Section 36 of the Courts Legislation Miscellaneous Amendments Act 2014 came into operation on 10 September 2014.

A new section 115CA has been inserted into the Victorian Civil and Administrative Tribunal Act 1998. The new section reads:

  1. Subject to subsections (2) and (3), an applicant to the Tribunal under section 79 of the Planning and Environment Act 1987 is entitled to an order under section 115B that the responsible authority reimburse the applicant the whole of any fees paid by the applicant in the proceeding.
  2. If different fees are payable in a proceeding under section 79 of the Planning and Environment Act 1987 depending on an election made by the applicant, subsection (1) applies to entitle the applicant to an order for reimbursement of only the amount of the lowest of those fees.
  3. Subsection (1) 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- (a) the nature and complexity of the permit application; and (b) the conduct of the applicant in relation to the permit application; and (c) any other matter beyond the reasonable control of the responsible authority.

What does this mean?

If a permit applicant applies to the Tribunal to review a council’s failure to determine an application within the prescribed time, the Tribunal will be required to order the council to pay the whole of any fees paid by the applicant in the proceeding unless the council can satisfy the Tribunal that no such order should be made having regard to the factors set out in section 115CA(3).

It is to be noted that the outcome of the proceeding is not one of the factors that the Tribunal is to take into account. This means that the applicant is entitled to the fees of the proceeding even if the Tribunal determines to refuse the grant of a permit.

The fees of the proceeding must, in our view, include the Tribunal application fee and the hearing fees – although, according to section 115CA(2), if different fees are payable in a proceeding, the applicant is only entitled to the lesser fee. Presumably this means that an applicant cannot claim the major case list fees but is confined to the ‘standard’ fees.

The new section only applies to applications for permits made after 10 September 2014. It does not apply to applications that are currently ‘in the system’.

Nevertheless, the new section has obvious and immediate implications.

We recommend that councils immediately disseminate the above information to their planners and councillors and put in place processes to, as far as practicable, ensure that decisions on permit applications are made within the prescribed time.