Victorian Civil and Administrative Tribunal review

• Victorian Civil and Administrative Tribunal’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 (Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) s 51(1)(a)). VCAT also hears applications to enforce the PE Act and planning schemes, decisions to cancel or suspend permits and may also make declarations.

  At VCAT, legal representation is not required. In complicated matters, or in cases where there is much at stake, it is advisable to obtain advice from lawyers, planners or other experts. Section 62(8) of the VCAT Act sets out who may be a ‘professional advocate’ at a hearing.

  VCAT must act fairly and according to the substantial merits of the case (VCAT Act s 97) with as little technicality as possible (VCAT Act s 98) and may confine a review to the particular matters in dispute if all the parties to the review agree.

  There are set fees for VCAT’s services (see www.vcat. vic.gov.au/fees) though VCAT may waive some fees in special circumstances. In relation to costs, the general rule is that each party pays its own costs (VCAT  Act s 109(1)). However, in some cases, VCAT may require a party to pay the costs of the other parties if it is fair to do so having regard to:

  • 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;

  • the relative strengths of the claims made by each party, including whether a party made a claim with no legal or factual basis; and

  • the nature and complexity of the proceedings.

• Appealing a permit decision

  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 (PE Act ss 77–80; Planning and Environment Regulations 2015 (Vic) regs 30– 32). A person who objects to the grant of a permit by the responsible authority may appeal to VCAT within 28 days of being given notice of the decision, unless the decision is otherwise exempted from appeal.

  In addition, a person who is not an objector but is affected by the permit can apply to VCAT for leave to appeal. Before making a decision, VCAT must give the permit applicant, the responsible authority and the affected person an opportunity to be heard (PE  Act s 82B).

  Third parties (i.e. anyone other than the applicant) must lodge their appeal within 28 days of the responsible authority’s decision about the permit (Planning and Environment Regulations 2015 (Vic) reg 35).

  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 (VCAT  Act s  61(1)). Otherwise, VCAT may permit a representative of an  unincorporated association to make submission at the hearing (VCAT  Act s  61(2)). Making a submission is not the same as being a party, with only the latter permitted to 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 serve it on the applicant and the responsible authority (VCAT Act sch 1, cl 56).

• Enforcement

  Anyone can apply to VCAT for an enforcement order (PE Act s 114) or an injunction (PE Act s 125) to restrain a  person who is breaching conditions in a planning permit or planning scheme (PE Act ss 114, 125). In the first instance, the responsible authority should be approached to take actions for enforcement orders on behalf of residents as it is primarily responsible for enforcement under the PE  Act and is usually better resourced.

  An injunction (PE Act s 125) or an enforcement order (PE Act ss 117, 119) or a declaration (PE Act ss 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.

  For more information about enforcement orders, see VCAT’s fact sheet, ‘Enforcement orders under the Planning and Environment Act 1987’ (available at www. vcat.vic.gov.au).

  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 (PE  Act s  126). Other criminal liability provisions apply to company officers (s 128). Infringement provisions can be used by authorised officers (usually council officers) to enforce matters under section 126.

• Cancellation and amendment

  VCAT can cancel or amend a permit if it considers that there has been a material misstatement or concealment of fact, substantial failure to comply with the permit, material, any material change in circumstances, a failure to give notice in accordance with the PE Act or a failure to refer the application to a referral authority (PE Act s 87(1)).

  VCAT can also cancel or amend a permit that has been issued at its direction if it considers it appropriate and has been requested to do so by the owner or occupier or by any person who is entitled to use or develop the land (PE Act s 87A).

  VCAT can cancel or amend a permit at the request of the responsible authority, the referral authority, a person under PE  Act section  89, 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 (PE  Act s 87(3)).

  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 (PE Act 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 (PE Act s 94). VCAT can also make cost orders.

  If you are seeking a permit cancellation or amendment, you should obtain advice from a lawyer or statutory planner.

Victorian Civil and Administrative Tribunal review

Chapter: 11.3: Environment and planning law

Contributor: Dr Dru Marsh, Senior Adjunct Lecturer, Public Service Research Group, School of Business, UNSW Canberra; Night Service contributor, Fitzroy Legal Service; Glenn Osboldstone, Senior Lawyer, DTP Legal; and Deborah Hollingworth, Manager, Aboriginal Strategy and Partnerships, Environment Protection Authority Victoria

Current as of: 1 September 2024

Law Handbook Page: 928

Next Section: Environmental impact assessment