5 Forum Metropolitalne

1. 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

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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.

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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.

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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.

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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.

7. http://planningschemes.dpcd.vic.gov.au/index.html
Maps and Ordinance
Metropolitan map
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
Rural map
Other information
Introduction & Recent Updates
Frequently asked questions
Glossary

8. 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.

9. Commencing a review
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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.

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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.

11. 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.

12. 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).

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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 multilayered governance hindrance?
The number of objectors not the issue but the merits of the case
(Minawood case).

14. Conclusion
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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.

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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.

16. THANK YOU