In an unexpected (but welcome) move, the VCAT Amendment Act 2014 has ushered in new provisions that will require Council to pay the application fee for an appeal if Council’s statutory time frames aren’t met.
Section 79 of the Planning and Environment Act currently allows applications that are still undetermined by Council on Day 60 to be appealed directly to VCAT rather than await a decision from Council. Such VCAT appeals are commonly referred to as a ‘failure to determine’ or ‘failure’ appeal. However, such appeals have become less frequent in recent times due to the 5+ month waiting list and dramatically increased VCAT application fees (more on this later).
With some Councils delivering less than 40% of their decisions within the required statutory timeframe and the metro average closer to 60%, these new provisions provide a welcome paradigm shift for permit applicants.
As a result of the VCAT Amendment Act 2014, a new section 115CA has been inserted into the Victorian Civil and Administrative Tribunal Act 1998.
The new section reads:
Subject to subsections (2) and (3), an applicant to the Tribunal under section 79 of the Planning and Environment Act 1987 is entitled to an order under section 115B that the responsible authority reimburse the applicant the whole of any fees paid by the applicant in the proceeding.
If different fees are payable in a proceeding under section 79 of the Planning and Environment Act 1987 depending on an election made by the applicant, subsection (1) applies to entitle the applicant to an order for reimbursement of only the amount of the lowest of those fees.
Subsection (1) does not apply if the responsible authority satisfies the Tribunal that there was reasonable justification for the responsible authority to fail to grant the permit before the application to the Tribunal, having regard to-
(a) the nature and complexity of the permit application; and
(b) the conduct of the applicant in relation to the permit application; and
(c) any other matter beyond the reasonable control of the responsible authority.
The impact of this change
The application fee for a permit applicant’s appeal to VCAT for ‘failure to determine’ will be required to be borne by Council, at the direction of the Tribunal, unless the council can satisfy the Tribunal that no such order should be made having regard to the factors set out above.
This opportunity only applies to permit applications lodged after September 10 2014, so no appeals using these provisions have come before the Tribunal yet. It is envisaged that an applicant would need to pay their own application fee and then seek an award at the end of a hearing, when Council would be given an opportunity to make a submission pursuant to Section 115CA.
Importantly, the ability to recoup costs only extends to the VCAT application fee and does not include the cost of representation, holding costs, or other financial disadvantage suffered by the applicant as a result of Council’s delay. The eventual outcome of the hearing is also not relevant to VCAT’s consideration of Section 115CA, meaning the appeal may be unsuccessful but Council is still likely to bear the application cost.
Seasoned applicants will be aware that an application under Section 79 doesn’t enjoy any special privileges at VCAT and will be required to join the queue and be subject to the same merits-based hearing as any other type of appeal. We urge applicants contemplating lodging a ‘failure’ application to seek professional advice prior to doing so.
The change to the Act has come as a shock to many Councils unaccustomed to being held accountable for their own time delays by the Tribunal. We anticipate that while it may result in faster decisions, some applications which might have been capable of being modified through negotiations with Council may end up being refused before the applicant has the chance to appeal them, in order for Council to avoid the cost of such an appeal.
Councils with poor levels of delegation may also be forced to review their internal policies. This is especially relevant in municipalities that delay the decision making process by requiring a full Council meeting to determine an application.
With VCAT fees now $986.40 for applications under $1M and $1903.90 where the works cost more than $1M, the onus on Council to bear some of the cost of administrative delays is likely to be a motivating force for Responsible Authorities.
Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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