Clause 32.08-4 to construct two or more dwellings on a lot on land within the General Residential Zone.

Clause 52.06-3 to reduce the standard car parking requirement.

Clauses 9, 10, 11, 15, 16, 21, 32.08, 52.06, 55 and 65.

The land is an almost rectangular allotment of some 603 square metres, with a frontage to Summers Street of 11.14 metres, and a depth of between 54.16 and 54.26 metres. The land presently supports a single storey detached dwelling and a garage built to the front boundary.

The Tribunal inspected the site and surrounding area prior to the hearing, on 22 May 2015, and again on 3 June 2015.

Tiber Amber Pty Ltd v Stonnington CC [2015] VCAT 810.

1. On 1 & 3 June 2015 I conducted a hearing concerning a proposed development of five dwellings above a basement car park on land at 11 Summers Street, Prahran (the 'review site'). The proceeding relates to the failure of the Stonnington City Council to grant a permit within the prescribed time. Towards the conclusion of the hearing Tiber Amber Pty Ltd (the 'Applicant') applied for the Council to reimburse their application lodgement fee of $1903.90. The Application was made in accordance with Section 115CA of the Victorian Civil & Administrative Tribunal Act. As requested by the parties, on 3 June 2015 I issued an order setting out timelines for the lodgement of further submissions on this matter. On 10 June 2015 I issued an order setting aside the Council's decision, and directing the grant of a permit.
2. In response to my orders of 3 June 2015 I have received from Stonnington City Council a submission dated 17 June 2015, and a further submission on behalf of the Applicant dated 22 June 2015.
3. This Application for reimbursement of fees comes about as a result of very recent amendments to the VCAT Act. In terms of my decision making about the reimbursement of fees, Section 115CA(1) sets out that there is a starting presumption that an order for reimbursement of fees will be granted in Applications under Section 79 of the Planning and Environment Act. That is in relation to proceedings where the Responsible Authority has failed to grant a permit within the prescribed time, being 60 days. Section 115CA(3) sets out the following guidance for my decision making task.

(3) Subsection (1) does not apply if the responsible authority satisfies the Tribunal that there was reasonable justification for the responsible authority to fail to grant the permit before the application to the Tribunal, having regard to -

(a) the nature and complexity of the permit application; and

(b) the conduct of the applicant in relation to the permit application; and

(c) any other matter beyond the reasonable control of the responsible authority.

