1. Planning Permit DC/309/2022 ('Permit') contains condition 30 and was issued at the direction of the Victorian Civil and Administrative Tribunal ('Tribunal') as set out in the orders made in 723 Calder Highway Maiden Gully Pty Ltd v Greater Bendigo CC [2023] VCAT 1244.
2. Condition 1(a) of the Permit requires amendments to be shown on endorsed plans as required by condition 30. Condition 30 states (in part):

(a) Prior to commencement of the buildings and/or works unless otherwise agreed in writing by Head, Transport for Victoria the following must be completed to the satisfaction of and at no cost to Head Transport for Victoria:

....

(b) An Amended Transport Impact Assessment report must be submitted to and approved by the Head, Transport for Victoria and the responsible authority. The Transport Impact Assessment must include the following: ....

1. The application was filed under section 149(1)(d) Planning and Environment Act 1987 (Vic) ('PE Act'). Following correspondence from the Tribunal the applicant requested that the application be amended to an application filed under 149(1)(a) of the PE Act.
2. The applicant submitted[2] that it had taken the response received from Head TfV dated 7 October 2024 as being a decision to reject the Traffic Impact Assessment submitted to it by Traffix groups as a rejection of that application. If that it so, then the application for review is within time having been lodged on 23 October 2024. If it is not a decision for the purposes of an application for review by the Tribunal, as discussed below, it was not lodged within time.
3. The applicant makes an alternative submission to be considered if the Tribunal finds that no decision has been made. It submits:

In the alternative, should the Tribunal not be satisfied that TfV's letter of 7 October 2024 amounted to a decision, the Applicant respectfully requests that the Tribunal exercises its discretion under section 126 of the Victorian Civil and Administrative Act 1998 to extend the time for commencement of the proceeding.

Had TfV not advised the Applicant on 5 September 2024 (Day 31) that it was 'generally...happy' with the Traffic Impact Assessment, the Applicant would have made an application for review within 28 days of the deemed refusal. If the Tribunal requires us to elaborate on this point by reference to the factors identified in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) FCR 344), we would be pleased to do so.

1. The Tribunal listed a practice day hearing to consider matters relating to the application. The purpose of the practice day hearing was:
2. to consider whether the communication of the Head, Transport for Victoria, dated 7 October 2024, is a decision for the purpose of section 149(1) of the PE Act;

(a) to consider the applicant's request to amend the application from an application made under section 149(1)(d) of the PE Act to an application made under section 149(1)(a) of the PE Act

(b) to consider whether the application was made within or outside of any time limit;

(c) if the application is determined to have been made outside of any time limit, to consider whether to extend the time to commence the proceeding under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'); and

(d) to consider the future conduct of the proceeding. This may include a consideration of dates, duration, compulsory conference and/or venue.

1. I have addressed each of these issues briefly below noting that there was no substantial disagreement between the parties as to the principles to be applied which were set out in the submissions made on behalf of the responsible authority.

Was the communication of the Head, Transport for Victoria, dated 7 October 2024, a decision for the purpose of section 149(1) of the Planning and Environment Act 1987 (Vic)?

1. At the hearing the applicant withdrew its submissions on this point having considered the decisions of the Tribunal in Murdoch v Business Licensing Authority (Occupational and Business Regulation) [2010] VCAT 942 at [40] - [41] and Kelly Jaye Property Management Pty Ltd v Business Licencing Authority (Occupational and Business Regulation) [2010] VCAT 1918 at [23].
2. These cases discuss the circumstances in which correspondence or statements from a decision maker will be considered to be final capable of forming the subject matter of a review by the Tribunal. In Kelly Jaye Property Management Pty Ltd v Business Licencing Authority (Occupational and Business Regulation) [2010] VCAT 1918 at [23] the Tribunal remarks:

It appears to me that Parliament's intention is the same - that only a decision that is final or operative and determinative be subjected to merits review by the Tribunal.

1. I agree with the applicant and the submissions made on behalf of the Council and Head TfV, that the correspondence dated 7 October 2024 was not a final decision which would have been capable of being the subject of an application for review.

Was the application made within or outside of any time limit?

1. Having decided that the letter dated 7 October 2024 was not a decision for the purposes of the PE Act, it is necessary to consider whether there is a decision capable of being reviewed and whether any application was made within the relevant timeframe.
2. Regulation 54 of the Planning and Environment Regulations 2015 (Vic) prescribes a time within a decision is required to be made under section 149(1)(a), (b) or (c) of the PE Act. That time is 30 days.
3. The applicant made a request to approval of a transport impact assessment on 5 August 2024.
4. It follows that at the end of the 30-day period after the submission of the application, the Relevant Authority was deemed to have made a decision to refuse the application given it had not decided the application. In this case the date of the deemed refusal was 4 September 2024.
5. Following the deemed refusal the PE Act sets out the time within which an application may be made to the Tribunal in section 149(2) of the PE Act which states:

An application for review of a decision referred to in subsection (1)(a), (b) or (c) must be made within 28 days after the day on which the decision is made.

