Be Careful What You Wish For

Regular planning permit applicants and readers of this column will be aware of changes to the VCAT Act that came about in September 2014 and allow permit applicants appealing to VCAT, against Council’s failure to determine an application within the 60 day statutory timeframe, to seek reimbursement of the VCAT application fee from Council.

At the time Clause 1 wrote:

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…

 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.

Since its introduction in 2014 Councils have been forced to reimburse tens of thousands of dollars of VCAT application fees to permit applicants. As anticipated, this financial burden is now changing the way Councils process applications.

The good news is that Councils are legitimately more focussed on ensuring that the 60 day statutory timeframes are met as a result of the increased accountability.

However, permit applicants should be aware that the risk of financial penalty is driving more Planning Departments to change the way they deal with applicants. Discussions with senior Council planners and anecdotal evidence from our office, indicates that some Councils are:

  1. More commonly seeking formal amendments to applications in order to reset the statutory clock and;
  2. More commonly refusing applications as they draw close to the 60th day in order to avoid the potential financial penalty;

Permit applicants should closely track the 60 day timeframe and stay in contact with Council to ensure a surprise refusal doesn’t arrive on day 61.

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