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LPD Property Pty Ltd v Moreland CC.

Country/Territory
Australia
Type of court
National - lower court
Date
Jan 21, 2011
Source
UNEP, InforMEA
Court name
Victorian Civil and Administrative Tribunal
Seat of court
Melbourne
Judge
Dwyer.
Reference number
[2011] VCAT 65
Language
English
Subject
Land & soil, Legal questions
Keyword
Land-use planning
Abstract
This decision relates to a preliminary matter in the proceeding, determined at a practice day hearing. The responsible authority issued a Notice Of Decision to grant a permit subject to conditions, including a height reduction of 3 storeys in one building. A s 82 objector application was lodged, but subsequently withdrawn, and a permit issued. The permit holder then made application under s 80 to review conditions, including seeking to delete the condition requiring the 3 storey reduction. The original objector believed a ‘deal’ had existed for the 3 storey reduction, that had led to his withdrawal of the s 82 application. Being unable to re-instate his s 82 application because the permit had issued, he made application for leave to bring an application as an affected person under s 82B. Another objector also made application under s 82B. Section 82B of the Planning and Environment Act 1987 provides that a person affected by a planning permit may seek leave to apply for review of the decision to grant a permit. This decision concerned whether the section could be applied to review the decision to grant a permit after the permit had issued, and if it applied, whether leave should be granted. After applying principles and aids of statutory interpretation, the Tribunal determined that a s 82B application could not be made to review the decision to grant a permit after the permit had issued. The Tribunal also indicated that, even if s 82B could apply, leave would not be granted. The Planning and Environment Act 1987 contains separate regimes before the issue and after the issue of a permit. For the policy reason to ensure the certainty of a permit, it is unlikely that the Parliament would have intended that s 82B can allow a review of the underlying decision to grant a permit after the issue of the permit. Allowing s 82B to review the decision to grant a permit after the permit had issued will allow an original objector to avoid the 21 day prescribed period for s 82 objector applications to the Tribunal, and will allow s 82B applications to be made after a permit has issued whilst s 82 applications cannot.
Full text
COU-156670.pdf