A review of the Victorian planning regulations is currently underway with the State Government hinting at ‘improvements’ that are likely to affect the way planning permits are processed.

We have published our submission here to assist other regular permit applicants understand some of the issues that could be addressed by this review. Feel free to copy any sections that you feel are pertinent into your own submission.

The more applicants push for a better system the more likely we are to get one. Submissions close September 12.

Full details, including a guide to submissions is available from the DTPLI website.

Download Submission pdf 1200Kb

Introduction

Clause:1 Planning is a specialised consultancy dedicated to assisting property developers, architects, building designers, business applicants and other regular users navigate the increasing complexity of Victoria’s State and Local Planning Controls. Our team works across both metropolitan and regional Victoria and provides a comprehensive list of planning services for a diverse range of clients. Since our inception in 2004 we have provided advice and services on hundreds of projects throughout the state. The following submission is made on behalf of Clause 1 Planning. For more information about Clause 1 please visit www.clause1.com.au

Regulation 15

1. What Information is Required to Constitute a Permit Application

The minimum standard of information required to accompany a planning permit application is clearly specified in Regulation 15. The interpretation of Regulation 15 and its relationship with Sec 47 of the Planning and Environment Act 1987 was the subject of the VCAT determination in ML Design v Boroondara, P2088 [2005]. In that matter the Tribunal stated:

12. Section 47 of the Act deals with applications for permits and sets out what must accompany an application. Section 47(1)(a) states that an application must be made in accordance with the regulations and regulation 15 of the Planning and Environment Act Regulations 2005 sets out what an application must contain.[5] Section 48(1) requires an application for permit to be signed by the owner of the land or include a declaration by the applicant that the applicant has notified the owner about the application if the application is not the owner.

13. I interpret these provisions to mean that the actual application for permit is the application form that contains the information set out in regulation 15 and that is signed by the owner or contains a declaration as required by section 48(1) (if relevant). The application must be accompanied by the prescribed fee and other information set out in section 47 but the fee and the information do not constitute the application itself. Therefore it is the date upon which a completed application form is lodged containing all the information required by regulation 15 and which meets the requirements of section 48(1) (if relevant) that is the date upon which the application for permit is received.

14. If the permit application is not accompanied by all the accompanying information required by the rest of section 47, this does not mean that an application has not been received, although it may mean that the application is not complete and cannot be determined until the information is provided. (emphasis added)

We wholly support the Tribunal’s above interpretation. We are aware that a number of Councils are not accepting permit applications that include the minimum information outlined in ML Design. They are using “under the counter” policies to return unacknowledged applications, not lodged in the planning register, that do not include their proprietary wishlist of application material. We have attached two such examples at Appendix A1 and A2. Appendix A1: Includes correspondence from Whitehorse City Council that outlines what they want to be supplied with applications. It also includes correspondence showing how an application within a (then) R1Z with no overlay controls has refused to be received/acknowledged by Council until such time as an accompanying arborist’s report was supplied. Appendix A2: Includes a copy of correspondence between our office and Brimbank City Council relating to a similar matter, in which Brimbank setsaside theTribunal’s legal interptretation of Reg 15 in the ML Design decision. The attached appendices depict what we believe is a push by some municipalities to increase the minimum information required to accompany a permit application and an unreasonable misinterpretation of Regulation 15 that significantly disadvantages permit applicants. Other examples we are aware of include Councils refusing to receipt/acknowledge an application until such time as:

A copy of a redundant restrictive covenant was provided;
The ‘land owner’ had signed the application form.

We warn strongly against increasing the requirements of ‘what constitutes an application’ or providing Council with the opportunity to return applications that meet the existing requirements of Regulation 15. We consider that any such move will significantly disadvantage permit applicants. In support of this position we note that Section 54 of the Planning and Environment Act 1987 provides a robust opportunity for Council to seek additional information (without the statutory clock ticking). In addition, any amendment to an application under Sec 50, 50A or 57 allows Council to restart the statutory clock. Although we applaud any effort by Council to decrease processing times, unreasonably delaying the receipt of an application significantly disadvantages the permit applicant and will not positively influence the times in which Councils determine applications. Remedy The first paragraph of Regulation 15 should be reworded to make it clear that:

Items (a) – (f) constitute the minimum requirements for a planning application; and
An application containing the items (a) –(f) is considered to be received on the day it is received; and
Additional information, beyond that contained in items (a) –(f), required to accompany an application as specified in the Planning and Environment Act 1987 and subordinate policy can be requested under Section 54 of the Act.

