Planning Law Essentials
Serge Mendis and David Thomas of Lovegrove Solicitors
Planning Law in Victoria is governed by the Planning and Environment Act 1987 (Victoria) which came into operation on 16 February 1988. The Planning and Environment Act is supported by Regulations, the Victorian Civil and Administrative Tribunal Act 1998 and the Victorian Civil and Administrative Rules 1998.
1. The Planning Scheme
When contemplating planning and developing, regardless of the scale, from single lot developments to high rise, commercial to industrial, single use to mixed use, the paramount consideration is almost always the Planning Scheme.
The Planning Scheme is an often nebulous amalgamation of documents, maps, overlays, and most importantly ordnance that reflects State and Local planning policy. Notwithstanding its seemingly haphazard constitution, it provides to the Relevant Municipal Body a regime for controlling planning and development in its area of authority, and gives the Council the regulatory background from which to make Planning Decisions.
Bearing the above in mind, it is pertinent for any party or entity involved in a planning or development issue to keep the Planning Scheme within reach, figuratively speaking. Each Council will have its own Planning Scheme particular to its own municipality, and each individual Planning Scheme will reflect the subtleties of the neighbourhoods that it affects.
The Planning Scheme can have an effect on a wide variety of areas, ranging from items as diverse as:
- the permitted land usage in a zone;
- provision for public transport;
- access for road users;
- the number of parking spaces permitted or required;
- the setback from the street frontage;
- heritage concerns;
- provision for green areas or reserves in new subdivisions;
- whether overhead or underground cables and service lines are
permitted or required for new developments.
The Planning Scheme, due to its comprehensive nature, allows the Council to control development and usage of land. It will also set out whether a Planning Permit is required to build on the land or make other alterations to the land, or additionally if a Planning Permit is required if changes in the usage of the land are proposed.
When considering the Planning Scheme, whether you are making an application for a Planning Permit, objecting to a proposal or applying for a review of a decision, the particular elements of the Planning Scheme must be understood and their potential effect on the outcome of any Planning matter anticipated.
Overlays are a key element of the Planning Scheme, and are often overlooked to the potential detriment of any number of involved parties. Overlays in the Planning Scheme itself are a series of maps that reflect whether a particular area of land has an overlay affecting it.
Overlays can relate to whether an area is designated as being of heritage significance, i.e. a Heritage Overlay, which can be crucial to any party involved in a matter where changes to, or development of a heritage building may be involved, whether from the perspective of local area residents or prospective developers.
Other critical overlays can include Flood Level overlays, indicating whether property subject to the overlay is affected by particular flood levels. This can be of great significance in early stages of planning a new development as it will often require new buildings to be constructed above a mandatory level, and therefore the associated cost implications will need to be calculated and considered prior to any application for a Planning Permit.
Zoning is also indicated on the Planning Scheme maps, often by way of colours and simple labels. Each municipality will have different policies relating to zoning, however in general, the Planning Scheme will designate whether areas are for residential use, commercial use, industrial use or other uses. The Planning Scheme will, in its ordnance, set out the details of each zone and its requirements and restrictions. The zoning information in the Planning Scheme will also dictate whether a Planning Permit is required, and additionally the potential conditions placed on any Permit.
When considering planning applications, the relevant zones will also need to be consulted in relation to usage and development requirements. The zones in the Planning Scheme may indicate that both the usage of the land (for example its use as a place of business or as a place of residence) and the development of the land (for example construction of a building, or subdivision or consolidation of land) will require a Planning Permit.
2. The Planning Permit
If the Planning Scheme dictates that a particular usage or potential development will require a Planning Permit, then an Application for a Planning Permit must be made with the relevant Council. The Planning Permit, if and when granted, provides authority for the proposed development, usage or change in usage.
The Planning Permit, when granted, may be accompanied by approved plans, which the subsequent building plans must corroborate. The Planning Permit will also impose conditions on the proposed development or usage that must be complied with. The conditions may relate to any number of issues raised in the Planning Application process, including concerns of neighbours and objectors. The conditions on the Planning Permit may additionally be elements of the Planning Scheme or the planning policy contained therein, that the development or usage must comply with.
