VCAT APPEAL – How to appeal a planning permit decision issued by local council.

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.

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Capital Avenue

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.   

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Before
Capital Ave, Glen Waverley Capital Ave, Glen Waverley
AFTER
Capital Ave, Glen WaverleyCapital Ave, Glen Waverley
Petstock

Petstock have engaged the CS team to run planning applications for a number of their stores in Victoria. This particular site was an existing store that underwent an upgrade in 2013. The upgrade included substantially more signage than was previously on the site and this included installation of an electronic bill board at the front of the site which overhung the footpath. Boroondara Council were supportive of the application however Vicroads objected to the application based on the billboard sign. When a state authority such as Vicroads objects to an application it is a mandatory requirement that Council refuse the application. This is the case even if Council are supportive of the application. As Vicroads objected the Council duly refused the application and the CS team appealed the decision to VCAT in October 2012. The appeal was heard by one VCAT member on the 19th March 2013. Vicroads representative contended that the electronic billboard would distract drivers travelling along Burwood Highway. The applicants case was largely based around the fact that business signage and promotion signage of this nature was common place along this busy retail strip and that the sign presents no more of a distraction hazard in the street than the signs displayed by other business’. VCAT agreed with the applicants case presented by CS and order that the permit be issued in May 2013.

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AFTER
Petstock, Burwood highway
Mingay Close

This was a planning application consisting of ten town houses on a large corner site in Truganina. The application was lodged to Wyndham Council in February 2012. At the time the application was lodged Truganina was still a relatively new suburb, and ‘Mingay Close’ was only formally created in April 2009 and houses constructed in the street around this time. This meant an application to develop ten townhouses was perceived by Wyndham Council as being an overdevelopment of a quiet newly established suburban street. Council were clear that they wanted to see traditional single storey houses on the block on a land area of approximately 350 square metres. Our client identified a clear oversupply of these types of houses in the area and because he wanted to provide something different to the market place a VCAT appeal was lodged against Councils refusal of the application in May 2012. The VCAT hearing occurred on the 15th of January 2013 in front of one VCAT member. Council contented that the application was simply an overdevelopment in this newly established suburb and would be out of keeping with the suburban housing stock. The applicants case agreed with Councils observation that ten townhouses on this site would be different than other sites in the context but that diversity in housing type and character is important for all neighbourhoods. Our clients observation that ‘more of the same’ type of suburban housing would miss an opportunity provided by this large site. The VCAT member ultimately agreed with the applicants view of the development as presented by CS and ordered that Councils decision be reversed and a permit issued for the development in February 2013.       

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AFTER
Mingay Close, TruganinaMingay Close, Truganina
St Helena Road

This site was subject to two VCAT appeals. The first appeal was in March 2013 against Banyule Councils decision to refuse two additional houses on the property. The second appeal was in September 2015 against Councils decision to refuse an extension of time to the permit that was approved by VCAT in March 2013. Council refused the original development application due to the fact that one of the new houses was proposed in front of the existing house and they did not feel the front setback of the new house was appropriate. This argument was unsuccessful at VCAT as the new house was still setback well in excess of the 9 metre prescribed required front setback under rescode. VCAT found in favour of the applicant and ordered that the permit be issued. By mid 2015 the applicant had not started the development and applied to Council for an extension to the date of the permit. Banyule Council refused this application due to the fact the zoning of the site had changed from Residential 1 to the Neighbourhood Residential Zone since the permit was issued. Council stated that because the Neighbourhood Residential Zone had a mandatory two dwelling per site maximum it was not appropriate to extend a permit to allow three houses on the site. An appeal to VCAT was lodged against this decision and a hearing was held in September 2015. After examining aerial photographs during the hearing it became apparent that some large trees had been removed from the site since the permit was issued in March 2013. The removal of these trees was approved as part of the permit meaning the applicant had acted on their permit within the timeframe allowed and did not need an extension to their permit. The VCAT member agreed with the applicant’s case in this instance and issued an order specifying that the permit was still valid despite the change in zoning. 

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AFTER
St Helena Road, GreensboroughSt Helena Road, GreensboroughSt Helena Road, Greensborough
Wallace Avenue

This was an application to use a building in an industrial estate in Wyndham Council for the purposes of an after school children’s art centre. The application was lodged to Council in August 2015 but because the building was in excess of 300 square metres in size Council had concerns about the volume of cars visiting the business to conduct drop off and pick up of children. This concern was compounded when the application was advertised and received more than ten objections from neighbouring business related to car parking demand. The tenancy only had two allotted car parks in front of the building. Council were placing stringent conditions on our client to operate the business and the opening hours so we requested a refusal from Council with a view to getting a better outcome for our client from VCAT. Recognising there was an obvious car parking issue for business in the area CS engaged reputable traffic firm One Mile Grid to conduct traffic surveys for the site and make recommendations to the client regarding workable class times for the facility. In consultation with the client and One Mile Grid CS were able to present staggered class times and acceptable patron numbers to VCAT at a hearing in January 2017. VCAT reversed the decision of Council and ordered that a permit be issued to our client for the business in February 2018.

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AFTER
Wallace Avenue, Point Cook
Glen Park Road

In June 2015 we applied to Nillumbik Council to develop a second house on a large block of land in Eltham. Anyone who knows Nillumbik Council will be aware of their strident position on tree retention within sites as part of development. This was our main concern at the outset of the project as the site was semi-rural in character and surrounded in large native trees. However, our client had a different concern. He was convinced from the outset of the project that his neighbour would take them to VCAT even if Council supported the application. The reason he was convinced was because there was a long history of dispute between them and this planning application was going to present the next battle. The combative saga had been ongoing for a number of years and involved a wide ranging, yet typical neighbourly disputes such as fencing, noise complaints etc. The Council approved the planning application on the 9th October 2015 but as expected an appeal against this approval was lodged to VCAT by the neighbour. The development itself comfortably complied with the regulations as set out in the planning scheme and hence received Council support. Despite this any neighbour can still appeal the decision of Council without the need to provide any compelling evidence to support the grounds of their appeal. The case was heard by VCAT on the 28th April 2016 and the VCAT order upholding the Councils approval was issued on the 24th June 2016. Although a positive outcome, this unnecessary saga cost our client a full nine month delay in the commencement of his project. The development commenced construction in late 2016 and was completed in late 2017 as an owner builder project. Predictably our client wanted to know if there was any avenue to pursue costs associated with the delay and the appeal from his neighbour after the decision was issued by VCAT. The simple answer is no. It would require a very unique set of circumstances for VCAT to award costs against an objector appealing an approval decision by a local Council, despite the clear weakness in their case. The reason for this is because it would be seen as a deterrent to any future objector to a planning decision to appeal if the threat of costs being awarded against them looms. This could be perceived as being unjust towards objectors in the planning process and an advantage for developers.

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AFTER
Glen Park Road, ElthamGlen Park Road, ElthamGlen Park Road, ElthamGlen Park Road, Eltham