(given orally at the hearing and subsequently revised)

1 The applicant for review seeks a permit to construct six two storey dwellings on land in Dandenong. The land is contained in a Residential 2 Zone pursuant to the relevant planning scheme. A purpose of this zone is to encourage residential densities at medium or higher densities to make optimum use of the facilities and services available. In order to promote this purpose, clause 32.02-4 provides that an application for a permit to construct two or more dwellings on land is exempt from third party notice requirements. I infer that a purpose of this exemption is to facilitate and promote medium density development in this zone.

2 The responsible authority has adopted a code of practice in relation to development within the Residential 2 Zone, which is designed to deal with community consultation on residential development in this zone. Clause 4 of the code provides:

Council requires that the applicant give notice of application for developments covered by this Code to:

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the owners and occupiers of land adjoining the land to which the application applies unless Council is satisfied that the granting of the permit would not cause material detriment to any person; and

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to any other persons who Council considers that the grant of the permit may cause detriment.

Notice of the application must be given on the requisite form, which will be provided by Council upon the submission of a formal planning application. The form will provide directions to assist persons in languages other than English. A copy of the form is attached to this Code.

Council has implemented this procedure with a view to providing prior information to persons who it considers may suffer detriment as a result of approval of such applications. Potentially affected persons will be invited to come to Council and look at the relevant application documentation and may make submissions to the Council on the matter.

In accordance with that code the council has notified the owners and occupiers of land in the vicinity of the subject land about the application. This generated objections from about 20 persons.

3 Following the refusal of the application by the responsible authority, the permit applicant applied to the tribunal to review the decision. The applicant for review has notified the persons who objected of the application for review and has included in that notification a copy of a form inviting those persons to indicate whether they intended to contest the appeal and, if so, on what grounds. A number of the objectors have taken up that opportunity and indicated that they intend to contest the appeal.

4 The first question that needs to be considered is: what are the rights of the objectors in the circumstances? This matter was dealt with by Deputy President Gibson in West Valentine Pty Ltd v Stonnington City Council [2005] VCAT 224. In that decision Deputy President Gibson concluded that the intent of the Planning and Environment Act and the relevant provision in the planning scheme was that, in circumstances such as the present, the process before the tribunal be a two party process; and, consequently, that persons who objected to the development were not parties to the proceeding and had no right to be heard. I agree with her analysis for the reasons given in that decision.

5 That being so, the normal course would be that the objectors would not be permitted to be heard in this proceeding. However because of the way the matter has progressed so far, with notice being given to them by, first, the council and, second, the applicant for review, I think a fair outcome would be that they be notified of the hearing and that the tribunal consider any submissions in informing itself as it thinks fit. This will place these persons in a position whereby their concerns are heard, although they will not have all the rights that a party would have, such as the right to appeal to the Supreme Court.

6 I make one other observation. Clause 4 of the council's Code of Practice is clearly inconsistent with the planning scheme. Although the council has the right to engage in a consultation process with owners and occupiers of land neighbouring the subject land, even in circumstances where a permit application is exempt from notification, it is essential that such consultation be undertaken on a basis where the true rights of those persons are clearly understood. In such a situation, the purpose of the consultation is simply to assist the council in making its decision. It is not to give such persons the rights of objectors under the Planning and Environment Act. As clause 4 of the code currently stands, it is in direct conflict with the planning scheme. This clause has the vice of creating the impression that the owners and occupiers of land adjoining the subject land can become objectors in the normal way. If a similar case comes before the tribunal in the future, then the tribunal will have to closely consider whether this may be an occasion to award costs to recompense a party who is disadvantaged.