Victorian Civil and Administrative Tribunal's review rights in the case of Myers v Southern Grampians Shire Council (Red Dot) [2022] VCAT 695 (24 June 2022)

In brief

The case of Myers v Southern Grampians Shire Council (Red Dot) [2022] VCAT 695 (24 June 2022) concerned an application for review in the Victorian Civil and Administrative Tribunal (VCAT) in respect of the approval of a permit application lodged with the Southern Grampians Shire Council (Council) for the proposed development of land located at the southern end of the Grampians National Park for a group accommodation comprising four cabins accommodating up to ten people, a pool, and a sauna.

Three objections were received in respect of the permit application. These objections were on the grounds that the proposed development, if approved, would have an unacceptable visual impact on the scenic natural features of the Grampians that attract many visitors to the region each year. Despite the three objections, the Council still granted the permit. Consequentially, the objectors made an application for review to VCAT.

VCAT relevantly held that it did not have jurisdiction under section 82 of the Planning and Environment Act 1987 (Vic) (Planning and Environment Act) to consider the part of the review application challenging the Council's decision to grant a permit to construct a building or carry out works on land affected by the Design and Development Overlay Schedule 6 (DD06) of the Southern Grampians Planning Scheme (Planning Scheme).

In respect of the other aspects of the review, VCAT was satisfied that the permit application should be granted under the Rural Living Zone Schedule 2 and Environmental Significance Overlay Schedules 2 and 3 of the Planning Scheme and varied the decision of the Council to include conditions requiring that a tree be retained and that grass be replanted using an indigenous seed mix.

VCAT's jurisdiction

The primary issue considered by VCAT was whether VCAT has jurisdiction to consider the application for review under DD06 having regard to section 82 of the Planning and Environment Act.

Section 82(1) of the Planning and Environment Act grants an objector to a planning permit the right to apply to VCAT for a review of a decision of the responsible authority to grant a permit. However, if the relevant planning scheme exempts a decision of an application for a permit from review under section 82(1), then under section 82(3) of the Planning and Environment Act "…an application for review cannot be made under [section 82(1)] in respect of that decision".

The objectors submitted that VCAT did not have jurisdiction under section 82 of the Planning and Environment Act as there is no trigger for review under DD06. The respondent submitted that the review application was not able to be brought in respect of the Council's decision to grant the permit and that VCAT does not have jurisdiction to consider the review application.

In reaching its decision, VCAT noted that it only has original and review jurisdiction. VCAT held that its review jurisdiction could not be invoked in this instance because the Planning Scheme exempted the Council's decision from review under section 82 of the Planning and Environment Act. VCAT would have had jurisdiction to hear the appeal if the Planning Scheme did not exempt the decision from review.

VCAT also relevantly noted that in a review application under section 82(1) of the Planning and Environment Act, the review is confined to matters raised under section 82(1) and VCAT does not have jurisdiction to consider the whole of the permit application that led to the decision under review.

VCAT finds no unacceptable visual impact and varies the Council's decision to include conditions

VCAT was satisfied that the permit application should be granted under the Rural Living Zone Schedule 2 and Environmental Significance Overlay Schedules 2 and 3 of the Planning Scheme because the design of the proposed development would have a minimal visual impact that would not be an "unacceptable intrusion on the landscape" and the proposed vegetation would soften the built form to an acceptable degree.

VCAT relevantly varied the decision of the Council to include conditions requiring that the plans of development be amended to retain a Carob Tree originally proposed to be removed and that grass be replanted using an indigenous seed mix.

Significance of this Red Dot decision

This Red Dot decision is of significance to the practice of planning and environment law as it reiterates the jurisdiction of VCAT and highlights the limitations on VCAT's jurisdiction to hear specific matters. This case demonstrates that provisions in a planning scheme can dictate the rights of review in respect of a permit application.