The Victorian Planning regime is regularly criticised for its increasing complexity and the inordinate amount of time and cost it takes to acquire a decision in planning matters. The issues of time and cost are unequivocally the greatest hurdles facing planning permit applicant’s.
Our recent experience in a number of planning permit applications have highlighted what we perceive to be a major flaw in the system. Specifically we speak of a perceived increase in the lack of willingness or ability of decision makers (Council and VCAT) to provide ‘useful guidance’ to permit applicant’s.
At the Council level, this lack of willingness will often materialise at pre-application meetings or in discussions relating to issues raised at RFI (request for further information) stage, when the Council officer says things such as:
“We can’t provide you with any advice you’ll have to lodge the application and then we will assess it” or,
“Council will refuse the existing proposal because the side setbacks are inadequate but, it’s not Council’s job to design your proposal – you can make some changes and come back to us and we will be happy to take another look.”
At this stage the applicant can take the time to rework their proposal and resubmit to Council only to be told the changes haven’t gone far enough and to either rework the proposal again or face refusal.
Most Council Officers would suggest that it is their responsibility to ‘assess the proposal before them’ and not their responsibility to provide advice on suitable setbacks or other design elements.
It appears to us that a system that requires the interpretation of performance based assessment criteria (as ResCode does) and provides almost unlimited discretion to the decision maker to vary from the Standards contained in ResCode will unequivocally result in different outcomes from one decision maker to another. This variance in interpretation is most dramatically illustrated when at the 11th hour a new Council planner is assigned to your application and raises a dozen new issues not previously considered as concerns or a matter that is outright refused at Council level is approved, as proposed, at VCAT.
We wonder how much time would be saved if Council would simply state the setback (or other design characteristic) that would be approvable, under their interpretation of the Scheme, in a given circumstance rather than avoiding such advice. We often ask this type of question of Council Officers, in an attempt to clarify the impact of attempting to garnish Council’s approval. We do not consider this an attempt to have Council ‘design’ the proposal. Rather it is an attempt to better understand Council’s position in order to ensure our client’s are fully informed of what will be required of them by Council so they can make informed decisions about their applications and other alternatives.
We note that a number of Council’s have specific policies that prohibit their planners from providing such advice whilst offer are more liberal. We applauded those willing to provide this timesaving valuable service.
Interestingly a recent editorial piece in the Victorian Planning Reports (2011 VPR 40, pp249) looks at a similar issues at the VCAT level. Specifically the VPR article asks where have the interim decisions gone?
An interim decision is a decision whereby leave is granted by the Tribunal to the permit applicant to make alterations to a proposal and re-circulate those changes for further assessment. In Vello v Yarra CC [2009] VCAT 2234 Tribunal noted:
…This course of action is not routinely followed by the Tribunal. It is in fact a method which is used sparingly and usually only in circumstances where the Tribunal has concluded that the site is suitable for the proposed use or development, but that changes of some substance are required to achieve an acceptable outcome. The opportunity to prepare amended plans is something of a privilege because it enables the applicant to avoid starting the planning permit process all over again in circumstances where the Tribunal has concluded that the proposal is not acceptable in its present form.” [10]
The Victorian Planning Reports article notes:
Your editors have detected a trend away from interim decisions. The prevalence of interim decisions are not specifically reported in the annual VCAT statistics for the Planning and Environment List but we undertook an Austlii search using the following search ‘interim decision’ AND ‘year’ (eg 2006). The exercise was admittedly somewhat crude, but the results of the search were of interest. The following is a breakdown of the search results for 2006-2011:
- 2006 – 217
- 2007 – 169
- 2008- 162
- 2009- 132
- 2010 – 78
- 2011 – 24 to 13 May 2011. Annualised this would equate to 66.
If these search results reflect what has actually occurred, there was a dramatic drop in interim decisions during 2010 that is continuing this year. If this trend is actually occurring, your editors do wonder what occurred during 2010 to create the trend.
Most applications that end up before the Tribunal take a least a year to get to that stage of the process. So, the consequences of a refusal for permit applicants who need to start the process afresh generally equates to about a year. In the context of a planning system that is frequently criticised for being costly and lengthy, perhaps it is worth asking whether the prevalence of interim decisions should increase rather than decrease. The benefits of such an approach, as outlined in the decisions above include:
- Expedition of the implementation of planning objectives if proposals are ‘fixable’
- Provision of a mechanism for natural justice to be afforded by allowing all parties sufficient time to review amended proposals and to be heard as appropriate
- Reduction in the expenditure of resources associated with multiple appeals on development sites – both in terms of the resources of the parties, but more importantly, the resources of the Tribunal
- Reduction in the expenditure of the resources of Council’s associated with the assessment of multiple permit applications on development sites.
We wonder if the fascination with reporting the speed of decisions at VCAT is contributing to this decline in guidance, by way of interim decisions, from the Tribunal?
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