In Saunders v Frankston City Council (Red Dot)  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
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
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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