The case of Koneska v Greater Geelong CC (Red Dot) [2023] VCAT 359 concerned an appeal to the Victorian Civil and Administrative Tribunal (Tribunal) by two objectors (Objectors) to the grant of a permit by the Geelong City Council (Council). For context, a "Red Dot" decision is a decision that the Tribunal has earmarked as being significant or notable.

The appeal proceeding was dismissed by the Tribunal because of an amendment of the Greater Geelong Planning Scheme (Planning Scheme) that came into force after the matter was heard by the Tribunal, but before a decision was reached. As a result, the Objectors' rights for review of a decision to grant a permit under section 82 of the Planning and Environment Act 1987 (Vic) (Act) that existed at the time the proceeding was commenced were revoked by the amendment to the Planning Scheme and the proceeding was subsequently dismissed. The Council granted a permit application to build a telecommunications facility on land located 10 kilometres from Avalon Airport, and 25 kilometres from the Geelong central business district.

The appeal concerned applications by the Objectors for a review of the Council’s decision pursuant to section 82 of the Act.

After the objections were heard, but before final orders were handed down by the Tribunal, Amendment VC226 (VC226) was approved and implemented by the State government. VC226 made changes to the Victoria Planning Provisions and all local government planning schemes to support emergency recovery, telecommunications, solar energy systems, and community care accommodation. The Explanatory Report for VC226 clearly stated an intention to exempt these facilities from notice, decision, and review requirements.

As a result of VC226, a clause was inserted into the Planning Scheme to the effect that an application to construct a building or construct or carry out works for a telecommunications facility became exempt from the review rights under section 82 of the Act. In short, it brought the validity of the Objectors' applications for review into question. Consequently, Telstra Corporation (Telstra) applied to the Tribunal for an order to dismiss the proceeding as misconceived on the grounds that the permit application had become exempt from review rights.  Telstra submitted that the Tribunal no longer had the jurisdiction to determine the Objectors’ applications and relied on the reasoning of Supreme Court of Victoria (Court) in the case of Von Hartel & Ors v Macedon Ranges Shire Council & Ors [2014] VSC 215; (2014) 48 VR 632 in which the Court considered circumstances where a planning scheme had been amended to revoke the review right of objectors across all relevant provisions under which permission was required. The Tribunal noted that the Court in that case emphasised the effect of section 5 of the Act was "to automatically pick up amendments to planning schemes" when making a determination under a provision of the Act (at [13]).

The Objectors submitted that, given that the proceeding was heard before VC226 came into effect, the Tribunal should not apply VC226 retrospectively and must consider the Planning Scheme as it was at the time of the hearing of the Objectors' applications.

After considering the submissions, the Tribunal refused to accept the Objectors' argument on the basis that it would be contrary to well established case law and "…the strongly persuasive authority of Von Hartel" (see [22] and [56]). Accordingly, even though VC226 was not in force at the time of the hearing of the Objectors' applications, the amendments to the Planning Scheme were mandatorily considered by the Tribunal in making the final order. The Tribunal deemed that the applications were misconceived on the basis that the Planning Scheme barred the Tribunal from making a determination. This case demonstrates that it is important to be vigilant when an amendment is being considered for a planning scheme. This is particularly so because the Tribunal is bound to consider the law at the time of the Tribunal's decision rather than at the time the proceeding is heard, and thus any update to relevant planning law during this period has the potential to impact a development being considered by the Tribunal.

If an objector brings an action against a developer and that right of review is removed by an amendment to a planning scheme prior to the Tribunal's decision on review, the action will be considered misconceived and dismissed outright. Accordingly, an amendment to a planning scheme may result in the decision to grant a permit becoming exempt from review, and thus providing an easier and less expensive path to development. The Tribunal is bound to consider the Act and all relevant legislation as at the time of the Tribunal's decision. The Tribunal in this case had regard to an amendment to the Planning Scheme which removed a right of review for objectors that came into force before the delivery of the Tribunal's decision and dismissed the Objectors' applications on the basis that they were misconceived for lack of right of review.

This case demonstrates that it is invaluable when deciding where to propose a new development to be aware of what, if any, amendments are being considered to the relevant planning scheme and what impacts these amendments may have on the development.