VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P219/2023
Permit Application no. PLN289/2022	
CATCHWORDS	
Sections 77, 79 and 84 of the Planning and Environment Act 1987 (Vic); status of notice of refusal issued after lodgement of application for review under section 79 of Planning and Environment Act 1987 (Vic); Section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – declaration in a proceeding.	

Applicant	Chris Touhey	

Responsible Authority	Campaspe Shire Council	
SUBJECT LAND	3/55 McMillan Road
ECHUCA  VIC  3564	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	23 June 2023	
DATE OF ORDER	23 June 2023	
CITATION	Touhey v Campaspe SC [2023] VCAT 709   	

Order

1	Pursuant to section 124(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal declares that the notice of refusal to grant a permit in permit application No. PLN289/2022 dated 17 February 2023 given by the responsible authority on 20 February 2023 is not a notice given under section 65 of the Planning and Environment Act 1987(Vic).
2	Insofar as is necessary to do so, pursuant to section 124(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal declares that the application for review lodged with the Tribunal on 17 February 2023 has been properly made under section 79 of the Planning and Environment Act 1987(Vic).
3	The reasons for refusal set out in the notice of refusal to grant a permit in permit application No. PLN289/2022 dated 17 February 2023 given by the responsible authority on 20 February 2023 is to be taken to be the statement of grounds of the responsible authority in this proceeding.
4	The compulsory conference and hearing details set out in order 1 of the Tribunal’s order of 8 March 2023 are confirmed. 
5	Costs reserved.

S P Djohan
Acting Senior Member	

Appearances
For applicant	Ashley Thompson, town planner, Clause 1 Planning.
	
For responsible authority	Jack Chiodo, town planner, Jackson Lane.

