It has come to our attention that some Councils are including unreasonable requests in their ‘pro-forma’ correspondence.
The specific issue pertains to several Councils making demands and inferences, as part of their requests for further information, that purport to require applicants to lodge formal amendments with their RFI response.
Regular permit applicants will be aware that:
Section 50 of the Planning & Environment Act states: An applicant may ask the responsible authority to amend an application before notice of the application is first given…
Section 50A provides that: With the agreement of the applicant and after giving notice to the owner, the responsible authority may make any amendments to an application that it thinks necessary before notice of the application is first given under section 52
Section 57A provides: An applicant may ask the responsible authority to amend an application after notice of the application is given under section 52.
In all three instances, above, the formal amendment of the permit application restarts the 60-day statutory clock, in which Council is required to make a decision, to day zero. So, the implications for permit applicants are significant.
Notably, VCAT has previously held that anything short of a ‘substantial rethinking’ of the permit application/proposal would not normally constitute an amendment to the application. This generally means that; changes to plans that result from concerns raised in the RFI, the tweaking of setbacks, the rewording of the application form and other similar changes, that do not constitute a ‘substantial rethinking’ of the proposal, would not normally require a formal amendment pursuant to s.50, s.50A or s.57A.
However, some Councils appear to be inferring otherwise. Below are some examples of correspondence from Council’s that have raised an eyebrow or two:
One south eastern-metropolitan Council includes the following sentence in their RFIs:
Should you wish to make any changes to your proposal, you will need to apply to Council to amend the application pursuant to Section 50 of the Planning and Environment Act 1987.
Another south eastern municipality writes:
Any changes to the plans/proposal will need to be submitted with a request to amend the application in accordance with Section 50 of the Planning and Environment Act 1987 (the Act)
Whilst, a municipality in the north-west goes even further, stating:
If changes are made or additional information is provided as part of this request then Council may consider this as the applicant’s consent to amend the application in accordance with Section 50A of the Planning and Environment Act 1987.
Any inference that “any changes” to your proposal triggers the need for a formal Sec.50 or Sec.50A amendment or that Council can make such an amendment without the permit applicant’s expressed permission, is simply not true.
Clause 1 recommends that permit applicants include the following (or similar), at the bottom of their RFI responses to Council’s that infer a formal amendment is automatically required:
Any changes to the application have been made to address the issues raised in Council’s request for further information letter. The applicant considers that these changes do not constitute a formal s.50 or s.50A amendment to the application and no request is made, or permission granted for such an amendment.
We are hopeful the above and attached information, along with that previously supplied, is sufficient for Council to now determine the application. Should, for whatever reason, Council conclude that the provided information is not sufficient we request a 30 day extension to the application’s existing lapse date, for any such matters to be resolved.
Feel free to copy and paste it. We hope that helps.
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