1. The Stonnington City Council has made very detailed submissions against the awarding of fees, which address a broad range of issues, many of which I have not found relevant to my consideration. They submit that the proposal is a complex one, considering the number of sensitive interfaces to the site, the number of trees on the site and an adjoining property, the complex range of setbacks, the proposal to excavate below ground level for the ground floor, the extent of internal referrals required and the responses received from two of those internal referrals.
2. The Council also submits that the conduct of the Applicant contributed to the failure of the Council to determine the application within the prescribed timeframe. In particular the Applicant is criticised for not responding to outlined concerns regarding the proposed development early in the application process.
3. Next the Council identifies staffing issues, namely that the Council officer works part time, that the officer was on leave for three weeks, and that the officer handling the application was changed during the application process.
4. The Council also notes that its decision making in regard to the planning application is delayed by the requirement to report this matter to a Council Meeting, which requires a lead-up time for Council reports of approximately three weeks. Council also identifies that a break in Council Meetings occur over the Christmas period.
5. Finally, the Council responds at some length to the submission from the Applicant about what occurred after the lodgement of the Application for Review. However I agree with the Council's submission that the events that occurred after the lodgement of the Application for Review are not relevant, so I will not delve into those events in this decision.
6. I am not persuaded by the Council's submission that this matter is a complex one. The proposal comprises five dwellings above a basement car park, in a relatively standard residential setting. The design is not that exceptional or different to many which I would expect Stonnington City Council to handle on a daily basis. The proposal is not of a scale where views of the built form needed to be considered from any locations further away than the immediate context. Further, the review site is not affected by any overlays, and no referral authorities exist in relation to this proposal. Compared to the very large and complex proposals that Stonnington Council deal with in other parts of its municipality, this proposal is relatively modest and straight-forward.
7. I note in the Council's submission they identify that this proposal had to be reported to a Council Meeting, due to the number of objections received, with the threshold for such reporting sitting at seven or more objections. Further, the time required to have a report completed prior to a Council Meeting is approximately three weeks. Given the threshold for the number of objectors, there is a relatively high potential for any planning permit application to need to be reported to Council, though that position will not be known until later in the application process.
8. Given this potential, I observe that the early processing of this application by Council was not timely. After the date of lodgement of further information, it took the Council 21 days to send information to internal departments, and 33 days to require notice to be given. As notice must be given for 14 days, such a delay in the early processing of this application was never going to allow enough time for the matter to be reported to Council, in the event that more than seven objections were received. As it is, the Applicant returned their statutory declaration concerning the erection of a sign on site for 14 days, at day 48, being 15 days after notice was required to be given. That constitutes very timely action on behalf of the Applicant. However the receipt of a statutory declaration on day 48 does not allow the Council the time they require to report the matter to a Council Meeting within the 60 day period after which a failure appeal may be lodged. It is in this analysis that the 33 days Council took to give instructions regarding the giving of notice becomes a key issue. Given the timing delay which Council has in reporting matters to Council, and the potential for any application to garner seven or more objections and thus need to be reported to Council, there needs to be a more timely early processing of the application, in terms of the giving of notice to surrounding residents.
9. In my view this is the determinative matter in this proceeding. The Council, by taking 33 days to issue instructions to give notice, placed themselves in a position from which they could not possibly decide the application within 60 days, once seven or more objections were received. Given this relatively low threshold, this is a potential for which Council should have been prepared. The fact that Council found themselves in this position was not contributed to at all by the Applicant's conduct. It was also not affected by actions taken by Council and the Applicant both before the lodgement of the requested further information, and after the lodgement of the statutory declaration concerning the giving of notice. For these reasons I am not persuaded that the other matters raised by Council are relevant, for the reasons I set out below.
10. The Council identifies a series of phone calls, emails and the like that occurred from day 55 onwards. While that may have delayed the Council decision making process, all of that occurred after Council found themselves in a position unable, due to their Council Meeting timelines and delay in giving notice, to make a decision in the required time. For this reason I am not persuaded that the various contacts made between days 55 and 79 as detailed in the Council's submission can be said to be action on behalf of the Applicant that contributed to Council's failure to make a decision within the prescribed time.
11. Likewise I do not consider the nature of the staffing arrangements within Council identified in this proceeding to be a relevant matter. Councils regularly need to deal with part time workers, and staff on leave, particularly in an inner city Council with a relatively large workforce. Where such matters delay the processing of planning permit applications in a timely manner, these are insufficient grounds to avoid the reimbursement of fees in a proceeding of this nature. These are all matters within the reasonable control of the Responsible Authority.
12. Finally, I do not consider the failure or refusal of the Applicant to amend the proposal early in the process in response to Council's stated concerns to be a justifiable reason for the Council's failure to process the Application in the prescribed time. In the event that Council holds dear to those concerns, the failure or refusal of an Applicant to respond at all, or respond adequately, would normally result in a decision to refuse to grant a permit. If instructions to give notice of the application had been issued by Council in a timely manner, then there would have been sufficient time for Council to report a recommendation for refusal to a Council Meeting.
13. In conclusion, I find that:

1. The nature and complexity of the permit application did not justify the failure of the Responsible Authority to grant a permit within the prescribed time; 2. There was no conduct by the Applicant which contributed to the failure of the Responsible Authority to grant a permit within the prescribed time; and,

1. There were no other matters which were beyond the reasonable control of the Responsible Authority that justified the failure of the Responsible Authority to grant a permit within the prescribed time.
2. For these reasons the Council has not persuaded me that the presumption of awarding of fees against Council should not apply in this proceeding. I will therefore order the Council pay the lodgement fee as sought by the Applicant. The Applicant was entitled to also apply for reimbursement of the hearing fee for the second day of the hearing. They failed to do so, indicating orally at the conclusion of the second day of the hearing that they did not seek such reimbursement.

[1] Section 4(2)(d) of the Victorian Civil & Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] I/We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I/We do not recite or refer to all of the contents of those documents in these reasons.