The Appeals Process
What is this document for?
This document aims to explain why VCAT can play a role in the outcome of a planning application, some of the reasons why a planning application may not be successful at council level, & what can be done to reduce the chances of having to appeal a council decision at VCAT. It is aimed particularly to those clients who are inexperienced in property development, or those clients whom have not developed for some time and may be unfamiliar with current planning and VCAT attitudes etc.
The process overview: Council planning & VCAT
A town planning application is a combined set of drawings and associated documents that the local council uses to assess the suitability of a particular development on a particular site. The planning process, while having consistent state regulations, varies from council to council due to a number of factors, some being councils own attitudes to development, community attitudes to development, character overlays, individual site constraints, applicants / clients requirements & expectations etc.
After a period of council referrals, advertising and negotiation etc, you could typically expect a planning application to take approximately 5 - 7 months in council, upon which the council issues a decision, be it a permit with conditions, or a direct refusal.
Should a refusal be obtained unexpectedly at council level, or through a strategic decision as part of the application (where it is known that council will not support the application but the design is considered to be appropriate to the client's needs &/or site constraints, and an appeal is the preferred option), an appeal of the council decision at VCAT is available to both the applicant & objectors of the development. This is an additional and separate process, and could incur additional costs (see below).
A planning application &/or decision may require an appeal at VCAT for a number of reasons:
- A permit has been granted by the local council but a condition of the permit is not considered appropriate. In this instance the applicant appeals only the relevant condition (not the whole permit).
- A direct refusal has been issued by council & the applicant (you) have chosen to appeal the decision. In this instance the applicant appeals the decision within 60 days of the refusal.
- A neighbor (previous application objector) has lodged an appeal against the councils decisions to grant a permit. OR
- As a direct strategy on a non-standard or constrained sites, or potential lengthy or delayed applications etc.
In all of these instances, a private consultant should be engaged to represent your interests at an appeal hearing (or mediation hearing depending on the individual project). Approximately 4-5 months wait list is usual for a full appeal hearing. This wait time is used to modify the design as much as practicable/possible depending on the client &/or site requirements, and re-circulate the plans to all parties (minimum 4 weeks prior).
You could typically expect to incur the following additional costs to complete an appeal process:
- $3500 for private town-planning representation including VCAT lodgement fees (higher for lawyers etc) &;
- Nil - $3000+ redesign & drafting fees etc (depending on extent of redesign and drafting requested).
There are many reasons an appeal at VCAT may be necessary, or an appropriate/strategic course of action:
- The site has a number of constraints which leads to a particular design/layout that council may not generally support , or does not wish to encourage on other properties. In these instances the client must make a choice of either:
- Allowing the design to be amended in an attempt to proactively address the council concerns in the eyes of VCAT. This is done to reduce the chance of an appeal refusal or;
- Continue to appeal without design change. In this instance, the client is taking a hard line approach in order to achieve an improved marketable outcome, but must accept the increased risks involved (i.e. time and expenses of a second council application if unsuccessful, etc).
- The client has specific or individual design requirements that the council cannot support, thus requiring arbitration.
- The council maintains a strong position on the design that the applicant &/or client disagrees with, thus requiring arbitration.
- A number of objections have been received, and the council does not wish to cause local conflict thus refusing the application and allowing VCAT to accept responsibility for any final decision.
- The clients market requirements (dwelling sale price etc) takes priority over the councils preferences thus requiring an appeal in order to obtain an unbiased decision at VCAT.
- To speed up a lengthy application by appealing against the 'councils failure to decide' within the statutory time period.
It is the intention of Design Equilibrium to obtain permits through the local council without an appeal at VCAT wherever possible. However, this is not always possible due to the many variables as noted above that are out of our control.
We require the client to indicate their risk level early in the design process (i.e. as to whether they are wanting to meet either market requirements (high planning risk but low market risk) or meet council requirements (low planning risk but higher market risk)) as this will determine an individual design & planning application strategy (in conjunction with the constraints of your property).
Investing carries risks and as such, Design Equilibrium recommends those who cannot accept the associated risks or costs with a planning application &/or appeal outcome, do not apply for a planning permit on their property. This is particularly the case for non-standard properties or developments with design constraints which Design Equilibrium can identify for you.