Victorian Civil and Administrative Tribunal|2005-02-09|Before: Application P

West Valentine Pty Ltd v Stonnington CC [2005] VCAT 224 (9 February 2005)

Planning and Environment Act 1987 sections 52, 57, 64, 83 and 83A - Exemption from notice requirements, decision requirements and third party review rights - Exemption applies to rights of objectors to participate in all applications for review concerning a decision to grant a permit, refuse a permit, failure to grant a permit and conditions in a permit.

The requests by John Grey and Dellice Ivy Winch, and Susan Baxter to be joined as parties to this application are refused.

1 Application P 3057/2004 is a review by the permit applicant in respect of the refusal by the responsible authority to grant a permit for demolition of an existing garage and construction of a new garage on the subject land. A permit for demolition and development is required only because the land is included in a Heritage Overlay. Pursuant to clause 43.01-4 of the Heritage Overlay certain applications, including demolition and construction of a garage, shed or similar structure, are 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 Planning and Environment Act 1987.

2 Notwithstanding the provisions of clause 43.01-4, the responsible authority required advertising of the permit application, objections were lodged by Ms Baxter and Mr & Mrs Winch and they were sent a copy of the responsible authority's refusal to grant a permit. They were served with a copy of the application for review and lodged statements of grounds. By letter dated 22 December 2004 the Tribunal advised the objectors as follows:

I refer to the above application and your Statement of Grounds lodged on the 16th December 2004.

It has since come to the Tribunal's attention that the proposed development falls under a Heritage Overlay and therefore third parties (objectors) are exempt from any review to VCAT.

Unfortunately, VCAT cannot accept or consider your Statement of Grounds nor provide you with an opportunity to be heard in relation to the application. Accordingly, you will not receive any further notification from VCAT regarding this application.

If after obtaining your own legal advice, you wish to contest VCAT's ruling in this matter, you should either request a Directions Hearing (see Practice Note 6 - Planning and Environment List) or alternatively make an application to be heard at the commencement of the hearing.

3 The purpose of this directions hearing is to consider a request made by the objectors to have their objections to the proposal heard at the hearing of this application P3057/2004, which is scheduled for 7 March 2005.

4 I have decided that the objectors' requests to be made parties or to have their submission considered by the Tribunal should be refused for the following reasons.

5 There is a very clear scheme in the Planning and Environment Act and planning schemes based on the Victoria Planning Provisions that certain classes of applications for permits are exempt from third party notice and appeal rights. The exemptions 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 are to be found in various parts of the planning scheme including the Heritage Overlay. Whilst it is only the review rights of section 82(1) that are exempt, which relate to an objector's right to apply to the Tribunal for review of a decision of the responsible authority to grant a permit, the scheme within the Act is also intended to exclude the participation of objectors who are exempt from section 82(1) from other applications for review in respect of the decision, for example applications by permit applicants in respect of refusal (section 77), failure (section 79) and conditions (section 80). Whilst this is not stated explicitly in the Act or planning scheme (and it might be better if it was) the operation of various provisions of the Act lead to this conclusion. The following provisions are relevant in reaching this conclusion.

6 Whilst certain classes of applications may be exempt from notice under section 52(1) that does not preclude a person from submitting an objection. Section 57(1) provides that any person who may be affected by the grant of the permit may object to the grant of the permit. There is nothing in the Act that excludes this right. However, if no notice is required to be given under section 52(1) or the planning scheme of an application, section 60(3) provides that the responsible authority is not required to consider any objection or submission in respect of the application which may have been made.[1] Again, the Act does not preclude a responsible authority from considering such objections if it wishes but that does not thereby create any rights for those objectors.

7 Applications that are exempt from notice and appeal are exempt from the decision requirements of section 64(1), (2) and (3). Section 64 deals with the grant of a permit if there are objectors and section 64(1) provides that:

64(1) The responsible authority must give the applicant and each objector a notice in the prescribed form of its decision to grant a permit.

8 Section 64(4) states that a planning scheme may set out classes of applications the decision on which are exempted from this requirement. Section 64(5) then provides as follows:

64(5) If a planning scheme exempts a decision on an application from the requirements of sub-sections (1), (2) and (3), the responsible authority must give a copy of the decision to each objector.

9 By requiring the responsible authority to give a copy of the decision to each objector, when the application is otherwise exempt from the requirements of Section 64, the Act clearly contemplates that there may be situations where objections have been made to a permit application even though the objectors have no rights in respect of the application. They are to be given a copy of the decision under section 64(5) as distinct from a notice in the prescribed form as required by section 64(1).

10 Section 83 of the Act deals with parties to a proceeding for review under the Act. Section 83(2) deals with objectors and states that in addition to any other party to a proceeding for review, an objector is a party if the objector is given notice of the application for review under this Act and lodges a statement of grounds.

83(2) In addition to any other 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. (e_mphasis added)_

11 On the face of it, the objectors in this case would appear to fit within this category. They have been served with a copy of the application for review and have lodged a statement of grounds. However the relevant consideration is whether the objector is given notice of the application for review under this Act.

