In Saunders v Frankston City Council (Red Dot) [2009] VCAT 114 (19 February 2009), the Tribunal commented on the necessity for notice for permit applications subject to a Development Plan Overlay (DPO). Deputy President Helen Gibson clarified a DPO operates to exempt applications from notice requirements and review.
Deputy President Gibson made clear that when an application is subject to a development plan, the ordinary notice provisions in the Planning and Environment Act 1987 (Vic) (P&E Act) have no application. She said that if the application is accepted as being generally in accordance with the development plan, then it is exempt from notice provisions under clause 43.04-2 of the planning scheme and the notice provisions in the P&E Act do not apply. If such an application is refused, then it does not have to comply with notice requirements anyway.
The Deputy President also suggested that the current wording of clause 43.02 ought to be revised as it creates a 'catch 22' situation. The clause currently provides that an application which is generally in accordance with the development plan is exempt from notice and appeal rights. This implies that an application that is not generally in accordance with the development plan is not exempt, and the regular process of notice should follow. This creates a conundrum because a responsible authority is not able to grant a permit unless an application is generally in accordance with the development plan (unless a specific exemption applies), which means that any decision about whether or not notice should be provided improperly requires the responsible authority to make a decision about the permit application first.
Deputy President Gibson was also critical of the practice adopted by some councils of giving 'informal' notice of applications subject to a development plan. She stated that this is 'confusing', adding that if councils wish to do this 'they should make it clear that no rights arise as a consequence'.
Accordingly, responsible authorities should avoid giving 'informal notice' of permits that are generally in accordance with developments plans, unless particular circumstances warrant it. In these circumstances, the notice should state the purpose and effect of the notice very clearly so parties are aware that they do not have any third party appeal rights.
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