Property development guide part 11 – Tackling the red tape

In the following article, I'll explain how you might tackle the hurdles and requirements to get your development underway. 

One of the biggest hurdles faced by any property developer – whether a seasoned veteran or a green beginner – is the bureaucratic maze known as the planning permit or development approval process.

Oftentimes, those dipping their toes in the unknown waters of property development become disheartened at this stage of their preparation as their application to the local authority sits gathering dust, unheeded in some town planners’ in-tray for what can seem like a lifetime.

Furthermore, the fact that town planning legislation is constantly changing and can be difficult to navigate sees many budding developers simply throw in the towel and admit defeat as they become entangled in reams of red tape.

In this instalment of our series on property development, I will walk you through the planning permit process, shedding much-needed light on where you should seek professional help and how you can best deal with councils and town planners in order to get your project from a concept on paper to a property you can profit from.

Building regulations and planning approval – what’s the difference?

Planning and building permits are often confused, but in fact, they are relatively simple to distinguish.

Planning or development approval is concerned with appearance and impact on the environment, street and neighbourhood and to get the green light, you will need your architect or designer to produce plans of your proposal to submit to the local council in order for them to decide whether they are acceptable.

Whereas building permits or approvals are to do with the standard of construction and it is at this stage that the Council needs to ensure your development meets all of the local building code regulations.

Therefore, once planning permission is approved a more detailed set of plans is drawn up and engineering calculations are carried out in order to complete a set of “working drawings.”

These drawings, technical specifications and calculations for the structure of your proposed development are then sent to either the local council or a private building surveyor (or private certifier) to ensure they comply with the Australian Building Standards.

Note: In Victoria, you obtain a building permit while in NSW you apply for a construction certificate.

Construction of a new dwelling cannot legally be carried out until a building permit has been issued by a building surveyor, who will make certain that the buildings comply with the building regulations.

The building surveyor has to confirm that a planning permit has been issued for the proposed development if necessary and that the proposed building permit is consistent with the planning permit.

He must ensure that the builder contracted to complete your development is registered and carries appropriate insurance and that adequate documentation has been prepared to correctly construct the building to comply with the relevant building codes.

Note: The permit also requires that the key stages of work are independently inspected by the building surveyor and the project is constructed and completed correctly.

This process can be long and requires a lot of patience as the building surveyor often sends back a checklist of questions or requests for further information and sometimes the drawings have to be amended and resubmitted.

Once you have obtained a building permit you can commence construction straight away or begin anytime within two years, as the permit remains valid for this period of time.

In most cases, you will require a further permit for the subdivision, which subdivides one lot of land into smaller parcels for each dwelling. This plan of subdivision also calls for a planning permit from the local council that will eventually be lodged in the title office to obtain separate titles.

The Development Application (DA)/Planning Permit (PP) process

Obtaining council approval

The state government establishes planning policies for housing which are in turn implemented by local councils.

These policies have a number of goals, including:

• Satisfying economic targets
• Satisfying environmental objectives
• Satisfying social needs

Generally, these policies aim to:

• Provide space for new housing and support the planned growth of the population.
• Increase housing density, especially around existing infrastructure such as transport nodes, railway stations and shopping facilities.
• Reuse land where possible.
• Protect the amenity of the area and neighbours including heritage overlays.

This means that the construction of new dwellings, demolition of old dwellings, subdivisions and change of use of dwellings all must have local council approval, which typically involves preparing and lodging a number of documents for their consideration.

In Victoria, this process is known as a planning application, while in many other states the documents are called a development application; from which you will hopefully receive a town planning permit in Victoria or development consent in other states.

Each state and territory has its own planning laws and each council follows its own procedures for assessing applications and granting development approvals, so it would be a mistake to assume the rules and terminologies will be the same from council to council.

That's why it’s important to visit the local council town planning officer of the municipality in which you want to do your development early on in the piece to find out their specific requirements and avoid hassles down the track.

The planning process

The planning process goes something like this; once your architect has finished the town planning drawings you will need to lodge these with the local council, together with a development application and all relevant supplementary documentation.

In due course, you will receive written notification from the council acknowledging that your application has been lodged and at this time you will be advised which planning officer has been assigned to assess your application.

Note: Eventually – and this is the part that can seem like an eternity - the council planning officer will review your application and make a preliminary assessment.

At this point they will study the plans for your development against their Town Planning Regulations, checking to make sure that your proposal fits the usage they have planned for the area and that it will fit into the overall strategic design they have for meeting the needs of the local community.

Don’t be surprised to find that you are asked to supply more details at this stage, as they almost always require further information and may suggest it is necessary to make design modifications to your proposal.

All of these requests will be formally sent to you in writing.

While you are required to provide any further information to the council as directed, you have the freedom to choose whether you adopt or ignore their suggested modifications to your project design.

Of course, playing hardball and refusing to budge at all could create some hassles for you down the track, but if it means compromising the marketability of your end product you need to carefully weigh up the pros and cons of taking the council’s ideas on board.

Once the council has received all of the information they require, the application is advertised; generally, a notice is displayed on the site and written notices are sent to adjoining property owners and any other parties that may be affected by your proposal.

Note: This notice usually gives those notified 14 days to view the plans at the council and lodge any objections.

Council is required to consider any objections that are based on legitimate planning issues, however, in my experience, most objections from neighbours are based more on emotional grounds or private issues.

While the council states that the people notified have 14 days to lodge an objection, in reality, the council can accept objections up until the date they make a final decision.

Once the notification sign has been erected on your property for the required period it is removed and the applicant must sign a statutory declaration to verify the sign was erected on the site for a period of 14 days.

To assist the council town planning officer to make a decision on your application, it is also referred to various authorities and internal departments of the council. Where relevant to your application these could include:

• Council engineering department who would consider any drainage issues 
• Council traffic department
• Council arborist to assess the development’s effect on any local vegetation
• Water and sewerage authorities
• Road authorities like Vic Roads

Once the council receives responses from these authorities and the advertising period is over, the town planners are able to make a decision on your planning application.

Where objections have been lodged, some councils will conduct a preliminary conference with the applicant and the objectors to attempt to resolve any issues.

The council town planning officer will then assess the proposal and prepare a report making a recommendation to the council in respect of the application.

The council officer’s report is made either to a council delegate, usually the team leader of development approvals, or sometimes directly to a council meeting.

At this point, the council delegate or the council will make one of the following decisions;

Approval

If the application is approved, either a notice of decision to grant a planning permit will be issued where an application has received objections, or a straightforward planning permit (development approval) will be issued where there were no objections.

Sometimes these permits may contain conditions to be met by the developer.

Where a notice of decision is issued, objectors have 21 days in which to lodge an appeal against the decision.

In Victoria, this is done at VCAT and in New South Wales it's NCAT.

If the objectors do not lodge an appeal within this time then a planning permit is issued.

Refusal

Where an application is refused the applicant has 60 days to lodge an appeal to VCAT (in Victoria) or the relevant state regulatory body against the council’s decision.

In Part 12 of our ongoing series on property development, I will be looking at how a town planning consultant can help you navigate the DA process and the most effective way to deal with Councils.

If you want to learn more about the property development process you may be interested in How To Get Started in Property Development

You may also be interested in reading our Team Series or check out our graphic guide to the Property Development Process.