Ambit of discretion limited to permit trigger

Edward Mahony
26 April 2022

The recent VCAT decisions of Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAY 1191 (Brunswick Investments) and Viva Energy Australia v Greater Geelong CC [2022] VCAT 326 (Viva Energy), have upheld the long standing principles established in  the Supreme Court decisions of National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VR 592 and Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27 that establish that a decision maker’s relevant considerations are limited to the relevant permit trigger controls and policies relevant to such controls.

Justice Michelle Quigley was the presiding member in Brunswick Investments decision, which confirmed that a decision maker may only exercise a discretion for the purpose for which it is conferred. In other words, it is only the statutory requirement for a permit which triggers an exercise of discretion under the Planning and Environment Act 1987 (Vic) and relevant Planning Scheme. Justice Quigley found that extraneous policies unrelated to the permit trigger cannot expand the purpose for which the discretion is to be exercised beyond the realms of the control itself. As relevant, the Tribunal found:

In exercising discretion, the decision maker must only take into account relevant considerations. The ascertainment of what is relevant is primarily deduced from the words of the control itself as it is the starting point to identification of the purpose for which the exercise of discretion is to be undertaken.

Further, in the Tribunal decision of Viva Energy, an Viva Energy sought to appeal the Council’s decision to issue a permit for a two-lot subdivision. The permit triggers for the application were under the Industrial 2 Zone (I2Z) and Design and Development Overlay, Schedule 18 (DDO18) applying to the site.

Relevantly, third party appeal rights were only established under DDO18 as the application was exempt from notice under the I2Z. The Tribunal found that any issues agitated under an Viva Energy’s statement of grounds would need to properly arise in relation to the permission sought under the DDO18.

However Viva Energy’s grounds of appeal primarily related to Clauses 13.07-2S (Major Hazard Facilities) and Clause 19.01-3S (Pipeline Infrastructure) which were unrelated to the relevant decision guidelines under DDO18. Member Whitney, a legal Member, who presided over the application proceeded to strike out the proceedings on the basis that the grounds advanced by Viva Energy were misconceived.

The Brunswick Investments and Viva Energy decisions are welcome determinations by the Tribunal for Permit Applicants who are faced with objections and/or an Objector appeal which are based on grounds and policies which are unrelated to the primary permit triggers.

If you have any questions about the relevant considerations to your planning permit application or appeal, please do not hesitate to contact our planning team.