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                    Appealing a planning decision

                    Once the City of Melbourne has made a decision on a planning application, an application for review can be lodged with the Victorian Civil and Administrative Tribunal (VCAT), within certain timeframes.

                    ​​​​​​​​​​​​​​​​The following information is general in nature and reflects a typical case for common planning merits proceedings brought before VCAT. The answers provided do not apply to all cases. It is recommended you seek advice regarding the specifics of your case in order to appropriately inform yourself of the relevant requirements.​​​​

                    What are the timeframes for lodging an appeal?

                    ​The timeframe for appealing a decision is set out in the Planning and Environment Regulations 2015 and differ depending on the nature of the proceedings. As a general guide:

                    • Permit Applicants: If your planning permit has been refused or contains conditions that you don’t agree with, you have 60 days from the date of issue to lodge an appeal with VCAT.
                    • Objectors: If you objected to a planning permit application that has subsequently been issued a Notice of Decision to Grant a Planning Permit (NOD) you have 28 days from the date of the NOD to lodge an appeal with VCAT.

                    Late appeals may not be allowed by VCAT and may be struck out or summarily dismissed.​

                    What is Council’s role in a VCAT proceeding?

                    ​Council is involved in all planning proceedings at VCAT in which it is the Responsible Authority, and in some cases as a referral authority. In this capacity, Council will rely upon and present its position on a particular application – not the position of another party.

                    There may be circumstances in which Council’s position on an application may change from the decision it made in the first instance. There are a variety of reasons for why this may occur including an amendment to the application, or a change to the Melbourne Planning Scheme.

                    Council has obligations under the Model Litigant Guidelines and VCAT Practice Note PNVCAT3. There is an overarching duty to assist the Tribunal. 

                    In a hearing setting Council’s generally presents its case first. This comprises two parts – firstly to present key facts on the case (e.g. the site and surrounds, background and relevant policy), and secondly to present its position on the application.

                    Any expert evidence called by a party is generally done so during the presentation of their case. In some instances VCAT may make specific arrangements for the giving of evidence. Expert witnesses are independent and has a paramount duty to the Tribunal and not to the party retaining the expert.​

                    How are procedural issues dealt with?

                    ​Procedural issues can arise throughout a VCAT proceeding and are typically dealt with at a Practice Day Hearing. A Practice Day Hearing may be listed by VCAT on their own volition, or at the request of a party. Orders will set out what the purpose of the Practice Day Hearing is. Following the Practice Day Hearing further orders will be issued setting out the actions and future conduct of the matter.

                    More complex issues such as compliance with threshold requirements or questions of law may be handled in a Preliminary Hearing. This is heard in advance of the main hearing with the intention of streamlining the consideration of the substantive merits of the particular case. ​

                    How do I communicate with the Tribunal and other parties?

                    All written correspondence should be addressed to the VCAT Registry and identify the relevant proceeding number, and relevant date of the forthcoming hearing. VCAT has published naming convention guidelines to assist dealing with correspondence as expeditiously as possible.

                    A party writing to the Tribunal in a proceeding (including in relation to a material procedural matter) must at the same time provide a copy of that written communication to all other relevant parties and notify the Tribunal in writing that the party has done so (e.g. by including a ‘cc’ on the letter or electronic communication).

                    VCAT accepts all correspondence electronically unless ordered otherwise. Documentation too large to attach directly to an email can be provided via an unlocked file sharing service/link.

                    The VCAT Registry can be contacted at admin@vcat.vic.gov.au​.

                    What is a Compulsory Conference?

                    ​Your VCAT matter may be listed for a Compulsory Conference. At present all matters on the Major Cases List and appeals brought by objectors are being referred to a Compulsory Conference before formal hearing.

                    A Compulsory Conference is a form of alternative dispute resolution by which the matter can be resolved between the parties, rather than the outcome being imposed by the Tribunal. This mediation process is confidential, and “without prejudice” so as to not jeopardise the position of a party if it does not resolve. If a matter does not settle, anything negotiated may not necessarily be on offer when the matter proceeds to hearing.

