35 Application by objector for review under section 82

An application under section 82(1) of the Act for review of a decision by the responsible authority must be made within 28 days after the date of notice of that decision

An application for review under section 82(1) of the Act must be made within 21 days after the responsible authority gave notice of the decision to the objector under section 64 of the Act.

1. The change made to Regulation 35 concerns the number of days within which an application for review must be made. Before 1 July 2018, the time period for making an application was within 21 days after the responsible authority gave notice of the decision to the objector.
2. Since 1 July 2018, Regulation 35 provides that an application must be made within 28 days after the date of notice of that decision.
3. Regulation 35 no longer makes any reference to calculation of days after the giving of notice. In various Tribunal decisions such as Archerduck Pty Ltd v Ballarat CC[3] and Hoxha v Cardinia SC[4], the Tribunal drew attention to the uncertainties created by the words used in Regulation 35 gave notice of the decision to the objector. Not least of the difficulties was that the closing date for applications may vary according to whether the responsible authority gave notice of its decision by way of email or by way of post.
4. The change made to Regulation 35 on 1 July 2018 was intended to overcome the difficulties identified in these (and other) cases. The change creates certainty about the date by which an application must be made under section 82(1). It is 28 days after the date of notice of the decision. It is not 28 days after the giving of notice of the decision.
5. The giving of notice may be days later than the actual date of the notice of decision depending on when the responsible authority posts or emails the NOD. Now under Regulation 35 the critical date is the date of the notice of the decision. Counting of the 28 days starts on the day after the date on the notice of decision.
6. The change to Regulation 35 has also increased the number of days from 21 to 28, which gives objectors more time within which to lodge their application.
7. It is unfortunate that some responsible authorities do not appear to have appreciated the implications of the new time limit in Regulation 35. They provide misleading and wrong advice to objectors in covering letters and in information on the back of the notice of decision itself, which harks back to the previous wording of the regulation relating to the giving of notice, not to the date of the notice of decision itself. That is what has occurred in this case.
8. The notice of decision is dated 21 September 2018. Applying Regulation 35, the closing date was 19 October 2018, which is 28 days after the date on the notice of decision. The application for review was filed with the Tribunal on 23 October 2018. It was four days out of time. It does not matter that the letter from the council sending out the notice of decision was dated 25 September 2018 and was not posted until 26 September 2018. Having regard to the provisions of Regulation 35, I find that the application was lodged out of time.
9. The issue I must now determine is whether I should grant an extension of the time for commencement of the proceeding pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998.
10. The application was lodged by the firm of Best Hooper, which is an experienced firm of planning lawyers. The applicant points to wording on the back of the notice of decision to grant a permit, which provides information about reviews. For an objector, it states:
    • An objector may apply for review of the decision of the responsible authority to grant a permit. The application for review must be lodged within 28 days of the giving of this notice.
    • If there is no application for review, a permit will be issued after 28 days of the giving of this notice.
11. It was submitted by the applicant that this wording was misleading and that wrong advice was given by the lawyers based on this wording resulting in the application being lodged out of time.
12. I am not satisfied that this justifies the applicant's failure to lodge the application within time. The applicant is a professional development company with professional representation. Such experienced professionals should be familiar with the relevant time limits for lodging common types of planning applications such as section 82 applications.
13. In any event, it is very clear on the front of the Tribunal's application form itself what the time limit is for lodging an application for review. The form clearly states:

If you are an objector or a recommending referral authority and want to review a decision by a responsible authority to grant a permit, you must lodge your application under section 82 or section 82AAA of the Planning and Environment Act 1987 within 28 days of the Council's Notice of Decision to Grant a Permit.

1. Equally, the Tribunal's website also clearly states the time limit as follows:

An objector has 28 days after the date of the Notice of Decision to Grant a Permit to lodge an application for review with VCAT.

