Today VCAT have announced 4 new initiatives to reduce wait times and resolve cases quicker. This is welcome news for the industry and planning permit applicants.

The initiatives are:

• Increasing compulsory conferences (formal mediations) from 35 to 50 per week.
• Major cases will have a target timeframe of 8 weeks from application to Compulsory Conference, and 16 weeks from application to hearing.
• Single day standard cases will have a target timeframe of 12 weeks from application to Compulsory Conference, and 24 weeks from application to hearing.
• Multi-day standard cases will have a target timeframe of 16 weeks from application to Compulsory Conference, and 28 weeks from application to hearing.

These initiatives are effective from 2nd September 2024.

The tribunal will also allow applicants with dates confirmed for cases pending to request an advancement of the dates based on these new timelines if all parties involved agree.

Reach out to our team if you are a permit applicant with a matter listed for a hearing or compulsory conference and would like to bring the date forward based on the announcements made today.

This week the state government have released their ‘Activity Centers’ Plan for public consultation. The plan sees the designation of ten centers across suburban Melbourne where planning controls will be changed to facilitate a greater intensity of development. The aim of the activity centers plan is to deliver more homes and services in places people want to live.

Each centre will have its own set of guidelines for outcomes related to heights, setbacks, solar access and others. The overarching aim of the guidelines will be to increase density and development in a controlled and transparent way.  

The guidelines that have been released for comment are Broadmeadows, Camberwell, Chadstone, Epping, Frankston, Moorabbin, Niddrie/North Essendon, Preston and Ringwood, visible at this link.  

Public consultation on the plans is scheduled to run until 29/09/24. Following this the plans will be finalised and presented to the Minster for Planning for a decision on their formal introduction to planning schemes in December 2024.

The Activity Centre plans would effectively supersede any local council planning frameworks for these locations. We expect this will create political tension between the state government and local council so we will wait and see if these ambitious plans are approved by the Minister to be introduced to planning schemes.    

Permit applicants appeal rights are triggered if council take longer than 60 statutory days to approve an application. However, this trigger only provides applicants appeal rights to VCAT that would replace council as the decision maker with a planning tribunal.

Should there be more jeopardy for councils for the time taken to process applications?  

Applicants still must wait for a hearing and pay further application fees to exercise this option. However, the VCAT act specifies that council must reimburse the applicants fees (not total costs) of lodging the appeal unless there are circumstances that would make this unreasonable.

Nonetheless, It is only attractive where you have a high degree of certainty that council will refuse the application.

It is likely quicker and cheaper to wait for council when you are confident they will support the application.

To compound this there are a high number of events that can reset the 60 day timeframe to restart at 0 days explained below.

When does the clock start?

The combined actions of payment of the application fee and lodgment of a completed application form mark day 1 of the 60 day timeframe.

What happens the clock when council request information?  

When the council issue a formal letter requesting further information within 28 calendar days of the application being lodged then the clock stops on this day and resets to 0 days.

If council issue this formal letter request after 28 calendar days of the application being lodged then the clock does not stop, does not pause and does not reset to 0 days.  

What happens after the applicant lodges the information?

Where council requested the information within the first 28 calendar days – The clock will restart at day 1 on the date the applicant lodges the information.

Where the request was outside 28 days – the clock continues to tick from the date of lodgment of the application.

What about defective responses?

Where council requested the information within the first 28 calendar days – The clock will only restart at Day 1 when council confirm the response addresses their request.

What if council request new information items after the first response by the applicant?

If the new request items are made within the first 28 calendar days of the application lodgment then the clock stops, resets to 0 and restarts on receipt of the applicants response.

If the new items are requested outside the 28 day window, the clock continues to tick from the date the applicant lodged the response to the first request for information (presuming the first request was made within the 28 day window).

What happens during Public Notice or Advertising?

The clock stops, pauses on the date the council begins notice. It restarts but does not reset at the conclusion of the notice period. The notice period is typically 14 days but can be longer in specific circumstances such as during the Christmas holiday period.

