1. Appeal dismissed.
2. Any application for costs, together with written submissions, be filed and served within 21 days. In the absence of any such application, each party bear their own costs.

Catchwords: Environment and planning - Planning appeal - Application to extend time

Legislation Cited: Land Use Planning and Approvals Act 1993; Tasmanian Civil and Administrative Tribunal Act 2020

Cases Cited: Ghimire v Karriview Management Pty Ltd [2019] FCA 1108; TasBulk Pty Ltd v Royal Wolf Trading Australia Pty Ltd [2012] TASSC 87

Second Respondent: J Tammens - Dobson Mitchell Allport

1. This is an application to extend time to file an appeal under the Land Use Planning and Approvals Act 1993 (LUPAA). The second respondent (the developer) applied to the first respondent (the council) for a planning permit under LUPAA to construct a large shed. The appellant made a submission to the council opposing the development.
2. The council decided to grant a permit and, on 26 February 2025, sent an email to the appellant notifying him of its decision. The appellant filed an appeal with the Tribunal on 13 March, being one day out of time, and filed an application to extend time 11 days later on 24 March.

1. The appellant had 14 days to file an appeal against the council's decision to grant a permit: s 61(5). The 14-day period commenced when the council notified the appellant of its decision: TasBulk Pty Ltd v Royal Wolf Trading Australia Pty Ltd [2012] TASSC 87. In this case, time ran from when the council sent the email notification to the developer.
2. The Tribunal has the power to extend time. The appellant bears the onus of establishing that time should be extended. Clause 6(2) to (4) of Pt 8 of Sch 2 to the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act) states:

(2) The Tribunal may, on written application by a person, extend the time for the institution by the person of an appeal.

(3) The Tribunal, when considering whether to extend the time for instituting an appeal under section 61 of the Land Use Planning and Approvals Act 1993 , must take into account -

(a) the reason why the appeal was not lodged within the period specified in subclause (1) ; and

(b) the time which has elapsed since the end of the period specified in subclause (1) and whether it would be reasonable to expect that the application to extend the appeal could have been lodged before the date on which it was lodged; and

(c) the extent and cost of any work which has been undertaken in accordance with a permit, referred to in the Land Use Planning and Approvals Act 1993 , after the expiry of the period specified in subclause (1) ; and

(d) any other matter that it considers appropriate.

(4) The time for instituting an appeal may be extended even though the time has ended.

1. This Tribunal and the Resource Management and Planning Appeal Tribunal have repeatedly adopted the approach taken by Colvin J in Ghimire v Karriview Management Pty Ltd [2019] FCA 1108. His Honour said, at [8]:

There are a number of matters that the Court will usually take into account when considering whether to grant an extension of time. Speaking broadly, special circumstances need not be shown but the Court must be positively persuaded that it is proper for there to be an extension. As to particular matters:

(1) There should be an adequate explanation for the delay. Generally, mere ignorance of the time limit is not a satisfactory explanation for the delay. A party wanting to appeal may be expected to investigate or inquire about the procedure and time limits for bringing an appeal.

(2) The extent to which the applicant has taken steps to challenge or dispute the relevant decision in the intervening period will be considered.

(3) If the outcome can be confidently predicted at the leave stage, it will seldom be in the interests of justice to grant leave where an appeal has little or no prospects of success because of the considerable additional cost and the impact on other litigants who have abided by time limits and are waiting for their appeals to be heard. However, the merits should be examined at a reasonably impressionistic level. The Court does not go into the merits in great detail and assesses the merits in a fairly rough and ready way.

(4) The Court's view as to the strength of the claim may itself be a matter that is to be weighed with other matters so the fact that the claim might be viewed at the time of the application for an extension to be strong or weak is relevant.

(5) Prejudice to the respondent, including prejudice that will be occasioned by having to defend the proceedings, is a material factor against the grant of an extension. The extent of that prejudice (which may vary depending upon the financial and other circumstances of the respondent) must be considered with some care.

(6) Consequences for third parties should be brought to account, particularly more wide ranging effects that might flow if an appeal were allowed despite a period of delay.

(7) These matters are not exhaustive and they are not rules to be rigidly applied. Also, it must be kept in mind that the Court has a general discretion to be exercised by reference to the particular circumstances of each case.

1. In support of his application for an extension of time, the appellant submits that the delay is modest, he is elderly and does not use his computer every day, he was expecting to receive notification of the council's decision by letter (not email), and the issues raised by the appeal (a reduction in his access to sunlight) would have a significant impact on him.
2. The council made no submissions.
3. The developer opposes the application on three bases. First, he points out that the explanation for the delay is inadequate. He says that, the day after the council notified the appellant by email on 26 February, the appellant visited and told him that he (the appellant) had visited the council's offices and intended to appeal the permit. The developer says that, in a telephone call with a council officer on 28 February, the officer confirmed that the appellant had visited the council on 27 February. The developer suggests that, by 27 February, the appellant knew of the council's decision but delayed filing his appeal and, later, his application to extend time.
4. Second, the developer contends that the appellant's grounds of appeal, on their face, lack merit. Without intending any criticism, it is evident that the grounds were not drawn by a legal practitioner. The grounds relate to the proposal reducing the appellant's access to sunshine. They include some shadow diagrams and refer to possible alternative placements of the shed. They do not refer to any planning scheme standards, although that is not fatal.
5. Third, the developer says that it is prejudiced by the application being granted. He is delaying signing a construction contract and therefore is prejudiced by escalation in construction costs. In addition, he is paying monthly fees for an external storage facility.

1. Although the delay is modest, the appellant's reasons are, with respect, not particularly compelling. To my mind, it would have been reasonable for the appellant to file the appeal within time in light of his discussions with the developer and the council, each of which occurred within two days of the council notifying the appellant of its decision by email.
2. While the grounds of appeal do not appear to be strong, I am unable to conclude that the appeal is without merit. As Colvin J noted in Ghimire at [8], "the merits should be examined at a reasonably impressionistic level". To this end, the factor militates against granting an extension of time, but not strongly.
3. In addition to general prejudice caused by extensions of time, the developer points to some specific prejudice. Although greater examples of specific prejudice could be imagined (for example, a partly completed development), the delays and associated costs in signing a contract, combined with the storage costs, are relevant.
4. Weighing up all relevant matters, I am not satisfied that the appellant has established that an order should be made to extend time. It follows that the appeal itself should be dismissed.
5. The presumption is that each party is to bear their own costs: TASCAT Act, Sch 2, Pt 8, cl 12(1). I will afford the parties an opportunity to make any application for costs.

1. I make the following orders:
   1. Application to extend time refused.
   2. Appeal dismissed.
   3. Any application for costs, together with written submissions, be filed and served within 21 days. In the absence of any such application, each party bear their own costs.