Regulation 16

2. Is it the Whole Project Cost or the Difference

When lodging an application to amend a permit under Section 72 of the Planning and Environment Act 1987 some Councils are calculating the required application fee based on the cost of the entire development rather than the cost of the works associated with the amendment. For example, a $7million apartment development (with an existing planning permit) the Section 72 amendment application fee associated with changing the location of a driveway (or other similar, small alteration with potential detriment to neighbours) could range from $4837 (Class 8) or $102 (Class 4) depending on Council’s interpretation. Remedy Regulation 16 should clarify that the required fee relates to the difference in cost between what has been previously approved and what is being sought by the amendment(s).

Regulation 18

3. The Difference in Signs

The size, color and type of public notification signs varies significantly from municipality to municipality. A better outcome would be for all planning permit public notification signs to be a consistent size and type, ideally printed on water-proof paper or laminated to ensure their longevity. Such an approach would increase the public recognition of such signs and assist regular applicants often tasked with erecting them. Remedy Form 2 and Form 3 of the regulations should be amended to include a specific graphical appearance, colour, set paper size, content and laminate finish that cannot be varied from municipality to municipality.

4. Rambling Preamble

It is our experience that Council-prepared notices and letters to affected parties follow no prescribed format and often include a description of the proposal which includes non-relevant items, items which are exempt from notice and review and/or other matters that are not relevant to the application, for example – landscaping, number of storeys, inclusion of a basement, earthworks, associated car parking. Remedy Regulation 18 should specify the form of preamble/description of proposal for the public notices.

Regulation 19/Schedule 1 Form 4

5. What Changed When

In our experience a number of Councils are not listing a complete history of amendments on planning permits. Anecdotally, it appears that secondary consent alterations to plans (and other endorsed material) are often omitted from a list of amendments on permits. In addition, the format and information included in such lists varies significantly from Council to Council. These issues make it very difficult for the average person to understand that what is currently approved on land for a permit, has undergone multiple (unlisted) amendments. Remedy Relevant Forms should be amended to include clear instructions on how amendments are to be listed on any permit. The list of amendments should include a complete history of changes to the use, preamble, conditions, material endorsed under the permit and any other changes including secondary consent alterations.

Regulation 20

6. Referral Speed

There can be better consistency between Council and Referral Authority timeframes, particularly the time in which Council refers an application to a referral authority where that referral authority may request further information. For example, Council providing the referral authority with the application at day 26 and the referral authority requesting further information at (their) day 19 totals 45 days from lodgement to get a request for further information from the referral authority. Remedy Section 55(1) of the Planning and Environment Act 1987 requires applications to go to referral authorities “without delay”, this can be amended to specify a time frame within the Regulations. We suggest a referral to the referral authority should be within 7 days of Council receiving the application.

7. Misuse of Clock Resetter

It appears some Councils are increasingly using Sections 50A/57 of the Planning and Environment Act 1987 to “reset the clock” at any time they see fit including well outside the 60 day statutory timeframe, despite not adhering to any of their own statutory clock requirements prior to the point. The example contained at Appendix B is correspondence from Whitehorse City Council. It was received on day 65. In this instance Council did not undertake a preliminary review of the application for approximately 9 weeks and required that the application be amended under Sec 50A (to reset the clock) within 22 days or the application be refused. Unfortunately it appears that some Councils are increasingly more concerned about their PPARs than the quality of their service delivery. Remedy Remove the ability for a Section 50 amendment to restart the statutory clock in cases where Council has not undertaken a preliminarily review and made a request for further information within the prescribed 28 day timeframe.

