The Law Handbook 2024

1026 Section 11: Rights, activism and fair treatment at work In determining whether it is fair for a party to pay costs, VCAT considers: • the party’s conduct, including whether the party unnecessarily disadvantaged another party (e.g. by failing to comply with a VCAT order); • whether the party unreasonably prolonged the proceedings; • the relative strengths of the claims made by each party, including whether a party made a claim with no legal or factual basis; and • the nature and complexity of the proceedings (s 109(3) VCAT Act). While the general rule that each party bears its own costs applies, in certain types of matters (e.g. enforcement cases), there is a greater likelihood that VCAT will require the unsuccessful party to pay the costs of the successful party. Appealing a permit decision A person who has applied for a planning permit may appeal to VCAT against a permit decision within 60 days of the responsible authority’s decision (ss 77–80 PE Act; regs 30–32 Planning and Environment Regulations 2015 (Vic)). Classes of permit applications may be exempted from appeal by the planning scheme (s 82 PE Act). A person who objects to the grant of a permit by the responsible authority may appeal to VCAT within 28 days of being given notice of the decision, unless the decision is otherwise exempted from appeal. In addition, a person who is not an objector but is affected by the permit can apply to VCAT for leave to appeal. Before making a decision, VCAT must give the permit applicant, the responsible authority and the affected person an opportunity to be heard (s 82B PE Act). If the permit applicant consents, the application for review will proceed. If the permit applicant does not consent, VCAT will list the matter for a directions hearing in which it will hear arguments by the affected person, the permit applicant and the responsible authority. If VCAT believes it is just and fair in the circumstances to do so, the application for review will proceed (s 82B PE Act). The question is what is just and fair in the circum­ stances. VCAT is concerned that a serious objection to a project should be heard (see Kenyon & Willabee Pty Ltd v Port Phillip City Council [2000] VCAT 797 and Leonora Group (Wonthaggi) Pty Ltd v Bass Coast Shire Council [2003] VCAT 233 at [76]). The President of VCAT may direct that wider notice be given of an application for review of a decision with respect to a planning permit (s 83B PE Act). Third parties (i.e. anyone other than the applicant) must lodge their appeal within 28 days of the responsible authority’s decision about the permit (reg 35 Planning and Environment Regulations 2015 (Vic)). If a group wants to lodge or oppose an application for review as a group or association, and be a party in the proceedings, then the group or association must be incorporated (s 61(1) VCAT Act). (See Associations Incorporation Reform Act 2012 (Vic).) Otherwise, VCAT may permit a representative of an unincorporated association to make submission at the hearing (s 61(2)). Note that making a submission is not the same as being a party. Only parties can bring evidence from witnesses and question other parties’ witnesses. People wishing to contest proceedings under the ‘planning enactments’ (including the PE Act and EP Act) must lodge a statement of the grounds on which they intend to rely at the hearing. This statement must be served on the applicant and the responsible authority (cl 56, sch 1). The PE Act (s 84) provides that in the proceeding itself, a party is not restricted to the grounds previously notified to the other parties. Nevertheless, the formulation of the statement of grounds should be taken very seriously. As noted above in ‘VCAT fees and costs’, it is possible for another party to seek payment of its costs. Two of the grounds for VCAT to order payment of costs are prolonging the proceeding and causing an adjournment (s 109 VCAT Act). If the statement of grounds does not reflect the issue being argued, an aggressive opponent might claim that it has been taken by surprise, seek adjournment and apply for costs. Enforcement Anyone can apply to VCAT for an enforcement order (s 114 PE Act) or an injunction (s 125) to restrain a person who is breaching conditions in a planning permit or planning scheme (ss 114, 125). In the first instance, the responsible authority should be approached to take actions for enforcement orders on behalf of residents as it is primarily responsible for enforcement under the PE Act and is usually better resourced. An injunction (s 125 PE Act) or an enforcement order (ss 117, 119) or a declaration (s 149A–149B) may be sought. Breaching enforcement orders is