Insights Library
Failure Appeals – Beware
This article provides commentary on the recent decision by the Deputy President in Sharma v Greater Geelong CC [2022] VCAT 736, where an application for review to the Tribunal was remitted to Council for re-consideration.
Facts
The applicant lodged a planning application with Geelong City Council (Council) for use and development of land in Lara for a caravan and camping park.
Upon assessing the application material, Council requested further information. The Council required clarification on some of the original material submitted and the provision of:
- a management plan;
- a bushfire management plan;
- a landscape plan;
- flood modelling, stormwater strategy, traffic report
- a land capability assessment;
- an acoustic report;
- an ecological assessment;
- an environmental sustainability report under clause 22.17 of the Geelong Planning Scheme (planning scheme); and
- a waste management plan.
Due to an administrative error from Council, the request for further information was made outside the statutory timeframe and the statutory clock continued to run on the application.
This enlivened an appeal right for the Applicant, who appealed to the Tribunal pursuant to section 79 of the Planning and Environment Act 1987 (Vic) (PE Act) on the basis of Council’s failure to make a decision.
The matter was listed for a Practice Day Hearing to consider the RFI letter and whether the matter should be remitted to Council for re-consideration.
Section 51(2)(d) of the Victorian Civil and Administrative Act 1998 (Vic) (VCAT Act) allows the Tribunal to set aside a decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
Arguments
Council argued that the application was deficient and that it was unable to formulate a formal position until it received further information, including from internal and external departments.
The Applicant argued that the Tribunal was ‘seized’ of the jurisdiction and the Tribunal, not Council, was now the decision-maker. The Applicant relied on the broad powers of the Tribunal to allow amendments to decisions under review. This includes Practice Note – PNPE9 Amendment of Planning Applications and Plans (PNPE9), which allows Applicants to amend plans and provide updated materials as part of the application for review process. In this case, the Applicant said it would amend the permit application pursuant to PNPE9 and include a number of the key materials requested in Council’s RFI letter.
Tribunal Findings
The Tribunal, whilst not finding that all the information Council requested was necessary, found some of the information requested was required in order to consider the application for a planning permit.
The Tribunal cited the decision of Azzure Investments Pty Ltd v Port Phillip CC [2003] VCAT 85 (see paragraphs 11-18 of that decision) and decided to remit the matter back to Council under section 51(2)(d) of the VCAT Act.
Whilst the Tribunal acknowledged the broad powers which allow the Tribunal to make any amendment it sees fit, it found that incomplete applications which lack necessary information cannot be ’cured’ using the Tribunal’s amendment powers.
Key takeaways
- Section 79 of the PE Act and the PNPE9 process is not simply a way to bypass the original decision maker and seek to remedy applications with insufficient information; and
- Whilst each case will turn on its facts and generally speaking, the Tribunal will use its broad powers to allow amendments to applications in order for efficient decision making; Applicants need to be cautious that they aren’t lodging an appeal to the Tribunal where necessary information has not been provided to the original decision maker.
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