Two strikes and you’re out

Andrew Iser
23 June 2022

Wood v East Gippsland SC [2022] VCAT 651 – Striking Out Objector Applications for Review

Our office often acts for clients who have received a Notice of Decision to Grant a Permit from Council, only to find that an objector has appealed Council’s decision to VCAT.

In some cases, such an objector appeal can be summarily dismissed (struck out) where the Tribunal finds that the grounds of the appeal are misconceived (in fact or law or both), obviously hopeless and bound to fail.

In Wood v East Gippsland SC [2022] VCAT 651 (Wood) the Tribunal ordered summary dismissal of an application for review brought against our client by an objector (Mr Wood), on the basis that the grounds of appeal were misconceived.

Our client applied for a planning permit for a multi-lot subdivision of twenty residential lots.

We advised out client that Mr Wood’s grounds of appeal were misconceived and at a Practice Day Hearing to determine this question the Tribunal found that Mr Wood’s grounds of appeal were ‘unsatisfactory’ and gave him an opportunity to file amended grounds.

The amended grounds of appeal were the subject of a second Practice Day Hearing at which we successfully sought to have the appeal summarily dismissed.  The Tribunal agreed that the amended grounds were ‘fundamentally flawed’ and ordered summary dismissal of Mr Wood’s appeal.

Mr Wood’s amended grounds were deficient in several ways, including that he sought orders that the Tribunal has no jurisdiction to make, mis-represented certain facts to support false propositions of law and sought permit conditions that were found to be vague, unworkable and/or unreasonable.

In striking out Mr Wood’s appeal against our client, VCAT reiterated that the bar that must be overcome for it to order summary dismissal of an application for review is a high one.  In general terms, the proceeding must be obviously hopeless or unsustainable in fact or in law, it must not reasonably justify the relief sought or it must be bound to fail.

Applying those principles, the Tribunal held that Mr Wood’s appeal was bound to fail, was misconceived and lacking in substance.

The Tribunal further noted it would not be in the interests of justice to allow Mr Wood a third chance to ‘clarify’ his grounds.

We can advise permit applicants in similar scenarios, and while each matter will depend on its own facts, it can be worth applying to strike out grounds of appeal which appear misconceived because in Wood, it came down to ‘two strikes and you’re out’.

About Best Hooper – Victoria’s Property, Planning and Land Development Advisory Law Firm

Best Hooper are the oldest and most prominent developer focused law firm in Victoria who have served our community since 1886; through wars, recessions, depressions and pandemics. We are actively advising clients in relation to the COVID-19 outbreak on all property related matters including leasing, disputes, property transactions and planning advices and applications. We are continuously recognised as industry leaders in a variety of publications, including Doyles Guide and Best Lawyers.

Andrew is a member of our Planning team, if you require more information please call Andrew on 03 9691 0222 or email on aiser@besthooper.com.au