Council Failing to Make a Timely Decision on Your Planning Application?

11 Sep Council Failing to Make a Timely Decision on Your Planning Application?

Posted at 14:18h in VCAT by
Failure to Determine

If the Council have been dragging their feet and not making a decision on your planning application, you may be able to lodge an appeal with the Victorian Civil and Administrative Tribunal (VCAT). This type of appeal is called a Failure to Determine or Section 79 Appeal. As it can be many months of waiting before you get a hearing and decision at VCAT, I generally only recommend this path to my clients if we know that the council isn’t supportive of the proposal. If we have been given a strong indication that a permit will be issued and there are just processing delays within the council, it is usually in the clients interest to hold on. After all, a 2 month delay will still trump the likely 6 plus months delay at VCAT, plus the additional VCAT fees.

However, if you find yourself in a situation where you don’t think the planning application decision will be supported, what is the process to follow?

Steps to Take When Faced With a Delayed Planning Decision

  1. Check the timeframes: Verify if the statutory timeframes for determination have indeed lapsed. It’s crucial to be certain about this before proceeding. I have provided more information on calculating time on a planning application to determine if it is eligible for a Failure to Determine application.
  2. Communicate with the responsible authority: If you haven’t already attempted to speak with the council about your application, now is the time. They may provide insights into why a determination hasn’t been made or if there’s been an administrative error. Skip this step if you have already tried and haven’t had a satisfactory response.
  3. Consider your options: You generally have two main choices – wait for a determination or appeal to VCAT. Each has its pros and cons, so weigh them carefully.
  4. Seek professional advice: If you’re unsure about the best course of action, consult with a planning professional. They can provide tailored guidance based on your specific circumstances.
  5. Lodge an appeal: If you decide to appeal, gather all necessary documentation required to lodge the appeal. Lodging can be done online through the VCAT’s website.

Remember, a failure to determine doesn’t necessarily mean your application has been rejected. It’s a procedural issue that, while frustrating, can be navigated with the right approach and understanding.

The VCAT Appeal Process for Failure to Determine Cases

The process for an appeal at VCAT for a Failure to Determine can be a complex journey, but understanding it step-by-step can make it more manageable. Let’s break it down:

  1. Deciding to lodge an appeal: When a council fails to make a decision on your planning application within the statutory timeframe, you have the right to appeal to VCAT. This is known as a “failure to determine” case.
  2. Timeframes: It’s crucial to be aware of the specific timeframes involved. Generally, you can lodge an appeal after 60 days for a standard application or 10 days for a VicSmart application from the date the council received a valid application.
  3. Application process: To start your appeal, you’ll need to fill out the appropriate VCAT application form and pay the required fee. Make sure to include all relevant documentation, including your original planning application and any details requested by VCAT.
  4. Notification: Once VCAT accepts your appeal, they’ll send out an initiating order and advise all parties of the steps that must be taken. The first step will be for the applicant to send a copy of the initiating order to the council, to advise them of the hearing.
  5. Mediation: In most cases, VCAT will first provide mediation to resolve the issue before proceeding to a full hearing. This can be a quicker and less formal way to reach an agreement.
  6. The hearing: If mediation isn’t successful or isn’t offered, your case will proceed to a hearing. Here, you’ll have the opportunity to present your case, and the council will explain their position.
  7. Decision: After considering all evidence and arguments, VCAT will make a decision. This could involve approving your application, refusing it, or approving it with conditions. The decision can be made immediately with oral reasons, or can be provided later as a written decision.

Remember, while this process can seem daunting, it’s designed to ensure fair treatment for all parties involved in planning disputes. Don’t hesitate to seek professional advice if you’re unsure about any part of the process – it can make a significant difference in navigating this complex terrain.

Strategies for Preventing a Failure to Determine

It isn’t always possible to prevent a Failure to Determine, but there are things you can do to mitigate the risks

  1. Quality information: Start the planning application process with a comprehensive set of information. With complex planning matters there is likely to be some additional information required, however, starting the process with comprehensive information will improve the process and ensure that further information delays are minimised.
  2. Consult experts: Don’t hesitate to seek input from those with relevant expertise. Their insights can be invaluable.
  3. Set a realistic timeframe: Understand that the planning process for more complex matters is likely to take a little longer than the statutory timeframe, simply because council resources are stretched. As long as there is communication flowing and you are aware of the likely timeframe to a decision, this might be an acceptable outcome.
  4. Keep a record: Keep notes and copies of documentation so that you can check on the process and determine if the application is becoming derailed. Having a good record will also make the process of applying to VCAT easier.
  5. Timely response: Minimise delays on your end with timely responses to any queries by council.
  6. Regular follow-ups: Schedule regular follow-ups with the council to ensure that your application doesn’t slip through the cracks.

Conclusion: Empowering Your Projects With VCAT Appeal Knowledge

Understanding the planning process and VCAT appeal rights is crucial for anyone involved in property development or complex planning applications in Victoria. Remember, knowledge is power. Being well-informed about the process, your rights, and potential outcomes can significantly impact your project’s success. Whether you’re a property owner, developer, or concerned citizen, this understanding empowers you to navigate the system more effectively.

It’s important to note that while this guide provides a solid foundation, each case is unique. The specific details of your situation may require professional advice. Don’t hesitate to seek expert guidance if you’re unsure about any aspect of your planning application.