The decision of the Supreme Court in Myers v Southern Grampians Shire Council [2023] VSC 658 (Myers) was significant in clarifying:

• the limited rights of objectors seeking to review a notice of decision to grant a planning permit under s82 of the Planning and Environment Act 1987; and
• the limited jurisdiction of the Victorian Civil and Administrative Tribunal,

in circumstances in which there were multiple planning permissions sought, some of which were exempt from third party notice and appeal rights.

Importantly the decision held that in these circumstances there were, effectively, two separate approvals.

Firstly, one for those permissions exempt from third party notice and rights, which were not before the Tribunal. Secondly, one for those permissions where third parties enjoyed notice and review rights and which were before the Tribunal.

The Court noted the potential for this to result in inconsistencies which may subsequently need to be harmonised. While it suggested ways that this could be managed, it observed that ultimately legislative changes may be required.

The practical consequences of this approach arose in the recent Tribunal decision in Dance v Colac Otway SC (No. 3) [2025] VCAT 52 (Dance).

What is the background to Dance v Colac Otway SC (No. 3) [2025] VCAT 52 (Dance)?

Dance concerned an appeal by objectors against a notice of decision issued by Colac Otway Shire Council allowing the use and development of land for the purpose of tourist accommodation (group accommodation and caretakers dwelling).

There were four permit triggers for the proposal under the following provisions:

1. the Rural Conservation Zone (RCZ) and the Significant Landscape Overlay (SLO), which were not exempt from third party notice and review rights; and
2. the Erosion Management Overlay (EMO) and the Bushfire Management Overlay (BMO) which were exempt from third party notice and review rights.

In May 2024 the Tribunal issued an interim order supporting the grant of the planning permit under the RCZ and SLO, based on substituted amended plans and associated amended documentation presented to the Tribunal as part of the hearing process.

The purpose of issuing the interim order was to enable the permit applicant to seek approval for the amendments from the relevant authorities and agencies in relation to the permissions required under the EMO and BMO. VCAT explained its approach as follows:

“... granting planning permissions under the RCZ and the SLO4 is not appropriate in the absence of certainty that planning permissions will also be granted under the EMO1 and the BMO for the amended proposal before us. Whilst the Tribunal’s jurisdiction is limited to a review of the RCZ and the SLO4, it cannot be ignored that the permit application as a whole is seeking multiple permissions including under the EMO1 and the BMO.

The Tribunal’s limited jurisdiction creates something akin to an artificial demarcation in this planning application in a planning system that otherwise encourages omnibus planning applications capturing all the necessary planning permissions. The Respondent permit applicant has appropriately lodged an omnibus permit application, which the Council has considered and decided to approve, granting all the necessary planning permissions.

It is the Tribunal’s limited jurisdiction that creates the complexity for the parties in terms of what is relevant and what is not relevant in this proceeding, including in any final order issued. It also creates complexity for the ultimate outcome sought by the Respondent permit applicant and the Council – being one permit for the whole proposal as was sought in the omnibus planning application.”

The permit applicant obtained conditional support for the amendments from the CFA (under the BMO) and Council (under both the EMO and the BMO) but this support involved additional amendments beyond those proposed during the VCAT process.

This created the practical issue of how to harmonise the different approvals, especially in circumstances in which the Tribunal had not contemplated any further amendments to the plans being required.

The two primary parties to the proceeding, being the objectors and the permit applicant, proposed alternatives as to how to proceed.

The objectors proposed that the Tribunal consider remitting the proceeding back to Council with directions under section 51A(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), noting that Council may then decide to take the application as now amended back to a public notice process.

The permit applicant proposed an alternative process whereby they would work with Council to come up with three documents:

1. A BMO and EMO permit for the Tribunal’s information (i.e. take the draft permit that Council has provided to all parties and the Tribunal, and make changes to it based on the issues raised in the Tribunal’s order and other issues that had arisen during the hearing).
2. A document outlining the order the Tribunal could make granting planning permission under the RCZ and SLO. This could have two versions so one version identified any conditions remaining in dispute.
3. A document showing what the final permit could look like if Council combined the planning permissions and the conditions associated with each of those planning permissions into one planning permit.

The permit applicant also proposed these documents could then be provided to the CFA (who could comment on matters relevant to the BMO) and the objectors (who could comment on matters relevant to the RCZ and SLO).

Council, while noting the 'messy' situation, was supportive of the permit applicant's proposal as a way forward.

VCAT determination

The Tribunal's decision, at paragraphs 11-20 inclusive, lays bare the predicament it faced:

1. It acknowledged that the permit applicant found themselves in a difficult position and that is was a difficult process for the Tribunal itself to navigate;
2. It noted that the Tribunal had not adopted a standard process to deal with section 82 applications with limited jurisdiction;
3. It reiterated that it has not expected further changes to the proposal when it issued its interim order;
4. While some of the proposed changes sought by the CFA and Council were likely to be minor, there were some that may have consequences to decisions under the SLO (which was a matter before the Tribunal) and accordingly the Tribunal was not prepared to make a final decision without considering the merits of these changes;
5. While the permit applicant had proposed a process to move forward with the matter, it would lead to a fragmented outcome, with effectively two halves to the permit application, in circumstances where there was a clear desire for an omnibus permit;
6. The proposal by the objectors for a remittal back to the Council was rejected because it would likely result in Council issuing a new notice of decision, which could then be subject of a fresh application for review by the objectors.

Ultimately the Tribunal determined to use its powers under s51A of the Victorian Civil and Administrative Tribunal Act 1998 to invite the Council to reconsider its decision on the permit application.

The Tribunal set out three reasons for adopting this approach:

• In the approach put forward by the permit applicant, it would be unclear how the parties and the Tribunal were supposed to distinguish between which conditions related to which permissions;
• Having a permit with two sets of conditions (eg for the BMO/EMO on a further amended proposal and for the RCZ/SLO on a VCAT substituted amended proposal) would require endorsement of two sets of plans that contain differences; and
• Council would be put in a circumstance where the permit applicant would undertake a section 72 amendment to bring the VCAT substituted amended proposal into line with the BMO/EMO differences. It may be that Council may not wish to approve a section 72 amendment and may want the Tribunal to be involved through a section 87A application. This would create yet another process for this permit application.

By adopting its preferred approach, the Tribunal considered that the Council would have the whole of the application before it, but in circumstances in which the VCAT proceeding remained 'live', creating better prospects for the matter to be fully resolved.

Practical consequences of the decision in Myers v Southern Grampians Shire

The decision highlights that until such time as there is legislative reform, there are going to be ongoing procedural issues to manage in section 82 reviews by objectors where there are aspects of the permit application which are exempt from third party notice and review rights.

While there are no 'hard and fast' rules about how to manage those risks, care needs to be taken in these circumstances when considering any amendments to an application to:

1. Avoid where possible a disconnect between those permit triggers which can be reviewed by objectors and those which cannot; and
2. Have a strategy in place to manage that disconnect where it cannot be avoided.

Most importantly, parties to a section 82 proceeding need to be very mindful of the Tribunal's limited jurisdiction throughout the appeal process and the permit applicant should give ongoing consideration to the consequences of making any changes to a permit application.