The Planning Permit Process
By Serge Mendis – Lovegrove Solicitors – Commercial and Construction Lawyers
The process of obtaining a Planning Permit can be an ordeal for anyone contemplating either the construction of a new development the carrying out of building works which require such a permit, especially for the first time. Keeping this in mind, the process is not necessarily complex if a number of steps are adhered to.
Prior to making an application, it is important to know the relevant Planning Scheme which pertains to the area in which the building works are to take place. It may be worth seeking professional advice to form a careful and considered view as to the nature of your Planning Scheme and the preparation of any submissions. The individual Planning Scheme from the relevant Council or Shire authority will be key to the Planning Permit. It may also be beneficial to discuss your planning ideas with the Council Planner and your neighbours, to not only gauge the likelihood of possible objections but to also canvass the possibility of your application for a planning permit being accepted in an efficient and streamlined manner by both Council and neighboring owners.
Submitting the Application:
Once this has been completed, you are in a position to prepare and submit the application. This will consist of the application form and the requisite fee as well as some further required documentation such as a copy of title for the land and any registered restrictive covenants. In most jurisdictions, the Planning Permit fee will often be representative (usually in the form of a percentage) of the estimated total value of the planned works. In most cases, the land-owners authority is required on the Application for a Permit.
After acknowledging receipt of the Planning Permit application, Council will then check the application and may require some further information. If this is the case, they will write to you in due course. If more information is required, it should be provided to Council as quickly as possible, otherwise the planning application will stagnate.
Advertising:
Should your Application proceed beyond this point, you may be required to advertise it for at least 14 days which usually occurs by way of a letter to your neighbours and a sign on the site in question. It is Council’s discretion as to whether notice is to be provided to owners and occupiers of adjoining land, or other parties, and how that notice will be given. Council may require formal advertising in the way of waterproof require signs posted at the most visible locations on the prospective site. Council will usually provide you with written instructions in relation to formal advertising. The purpose of this process is that if any particular party feels that they may be detrimentally affected by the proposed works, then that party will have the opportunity to object to the proposals.
Submissions and objections may be submitted at any time during the permit process, however most will usually arrive during the period of advertising.
Council Assessment:
The relevant Council then assesses the application. If any objections were made in relation to the proposal during the advertising period, the Council must consider these. No objection can be ignored. Objections with merit and objections made with proper consideration of the Planning Scheme can become serious obstacles to the Planning Permit, and must be treated with respect by the Permit Applicant.
Some objections may be conditional. They may indicate that the objection to the planning application will be withdrawn if particular changes are made to the permit or the application, or that a guarantee that particular interests are catered for in relation to the proposal.
If the relevant Council considers that certain objections have merit, and the parties are unable to resolve their differences independently, the Council Planner may arrange a mediation. This will take place between the Permit Applicant and the objector to the proposal, in an open forum, where views can be discussed, with an overall aim of reaching a negotiated outcome.
If an objector withdraws their objection to the proposal, the Permit Application can then proceed through to Council. Once withdrawn, the objector then loses their right to appeal any subsequent grant of a permit by Council. If negotiations are at a deadlock, Council may then proceed make a decision to grant the permit, issue a conditional permit or refuse the application.
Council, after being provided with a summary of all comments and objections, will consider whether to incorporate any conditions or aspects of particular objections into a grant of a permit. Additionally, Council has discretion to disregard objections that it does not consider relevant.
Council’s Decision:
Council will then assess the provisions of the planning scheme in relation to the permit application and make its decision. The Council Planner, if necessary, may additionally forward the application to be decided by a forum of the relevant Councilors. If the Council is satisfied, a permit may be granted immediately. If an unresolved objection is present, and Council still approves the proposal, Council only has the power to issue a Notice of Intention to Grant a Permit. The relevant remaining objector will be notified and that objector then has 21 days in which to apply for a review of Council’s decision at VCAT.
Council may also grant a Conditional Planning Permit, incorporating objections that it considers meritorious. Although this may satisfy objectors, the Permit Applicant’s proposal may be materially different from what Council has deigned to authorise. In this instance, the Permit Applicant, if unsatisfied with the conditions imposed on the proposal, has 21 days within which to apply at VCAT for a review of Council’s decision.
Alternatively, Council may decide, either on the basis of particular objections, or on the grounds of its own interpretation of the relevant Planning Scheme, to reject the Permit Application. Again, the Permit Applicant has 21 days within which to apply at VCAT for a review of Council’s decision to reject the proposal.
VCAT Review:
A Permit Applicant, (and also an objector) that is unsatisfied with Council’s decision, or takes issue with particular aspects of the decision, for example certain imposed conditions or a certain interpretation of the Planning Scheme, may seek review within the appropriate time-frame. It is worth noting for Permit Applicants that objectors have the right to appeal an Intention to Grant a Permit, and an Applicant can’t truly get closure until the time-frame for review has expired and all its horses are finally in the corral. Applications for review can be lengthy, complicated, and almost always go to final hearing before a VCAT Member on the Planning List. Although planning reviews are conducted in an informal setting, it is well worth retaining professional advice, as parties in planning review matters tend to stick to their guns, and of course, as would be expected, every party believes that their interpretation of the planning scheme is the correct one.
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.