                    A Compulsory Conference may better inform the parties, reduce the matters in dispute, or resolve in full. If a matter resolved in full it will avoid the time and expense of a full hearing.​

                    Why has Council filed a set of draft conditions?

                    ​VCAT requires Council in review proceedings to file and serve a set of draft permit conditions. This commonly occurs:

                    • Five business days prior to a compulsory conference (if listed); and/or
                    • Five business days prior to a hearing.

                    These conditions are provided on a without prejudice basis and constitute the conditions Council considers the permit should contain in the event an agreement can be reached (at a compulsory conference) or if a permit is directed to be issued by the Tribunal (at a hearing). 

                    In matters where Council has determined to refuse to grant a planning permit, the provision of these conditions does not necessarily mean Council’s position on the application has changed.​

                    Do I need to appear?

                    ​Parties are expected to appear on the dates a matter is listed by VCAT. Currently matters in the Planning and Environment Division are being heard both online (using the Zoom videoconference platform) and in person. It is critical to check the location/venue of your matter as VCAT transitions more compulsory conference and hearings to requiring in person attendance.

                    A party who does not attend a Compulsory Conference may be struck out by VCAT and the matter resolve in their absence.

                    If the applicant for review (i.e. the person who has initiated the proceeding) does not appear at a hearing Council’s decision will be confirmed.

                    If you lodged a Statement of Grounds but elected not to appear, you do not need to attend.​

                    How do I become a party to a VCAT proceeding?

                    ​If you wish to respond to an application for review that has been lodged you need to lodge a Statement of Grounds with VCAT.

                    If you intend to appear, you need to nominate to become a party to the proceedings and pay the requisite fee. This will allow you to stay informed of the application, participate in any Compulsory Conference and make submissions at a hearing.

                    Note that, subject to a variety of factors, you will not always be entitled to become a party to a particular proceeding (for example if an application is exempt from third party notice/review).

                    If you do no elect to become a party to a proceeding your Statement of Grounds will be retained on the VCAT file and considered when the matter is determined at a hearing.​

                    How do I get advice?

                    ​Council can provide general advice regarding VCAT procedures and also factual information about an application under review. Council (and likewise VCAT staff) cannot provide legal advice, or tell you how to best present your case.

                    You may wish to represent yourself at VCAT or engage a professional advocate. In certain circumstances expert evidence may be called by a party in support of their case.

                    VCAT is generally considered a low cost and “user pays” jurisdiction. This means costs associated with professional representation or engagement of experts is expected to be borne by the party that retains them.​

                    ​VCAT Decisions Search

                    We publish all VCAT planning decisions concerning the City of Melbourne. You can find information about decisions that were made from 1 January 2013 using the VCAT decisions search​.

                    The VCAT Decisions Search provides the:

                    • Planning Permit number
                    • Address and description of the proposal
                    • VCAT appeal reference number, VCAT determination date and VCAT outcome
                    • VCAT order.

                    Current Proceedings of Community Interest

                    Certain proceedings are particularly complex or attract significant community interest. To assist the parties in these matters Council aims to make key documentation available via its website.

                    Current Proceedings - Amended Plans

                    In certain proceedings a permit applicant may seek to amend their application which is to be considered and determined by VCAT. In order to substitute plans in an application a permit applicant is to comply with the requirements of VCAT Practice Note PNPE9 ​which sets out the necessary documentation, timeframes and extent of notification. 

                    Statements of grounds with respect of any amended application can be lodged with the Tribunal by the date specified in the notice (with copies served on Council and permit applicant).​​​​​​

                    Current proceedings (and their associated documentation) that have been lodged directly with the Tribunal are listed below:​

                    ​Application concerning 146-154 Elgin Street, Carlton​​​

                    Council reference: TP-2023-153
                    VCAT reference: P1260_2023

                    ​View documents:

                    New Proceedings to Amend an Existing Permit (s87A) ​

                    Section 87A of the Planning and Environment Act 1987 allows a request to be made to VCAT to amend a permit which was originally issued at its direction. In these circumstances, Council is not the original decision maker, but nonetheless is a party to the proceedings. By order, the Tribunal may direct notice of any request to third parties.

                    There are no current requests to amend a permit that have been lodged directly with the Tribunal.​

                    More information

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