Regular BDAV News readers may recall an article in One Planners’ Tid Bits concerning VCAT’s ruling that a permit applicant is not liable for the costs associated with Council’s peer review of technical reports. In Calodoukas v Moreland CC [2010] VCAT 498 and later Rojin Investments Pty Ltd v Brimbank CC [2012] VCAT 67, the Tribunal reiterated that Council’s role is to assess all aspects of a proposal, and that the application fee is intended to cover the cost of that assessment. In Calodoukas, the Tribunal removed Council’s condition requiring the permit applicant pay for the review of an environmental audit supplied by the permit applicant.
In Hanson Construction Materials Pty Ltd v Wyndham CC (Red Dot) [2013] VCAT 158, the Tribunal found that the Responsible Authority does not have power under the Local Government Act to demand a ‘satisfaction fee’ to assess and endorse engineering plans for a large subdivision, which were required by a Section 173 agreement. In Hanson, the applicant had submitted engineering plans which had been duly assessed and were found to be satisfactory, however Council refused to release them until a ‘satisfaction fee’, in this case, of $159,569, was paid by the applicant. The fee was intended to cover the cost of checking the plans and supervision during construction of roads and other infrastructure within the subdivision.
The Tribunal found in Hanson that ‘there is nothing in the common use of the phrase ‘to the satisfaction of the Responsible Authority’ in permits or in agreements that carries the connotation of the permit holder/owner paying the cost of Council’s consideration in order to make a decision about whether or not it is satisfied.’
The decision also mentions two other situations where Council attempted to levy fees against permit applicants without success, the first being the Bensen Development Pty Ltd v Monash CC [2005] VCAT 194, where Council tried to charge an application fee of 10% of the permit application fee. In Forsyth v Knox CC [2005] VCAT 195, Council demanded a $90 ‘satisfaction fee’ from permit applicants before a neighbourhood and site description would be assessed as part of a Clause 55 (Rescode) application. In each case, the Tribunal found that Council did not have the power to charge additional fees.
The recent Hanson decision should be encouraging to permit applicants faced with undue fees and levies from Responsible Authorities.