LEGISLATION - interpretation or application of statutory provision

Section 52(1A) Planning and Environment Act 1987 - a responsible authority may refuse an application and, if it does so, it does not have to comply with the notice provisions of sections 52(1) and 52(1AA) of the Act.

PLANNING SCHEME - interpretation or consideration of VPP provision

Clause 43.04-2 of the Development Plan Overlay - exemption from notice and review of a planning permit which is generally in accordance with the development plan.

Formal notice under section 52(1) of the Planning and Environment Act 1987 should not be given in any circumstances where a Development Plan Overlay applies because:

• If the application is generally in accordance with the development plan, it is exempt from notice requirements under clause 43.04-2.
• If the application is not generally in accordance with the development plan, the responsible authority must refuse the application and if it does so, pursuant to section 52(1A) it does not have to comply with the notice requirements of section 52(1).

Notice of permit application in Development Plan Overlay - clause 43.04-2 - section 52(1A) Planning and Environment Act 1987

Saunders v Frankston CC (includes Summary) (Red Dot) [2009] VCAT 144

1. No notice of this application is required.
2. This matter is listed for hearing on 21 May 2009 commencing at 2.15pm.

Mr Richard Umbers, town planner, Peninsula Planning Consultants Pty Ltd

1. The purpose of this Practice Day Hearing was to determine whether the application needs to be advertised. The permit application is for five dwellings. The land is in a Residential 1 Zone and a Development Plan Overlay (Schedule 1 Carrum Downs, Langwarrin and Baxter Outline Development Plan) applies to the land.
2. The council has refused the permit application on the grounds that the proposal is not in accordance with the Carrum Downs Outline Development Plan, which is the approved development plan under the Development Plan Overlay. The Development Plan Overlay provides that a permit granted must be generally in accordance with the development plan.[1] An application is exempt from notice and appeal pursuant to clause 43.04-2, which provides as follows:

An application under any provision to 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. The provisions of clause 43.04-2 create a "catch 22" situation. They provide that an application which is generally in accordance with the development plan is exempt from notice and appeal rights. This implies that an application which is not generally in accordance with the development plan is not exempt. However, the responsible authority cannot grant a permit unless it is generally in accordance with the development plan. Therefore, if read literally, a decision about whether to require notice under the relevant provisions of section 52 would require the council to effectively make a decision about the permit application first. If it did decide that the application was not generally in accordance with the development plan, there would therefore seem to be little point in giving notice because it would not be open to the responsible authority to grant a permit in any event.
2. In my view, the wording of clause 43.04 would benefit from revision to avoid this catch 22 situation.
3. In the meantime and based on the current wording of clause 43.04-2, I consider that section 52(1A) of the Planning and Environment Act 1987 applies. It provides:

(1A) The responsible authority may refuse an application and, if it does so, it does not have to comply with subsections (1) and (1AA).

1. This means that if a responsible authority decides that an application is not generally in accordance with the development plan and therefore refuses the application (as it must), it does not have to give notice under section 52(1).
2. Of course, the council may decide to refuse an application on other grounds even though it may be generally in accordance with the development plan. However, in such circumstances, the provisions of clause 43.04-2 apply and the application is exempt from the notice requirements of section 52(1) in any event. Likewise, if on appeal the Tribunal decides that the application is generally in accordance with the development plan (contrary to the responsible authority's assessment), again the provisions of clause 43.04-2 would operate to exempt it from notice and appeal rights.
3. I consider it is confusing for people if they are given so called "informal" notice of permit applications in a Development Plan Overlay. Nevertheless, some councils chose to do this and, if they do, they should make it clear that no rights arise as a consequence.
4. So far as formal notice under section 52(1) is concerned, it should not be given in any circumstances where a Development Plan Overlay applies because:
   • If the application is generally in accordance with the development plan, it is exempt from notice requirements under clause 43.04-2.
   • If the application is not generally in accordance with the development plan, the responsible authority must refuse the application and if it does so, pursuant to section 52(1A) it does not have to comply with the notice requirements of section 52(1).
5. In the present circumstances, I therefore find that there is no need to direct notice of the application for review pursuant to section 83B of the Act.

[1] Clause 43.04-1 Frankston Planning Scheme