General Overview:
‘In the interests of its people a city must be planned with two objectives in view – that of conducting business in the most efficient manner, and that of conferring the greatest benefits to the greatest numbers.’ (Plan of General Development, Melbourne, Report of the Metropolitan Town Planning Commission, 1929.
This year, VCAT’s budget for its Planning and Environment List (PE List) will be $8.1 million. Planning disputes are often difficult, controversial and sometimes intractable. They require considerable time and resources.
VCAT members consider uses and developments of all types including residential, commercial, industrial and institutional proposals. At the present time, well over $1 billion worth of development proposals are subjects of Planning and Environment proceedings.
In any given year there will be over 4000 applications made in the PE List.
VCAT has 1,997 pending cases in the PE List annually.
Over 4000 cases are initiated in the PE List annually.
Over 4000 cases are finalised in the PE List annually.
Planning and Environment Legislation:
- Aboriginal Heritage Act 2006;
- Catchment and Land Protection Act 1994;
- Climate Change Act 2010;
- Conservation, Forests and Lands Act 1987;
- Education and Training Reform Act 2006;
- Environment Protection Act 1970;
- Flora and Fauna Guarantee Act 1988;
- Gambling Regulation Act 2003;
- Health Services Act 1988;
- Heritage Act 1995;
- Land Acquisition and Compensation Act 1986;
- Pipelines Act 2005 (Vic);
- Road Management (General) Regulations 2005 (Vic);
- Traditional Owner Settlement Act 2010 (Vic);
- Urban Renewal Authority Victoria Act 2003 (Vic);
- Local Government Act 1989;
- Major Transport Projects Facilitation Act 2009;
- Mineral Resources (Sustainable Development) Act 1990;
- Owners Corporations Act 2006;
- Planning and Environment Act 1987;
- Plant Biosecurity Act 2010 sections 48;
- Subdivision Act 1988;
- Valuation of Land Act 1960;
- Water Act 1989.
Planning Schemes:
Planning is governed by the relevant planning schemes for each municipality.
Each city or shire Council has their own incorporated planning scheme. Council’s are referred to as Responsible Authorities in the scheme.
The Responsible Authorities make amendments to the scheme through the Planning Panels of Victoria and having them approved by the Planning Minister and incorporated in the relevant scheme.
Each planning scheme has state, municipal and a local statement which govern how the Responsible Authority will deal with an application.
In addition each planning scheme has far greater detail about specific use or development issues such as dependent persons unit, advertising signs, land zoning, heritage, use as a restaurant and the amenity impacts on the adjacent neighbours, along with another myriad of other uses and developments.
Planning Decision Process at Council Level:
Where a permit is required under a planning scheme for a particular use or development on land an application must be made to the Responsible Authority.
The owner or their representative can submit the application.
Particular care should be taken to ensure the description of the proposed use or development fits the proposal and meets the Planning Scheme definitions.
Having received the application the Responsible Authority must according to section 52 of the PE Act determine if notice needs to be given to neighbours, referral authorities (such as Country Fire Authority, Vic Roads, etc.
- Essentially notice must be given if the use or development may cause material detriment to any person.
- If no notice is required then the Responsible Authority will decide on the planning merits of the application according to the relevant planning scheme.
- If notice is required then those affected by the use or development will be notified either by the Responsible Authority or the applicant.
- The Responsible Authority may make it’s decision within 14 days after the last day that notice was required and must consider objections and submissions it has received.
It is this is the stage where lawyers are usually called.
- A neighbour wants to object to an application, or a permit applicant wants to deal with objections.
- According to Section 57 of the PE Act all objections must be in writing and state how the objector would be affected by the grant of the permit.
- Moral dispute or objections to financial gain are not considered. For example, a neighbour objecting to the morality of a brothel, or a supermarket objecting to another supermarket opening close by is not a relevant planning matter.
The Responsible Authority will either:
- Grant a permit;
- Grant a permit subject to conditions;
- Refuse to grant a permit on any ground it thinks fit (such as a Referral Authority like Melbourne Water objecting to the application).
One of the most common considerations and objections in planning is amenity.
- Amenity is complex issue to define. Amenity can mean subjective criteria such as appearance, pleasantness, agreeability and convenience.
- It can also relate to more objective criteria such as television reception, siting of buildings, landscaping, noise, etc.
If a permit is granted with conditions then they will be defined broadly as stated in section 62 of the PE Act.
- Generally the Responsible Authority may impose any conditions it considers are appropriate although such conditions must relate to relevant considerations to the proposed use or development such as parking, hours of operation, landscaping, and the general amenity clause.
Planning and Environment Application Process:
Essentially there are three types of applications:
- Applications for review also referred to as a merits review are initiated by either objectors or planning permit applicants who are requesting a review of conditions;
- Enforcement Application;
- Declaration Application.
Application for Review (Merits Review):
If there is a decision to either issue a permit (called notice of decision) or issue a permit with conditions the permit applicant and objectors are notified. The Responsible Authority can give the notice of decision but must not issue a permit until the expiration of the relevant appeals period.
