1. The issue that arises in this case is whether section 71(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 applies in terms that the application was lodged after the expiry of the period specified in the enabling enactment.
2. In the context of this proceeding, whether or not the applicant had good reason for the delay in the lodging the application for review is not relevant. This is not an application for an extension of time under section 126 of the Victorian Civil and Administrative Tribunal Act 1998. If it was, such an application would be precluded by clause 65 of Schedule 1 of the Act, which provides that the Tribunal must not extend the time for commencing a proceeding under a planning enactment if a permit has been issued to any person on or after the expiration of the time appointed for lodging an application for review of the decision to grant that permit.
3. This prohibition against lodging an application to challenge a permit once it has been issued is also reflected in section 82B(6)(b) of the Planning and Environment Act 1987. In the context of this discussion I am referring to the commencement of a proceeding by an objector to review the grant of a planning permit. I note that in the case of Director of Housing v Yarra CC[1] Justice Morris held that clause 65 of Schedule 1 of the VCAT Act 1998 is confined to applications by objectors and is not applicable to permit applicant appeals against conditions. It is also relevant to note the observations of Justice Morris in that case about the need to protect the security of permits once they are issued where he said:

[11] The purpose of clause 65(1)(b) stands out like a beacon. The purpose is to provide a permit applicant with security once a permit, licence, or works approval has actually been issued. That security is provided not only in respect of an objector appeal, but also in respect of the enlargement of time to permit an objector appeal out of time.

1. Regulation 34 of the Planning and Environment Regulations 2005 provides as follows:

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

1. Under Regulation 34, the 21 days must be calculated from the time when the responsible authority gave notice to the objector under section 64 of the Act. Section 64 of the Act provides that the responsible authority must give the applicant and each objector a notice in prescribed form of its decision to grant a permit.
2. Under the heading "What About Appeals?" the prescribed form of the Notice of Decision to Grant a Permit (Form 5) included in Schedule 1 of the Planning and Environment Regulations 2005 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 21 days of the giving of this notice.

1. However, whilst the Act and the Regulations talk about "giving" notice, what does it mean "to give notice"? Section 49(1) of the Interpretation of Legislation Act 1984 provides:

(1) Where an Act or subordinate instrument authorizes or requires a document to be served by post (whether the expression "serve" or the expression "give", "send" or "deliver" or any other expression is used), the service shall -

(a) unless the contrary intention appears, be deemed to be effected by properly addressing, prepaying and posting the document as a letter to the person on whom it is to be served; and

(b) unless the contrary is proved, be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post.

1. I recently considered this issue in the case of Vitesnik v Macedon Ranges SC[2] where I said:

[10] There are two components to section 49(1) and the application of each will normally yield a different date. Which date will be relevant will depend upon the circumstances and why it is important to know when a notice (or the like) has been given. The most common reason why the date of "giving" a notice will be important is to calculate some time limit. Which date is relevant - i.e the date the letter was posted or the date it was delivered - will depend upon who has the benefit of the time limit.

[11] Thus in the case of Wilbow Corporation Pty Ltd v Boroondara CC, I held that it was the responsible authority that had the benefit of the 28 day time limit for requesting further information under section 54 of the Planning and Environment Act 1987. Therefore what was important in that case was the date upon which the requirement for more information was sent, not the date upon which the requirement was received.

[12] In the present case, it is the objector who is given the notice of the decision who should have the benefit of the 21 day time limit within which to lodge an application for review. Therefore, the relevant date for calculating this time period should be the date upon which the notice is "received". Under section 49(1)(b) of the Interpretation of Legislation Act 1984 this would be when the letter containing the notice was delivered in the ordinary course of post, unless the contrary is proved.

[13] To ensure consistency and certainty when calculating time limits for the lodging of applications for review, the Tribunal's practice is to apply section 141 of the Victorian Civil and Administrative Tribunal Act 1998.

[14] Under the Victorian Civil and Administrative Tribunal Act 1998, section 140 deals with service of a notice, order or other document for the purposes of the Victorian Civil and Administrative Tribunal Act 1998. Section 141 provides as follows:

(1) For the purposes of this Act, a notice or other document must be taken to have been served on, or given to, a person or an unincorporated association -

(a) in the case of delivery in person - at the time the document is delivered;

(b) in the case of posting - 2 business days after the day on which the document was posted;

(c) in the case of facsimile or other electronic transmission - at the time the facsimile or transmission is received.

(2) If a facsimile or other electronic transmission is received after 4.00 p.m. on any day, it must be taken to have been received on the next business day.

(b) a public holiday or public half-holiday in the place to where the notice is sent or delivered.

[15] In applying section 141 of the Victorian Civil and Administrative Tribunal Act 1998 when determining the closing date for applications against a responsible authority's decision to grant a planning permit, the Tribunal will treat the date from which it calculates the 21 day period for applications for review under section 82 of the Planning and Environment Act 1987 as being two business days after the date on which the notice of decision was posted. ...

