VCAT appeals — when to fight, and when to re-apply

A planning permit refusal lands on your desk. The council's reasons run to three pages. The question is almost always the same: do we appeal, or do we redesign and re-apply?

There is a third path that gets overlooked — negotiated withdrawal — and in practice it is the right answer more often than clients realise.

The three forks in the road

1. Appeal to VCAT

Section 77 of the Planning and Environment Act 1987 gives an applicant 60 days to lodge a review of a refusal. VCAT hears the matter afresh — the Tribunal stands in the shoes of the responsible authority. That is both the opportunity and the risk: everything is back on the table, including issues the council raised only lightly.

An appeal is right when:

• The refusal is policy-based and you have good planning arguments on your side.
• The site has strategic merit that was undervalued by the responsible authority.
• The design is substantively sound and adjustments would not unlock an approval at council level.

2. Redesign and re-apply

Sometimes the refusal is factually right. The proposal does breach the side and rear setback standard (B2-3 under the new Townhouse and Low-rise Code). The setbacks are not defensible. The amenity impact is real. Spending 12 months and $60,000 at VCAT on a project that can be fixed in a month of design work is a commercial misstep.

Re-apply when:

• The refusal grounds are capable of being designed out.
• The council is not ideologically opposed to the use.
• Objectors' concerns are specific rather than existential.

3. Negotiated withdrawal

This is the path that gets missed. After a refusal, particularly in the first 30 days, there is often a genuine willingness on both sides to negotiate. An application that has been refused can be withdrawn, amended, and re-submitted — sometimes under Section 57A of the Act, sometimes as a fresh application. The council gets a better outcome than defending a VCAT appeal; the applicant gets a permit faster and cheaper than a full Tribunal hearing.

How we assess the fork

In practice, we make this decision in the first week after a refusal, using a structured review:

1. Strength test. We read the refusal grounds against the relevant planning scheme provisions and assess each ground on a scale — unarguable, defensible, winnable.
2. Political test. Some councils fight every appeal; some settle. Knowing who you are dealing with matters.
3. Commercial test. Time to approval versus cost of appeal versus cost of redesign. The right answer is the one that gets your builder on site.

If you have a refusal and you are weighing the path forward, the first conversation is free — and often the most valuable hour of the whole matter.