11 Sep How to Calculate Time on Failure to Determine Applications
Councils have 60 statutory days to determine a planning application and 10 days to determine a VicSmart application. If a decision is not made within that time, the applicant can lodge an application to VCAT. This type of application is called a Failure to Determine, or a Section 79 Appeal. This means that the decision is taken from the Council and the application will be decided instead by the tribunal.
The process for determining how many days have elapsed is complex. VCAT have prepared a resource to assist with the calculation of elapsed days which can be downloaded here.
It is not simply a count of all the time that has passed since the application was lodged at Council, rather it is the time that the Council could have reasonably made a decision. It is the Council’s actions or inactions that are the basis for this provision. Therefore, delays associated with the applicant are excluded from the count of elapsed time. The main periods of time excluded are:
- The time until any further information is provided to Council
- The time before the application was amended
- The time around the giving of notice
These periods are explained in a bit more detail below.
Further Information Period
After an application is lodged, the Council have 28 days to assess the application and request any additional information that is reasonably required for them to make a decision. As the application is deemed “incomplete” without this information, the period of elapsed days does not begin until all of this information has been provided back to the Council.
If the Council do not require further information, or if they miss the 28 day time limit, the elapsed days start from when the Council first received the application.
Amending an Application
If the applicant amends the planning application, the time is reset and the starting date for counting the elapsed days becomes this date. Regardless of how much time has passed before this action, if the application is formally amended, this time is not counted.
Notice Period
The purpose of this period is to exclude any time taken by the applicant in carrying out a request for advertising. Therefore the period between when the Council requests advertising from the applicant until the date that the last notice was given (being the date of when a letter was sent out, a sign erected on the land or notice published in the newspaper) is not included in the count of elapsed time.
This last period has been subject to a Red Dot Decision which provides further clarification to applicants as many Councils are carrying out advertising themselves rather than requesting applicants to do it. In National Property Group Pty Ltd v Manningham CC (Red Dot) [2018] VCAT 313 (9 March 2018), the tribunal first had to determine if the application had been made prematurely. The applicant contended that more than 60 days had elapsed, but the Council calculated that only 43 days had elapsed. The difference in the calcuations related to how the notice period was applied. The Tribunal found that because the Council carried out advertising itself and just requested the applicant to pay, there were no days during that notice period that should be excluded from the elapsed days calculation. Therefore the application to VCAT was not premature. In its findings, the Tribunal noted that this is consistent with the intention behind this appeal type. As much as anything, the section is a measure of the Council’s efficiency. As the Council did not require the applicant to carry out advertising, there was no delay from the applicant. The time during this period was under the control of the Council and therefore should be counted for the purposes of determining the number of elapsed days. This VCAT decision has been useful in clearing up some of the confusion that surrounds determining the elapsed time and will hopefully make things clearer for both applicants and Councils.
Next Steps
Now that you have done the calculations on the time that has passed on your planning application, what is the next step? If you have determined that it is over the statutory time period then you will need to decide if you want to lodge a VCAT appeal. You can read up more about Failure to Determine VCAT Appeals and the process in this article or contact a town planner for expert advice on what to do.