Planning tribunals in Australia and their role in

multi-level governance processes. The case of the

Victorian State Planning Tribunal

Dr Rebecca Leshinsky

Senior Lecturer in Law, Australian Catholic University

Sessional Member, Planning & Environment List, Victorian & Civil Administrative Tribunal

• Australian population = 23M State of Victoria = 4M

• Australia has a very strong neo-liberalist economy. The push is growing at

the Federal and State levels for more PPPs.

• We are highly regulated at all tiers of government: Federal, State & Local.

This is balanced with discretion awarded to decision-makers, subject to

the strict principles of administrative (common) law.

• We have many layers of regulation (governance) to add transparency to

government decision-making.

• Planning and Environment Act 1987 (PE Act is the Planning Act for the

state of Victoria)

• Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act establishes

the planning tribunal)

• They work together as an additional tier of planning governance providing

an independent review of planning decisions.

• Planning is not mentioned in the Federal (Commonwealth) Constitution

and is left therefore to the states to administer.

• Planning is controlled predominantly by State governments. Local

government is the poor cousin.

• States, especially Victoria, have very strong and transparent legal

provisions under the Local Government Act to deter conflicts of interest

and transparency in decision-making.

• Municipalities have to make decisions in accordance with the rules of

natural justice and procedural fairness.

• PE Act allows for each municipality (79 in Victoria!) to prepare their own

local planning scheme. This is the essence of planning governance at the

local level of government.

http://planningschemes.dpcd.vic.gov.au/index.html

Maps and Ordinance

Victoria's planning schemes are

administered at a local government level.

Please select a municipality planning

scheme from the metropolitan or rural maps

to the right or from the drop down lists

below.

Select Metropolitan

Select Rural

Other information

Introduction & Recent Updates

Frequently asked questions

Glossary

Metropolitan map

Rural map

The planning tribunal and the right to

an independent review

• PE Act establishes opportunities for the planning tribunal to independently review decisions about planning permits made by the municipality administering the planning scheme. Tribunal makes an independent assessment of the relevant issues. Most of the applications for review involve decisions about planning permits for the use and development of land.

• The planning tribunal also has other decision-making powers in circumstances where no review of an earlier decision is made because the application is made direct to the Tribunal. For example, applications to cancel permits, and applications for enforcement orders, are also made to the Tribunal.

Commencing a review

• Process of reviewing decisions begins when an application for review is made to the Principal Registrar, VCAT.

• The Registrar may arrange mediation, a directions hearing or a compulsory conference to try to settle the matter or to clarify an aspect of the dispute. Most applications proceed to a hearing before a member of the Planning & Environment List, who is appointed by VCAT to decide the application.

• The hearing gives all parties to the application for review the opportunity to present written and oral submissions, to call or give evidence and to ask questions of witnesses. VCAT decides the merits of the application and can make a new decision; or affirm, modify or overturn the decision being reviewed.

• The Tribunal’s decision contains an order to give effect to its decision. For example, the order may direct that a permit is not issued, or that a permit is issued with specified conditions.

• Sometimes the Tribunal will indicate its decision at the end of the hearing

and orally give reasons for that decision. However, the decision can be

reserved. In all cases a written decision is issued to all parties sometime

after the hearing. If oral reasons have not been given, the decision must

include written reasons.

• The Tribunal’s decision is final and binding on all parties unless there is an

appeal to the state Supreme Court on a question of law. There are

(limited) opportunities for appeals to the High Court of Australia.

• Parties to an application for review normally meet their own costs for

preparing and presenting submissions at the hearing. However, the

Tribunal can require a party to pay some or all of another party’s costs if

one party has been unnecessarily disadvantaged by another party’s

conduct.

Third party appeals

objectors to grant of a permit

Section 52(1) PE Act – municipality to give notice of an application in a

prescribed form to the owners and occupiers of allotments or lots adjoining

the land to which the application applies unless the municipality is satisfied

that the grant of the permit would not cause material detriment to any

person; and

• to a municipal council, if the application applies to or may materially affect

land within its municipal district; and

• to any person to whom the planning scheme requires it to give notice; and

• to any other persons, if the responsible authority considers that the grant

of the permit may cause material detriment to them.

section 57(1) PE Act - Any person who may be affected by the grant of the

permit may object to the grant of a permit (if they are materially affected).

Vexatious litigants may have costs awarded against them. Objectors cannot

object on the grounds of a financial/economic issues (may be some

exceptions).

• Is this right to review a fair and equitable component of a just,

transparent, democratic and robust planning system or is it an additional

and burdensome layer of governance?

• Do wide third party objector right hold up planning and is it another multi-

layered governance hindrance?

• The number of objectors not the issue but the merits of the case

(Minawood case).

Conclusion

• Use and development of land is highly regulated in Australia.

• Balanced with the opportunity for planning law decision makers to rely on

their discretion which must be exercised fairly and in accordance with the

principles of natural justice and fairness.

• Overall, the Victorian planning system and the planning tribunal have

proven themselves to be honest and respectable legal institutions.

• Reviews may be construed as another layer of governance, but this serves

all citizens in the state of Victoria well by providing them with the

opportunity for more objective and transparent land use and

development planning.

• When applied properly, planning in Victoria, Australia, is a fair and

equitable system which can provide good lessons to other planning

jurisdictions.

THANK YOU