We at Clause: 1 were excited to learn of some of the changes to planning legislation outlined in the Planning and Environment Amendment (General) Act 2013. The Planning and Environment Amendment (General) Bill was passed by Victorian Parliament and received Royal Assent in February 2013. It is expected most of the changes will come into force on or before October 2013.
Following is a summary of some of the wins for permit holders and applicants.
Increase RAs’ powers post VCAT
Currently, any application issued at the direction of the Tribunal cannot be amended by any manner other than Secondary Consent, without having to go back to VCAT. The Secondary Consent process is designed for only very minor changes to plans, and does not allow changes to conditions or what the permit allows. In many cases, this means returning to the Tribunal for a full hearing in order to consider the changes, and allow neighbours and other parties to become involved once again. With the time and cost implications being obvious.
Under the changes to the P&E Act, changes to VCAT issued permits (now including conditions and what a permit allows) will be able to be considered by the Responsible Authority as part of a Section 72 amendment. This is good news for permit holders as it may mean an amendment to a permit could be dealt with by way of an application to Council rather than at a hearing which would arguably take longer and incorporate a greater degree of uncertainty as to the outcome. It could mean that as issues arise during preparation of building plans, plans and conditions could be quickly amended rather than putting the application on hold indefinitely while a response is sought from VCAT.
The changes should be good news to permit applicants, including many of our current clients. The problems with the existing set up are well illustrated by a situation one of our clients is currently facing:
Permit Lodged: Oct 2011
Permit Refused: March 2012
VCAT Appeal: November 2012
VCAT’s Order to grant a permit: January 2013
On review of the Decision, it became apparent that the gradient of the basement ramp required by VCAT’s conditions could not be achieved without the loss of a number of car parks. The applicant and Council determined a mutually acceptable ramp gradient design which required the rewording of one condition of the permit to allow a different gradient design to be used.
Amendment to Application pursuant to Section 87 A requested: February 2013.
The only two parties to the appeal (as relevant to this matter) were Council and the permit applicant. A hearing was not required and the permit applicant requested the matter be dealt with ‘on the papers’.
Amendment to Application Approved by the Tribunal: May 2013
With the proposed changes a VCAT appeal could have been avoided and an amended permit and endorsed plans issued months earlier.
This amendment is part of a suite of changes proposed to relieve VCAT of unnecessary administrative tasks in an effort to streamline VCAT’s workload to pertinent issues and allow for faster decisions.
Extensions to Permits
Other changes to the P & E Amendment Act allow Councils to contemplate (Section 69) requests to extend the life of a permit (usually two years to commence works and an additional two years to complete) after they have expired. Currently, only VCAT can amend a permit which has been granted by order of VCAT.
The Amendment Act also extends the 3 month timeframe in which a permit holder can apply for an extension to the lapse date of a permit to:
•Within 6 months of the permit expiry date where the use or development has not commenced;
•Within 12 months of the permit expiry date where the use of development has lawfully started before the permit expires.
This gives Councils more flexibility to extend permit expiry dates without the need to go to VCAT.
Section 173 Agreements
VCAT will also be given jurisdiction to provide a determination over the interpretation of Section 173 Agreements. This will enable disputes between parties to be more efficiently resolved. The changes also remove the requirements for the Planning Minister’s agreement to end or remove such an agreement.