What happens if the applicant decides to make changes to the proposal?

This event will stop and reset the clock to 0 days no matter when it occurs. The clock restarts on day 1 on lodgment of the formal amendment by the applicant and payment of the council fee (if applicable).    

The ‘out of time’ appeals process is a mechanism to encourage prompt decision making. It is commonly used by applicants where there are low prospects of council support for a proposal but rarely used if council approval is likely to be received.  

Planning permit applicants are often required to respond to objectors concerns and sometimes compromise with objectors to achieve their planning approval. A supreme court decision described in this article affirms that some things are between the applicant and the Council only. VCAT cannot even consider, much less overrule councils decision to approve where there are no third-party appeal rights.

It is commonplace for objector lead appeals at VCAT to lodge a broad number of grounds as the basis of an appeal where the council issue a notice of decision to grant a permit. This can be described as ‘seeing what sticks’.

However, an objector led appeal can only rely on grounds related to permit triggers where notice and review rights apply.

A 2022 VCAT decision in Grampians Shire reinforced this position and confirmed that the tribunal does not have the power to direct a permit on all permit triggers if any of the permit triggers are exempt from notice and review rights.

The case was for group accommodation, an ‘omnibus permit’, where a permit was triggered under multiple provisions of the planning scheme. Council issued a Notice of decision to grant the permit and third-party objectors lodged an appeal of that decision.   

While the permit triggers under the zone were subject to appeal rights, there was a trigger under a Design and Development Overlay (DDO) that was exempt from those rights. The tribunal did have the power to set the decision of the council aside under the triggers that were subject to third party appeal rights but it had no power to set the decision of the council to approve the proposal under the DDO aside. On this basis, the tribunal did not assess the proposal against the requirements of the DDO as part of the appeal. 

Objectors argued at the Supreme Court that the tribunal erred in this approach and that it was contrary to the principles of ‘integrated decision making’.

The supreme court dismissed the objectors argument finding that the approach was ‘not inconsistent with integrated decision making’.

The decision reinforced the idea that some aspects of a planning application are between the permit applicant and the council only and are not subject to a review.

The takeaway for permit applicants going to VCAT is to review the grounds of appeal against the planning scheme to confirm review rights apply. If they do not, then permit applicants can seek to have the appeal struck out or, at least, reduce the number of grounds being relied on by objectors.

For objectors, it is important to ensure the grounds they rely on to make their appeal are relevant to the clauses of the scheme where review rights apply.   

The original decision of VCAT on the planning merits is available at this link.

The supreme court decision that affirmed the approach applied by the tribunal was correct is available at this link.  

We are delighted to share the news that Wendy Cui has been promoted to the role of Senior Associate.

Wendy joined us as a very technically knowledgeable, astute town planner and over the last 12 months she has combined this technical ability with developing negotiation and stakeholder management skills to secure excellent outcomes for our clients on a combination of difficult applications. She will continue this role as a senior planner within our team and take an active role in VCAT cases also. We look forward to celebrating her victories on behalf of our clients for the rest of 2024 and beyond.

The appearance of expert witness’ in town planning appeals is common practice. All parties can call experts they believe are pertinent to their case and all the other parties in the matter have the right to cross examine the witness. This article will explain the role of witness, set out the pros and cons of engaging them, debunk some common perceptions and describe the circumstances under which you might consider engaging one.

The role of an expert witness?

It is to inform the tribunal. Specifically on an area of technical knowledge that the witness has demonstrated professional expertise in. The witness will provide an opinion based on a combination of their professional expertise and the instructions they receive from the advocate running the appeal. The tribunal can then decide how much weight to place on the evidence in forming their decision.

Do they act in their clients’ interests?

There is a stark distinction between an advocate and an expert witness in planning appeal at VCAT. It is the role of the advocate to represent their clients interests. It is true to say that the opinions and interests of the client align if a witness has been engaged to appear in a hearing. However, expert witness’ must base their opinion on a professional assessment only. This includes opinions that may not wholly align with their own clients interests.

What are the most common expert witness’ that appear in planning hearings?

