Insights Library
Recent Decisions Clarify Ambit of Discretion
In recent years the Victorian Civil and Administrative Tribunal has issued a number of decisions following the planning law principle, known as the National Trust principle, that the exercise of the Tribunal’s discretion is limited to the scope of the purpose for which the power to exercise that discretion is conferred. While this has been commonly understood for some time recent cases have dealt with how that principle interacts with two related issues; namely the scope of third party/objector applicant appeal rights and the jurisdiction of the Tribunal in the context of bushfire and flooding issues.
Two recent and important decisions of the Tribunal have synthesised a long line of authorities following the National Trust case and clarified the law in relation to these issues. Importantly, both decisions also clarify the interrelationship between the ambit of a discretion provided under a planning scheme control and certain sections of the Planning and Environment Act which have incorrectly been applied and interpreted as widening the scope of the Tribunal’s discretion beyond the confines of the purpose for which the power to exercise it was granted.
Some recent decisions have held that a bushfire prone area designation does not raise bushfire as a relevant consideration in the absence of a Bushfire Management Overlay. Other cases have given the contrary view relying on sections of the Planning and Environment Act and clauses of the Planning Scheme. It is in this context that the two recent decisions have been made.
In Kiyagan v Baw Baw SC [2025] VCAT 206 the applicant applied for a permit for four dwellings in the General Residential Zone on land unaffected by any overlay. Despite no zone or overlay related to flooding applying to the land, Baw Baw Shire Council gave notice of the application to the Catchment Management Authority which then sought to be joined as a party to agitate flooding concerns. The Tribunal agreed with the applicant that neither Council nor the CMA could raise flooding as an issue in the application under the General Residential Zone in the absence of any flood related overlay or zone control. The Tribunal ordered that Council’s grounds of refusal that raised flooding concerns were not able be pursued. The Tribunal also refused to join the CMA as a party its concerns were solely related to flooding.
In Maddocks v Strathbogie SC [2025] VCAT 250 the Tribunal agreed with the respondent that a third party/objector applicant for review has no standing to raise flooding as an issue on Farming Zone land beyond the boundaries of the Floodway Overlay, which itself bars third party appeal rights. The Tribunal agreed that the fact flooding may occur, and that there was a declared 1% AEP area on the Farming Zone land, did not raise a discretion in respect of flooding under the planning scheme. This finding is analogous to the line of decisions holding that a bushfire prone area designation does not raise bushfire as a relevant consideration in the absence of a Bushfire Management Overlay.
The Tribunal agreed with the respondent that the proper interpretation and application of sections of the Act and clauses of the Planning Scheme, which appear to widen the Tribunal’s discretion and third party appeal rights, was that they must all be read subject to the purposes of the planning control raising the specific permit requirement. Decisions contrary to this approach were rejected by the Tribunal and thus a consistent body of decisions in relation to the ambit of the Tribunal’s discretion and third party appeal rights is now readily identifiable.
The decisions in Kiyagan and Maddocks crystalise the law that where environmental overlays exclude third party/objector appeal rights or where zone considerations do not give rise to environmental considerations that those environmental issues may not be able to be agitated in permit applications. Similarly, environmental issues which are regulated by a zone or overlay control which does not apply to land are beyond the Tribunal’s jurisdiction.
These decisions highlight the importance of including appropriate controls in the planning scheme to properly address environmental risks in permit applications if planning authorities consider an area liable for flooding or bushfire.