Reasons
Purpose of practice day hearing
1	This practice day hearing was listed to consider – 
•	the status of the notice of decision to refuse to grant a permit dated 17 February 2023 issued by Campaspe Shire Council (Council);
•	whether the application is to remain an application made under s.79 of the Planning and Environment Act 1987 (Vic) (P&E Act), or alternatively should be made under s.77 of the P&E Act;
•	the future conduct of the proceeding, including to consider whether the compulsory conference listed for 28 June 2023 is required or is to be vacated.
Facts
2	The central facts relevant to whether the application for review was properly lodged under s.79 of the P&E Act were ultimately agreed between the parties. 
3	On 30 September 2022, the applicant lodged a permit application (identified as PLN289/2022) with Council.
4	At 9:45am on 17 February 2023, the applicant electronically lodged with the Tribunal an application for review under s.79 of the P&E Act. The application for review having been lodged 87 days after the lodgment of the permit application. Council did not make a decision on the permit application within the prescribed 60 days.
5	By email correspondence sent at 1.01pm on 20 February 2023, the applicant informed Council that it had lodged an application for review with the Tribunal for ‘failure to determine’ and informed Council that ‘Documents will be served in due course, following receipt of the VCAT order.’
6	By email correspondence sent at 2:36pm, a Council officer sent to the applicant’s representative a document entitled ‘Refusal to grant a permit’ in relation to permit application No. PLN289/2022 and bearing the date issued as ’17 February 2023’. The signatory for the document on behalf of Council is ‘Ally Cook – Acting Manager Planning & Building’. This document is marked as ‘Version 3. Version Date:20/02/2023” and has the following identification number ‘ECM_3245234_v3_Notice Refusal to Grant a Permit PLN289 2022 126670’.
7	By email correspondence to the Tribunal sent at 3:24pm on 9 March 2023, Ally Cook made the following enquiry – 
Dear Registrar,
Can you please provide confirmation as to the date the application was submitted to VCAT?
Council notes that a decision on the application was issued on 17 February 2023 (attached) and council was informed by the applicant on 20 February 2023 that an application was submitted.
8	That email correspondence was not copied to the applicant.
9	The notice attached to the email to the Tribunal has the following document identification number ‘ECM_3245234_v4_Notice Refusal to Grant a Permit PLN289 2022 2023-03-09 14-25-10.pdf’.
Section 79 of the P&E Act
10	At the practice day hearing (reconvened at 3.30pm on 23 June 2023) it was accepted on behalf of Council that the application for review was properly made under s.79 of the P&E Act. The following reasons support the declarations made under s.124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
11	Section 79 of the P&E Act provides that an applicant for a permit may apply to the Tribunal for review of the failure of the responsible authority to grant the permit within the prescribed time.
12	Regulation 32(1)(a) of the Planning and Environment Regulation 2015 (Vic) (P&E Regulations) provides that for all applications than a VicSmart application, the prescribed period for the purposes of s.79 is 60 days.
13	As observed by DP Dwyer in M7 Design Group v Hobsons Bay CC [2016] VCAT 791 (M7 Design Group) at paragraphs 6 and 8 – 
[6]	Interestingly, the express wording of s 79 of the P&E Act does not provide generally for an application for review arising from Council’s failure to decide a permit. The specific wording of s 79 provides that “an application for a permit may apply to the Tribunal for review of the failure of the responsible authority to grant the permit within the prescribed time”. The trigger is the failure of the Council to grant the permit, rather than a failure to make a decision on the permit application generally.
…
[8]	In a case of refusal, it might be said that the Council will always have ‘failed to grant’ the permit, and s 79 could conceivably have an unlimited application. That may at least theoretically be the case. However, as a purposive and common sense interpretation of the review regime under ss 77 and 79 of the P&E Act considered together, and as a matter of public policy, I consider that there is an implied limitation on the operation of s 79. In my opinion, the right of a permit applicant to seek an application for review under s 79 ceases to apply once the alternative review provisions under s 77 has been enlivened.
14	I agree with those observations. 
15	On the facts of this matter, it is a fact that as at 9:45am on 17 February 2023, Council had failed to grant a permit to the permit applicant. 
16	Prior to the appearance of Council’s representative at the reconvened practice day hearing, considerable doubt was caused by the version date of ‘20/02/2023’ on the notice of decision, that the decision to refuse to grant a permit was actually made on 17 February 2023. As it turns out, on the facts of this matter, the date the decision was actually made is irrelevant to determining whether s.77 had been enlivened.
17	Regulation 30 of the P&E Regulations provides that an application for review under s.77 must be made within 60 days after the responsible authority gave notice under s.65 of the P&E Act. On the facts, Council gave notice of its decision to refuse the permit on 20 February 2023, after the application for review under s.79 had been lodged with the Tribunal. This is a fact known to Council at the time it gave notice of its decision to refuse to the permit applicant.
18	As of 17 February 2023, Council had failed to grant a permit to the permit applicant and the permit applicant properly exercised its right to lodge an application for review under s. 79 with the Tribunal. The ‘implied limitation’ on the operation of s.79 referred to by DP Dwyer in M7 Design Group had not arisen because notice of the decision was not given to the applicant until 20 February 2023.
Consequences of lodgment of application for review under s.79
19	Section 84 of the P&E Act relevantly provides in part – 
(1)	A responsible authority may decide on an application for a permit at any time after an application is made for the review of the failure of the responsible authority to grant the permit.
(2)	Except in accordance with the advice of the principal registrar under subsection (4), the responsible authority must not issue or give a permit, notice of decision or notice of refusal to the applicant, a referral authority or any objector after an application is made to the Tribunal for review of a failure to grant a permit.
20	While it is clear that a responsible authority may decide an application after an application for review has been lodged with the Tribunal, it is equally clear that s.84(2) mandates that a responsible authority must not issue a notice of refusal to an applicant, referral authority or any objector after an application is made to the Tribunal for review of a failure to grant a permit. 
21	There are sound reasons why s.84(1) provides a responsible authority with the opportunity to decide an application after a review application is lodged and s.84(2) prohibits the issuing or giving of a permit, notice of decision or notice of refusal after a decision is made. 
22	First, it is appropriate that a responsible authority decides the merits of a permit application so that it may properly inform the role that it will take to assist the Tribunal at the hearing of the review application. Such decisions are encouraged to occur early after an application for review is lodged under s.79 to avoid disadvantage to the permit applicant in its conduct of the review application. Section 84(2) does not prohibit communication of that decision but rather prohibits the issuing or giving of a permit, notice of decision or notice of refusal.
23	Secondly, a permit given under s.63, a notice of a decision to grant of a permit under s.64 and the giving of notice as described in ss. 65 – 66 of the P&E Act are all required to be given in the prescribed form to ensure that the recipients of those notices are properly made aware of any statutory rights available to them. 
24	Once an application under s.79 is lodged with the Tribunal, s.84(2) operates to ensure that no such rights are conferred by prohibiting the issuing or giving of a permit, notice of decision or notice of refusal. Instead, the provisions of the P&E Act that apply after the lodgment of an application for review (such as s.83) together with the Tribunal’s orders that direct the conduct of the application for review will apply. Section 84(2) operates to ensure that applicants, objectors and referral agencies are not misinformed that the decision of the responsible authority made after the lodgement of an application gives rise to the statutory rights conferred respectively under ss.77, 78, 80-82AAA of the P&E Act.
25	In this matter, Council was aware on 20 February 2023 that the applicant had lodged an application for review with the Tribunal but nevertheless proceeded to issue a notice of refusal to the applicant in contravention of s.84(2) of the P&E Act. The relevant notice contains the following text- 

26	That notice misinforms recipients that certain statutory rights may be exercised upon receipt of the notice. Accordingly, it is appropriate that the Tribunal exercises the power under s.124 of the VCAT Act to declare that the notice of refusal to grant a permit in permit application No. PLN289/2022 dated 17 February 2023 given by the responsible authority on 20 February 2023 is not a notice given under section 65 of the P&E Act.
27	Further to put the matter beyond doubt, and to the extent necessary to do so, it is appropriate that the Tribunal exercises the power under s.124 of the VCAT Act to declare that that the application for review lodged with the Tribunal on 17 February 2023 has been properly made under section 79 of the P&E Act.
28	In light of the decision made by Council, it is appropriate that the grounds of refusal set out in the notice of refusal to grant a permit in permit application No. PLN289/2022 dated 17 February 2023 given by the responsible authority on 20 February 2023 is taken to be the statement of grounds of Council in this proceeding.

S P Djohan
Acting Senior Member