Section 36 of the Courts Legislation Miscellaneous Amendments Act 2014, assented to on 9 September 2014, amended the Victorian Civil and Administrative Tribunal Act 1998 (Act) by inserting s 115CA.
Section 115CA(1) provides for the operation of a presumption that an applicant to the Tribunal under s 79 of the Planning and Environment Act 1987 (PE Act) is entitled to an order under s 115B that the responsible authority reimburse the applicant the whole of any statutory fees (that is, fees payable in a proceeding under the Act, the rules, the regulations, or the PE Act) paid by the applicant in the proceeding.
We consider this to be a significant change to the Act that has the potential to influence how councils process planning permit applications.
Pursuant to s 168 of the Act, s 115CA applies only in relation to an application to the Tribunal under s 79 that is made after 9 September 2014.
“failure to grant the permit” vs “failure to determine”
It is common for practitioners in Victoria to refer to applications filed under s 79 of the PE Act as being an application against the council’s “failure to determine”.
However, it is important to recall that, strictly, this is not accurate. The particular language of s 79 of the PE Act is, as follows:
“An applicant for a permit may apply to the Tribunal for review of the failure of the responsible authority to grant the permit within the prescribed time.”
It follows that it is not the failure of the council to determine the application, but rather the failure to grant the permit within the prescribed time, that is the precondition to filing an application under s 79. Pursuant to reg 31, for a VicSmart application this time is 10 business days and for any other application it is 60 days.
The consequence is that there is no bar to an applicant proceeding under s 79 in circumstances in which the council determines to refuse the application, provided the refusal occurs after the prescribed time.
It will be interesting to observe whether applicants start to seek to rely on s 79, to have the benefit of the presumption under s 115CA(1), in circumstances in which the council has refused the application out of time. In such circumstances, previously the application would have been filed under s 77.
Amount of fees
If different statutory fees are payable in a proceeding under s 79 depending on an election made by the applicant, s 115CA(2) provides that the entitlement under s 115CA(1) will only extend to the lowest amount of the fees. This avoids the potential for applicants to seek to recover the fees paid in the Major Cases List.
At this time, if the estimated cost of development is $1 million or more, the relevant fee is $1,903.90. If the estimated cost of development is less than $1 million the relevant fee is $986.40.
Additional fees may apply if the principal registrar is of the opinion that the proceeding is a complex case, or the hearing runs for more than one day.
Displacing the presumption
Section 115CA(3) provides that the presumption does not apply if the responsible authority satisfies the Tribunal that there was reasonable justification for the responsible authority to fail to grant the permit before the application to the Tribunal, having regard to:
- the nature and complexity of the permit application; and
- the conduct of the applicant in relation to the permit application; and
- any other matter beyond the reasonable control of the responsible authority.
As always, it will be important for council’s to ensure careful file management and to ensure to retain copies of any emails, correspondence or other documents that may be relied upon in support of any argument that the s 115CA(1) presumption should not apply.
The introduction of the s 115CA(1) presumption means that it is important for councils to ensure that a decision is made on an application within the relevant prescribed time.
It is important to note that we do not, however, consider that this reform should influence councils to make hasty or premature decisions, especially in respect of complex or controversial applications. As always, it is important for councils to ensure that applications are processed with diligence and care. It may be that there is more risk associated with making a hasty or premature decision than having an order for fees made against the council.
With the statutory clock now more important than ever, we recommend that planning officers ensure that the mechanisms under the PE Act that have the effect of stopping or restarting the clock are being appropriately utilised. It is important that any requirement for more information under s 54 of the PE Act be properly made within time (5 business days for a VicSmart application, or 28 days for any other application) by giving the appropriate notice. If notice of an application is given under s 52 of the PE Act, council should be careful to ensure that the date of the making of the requirement and the date of the giving of the last required notice is properly documented and recorded.