The below opinions are those of Sam D’Amico, and do not necessarily reflect the views, policies or position of Ratio.
Sam has prepared this series to open a dialogue about the planning system in Victoria and to encourage bold and courageous thinking about how we can improve planning in Victoria.
With more articles to come, Sam would be keen to hear from readers about their suggestions for improving the planning system.
Please reach out to Sam at mail@ratio.com.au.
I love a party, but sometimes a third party is a step too far. In Victoria, the current planning and development process allows third-party objector appeals, which give individuals and groups the right to challenge planning decisions made by local councils and government authorities. While this mechanism was initially introduced to ensure transparency and public participation in the planning process, there is a growing sentiment from the development industry and government that some are abusing or devaluing the process, and driving up the cost of housing.
There are generally no third-party appeal rights for planning decisions in Western Australia. Whilst, NSW and QLD have third-party appeals, as the appeal process is through the Land and Environment Court or Planning and Environment Court respectively, expenses are high and costs can be awarded against applicants which keeps third-party appeals to a minimum.
Costing Cases
At present, the cost to a permit application or objector to lodge a third-party appeal under the Standard Cases List at VCAT is $960.20. A Major Cases List appeal has greater fees of between $3,364 to $5,013.13 or $2,694.50 to transfer a third-party appeal from the Standard List to the Major Cases List. Major Cases also carry daily hearing fees of $3,935.50.
However, it is not just the hearing application and daily hearing fees that add to the development cost. The financial implications of an appeal are substantial. Developers face increased costs due to representation fees as they often represented by a lawyer or town planner. Hearings often contain one or more expert witnesses engaged by the permit applicant, plus drawing revisions prepared by the architect/designer. It is not uncommon for major cases to have consultant and legal fees running into the hundreds of thousands. These costs must be passed on to the end-purchasers/renters, resulting in higher prices for housing and other developments.
Additionally, one of the most significant cost implications of third-party appeals is the delay they cause which adds tens to hundreds of thousands of dollars in holding costs. As is evident from the appeal timeframes, when a project is appealed, it can be stalled for months. These delays are not just costly for developers, but also for the broader community.
The Victorian Process
While studying Town Planning at University I learned that the reason Victoria had an appeal process through VCAT rather than a court (as is the case in other states) was to increase accessibility, give a voice to those genuinely affected by planning decisions, and to keep costs to a minimum as developers are also able to represent themselves. However, as the cost of land and construction skyrockets, the stakes are much higher for developers, which has led to the growing legalistic nature of appeals.
While community input is valuable, there needs to be a balance between public participation and the expertise of those who understand the complexities of planning. Ending third-party appeals does not necessarily mean excluding the public from the planning process. However, it could offer opportunities for enhanced community consultation processes during the early stages of planning, where feedback can be integrated before decisions are made. Additionally, the use of technology could be expanded to allow for broader and more accessible public engagement, ensuring that community voices are heard without the need for formal appeals.
While third-party appeals were introduced with good intentions, their impact on Victoria’s planning and development process has become increasingly problematic. The delays and costs associated with these appeals suggest that it may be time to reconsider their role in the state’s planning system. At the same time, alternative methods for public participation could be improved, ensuring that the community still has a meaningful voice in shaping the future of the state.
I plan on releasing a series of articles that challenge our system and would be keen to hear from readers and industry practitioners about their suggestions for improving the planning system.
Please reach out to Ratio at mail@ratio.com.au.
