Victorian Civil and Administrative Tribunal|2005-01-24

Bala v Hobsons Bay CC [2005] VCAT 2900 (24 January 2005)

Application under section 81(a) of the Planning and Environment Act 1987; Hobsons Bay Planning Scheme; Extension of Time Sought for Permit to Develop and Subdivide Land; Failure to Make Extension Application Within Time; Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 2998 Can Be Use to Disregard Failure; Merits of Extension of Time; Council Support for Extension of Time; Application to Extend Permit Granted.

1 Pursuant to clause 62 of schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, I determine to disregard the failure of the owner of 10 Houston Court, Brooklyn to apply for an extension of the time within which the development described in Permit P03.359 may be commenced and completed in the interests of justice and I hold that the Tribunal has jurisdiction to determine this application for review.

2 I order that the time within which the development described in Permit P03.359 is to be started is extended to 24 January 2007 and I order that the time within which the development is to be completed is extended to 24 January 2009.

1 Hobsons Bay City Council ('the Council') issued Planning Permit P03.359 on 12 May 2004 for alterations to the existing dwelling, the construction of two dwellings to the rear of the existing dwelling and to subdivide the land into two lots at 10 Houston Court, Brooklyn.

2 The permit contains two conditions relating to the expiration of the permit. Condition 13 requires the development to start within one year and be completed within 2 years. Condition 19 requires the subdivision to start within one year and be completed within 5 years. Mr Vatzakis advised the plan of subdivision for the two lots has been certified; therefore the part of the permit relating to the subdivision of the site has been acted upon. Mr Bala advised that the subdivision of the land is now being finalised so separate titles can be issued and the new dwellings can be constructed one at a time on separate lots as an owner builder pursuant to recent changes to the building regulations.

3 Mr Vatzakis advised the development plans required under condition 1 of the permit were approved by Council on 20 October 2004; therefore, the development is ready to start but the 12 month time limit for commencement of the development pursuant to condition 13 of the permit expired on 12 May 2005.

4 Mr S Bala requested an extension of time for the development on 14 September 2005 and the Council, quite rightly, determined it did not have the power to approve the extension because the request had not been made prior to 12 August 2005, which is the expiration of the three month window for such a request to be made after the date the permit has expired. Accordingly, the Council determined under delegation to refuse the request.

5 Mr S Bala is seeking a review of this decision and I note that Mr S Bala's application explains that he has been sick for a long period. I also note Mr Vatzakis advised me that the Council would have extended the time for the development if it had the power to do so, as the development continued to accord with the requirements of the Planning Scheme, including clause 55. Further, it is noted part of the permit has been acted upon as the subdivision of the land has commenced.

6 The Planning and Environment Act 1987 contemplates that, from time to time, permits will expire and further extensions of time may be granted. Section 68 of the Act sets out detailed provisions as to the expiry of permits and section 69 then states:

Before the permit expires or within three months afterwards the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time.

7 The responsible authority is then empowered to extend the time within which development may be started or completed. If a responsible authority refuses or fails to extend time any person affected may apply to the tribunal for a review of the decision to refuse, or the failure, to extend time. In such a case the tribunal may direct that the time within which a development is to be started and/or completed must be extended for a specified period.

8 I advised the parties during the hearing that the Tribunal has the power to disregard the failure to comply section 69 of the Act and, in exercising that power, the Tribunal can consider the merits of this application to extend the time of the permit. To explain this, I rely upon the explanation provided by the President, Justice S Morris, in the matter of Schneider v Boroondara CC [2004] VCAT 642:

9 If the time limit contained in section 69 of the Act could be characterised as a time limit "in a proceeding" then the tribunal would have available to it its powers under section 126(2) of the Victorian Civil and Administrative Tribunal Act (the VCAT Act). That provision provides:

If the rules permit, the tribunal, on application by a party or on its own initiative, may

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding.

The expression "relevant enactment" is defined to mean an enactment specified in the rules to be a relevant enactment for the purposes of the section.