1. The date by which the application for review was required to be made is therefore 2 October 2024.
2. It follows that that the application which was made on 23 October 2024 was made out of time.

Extension of the time to commence the proceeding under section 126 of the VCAT Act

1. The Tribunal has power to extend the time for commencing a proceeding.[3] In this case, I have exercised my discretion to extend the time for making an application for the reasons I have summarised briefly below. I note that the Council and Head TfV supported the exercise of discretion to extend time to commence proceedings.
2. The Council submitted:
   1. Recently, in Conroy v Greater Bendigo CC [2024] VCAT 644, the Tribunal constituted by Deputy President Daicic summarised useful factors to consider when exercising discretion regarding time extensions[4]. These are:

45.1 whether the applicant can show an acceptable explanation for the delay;

45.2 whether it is fair and equitable in the circumstances to extend time;

45.3 whether the applicant's actions continued to make the decision maker aware that they contest the finality of the decision, as distinct from allowing the decision maker to believe that the matter was finally concluded;

45.4 whether the respondent has been prejudiced by the delay;

45.5 whether the delay may result in the unsettling of other people or of established practices;

45.6 the merits of the substantive application; and

45.7 consideration of fairness as between the applicant and other persons otherwise in a like position.

1. I have addressed factors briefly as each of the parties at the hearing agreed that I should exercise my discretion to extend time.

1. The applicant explains that the delay essentially arose because it was under the impression that the Relevant Authority would be satisfied by the material it has submitted on the basis of its previous correspondence between it and the Relevant Authority. This is consistent with the positive tone of an email received on 6 September 2024.
2. It says that it was only after receiving the correspondence on 7 October 2024 and engaging in further correspondence with the Relevant Authority that the applicant decided to consider and ultimately pursue an application to the Tribunal which was lodged 16 day later.

Did the decision maker believe the matter was finally concluded?

1. The applicant made it clear that it wished to have the material it had submitted approved by the Relevant Authority. It was a prerequisite to the development it was actively pursuing that the Traffic Impact Assessment to be approved by the Relevant Authority. Having reviewed the correspondence, I find that the applicant had consistently pressed its case for approval such that the Relevant Authority was aware that the matter was not concluded - indeed the tenor of its correspondence demonstrated that further discussions and the submission of further material was invited and anticipated.

1. No party had identified any prejudice or detriment to any party other than the applicant in not extending the time to make an application to the Tribunal. I note that the applicant would be entitled to relodge the application and to ultimately seek a review to the Tribunal if the new application were not granted.

Whether the delay may result in the unsettling of other people or of established practices

1. It is apparent that there is a genuine controversy which requires resolution. No party has indicated that this is so devoid of merit as to suggest that it should not be considered by the Tribunal.

1. I do not consider the grant of an uncontested extension of time in the circumstances of this case would unsettle other people or established practices.

1. Considering the factors set out above, the comprehensive submissions made on behalf of the Council (which submit that it is appropriate for me to extend time) and the Relevant Authority's consent to that course, I consider that it is fair and equitable for me to grant the extension of time sought.
2. It follows that I have exercised my discretion to extend the time to make the application to 23 August being the date on which the application was lodged.

The request to amend the application from an application made under section 149(1)(d) of the PE Act to an application made under section 149(1)(a) of the PE Act - granted

1. The applicant has requested that the application be amended to reflect the section under which it was intended to be made. Sections 149(1)(a) and 149(1)(d) of the PE Act state:

149 (1) A specified person may apply to the Tribunal for the review of -

(a) a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body...

...

(d) if there is no prescribed time for a decision of a kind referred to in paragraph (a), (b) or (c), a failure of a person or body to make that decision within a reasonable time after the matter is referred to it.

1. It is apparent that paragraph of the 149(1)(d) PE Act does not confer a right to make an application for review. It is submitted that the application was intended to be made under section 149(1)(a) of the PE Act.
2. I consider, as did each of the parties, that this represents an obvious error and that it is appropriate for me to amend the application. I have amended the application as sought by the applicant.

1. The parties are of the view that the proceeding will require 2 days to be heard. On the basis of the estimates provided to me I have listed the matter for 2 days.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] In an email addressed to the Registrar of the Tribunal dated 28 October 2024.

[4] Citing the Federal Court of Australia's judgment in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; [1984] 3 FCR 344.