Professional experts on traffic impacts, landscape architecture, arborists, town planning and urban design are amongst the most frequently used experts at VCAT. Other experts we have engaged in the past include professional risk assessors for threats to human life and civil engineers.

The most common circumstance under which an expert witness appears is when there is disagreement between decision makers and permit applicants about whether a proposal presents an acceptable outcome. For example, local councils frequently refuse applications seeking a dispensation of car parking. If an applicant elects to appeal this decision then they would likely appoint an experienced traffic engineer to present expert evidence during a hearing that supports their proposed dispensation based on the specifics of the site or proposal. Some of the features that would influence the opinion of the professional engineer might include the availability of public transport, or the availability of public street car parking. The engineer would then prepare an expert witness statement, also known as their evidence in chief, that outlines their opinion, the rationale and the information relied on to inform that opinion.

What are the pros of engaging a witness?

• The tribunal will typically give more weight to the opinions of an expert than the submissions of an advocate.
• They provide invaluable support for your advocate running the case.
• They can inform the tribunal on technical information that may be beyond the scope of knowledge of the individual tribunal member.

What are the cons?

• Their professional opinions may not align with the clients’ interests.
• Expert witness statements are circulated 10 business days before a hearing giving other parties time to prepare cross examination questions that must be answered during a hearing and ‘on the spot’.
• The tribunal is not obliged to agree or accept the opinions of expert witness

The use of expert witness is common for legal practitioners such as barristers acting as advocates in planning appeals. They are also common for larger or publicly contentions developments. The decision on whether or not to engage an expert witness is case specific and depends on the matters in dispute. The previous example of a traffic engineer is an obvious example of a situation where a client should always appoint an expert witness. Other common examples are where there is a disagreement about the extent of landscaping opportunities (landscape design witness) or a proposal is inconsistent with neighbourhood character (urban design or planning witness).

Landowners burdened by a restrictive covenant often want to remove it to maximise the potential of their land. This article describes the process, risks and includes two case studies of successful applications as well as tips you can follow to achieve a successful outcome.

A successful application can unlock the development potential of a site in a relatively inexpensive way. However, the process of removing a restrictive covenant via a planning permit is best described as risky. Not all proposals carry the same level of risk of failure, but usually covenant related applications carry a higher level of risk than standard planning applications.

The reason these applications are described as risky is because of the role of covenant beneficiaries. These are the property owners that enjoy the benefit of the covenant. These parties are identified on the title documents when the covenant is created and can object to any proposed removal of the covenant. Objections by these parties are held in higher regard than normal objectors because of the additional rights afforded to beneficiaries under the 1987 Planning and Environment Act. These additional rights typically result in council refusing the application to vary the covenant if any of the beneficiaries object.

Before exploring the pros and cons of making an application, some background information:

What is a covenant?

It is a legal contract of agreement created by a landowner that establishes a restriction prohibiting or allowing specific actions to be taken on a site. Once the restriction is created it runs in perpetuity with the land unless it is formally removed or has a specific date of expiry also known as a sunset clause.

Why are they created?

They are created at the discretion of current landowners to avoid specific outcomes on the land by future purchasers. In modern times the most common use of covenants or restrictions are land developers of new housing estates. The creators of these estates will typically have a design guide aimed at creating a homogenous estate. These guides specify minimum setbacks, heights, building finishes and the like that apply to all lots. The purchasers of the new lots are bound to the design guide via a restriction or covenant.

What are the most common types of covenants?

Single dwelling covenants are commonplace, along with covenants specifying building materials, front fences heights or other specific outcomes. There are also covenants related to restricting specific use and development outcomes such as quarrying or excavation on a site.

How can you remove a covenant from your land?

A covenant can be removed from a deed of title by an order of the supreme court or a council issued planning permit. We will be focusing on the planning permit process for the purposes of this article.

Why are covenants difficult to remove?

They are considered legal contracts and were created by the original landowner to run in perpetuity with the land. Despite the fact some covenants are old and often seem superfluous, they remain legally binding agreements and hence there is a considerably high bar to their removal or variation.