If a potential development or change in usage is on the cards, then it is imperative that the Planning Scheme be consulted first. Here it will become apparent if a Planning Permit is required. In some cases, multiple permits will be required for different aspects of a project. In other circumstances, only a permit for the development may be required and not the usage.
The Application must be considered and carefully put together, with the consent of the land owner, and include all the information required by the Council. It is also worthwhile consulting the Planning Scheme to determine what zones, overlays and conditions are present on the land in question, and what policies will therefore be applied by the Council.
Prior to submitting an Application for a Planning Permit, an estimate of the total cost of the development must also be made, and this figure must be indicated on the application. This estimate will then determine the Planning Application Fee to be paid upon lodgement. Additionally, prior to submitting an application, it is pertinent to assess what all the planning requirements for the entire project will be, so that they can all be incorporated onto the one Permit, avoiding the cost overrun of having to generate a Planning Permit further down the track of a development, which may potentially put work on hold.
Once an Application for a Planning Permit has been made, the Council will instruct as to whether notice of the proposal must be given to the adjoining owners of the land in question, or any other person considered relevant to the process.
Waterproof advertising, may be ordered put in place in a prominent location for the advertising period of 14 days. Neighbouring properties may also be notified of the proposal by letter.
During the 14 day advertising period, any comments, know as submissions can be made. Most submissions are made within this advertising period. A submission that opposes the proposed development, usage or change in usage is known as an objection.
Objections, which may be made by any party, may be submitted outside the 14 day advertising period, and up till the date when the council makes the relevant Planning Decision. Objections cannot be ignored and must be considered. Objections may also be withdrawn at any time. The option is available for objections to be conditionally withdrawn. This entails the objector requesting further specific conditions to be put on the Planning Permit, in return for a withdrawal of the objection. Objections with merit, and objections made with regard to the Planning Scheme can pose serious opposition to a Permit application. Objections are discussed further below in this article.
If The Council is satisfied with the Application, Council may chose to grant the Planning Permit immediately. However, if objections are present, the Council may only issue a Notice of Intention to Grant a Permit. This is not a Planning Permit, and does not carry the legal weight of a Planning Permit.
An objector at this stage may lodge an application for review at VCAT, and has 21 days to do so after receiving the Notice of Intention to Grant a Permit. Applications for review are discussed in detail further below in this article.
The Council may also decide upon considering the Application that the Application will be refused. Council will then issue a Refusal to Grant a Permit notice. The permit applicant then has 21 days within which to lodge an application for review of the decision to refuse at VCAT.
3. Influencing Decisions
The ability to influence the decisions of relevant councils and people when it comes to Planning Decisions is of the upmost importance. If you are affected by a planning permit application as previously discussed, it is possible that you can influence what is proposed and what is approved by consulting and negotiating with the key players relating to the Decision such as the permit applicant and the council planner.
If you are the Permit Applicant, it may be beneficial to discuss your initial plans with your neighbours so that you can ascertain exactly what their concerns are prior to your proposal being finalised. It may be the case that an open dialogue of this nature with your neighbour allows you to explain aspects of your proposal or come to an agreement to modify your proposal in such a way that all parties are happy to proceed. The purpose of this process is that it may quell the desire for other parties to make objections to your proposal and therefore results in a more timely and efficient proposal being put forth without the risk of delay from objections.
If negotiations do not occur, or do not occur satisfactorily, it may be that you decide to make an objection to a proposal. An objection should describe how you will be affected if a permit is granted and should suggest ways that the impacts of the planning permit can be minimised or eliminated by alterations, changes to the plans or the inclusion of specific permit conditions. Such an objection should be crafted carefully as it will carry more weight with the council if it is logical, ordered and addresses each of the issues of the proposed permit in turn.
A well crafted objection would be;
- Typed and/or clearly written;
- Be easily identified and marked as an objection;
- State the permit application reference number;
- Clearly identify the land in question;
- Be lodged within the 14 day notice period;
- Be signed by the objector; and
- Include the objectors relevant contact details.
At the discretion of the relevant council, it may be that the Council Planner arranges a mediation or a consultation between the permit applicant and the objectors to a proposal. This process allows an open forum where views can be discussed with the aim of facilitating a negotiated resolution which addresses the objectors concerns or allows the permit applicant to discuss their proposal in such a way that may alleviate some of the objectors concerns.
