Councils Fight Back on VCAT Fees

Regular readers and applicants will be aware of Section 115CA of the VCAT Act, introduced in 2014.  Section 115CA provides that the VCAT application fee for a permit applicant’s appeal against ‘failure-to-determine’ (within the 60 day statutory timeframe) is required to be reimbursed by Council, at the discretion of the Tribunal, unless the council can satisfy the Tribunal that no such order should be made having regard to the following three tests:

  1. The nature and complexity of the permit application; and
  2. The conduct of the applicant in relation to the permit application; and
  3. Any other matter beyond the reasonable control of the responsible authority.

Section 115CA presumes the VCAT application fee will be reimbursed unless Council can convince the Tribunal otherwise. Clause 1 has previously reported on several cases in which the Tribunal has upheld a permit applicant’s request for VCAT fees to be reimbursed.

The following notable comments have previously been made by the Tribunal in awarding reimbursement of fees to permit applicants:

I am not persuaded by the Council’s submission that this matter is a complex one. The proposal comprises five dwellings above a basement car park, in a relatively standard residential setting. The design is not that exceptional or different to many which I would expect Stonnington City Council to handle on a daily basis. The proposal is not of a scale where views of the built form needed to be considered from any locations further away than the immediate context. Further, the review site is not affected by any overlays, and no referral authorities exist in relation to this proposal. Compared to the very large and complex proposals that Stonnington Council deal with in other parts of its municipality, this proposal is relatively modest and straight-forward.

… I do not consider the nature of the staffing arrangements within Council identified in this proceeding to be a relevant matter. Councils regularly need to deal with part time workers, and staff on leave, particularly in an inner city Council with a relatively large workforce. Where such matters delay the processing of planning permit applications in a timely manner, these are insufficient grounds to avoid the reimbursement of fees in a proceeding of this nature.

… I do not consider the failure or refusal of the Applicant to amend the proposal early in the process in response to Council’s stated concerns to be a justifiable reason for the Council’s failure to process the Application in the prescribed time. In the event that Council holds dear to those concerns, the failure or refusal of an Applicant to respond at all, or respond adequately, would normally result in a decision to refuse to grant a permit.

On 28 October 2015, the Council required Mr Le to provide further information in relation to the application. On 15 February 2016, Mr Le provided further information. On the information available to me, I cannot make any finding about whether all the information was provided. These facts are relevant to the calculation of the prescribed date after which an application to the Tribunal may be made. They are not relevant to conduct that may justify delay… I find there is no conduct by Mr Le that justifies the Council’s failure to decide Mr Le’s application within the specified period.

Over recent times several VCAT decisions have refused the reimbursement of fees to applicants and instead found in favour of Council.  Arguments made by Council that have been supported by the Tribunal include:

  • The permit applicant took months to respond to the request for further information and was not diligent in their pursuant of a timing outcome;
  • A pending planning scheme amendment added complexity to the application;
  • Council’s internal process required that the application be determined at a Council meeting – requiring extra time;
  • External referral authorities took an excessive amount of time to provide advice;
  • The applicant provided ‘without prejudice’ plans, that required additional time to assess and discuss;
  • Council had sought to discuss changes with the applicant, rather than issue a refusal, in an attempt to obtain a better outcome on site.

These recent decisions indicate that some VCAT Members are taking a more sympathetic view of the pressures Council planning departments face. Permit applicant’s seeking to obtain reimbursements pursuant to Sec. 115CA should consider Council’s potential rebuttals and ensure your position clearly addresses the three tests outlined at the top of this article.

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