In brief
The case of Eddy v Yarra CC (Red Dot) [2024] VCAT 2 concerned an application to the Victorian Civil and Administrative Tribunal (Tribunal) for the review of a decision of the Yarra City Council (Council) to grant a planning permit to construct a dwelling on a single lot between 300 to 500 square metres. Importantly, this proceeding relates to Amendment VC243 (Amendment), which, among other things, removed from Victorian Planning Schemes the need for planning permission to construct or extend one dwelling on a lot between 300 to 500 square metres.
The Council issued a Notice of Decision (NOD) granting a permit prior to the gazettal of Amendment. The Applicant, who objected to the application before the Council, applied to the Tribunal to review the decision after the Amendment came in to force.
The predominant issue in this proceeding was whether the Tribunal had the jurisdiction to consider the application for review where planning permission was no longer required by the relevant planning scheme.
The Tribunal held that it had no jurisdiction to consider the matter and the proceeding was struck out.
Parties' positions
It was agreed between the parties that the NOD should be set aside and no planning permit issued because the Amendment removed the requirement for planning permission.
The Applicant contended that by virtue of the NOD being issued the Applicant had a right of review under section 82(1) of the Planning and Environment Act 1987 (Vic) (PE Act), from which flowed a 'bundle of rights' for that review application to be heard and determined by the Tribunal.
The Respondents argued that given that the Amendment removed the requirement for planning permission under the planning scheme, the Tribunal did not have jurisdiction to consider any application for review lodged after the Amendment came into force.
Tribunal's decision
In making its decision, the Tribunal considered the persuasive authority of Von Hartel & Ors v Macedon Ranges Shire Council & Ors [2014] VSC 215 (Von Hartel), which dealt with a similar matter, wherein an objector filed an application for review for a notice of decision to grant a permit before the planning scheme was amended to introduce an exemption from notice for a car parking reduction provision.
In Von Hartel, the Supreme Court of Victoria held that the review rights under section 82(1) of the PE Act introduced a 'bundle of rights' which entitle a person who lodges an application for review to invoke the Tribunal's review jurisdiction under section 48 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to have that application heard and determined by the Tribunal.
However, under common law, in exercising its jurisdiction the Tribunal's task is to stand in the shoes of the original decision-maker and make the correct decision having regard to basis of the facts and the law at the time the review decision is made.
Consequently, in accordance with section 5 of the PE Act which states that the PE Act "…applies to any planning scheme approved under this Act as in force from time to time under this Act", the Tribunal's review jurisdiction is to be exercised so as to automatically pick up amendments to planning schemes where there is no transitional provision to the contrary. Accordingly, in this case, the third party rights were removed, as were the 'bundle of rights' flowing from section 82(1) of the EP Act.
In contrast to Von Hartel, in this proceeding, the application for review was lodged after the Amendment was gazetted. Therefore, given that no planning permission was required at the time the application was lodged, the objector was not entitled to bring the application before the Tribunal.
Further, in any event, any rights that would have flowed from section 82(1) of the PE Act to invoke the Tribunal's review jurisdiction and the objector's right to have their application heard and determined were removed. As a result, the application was deemed to be misconceived and was struck out.
Conclusion
The proceeding was struck out because the Amendment removed the requirement for a planning permission to construct or extend one dwelling on a lot between 300 to 500 square metres and, as a result, at the time the application was made to the Tribunal the Applicant did not have any right of review.
In conjunction with previous decisions such as Koneska v Greater Geelong CC (Red Dot) [2023] VCAT 359, this case reaffirms that the Tribunal is obliged to consider the planning scheme as it is written at the time a review decision must be made. The Tribunal cannot give itself jurisdiction where jurisdiction does not exist.
Ultimately, where no transitional provisions apply, the impact of the Amendment in this case was three-fold:
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to remove the need for a planning permission to construct or extend one dwelling on a lot between 300 to 500 square metres;
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thereby removing the objector's ability to apply for review of a decision after the Amendment was gazetted; and
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in turn, removing an objector's right to have their application heard and determined by the Tribunal where no planning permission is required.