VCAT’s role in land use planning
Planning permit decisions may be reviewed and enforced by VCAT. VCAT considers a permit application anew, considering both the merits of the application and procedural or legal issues (s 51(1)(a) VCAT Act). It also hears applications to enforce the PE Act and planning schemes, or to cancel or suspend permits, and it has power to make declarations.
VCAT is not exclusively a legal forum and legal representation is not required. In complicated matters, or issues where much is at stake, it is nevertheless advisable to obtain advice from lawyers, planners or other experts (see “Legal advice”). Section 62(8) of the VCAT Act sets out who may be a “professional advocate” before VCAT.
VCAT must act fairly and according to the substantial merits of the case (s 97) with as little technicality as possible (s 98). VCAT can confine a review to the particular matters in dispute if all the parties to the review agree.
The VCAT Act provides for compulsory conferences and the mediation of disputes (ss 83–93). While mediation is very desirable in principle, a party appealing on environmental grounds can be disadvantaged when opposed to a party that is well resourced and prepared to press the matter as far as possible in pursuit of a commercial goal and thus protract mediation. In these circumstances, legal advice should be sought. (See Legal representation, and Legal services that can help, for details on how to go about this.)
Questions of law dealt with in VCAT may be appealed to the Supreme Court, if that court gives leave to appeal (s 148).
For more information about VCAT, see Appealing government and administrative decisions.
There are set fees for VCAT’s services; these are listed at www.vcat.vic.gov.au/resources/planning-and-environment-fees. Some fees can be waived in special circumstances.
At VCAT, each party pays their own costs (s 109(1) VCAT Act). However, in some cases, VCAT may require a party to pay the costs of the other parties if it is fair to do so. In determining whether it is fair for a party to pay costs, VCAT considers:
• the party’s conduct, including whether the party unnecessarily disadvantaged another party (e.g. by failing to comply with a VCAT order);
• whether the party unreasonably prolonged the proceedings; and
• the relative strengths of the claims made by each party, including whether a party made a claim with no legal or factual basis (s 109(3)).
A person who has applied for a planning permit may appeal to VCAT against a permit decision within 60 days of the responsible authority’s decision (ss 77–80 PE Act; regs 30–32 Planning and Environment Regulations 2015 (Vic)). Classes of permit applications may be exempted from appeal by the planning scheme (s 82). A person who objected to the grant of a permit by the responsible authority may appeal to VCAT unless the decision is otherwise exempted from appeal (s 82(1)).
In addition, a person who is not an objector but is affected by the permit can apply to VCAT for leave to appeal, so long as the responsible authority received at least one written objection to the permit (s 82B). The affected person must apply to VCAT and request the consent of the permit applicant and the responsible authority. If the permit applicant consents, the application for review will proceed. If the permit applicant does not consent, VCAT will list the matter for a directions hearing in which it will hear arguments by the affected person, the permit applicant and the responsible authority. If VCAT believes it is just and fair in the circumstances to do so, the application for review will proceed (s 82B).
The question is what is just and fair in the circumstances. VCAT is concerned that a serious objection to a project should be heard (see Kenyon & Willabee Pty Ltd v Port Phillip CC  VCAT 797 and Leonora Group (Wonthaggi) Pty Ltd v Bass Coast SC  VCAT 233 at ). The President of VCAT may direct that wider notice be given of an application for review of a decision with respect to a permit (s 83B).
Third parties (anyone other than the applicant) must lodge their appeal within 21 days of the responsible authority’s decision on the permit (s 82; reg 35 Planning and Environment Regulations 2015 (Vic)).
If a group wants to lodge or oppose an application for review as a group or association, and be a party in the proceedings, then the group or association must be incorporated (s 61(1) VCAT Act). (See Associations Incorporation Reform Act 2012 (Vic).) Otherwise, VCAT may permit a representative of an unincorporated association to make submission at the hearing (s 61(2)). Note that making a submission is not the same as being a party. Only parties can bring evidence from witnesses and question other parties’ witnesses.
