Reimbursement of fees provisions in VCAT have teeth!

The Tribunal has recently considered the new reimbursement of fees provisions inserted into the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) in 2014. 

Sections 115B and 115CA of the VCAT Act provide for an applicant to seek to have hearing fees reimbursed by the responsible authority.  Section 115CA specifically relates to an application under section 79 of the Planning and Environment Act 1987 to review the failure of a responsible authority to grant a permit within the prescribed time.

In Tiber Amber Pty Ltd v Stonnington CC (Red Dot) [2015] VCAT 965 (Tiber Amber), the Tribunal ordered Stonnington City Council (Council), as the relevant responsible authority, reimburse the applicant $1903 representing the amount of the application fee. 

Section 115CA(1) sets out a starting presumption that an order for reimbursement of fees will be granted in applications under section 79.  The presumption does not apply if a responsible authority satisfies the Tribunal there was reasonable justification to fail to grant the permit before the application to the Tribunal was lodged having regard to the factors set out in section 115CA(3). 

Those factors include:

1. the nature and complexity of the permit application;
2. the conduct of the applicant in relation to the permit application; and
3. any other matter beyond the reasonable control of the responsible authority.

In Tiber Amber, the Council made detailed submissions against the award of fees and identified a number of issues as relevant to set out aside the presumption. 

In particular, the Council pointed to the complexity of the proposal and the conduct of the permit applicant in failing to respond to Council’s early concerns regarding the proposal. 

The Tribunal, constituted by Member Deidun, was not persuaded the permit application (comprising five dwellings above a basement car park in a residential setting) was complex, noting that the proposal was not exceptional or different to many applications the Council would handle on a daily basis.  Instead, the Tribunal called the proposal relatively straight-forward, pointing out the site was not affected by any overlays with no requirement to refer the proposal to any authorities.

The Tribunal was similarly unpersuaded the conduct of the permit applicant was relevant to oust the presumption.  The Tribunal indicated any failure by an applicant to respond to a council’s early concerns would, in the event the council’s concerns remain unresolved, ordinarily result in a decision by that council to refuse to grant a permit.    

The Council also identified staffing issues (part time employees and leave arrangements) and delays in decision making due to the timing of Council meetings, as being relevant matters beyond its reasonable control.  In this instance, the Tribunal concluded that these matters were not relevant, commenting that staffing arrangements are a matter which council’s routinely need to deal with (particularly inner city councils with relatively large workforces). 

The Tribunal was critical of the time taken by Council to send the further information provided by the permit applicant to its internal departments and issue instructions to give notice of the application. Member Deidun noted that as it was likely the permit application would be required to be reported to a Council meeting, Council’s early processing of the application was ‘not timely’.  

While Tiber Amber serves as a noteworthy decision upholding the presumption that an order for reimbursement of fees will be granted in applications under section 79, interested parties should also watch out for a decision by the Tribunal setting aside the presumption. 

For more information contact:

Greg Tobin
Principal
Harwood Andrews
T: 03 5225 5252
E: gtobin@harwoodandrews.com.au     

Laura van Dyk
Senior Associate
Harwood Andrews
T: 03 9611 0172
E: lvandyk@harwoodandrews.com.au