{"id":2065,"date":"2015-04-13T23:47:42","date_gmt":"2015-04-13T13:47:42","guid":{"rendered":"http:\/\/sos.asn.au\/?page_id=2065"},"modified":"2016-06-08T19:11:34","modified_gmt":"2016-06-08T09:11:34","slug":"beware-s89-appeals-to-cancel-or-amend-a-permit-at-vcat","status":"publish","type":"page","link":"https:\/\/sos.asn.au\/vic\/faqs\/beware-s89-appeals-to-cancel-or-amend-a-permit-at-vcat\/","title":{"rendered":"Beware s89 Appeals to cancel or amend a permit at VCAT!"},"content":{"rendered":"<p>Warning \u2013 take care when lodging a VCAT Appeal under Section 89 of the Planning &amp; Environment Act (a request to cancel or amend a permit)<\/p>\n<p>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\u2019t 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.<\/p>\n<p>This is a different and much more risky process than a standard s82 objectors\u2019 appeal, which must be lodged within 21 days AFTER council decides to approve an application \u2013 ie, BEFORE a permit can actually be issued.\u00a0 A s89 appeal can only be lodged AFTER a permit has actually been issued.<\/p>\n<p>However, to be able to actually overturn or amend the permit, you have to be able to prove one of four things:<\/p>\n<ul>\n<li>that you should have been given notice of the application for the permit but were not given that notice \u00a0(ie, that you weren\u2019t notified under s52 of the council\u2019s intention to grant a permit and so weren&#8217;t able to appeal the council decision and so have been denied natural justice); or<\/li>\n<li>you believe that you have been adversely affected by one or more of 3 things \u2014<\/li>\n<\/ul>\n<p>(i) \u00a0a material mis-statement or concealment of fact in relation to the application for the permit; or<\/p>\n<p>(ii) \u00a0any substantial failure to comply with the conditions of the permit; or<\/p>\n<div class=\"page\" title=\"Page 184\">\n<div class=\"layoutArea\">\n<div class=\"column\">\n<p>(iii) any material mistake in relation to the grant of the permit.<\/p>\n<p>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.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<p>BUT it gets even harder &#8211; then you ALSO have to prove you\u2019d suffer \u201csubstantial disadvantage\u201d arising from the grant of the permit [under s91(3)(b)] \u2013 AND that it would be just and fair for VCAT to cancel the permit [s91(3)(c)].\u00a0\u00a0 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.<\/p>\n<p>The big danger is that if you can\u2019t 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 \u201cunjustified, unwarranted, or vexatious\u201d and has caused delays in construction of the project.<\/p>\n<p>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 \u2013 NOD).\u00a0 This means contacting the Council planner every few weeks in the latter stages of the assessment to see how it\u2019s proceeding and to find out when a decision is likely to be made.<\/p>\n<p>That way, if the NOD doesn\u2019t turn up within a few days of the expected date, you\u2019ll still have enough time to chase it up from the council before the 21-day time limit runs out for lodging an ordinary objector\u2019s appeal.<\/p>\n<p><em><strong>Section 89, Planning &amp; Environment Act:\u00a0\u00a0\u00a0\u00a0 Request for cancellation or amendment<\/strong><\/em><\/p>\n<p><em>(1)\u00a0 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\u2014<\/em><\/p>\n<p><em>\u00a0\u00a0\u00a0\u00a0 (a)\u00a0 the person believes that the person should have been given notice of the application for the permit and was not given that notice; or<\/em><\/p>\n<p><em>\u00a0\u00a0\u00a0\u00a0 (b)\u00a0 the person believes that the person has been adversely affected by\u2014<\/em><\/p>\n<p><em>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (i)\u00a0 a material mis-statement or concealment of fact in relation to the application for the permit; or<\/em><\/p>\n<p><em>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (ii)\u00a0 any substantial failure to comply with the conditions of the permit; or<\/em><\/p>\n<p><em>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (iii)\u00a0 any material mistake in relation to the grant of the permit.<\/em><\/p>\n<p><em>(2)\u00a0 The request must be made in writing in accordance with the regulations.<\/em><\/p>\n<p><em>(3)\u00a0 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. <\/em><\/p>\n<p><em><strong>Section 91, Planning &amp; Environment Act:\u00a0\u00a0\u00a0\u00a0\u00a0 Determination by Tribunal<\/strong> <\/em><\/p>\n<p><em>(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\u2014<\/em><\/p>\n<p><em>(a)\u00a0 in the case of a request under section 89(1)(a) the person\u2014<\/em><\/p>\n<p><em>\u00a0\u00a0\u00a0\u00a0 (i)\u00a0 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<\/em><\/p>\n<p><em>\u00a0\u00a0\u00a0\u00a0 (ii)\u00a0 was substantially disadvantaged by the issue of the permit; and<\/em><\/p>\n<p><em>(b)\u00a0 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<\/em><\/p>\n<p><em>(c)\u00a0 it would be just and fair in the circumstances to do so.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Warning \u2013 take care when lodging a VCAT Appeal under Section 89 of the Planning &amp; 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\u2019t notified of the grant [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":2032,"menu_order":0,"comment_status":"open","ping_status":"closed","template":"","meta":{"nf_dc_page":"","footnotes":""},"class_list":["post-2065","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/sos.asn.au\/vic\/wp-json\/wp\/v2\/pages\/2065","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sos.asn.au\/vic\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/sos.asn.au\/vic\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/sos.asn.au\/vic\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/sos.asn.au\/vic\/wp-json\/wp\/v2\/comments?post=2065"}],"version-history":[{"count":2,"href":"https:\/\/sos.asn.au\/vic\/wp-json\/wp\/v2\/pages\/2065\/revisions"}],"predecessor-version":[{"id":2403,"href":"https:\/\/sos.asn.au\/vic\/wp-json\/wp\/v2\/pages\/2065\/revisions\/2403"}],"up":[{"embeddable":true,"href":"https:\/\/sos.asn.au\/vic\/wp-json\/wp\/v2\/pages\/2032"}],"wp:attachment":[{"href":"https:\/\/sos.asn.au\/vic\/wp-json\/wp\/v2\/media?parent=2065"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}