Victorian Civil and Administrative Tribunal|2004-10-01|Before: Stuart Morris J

Becton Corporation Pty Ltd v Port Phillip CC [2004] VCAT 1897 (1 October 2004)

The application for an extension of the time limit fixed for the commencement of the proceeding is refused and consequently I dismiss the application for review.

1 On 15 September 2004 Becton Corporation lodged an application for review with the tribunal seeking to review a decision of the Port Phillip City Council to grant a permit to The Esplanade Hotel in respect of a number of changes to The Esplanade Hotel. A key change, with which Becton was concerned, was the installation of a new entry to the hotel which would be adjacent to land it was currently developing.

2 The time within which the application for review was required to be lodged was in fact 14 September 2004, hence the application for review was lodged out of time. Becton has now sought an order pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act that the time limit fixed for the commencement of the proceeding be extended.

3 In support of that application, evidence has been placed before the tribunal to the effect that there were a number of consultations between Becton and its planning consultant in relation to the lodgement of an application for review which led to the preparation of appeal documents on 13 September 2004. These documents were posted on 14 September 2004 and arrived at the tribunal, as I say, a day late, on 15 September 2004. There is also some evidence that there were discussions on 13 September 2004 between Becton and persons associated with The Esplanade Hotel concerning an appeal by Becton, but I am not satisfied on the material before me as to what exactly occurred in that conversation.

4 In support of the application Mr Townshend of counsel emphasised four points.

* First, that the delay was the shortest possible delay, namely one day.

* Second, that the error was not that of the officers of Becton but rather of a consultant.

* Third, that the application involved a serious issue that had implications on the Becton development on the adjacent site.

* Fourth, that prejudice to The Esplanade Hotel would be limited.

5 In response Mr Tweedie submitted that the explanation for the delay was unsatisfactory; that the development in question was relatively minor; and that his client would suffer prejudice because the grant of an extension was bound to delay works involving the kitchen facilities of the hotel which were functionally connected to the alterations to the entrance.

6 As I think is apparent from my decision in Mantello Property Group Pty Ltd v Mornington Peninsula Shire Council (2003) 15 VPR 255, a decision in this type of cases is often difficult. The considerations that each party have put forward pull strongly in different directions; yet looked at independently are cogent. As I said in Mantello it is harsh that a time limit operates so as to shut out a person if they miss the time limit by one or two days, especially where they have actually prepared the application before the expiry date. However time limits are necessary to make the operation of the law and the planning system effective. Without time limits, the whole system would degenerate in to one lacking in certainty; and would become highly dependent upon discretion.

7 Thus I must seriously consider whether the onus, which is clearly upon the applicant, of demonstrating that the time limit should be extended has been discharged. To use the analogy of a set of scales, the onus is not discharged if the arguments on each side result in the scales being horizontal. It is necessary for the scales to be tilted, and significantly tilted, in favour of the person seeking the extension of time.

8 I am not satisfied that they are sufficiently tilted in this case.

9 The cause of the delay is not such as to warrant especially favourable consideration. The cause was effectively that the matter was put to one side in the, no doubt, very busy life of consultants and officers of the Becton Corporation. These things happen, but I think the consequence of them happening is that one must not show any special indulgence for the consequences of deadlines being missed.

10 I appreciate that there is a serious issue that Becton wants to raise, but that is counter balanced, at least to some extent, by the relatively minor nature of the development.

11 I am also conscious that the extension of time will be likely to delay a decision. I think that that delay can be minimised by putting the hearing on quickly, but it still involves an element of disadvantage to The Esplanade Hotel which I think I am required to take into account.

Becton Corporation Pty Ltd v Port Phillip CC [2004] VCAT 1897

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Judgment (19 paragraphs)

Becton Corporation Pty Ltd v Port Phillip CC [2004] VCAT 1897 (1 October 2004)

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