The Objection Process for parties affected by a Proposed Development
By Lovegrove Smith & Cotton
Having to submit an objection to a planning permit application will often be the last thing on one’s mind until you receive notice of a planning permit application which for one reason or another you are unhappy with.
The notice may be received via a letter directly to your address, or by sighting on-site signage put in place to notify the public. This document will typically state a deadline before which the Council will not make a decision on whether to approve the permit. This deadline is a minimum, and often Council will not decide until later, but it pays to keep up to date.
Preparing an Objection:
Whilst anyone can prepare and submit an objection, preparing an effective objection with a real chance of succeeding is quite a specific science. An effective objection must specifically refer to the relevant Planning Scheme if it is to have a chance of achieving the desired outcome.
Planning Schemes are usually a vague compilation of documents, policies, maps, overlays, and zones that reflect State and local planning policy which provide rules and guidelines for Council to make decisions on planning permit applications.
The objection needs to be tightly framed in order to reflect the specific provisions of the applicable planning scheme. Planning schemes set out requirements for everything from minimum setbacks and maximum building heights, to the amount of car-parking which must be provided on a site, or types of trees which can and cannot be removed. They often include different requirements based on different geographic zones demarcated within the Council’s land.
Planning schemes are long, complicated compilations of documents which are not necessarily user friendly. They often express requirements for Planning Applications to meet certain objectives and guidelines. It takes significant skill to interpret a Planning Scheme.
An objection needs to focus on points where the proposal is not compliant with the planning scheme, as well as how it will affect the amenity of the objector/s in a negative sense.
The job of a legal advisor is to listen to the client’s needs regarding aspects of the proposed development which they are unhappy with, and then frame the objection in terms of recognised categories of loss of amenity. Where possible it should go on to explain why this loss of amenity should be deemed unreasonable having regard to the relevant planning scheme by pointing out strict criteria or objectives from the scheme which have not been met by the Permit Application.
Conditional Objections:
It is possible to frame an objection seeking that certain conditions be attached to a permit granted by the relevant Council. The objection can then be withdrawn if particular changes are made to the permit application, or some other form of assurance is provided which satisfies the objector.
If agreement cannot be reached the objection will seek that the Council only grant the permit with conditions attached.
The Process After Objection:
The relevant Council will in due course have to assess the Permit Application. If an objector has made an objection within the time limit specified then Council will consider it in their deliberations before deciding to grant or refuse to grant a planning permit. No objection can be ignored without at least being read, however Council may discount objections that it does not deem to be germane.
Councils may sometimes take the step of bringing the objector/s and the permit applicant together with a view to mediating the matter in front of the Council’s Town Planner. This is a form of alternative dispute resolution practiced to try to eliminate the need for a controversial decision to be made which would cause grievance for one party or another and may lead to VCAT action.
If agreement can be reached and the objector withdraws the objection, then the permit application will be considered in isolation from that objection. The objector then loses their right to appeal if a permit is subsequently granted.
If negotiation or mediation cannot broker a deal, then Council, after being provided with a summary of all comments and objections, will consider whether to grant a permit or not, and potentially whether to grant a permit subject to certain conditions. The Council’s Town Planner may make the decision, or in more controversial cases, the decision may be referred to the actual Councillors.
VCAT:
If a permit is granted despite the submission of an objection, an objector will have standing to apply to VCAT for a review of the Council’s decision. However if you failed to submit an objection prior to the decision to grant the permit, then you may not have standing to apply to VCAT for a review of the decision. Legal advice is strongly recommended before undertaking any action at VCAT, as the objector’s arguments must be thoroughly prepared, or the objector may be at risk of failing, and furthermore may be at risk of an adverse costs award.
Conversely even if an objection is upheld, the Permit Applicant may themselves apply to VCAT for a review of the decision. Reviews of decisions on Planning Permit Approvals can be lengthy processes taking upwards of 6 months in many cases. This often presents a costly and unhelpful diversion for the Permit Applicant, whereas the passing of time is often the ally of the objector. Time is a very real form of pressure which is brought to bear on a permit applicant, and rightly or wrongly can play into an objector’s hands.
Any party contemplating launching or defending a VCAT application in the planning list is well advised to take legal advice.
Written by Alex Milne, a previous solictor at Lovegrove Solicitors
Lovegrove & Cotton Lawyers to the building industry
For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Justin Cotton, likewise, is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.
