One of the most common complaints from regular permit applicants is the length of time the planning process takes. In Victoria, Councils have a statutory requirement to determine a planning permit application within 60 days, subject to certain milestones which start and stop the clock (readers can visit the Clause 1 website for an in-depth article regarding calculating Council’s 60 Day statutory timeframe). Despite the 60 day statutory timeframe, it is not uncommon for applications to take more that 6months to move through the Council process.
As a Victorian planning permit applicant, you have the right under Section 79 of the Planning and Environment Act (the Act) to lodge an appeal with VCAT if Council fails to determine your application within the 60 day statutory timeframe. Applicants contemplating appeals under Section 79 should also be aware that Section 115CA of the VCAT Act obligates Council to reimburse the applicant the whole of any fees paid by the applicant in the proceeding, unless Council can convince the Tribunal it would be unreasonable to do so.
However, Section 79 appeal can add significant cost and time-delays to the finalisation of a matter.
It is interesting to compare Victoria’s system with the statutory timeframes for planning permit processing, in other Australian states:
New South Wales – Has a “Complying development” fast track approval process combining planning and construction approval for straightforward development, issued in as little as 20 days.
Other development assessments which are not regionally or state significant and are not fast track applications should be determined within:
- 40 business days for standard applications,
- 60 business days for more complex application or where other parties are involved and
- 90 business days for State significant development.
If the relevant authority does not determine the application within this time it is deemed to have been refused.
Other states and territories have varying timeframes based on the type of application lodged. A number of states have a “deemed to be refused” or “deemed to be approved” provision which applies when a decision is not made in the specified timeframes, with these automatic outcomes subject to appeal.
The planning decision time frames of other states are summarized below
South Australia – has a 5-business day “deemed to satisfy” pathway if a proposal meets specified criteria, 20 business days for a Commission or Panel decision, and up to 60 business days where an agency referral and/or public notification is needed. Subdivisions also generally have a 60 business day timeframe, after a 5- business day verification period.
Queensland – has distinctions between “Code” assessment and “Impact” assessment applications and has provisions for the application to be deemed to be approved if not otherwise determined within the specified time frames.
Time frames are 10 business days for the assessment authority to confirm the application is received concurrently with 10 business days for the assessment authority to request further information, up to 35 business days to refer and receive assessment from a referral authority, then up to 35 business days for a decision to be made (less up to 10 business days for any time taken to make an Information Request).
Western Australia - 60 calendar days to determine applications where no consultation is required and 90 calendar days if any consultation/referral is required. If local government has not made a decision within these timeframes the application is deemed to be refused, although a decision can be made after this time frame.
Northern Territory – is covered by the Northern Territory Planning Scheme except for areas covered by the Jabiru Town Plan. The Planning Scheme is administered by the Department of Infrastructure, Planning and Logistics. Applications are made on-line. Applicants have a right to appeal if a decision is not made by the Department within 12 weeks (84 days) of making the application.
Tasmania - A decision must be made on a “permitted application” within 28 days of the application being received, this timeframe can be extended within that 28 days by a written agreement. A decision must be made on a “discretionary application” within 42 days of the application being received, which includes a 14 day public notification period. If an application has all the necessary information and a decision is not made in the timeframes, then the application is considered to be approved, although in those cases the applicant needs to appeal to the Appeal Tribunal for an order determining the conditions (if any) of the permit approval.
ACT - The statutory timeframes are 20 working days from date of lodgement for “code track” applications and 30 working days from date of lodgement for “merit” and “impact tracks” if no representations are received, and 45 working days from date of lodgement when representations are received.
Readers should keep in mind, that the above timeframes are also subject to the complexities of state and territory specific regulations, adding even more diversity between jurisdictions.
If Victoria was able to pick some of the best bits from other states and territories, to assist permit applicants, here’s a bit of a wish-list of what we could learn:
- Addition of ‘deemed to be approved’ provisions for applications that meet specific criteria
- More ‘streams/types’ of applications (similar to our VicSmart system) that provide for shorter timeframes and/or more confined considerations
- Reconsideration of the ‘clock-stoppers’ that currently unreasonably elongate decision timeframes
- Increased delegation from Councillors and/or more frequent Council meetings to determine applications
- More significant consequences for authorities that take too long to determine applications
- ‘Deemed to be approved’ provisions for applications that extend beyond the statutory timeframe
Ahhh, it’s nice to dream…
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. Copyright If you would like to reproduce or use for your own purposes any part of this publication please contact email@example.com for assistance. Clause1 Pty Ltd Phone: 03 9370 9599 Email: firstname.lastname@example.org Web: www.clause1.com.au