Back in ML Design v Boroondara CC [2005] VCAT 2088, Deputy VCAT President Gibson found that an application for a planning permit requires only one item: an application form. In ML Design, we learned that anything else that the Council needs, including ‘mandatory’ items like the application fee, a certificate of title, plans and reports, can be sought through the Request for Further Information (RFI) process established at Section 54 of the Planning and Environment Act.
We at Clause: 1 commend any Responsible Authority making a genuine attempt to improve the currently woeful extent of delays associated with the processing of permit applications in many parts of the State. Well-run pre application meetings, robust levels of internal delegation, a fast tracking process for simple applications, for example, are methods that innovative Councils have used in the past to keep applications moving despite heavy workloads and high staff turnover.
However, a worrying trend towards certain Councils abusing their responsibilities in an attempt to resolve or disguise these problems is beginning to emerge. One such example has recently come to light from a south eastern metropolitan municipality notorious for sluggish processing times. As a regular applicant within this municipality, Clause 1 was advised that from 1st of July 2013, any application not accompanied by a list of ‘compulsory items’ would not be accepted. Presumably, an application that is not considered to be acceptable would be returned unstamped and would not be processed/receipted until Council became satisfied that the application was ‘complete’.
The list of demands included a construction impact assessment of existing vegetation undertaken by a qualified arborist, (which appears to be required even if a site is not protected by a VPO, contains no trees or if no trees are proposed to be affected and an electronic version of all plans and documentation in PDF format (on USB or CD). Importantly, it is acknowledged that Council may reasonably require some or all of this information in order to determine the application. However, a robust request-for-further-information (RFI) structure is already in place and is mandated under Section 54 of the Planning and Environment Act (P&E Act), which sets out what information can be requested, the timeframes involved for both Council and the applicant and includes the ability for an applicant to appeal to the Tribunal if unwarranted RFI material is sought by Council. In addition, the Section 79 timeframes that govern when an appeal for ‘failure to determine’ can be bought before VCAT by an applicant are based around the date that the application was ‘received’ by Council. If Councils refuse to ‘receive’ applications, it clearly places applicants at a disadvantage in terms of accessing the provisions of Section 79 and creates confusion about the date the application was actually received.
Once again, we stress that an attempt to speed up processing times by any Council is commendable. However, issuing demands that are contrary to the provisions of the Planning & Environment Act is unlawful, and unfairly disadvantages the applicant as well as diluting accountability for unreasonable demands for extra information not required as part of the planning permit process. It also hints at an attempt to disguise poor performance.