Issue 26
Little bits that can make a big difference to your town planning outcomes
03. Planning Matters
VCAT COVID-19 Delays Practitioners should be aware that VCAT has placed ‘on hold’ all planning matters listed for hearings from mid-March to the 15th May 2020, due to Covid 19 safety issues associated with face-to-face hearings. These matters will be re-listed, at dates yet to be determined. VCAT is keeping all parties informed of adjournments and aiming to incorporate more video conferencing and telephone calls into their regime of hearing-types, as well as utilising ‘on the paper’ decisions (without hearings) where possible. Clause 1 expects matters currently listed for hearing beyond May 15 may also be affected, as the Tribunal attempts to work through the backlog. These delays, although frustrating, do present a great opportunity for permit applicant’s, whose matters are awaiting re-scheduling, to work with Council and objectors to resolve outstanding issues via without-prejudice mediations/decisions. Our experience has been that VCAT is very supportive of any genuine attempt to resolve matters prior to a hearing. Outcomes from such mediation processes, even if total agreement is not reached, are likely to reduce the number of outstanding issues and ensure the matter can be dealt with more expeditiously by the Tribunal. If you are seeking advice on how to ensure your VCAT matters do not stagnate, please do not hesitate to contact Clause 1 Planning. VCAT: Getting an objector’s appeal summarily struck-out The right of objectors to appeal to VCAT for review of Council decisions to grant planning permits (pursuant to s.82 of the Planning and Environment Act 1987) is an important and well-established part of the Victorian planning regime. However, for permit applicants, the cost and delays associated with objector appeals can be significant. And it can sometimes feel like these proceedings are devoid of planning merit and do not warrant wasting the permit applicant’s, Council’s or the Tribunal’s time. In a recent VCAT appeal, Axicom Pty Ltd v Melton CC (Red Dot) [2020] VCAT 190, the Tribunal provided some interesting commentary on its powers to summarily dismiss/strike out appeals that are considered devoid of merit. Section 75 of the VCAT Act provides that:
At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion— a. is frivolous, vexatious, misconceived or lacking in substance; or b. is otherwise an abuse of process. Generally, for an application for dismissal to be successful, it must show that a proceeding is obviously without merit and unequivocally bound to fail. However, due to the wide discretionary merits-based assessment required in planning matters, this test constitutes a very high bar and results in very few cases being dismissed at these early stages. In the above case, Axicom appealed Council’s decision to grant a permit for the use and development of land for the purposes of a telecommunications antenna/pole. The Tribunal found that the appeal was “misconceived or lacking in substance, because it is devoid of planning merit having regard to the grounds of review” and summarily dismissed it. In coming to that conclusion, the Tribunal’s Deputy President stated: 16. The power in section 75(1) of the VCAT Act is predicated on the ‘opinion’ of the tribunal that a proceeding is misconceived or lacking in substance… 17. In forming the requisite opinion, the Planning and Environment List at VCAT is uniquely constituted as an expert tribunal, with experienced members well able to determine the occasional matter that is devoid of planning merit and bound to fail. 18. Moreover, in an era where courts and tribunals are concerned with limited resources and efficient case management, it is appropriate that proceedings that are objectively devoid of planning merit are quickly disposed of – albeit cautiously (…) There is a public interest in avoiding lengthy hearings for matters that have no prospect of success. Although, far from opening the floodgates for summary dismissal of objector appeals, these comments do provide some hope for permit applicant’s who find their approvals being challenged at VCAT on vexatious or hopeless grounds.
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