VCAT Hearings – Planning Appeals
VCAT HEARINGS – HOW TO APPEAL A PLANNING PERMIT DECISION ISSUED BY A LOCAL COUNCIL
DEVELOPMENT MANAGER, MELBOURNE.
How we helped Alison’s team achieve a successful planning outcome through the VCAT process.
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 or require a town planning lawyer. Although it is a tribunal, it works in a very similar way to a court.
It is divided into five divisions and VCAT planning appeals are heard under the Planning and Environment list of the administrative division. We specialise in cases under this list.
Under the 1998 VCAT Act, the tribunal have the authority to overrule any planning permit decision issued by a local council. This includes either a decision by council to refuse or approve a planning permit.
The tribunal 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 development outcomes set out under the relevant planning scheme.
Any hearing at a VCAT planning appeal must demonstrate that the council have incorrectly applied the planning scheme in their assessment of a planning application. If the tribunal agree with your case that council have erred in this assessment, then you will be successful in your appeal.
The first step in assessing the strength of your case is to engage our expert town planning consultants to review the proposal against the planning scheme to objectively assess the strengths and weaknesses of the case.
When to lodge a VCAT appeal?
There are four situations or cases that can be lodged as a VCAT planning appeal. 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 a VCAT planning 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 or a town planning lawyer 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 town planning consultants prepare VCAT planning 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 a VCAT planning appeal are held at 55 king street, Melbourne or online via zoom 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. They may have previous experience as a town planning lawyer in legal planning disputes.
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. Parties are typically professionally represented by an advocate or a town planning lawyer.
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 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. A further appeal against any decision made by the tribunal can be lodged at the Supreme Court on a point of law by a town planning lawyer. The supreme court will only allow appeals on a point of law and not on the merits of the tribunals planning assessment.
For objectors they can expect the development to be built in line with the plans approved by VCAT at the hearing.
■ HOW DO I KNOW IF I CAN WIN AT VCAT?
This video outlines what you have to do to successfully appeal a planning decision to VCAT.
■ HOW DO VCAT DECIDE A CASE?
What do VCAT consider as part of a town planning appeal and how do they form a decision?
■ WHAT IS AN EXPERT WITNESS IN A PLANNING APPEAL
The role of an expert witness is not to serve their clients interests and they are not an advocate for their client.
OUR RECENT SUCCESSFUL VCAT APPEALS
WHAT OUR CLIENTS SAY
CS Town Planning represented us at a VCAT mediation hearing in regard to a neighbouring development. They patiently, competently and confidently prepared and steered us through the process, presented our case without the emotional involvement of those directly involved, and most definitely achieved the best possible outcome under the circumstances.PETER KOULI, FRED & ANGELIKA STOLL