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12 November 2019

How much information is enough (for the Council or VCAT)?

The Council

With any town planning application, sufficient information must be submitted to address the requirements of the planning scheme and to enable the ‘responsible authority’ to make an informed decision.

Most applicants understand this, although all too frequently there are abuses of Section 54 (additional information) requirements of the Planning and Environment Act, 1987. Specifically, and sometimes seemingly just to re-start the ‘statutory clock’:

  • Information is requested that has already been submitted.
  • Information is requested that is not really required to enable the Council to make a responsible decision.

To be clear, when a Council requires further information under Section 54 of the Act, the required information:

  • Should relate to the potential effects of the proposal;
  • Should relate to the matters that the responsible authority must take into consideration before making its decision, and/or
  • May be required to clarify the nature of the application.

Thankfully, Victoria’s Red Tape Commissioner (Anna Cronin) has undertaken a review of this and other matters as part of a broader ‘Planning and Building Approvals Process Review’ – [click here]

So, what do you do if you disagree with the Council’s request? 

Trying to negotiate and ‘reason’ with the Council is always the best course of action, and (to be fair) usually successful. But, if unsuccessful, you can take the matter to VCAT (under Section 78(b) of the Act). The problem with this is that it takes time and money. So, regrettably, usually the quickest (and cheapest) way between ‘A’ and ‘B’ is to simply submit the information requested.

The staff at ratio: are well placed to advise and assist you in this regard.

VCAT

Another issue that often arises is how much information to submit in a VCAT hearing. With respect to general town planning and more specialist technical matters, this typically means - how many expert witnesses will I need?

Assuming all issues are ‘on the table’, it is sometimes tempting not to call expert evidence addressing various matters on the basis that the Council did not require this information and/or the issues were not raised as part of the processing of the application. 

This is a common, and sometimes fatal, trap. In an ‘appeal de novo’, all matters are relevant and up for consideration.

Experience has shown it is always better to err on the side of caution, even though there will invariably be a financial cost associated with this. Whilst VCAT is said to constitute an ‘expert Tribunal’, it would appear the bar has been raised with respect to the level of justification required with applications in this jurisdiction. 

A case in point was a recent VCAT matter for extractive industry which was supported by the Council Officers but refused by the Council. Whilst uncontested expert evidence was called addressing town planning, traffic engineering, ecology, drainage and noise, the Tribunal still deemed the application to be ‘unresolved’ owing to issues associated with visual impacts/landscaping, arboriculture, agriculture, dust, ecology (fauna and flora) drainage/‘water balance’ and noise.

Different VCAT Members have different areas of expertise, which is not always aligned with the matter at hand. In preparation for a hearing, it is best to assume you will get a VCAT member that is not familiar with the intricacies of the application.

For other VCAT matters, a high degree of information/justification has been required for things like ESD, waste management and Arboriculture. This is notwithstanding that these matters were not being contested at the hearings. So sometimes, when preparing for a hearing, you need to recognise the possibility that you may get a VCAT member that has a specialised interest and area of expertise.

It is unwise to assume matters can be dealt with as permit conditions. It would appear there is a reluctance for some VCAT members to do this.

As wise legal Counsel sometimes say – ‘you only get one crack at it, so you must put your best foot forward and cover all bases’.

But all of this comes at a significant cost to the proponent. It is perhaps unsurprising, particularly in the current economic climate, that some proponents are choosing to avoid VCAT altogether and ‘settle at all costs’.

If you require any assistance with matters like this, we would be pleased to assist. We have a team of town planners that do VCAT Advocacy and expert evidence, and traffic engineers that do expert evidence before VCAT. And, with the wonderful team at Message joining ratio: shortly, we can also assist with expert urban design evidence before VCAT.

Author: David Crowder, Director: Planning

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