasons to do so. ...

1. In summary therefore, I am not prepared to join the Woolleys as parties to application P1334/2007 pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998. They lack standing by virtue of section 148 of the Planning and Environment Act 1987 and they have not demonstrated any compelling reason why the limitations of this provision should be circumvented in this particular case by recourse to section 60 of the Victorian Civil and Administrative Tribunal Act 1998.

WITHDRAWAL OF SECTION 149 APPLICATION

1. Notwithstanding the section 149 application regarding the failure by the council to approve a development plan, the council has now made a decision that the applicant says approves a development plan. However, I am not necessarily persuaded that this is what the council has done or could do given the application for review on foot before the Tribunal.
2. On behalf of Ivankovic Enterprises Pty Ltd, Mr Connor submitted that the council is not prohibited from forming a view that it is satisfied with the development plan when endorsing the development plan, notwithstanding that there is a section 149 proceeding on foot. By way of comparison, section 84 of the Planning and Environment Act 1987 is linked to (and is a companion provision of) section 79. Section 84 imposes certain restrictions on a council's powers once an application for review for a failure to grant a permit is instituted. When considering section 149, there is no such companion provision which restricts councils from making decisions about development plans or endorsing development plans, notwithstanding an application for review. On this basis, Ivankovic Enterprises Pty Ltd seeks to withdraw the section 149 application.
3. What is the effect of withdrawal of a proceeding before determination by the Tribunal? In my view, the effect would be that whatever decision had been made prior to the application for review being lodged, would then be the effective decision. It may or may not be then possible to modify that decision depending upon the nature of the decision in question.
4. For example, in the case of a decision to grant a permit, if an application for review made under either section 82 or section 80 of the Act is withdrawn, then the permit would stand as originally granted by the responsible authority and the only way to change the permit would be under the provisions of either section 72 or section 87 of the Act. If a decision was made to refuse to grant a permit and an application for review under section 77 is made then withdrawn, the refusal will stand and no permit can be granted unless a fresh permit application is made. In the case of an application under section 79 in respect of failure, the Tribunal held in Precision Projects Unlimited Pty Ltd v Bayside City Council[6] that:

[5] Section 84 of the Planning and Environment Act 1987 sets out quite explicitly what must occur in the event that a responsible authority decides on an application for a permit at any time after an application is made for review of the failure of the responsible authority to grant the permit. This procedure must either be followed or the application for review must be determined by the Tribunal. It is not open to the applicant to cancel the effects of lodging a failure application by seeking to withdraw it. An applicant cannot go back to a point in time in the process before the application for review was made and seek to reactivate the responsible authority's ability to make a decision and then to continue to follow the processes that would normally flow from this under the Planning and Environment Act 1987. ...

1. Thus if a council has failed to make a decision to grant a permit and an application under section 79 is withdrawn, that failure stands as an effective refusal and the council cannot then grant a permit without a fresh application being lodged. This reflects the provisions of section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 which provides that failure to make a decision is deemed to be a refusal.[7]
2. However, a decision to approve or be satisfied with a development plan under a Development Plan Overlay is in a different category to a decision about whether to grant or refuse a planning permit. This is because there is no set procedure governing the process for approving a development plan. There is no necessity to give notice to anyone before approving it. If a council does give notice this is informal notice only and creates no rights in any third persons. A council may also revoke, rescind, amend or alter an approved development plan.[8]
3. I have no doubt that if an application to review a decision or failure to make a decision about a development plan is made pursuant to section 149 and is then withdrawn, that the council may then make a decision to change its decision about the development plan. I am less certain that a council could make a decision to adopt a development plan or change a development plan after a section 149 application has been made but before that application is determined by the Tribunal or withdrawn.
4. If there is a determination by the Tribunal, that determination substitutes for the council's decision - see section 51(3) of the Victorian Civil and Administrative Tribunal Act 1998.
5. Under section 50(1) of the Victorian Civil and Administrative Tribunal Act 1998, the commencement of a proceeding for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.[9] As noted earlier, the provisions of section 4(2)(d) of the Act provide that failure to make a decision is deemed to be a refusal. Thus in the present case, the council is deemed to have refused to be satisfied with or approve a development plan for the subject land. Commencement of the proceeding in application P1334/2007 effectively crystallised that refusal. It seems to me that if the proceeding is withdrawn, the decision deemed to have been made by the council at the time when the proceeding was commenced (ie a refusal) would be the surviving decision.
6. I doubt that a council could make a valid decision between the commencement of a proceeding and its withdrawal that could be a substitute for the decision under review. It would seem to be inherent in the review jurisdiction of the Tribunal under the Victorian Civil and Administrative Tribunal Act 1998 that once a proceeding for review of a decision is commenced, that decision cannot be validly changed until the proceeding is concluded either by determination, withdrawal, strike out or otherwise. Otherwise the review process would be rendered nugatory.
7. I regard section 84 of the Planning and Environment Act 1987, which enables a permit application to be determined after an appeal has been lodged, to be an exception to this general proposition. In other words, it specifically authorises a responsible authority to decide on an application for a permit after an application is made for review of the failure of the responsible authority to grant the permit, but before the proceeding for review is determined or otherwise disposed of by the Tribunal. However, whilst a decision may be made, a permit may not be issued (or other notice given) except in accordance with the provisions of section 84 or at the direction of the Tribunal following a determination of the proceeding.
8. I therefore disagree with Mr Connor that the lack of any equivalent provision to section 84 in respect of decisions about development plans or other decisions which may be reviewed under section 149 of the Act necessarily means that a council is not prohibited from making a decision to approve or to be satisfied with a development plan whilst there is a live proceeding for review on foot before the Tribunal. It does not mean that a council may not form a view about the development plan during the course of a proceeding, but it cannot make a valid decision about the plan within that time. In the event that a proceeding for review under section 149 is withdrawn, the council would then have an opportunity to make a valid decision to approve or otherwise be satisfied about a development plan.
9. I find that the council's resolution on 13 June 2007 is no more than an indication of what council's view is regarding the development plan. Indeed, the wording of the resolution does not purport to be more than this. The wording of the resolution is that had the appeal against failure to determine... not being lodged, that the Planning Committee would have resolved that the development plan for the subject land be approved. I find that the council has not made a decision about the development plan. Therefore, as a matter of law, I find that there is no approved development plan under the Development Plan Overlay.
10. In these circumstances, it would be unwise for Ivankovic Enterprises to withdraw application P1334/2007. The Tribunal needs to make a determination to approve a development plan under the Development Plan Overlay before it may proceed to determine the application for review regarding the planning permit subdivision in application P1331/2007. If application P1334/2007 is withdrawn, there would be no approved development plan. Of course, it may then be open to the council to resolve to approve the development plan in question before application P1331/2007 is heard and determined, but this would be an unnecessarily complicated course of action. It is far simpler for the section 149 application regarding the development plan to be dealt with at the same time. This would then avoid the situation that arose in the earlier case concerning the subject land decided by Member Martin, or the situation that arose in the case of Macedon Ranges Shire Council v Murone and Ors[10] where the Supreme Court held that the Tribunal could not lawfully make a decision to grant a permit for subdivision because it failed to first make a decision to approve the development plan.
11. The other reason why it is important for the Tribunal to make a decision about the development plan before deciding the application for subdivision is to ensure that the development plan meets all the requirements of the overlay and the schedule. Whilst I note that clause 43.04-3 of the planning scheme enables a development plan to consist of multiple documents or plans, the bundle of documents identified by the council in its resolution of 13 June 2007 were prepared to support a planning permit application for a subdivision. They were not prepared as a development plan to be approved under the Development Plan Overlay. On the material currently on the Tribunal's file, I have my doubts about whether this bundle of documents can be said to be a development plan for the purposes of the Development Plan Overlay. There is nothing that I have seen which unambiguously purports to be a development plan.
12. Apart from identifying what exactly constitutes the development plan, there are numerous requirements for a development plan specified in the overlay and Schedule 1. To avoid future challenges, it is important to ensure that all these requirements have been met.
13. Therefore, my conclusion is that leave should not be given to Ivankovic Enterprises to withdraw application P1334/2007. Rather, it is essential that this application for review be determined before a decision can be made in application P1331/2007.

