New Fee Confusion: Secondary Consent Rip-off

Experienced planning permit applicants will be aware of the process available to request amendments via secondary consent provisions contained within approved permits.  Such amendments often include: minor changes to approved planning drawings, materials and finishes, associated report, where the changes are not significant, do not change or breach the conditions of the permit, do not require re-notification to affected parties and are made possible under a condition in the planning permit which enables amendments with the ‘further written consent of the responsible authority’ (or similar wording).

Regular applicants will be aware that a state-wide increase in planning fees came into effect in October 2016. Unfortunately, fees associated with secondary consent amendments were not included in the new regulations. Rather, each individual Council has been left to set their own ‘reasonable fee structure’ for secondary consent applications.

Over the past few months Clause 1 has experienced a significant variation in the manner that these fees are being addressed by Councils.

In late 2016 we made a request, under secondary consent provisions, to an inner city Council for minor changes to plans approved for a dual-occupancy. The changes can be summarised as:

  1. A reduction in the stair-hatch on the roof deck from 4000 x 1100mm to 3500 x 1000mm.
  2. Removal of approximately 2sqm of alucabond from the façade/balustrade and replacement with rendered cement sheet.

Under the previous fee structure the applicable fee was $102. However, using the new fee structure and on the basis of the cost of construction of the development, Council requested a fee of $3213.20.

Council sought to justify the fee under the new regime as the fee specified for a Class 12 permit, and to amend a Clause 12 Permit under Section 72 of the Planning and Environment Act 1987. (Noting that a Class 12 permit is defined as: To develop land (other than a class 6 or class 8 or a permit to subdivide or consolidate land) if the estimated cost of development is more than $1,000,000 and not more than $5,000,000.).

However, a the secondary consent amendment is not made pursuant to ‘Section 72’ of the Act. It is made as a request to Council pursuant to the written conditions of the relevant permit.

In the above case we successfully managed to negotiate the fee down from $3213.20 to $404.50 and thank Council for their pragmatic approach to the issue.

However, we note that since the introduction of the new fee structure, numerous Councils have updated their fee schedules, sometimes specifying a separate fee for secondary consent applications and sometimes not. In most cases we have found secondary consent fees are not readily available on the Council’s web sites. Below are a number of metropolitan councils’ published secondary consent fees, as found on council websites (as at 31 January 2017):

  • Glen Eira $350
  • Melbourne City Council $306.70
  • Port Phillip $130.20
  • Moonee Valley Council $128.95
  • Darebin City Council $350

Clause 1 is of the opinion that some addition guidance from the department on this issue could substantially improve the consistency of secondary consent application fees.

Permit applicants should note:

  1. Secondary consent application fees are now set solely by local Council;
  2. It is DELWP’s expectation that Council’s will set ‘reasonable fees’ for such applications;
  3. Some Council’s do not yet seem to have given this issue much thought;
  4. Significant variation in fees from Council to Council is likely to eventuate;
  5. Some Council’s may consider requests to reduced fees if the amendments are minor.

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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