Victorian Civil and Administrative Tribunal|2004-11-08|Before: Mr P, Stuart Morris J

The applicant produced evidence showing that the western end of the subject land was within 25 to 26 metres of a residential zone (not a road). Questions were raised as to the sufficiency of this evidence. But for present purposes I proceed on the basis that it is correct.

12 I was also told that the proposal requires a permit pursuant to clause 52.06 of the scheme in relation to the waiving of car parking requirements and pursuant to clause 52.29 of the scheme in relation to altering access to a main road. Neither of these discretions is subject to any exemption of third party rights. However the third parties in this case are not primarily concerned with matters of car parking or access to a main road, but with issues that would arise in relation to the construction of the proposed building and works on the land.

14 The applicant told me that prior to the amendment of the application by substituting the Revision B plans part of the proposed apartment building was to be located within 30 metres of the residential zone. I was also told that, as a result of the Revision B plans being substituted, no part of the apartment building was now within 30 metres of the residential zone; and all that was now proposed on the land within that distance was landscaping. The applicant seemed to infer that the landscaping did not require a permit or, if it did, was not sufficiently integrated with the rest of the development (outside of the 30 metres distance) to be incapable of disaggregation. As for the first inference, I am not persuaded it is correct having regard to the provisions of clause 34.05-4 set out above. As for the second inference, I dealt with similar issues in Manifold v Corangamite Shire Council [2003] VCAT 1692 where I held that where part of a building was within and part outside 30 metres from a residential zone, the whole of the building could be canvassed by objectors where the building was an integrated whole. However for present purposes it is convenient to proceed upon the assumption that if the initial application to the responsible authority had been for the Revision B plans, then the application for a permit under clause 34.05-4 of the scheme would have been exempt from third party notice requirements. Upon that assumption, what happens when third parties have already been notified, and are parties to the proceeding, when plans are altered so as to change the character of the application?

15 In my opinion, the answer is to be found in the provisions of the Planning and Environment Act. Section 83(2) of the Act provides:

(2) In addition to any party to a proceeding for review under this Act, an objector is a party to a proceeding for review if the objector -

(a) is given notice of the application for review under this Act; and

(b) in accordance with the Victorian Civil and Administrative Tribunal Act 1998, lodges with the Tribunal a statement of the grounds on which the objector intends to rely at the hearing of the proceeding.

Prior to the substitution of the Revision B plans various third parties had been given notice of the application for review under the Act (in particular under section 83B of the Act) and some of these persons had lodged with the tribunal a statement of the grounds on which they intended to rely at the hearing of the proceeding and had done so in accordance with the requirements of the Victorian Civil and Administrative Tribunal Act. So there can be no question that at that stage these persons were parties to the proceeding.

(1) A person who objected to the grant of a permit is entitled to notice of an application by the applicant for the permit for review of -

(2) Sub-section (1) does not apply to a person if under a planning scheme the person is not entitled to apply to the Tribunal under section 82 for a review of a decision to grant the permit.

Based upon the assumption I have made, section 83A(2) is operative. This is because I have assumed that under the planning scheme the present application is not an application for a building or works within 30 metres of land (not a road) which is a residential zone. The consequence of section 83A(2) being applicable is that section 83A(1) does not apply.

17 Section 83A(1) is concerned with an entitlement to notice of an application for review by the applicant for the review of certain decisions or non-decisions of a responsible authority. But it is not a provision that exhaustively sets out the entitlement of a third party to notice of an application for review. It is focused upon notice to persons who objected to the grant of a permit when the matter was before the responsible authority. It does not cover the situation, such as this case, where the entitlement to notice arose because my delegate exercised a discretion to direct notice of the application for review under section 83B of the Act.

18 However, even if the responsible authority had advertised the application and had received objections, the outcome would be the same. This is because section 83A(2) must operate at the time when notice of the application for review is required to be given. If notice is given or is required to be given at a time when the permit application is not exempt from third party rights, any subsequent change to the application or the planning scheme that makes the application for permit exempt from third party rights does not undo what has already been done or been required to be done.

19 The same applies in relation to the giving of notice under section 83B of the Act. Although section 83B(5) of the Act provides that the section does not permit the Tribunal to require notice to be given to a person if there are not third party rights (that is, under the planning scheme the person is not entitled to apply to the tribunal under section 82 for a review of a decision to grant a permit), this restriction can only apply at the time the notice is required to be given.

20 It follows that the persons who have given notice of a wish to be heard in relation to the proceeding are parties to the present proceeding. This would also apply to those persons who gave notice after the time prescribed in clause 56 of schedule 1 of the Victorian Civil and Administrative Tribunal Act if the tribunal decides to hear the person after following the procedure in clause 56(4) of schedule 1 or if the tribunal exercises its powers to disregard the failure to comply with the provision pursuant to clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act.

Civil and Administrative Tribunal Act 1998

Perorad Care Pty Ltd v Frankston CC [2004] VCAT 2272 (8 November 2004)

Exemption of third party notice requirements where application for building or works is within 30 metres of land in a residential zone - Reference to Manifold v Corangamite Shire Council [2003] VCAT 1692 - Initial permit application not exempt - Notification of parties pursuant to section 83B Victorian Civil and Administrative Tribunal Act 1998 - Whether subsequent amendment of plans resulted in the exemption of third party rights.

Perorad Care Pty Ltd v Frankston CC [2004] VCAT 2272

At a glance

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Before

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Judgment (16 paragraphs)

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Legislation Cited (1)

Cases Cited (2)

Perorad Care Pty Ltd v Frankston CC [2004] VCAT 2272 (8 November 2004)