Planning TidBits

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

Time elapsed when Council does the advertising

Regular permit applicants will be aware, Section 79 of the Planning and Environment Act 1987 (“the Act”) allows applicants to lodge an appeal to VCAT against Council’s failure to grant a permit within the prescribed time (10 statutory days for a VicSmart application or 60 statutory days for all other applications).

Of recent times, more and more Councils are opting to undertake the public notice of permit applications themselves, including erecting signs on site. Councils that do erect signs onsite have been given cause to ponder the impacts of that service in a recent VCAT decision.

In National Property Group Pty Ltd v Manningham CC [2018] VCAT 313, the Tribunal considered whether an application for review lodged under Section 79 was premature. In this instance it was the responsible authority (Council) itself that had given notice of the application, including erection of the required sign onsite.

When calculating the statutory timeframe the clock would normally stop between Council notifying the permit applicant that the sign was ready for collection and the actual day the sign was erected onsite.

Regulation 32(3) of the Planning and Environment Regulations 2015 provides that the prescribed time for the purposes of a Section 79 appeal does not run:

(a) if the responsible authority requires the applicant to give notice under section 52(1) or (1AA) of the Act, for the time between the making of that requirement and the giving of the last required notice.

This means that, in circumstances where the permit applicant is required to give notice, the calculation of the 60 day timeframe does not include the time between when Council advises the applicant that the application needs to be notified and the giving of the last required notice (putting notices up on site, or the letters to affected parties being sent) whichever is the later.

In National Property Group Pty Ltd v Manningham CC the Tribunal found that, where a responsible authority elects to undertake the public notice rather than requiring a permit applicant to do so, the halt on time running that is contained in Regulation 32(3)(a) does not apply. The Tribunal found the appeal was not premature and ordered that the matters proceed to a hearing of the merits.

This finding provides permit applicants with an additional incentive to take up the service from Councils who offer to erect public notification signs on site.

To Detail or Not to Detail

Regular permit applicants will be familiar with the conundrum of how to describe projects on planning permit application forms.

Is the application for ‘a dual-occupancy’, ‘development of land with two double storey dwellings’, ‘ a new dwelling behind an existing dwelling’ or [add you preference here]. Similarly, another application could be described as, ‘a five storey apartment complex’, ‘an apartment complex, associated car park dispensation, removal of native vegetation tree, partial demolition and alterations to a heritage building’ or ‘multiple dwellings on a lot’.

Permit applicants have their own individual preferences. So to do Municipal Councils. Some prefer accurate but simple descriptions. Others prefer each individual permit trigger to be listed on the application form.

So, what is the best way to describe your application? Both the VCAT and Supreme Court have previously provided guidance on this issue. In Nelco Holdings Pty Ltd v Yarra Ranges SC [2006] VCAT 148 the tribunal held that:

  • To require each relevant permission under the scheme to be identified in the application form in fulfilment of the requirement to state clearly the use, development or other matter for which a permit is required is inconsistent with authority, contrary to the text of the requirement, and contrary to policy

Similarly, in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 426 the Supreme Court noted:

  • The application is not to be construed technically or strictly as one might a statute or a deed. As Tadgell J observed in Marock Pty Ltd v Billjoy Pty Ltd [1981] VicRp 41; [1981] VR 413 at p 418: “The question is what it would fairly convey to those for whose information it is required to be prepared.”

With the above considerations in mind, we recommend that you do not seek to list all the permit triggers on your application form or provide a technical description of your proposal. Rather, we recommend applicants use a layman’s description of what is being proposed, with just enough detail to make it clearly understood.

When is a Change not an Amendment?

Leading on from the article opposits – it is important that applicants understand the potential consequences of Council seeking an amendment to your application form and how to
protect your applicant’s rights.

Pursuant to section 50 of the Planning and Environment Act (1987), making an amendment to an application will change the date upon which the application is considered to be received by the responsible authority, to the date of the amendment.

Making an amendment to the application can have significant impacts on issues such as exemptions under transitional planning provisions, like those included in the apartment standards and garden area requirements.

So does a change to the description of a proposal on an application form constitute an amendment, pursuant to Section 50, that would reset the statutory clock?

In a recent VCAT decision, 3 Dickens Street Pty Ltd v Boroondara CC [2017], the Tribunal was required to consider just that. In 3 Dickens Street the permit applicant, at the request of council, had altered the application form to include the proposed alterations to access in a Category 1 Road Zone.

Prior to the merits hearing, the Tribunal was required to determine whether the amendment to the application form, made after the introduction of VC136, reset the statutory clock and resulted in the loss of the applicant’s exemption under the transitional provisions contained in the new Apartment Design Standards.

In determining if the change to the application form constituted a formal amendment, the Tribunal referred to, Nelco Holdings Pty Ltd v Yarra Ranges SC [2006] as the authority on this issue. The principle established in Nelco Holdings was that a ‘substantial rethinking’ of the proposal might normally constitute an amendment to the application. It stated:

  • In this proceeding, the requested amendment is nowhere near such a re-thinking. The plans in the application were not proposed to be amended. I would not characterise the requested amendment as even a minor amendment of the type referred to in Kennedy v Cardinia SC [2012] VCAT 1057 because it had no substance in relation to any change to the proposal.

As a general rule, Clause 1 Planning recommends that permit applicants remain very cautious about making any amendments to planning permit applications after lodgement with council. However, the above cases reinforce that minor amendments to application forms do not constitute a formal amendment pursuant to Section 50, and should not be considered to restart the statutory clock.

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