Planning Matters

Little bits that can make a big difference to your town planning outcomes.

02. Planning Matters COVID-19: What Planning Permit Applicants Need to Know

COVID-19 has temporarily stalled many facets of life. As we work from home, our fears reducing, feeling a warmth of pride that our community has prioritised public health over all else, it is dawning on us that there will be a ‘new norm’. Things change quickly in this new norm, so readers should be aware this piece was written on May 20th. At any point in time, billions of dollars of development proposals are tied up within Victoria’s planning regime. Now more than ever, the efficient processing of these applications is critical. Victoria’s planning industry is moving to get things back on track. Here’s a brief summary of the initiatives, permit applicants should be aware of, at State Government, VCAT and Council levels.

Victorian Government

In April, the Covid-19 Omnibus (Emergency Measures) Bill 2020 came into being and provided some small, but important, changes to legislation to ensure the ability of Council and VCAT to continue their work. The bill is expected to expire in six months and temporarily provides the following (among other things): • Planning documents previously required to be physically available to view at state or local government offices are now only required to be available for online inspection. This includes copies of planning scheme amendments and submissions, and planning permit applications and objections • The requirement that Planning Panels Victoria must conduct its hearings in public will be satisfied if the hearing is available to be viewed by the general public by electronic means, either while the hearing is being held or as soon as reasonably practicable afterwards. Those entitled to or invited to participate will be able to do so using remote technology. The Victorian government has also established a new task force that will provide advice to the government on industry issues, including barriers to building works, and oversee the fast-tracking of planning approvals using ministerial ‘call-in’ powers. DELWP has released “priority project eligibility criteria”. Although no minimum project value is prescribed, the criteria sets a high bar and it is expected the taskforce will focus on ‘major projects’. The eligibility criteria ensure projects (among other things): • Are of state or regional significance • Have experienced unreasonable processing delays • Will deliver jobs and significant economic value to the state and • Are shovel ready. For more information regarding Building Victoria’s Recovery Taskforce and project eligibility please contact our office or visit: https://www.planning.vic.gov.au/policy-and-strategy/buildingvictorias-recovery-taskforce

VCAT

VCAT has fundamentally closed its doors to the public and has been working very hard to put in place safe procedures that will allow day-to-day business to continue. Permit applicants should be aware: • The Tribunal is advocating for legislative change to bolster

Tribunal Members’ ability to direct expert evidence and cross examination, presumably to make this process more efficient, and • Allow the Tribunal to limit the issues under contest at the hearing, without such a request being made by parties • The Tribunal is also looking to increase its ability to strike out applications that are considered baseless and without merit • Objectors’ appeals are now being listed for an initial compulsory conference, in an attempt to shortcut their determination times • More onus is being placed on parties to ensure procedural compliance, as a result of less matters being listed for directions-hearings • For matters that were originally listed for hearing between

March 17 and May 15: - The Tribunal has sought to confirm if all parties consent to the matter being determined on the papers

- Where all parties have agreed, matters have been set down for determination without a hearing - Where all parties have not provided consent, the matters will be listed for hearing between August and September 2020. All of these matters will be heard via video or telephone conferencing and may be set down at short notice. • All matters previously listed for hearing between 18 May and 29 May are to be re-listed for hearings between October and

November 2020 • Matters listed for hearing from 1 June will be heard via either video or telephone conferencing, as scheduled • New appeals and requests for adjournment are resulting in hearing dates being reset in 2021 • The tribunal does not expect to contemplate resuming face-to-face hearings until 2021, at the earliest – however, there is no guarantee this expectation will not be extended • The Tribunal is also actively encouraging parties to contact each other and mediate outcomes or reduce the number issues under contest, in order to simplify hearing requirements. Clause 1 recommends that permit applicants, with current VCAT matters, diligently pursue without prejudice negotiations with all parties, as early as possible and ensure that any opportunity for consent is completely exhausted, in an attempt to cut-short the expected delays. In instances where objectors have lodged reviews against Council’s decision to grant a permit, we recommend permit applicants obtain advice to confirm whether it might be possible to have the appeal summarily struck out. A recent VCAT case, Axicom Pty Ltd v Melton CC (Red Dot) [2020] VCAT 190, provides some useful guidance on this option.

Councils

The impact on local councils has varied significantly. Here’s what we know some councils are doing: • Allowing staff to work from home (often part-time) to ensure social distancing can be maintained within existing office areas • Offering online or telephone pre-application and consultation meetings with applicants • Elongating the normal 14-day public notification period • Undertaking council meetings via video-conferencing without a public-gallery • Requiring any submission or questions to be submitted prior to council meetings • Accepting more material via email or online (electronically) Beyond the initial onset of COVID-19 restrictions in March, our office has not noticed a significant change in the timeframes that councils are taking to progress our permit applications. Our discussions with council planners have revealed that some feel they are being more efficient without the daily distractions of the office environment. In summary, we do not expect there to be a significant change in the timeframe council takes to process applications. We strongly recommend that permit applicants familiarise themselves with new council-meeting protocols to ensure you have a chance to be heard in relation to your applications.

