Effect of third party exemptions on 'omnibus' permits at VCAT

13 December 2023

This is an analysis of the implications of a Supreme Court of Victoria ruling on the case Myers v Southern Grampians Shire Council [2023] VSC 658.

VCAT's decision

This case was an appeal to the Supreme Court of a VCAT decision in Myers v Southern Grampians SC (Red Dot) 2022 VCAT 695.

The application for review at VCAT was heard under s.82(1) of the Planning and Environment Act 1987 (PE Act). Permission was sought for tourist accommodation under the Southern Grampians Planning Scheme.  A planning permit was required under the Rural Living Zone (‘RLZ’), Environment Significance Overlay, Schedule 3 (‘ESO3’) and Design and Development Overlay, Schedule 6 (‘DDO6’). The planning permission sought under DDO6 was exempt from the operation of the notice and review rights available to objectors under the PE Act. VCAT made interim orders allowing the amendment of the application plans and requiring a legal member to determine legal questions arising from the standing of the applicant/objector under DDO6.

VCAT's decision concluded that the applicant/objector did not have standing under the DDO6 because the permission granted under the DDO6 was not the subject of VCAT's review.  This was because of the operation of s.82(3) of the PE Act. Therefore, VCAT could not consider the request for permission under DDO6 afresh or ‘de novo’ for itself.  The Southern Grampians Shire Council granted permission under DDO6, which was a relevant consideration in the determination of the permission. The weight to be given to that consideration was a matter for VCAT.

VCAT's decision was appealed to the Supreme Court of Victoria with the following questions of law raised:

  • VCAT erred by making orders which had the effect of varying the Council’s omnibus decision
  • VCAT erred in finding it was not required or permitted to consider whether the application for review complied with the requirements of the DDO6

Supreme Court decision

Section 82(3) of PE Act limits VCAT's jurisdiction to the review of the permissions required under a scheme that are not exempt from notice and review rights.

Section 84B of the PE Act and clauses 62 and 71.02 of a scheme do not extend VCAT's limited powers under s.82(3) of the PE Act.

In paragraphs 24 and 25 the Supreme Court said:

"Neither an order amending the application plans, nor an order requiring changes to the plans to be endorsed by the responsible authority as part of the merits determination by the Tribunal, has the effect of varying a decision of the responsible authority which was not before the Tribunal…

"In an application where there are multiple permit triggers for a proposal overall, but the permission under review pursuant to the Planning Act and the VCAT Act is limited by operation of the exemptions applying to the review, the ambit of the Tribunal’s review enquiry will be restricted to the non exempt provisions. This approach is not inconsistent with integrated decision-making on the proposal overall. The respective decisions of Ashley J in Sweetvale, the Court of Appeal in Sweetvale and in 1045 Burke Road are not inconsistent and can be read together as establishing an approach to the proper consideration of multiple permissions, but recognising the Tribunal’s jurisdictional limitations on review where there are exempt provisions in play."

This means in an application under s.82(1) of the PE Act, VCAT does not have the power to direct a permit on all permit triggers if any of the permit triggers are exempt notice and review rights. Any material difference between the plans and conditions is a matter for the responsible authority and applicant to reconcile. 


In circumstances where an application is heard under s.82(1) of the PE Act and some of the permissions sought in the permit application are exempt from notice and review, VCAT cannot direct the responsible authority to issue a permit with any permissions exempted from review. 

Parties to such proceedings should carefully consider the orders they seek from VCAT in such circumstances.