When is an objection an objection?

The recent Supreme Court decision of Phillip Mannerheim Holdings v Nillumbik Shire Council [2017] VSC 670 has clarified that an objection to the grant of a planning permit does not need to contain a statement of opposition to be considered a valid objection. This means that the bar has been lowered when it comes to what must be included in correspondence to council in response to notification of a planning permit application to be regarded as an objection.

In this case, the Supreme Court considered an appeal on a question of law from the Victorian Civil and Administrative Tribunal (the Tribunal) whether or not an objection to a planning permit application made under section 57 (1)-(2) of the Planning and Environment Act 1987 (the Act) must contain a position statement of opposition to the grant of a planning permit to be considered a valid objection.

Justice Kevin Bell dismissed the appeal, ruling that the Tribunal did not err in law in its decision that an objection by an adjoining landowner was a valid objection despite the fact that it did not contain a specific statement of opposition.

A polite email message was sent by an adjoining landowner, Mr Cope, to Nillumbik Shire Council in relation to an application for a planning permit by Phillip Mannerheim Holdings Pty Ltd (the Applicant) to use and development land for construction of a dwelling.

The Applicant submitted that it was not a valid objection under the Act as Mr Cope’s email message did not contain a mandatory statement of opposition.

Justice Bell found that where there is no express statement of objection, it can be inferred from the whole of what is written. In explaining this decision it was stated:

– It is not consistent with encouraging public participation in planning decision-making processes to read a requirement for an ‘expression of opposition’ to the grant of the permit into section 57(2) of the Act. “…persons affected by the grant of permits will come from different backgrounds and have varying capabilities to express their objection… they should be able to use their ordinary and natural language, having regard to their individual circumstances. For various understandable reasons, they may choose to express their objection politely, while still making their message clear, as in the present case. Whether the objection is a valid objection is determined by reference to the terms of those provisions, not whether the objection contains a statement of opposition.”

– The minimum formality requirements make it clear that “… an objection will be valid if it is an objection; if it is made by a person affected; if it is made in respect of the grant of a permit; if it is made to the responsible authority; if it is in writing; if it states in writing the reasons for the objection; and if it also states in writing how the objector would be affected by the grant of the permit.”

It follows that an objection does not have to contain a statement of opposition to the grant of a planning permit to be considered a valid objection under the Act.

This decision clarifies an area where a conflict in authority at the Tribunal previously existed. It is important to note that this decision does not purport to negate the need for an objection to go beyond a mere statement of opposition without going on to state the reasons for such an objection.

If you have any queries or would like assistance determining your public land liability or taking into account the changes effected by this Act, please contact us.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.