1 Leave to withdraw the application for review is refused.

2 This matter is listed for a prompt final hearing on 30 March 2007.

3

(a) Within 7 days of the date of this order the applicant must undertake service of the application for review in accordance with the Tribunal's directions dated 30 January 2007.

(b) Service of the application for review must be accompanied by a prominent written statement advising that the application for review is listed for a prompt final hearing at the Victorian Civil and Administrative Tribunal, 55 King Street, Melbourne on 30 March 2007 at 10am.

4 An order by consent may be made on the papers before the hearing if all parties or potential parties (objectors) consent.

5 The responsible authority must provide the material required by the Tribunal's Practice Note PNPE-2 within 7 days of the date of this order together with a copy of its decision about the application for permit.

Mr Bruce Keen, town planner, of Keen Planning Services Pty Ltd

(given orally at the hearing and subsequently revised)

1 This is an application for review under section 79 of the Planning and Environment Act 1987 in respect of the council's failure to grant a permit. After lodging the application for review but before it was served on objectors, the applicant sought to withdraw the application for review.

2 The council has decided to grant a permit but section 84(2) of the Act precludes the responsible authority from issuing a permit, notice of decision or notice of refusal after an application is made to the Tribunal for review of a failure to grant a permit. The remainder of section 84 then sets out the procedure to be followed when an application is determined after an appeal has been lodged.

3 In the present case, objections were lodged with the council to the permit application. These people are entitled to be notified of a decision and to become parties to an application for review. The applicant believes that the objectors will be satisfied by the conditions proposed by the council. By withdrawing the application for review, it believes that the council could then issue a notice of decision to grant a permit and if no objector lodges an application for review under section 82 of the Act, then the council could issue a permit.

4 I do not consider that this process is open to the applicant. The applicant may only withdraw an application for review with leave of the Tribunal - see section 74 of the Victorian Civil and Administrative Tribunal Act 1998. I do not consider leave should be given in this case because there have been objections lodged with council to the grant of the permit and the interests of those objectors must be protected.

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. A similar view was taken by Justice Morris in Mitchell v Corangamite SC[1] where he said:

[18] Section 84 of the Planning and Environment Act extends to the situation where there have been objections to the grant of a permit and, before the responsible authority decides on the application, there has been an application to review the council's failure to decide the application. The section makes it clear that, in this case, the responsible authority may decide on the application. However in that instance the power of a presidential member of the tribunal pursuant to section 84(4) and (5) should not be exercised so as to direct the issue of a permit in accordance with the responsible authority's decision unless the views of objectors are first ascertained and considered. In the normal course, if objectors agree with the issue of the permit and the permit applicant does not seek to contest any conditions contained in the responsible authority's decision, the presidential member will direct the issue of the permit. However if either the permit applicant seeks to contest the conditions or objectors seek to contest the decision, then it would usually be inappropriate to direct that a permit be issued. Rather the appropriate course would usually be that the application for review against the failure of the responsible authority to decide the permit application would be set down for hearing and would be the vehicle to hear either the permit applicants' concerns about conditions or the objectors' concerns about the decision of the responsible authority to grant the permit. ...

6 If all the objectors consent to the grant of a permit on the conditions proposed by the council, and that consent is evidenced in writing, then the application for review can be determined on the papers by way of a consent order. On the other hand, if any objectors lodge a statement of grounds and wish to contest the council's decision, the proceeding will need to be resolved at a hearing.

7 The applicant should now undertake service of the application for review upon the objectors as previously directed and possibly include a copy of the proposed conditions. It is up to the applicant to seek to obtain the consent of objectors to the grant of a permit on those conditions. If that consent is not forthcoming, then the matter will be dealt with by way of a prompt final hearing at which any objectors who lodge a statement of grounds will be entitled to be heard.

[1] [2004] VCAT 643