8. Starting the Clock

In many instances Councils are not “starting the clock” until a few days after the applications have been received. This unreasonably prejudices the applicant and results in inaccurate time frames for the purposes of requesting further information and Section 79 applications. Appendix C provides an example of a planning permit application couriered to Frankston Council which was “dated stamped” by Council a few days after it was actually delivered to Council by registered post. Remedy We submit that the regulations make clear that the application is received when it arrives at Council, not when it is date stamped by Council or otherwise.

9. One Bite will Make it Faster

Councils often request further information more than once, the second time after the 28 days. Appendix D contains an example of a second request for further information dated 19 February 2014 by City of Hume sent to the permit applicant, some 60 days after the date of a first request for further information, prior to Council’s receipt of any further information from the permit applicant, yet still with a new lapse date. Remedy We submit that the regulations make clear that Council can make only one further information request (subject to any additional information required arising directly from the submission of further information via the initial request).

10. RFI Allsorts

It is our experience that requests for further information for similar applications with the same planning controls (ie zones and overlays) result in a huge variety of information being requested across different Councils. The impact on the applicant is that it is absolutely impossible to be sure you have supplied all the information that Council ‘might’ request. In our experience a lot of these requests from Council are attempts to manipulate the statutory clock and increase the gross time they have to meet their PPARs targets. Remedy Ideally, more instruction should be provided to Council governing the ambit of what information can be sought. Uniformity across the state on this issue will greatly enhance productivity and consistency of decision making.

11. Short Lapse Date Timeframes

Councils rarely provide more than 30 days to provide request for further information responses pursuant to Section 54 of the Planning and Environment Act 1987, including complex applications which require third party reports and other multi-disciplinary input. Some Councils refuse to allow additional extensions beyond the initial 30 days. This timeframe is considered too short. Remedy A minimum of 60 days should be provided to supply a response to Council’s request for further information. This would reduce time and paperwork of applying and granting extensions, and if made within time does not penalise or disadvantage Council.

12. Prejudging Requests

Some Councils write to applicants informing them that they will give only one extension to a lapse date. Appendix E contains an example of such correspondence from Whitehorse Council. This practice appears to pre-judge the merits of any request to extend the lapse date for a request for further information and appears to be an attempt to intimidate applicants. Remedy Provide an additional Form within the regulations that stipulates the format and content of a Section 54 request for further information.

13. Referral Backlogs

For Council decisions on applications that are required to be referred to a referral authority, we are finding the time frames stretching out unreasonably. For example, the CFA backlog means applications take far longer where the CFA is a referral authority (or even an “affected party”). Councils are very reluctant to make a decision without the advice, however late. In practice, Councils will not ignore a referral authority being later than 28 days with advice. Remedy The Regulations should clearly state that if a referral authority does not respond to Council withinin 28 days from the date the referral is received the Authority is accepted to not object to the proposal and a decision must be made.

Regulation 25/34A

14. Sec 82 Appeal Timeframe

The Notice of Decision time frame, particularly with the recent changes to the VCAT processes, can be made more clear. Prior to the recent changes to VCAT’s processes, 21 days after the responsible authority gave notice often became 25-26 days total and there was uncertainty about what the “cutoff date” was. Councils appear to be uncertain about how to calculate these dates now that the VCAT processes have changed and that it is now the responsibility of Councils to calculate the end date for objector appeals. Remedy The end date for appeals to be lodged (received by the Tribunal) by objectors (Section 82) should be specified in the Notice of Decision or at least in the cover letter from Council with the Notice of Decision. The same principle can apply for Regulation 34A (referral authority review under Section 82AAA). This additional information could be added to all relevant Forms.

Regulation 27/Schedule 1 Form 7

15. Grounds for Decisions

Grounds of Refusal by Council are often very general, making it difficult for applicants to really understand Council’s concerns. Ideally any refusal to grant a permit should include specific Clauses within the Planning Scheme upon which the Responsible Authority has relied to formulate their position. Remedy Instructions to Council on this matter could be added to all relevant Forms

Regulation 30

16. Perhaps the Largest Waste of Time in the Current System

The ability to appeal unreasonable requests for further information via Section 78 of the Planning and Environment Act 1987 is significantly restricted by the VCAT application fees (which may outweigh the cost of obtaining the information) and additional time delays Remedy As discussed above additional guidance should be given to Council by the way of a new Form that stipulates the format and content of a Section 54 request for further information. Although beyond the scope of this (regulatory) review – work should be undertaken to significantly reduce the cost and time associated with reviewing unreasonable, expensive and time wasting Section 54 further information requests.

