1. Pursuant to section 149B of the Planning and Environment Act 1987, I declare that:
   • Planning permit application WH/2016/718 has not lapsed because the requirement to provide more information dated 31 August 2017 was made outside the prescribed time specified in regulation 18 of the Planning and Environment Regulations 2015.

Mr Steve Coleiro, town planner, of GZ Urban Planning

Construction of a five storey building with basement, reduction in car parking and alteration of access to a road in a Road Zone Category 1.

Application for declaration under section 149B of the Planning and Environment Act 1987.

1. This proceeding is an application for declaration by the permit applicant, B & K Consultancy Pty Ltd, as to whether permit application No WH/2016/718 has lapsed.
2. The permit application was lodged with the responsible authority on 2 August 2016. On 31 August 2016, the responsible authority wrote to the applicant requesting the provision of further information pursuant to section 54 of the Planning and Environment Act 1987. Notice of the further information was given pursuant to section 54(1A) and a lapse date was specified in the notice pursuant to section 54(1B).
3. In due course, an extension to the lapse date was given until 2 December 2016. On 18 November 2016, the applicant provided a response to the further information request. The council submits that item 3 of the notice for more information was not fully complied with. On 14 December 2016, the council advised the applicant that the application had lapsed due to the failure to provide the information required by the notice for more information.
4. The two key issues are:
   • Was the requirement to provide more information made within the prescribed time?
   • If so, did the information provided satisfy the request in item 3?

Was the request for more information made within the prescribed time?

1. Section 54(1B) of the Act provides that if a requirement is made under section 54(1) within the prescribed time, the notice must state that the application will lapse on the lapse date specified in the notice if the required information is not given before that date. Section 54B(1) provides that an application for a permit lapses if the information required under section 54(1) within the prescribed time under that section is not given by the final lapse date for the application.
2. Regulation 18 of the Planning and Environment Regulations 2015 provides that for the purposes of section 54(1B) of the Act, the prescribed time is 28 days after the responsible authority received the application.
3. In the present case, counting of the 28 day period commenced on 3 August 2017, the day after the application was received on 2 August 2017. The 28 day period expired on 30 August 2017.
4. Because notice of the requirement for more information was not given until 31 August 2017, it was given outside the prescribed time.
5. The lapse provisions in the Act only apply if notice of the information required to be provided under section 54(1) is given within the prescribed time. If notice is given to provide more information outside the prescribed time, this requirement does not affect the time after which an application for review may be made under section 79 - see section 54(2) and regulation 32(2)(a).
6. Accordingly, I find that the requirement to provide more information on 31 August 2017 was made 29 days after the application was received by the responsible authority and accordingly was not made within the prescribed time. As a consequence, I find that the permit application has not lapsed. I further find that it is open to the applicant to make an application to review the failure of the responsible authority to grant the permit within the prescribed time pursuant to section 79 of the Act. I will make an appropriate declaration to this effect.

Did the further information provided satisfy the requirement?

1. Item 3 of the council's notice to provide more information stated as follows:

An Urban Design Report prepared by a suitably qualified Urban Designer. The report must include, but not limited to, justification on the building height, appearance to Whitehorse Road, Sergeant Street, and interfaces to abutting properties, choice of materials, and how the proposal responds to the emerging character of the area.

As discussed at our meeting, the Applicant will obtain Urban Design advice pending/in response to comments provided by Council's Urban Designer.

With regard to the appearance to Whitehorse Road, choice of materials etc we offer the following statement by the project architect:

Timber and masonry provide a tactile, warm, natural finish with a human scale at ground level, and also pick up on the materials and tones of nearby properties. The coloured panels above pick up on the light coloured weatherboard of houses in the area and the natural tones (silvers, greens and green/yellows) of the landscaping and trees which are a defining feature of the area. This will be further complimented by the new landscaping proposed to the street frontage of the site. The cladding colours change as they rise up the building with silver becoming more predominant towards the top of the street wall so as to fade back into the sky.

1. The council took issue with the fact that no Urban Design Report by a suitably qualified urban designer was provided.
2. Because of my finding in respect of whether the requirement to provide more information was made within the prescribed time, it is not necessary for me to make a finding as to whether the applicant's response to item 3 was adequate. The following comments are made to assist the parties and do not specifically constitute any findings:
   • If a permit applicant objects to the provision of any aspect of further information requested under section 54(1), an application for review of a requirement for more information under section 54 can be made pursuant to section 78(b) of the Act. If no such application for review is made, then an applicant is obliged to provide the information required provided it was information the council is entitled to request.[1]
   • The applicant did not apply to review the further information requested. The response it provided however was very superficial. I make no finding as to whether it was adequate because such a finding is not required to dispose of this proceeding. Applicants, in particular consultants acting on behalf of permit applicants, should not gloss over the substance of the further information requested by a responsible authority. They should endeavour to provide the information requested in the form requested or risk having their permit application lapse. If they disagree with the extent or nature of the information requested, they should seek a review pursuant to section 78(b) rather than unilaterally decline to provide it.

1. I will make an appropriate declaration that the permit application has not lapsed because the requirement to provide more information was made outside the prescribed time. I have made no other findings about the adequacy of the information provided or whether all other provisions of the planning scheme relating to the permit application have been met.

[1] See Stewart J Castle Pty Ltd v Kingston CC [2011] VCAT 224; Taylors Two Two Seven Pty Ltd v Moreland CC [2011] VCAT 1352; Calodoukas v Moreland CC [2010] VCAT 498