1. In the present case if section 141 of the Victorian Civil and Administrative Tribunal Act 1998 is applied where the notice of decision is posted on Monday 16 July 2007, the Tribunal would consider it to be have been received on Wednesday 18 July 2007. Thus the closing date for applications for review was Wednesday 8 August 2007. On this basis, the application for review was lodged out of time and under section 71(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998, the principal registrar was justified in rejecting the application.
2. However, Mr Keith Morrow says that he did not collect the letter containing the notice of decision until Friday 20 July 2007. If this is the date on which it can be said that the notice was "received" then the time for lodging an application for review expired on 10 August 2007, in which case it would have been lodged within time.
3. It is clear from the relevant provisions of both the Interpretation of Legislation Act 1984 and the Victorian Civil and Administrative Tribunal Act 1998, that delivery or receipt of a notice refers to the time when it is received at the address to which it is sent, not when it may be physically collected or opened by the recipient.
4. Keith Morrow says that it is part of his routine to clear the postal box to which the notice was sent each day, but he does not swear that he cleared it on the preceeding day, 19 July, or at what time of day on 20 July he cleared it. I am therefore left to assume that the letter and notice of decision was not delivered to the postal box until Friday 20 July 2007. This would be four days after the notice was posted by the council.
5. I was advised by Ms Stupak, on behalf of the council, that the notice of decision was posted on the day it was issued, 16 July 2007. This advice is supported by the "Decision to Grant Enquiries" form received by the Tribunal from the City of Ballarat, which was sent and received by the Tribunal on 16 July 2007. This is a form which all responsible authorities complete and forward to the Tribunal when they issue a notice of decision to grant a permit. It provides details of the subject land, the applicant, the date on which the notice of decision was issued and when it was posted. The date in each instance in this case is 16 July 2007. The form provides details of all objectors to the application. The Tribunal uses this information to calculate the closing date for applications for review and to determine whether an applicant for review is entitled to make it. The form clearly states that decisions to grant enquiries are answered by VCAT two business days after the expiration of the application period. In effect, this means that responsible authorities must wait an additional two days, being a total of 25 days after the notice of decision is posted (i.e. 21 + 2 + 2 days) before enquiring whether an application for review has been lodged by VCAT by an objector under section 82 of the Planning and Environment Act 1987 and, if not, proceeding to issue a permit under section 64 of that Act.
6. I find as a fact that the council posted the notice of decision on 16 July 2007. In the ordinary course of post, it could be expected to have been received two business days later on 18 July 2007. I find it extremely unlikely that an ordinary letter posted in Ballarat on a Monday to a postal box at Mount Clear, which is a suburb of Ballarat, would take four business days to be delivered.
7. In light of the inconclusive evidence by Keith Morrow on this point, I am not prepared to find that the notice of decision was not received, in terms of being delivered to the postal box address of Archerduck, until Friday 20 July 2007. This may have been when Keith Morrow collected the notice, but that is not the test. For the purpose of this proceeding, I find that the notice of decision must be deemed to have been received two business days after it was posted, namely on 18 July 2007. This finding is in accordance with the provisions of Section 141(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 with respect to section 49(1) of the Interpretation of Legislation Act 1984, I find that 18 July 2007 is also the time within which the notice would be delivered in the ordinary course of post. I am not prepared to find that the contrary has been established within the meaning of sub paragraph (b) of that section.
8. Accordingly, my conclusion is that the principal registrar was entitled to reject Archerduck's application for review pursuant to section 71(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that it was lodged after the expiry of the period specified in the enabling enactment. In other words, it was lodged out of time.

The need for certainty regarding the issue of permits

1. This case illustrates once more a need to clarify the Planning and Environment Act 1987 and its regulations to provide certainty about the periods of time within which applications for review may be lodged. This case highlights a potential discrepancy between section 49 of the Interpretation of Legislation Act 1984 and section 149 of the Victorian Civil and Administrative Tribunal Act 1998. It would be desirable for the Planning and Environment Regulations to be amended to provide that for the purposes of determining when service of a notice or other document is effective, section 14 of the Victorian Civil and Administrative Tribunal Act 1998 should be used or an equivalent provision included in the regulations.
2. Alternatively, the Planning and Environment Act 1987 and/or the Regulations (as relevant) ought be amended to require that the specific date by which an application for review must be lodged is specified in the notice of decision or other document. This is already provided for in section 54 of the Planning and Environment Act 1987 with respect to specification of a lapse date within which more information must be provided to a Responsible Authority.
3. The importance of there being absolutely no ambiguity about calculating time limits for the lodging of applications for review stems from the need to ensure consistency and certainty. Responsible authorities need to know when they may validly issue a permit. There should be no doubt about the date when this may occur depending on the vagaries of the postal delivery system.[3]
4. Permit applicants need to know that once a permit is issued, it cannot be set aside or doubt cast on its validity by reason of the fact that postal delays may have resulted in an objector failing to receive (by delivery to the correct address) the notice of decision within 2 business days of it being posted. The prejudice which may be suffered by a permit applicant in these circumstances could be considerable.
5. In my view, there is a clear intention by Parliament, evidenced in clause 65(1)(b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 and Section 82B of the Planning and Environment Act 1987, that once a permit is issued, it cannot be challenged by an objector lodging an application for review of the decision to grant that permit. This does not mean that if the permit has not been lawfully issued for some other reason, it may not be opened to challenge by way of an application to cancel or amend the permit under section 87 of the Planning and Environment Act 1987 or be the subject of a declaration under section 149B of the Act. If there has been a genuine mistake in relation to the grant of a permit, for example it was issued before expiry of the time within which applications for review could be validly lodged, or for some other reason, then there are appropriate statutory provisions by which it may be challenged. But in my view, there should be no ambiguity about when the time for lodging an application for review has expired based on the vagaries of the postal service and no possibility that the expiry date for lodging applications for review may be different for different objectors.

[1] [2003] VCAT 1953

[2] [2007] VCAT 598

[3] See comments in Willbow Corporation Pty Ltd v Boroondara CC [2006] VCAT 437 [at 20]