Planning Matters03

from Intersect, May 2020

Member Matters02

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.

VCAT: Objector appeals for commercial advantage

Following on from the above article, with reference to Axicom Pty Ltd v Melton CC (Red Dot) [2020] VCAT 190, it is noteworthy that Axicom was a competitor of the permit applicant. In dismissing their objectors appeal the Tribunal also stated:

I consider that an objector application for review that is brought for a collateral purpose by a commercial competitor, and otherwise lacks planning merit, can be considered to be vexatious and an abuse of process for the purpose of section 75 of the VCAT Act. Again, there is a public interest in quickly disposing of such matters. Not only did VCAT find that the objectors appeal was “misconceived or lacking in substance, because it is devoid of planning merit”, it also found that the proceeding was “vexatious or an abuse of process, because it has been brought for a collateral purpose, and is intended primarily to secure or maintain a commercial advantage.” Notably, Section 150(4)) of the Planning and Environment Act 1987 provides: (4) If any proceedings are brought before the Tribunal under this Act and the Tribunal is satisfied that— (a) the proceedings have been brought vexatiously or frivolously or primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings; and (b) any other person has suffered loss or damage as a result of the proceedings— the Tribunal may order the person who brought the proceedings to pay to that other person an amount assessed by the Tribunal as compensation for the loss or damage and an amount for costs. As stated previously, the right of objectors to test the decisions of Council remains an important part of our planning system – but in instances where objector’s primarily seek to gain a commercial advantage over the permit applicant, and frustrate the process without planning merit, they not only run the risk of their appeal being summarily dismissed, they also run the risk of costs and damages being awarded against them. These tid bits are part of the regular contribution made by Clause 1 Planning to Intersect. For more information visit

www.clause1.com.au

www.clause1.com.au Ph: 03 9370 9599

Passive House Designer Course and Exam

Box Hill Institute are taking enrolments for the June Passive House Designer course and international exam. The international Passive House Standard is one of the most rigorous sustainability standards in the world. High-performance buildings designed to be sustainable and energy efficient, make financial and environmental sense, as well as being healthier and more comfortable for occupants. Successfully passing the Passive House exam provides you with international accreditation with the Passive House Institute (based in Germany). The Passive House courses will provide you with the skills and knowledge to meet increasing Australian demand for high-performance and healthy buildings. For more information visit: www.boxhill.edu.au/courses/certifiedpassive-house-designer-cphd1-sc/