Two case studies of successful approvals

A successful approval looks like a standard planning permit with few conditions attached per the image below we achieved from Glen Eira Council in 2024:

This case was a variation to a covenant created in 1955 that specified only brick construction was permitted in the upper levels of development. This is a prohibitively expensive method of construction and we sought to remove the requirement. Despite there being more than 250 beneficiaries, no objections to the proposal were received and the application was approved. Further on, we set out the tips in this article of how we set this application up for success.

This second case study was a single dwelling covenant removal in the City of Hume issued in 2017.

The photographs below show the site before and after dual occupancy and subdivision.

The pros and the cons of the permit process

As mentioned in the opening section, the main benefit of making an application to vary a covenant is the development potential it unlocks. This can be as major as creating an opportunity to develop multiple units on a site or as minor as changing the allowable finished building materials of a development.

Another major benefit of making an application for a council permit is that it is inexpensive compared to engaging in the supreme court process. You also have the added benefit of reserving the right to apply through the courts if you fail through the council planning permit process.

The largest downside of making an application is the likelihood of objections by the beneficiaries, which in turn will lead to a failure of the application. Receipt of objections is out of our control as the applicant. You can negotiate with beneficiaries to withdraw their objections but the success of these negotiations varies greatly depending on the perspective of the objecting beneficiaries.

As another downside, the court option provides more certainty (not guaranteed) of success than the planning permit process. The court enjoys a greater level of discretion than the local council to determine if the covenant can be varied based on legal tests.

Tips for success

• Applications to remove a covenant entirely are more like to fail than applications to vary a covenant. Look for changes to the wording of the covenant that would allow you to complete the development you want while retaining an altered version of the covenant on the site.
• The application is more likely to be successful if it is tied to a specific outcome. It is best to lodge plans depicting the future development on the land as the basis for your application to make changes to the covenant. This creates greater peace of mind for beneficiaries than a proposal that seeks to change the covenant without providing reasons or a rationale.
• Identify the number of beneficiaries of the covenant as early as possible. The higher the number of beneficiaries, the more likely objections from one or more will be received and the less likely a successful outcome will follow.

For more information on how to identify covenant beneficiaries please contact our office for a discussion with a professional town planner.

Planner Allocation.

Within 1 – 2 weeks of lodging your application, it will be allocated internally to a town planner who becomes your point of contact. You will usually receive a letter or email from council advising you of their contact details. Allocations will depend on a combination of the complexity of the application and resources available within council.

Request for Further Information.

Your allocated council planner will request any information they require to complete their assessment within 28 days of your application being lodged. This request will typically be on a formal council letterhead and it may also identify any concerns your planner has with the proposal. Your response to this letter should provide the information and resolve the concerns.

Referrals.

The application will be referred internally to council departments such as traffic engineers or arborists for specialist comments. Internal referrals will only be done to departments relevant to the application assessment. External referrals to stakeholder agencies such as the EPA will also occur at this stage if there is a trigger for a referral. Any concerns from these departments may need to be resolved for approval to issue. There maybe no referrals required for simple development applications. Internal

Advertising.

The application will undergo a 14 day advertising period where members of the public can make submissions or objections to the proposal that are considered by council in the decision making process. Some minor applications are exempt from this step.

Decision.

Your allocated planner will complete a report and issue a decision. A part of the decision documents will include information about how appeals against the decision can be lodged at VCAT. The elected councillors can ‘call in‘ an application, essentially retracts the delegation and reinstates the councillors as the decision maker instead of the planning department. In this scenario the vote of the councillors forms the decision.

Councils three step approach is to – Avoid, Minimise, Offset.

Councils default position on tree removal is to avoid it if possible, minimise it if required and offset any vegetation loss with replanting within the site as part of a landscape plan, typically at a ratio of 2:1 for each tree removed.

Trees have a defined ‘retention value‘ of high, medium or low. The retention value is determined by a consulting arborist. The lower the retention value of the tree, the more likely its removal will be supported.

