Recent posts have highlighted the failure of the planning department to meet its legal obligations in notifying resident objectors of amended application plans within the required time limit, or perhaps at all. Over a year ago a ‘red dot’ VCAT decision lambasted Glen Eira Council for its poor record keeping, and its failure to adhere to Practice Notes. Judging by recent events, nothing much appears to have changed! Here’s the decision and some extracts. See: http://www.austlii.edu.au/au/cases/vic/VCAT/2011/2065.html
Lorne Crest Pty Ltd v Glen Eira CC & Ors (includes Summary) (Red Dot) [2011] VCAT 1422 (2 August 2011)
RED DOT DECISION SUMMARY
The practice of VCAT is to designate cases of interest as ‘Red Dot Decisions’. A summary is published and the reasons why the decision is of interest or significance are identified. The full text of the decision follows. This Red Dot Summary does not form part of the decision or reasons for decision.
| NATURE OF CASE | The role of Responsible Authorities and Applicants in applications under s.87A of the Planning and Environment Act 1987. |
| REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE | |
| PRACTICE OR PROCEDURE – consideration of individual instance or systemic issues | Practice Note PNPE2 – clarification of requirements under clauses 2.8 to 2.10.
Information required to assist the Tribunal in identifying other persons who may have a material interest in the outcome of requests under s.87A of the Planning and Environment Act 1987. |
SUMMARY
This case involves a request to amend a permit issued at the direction of the Tribunal for 34 dwellings in a 3 storey apartment building with a basement carpark.
The substantive amendments involve increasing the number of dwellings by 11 to 45 dwellings through the addition of two further levels to the building, and the introduction of a graffiti mural art installation to external walls.
At the start of the hearing, it emerged that persons who may have a material interest in the outcome of the amendment request had not been notified of the application, namely two persons who objected to the permit application.
This case highlights the important role of Responsible Authorities in providing the correct information to the Tribunal under Practice Note PNPE2 (Information from decision makers) and the role of Applicants in assisting the Tribunal to determine persons who may have a material interest in the outcome of requests under s.87A of the Act.
While this particular case is based on an application under s.87A of the Act, the principles discussed equally apply to applications under s.87 and 89 of the Act.
To assist in this process, the Responsible Authority has an important role to play. Practice Note PNPE2/11 sets out information required to be provided by Responsible Authorities to the Tribunal.
- The information requested under clauses 2.8, 2.9, 2.10 and 2.11 of Practice Note PNPE2/11 is of particular importance. It requires the following:
2.8 Whether notice of the permit application was given under section 52 of the Act; the date and manner of giving any notice, and a list of the properties or persons to whom notice was required to be given.
2.9 The number of objections received and the names and addresses of persons who objected.
2.10 The current names and addresses as shown in the responsible authority’s records of the owners and occupiers of the properties whose owners or occupiers objected to the application for permit.
2.11 Whether any person other than persons named as parties to the application may have a material interest in the outcome of the application, and an indication of the nature of the interest.
- The reference to “notice of the permit application” in clause 2.8 is often misunderstood. This misunderstanding seems to have occurred in the present proceeding where the Responsible Authority’s response was:
Notice of the application to amend the Planning Permit has not been given by the Council.
- The Responsible Authority’s response “N/A” was given in relation to clauses 2.8 and 2.9 and the comment “Nil at this stage” appears beside the information requested in clause 2.11.
- Extensive notice was in fact required in respect of the original permit application and as I have mentioned, three objections were received after that notice was given.
- The term “notice of the permit application” is a reference to the notice that occurs during the permit application process before a decision on an application is made and before any permit is granted.
- This should not be confused with the notice to persons who may have a material interest in the outcome of the request now required to be determined by the Tribunal under the current permit amendment request.
- 22. Given that a considerable amount of time may have elapsed since the grant of the permit and a request to amend it, sometimes several years, it is also important that information provided by Responsible Authorities is up to date – that is based on current rate records.
- 23. It is not sufficient, for example, to provide the Tribunal or Applicant with a photocopy of the original list of persons notified without it first being checked for currency against up-to-date rate records held by the Council.
- 24. To illustrate, land may be have been subdivided and redeveloped since the grant of the permit, in a way that its owners/occupiers may now have a material interest in the outcome of a decision to amend it.
