01.02.2019

Planning TidBits

Little bits that can make a big difference to your town planning outcomes

Lapse Date Change

As most readers will be aware, when Council requests further information in relation to your planning permit application, they will specify a lapse date by which time the information must be provided. If the information is not provided then the application will lapse. Council can only specify a lapse date if they make a request within 5 business days after receiving a VicSmart application or 28 days after receiving any other application. Applicants are able to request an extension to the time frame in writing. Recent cases before the Victorian Civil and Administrative Tribunal (the Tribunal) have considered when applications lapse, the provision of information by applicants and requests for extensions of time.

In Direct Planning v Moreland CC [2018] VCAT 1770 a planning permit applicant appealed Council’s decision to refuse to extend the lapse date on a request for further information (RFI).

Pursuant to Regulation 34(2) of the Planning and Environment Regulations 2015 (the Regulations) an appeal against Council’s refusal to extend the lapse date of a RFI must be made before the last of:

  • the lapse date specified in the RFI;
  • the new lapse date set out in any time extension;
  • if the permit applicant has made an application to the Tribunal under section 78(b) of the Act in respect of a requirement for more information and the Tribunal has confirmed or changed the requirement, the new lapse date determined by the Tribunal under section 85(3) of the Act.

In the above case, Council had set an RFI lapse date of 18 July 2018. Further information was hand delivered to the Council on 18 July 2018 including a letter with a paragraph seeking an extension, if required. That request is a common response provided with the return of the RFI as insurance, in case Council determines the information provided is not sufficient. However, because that request to extend the lapse date was made on the lapse date (18 July 2018) and not before the lapse date, it was not a valid request.

Council then advised that the information provided to Council was not to their satisfaction and because the request to extend the RFI lapse date was not provided before the lapse date, the application had lapsed.

The Tribunal agreed that the request to extend the lapse date was made too late. However, notwithstanding that Council thought the RFI response was deficient, the Tribunal found that because the applicant had provided further information on the lapse date, the application had not lapsed.

One conclusion which might be drawn from this Tribunal decision is
that even if the RFI response is ‘not complete’, providing it is made on time, the application does not lapse.

This conclusion appears to be in contrast to how most Councils have been implementing Section 54B of the Act that states:

(1) An application for a permit lapses if the information required under section 54(1) within the prescribed time under that section … is not given by the final lapse date for the application. [our emphasis].

It has been generally accepted that Section 54B refers to ‘all’ of the information requested. However, the Tribunal’s decision (above) appears to suggest that not ‘all’ material must be provided in order to keep your application alive.

In light of the above, we would advise permit applicants to:

  • Continue to apply for an extensions of lapse dates before the specified lapse date;
  • Continue to include a cover-all request to extend the lapse date, should Council not be satisfied with the material supplied, as part
    of your RFI response before the lapse date;
  • Take note of the above case. It will be useful if Council seeks to lapse your application on the grounds that you provided insufficient or unsatisfactory information in your RFI response.

Planning Decision Flip, Flop, Flip, Flop… FLOP!

Only for the brave: Council refuses to support a planning permit application, then amends its position to support the application, then seeks to argue for the application to be refused, is then forced to support the application – but in the end the permit is refused and the permit applicant left to ponder how this ‘whole-planning-thing’ works.

In a recent VCAT matter, One 11 Dendy Street Pty Ltd v Bayside CC [2019] VCAT 4, the Tribunal was perplexed by the position taken by Council.

Flip: Council had received a number of objections and originally issued a Notice of Refusal relating to an application seeking permission for the development of eight dwellings on the subject land.

Flop: The permit applicant sought review of that decision at VCAT.
After a compulsory conference, amended plans were prepared that included a reduction in the number of dwellings to six. All parties, including objectors, informally agreed to settle the matter subject to those changes. In November, Council’s Planning and Amenity Committee met, formally changed Council’s position and wrote to all parties notifying them that Council now supports the proposal, subject to conditions.

Flip: However, following the resolution of Council’s Planning and Amenity Committee one of the objectors withdrew support for the Consent Order. As a result, Council then sought to disregard the resolution of their own Planning and Amenity Committee and argue against the granting of a permit at the VCAT hearing.

Flop: The sitting Tribunal Member seemed somewhat perplexed and noted:

  • I was informed that a Council officer decided that the decision of Council’s Planning & Amenity Committee could be disregarded if an agreement had not been reached between all of the parties…
    I determined that I could give no weight to [Council’s] attempt to make submissions to the Tribunal that amounted to one officer’s opinion on the amended plans, and present it as Council’s formal position in this proceeding, in defiance and opposition of Council’s actual formal position.

The Tribunal did not hear submissions prepared by Council that sought to have the application refused, effectively forcing Council to adopt the position determined by the Planning and Amenity Committee at the November meeting.

FLOP: Despite all that toing and froing, the Tribunal eventually resolved to refuse to grant a permit on grounds relating to neighbourhood character and built form.

Spare a moment for the permit applicant in that one…

These tid-bits are part of the regular contribution made by Clause:1 Planning to Intersect. For more information, contact Ashley Thompson on (03) 9370 9599 or visit Clause 1 at www.clause1.com.au

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