If you have had your planning application refused it does not necessarily mean the end of your development. It can seem like a severe blow with all the time and money spent. However there is still the possibility to get the approval you want by taking your case to VCAT. Under section 77 of the Planning and Environment Act 1987 a permit applicant has 60 days from the date the refusal was issued to lodge an appeal. A hearing date will then be set and the case will be heard by a VCAT member with expert planning knowledge. The role of the VCAT member is to determine whether council have correctly assessed the application against the objectives of the planning scheme. They will decide whether to overturn the council’s decision and approve your development or not. The decision of the VCAT member will be principally guided by the relevant councils planning scheme and the written objectives of the zone, overlay and local planning policy framework. The other legal documents the tribunal will consider are the Planning and Environment Act and the 1998 VCAT Act.
Here is how the VCAT process works:
Within two weeks of lodging an application to appeal council’s decision under section 77 of the act, VCAT will issue an initiating order. This order will set out a hearing date for the case along with itemised steps that need to be completed in the lead up to the hearing.
The first step outlined in the order is to give council written notification that you are appealing their decision at VCAT. The initiating order will also set out a date by which Council must lodge their preliminary case materials with VCAT and the other parties. This is called the practice note 2 material. You can read what information council is obliged to provide to you and the other parties here.
Once the council has been notified they will provide a list of parties that the original application was advertised too along with any persons who lodged an objection with them. Written notification of the VCAT case must be sent to all these parties to give them the opportunity to lodge their own statement of ground with VCAT if they wish.
Statement of Grounds
Objectors can lodge a Statement of Grounds to VCAT so that they can be a party to the hearing. This gives them the opportunity to take part and make a submission. A fee applies to any objectors who wish to submit a Statement of Grounds. If they choose not to be present at the hearing their statement of grounds will still be taken into consideration during the hearing.
Most people are not aware that you can in fact amend your development plans for the VCAT case. This is a very useful tactic as it essentially gives you a ‘second chance’ to respond to any concerns that the council and objectors have highlighted and minimise any issues that VCAT might have with the development. This gives you a much stronger case with 90 percent of our clients choosing to amend their plans before the hearing which has given them the positive outcome they wanted.
The plans must be amended at least 33 days before the hearing date to be accepted. VCAT, Council and any objectors who lodged a Statement of Grounds to VCAT must receive a copy of the new plans. All parties that were notified by council of the original application must be informed of the changes. Although it is not necessary to send them copies of the new plans unless they request them. They are able to view the new plans at council offices if they wish. A full description of how to amend your plans at VCAT is set out in practice note 9 from VCAT.
Objectors can withdraw their Statement of Grounds at any time before the hearing. This is most likely to happen if you have responded to their concerns through the amended plans. Similarly there have been incidences where council have reversed their decision and approved the application before the hearing based on the amended plans. This can be completed through a consent order at VCAT.
After the hearing it unusually takes around 4 – 6 weeks for the decision to be made. It will be sent in the form of an order from VCAT and will outline the reasons for the decision. Minor cases, such as if you are appealing certain conditions on your planning permit, can be decided on the day at the end of the hearing.
Council will be professionally represented at the hearing along with objectors who may potentially engage their own planning professional to represent them too. Having an experienced VCAT specialist preparing your case, advising you through it and representing you at the hearing is instrumental in getting the approval that you want.
For a general overview of the VCAT process and how to communicate with other parties in the appeal including council click here