1 No third party objectors who have lodged statements of grounds with the Tribunal are parties to this application and their submissions shall not be considered by the Tribunal except to the extent that they are presented as part of the case by the responsible authority.

2 This matter is listed for hearing commencing on 18 April 2005 for a period of 4 days before a two member Tribunal including a legal member and a member with scientific/technical expertise.

1 The purpose of this directions hearing was to consider the standing of third parties who have lodged statements of grounds with the Tribunal having regard to the notification, decision and review exemptions contained in the planning scheme.

2 Application P3601/2004 is made pursuant to section 79 of the Planning and Environment Act 1987 in respect of the failure by the responsible authority to grant a permit for alterations and additions to an existing chemical storage facility at the Port of Geelong, Wharf Road, Corio. The permit application is for buildings and works for a butadiene storage facility, pipeline, access road and security fencing. The Council has since decided to refuse the permit.

3 The subject land is zoned Special Use Zone 6 (Port areas) under the Greater Geelong Planning Scheme. In the table of uses in schedule 6 of the Special Use Zone industry is a section 1 use with conditions. The subject land is currently being used for industry (chemical storage facility) and no change of use is proposed.

4 A permit is required for buildings and works pursuant to clause 37.01-4 of the Special Use Zone. The schedule to the Special Use Zone 6 provides the following exemptions from notice and appeal in respect of buildings and works:

An application to construct a building or construct or carry out works for any Section 1 Use except for a wharf, 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 appeal rights of Section 82(1) of the Act.

This exemption does not apply to an application for a building or works within 30 metres of land (not a road) which is in a residential zone or Business 5 Zone, land used for a hospital or school or land in a Public Acquisition Overlay to be acquired for a hospital or school.

5 Notwithstanding that the permit application is exempt from public notification and the third party appeal rights, the Council undertook informal public notification of the proposal and received a number of objections. The applicant served a copy of its application for review on the people who had lodged objections and a number of those people have lodged statements of grounds with the Tribunal. The question that now arises is whether these people should be made parties to the proceeding or have their submissions considered by the Tribunal notwithstanding the exemptions applicable to third parties in this case.

6 In the recent case of West Valentine Pty Ltd v Stonnington City Council [2005] VCAT 224. I was required to consider the same issue. I analysed in some detail the various provisions in the Planning and Environment Act 1987 dealing with the exemption of objectors from various aspects of the decision making and review process. I concluded that an objector who is not entitled to apply for review under section 82 is not a party to an application for review of a decision refusing to grant the permit or failure to grant the permit or a decision imposing a condition on the permit. I went on to say:

[14] ... It would be strange if it was otherwise. The Act and the planning scheme provisions set out certain classes of applications for permit that are exempt from the notice and review provisions of the Act by third party objectors. It would be contrary to the purpose underlying these provisions if, by nevertheless submitting an objection, a person could thereby gain rights to be a party in applications for review other than one concerning a decision to grant the permit.

7 The objectors in the West Valentine case raised similar issues as the objectors from Greater Geelong have raised regarding the equity of provisions in the Act and planning scheme which exclude them from the review process. My views on this issue remain the same as those expressed in the West Valentine case, namely:

[16] It was submitted by the objectors that it was inequitable for them to be denied the opportunity to be heard in respect of this permit application when they are directly affected. I note that the Tribunal has a broad power under Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 to join persons as a party to a proceeding. However, even if it is open to the Tribunal to join an objector as a party pursuant to this provision when they are otherwise exempt from review rights, I consider it would need to be a very unusual circumstance to justify an exercise of the Tribunal's discretion pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act contrary to the quite explicit scheme of exemption of objectors from reviews in certain classes of permit application.

8 The objectors in this current application submitted that there was a significant difference between the subject matter of the application in the West Valentine case, namely construction of a garage in a Heritage Overlay area, compared to a chemical storage facility that they feel could have significant risks associated with it and about which there is strong community opposition. I do not agree that the level of opposition or the scale of a proposal is necessarily determinative of the issue whether objectors should be made parties. There is a very explicit scheme in the Act to limit the scope of notice and review for certain classes of permit applications. The Greater Geelong Planning Scheme clearly intends to exempt the type of application which is the subject of this proceeding from third party review rights.

9 Schedule 6 to the Special Use Zone covering the Port Areas of Geelong has been written to facilitate the purpose of this zone, which is:

"To provide for the development of the Geelong Port as a key area of the State of the interchange, storage and distribution of goods.

To provide for uses which derive direct benefit from co-establishing with a port."

It is for this reason that industry is a section 1 use and there is an exemption from notice and review in respect of buildings and works for a section 1 use. Use and development of this nature can be expected to be large scale and potentially unpopular.

10 It is quite appropriate for the Council in this circumstance to seek public input on an informal basis to its decision-making, but that does not override the scheme in the Act and planning scheme which excludes the review rights of third party objectors. For this to occur would require a change to legislation and/or the planning scheme.

11 Notwithstanding the exemption provisions, the Council has undertaken informal public notification in order to make a fully informed decision and the applicant has co-operated in this. There is always a risk however when people are encouraged to participate in an informal process that expectations will be created about their ability to continue to participate in the process of review notwithstanding statutory provisions to the contrary.

12 This is a case where the objectors will need to rely upon the Council to represent the views of the community. The case has been listed for hearing for two days on 18 and 19 April 2005. I am prepared to extend the time for the hearing to enable the Council to incorporate community spokespeople in the Council's presentation if it so wishes. I am satisfied that there will be adequate opportunity for the community's views to be presented to the Tribunal as part of the Council's presentation so far as those views are relevant. The issue of relevance will be defined by the reasons why a permit is required, which in the present case is only for buildings and works, not use. The Council should structure its case to complete it within the time allocated for the hearing in the event that it elects to include any community spokespeople.

13 The case will therefore be listed for a total of 4 days from 18 to 21 April 2005. 22 April 2005 will be held in reserve if an inspection is required.

Helen Gibson

Deputy President