It is a difficult position to be in when a planning application has been submitted to Council and is refused. There is a significant amount of time, effort and investment that has gone into the application and now more time, effort and investment is required to figure out the direction that should be taken. Despite the rejection of the application, there is an option to take that could prevent you from going back to the drawing board.
If a planning application has been submitted to Council and refused, changes can be made to the plans after an application for review has been submitted to VCAT. Oftentimes, only minor changes are required to turn a refusal into approval.
If you decide to amend an application, the objective is to address the specific issues that resulted in a refusal so that the tribunal can issue an approval.
VCAT’s Practice note – PNPE9 – Amendment of plans and applications states that As a guiding principle, amendments should not be used to materially increase the scale or intensity of a proposal or to introduce significant new aspects that have not already been considered by the original decision-maker.
This means that an amendment should not introduce something new, such as an additional land use, or storey to a building. As a rule of thumb, it is beneficial for a decrease rather than an increase in development intensity. For example, if a multi-unit development has been refused, an amendment could include a reduction in the number of units, which may also result in a lower density, reduction in traffic and an increase the permeable and landscaped area, all of which could be more favourable.
When VCAT members review a case, it is considered to be a fresh look at the application. There is an assessment of the proposed development against the information submitted to VCAT (which in this case is the amended application and plan), the planning scheme and relevant laws.
The permit applicant must give notice of the amendment to the Tribunal at least 35 to 30 days before the first day of the hearing. It is at the discretion of VCAT to accept and amendment and, if accepted, the amendment will be replaced by the initial proposal submitted to and refused by council. If the amendment represents a gentler development, this could potentially have the benefit of reducing the concerns of any objections submitted by those who have registered as a party to the proceeding, potentially reducing the number of objectors attending the hearing. This may also demonstrate to the Tribunal that the permit applicant has made a genuine attempt to address comments from the responsible authority and objectors.
In our experience, 95% of applicants will avail of this opportunity to amend their plans or proposal before a hearing. This means a more favourable case and a better chance of obtaining a permit through your VCAT appeal.
If you have received a refusal of your recent planning application by council and you would like to understand the opportunity the VCAT process gives applicants to make changes to their proposal then reach out to our professional planning team for an initial consultation.
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