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VCAT Rules against Councils for Refund of Fees

September 22 2015

The introduction in September 2014 of Section 115CA of the VCAT Act 1998 entitled applicants to a refund of fees where a number of tests were met.  In short, for certain types of applications (i.e. a failure by Council to determine the application within the specified time frames) it is possible for VCAT to order Council to refund application fees.

Initially there were only a number of similar cases appearing, but in recent months there has been an increasingly steady flow of these cases.

Within the recent case, Tiber Amber Pty Ltd v Stonnington CC (Red Dot) [2015] VCAT 965, the tribunal instructed parties to make submissions on such an order before ruling that the Council should reimburse for the application fees.

The Council submission argued that there was a range of complex issues which resulted in the inability to determine an outcome.  These were:

  • Sensitive interfaces
  • Number of trees on site
  • Complex range of setbacks
  • Excavation requirement
  • The extent and nature of internal referral comments required
  • Conduct of the Applicant
  • Staffing Issues
  • Lead time required to present to Council

The Tribunal decided to reimburse fees in relation to several points:

  • Unconvinced it was a complex case
  • Mismanagement in advertising time period
  • Unconvinced staffing was an issue as this is an issue Council must normally manage

There were also a number of similar key cases that relate to the reimbursement of application fees, these being:

Great Brothers Property Developments Group Pty Ltd v Monash CC (Red Dot) [2015] VCAT 1015 and Vasilaras v Kingston CC (Costs) [2015] VCAT 1122.

These are based around similar grounds as Tiber Amber Pty Ltd v Stonnington CC, in that the issue of complexity was disregarded by the Tribunal.

Broader applications for costs, not made under the Section 115CA were unsuccessful, highlighting that the Section 115CA applications are a distinct category of application, which is different from the tribunals usual reticence to award costs.

There have been several observations about these cases:

  1. That Council’s hoping to avoid an order under the section need to make their case with careful reference to the tests under the Act.  Whatever merits, those tests define the limits of the Tribunal’s discretion and there would appear to be little hope of avoiding reimbursement by relying on other grounds.
  2. The question of complexity and when a project is considered complex enough for it not to warrant a reimbursement.
  3. The question is raised as to how the application and advertising process should be approached.

There are questions and discussions raised as to the process of advertising and when it should occur as to optimize its efficiency and purpose.

Points are raised in regards to the implications of Council giving early, up front detailed advice post submission and its effect on the time frames considering the alterations and  diligence that clients and applicants will give within their submission.

There is also arguments within the text as to the ability for the Planning and Environment Act 1987 to be able to deal with these issues within 2015.