VCAT Will Make Council Pay Your Fees

Regular readers will recall that in December 2014 we reported on the newly introduced Section 115CA of the VCAT Act.

Section 115CA provides that the VCAT application fee for a permit applicant’s appeal (lodged after September 10, 2014) against ‘failure-to-determine’ within the 60 day statutory timeframe is required to be reimbursed by Council, at the discretion of the Tribunal, unless the council can satisfy the Tribunal that no such order should be made having regard to:

  • the nature and complexity of the permit application; and
  • the conduct of the applicant in relation to the permit application; and
  • any other matter beyond the reasonable control of the responsible authority.

In a recent VCAT Decision, Tiber Amber Pty Ltd v Stonnington CC (30 June 2015), the Tribunal was required to deliberate on whether there was adequate justification for the failure to grant a permit, within 60 days, based on the three tests outlined above.

The permit applicant was seeking to develop the land with five double storey dwellings above a basement carpark.

Stonnington City Council submitted amongst the reasons for their slow processing time that:

  • The application was a complex one with numerous sensitive interfaces;
  • A significant amount of vegetation was required to be assessed;
  • A large number of internal referrals were required;
  • The assessing officer only works part time;
  • The officer was on leave for 3 weeks;
  • The officer handling the application changed during the application  process;
  • The matter was required to be reported at a Council meeting, due to receiving seven objections, and that such a process required a lead-time of approximately 3 weeks;
  • Councilors take a break over Christmas and no meeting was available;
  • The applicant failed to take onboard Council’s advice and did not alter the proposal to address concerns raised by Council earlier in the application process

Regular applicants will be familiar with all of the above excuses.

In considering Council’s submission against the three tests set out above the Tribunal found:

  1. I am not persuaded by the Council’s submission that this matter is a complex one. The proposal comprises five dwellings above a basement car park, in a relatively standard residential setting. The design is not that exceptional or different to many which I would expect Stonnington City Council to handle on a daily basis. The proposal is not of a scale where views of the built form needed to be considered from any locations further away than the immediate context. Further, the review site is not affected by any overlays, and no referral authorities exist in relation to this proposal. Compared to the very large and complex proposals that Stonnington Council deal with in other parts of its municipality, this proposal is relatively modest and straight-forward.
  1. Likewise I do not consider the nature of the staffing arrangements within Council identified in this proceeding to be a relevant matter. Councils regularly need to deal with part time workers, and staff on leave, particularly in an inner city Council with a relatively large workforce. Where such matters delay the processing of planning permit applications in a timely manner, these are insufficient grounds to avoid the reimbursement of fees in a proceeding of this nature.
  1. Finally, I do not consider the failure or refusal of the Applicant to amend the proposal early in the process in response to Council’s stated concerns to be a justifiable reason for the Council’s failure to process the Application in the prescribed time. In the event that Council holds dear to those concerns, the failure or refusal of an Applicant to respond at all, or respond adequately, would normally result in a decision to refuse to grant a permit.

In ordering Council to reimburse the VCAT lodgment fee the Tribunal identified that the 33 days it took (post receipt of RFI material) for Council to give instructions regarding public notice (advertising) was a key issue.

This decision reinforces the assumption contained in Sec 115CA that applicants lodging failure-to-determine appeals are generally entitled to the reimbursement of the lodgment fee unless Council can justify the delay. Furthermore it clearly states that Council’s staffing, internal referrals, level of delegation and other internal processing issues are not appropriate justification for such delays.

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