The recent decision of Zumpano v Banyule City Council [2016] VSC 420 (Zumpano) has provided developers and Councils with clarification as to the acceptable approach of the Victorian Civil and Administrative Tribunal (Tribunal) to repeat applications for planning permits.
The Victorian Supreme Court has clarified that it is a matter for the Tribunal to determine the weight to be given to relevant considerations and facts when dealing with repeat applications to the Tribunal. Applicants cannot assume that correcting the issues identified with previous applications will lead to a permit being issued.
Forth time the charm?
The Application to the Tribunal made by Zumpano was the fourth time the Tribunal had affirmed the decision of the Banyule City Council (Council) to refuse a planning permit for the subject land. Each Application for review to the Tribunal had involved slightly different proposals, but all commonly involved a proposal to convert an existing two storey dwelling into two, two-storey buildings.
Across the four previous Tribunal decisions, the proposals had all been rejected on similar grounds, namely because the proposed development was over scaled, inappropriately designed and sited in terms of streetscape.
The Applicant sought leave to appeal to the Supreme Court on 10 questions, categorised into questions relating to repeat reviews and the Tribunal’s duty to act fairly and in accordance with the substantial merits of the case.
Repeat appeals
The Applicant argued that the Tribunal had erred in deciding the Application as a ‘classic repeat review’ rather than a ‘correcting repeat review’.
In previous decisions of the Tribunal, a ‘classic repeat review’ had been described as a form of forum shopping in which an applicant brought essentially the same proposal before the Tribunal. By contrast the ‘correcting repeat review’ was one whereby an applicant addressed the concerns of a previous application, and was entitled to a reasonable expectation that a permit would issue.
The Court emphasised that such terms are imprecise and not statutory, and that repeat applications can come in many forms. Since the Tribunal is not bound by a strict doctrine of precedent, the Tribunal (and Councils) is entitled to consider the previous decisions related to the application and determine what weight it will give to the earlier decisions, provided that it ultimately makes its decision on the planning merits. Furthermore, an applicant is not entitled to any specific advantage because they have addressed the concerns in a previous review.
Implications
For developers, it is now important to keep in mind that merely addressing the concerns of the Council/Tribunal in a repeat review will not be enough on its own to justify the granting of a planning permit. Developers must ensure that all elements of their application meet the applicable planning requirements.
For Councils, Zumpano demonstrates that it is a matter for the decision maker to determine what weight is to be given to previous applications relating to the same land, and that there is no obligation to accept a repeat application where it corrects the issues identified in a previous application.
This article was written by David Vorchheimer, Partner Mathew Reiman, Trainee Solicitor.