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.
TIP – It is important to distinguish councils ‘information requests’ from ‘issues’. An example of information might be the location of habitable windows on the next door property. An issue might be the impacts of visual bulk when viewed from these windows. Applicants must address the information requirements only for the clock to commence or resume.
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.