Similar to that, a notice of refusal to not issue a permit is provided to the applicant and any objectors and the permit applicant has an appeal period.
By an application against a failure by the Responsible Authority to grant a permit with the prescribed time;
By an application against a failure by the Responsible Authority to grant a permit;
By an applicant against a requirement by the Responsible Authority to provide further information;
By an applicant against a requirement to give notice under section 52;
By the applicant against any condition imposed on a permit by the Responsible Authority;
By any person against a refusal of the Responsible Authority to extend the time within which the permit is to be acted upon;
By an objector (or any other person affected where an objection has been lodged) against the decision of the Responsible Authority to grant a permit;
By Liquor Licencing Commission in respect of premises subject to (or which would then become subject to) the provisions of the Liquor Control Act 1987.
An appeal against a notice of decision is commenced by lodging an application for review within a prescribed time.
Different application forms apply to objectors or applicants.
- The application does not require pleadings but simple statement of grounds; for example:
- The proposed use and development is inappropriate for the area;
- The proposed use would be detrimental to the amenity of the area.
- The proposed development constitutes an over development of the site.
Fees are now payable upon the filing of the application for review.
The Responsible Authority or permit applicant (depending if it was a notice of decision or notice or refusal) is required to serve a statement of grounds in response to the Application for Review.
Next steps in the application for review would be a directions hearing which are essentially timetabling hearings to ensure each party is aware of the steps ahead.
There can also be a practice day hearing to deal with urgent applications and can be scheduled the day before and can deal with matters such as adjournment applications or to supply adequate particulars.
Mediation or compulsory conference (essentially a mediation but before a tribunal member who can make orders) may be used at the initiative of the parties or VCAT.
Generally those matters regarded as suitable for mediation on the PE List are:
- Cases of small numbers of parties;
- Cases only having a single issue or a limited number of issues in dispute;
- Reviews against conditions.
- A final hearing is then scheduled and may run for half a day to ten days depending on the number of witnesses, the quantum of the application and other factors. Hearing submission are made in the following order:
- Responsible Authority;
- Other respondents such as referral authorities;
- Objectors;
Hearing submission can be oral but usually a professional representative will prepare written submissions, provide them to the parties and read them with emphasis on:
- Matters to be take into account by the Tribunal;
- History of application;
- Matters of law;
- Applicants/objectors response to grounds of
- Draft conditions.
Enforcement:
The PE Act provides the Responsible Authority with various means to enforce compliance with a planning scheme, a permit, conditions or 173 agreement.
One option is a planning infringement notice is issued by the Responsible Authority and is used to deal with minor breaches of the planning scheme or of a condition in a permit. They require automatic payment of a fine, similar to a speeding fine.
Enforcement orders are governed by Section 114 of the PE Act. The enforcement application is made at VCAT and can be made by the Responsible Authority or any person where a use or development of land contravenes or has contravened (if an enforcement notice is not issued) a planning scheme, condition of a permit or an agreement under section 173 (Council and owner agreements).
An enforcement order can be against:
- The owner of the land;
- The occupier of the land;
- Any other person who has an interest in the land;
- Any other person by whom or on whose behalf the use or development was, or is being carried out.
The next steps after an application for an enforcement order is filed are similar to a permit application process when preparing for notification requirements, timing and VCAT hearing schedule.
An interim enforcement order can be issued by the Tribunal if there is an urgent response required. Rights of parties are similar to interim injunctions.
- An injunction is also available during an enforcement proceeding.
The Tribunal can order a cancellation or amendment of a permit or a 173 agreement at an enforcement application hearing.
The decision of the Tribunal is final and binding on all parties to the appeal. No appeal rights lie from determination of the Tribunal except on a question of law.
Declaration:
A declaration is An authoritative but non-coercive proclamation of the Tribunal made for the purpose of resolving some legal issue. It is contrasted with orders which are coercive, but a refusal to abide by a declaratory judgment may lead to a coercive order given against the defaulting party. Generally, declaratory relief will be granted only for the determination of legal controversies and not for answering abstract or hypothetical questions, and only where the person seeking relief has a real interest in the matter.
Formerly the tribunal could only make declarations concerning any matter in a proceeding by a judicial member but since the commencement of part 17 of the Justice Legislation (Further Amendment) Act 2006, the tribunal’s power to make orders under s 124(1) is exercisable by a judicial member or a member who is a legal practitioner (s 124(2)).
There are 2 main legislative provisions in the Planning and Environment Act 1987 (Vic):
- Section 149A – where there is a question of the “interpretation of a planning scheme or a permit in relation to land or a particular use or development of land” – King v Colac Otway SC [2004] VCAT 2500;
- Section 149B – for any matter which may be the subject of an application to the Tribunal under the Planning and Environment Act 1987 (Vic) or anything done by a responsible authority under the Planning and Environment Act 1987 (Vic).
The Victorian Civil and Administrative Tribunal Act 1998 (Vic) also gives the Tribunal the ability to make declarations, however this ability is “in addition to” any power given the Tribunal under an enabling enactment.
Daniel Epstein of Counsel