If such a meeting is successful, it may be that the objector does not wish to pursue their objection. If this is the case, the objection can be withdrawn by writing to council. However, it is critical to note that if an objection is withdrawn then the objector does not have the right to apply to VCAT for a review if the objector changes their mind later on down the track.
So, by this point if the permit applicant and any objectors have followed this process they will have had an open dialogue and objections will be clearly articulated. If a negotiated resolution has not come to fruition and there are still objections in place, the council will make a decision. In order to help the council come to a Decision they will be provided with a summary of the objections in place and be able to review suggested permit conditions, changes or alterations. The Council may then grant the permit on the condition that some of these changes or alterations occur or if permit conditions are attached. What is perhaps the most important thing to note is that an objection will not mean that a permit will be refused. The Council must weigh up the merit of the objections with planning considerations and will ultimately come to a decision on that basis.
4. Applications for review to VCAT
If a person’s permit application is refused they can apply for a review of the decision within 60 days of the relevant council giving notice of the refusal. A review can also occur if a permit is granted but with permit conditions. It is also possible that an objector can apply for a review of a decision, however, the time frame is only 21 days from the notice of a decision to grant a permit being given.
If such a review is to occur, it will be at the VCAT which will assess the relevant proposals planning merits and ultimately decide whether a permit should be granted and what, if any, permit conditions are appropriate. One should note prior to following this process that this area of VCAT usually requires parties to bare their own costs unless there are exceptional circumstances.
There is a standard form for making an application for review which can be accessed through the VCAT website. This must be lodged within the relevant time limits that apply to the particular type of review as previously mentioned.
Attached to this form will be a ‘statement of grounds’. Whether you are an Applicant or an Objector, the statement of grounds will set out and explain your reasons in support of the review and justify what your position is. This document should briefly set out your position and respond to the council’s grounds of refusal if appropriate.
Once the Standard form and the Statement of Grounds is complete, both should be lodged at the VCAT with the relevant fee which can be found on the VCAT website.
VCAT will then write to the person who lodged the application for review and a copy of the notice to review must be given to Council and also to the objectors or permit applicants within 7 days. A statement of service will also need to be filled out which proves that this process was duly followed.
If you wish to contest the application for review, you will need to complete a statement of grounds as previously mentioned. This must occur within 14 days of receiving the notice pertaining to the review. It will then be possible to either attend the hearing personally and making submissions, or this can be done in writing (in which case you will not need to provide a statement of grounds) which will then be taken into consideration. It may be that presenting submissions personally carries more weight and is arguably more effective then a written submission.
If you are to attend VCAT it will be important to make sure that you follow the VCAT procedures. It may be that your matter will be directed to mediation or you can request that this occurs. It may also be that a Directions Hearing or an Adjournment is required. What must be remembered is that if you correspond with VCAT about any like matter such as these, you are required to provide copies of any correspondence to all the other relevant parties in the matter.
If for any reason you wish to withdraw an application for review you must write to the VCAT Registrar as soon as practicable. This will not necessarily result in VCAT agreeing to your request, and it could mean that other parties may claim costs against you if they have spent time and money preparing for the matter.
In some instances it may be that the permit applicant seeks VCAT’s agreement to use revised plans instead of the original plans submitted with the application. The purpose of this is that it may address objectors concerns or be a result of following expert advice. It is not necessarily the case that VCAT will agree to this process as it may be that the amended plans are so different that a fresh permit application would need to take place. This will depend upon the nature and severity of the changes.
An Expert can be engaged as an independent expert witness. They can prepare a report in VCAT compliant form and it can be presented as evidence as long as it is circulated to all parties at least 10 business days prior to the hearing taking place. It may be that there are conflicting experts, in this case, the reports will be read out and questions may be asked of the Experts. Ultimately the Tribunal will have to decide as to which evidence is to be relied upon.
Once the hearing takes place, a decision will be given in writing some weeks after the hearing date. In some cases a decision may be given on the very same day of the hearing. Regardless of which one of these occurs, the VCAT’s decision is final unless there is an appeal to the Supreme Court. This can only occur on an appeal on a question of law, not on the merits of the decision.