People wishing to contest proceedings under the “planning enactments” (including the PE Act and EP Act) must lodge a statement of the grounds on which they intend to rely at the hearing, and this statement must be served on the applicant and the responsible authority (cl 56, sch 1). Section 84 of the PE Act provides that in the proceeding itself, a party is not restricted to the grounds previously notified to the other parties.
Nevertheless, the formulation of the statement of grounds should be taken very seriously. As noted above in “VCAT fees and costs”, it is possible for another party to seek payment of its costs. Two of the grounds for VCAT to order payment of costs are prolonging the proceeding and causing an adjournment (s 109 VCAT Act). If the statement of grounds does not reflect the issue being argued, an aggressive opponent might claim that it has been taken by surprise, seek adjournment and apply for costs.
The principal registrar of VCAT is required, if requested, to give “reasonable assistance” to anyone formulating an application (s 67(4)). VCAT personnel do not, however, provide detailed advice to applicants.
Anyone can apply to VCAT for an enforcement order to restrain a person who is breaching conditions in a planning permit or planning scheme (ss 114–125 PE Act).
In the first instance, the local council should be approached to take actions for enforcement orders on behalf of residents as the council is responsible for enforcement under the PE Act and is usually better resourced.
An injunction (s 125), or an enforcement order (ss 117, 119) or a declaration (s 149A–149B) may be sought. Breaching enforcement orders is an indictable offence that can be prosecuted in the Magistrates’ Court.
It is often difficult to provide evidence of a breach of permit conditions. Witnesses’ statements and photographs are important.
Costs are more likely to be awarded in an enforcement case than in other planning matters.
See VCAT’s practice note, PNPE4: Enforcement Orders and Interim Enforcement Orders (available at www.vcat.vic.gov.au/resources).
It is a criminal offence to use or develop land in contravention of, or failing to comply with, a planning scheme, permit, or a section 173 agreement (s 126). Other criminal liability provisions apply to company officers (ss 9, 128). Infringement provisions can be used by authorised officers (usually council officers) to enforce matters under section 126 of the PE Act.
VCAT can cancel or amend a permit where there has been (s 87 PE Act):
• a material mis-statement or concealment of fact;
• a substantial failure to comply with the conditions of the permit;
• a mistake in relation to the granting of the permit;
• a change in circumstances that occurred after the permit was granted;
• a failure to give notice in accordance with the PE Act;
• a failure to refer the application to a referral authority.
VCAT can cancel or amend a permit at the request of the responsible authority, referral authority, the owner or occupier of the land, any person who is entitled to use or develop the land, or a person who objected or would have been entitled to object, in certain circumstances (ss 87(3)–94).
VCAT can order that no development occur, other than that specified in an order, while the matter is being heard. Before making an order, VCAT must consider whether an applicant should give an undertaking as to damages (s 93). Applicants may be liable to pay the developer compensation for losses suffered as a result of a suspension of the development that proves unjustified (s 94). VCAT can also make cost orders.
If you are seeking a permit cancellation or amendment, get advice from lawyers, planners or other experts (see “Legal advice”).
Often the use of land that is to be facilitated by the amendment of a planning scheme will be an “as of right” land use under the amended planning scheme. Where that is not the case, a person requesting the preparation of a planning scheme amendment may also apply to the relevant planning authority for a permit with respect to a use of the land that would be permissible if the amendment were to be made (s 96A–96N PE Act). Amendment of the planning scheme and the planning permit application may then be considered concurrently.
The procedure is then substantially the same as a planning scheme amendment, with opportunities to make submissions and panel hearings. Entitlement to notice of the application is severely restricted (s 96C). If the application is successful, the minister grants the permit (s 96I) and directs the responsible authority to issue it (s 96J). Appeal against the grant of a permit pursuant to this procedure is effectively excluded (s 96M(3)).