Further information - how to deal with council requests (Vic)

The term ‘better decisions faster’ is a common phrase used in planning particularly regarding planning permit applications. Unfortunately quick decisions do not always occur and can often result in costly delays. The cause of significant delays for many applicants comes from requests by councils for further information.

Section 54 of the Planning and Environment Act provides that council or a referral authority may request further information to make a determination. This commonly occurs if the application is considered incomplete or inadequate.

The Act requires the request to be made in writing and, if sent within 28 days of the council receiving the application, must specify a timeframe for providing the information back to council.  It is important to be aware that if the information is not received by council within the timeframe (at least 30 days after the date of the request) the application for a permit will lapse and cannot be recommenced. Instead a new application will need to be submitted.

When the council requests information within 28 days of lodgement, they are entitled to ‘stop the clock’ in terms of the eligible time to appeal against council failing to determine the permit. Therefore it is equally important to provide the information to council as quickly as possible to restart the clock. If the request from council is made after 28 days of lodgement, the clock continues to run from the day it was lodged.

There has been a trend for ‘further information’ requests to be made 27 days or so after the date of the lodgement. This strategy might give councils more time in which to consider applications before the applicant has a right to appeal against their failure to decide.

Sometimes councils seek information under Section 54 when they are really seeking a change to the application. VCAT has determined this is not a permissible use of Section 54. VCAT has also clearly determined that council timeframes for supplying further information must be reasonable and should reflect:

• The scale and nature of the proposal for which a permit is applied for;
• The type and amount of information requested; and
• Any other factors relevant to the particular matter.

If the timeframe for providing council with the additional information is not enough, you can request council provide more time. If the council refuses this request, or the you considers that the information requested is not necessary or appropriate to the development or use, applicant’s have the right of review to VCAT. This application must be submitted before the lapse date.

Getting a request for further information can be reduced, or avoided, by having a pre-application meeting with council. This has been strongly supported by VCAT who has stated in determination P2181/2005 that councils should provide a practical and constructive critique of proposals prior to applications being lodged. They should not say “lodge the application and we’ll look at it”. Further, they should not change their position on any advice given during the pre-application process, or ask for information that has already been provided.

The most effective way to ensure that this occurs, particularly if the application is determined by a planner not involved in the pre application meeting, is to request confirmation in writing of points discussed and agreed upon.  This can be via an email to council with the key points discussed requesting that council provide a brief response confirming that the points are a true account of the meeting. If there is a difference of opinion or other issues were considered to have been raised the planner can respond with further comments. This can be of very useful in ensuring that the information the application is prepared with is correct.

Further advice and forms regarding lodging an appeal are available under the Planning & Environment List section of the VCAT website - www.vcat.vic.gov.au.

For more information regarding council requests for further information, failure to determine, permit timeframes or other appeal opportunities, HIA members can contact HIA’s Planning Services Advisor on 1300 650 620 or vic_planning@hia.com.au.

Ref No. VIC AP 08-03

The above is intended to provide general information in summary form. The contents do not constitute specific advice and should not be relied upon as such. Formal specific advice should be sought by members with respect to particular matters before taking action. ABN 99 004 631 752