Amendment C48 was introduced into the South Gippsland planning scheme in May 2009. Amendment C48 prohibits a permit from being granted for dwellings on lots smaller than 40ha and the creation of smaller lots for existing dwellings within the Farming Zones. Prior to Amendment C48 coming into force a permit was required for a dwelling to be built on a lot less than 40ha.
In the current case, South Gippsland Shire Council determined in March 2009 to issue a notice of decision to grant a planning permit for use and development of a dwelling on a lot less than 40ha. In April 2009 an objector to the planning permit application lodged an application for review of the Council’s decision. In May 2009 the Minister released Amendment C48. The objector then sought leave to withdraw his objection in July 2009. The effect of the withdrawal of the application for review is that decision would revert back to the Council’s decision to grant of the permit. The Tribunal refused to allow the objector to withdraw the application for review without first determining that it would be lawful to issue the permit in light of Amendment C48.
After considering the issue, the Tribunal determined that if they were to refuse the grant leave to withdraw the application for review and the objector failed to appear at the hearing then the Tribunal would have to revert back to the Council decision as per section 64(3)(b) of the Planning and Environment Act 1987 and section 28(2) of the Interpretation of Legislation Act 1984. This was the same outcome as if the Tribunal granted leave to withdraw the application for review. As such the Tribunal concluded that there was no benefit to be gained by not allowing the application for review to be withdrawn. Therefore leave was granted and the original permit was issued.