What is an arborists role?

A credible arborists report will allow you to proactively predict whether council will support the tree removal. There needs to be compelling reasons for council to support the removal of high retention value trees. Circumstances where council might support the removal of high retention value trees include if it is centrally located on the site and retention is not possible as part of a development on the site.

Even low retention trees require offsets.

Expect Council to require replanting at a ratio of 2:1 for each tree removed on the site. This will likely form a condition of approval for the development. Trees with a low retention value will typically need to be replaced by a higher value tree. It is also typical for council to require a dedicated landscape plan by a professional landscape architect to nominate the location and species of the offset replanting.

Trees that are identified as weeds are not subject to replanting offsets.

Is approval or offsets required to remove shrubs, grass or garden beds?

Typically only trees with a trunk diameter greater than 150mm are considered ‘trees’ for the purposes of a planning application. Garden beds, shrubs and lawns are not subject to offset replanting requirements. A land survey that correctly distinguishes trees from shrubs and grasses, that is consistent with the consulting arborists report can avoid unnecessary downtime answering follow up queries from council.

Every Council prefer to retain ‘high retention value’ trees as part of a development. Contact our team for a preliminary, obligation free discussion if you need to remove any site trees your consulting arborist has classed as high retention.

What is a Compulsory Conference?

A formal mediation chaired by a VCAT member. The purpose of the conference is to bring parties together to collaborate and reach mutual agreement for a planning permit to be issued. The parties involved are the local council, the planning permit applicant and any objector parties that have lodged grounds of appeal with VCAT.

What is the format?

They are typically scheduled to last one day or a half day at VCAT or online via zoom. All parties will be in the same room at the beginning of the conference. All will be given the opportunity to make an opening statement and the chairperson will then facilitate open discussion between the parties so all parties outline the outcome they are seeking. The chairperson will then typically separate parties into different rooms and move between the rooms to provide advice aimed at brokering a settlement.

Are parties oblige to settle?

All parties are obliged to attend the conference but no one is oblige to settle or even actively partake in the conference.

What happens at the conclusion of the conference?

If agreement has been reached between all parties then the case will effectively conclude at the end of the conference and the tribunal will order that an approved planning permit will issue. The new permit will likely include updated conditions reflective of the terms agreed in the conference.

If agreement has not been reached then the case will proceed to a full hearing where each party will have the opportunity to present their case and the tribunals role changes from facilitator to decision maker.      

A combination of these four actions will set up you up for a successful conference.

Prepare terms in advance.

A compulsory conference is a negotiation, like every negotiation both sides will have to make some compromises for it to be successful. Conferences are more likely to be successful if you proactively prepare the compromises you are willing to make in return for the outcome you are seeking. By proactively preparing you can retain more control on the direction of the conference.

Make the opening offer

As a general rule of thumb in negotiations, the party that makes the opening offer usually sets the expectations of the parties and steers the negotiations to an outcome more favorable to their interests. For example, if you know car parking supply is the central objection for the other parties then you might proactively offer to increase the car parks by 1 – 5 spaces at the beginning of the conference and before the other side has a chance to air their requests. Making the opening offer can be very conducive to eliciting a favorable approach from the other parties.  

The decision to make the opening offer can vary depending on the circumstances of the conference. It may not be in your interests to make the opening offer if you are a permit applicant that has received council support so think carefully about whether you should make the opening offer.   

Be prescriptive in your requests.

The number one reason compulsory conferences are unsuccessful is because parties do not know what they want. Be specific and make tangible requests. Make it clear if you are requesting the other side to settle the matter if you agree to a concession they request. Most compulsory conferences fail because sides do not know what they want and make general, nonspecific requests during the conference.  

Practice Reciprocity

If the other party make a tangible offer, either accept or make a counteroffer. Do not flatly refuse an offer or request without making a counteroffer. For example, you might not be agreeable with objector’s request for a reduction in height but you could offer to increase a side or rear setback. This approach ensures the dialogue remains open and is conducive to an agreement being reached.