Time of Council ‘decision’ in a planning permit application

Edward Mahony
19 July 2023

Edward Mahony of our office recently appeared at the Victorian Civil and Administrative Tribunal (VCAT) before Deputy President Bisucci regarding a technical point on what determines a Council ‘decision’ for an appeal under Section 77 of the Planning and Environment Act 1989 (Vic) (P&E Act)

Facts

Our client filed an application with VCAT under Section 79 of the P&E Act against the City of Greater Geelong’s failure to grant a planning permit within the 60 statutory day timeframe, (‘Failure appeal’). Council raised a preliminary question of law stating that our client should have filed the appeal under Section 77 of the P&E Act, on the basis that it had made a ‘decision’ to refuse a permit on the planning permit application at an internal Council meeting the day prior to our client filing the appeal with VCAT. Our client had no knowledge that this meeting had occurred at the time of filing its appeal. 

Our office argued that the ‘decision’ made at this Council meeting, is not a ‘decision’ for the purpose of Section 77 of the P&E Act. In making this submission, we relied upon the words of Section 65 of the Act which states:

Refusal of permit

• The responsible authority must give the applicant and each person who objected under section 57, a notice in the prescribed form of its decision to refuse to grant a permit

• The notice must set out the specific grounds on which the application is refused and state whether the grounds were those of the responsible authority or a determining referral authority

We submitted that as the Council did not give the Notice of Refusal to the Applicant until after the Section 79 appeal, the failure appeal was appropriately made at the time the appeal was filed. 

We also submitted that at a practical level, an Applicant would be disadvantaged if the Council’s submission that a ‘decision’ for the purpose of Section 77 could be a decision that is not conveyed to an Applicant in the form of a Notice of Refusal. This is because Regulation 30 of the Planning and Environment Regulations 2015 requires an Applicant to make an application within 60 days of a Notice of Refusal issuing. If Council delayed issuing such a Notice of Refusal, it would arguably result in the Applicant having no appeal rights against Council.

The Tribunal accepted our submission that the application for review was properly made under section 79 of the Act. The Member noted ‘to rely upon the date of the decision of a council made at a meeting, which was not given to the relevant persons, would defeat the certainty created by the various provisions in the PE Act and PE Regulations’. In coming to this determination, Deputy President Bisucci placed emphasis on the requirement of Section 65 that Council must give the notice in the prescribed form (Notice of Refusal) and that the decision is made when the notice is issued. 

A similar fact scenario occurred in the VCAT decision of Klados v Banyule CC (Costs) [2017] VCAT 1397, where Member Fong determined that just because an authorised delegate of Council makes a determination/finalises their position on an application, does not mean that the Council’s ‘decision’ has been made for the purpose of Section 77 of the Act. Rather, it is the date of the Notice of Refusal. 

Please do not hesitate to contact our planning team should you have any questions in relation appealing a failure/determination of Council in deciding on your planning permit application.