Planning Permit Decision Time Frames

One of the most common complaints from regular permit applicants is the length of time the planning process takes. In Victoria, councils have a statutory requirement to determine a planning permit application within 60 days, subject to certain milestones which start and stop the clock (readers can visit the Clause 1 website for an in-depth article regarding calculating council’s 60-day statutory timeframe). Despite the 60-day statutory timeframe, it is not uncommon for applications to take more that six months to move through the council process. As a Victorian planning permit applicant, you have the right under Section 79 of the Planning and Environment Act (the Act) to lodge an appeal with VCAT if council fails to determine your application within the 60-day statutory timeframe. Applicants contemplating appeals under Section 79 should also be aware that Section 115CA of the VCAT Act obligates council to reimburse the applicant the whole of any fees paid by the applicant in the proceeding, unless council can convince the Tribunal it would be unreasonable to do so. However, a Section 79 appeal can add significant cost and time delays to the finalisation of a matter. It is interesting to compare Victoria’s system with the statutory timeframes for planning permit processing, in other Australian states: - New South Wales – has a “Complying development” fast-track approval process combining planning and construction approval for straightforward development, issued in as little as 20 days. Other development assessments which are not regionally or state significant and are not fast-track applications should be determined within: • 40 business days for standard applications • 60 business days for more complex applications or where other parties are involved and • 90 business days for state-significant development. If the relevant authority does not determine the application within this time it is deemed to have been refused. continued over page

Other states and territories have varying timeframes based on the type of application lodged. A number of states have a “deemed to be refused” or “deemed to be approved” provision which applies when a decision is not made in the specified timeframes, with these automatic outcomes subject to appeal. The planning decision timeframes of other states are, in summary: - South Australia has a five-business day “deemed to satisfy” pathway if a proposal meets specified criteria; 20 business days for a Commission or Panel decision; and up to 60 business days where an agency referral and/or public notification is needed. Subdivisions also generally have a 60-business day timeframe, after a 5-business day verification period. - Queensland has distinctions between “Code” assessment and

“Impact” assessment applications and has provisions for the application to be deemed to be approved if not otherwise determined within the specified timeframes. Timeframes are 10 business days for the assessment authority to confirm the application is received concurrently with 10 business days for the assessment authority to request further information; up to 35 business days to refer and receive assessment from a referral authority, then up to 35 business days for a decision to be made (less up to 10 business days for any time taken to make an

Information Request). - Western Australia’s timeframe is 60 calendar days to determine applications where no consultation is required and 90 calendar days if any consultation/referral is required. If local government has not made a decision within these timeframes the application is deemed to be refused, although a decision can be made after this timeframe. - Northern Territory is covered by the Northern Territory

Planning Scheme except for areas covered by the Jabiru Town Plan. The Planning Scheme is administered by the Department of Infrastructure, Planning and Logistics. Applications are made on-line. Applicants have a right to appeal if a decision is not made by the Department within 12 weeks (84 days) of making the application. - Tasmania requires that decisions must be made on a

“permitted application” within 28 days of the application being received. This timeframe can be extended within that 28 days by written agreement. A decision must be made on a “discretionary application” within 42 days of the application being received, which includes a 14-day public notification period. If an application has all the necessary information and a decision is not made in the timeframes, then the application is considered to be approved, although in those cases the applicant needs to appeal to the Appeal Tribunal for an order determining the conditions (if any) of the permit approval. - ACT statutory timeframes are 20 working days from date of lodgement for “code track” applications and 30 working days from date of lodgement for “merit” and “impact tracks” if no representations are received, and 45 working days from date of lodgement when representations are received. Readers should keep in mind that the above timeframes are also subject to the complexities of state- and territory-specific regulations, adding even more diversity between jurisdictions. If Victoria was able to pick some of the best bits from other states and territories, to assist permit applicants, here’s a bit of a wish-list of what we could learn: • Addition of ‘deemed to be approved’ provisions for applications that meet specific criteria • More ‘streams/types’ of applications (similar to our VicSmart system) that provide for shorter timeframes and/or more confined considerations • Reconsideration of the ‘clock-stoppers’ that currently unreasonably elongate decision timeframes • Increased delegation from councillors and/or more frequent council meetings to determine applications • More significant consequences for authorities that take too long to determine applications • ‘Deemed to be approved’ provisions for applications that extend beyond the statutory timeframe. Ahhh, it’s nice to dream…

These tidbits are part of the regular contribution made by Clause 1 Planning to Intersect. For more information visit www.clause1.com.au

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