Current at: 18 February 2008
Planning permits: failure to determine (Vic)
Whilst the Victorian Planning and Environment Act 1987 states decisions must be made a
s promptly as is reasonably practicable so that loss or damage to any person from unreasonable or unnecessary delay is avoided, industry experience demonstrates that unfortunately for many we are still a considerable way from streamlining planning permit decisions in Victoria.
A frequently asked question by HIA members is “how long does a council have to make a determination regarding a planning permit?”
How long does council have?
Councils generally have 60 days from the acknowledged lodgement of a permit application to make a decision. After this time, the
Act
gives an applicant the right to apply the Tribunal (VCAT) for a review, based on the failure of council to grant the permit within the prescribed time.
The significant point is that the responsibility is on the applicant to calculate the timeframe and submit an application for review.
The process of calculating the number of days that have elapsed since lodgement can be complex. The clock may start and stop due to a number of things.
When does the clock start?
The clock officially starts on the date council acknowledge receipt of a permit application. If within the first 28 days council requests further information, either for council or a referral authority, the clock stops. It is then reset to 60 days once that information is supplied. If the request is made after the 28 days from lodgement, the clock continues to run from the day it was lodged.
The clock may also be influenced by other factors. If an application is amended by the applicant, or by the council with agreement of the applicant, the clock is reset. The clock may also stop as a result of the common requirement for the applicant to give notice or, as otherwise known, advertise an application. The VCAT website contains a table to assist with calculating the 60 days timeframe.
What should you do if the 60 day time limit is approaching?
It is useful to build a relationship with the council planning officer who has your application and ask them for information on: what is the likely recommendation; when is a decision likely; and, what is the reason for any delay.
Depending on council’s response to these questions, your decision on whether to apply to VCAT for a review may change. If the application is particularly complex it may be appropriate to allow the council further time to make a decision.
For some the decision to appeal to VCAT is based on determining whether it is likely that a Tribunal hearing will happen in any case, either as a result of advice that the application will be refused, will contain unacceptable conditions or because there are a significant number of objectors. This will allow the earliest possible date of a hearing and may reduce any potential holding costs that will continue to accumulate.
Of the 3245 applications received by VCAT in 2006/07 for review 454 (14%) were submitted
for failure of a council to determine a planning permit application. Considering that in 2005/06 there were 50,667 planning permit applications lodged in
Victoria
this demonstrates that for many within the industry the preference is to await for the determination of council. This may be because a decision is likely to be made prior to the application being heard at VCAT, as well as the desire to maintain a harmonious relationship with council.
How to lodge an application
Should you decide that an appeal is the most appropriate course of action, then an application for review must be lodged with VCAT. The process involves lodgement of the application form and payment of the filing fee of $34.20 with the Planning and Environment List Registry.
After receiving the application, the Registry will send a letter directing the applicant to provide copies of the application within a specified time, using forms supplied to the council and potentially other persons such as the owner, objectors, and referral authorities.
Once the council has been informed of the VCAT application for review, the council may still make a decision regarding the application however they can no longer issue a permit. If the decision is to approve the application, the council must inform VCAT. VCAT may then decide that a permit may be issued and that a hearing is not required if there are no other parties other than the applicant and council. However, it is common for review applications to involve objectors and still proceed to a full hearing.
The average timeframe to get a hearing is approximately 8 weeks. However this may vary considerably dependant
on how many objectors need to be contacted, timeframes for councils and objectors to respond and other influences such as VCAT shut down periods over Christmas.
Forms and further advice regarding lodging an appeal are available under the Planning & Environment List section of the
VCAT website - www.vcat.vic.gov.au. The website also includes a table for calculating the 60 day time limit that should also be included with the submission.
For more information regarding failure to determine, permit timeframes or other appeal opportunities HIA members can contact HIA’s Planning Adviser on 1300 650 620 or vic_planning@hia.com.au
Ref No. VIC AP 08-04
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