12 Section 83A deals with objectors who are entitled to notice under the Act. It provides as follows:

(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.

13 An objector is normally entitled to notice under section 83A(1) but section 83A(2) provides that this subsection 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. Therefore, although the objectors in this case may have been served with a copy of the application for review, this cannot be considered as notice under the Act under section 83A(1) of the Act. This is because they were not entitled to such notice by reason of the operation of section 83A(2). What they were served with can be considered to be no more than informal notice of the application for review.

14 As a consequence of not being entitled to notice of an application by a permit applicant in respect of refusal, failure or conditions by reason of section 83A(2), an objector who is not entitled to apply for review under section 82 is therefore not a party to an application for review of a decision refusing to grant the permit or a failure to grant the permit or a decision imposing a condition on the permit. 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.

15 As noted previously, it may be desirable if the provisions of the Act and the planning scheme were more explicit on this point and it might be preferable that the Heritage Overlay and other similar provisions of the Victorian planning provisions stated that certain classes of permit applications were exempt not only from the review rights of section 82(1) but also the right to be a party in reviews by the permit applicant under sections 77, 79 and 80 of the Act. However the suggestion of this addition is simply for the sake of clarity for users of the system, not because there is any doubt about the effect of the provisions.

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.

17 In the case of Perorad Care Pty Ltd v Frankston City Council [2004] VCAT 2272 Justice Morris was required to consider the rights of objectors in respect of an exempt application where the Tribunal required notice to be given under section 83B of the Planning & Environment Act 1987. He made a ruling that:

1 Persons who were given notice of the application for review under section 83B of the Planning and Environment Act 1987 and who, in accordance with the Victorian Civil and Administrative Tribunal Act 1998, lodged with the tribunal a statement of the grounds on which the person intended to rely at the hearing of the proceeding are parties to the proceeding.

2 The tribunal is entitled to consider the submissions of the parties to the proceeding.

18 However this was a case where the application for permit, when it was initially made and appealed against, was not exempt from the notice requirements or review rights of third parties under the Planning and Environment Act 1987. During the course of the Tribunal proceeding, although prior to the final hearing, the applicant requested the Tribunal to amend the plans which accompanied the permit application in a way that made the application one now within a class of application exempt from third party objector notice and rights of review. The plans were amended by the Tribunal and time was given to respondents to consider the amended plans. At the hearing the question was raised by the applicant whether as a result of the substitution of the plans the third parties who had given notice of a wish to be heard in relation to the application were still parties to the proceeding.

19 The rulings by Justice Morris need to be interpreted in the context of the circumstances of the case. An exemption from notice and rights of review can only operate to exclude third party objectors if the restriction applied at the time notice is required to be given. A subsequent change to a permit application cannot operate to exclude parties who have legitimately become parties prior to that point for the reasons stated by Justice Morris in Perorad Care Pty Ltd v Frankston City Council [2004] VCAT 2272:

18 ... 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 In the present case, the permit application was exempt from third party rights at the time when notice of the application for review was required to be given therefore section 83A(2) applies.

21 The objectors' concerns about equity are not determinative of the issue of whether they should be made parties. They are not entitled to be parties pursuant to the Planning & Environment Act and the provisions of the Heritage Overlay, and those provisions cannot be altered by the Tribunal. Such an explicit scheme should not be circumvented by the Tribunal through the exercise of its powers under section 60 of the Victorian Civil and Administrative Tribunal Act unless there are very compelling reasons to do so.[2] Such circumstances do not exist in this case. In reality however, their objections were taken into consideration by the responsible authority when it decided to refuse to grant the permit and their concerns are reflected in the grounds of refusal. The objectors may reasonably anticipate that the responsible authority will address their concerns in the submission it makes to the Tribunal at the hearing, so far as the concerns are relevant to the ambit of discretion being exercised in the case.

22 My conclusion is that the objectors are not people who are parties to this application for review by virtue of the provisions of the Planning and Environment Act 1987 and there is no justification for joining them as parties pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998. Their requests to be made parties and to have their objections considered are therefore refused.

[1] This provision appears to have been overlooked by the Tribunal in Anthony Stokes & Assoc v Greater Dandenong City Council [2000] VCAT 1613

[2] I am aware that there are a number of decisions where the Tribunal has reached different conclusions both on the facts and on the interpretation of the provisions of the Act relating to objectors when the exemption from notice and review applies. In some cases, eg Anthony Stokes & Assoc v Greater Dandenong City Council [2000] VCAT 1613 I consider the interpretation is wrong because certain provisions of the Act were not considered. Other cases turn on their own facts. They do not detract from the principles I have stated.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

West Valentine Pty Ltd v Stonnington CC [2005] VCAT 224

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Judgment (29 paragraphs)

West Valentine Pty Ltd v Stonnington CC [2005] VCAT 224 (9 February 2005)

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Legislation Cited (2)