1. The application form, which was submitted by the applicant, and the website, clearly reflect the requirements of Regulation 35. In my view, the applicant cannot rely upon the words on the back of the notice of decision to say that it was unaware what the correct time limit was for lodging an application for review.
2. The permit applicant and the responsible authority oppose the extension of time. The permit applicant submits that it would suffer prejudice if the time limit is extended by delay in the issue of a permit, loss of certainty that a permit will be granted on the conditions in the notice of decision, and through significant costs associated with a hearing at the Tribunal. Both the permit applicant and the responsible authority submitted that the applicant's statement of grounds did not reveal a strong case on the merits for opposing the grant of a permit.
3. In Katsanis v Wyndham CC_[5]_ the Tribunal considered the role of time limits. In this case it reiterated and endorsed what has been said by numerous other Tribunals in cases such as Becton Corporation Pty Ltd v Port Phillip CC[6] and Dingly Village Neighbourhood Centre v Kingston CC[7] that time limits are necessary to make the operation of the law and the planning system effective. Without time limits, the whole system would degenerate into one lacking in certainty; and would become highly dependent on discretion. Time limits are expected to be observed. The party obtaining benefit from the failure of another to observe a time limit should be able to retain that benefit unless the discretion to extend is exercised on appropriate grounds.
4. There are various factors that the Tribunal will consider in deciding whether to exercise its discretion to extend the time for commencement of a proceeding. They were set out in Katsanis as follows:

[11] For many years the criteria that the Tribunal has considered when deciding whether to extend time for lodging an application for review have been:[8]

(i) What reasons are given for the delay by the applicant for extension of time in lodging its appeal?

(ii) Did the applicant for extension of time take any other action (apart from the lodging of the objection or the late appeal) which continued to make the responsible authority aware that its decision to grant a permit was being contested?

(iii) Will the applicant for the permit or the responsible authority suffer any prejudice if the application to extend time is granted?

(iv) Will granting of the extension of time result in the unsettling of other people or of established practices?

(v) Does the proposed appeal have a real change of success?

(vi) Are any considerations of fairness as between the applicant for extension of time and other persons in a like position which are relevant?

(vii) Is there to be an appeal in any event brought by persons who did lodge an appeal in time?

(viii) Is there any other reason why it would be fair and equitable in the circumstances for the application for extension of time to be granted?

1. Having regard to these factors, I am not satisfied that an extension of time should be granted for the following reasons:
   • I have already indicated that I do not accept the reason given for the delay can be justified.
   • There were no other actions taken by the applicant to alert parties that the decision would be contested. Simply saying that "everyone believed this would be contested" is not sufficient.
   • The permit applicant will suffer prejudice if the application to extend time is granted.
   • An extension of time will unsettle the reason for the amendment to Regulation 35, which was to clarify and provide certainty about the date for lodging applications for review under section 82. Extending time in these circumstances will undermine the certainty that the amendment of the regulation was intended to achieve.
   • The statement of grounds in the application for review raises general planning considerations but there is no overwhelming reason to indicate that it has a real or high chance of success. At best the grounds are arguable.
   • No considerations of fairness as between the applicant and other persons in a like position arise or are relevant.
   • There are no other appeals brought by any persons who did lodge an application in time.
   • There are no other reasons why I consider it would be fair and equitable in the circumstances for the application for extension of time to be granted. I do not consider that the applicant's interests in challenging the decision to grant a permit are sufficiently strong to outweigh the prejudice or detriment to the permit applicant that would arise from extending time under section 126 of the Victorian Civil and Administrative Tribunal Act 1998.
2. The Tribunal has taken a particularly stringent view about the need for objectors in particular to adhere strictly to the time limits allowed for lodging applications for review. It has taken the view that in the case of an application for review lodged out of time by an objector there must be a very good reason to extend the time limit that will tilt the scales significantly in favour of the person seeking the extension of time in order to overcome the disadvantage caused to a permit applicant by opening the certainty of a permit to challenge.[9] In the present case, I am not satisfied there is a sufficiently good reason.
3. For these reasons, the application for an extension of time within which to commence this proceeding is refused.

[1] [2007] VCAT 1696

[2] [2016] VCAT 2179

[3] [2007] VCAT 1696

[4] [2016] VCAT 2179

[5] [2005] VCAT 824

[6] [2004] VCAT 1897

[7] (1997) 20 AATR 227

[8] These considerations were based on a decision of the Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305 and were enumerated in Reynolds v Macedon Ranges Shire Council (1999/33825) noted at (1997) 19 AATR 9.

[9] Katsanis v Wyndham CC [2005] VCAT 824 at [17]