For the purposes of section 126 all the enactments mentioned in schedule 1 of the rules and any regulations made under any of those enactments are specified to be relevant enactments.

In turn, schedule 1 of the rules refers to the Planning and Environment Act 1987, except sections 94(5) and 105.

The tribunal may exercise any of the powers referred to in section 126(2) in any proceeding.

12 What this all means is that the tribunal has the power to extend a time limit fixed by or under the Planning and Environment Act (except sections 94(5) and 105, neither of which are relevant in this context) for the doing of any act in a proceeding. The word "proceeding" is not defined in the VCAT Act. Clearly it is a term that would cover all acts that are taken from the commencement of a matter before the tribunal to its completion by the tribunal. However it is more difficult to see how it would extend to acts occurring by or in relation to a responsible authority before the application for review was commenced. It may be that the word "proceeding" could extend to a time prior to the commencement of an application for review, but, fortunately, I am not required to determine this question in this case in order to achieve the just outcome.

13 The reason for this is that the tribunal has available to it another power being clause 62 of schedule 1 of the VCAT Act. This provides:

The tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and in doing so may determine to disregard that failure if the tribunal considers it in the interests of justice to do so.

The expression "planning enactment" is defined in clause 2 of the schedule of the Act to mean, amongst other things, the Planning and Environment Act (except sections 94(5) and 105).

14 Clause 62 of schedule 1 has been considered by the Supreme Court in Rumpf v Mornington Peninsula Shire Council [2000] VSC 311; [2000] 2 VR 69. In that case Balmford J was required to consider whether clause 62 could be used to disregard a failure to comply with section 39(3) of the Coastal Management Act 1995. In her decision in Rumpf Balmford J commented that clause 62 was consistent with the general legislative approach of giving the tribunal extensive powers to enable it to resolve planning issues which arise in the community and to resolve them according to the merits of the case. She commented that, in this regard, the tribunal's powers are, in many respects, wider than the powers of the responsible authorities whose decisions it reviews. In particular she held that clause 62 could be used to confer jurisdiction upon the tribunal in circumstances where the tribunal would not otherwise have jurisdiction.

15 I hold that the requirement in section 69(1) of the Planning and Environment Act that the owner or occupier seeking to have a permit extended must apply to the responsible authority before the permit expires or within three months afterwards is a provision to which clause 62 of schedule 1 of the VCAT Act may apply. Section 69(1) imposes an obligation upon an owner or occupier to make an application to the responsible authority within a certain time if the owner or occupier seeks to have a permit extended. In my opinion, if an owner or occupier makes an application for an extension of a permit, but does so out of time, this can be characterised as a "failure to comply" with that provision. I further hold that in this case it is in the interests of justice to disregard the failure of the permit holder to apply to the responsible authority for an extension of time within the time specified in section 69(1). That being so I hold that the tribunal has jurisdiction to determine the proceeding before it, namely the proceeding which seeks to review the decision of the responsible authority in which it refused, or at least failed, to approve the extension of time.

9 Both of the parties were in agreement that it would be in the interests of justice for me to exercise the jurisdiction provided under clause 62 of schedule 1 of the VCAT Act in this case. I agree with them and I am of the opinion that it is in the interests of justice to disregard the failure of the permit holder to apply for the extension of time within the time specified and determine this proceeding to review the decision of the Council to refuse to approve the extension of time.

10 I note part of the permit has been acted upon and the approved development within the permit continues to accord with the Planning Scheme provisions. Therefore I am satisfied that it is appropriate to approve an extension of time for this permit. Mr Vatzakis suggested a 12 month extension for the commencement of the development and a further 2 year extension for the completion of the development. Mr Bala was agreeable to this. Accordingly, I will order the time within which the development described in Permit P03.359 is to be started be extended to 24 January 2007 and the time within which the development is to be completed be extended to 24 January 2009.

Environment Act 1987

Bala v Hobsons Bay CC [2005] VCAT 2900

At a glance

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Decision date

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Judgment (20 paragraphs)

Bala v Hobsons Bay CC [2005] VCAT 2900 (24 January 2005)

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Legislation Cited (2)