Warning – take care when lodging a VCAT Appeal under Section 89 of the Planning & Environment Act (a request to cancel or amend a permit)
Once a planning permit has been issued, an objector can only appeal to get a permit cancelled or amended if for some reason they weren’t notified of the grant of the permit, or if they believe they will be adversely affected by some error in the permit process or a failure to comply with the permit conditions. This is called a s89 Appeal.
This is a different and much more risky process than a standard s82 objectors’ appeal, which must be lodged within 21 days AFTER council decides to approve an application – ie, BEFORE a permit can actually be issued. A s89 appeal can only be lodged AFTER a permit has actually been issued.
However, to be able to actually overturn or amend the permit, you have to be able to prove one of four things:
- that you should have been given notice of the application for the permit but were not given that notice (ie, that you weren’t notified under s52 of the council’s intention to grant a permit and so weren’t able to appeal the council decision and so have been denied natural justice); or
- you believe that you have been adversely affected by one or more of 3 things —
(i) a material mis-statement or concealment of fact in relation to the application for the permit; or
(ii) any substantial failure to comply with the conditions of the permit; or
(iii) any material mistake in relation to the grant of the permit.
The Tribunal may refuse to consider a request under this section unless it is satisfied that the request has been made as soon as practicable after you became aware of the facts you intend to rely on at the hearing.
BUT it gets even harder – then you ALSO have to prove you’d suffer “substantial disadvantage” arising from the grant of the permit [under s91(3)(b)] – AND that it would be just and fair for VCAT to cancel the permit [s91(3)(c)]. It is far harder to convince the Tribunal of both of these than to mount an ordinary s82 challenge to a council decision to grant a permit.
The big danger is that if you can’t prove both substantial disadvantage AND that it would be fair to all parties to cancel the permit, the developer may ask for their costs to be awarded against you if they succeed in convincing the Tribunal that your appeal is “unjustified, unwarranted, or vexatious” and has caused delays in construction of the project.
So objectors should always get legal advice before lodging a s89 appeal. The best way to avoid the problem altogether is to make sure you are notified when your Council makes a permit decision (Notice of Decision – NOD). This means contacting the Council planner every few weeks in the latter stages of the assessment to see how it’s proceeding and to find out when a decision is likely to be made.
That way, if the NOD doesn’t turn up within a few days of the expected date, you’ll still have enough time to chase it up from the council before the 21-day time limit runs out for lodging an ordinary objector’s appeal.
Section 89, Planning & Environment Act: Request for cancellation or amendment
(1) Any person who objected or would have been entitled to object to the issue of a permit may ask the Tribunal to cancel or amend the permit if—
(a) the person believes that the person should have been given notice of the application for the permit and was not given that notice; or
(b) the person believes that the person has been adversely affected by—
(i) a material mis-statement or concealment of fact in relation to the application for the permit; or
(ii) any substantial failure to comply with the conditions of the permit; or
(iii) any material mistake in relation to the grant of the permit.
(2) The request must be made in writing in accordance with the regulations.
(3) The Tribunal may refuse to consider a request under this section or section 87 unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request.
Section 91, Planning & Environment Act: Determination by Tribunal
(3) The Tribunal must not direct a responsible authority to cancel or amend a permit on a request under section 89(1) unless it is satisfied that—
(a) in the case of a request under section 89(1)(a) the person—
(i) could not reasonably be expected to have been aware of the application for the permit in time to lodge an objection under Division 1; and
(ii) was substantially disadvantaged by the issue of the permit; and
(b) in the case of a request under section 89(1)(b), the person was substantially disadvantaged by the matter set out in the request; and
(c) it would be just and fair in the circumstances to do so.