Victorian Civil and Administrative Tribunal|2007-12-12|Before: Morris J

Ali v Hobsons Bay CC [2007] VCAT 2348 (12 December 2007)

Section 126 Victorian Civil & Administrative Tribunal Act 1998 - section 81(1)(a) Extension of time under permit - Application to extend lodged 3 years after permit expiry - Application for review lodged 20 months out of time

Ali v Hobsons Bay CC [2007] VCAT 2348

(given orally at the hearing and subsequently revised)

Planning permit P03.718 expired on 8 July 2005. On 7 February 2006, the council refused to grant an extension of time of this permit on the grounds that it had expired by more than 3 months, and under the provisions of section 69(2) of the Planning and Environment Act 1987 it could not grant such an extension. This application, which is made under section 81(1)(a) of the Act, seeks to review this decision of the council.
In August 2007, the applicant lodged a fresh planning permit application with the council for a similar development, but this permit application lapsed due to the applicant's failure to supply further information which had been requested. The application for review to extend time under the original permit was lodged subsequently.
The time for lodging an application for review under section 81(1) of the Act is 60 days after the decision of the responsible authority. The application for review in this case has been lodged 20 months out of time. From the limited statement of grounds submitted with the application, it seems that the applicant's failure to lodge an application for review within time was simply overlooked. The applicant did not appear at the hearing to support the application for review.
There are two problems associated with this application. The first relates to the application being lodged out of time. I am not prepared to exercise my discretion under section 126 of the Victorian Civil & Administrative Tribunal Act 1998 to extend the time within which this proceeding may be commenced. The time elapsed of 20 months is far too long and no good reason has been advanced in support of an extension of time. I consider it is reasonable to infer that the lapse of the August 2007 permit application may have triggered this belated application for review. However, even if this is the case, it is not a sufficient reason to extend time.
The second issue is the length of time that has elapsed since the permit expired in July 2005, which is more than 3 years ago. As I said in the case of Sar Developments Pty Ltd v Brimbank CC[1]:

[3] Sometimes situations arise where, for legitimate reasons, people overlook the need to apply for an extension of time of their permits before or within 3 months after they expire. If there is a good reason why a request for extension is not made within 3 months after the permit expired, and when the council does not oppose an extension and there has been no change in planning policy or zoning affecting the land, the Tribunal will frequently exercise its discretion under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure to make an application within 3 months. It does so for the reasons set out by Justice Morris in Schneider v Boroondara CC[2], and where it is in the interests of justice to disregard the failure of the permit holder to apply to the Responsible Authority for an extension for time within the time specified in section 69(1) of the Planning and Environment Act 1987.

Like the situation in Sar Developments, the present case does not fall into this category. The planning permit expired over three years ago. A request for extension was lodged outside the three month period, but never pursued. As I also said in Sar Developments:

[6] The Tribunal's discretion to disregard the failure to seek an extension within time should not be used to revive what is effectively a "dead" permit.

This permit is well and truly "dead". If the applicant wishes to proceed with his development, the correct course of action is to apply for a new permit. The application for review in this proceeding is refused.

Ali v Hobsons Bay CC [2007] VCAT 2348

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Judgment (12 paragraphs)

Ali v Hobsons Bay CC [2007] VCAT 2348 (12 December 2007)

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