In August 2016 Monash Council planning department issued a refusal to the architect for this French provincial dual occupancy design. The area is characterised by single dwellings demonstrating French provincial features, however these single dwellings did not require a planning permit to be built. This development was for two dwellings and triggered the requirement for a planning permit to be approved by Council before a building permit be allowed to issue. Council had six reasons for refusing the application that largely centred on building bulk, neighbourhood character and a lack of landscaping opportunities within the development site. In September 2016 we were engaged to lodge an appeal against councils refusal on behalf of the landowner. One of the key reasons Monash refused the application was due to the introduction of a second driveway for the site for the front dwelling. Councils assessment was that two driveways resulted in excessive concrete within the front setback and would destroy the suburban front garden setting of the site. To address this concern CS worked with the architect to develop a permeable paving design response for the driveway. While this was not the same as a garden it did demonstrate the willingness of the landowner to work with council to balance their competing objectives. In the VCAT hearing we tabled a number of photographs of developments within the street that included large sections of concrete within their front setback. We argued that councils policies about garden settings must be balanced against what can be seen as a person walks along the street. To respond to councils issue about the building bulk we amended the design to fully comply with the requisite rescode standards and we pointed to the absence of any public objections from the neighbours to the development as demonstrative that the building bulk was not excessive. The VCAT member concurred that our changes to the plans made the development a good outcome and in May 2017 ordered that the council’s decision be overturned and a permit issued. Construction commenced on the project in 2018 and it was completed in late 2019. Click here to read the full VCAT decision on this case.
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.