Regulation 31

17. How Long the Tick Tock

There still appears to be confusion among Councils regarding the calculation of the 60 day time frame. Remedy It may be helpful to include a Form similar to the VCAT “Calculation of elapsed days in failure applications” table within the regulations.

Regulation 33(2)

18. Lapse Dates Rigid and Costly

We support the concept of lapse dates to ensure applications keep moving through the process, however the rigidity with which they are currently applied is unreasonable. For example, an applicant that submits further-information on time may have their application lapsed if something in Council’s Section 54 request is overlooked or if the responsible authority is not satisfied that the information has been satisfactorily supplied. Remedy Alter Regulation 33(2) to allow an application for review to be lodged pursuant to Section 81(2) within 21 days of Council providing written notice that an application has lapsed.

Other Issues of Note

19. Inconsistent Fees

The cost of notice under Section 52 of the Planning and Environment Act 1987 results in a wide variety of costs between Councils. We submit that the regulations provide for a consistent cost structure across Victoria, which may be stipulated in the Planning and Environment (Fees) Further Interim Regulations 2013. For example, a recent application for a second dwelling on a lot within the City of Port Phillip resulted in a request for notice fees to Council in excess of $2700 (subsequently negotiated down to $2000), where 267 affected parties were sent letters by Council. An application with the same number of affected parties at the City of Stonnington (based on the Stonnington advertising fees (non-statutory) at the time of writing) would be $1551 plus GST, Hume $4085 inclusive of GST or Maribyrnong $846 inclusive of GST.

20. Section 173 Pro forma

In addition to comment made above relating to new and amended Forms, a pro forma Section 173 agreement could be included within the regulations to avoid legal cost with preparation and review of such documents. We note that some Council’s currently provide a proforma for some commonly used Section 173 agreements (e.g. Boroondara in relation to the Car Parking overlay).

21. Council Incentive

It is our position that the Regulations direct the “responsibility” of any review process back to the applicant. If Council cannot meet their time frame obligations it is the applicant that bears the risk, cost and delay of either waiting or appealing that breach. We understand that permit approvals benefit the permit applicant. However, the penalties on the applicant for not complying with timeframes are significant. Council’s penalty is far less. At $805.10, VCAT application for review fees for even small matters, creates a significant disincentive to challenge unreasonable common Council practices. In a number of cases we feel Councils are happy to extend time frames knowing that permit applicants cannot afford the time or expense of VCAT. On this basis, it is our position that the time frames in the Regulations need to provide a greater incentive, or disincentive, for Councils to comply with them.

22. Jingle Bells & Public Notification

Almost all municipal council’s implement policies that change the public notification requirements over the Christmas period. Some Council’s implement block-out periods, others require longer notification periods than the specified 14 days. The dates, timeframes and structure of these requirements vary significantly from municipality to municipality and in many instances substantially disadvantage the permit applicant. We note that such ‘Christmas Notification Changes’ are not authourised by the P&E Act or associated Regulations. It is our submission that the regulation should make it clear that such deviations from the legislative notification requirements are prohibited. Alternatively, if it is deemed that the Christmas period warrants special notification requirements that such requirements be regulated and made consistent across Victoria.

Closing

The examples used in the appendicles accompanying this submission are indicative of issues regularly faced by permit applicants working in some Victorian municipal Councils. Should you have any queries in regards to the above submission please do not hesitate to contact our office.

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 enquiries@clause1.com.au for assistance.

Clause1 Pty Ltd
Phone: 03 9370 9599
Fax: 03 9370 9499
Email: enquiries@clause1.com.au
Web: www.clause1.com.au

Planning & Environment Regulations Review (Sept 2014)