1. At this stage, I propose to list both applications for hearing. In view of the complications that have bedevilled this matter, it is important that any final decision is properly considered by the Tribunal.
2. The final question which arises is whether the Woolleys have any standing as a party to application P1331/2007. The statement of grounds filed by the Woolleys in this case relates solely to the non-existence of a development plan. They raise no substantive planning issues going to the merits of the proposed subdivision, instead their concerns appear to be primarily procedural.
3. I have already referred to the fact that the scheme contemplated by the Act and the planning scheme specifically excludes third parties such as the Woolleys from any rights of review in respect of either section 149 applications concerning the approval of development plans or permit applications in respect of land subject to a Development Plan Overlay. One of the purposes of the Development Plan Overlay is:

To exempt an application from notice and review if it is generally in accordance with a development plan.

1. As it is not possible to grant a permit that is not generally in accordance with the development plan, and there is a proceeding on foot to enable a development plan to be approved before the permit application is decided, it may seem to be a hollow exercise for the Woolleys to be parties to this proceeding.
2. On the other hand, it may be argued that because there is no existing approved development plan, the provisions of clause 43.04-2 do not exclude the Woolleys' rights of review in respect of the permit application. This is a potential anomaly created by the council's practice of not approving a development plan in advance of permit applications. Nor is the confusion about the status of objectors lessened by the council's practice of giving notice of the permit application as though the land was not affected by a Development Plan Overlay.
3. I have decided that it would be premature for the Woolleys to be struck out as a party to application P1331/2007. This was not a matter raised at the directions hearing and, given past history and the Woolley's involvement in this matter, it would be unfair to take this step without giving them an opportunity to be heard. However, there is little point in the Woolleys participating in a hearing unless they have something of substance to say about the planning merits of the proposal. If they have got something to say of this nature, they need to disclose what it is before the hearing.
4. I will direct that the Woolleys must set out any grounds upon which they intend to rely at the hearing and that they may not raise any other matters without leave of the Tribunal. In view of the delays that have occurred with this matter, I will list it for hearing at the earliest opportunity.

[1] Applications P2263/2006 and P2434/2006

[2] See West Valentine Pty Ltd v Stonnington CC [2005] VCAT 224

[3] See Burnside Properties Pty Ltd v Melton SC [2000] VCAT 2326 at [321]; Canet v Brimbank CC [2003] VCAT 13 at [32] - [33]; Allen v Surf Coast SC [2002] VCAT 900 at [14]

[4] (2004) 17 VPR 116; [2004] VCAT 1047

[5] [2005] VCAT 224

[6] [2007] VCAT 381

[7] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 provides:

(2) For the purposes of this Act or an enabling enactment -

(d) a failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision.

[8] See Glenavon Pastoral (Vic) Pty Ltd v Golden Plains SC [2005] VCAT 1095 at [12]; and Roy Costa & Associates v Mildura Rural CC [2007] VCAT 1472

[9] Subject to sub-section (2), which is not relevant for current purposes.

[10] [2004] VSC 525