By Callum Ludwig
The Victorian Civil and Administrative Tribunal (VCAT) has recently reached a decision on whether Yarra Ranges Council must reimburse the application fees and costs of a hearing over a dispute based in Healesville.
Yarra Ranges Council has been ordered to reimburse the $1380.97 fee to Sharon Keeble after they failed to grant a permit within a prescribed timeframe (60 days) but will not have to cover the applicant’s $24,946 costs from the 15 March 2023 hearing.
Ms Keeble initially sought a permit from Yarra Ranges Council on 8 December 2021 to construct a second residential dwelling over 7.5m in height to be used for accommodation on a residential property as well as demolish an existing front fence, construct a new front fence and remove vegetation. The property is listed on short-stay accommodation site Airbnb.
Following the application, Yarra Ranges Council indicated they supported the permit subject to conditions, two of which were opposed by the applicant. The application was amended on 21 June 2022 after discussions between both. 114 days had elapsed by the time of the Application of Review on 14 October 2022, beyond the standard 60-day statutory timeframe.
VCAT amended the application by substituting amended plans and ordered that a permit be issued subject to conditions, deleting the disputed conditions from the permit and ordering Yarra Ranges Council to reimburse the application fee. Yarra Ranges Council were welcomed to make a written submission and contested the application fee.
Yarra Ranges Council submitted that the nature and complexity of the application justified the prescribed timeframe being exceeded, due to the need to consider the stipulations for a second dwelling in a Neighbourhood Residential zone with a Bushfire Management Overlay (BMO1), Heritage Overlay (HO427) and Significant Landscape Overlay (SLO22).
Senior Member and Town Planner at VCAT Laurie Hewet passed down the decision on Friday 16 June and in it said they were not persuaded by the Council’s submission on this point.
“The identification of legitimate planning issues is not sufficient of itself to demonstrate a justification for the failure to grant a permit within the prescribed time. The issues in the application related to neighbourhood character, heritage, amenity and vegetation removal,” they said.
“These are the type of issues routinely dealt with by responsible authorities on a regular basis. I am unable to identify any matters associated with this application that would elevate the consideration of those issues into the realm of complexity that would justify the Council failing to deal with those issues within the prescribed time,”
“I have therefore ordered the responsible authority to reimburse the application fees.”
In the application for costs, Ms Keeble’s total costs were made up of heritage expert witness fees($14,300), professional reviews of witness statements ($2200), preparing submissions and attending the 15 March 2023 hearing ($8446).
Laurie Hewet said the ‘normal rule’ is that parties bear their own costs in a proceeding unless the Tribunal is satisfied that it is fair for a party to pay for part or all of another party’s costs.
“The applicant submits that the responsible authority’s conduct and the timing of the circulation of its position on the application resulted in the applicant for review incurring unnecessary costs,” they said.
“In broad terms, it submits that the responsible authority had consistently advised the applicant that the proposal was opposed. The responsible authority’s opposition to the proposal continued to be communicated to the applicant following the filing of amended plans,”
“On the basis of that advice, the applicant prepared for a contested hearing and engaged the services of a heritage expert to provide evidence at the hearing.”
At the hearing, Yarra Ranges Council did not oppose the amended plans, but they were also not referenced in the delegate report they provided which supported the permit being granted.
Laurie Hewet said the basis of the application is that the applicant was subjected to unnecessary costs because the Yarra Ranges Council did not reveal its position on the proposal until a week before the hearing.
“In relation to the proceeding itself, the responsible authority did not engage in conduct that unnecessarily disadvantaged the applicant. The responsible authority complied with VCAT’s orders and directions,” they said.
“The responsible authority’s performance in this matter during the processing of the application and leading up to the filing of its submission prior to the hearing is justifiably a source of great frustration for the applicant. This is not however grounds for an award of costs.”
The duration of the hearing on 15 March 2023 was listed for one day, but was concluded in less than three hours with the decision read aloud, the permit issued and dispute conditions dropped.
Laurie Hewet said it was open to the Tribunal to consider all relevant aspects of the proposal including the proposal’s affect on the significance of the heritage place.
“In the circumstances of this case, the applicant’s decision to engage expert heritage evidence may have been considered necessary irrespective of the responsible authority’s belated support for the grant of a permit,” they said.
“The preparation of submissions by the applicant’s advocate and the advocate’s appearance at the hearing were also necessary components of the applicant’s preparation for the hearing and presentation to the Tribunal,”
“In these circumstances and for these reasons I have decided against making an award of costs against the responsible authority.”
Yarra Ranges Council was contacted for comment.
Owner of the property Sharon Keeble said minor amendments were subsequently made to permit and submitted to satisfy Council’s concerns.
“Yarra Ranges Council took no discernible action to progress the application and blocked attempts to negotiate a positive outcome,” she said.
“We would not recommend pursuing a planning permit with Yarra Ranges Council unless you have a resilient nature and deep pockets.”
