Life in the (planning) fast lane… what’s the cost?

Last year the State Government expanded Victoria’s Development Facilitation Program (DFP) – making the Minister for Planning the decision maker for significant residential developments ($50 Million or more in Melbourne, or $15 Million or more in regional Victoria) that include affordable housing.

As a result of these changes to the DFP, many developers have (or are in the process of) transferring back-logged Council permit applications to the DFP.

Developers need to be mindful that transferring an existing Council permit application to the DFP will necessitate the payment of a fresh round of the Metropolitan Planning Levy (MPL) and application fees.

This is because while the process is described as a ‘transfer’ of an application from Council to the DFP, developers are in fact withdrawing their existing permit application with Council and lodging an entirely new permit application with the DFP, once the DFP pre-application steps have been undertaken.

What does this mean for developers? In short:

• the MPL will need to be paid again in full; and
• there may be an ability to seek a full or partial refund of the planning permit application fees previously paid to Council.

MPL Refund

The MPL is imposed for making a leviable planning permit application for developing certain land in metropolitan Melbourne.

A refund of an MPL can only be provided if:

• there has been an error in calculating the amount;
• if the applicant died prior to the permit application being made and no one else is proceeding with the application; or
• if the relevant planning scheme was amended before the permit application was made, and the permit application must not be granted because of the amendment.

Refunds are not available in any other circumstances, including where the application lapses, is refused or withdrawn.

As such, if a developer withdraws an existing permit application with Council and lodges an entirely new permit application with the DFP, the MPL paid on the Council application cannot be refunded and a new MPL payment will need to be made, before the DFP can accept and process the new planning permit application.

Planning Permit Application Fee Refund

Developers can however seek a full or partial refund of a Planning Permit Application Fee under Regulation 20 of the Planning and Environment (Fees) Regulations 2016 (Regulations) in respect of a withdrawn Council permit application.

Under Regulation 20(a), a fee paid in connection with a planning permit application can be waived or refunded (fully or in part) if an application is withdrawn and a new application is submitted in its place. This would cover a scenario where a developer withdraws a Council permit application and lodges a new permit application with the DFP.

There is no statutory time limit on applying for a refund under the Regulations. However, from a practical perspective, we recommend that a developer submits its refund request to Council as soon as possible after their Council permit application is withdrawn and a new DFP application is submitted in its place.

If you have any questions, or if we can be of assistance to you in respect of a particular planning permit application, please get in touch with our team.

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Authored by:

Andrea Townson, Partner
Anthony Tchakerian, Lawyer