This large French provincial design in Glen Waverley consisting of a basement cellar and four bedrooms per dwelling was refused planning permission By Monash Council but successfully appealed and overturned by CS at VCAT in October 2018. Council’s main issue with the development related to the size of the dwellings being markedly larger to the direct neighbours and the homes in the street. It is common place for council to reject applications consisting of more than one dwelling when the design is for larger style homes. This can be confusing for people when they see a number of ‘knockdown rebuild’ single dwellings in their street for homes that are bigger than what they want to build. The reason these knockdown rebuild homes are allowed to proceed is because you rarely require a planning permit from the local council to construct a single dwelling. Therefore council have no involvement or input into the design process of a single dwelling and that is how so many of them emerge in an area like Glen Waverley. When you are building two houses or more you automatically require a planning permit from the local council and they can force you to compromise on the design and sizes of your homes to get a permit. Council will often justify their requests for smaller homes on the basis that the emerging larger single homes you point to don’t require planning approval therefore you cannot rely on them. This is a flawed approach in assessing applications that is often reversed at VCAT. VCAT tend to have a much broader view of defining the neighbourhood character and do attach significance to an emerging character of a street created by single homes. In this case there was a strong presence of larger homes and even homes of a French provincial design and a Mansard roof. On the basis of this new and emerging context the tribunal ultimately agreed that the character of the neighbourhood was changing and the design was consistent with emerging homes.
What is VCAT?
VCAT is a tribunal that was set up by the government in 1998 to resolve legal matters without the need for the parties to go to court. Although it is a tribunal it works in a very similar way to a court. It is divided into five divisions and town planning appeals are heard under the Planning and Environment list of the administrative division. We specialise in cases under this list and unfortunately do not provide a service for the other types of VCAT appeals. Under the 1998 VCAT Act the tribunal have the authority to overrule any decision issued by a local council in relation to a planning permit application. This includes either a decision by council to refuse or approve a planning permit. VCAT do not issue planning permits themselves, rather the tribunal will order the council to reverse their decision in line with their orders that are made when a case is concluded.
How do I know if I have a case?
VCAT will review your proposal against the wording and development outcomes sought under the planning scheme. To have a case for VCAT it must be demonstrable that Council have incorrectly applied the planning scheme in the assessment of your application. If the tribunal agree with your case that council have erred in this assessment then you will be successful in your appeal.
When to lodge a VCAT appeal?
There are four situations or cases that can be made to the planning and environment list at VCAT. These are listed below:
- A planning permit applicant can apply to VCAT to overturn any refusal issued by Council under Section 77 of the Planning and Environment Act. These are the most common types of appeals under the planning list and make up the majority of cases lodged at VCAT.
- A planning permit applicant can apply to VCAT to make a decision on their planning permit application if the council do not make a decision within 60 days of receipt of the application. This type of appeal is lodged under Section 79 of the planning and environment act and when it is lodged by the permit applicant VCAT become the decision maker instead of Council. These appeals are typically lodged when permit applicants believe council will ultimately reject their application but are very slow on issuing a formal decision.
- A planning permit applicant has the ability to appeal any conditions council may have applied to their approved planning permit under section 80 of the Act. These appeals relate exclusively to the conditions on the approval only. These appeals do not allow the decision of council to approve the permit to be revisited by VCAT.
- An objector to a development who lodged a submission of opposition with Council during the public advertising period can appeal the decision by Council to approve the application under section 82 of the Act.
Time Limits for a VCAT appeal?
A permit applicant has 60 days from the date of the formal council decision to lodge an appeal under section 77 or 80 of the Act.
An appeal by a permit applicant under section 79 of the act can be lodged anytime after the council has surpassed 60 days to assess the application and issue a decision. The calculation of the 60 days is not a straight line calculation of days since the application was lodged. There are circumstances where the calculation of days resets to 0 days and council have an additional 60 days to make a decision. Further information about how to calculate the days is provided here.
An objector has 28 days from the date of the formal council decision to lodge an appeal under section 82 of the Act.
What are the steps of an appeal?
For permit applicants the first step of preparing an appeal is to appoint an expert to complete the required and correct VCAT application form and lodge this with VCAT. There are a number of documents that must be provided along with the completed application form including:
- A dated copy of the formal council decision;
- A copy of the planning permit application form lodged with the council;
- A copy of the plans the council decision was based upon;
- Any reports you lodged with the application to council or provided to council after the application was lodged;
- The required VCAT application fee.
At CS our experts prepare VCAT appeal applications on a daily basis for the Planning and Environment list so if you are a planning permit applicant considering an appeal do not hesitate to contact us.
VCAT will take approximately 2 – 3 weeks to process your application and register it on their internal system. In that period the case material and application form will be reviewed by a VCAT member who is an expert town planner or has a legal background. This member will then complete an ‘Initiating Order’ which outlines the dates of a hearing and other dates for procedural tasks to be completed before the hearing. Some of the orders will relate to information you must provide to the tribunal in advance of the hearing and some orders will relate to information Council must provide to VCAT prior to the hearing.
What happens at a hearing?
The majority of hearings relating to the planning and environment list at VCAT are held at 55 king street, Melbourne on the date(s) specified in the ‘Initiating Order’ mentioned previously. Appeals involving larger developments in excess of $10 million in construction costs will be heard over multiple days and usually involve more than one VCAT member. Appeals where construction costs are under $2 million will normally be concluded in one day and before one member. The member(s) is an expert in town planning, law or both disciplines and has the experience to decide whether the council decision was correct. A planning hearing is very similar to a court case where council present their case outlining why they made their decision first, any objectors present their case second and the permit applicant’s representative presents last. The parties can use photos, maps, plans or other material to make their case to the tribunal. Parties won’t interrupt each other when they are making submissions and the member may stop any party at any time to ask questions or clarify a point. The member can orally tell the parties their decision at the end of the hearing or they can reserve their decision to deliberate for a period of time and weigh up the parties cases. If a member reserves their decision they will very often visit the site before they issue a decision. In the majority of cases a member will reserve their decision at the conclusion of the hearing and the parties receive an email advising the member’s decision and outcome of the hearing within 6 weeks of the hearing. All parties receive the order at the same time via email. The member will also include a report outlining the rationale behind their decision.
What happens if I win the case?
The VCAT member will issue an order for council to reverse their decision. Council must comply with this order or lodge an appeal of VCAT’s decision to the Supreme Court of Australia on a point of law. Presuming council won’t appeal, they will issue a new decision in line with the VCAT order within 2 – 3 weeks of receiving the order.
What happens if I lose the case?
Permit applicants must begin the planning process again and can prepare new plans for a fresh application to council which will be assessed as a new proposal that is independent from the VCAT decision.
For objectors they can expect the development to be built in line with the plans approved by VCAT at the hearing.
For an overview of the formal process of lodging a VCAT appeal, please click learn more below, or enquire now with our team of specialists now to discuss your needs.
