At the end of the notification period (if notice was undertaken), the council or responsible authority will assess the proposal and decide to:

  • issue a notice of decision
  • grant a permit
  • refuse a permit.

A permit can be granted with or without conditions, and a proposal can only go ahead if all conditions are met. For example, a permit for a restaurant might be issued on the condition that a certain number of car-parking spaces are provided.

The applicant and all objectors (if there were objectors) are informed of the council's decision via a Notice of Decision or a Notice of Refusal. The notice will outline the next steps you can take.

There are opportunities to apply to VCAT for a review such as if a permit condition is unacceptable or if council fails to make a decision in time.

Assessment

The council planner prepares a report (generally called a delegate report) which describes:

  • the proposal
  • the relevant policies and planning scheme requirements
  • the assessment process
  • any submissions and referral comments, and the response to them.

The planner will make a recommendation about whether or not a planning permit should be granted. They have to judge how well a proposal meets policy objectives in the planning scheme, and they may have to strike a balance between competing objectives.

A planning application is usually determined through one of two processes:

  1. under delegation by council delegates (usually council officers);
  2. via a meeting of the council (or a decision of the Minister where the Minister is the responsible authority).

The process is different if your application is assessed as VicSmart. These applications aren’t advertised, the assessment time is shorter and the decision is made by the Chief Executive Officer of the council or their delegate.

More about VicSmart applications

Decision to grant a permit

A permit is nearly always subject to specified conditions that must be met.

Issuing the permit:

  • if there are no objections, council can issue the permit immediately
  • if there are objections, council can only issue a Notice of Decision to Grant a Permit; all concerned parties will receive a copy of the notice.

The Notice of Decision to Grant a Permit doesn’t have the same legal status as a permit, but it signals council's intention to grant the permit and identifies the conditions to be included on it.

An objector has 28 days to lodge an application for review. If VCAT confirms that no application has been lodged within the 28 days council will issue the permit. If an objector lodges an application for review within 28 days of the notice being given council can’t issue the permit. The application will be decided by VCAT.

If council issues a permit, you’ll receive a copy of the permit and the endorsed plans (unless the permit conditions require the submission of revised plans). These are important documents and should be kept in a safe place. Don't use the endorsed plans as your working plans.

Refusal to grant a permit

If the council refuses to grant the permit they’ll issue a notice of Refusal to Grant a Permit:

  • the grounds for the refusal will be listed on the notice
  • they’ll give a copy to you and all other parties involved in the application process
  • information about applications for review to the Victorian Civil and Administrative Tribunal (VCAT) is printed on the back of the refusal notice.

A council planner might let you know in advance if your application is going to be refused. This gives you an opportunity to make changes to the application that address council's concerns. You’re not under any obligation to make changes; sometimes there’s a fundamental difference between what you want to do and the council’s decision that can only be resolved at VCAT.

Council doesn’t have to accept the council planner's recommendation, and might refuse the application even if the planner recommended it. There are many reasons why it may be overturned.

When an application is refused you have 60 days from the date the notice of the refusal is given to apply to VCAT for a review of the decision. If you want to lodge an application for review, do it as soon as possible.

Permit conditions and expiry

Comply with all permit conditions

Check the conditions carefully and note any that must be complied with before the use or development commences. For example, amended plans may be required or there may be a condition requiring a landscape plan to be prepared and approved by council. You can’t act on the permit until your specific conditions have been met and the plans have been endorsed by council.

Check expiry

Most permits expire two years from the date of issue, however, specified times might be included as a condition of the permit.

Review

If a permit condition is unacceptable, you have 60 days from the date the permit was issued or the Notice of Decision to Grant a Permit was given, to apply for a review. If you want to lodge an application for review of the conditions, do it as soon as possible.

Failure to determine in time

If council fails to make a decision about the application within 60 statutory days, you can apply to VCAT for a review. The 60 days must be calculated in accordance with Regulation 32 of the Planning and Environment Regulations 2015.

If the 60-day limit is approaching, ask the council planner what the recommendation will be, when the decision will be made, and the reasons for any delay. Reviews against the failure to make a decision are relatively uncommon because council usually makes a decision before the hearing date at VCAT. However, if a refusal is recommended, it may save you some time in the VCAT system if you have applied for a review under this provision. The appropriate action will depend on the particular circumstances.

VCAT Review

Eligibility for review

You can lodge an application for review to the Victorian Civil and Administrative Tribunal (VCAT) if:

  • your permit application is refused by the council or responsible authority
  • the decision contains conditions you’re not happy about
  • a decision hasn’t been made in time
  • you’re an objector and council has issued a Notice of Decision to grant a planning permit.

There are some other reviews that can be lodged, such as whether a proposed use requires a permit.

VCAT conducts public hearings and considers submissions from all parties involved. They assess the proposal's planning merits, decide whether a permit should be granted or refused, and what conditions are appropriate.

VCAT uses a different process for VicSmart applications. More information is available on the VCAT website.

Process

The process is largely the same for permit applicants and objectors:

  • objectors have 28 days to lodge an application for review;
  • recommending referral authorities have 21 days to lodge an application for review;
  • permit applications have 60 days from when the decision was made.

The application for review must be submitted on the official form and sent to the Administrative Division of VCAT, 7th Floor, 55 King Street, Melbourne 3000, with the fee.

One or more VCAT members will hear the case. Hearings are conducted in a structured, formal way. Although parties may be represented by a lawyer or planner, this is not essential and many permit applicants and objectors present their own submissions.

Once it has commenced, a proceeding can only be stopped if VCAT agrees to it.

Any decision of VCAT is final and binding on all parties to the review, except on questions of law. An appeal against a tribunal decision on a question of law may be made to the Supreme Court.

Cost

Parties to a VCAT proceeding normally bear their own costs.

Costs and sometimes damages may be ordered against those who lodged the application for review if the tribunal considers:

  • the proceedings are vexatious or frivolous
  • the proceedings are to secure or maintain a direct or indirect commercial advantage
  • that someone has suffered as a result

An application for costs usually applies against a council in the case of failure to determine appeal.

More information

  • If you need more information on the review procedure, visit the VCAT office at 55 King Street, Melbourne or go to www.vcat.vic.gov.au

Page last updated: 25/05/22