Victorian Civil and Administrative Tribunal|2007-08-02

Burleigh v Frankston CC [2007] VCAT 1414 (2 August 2007)

S69 and s81(1)(a) Planning and Environment Act 1987 - clause 62 of Schedule 1 of Victorian Civil and Administrative Tribunal Act 1998 - extension of time of permit - responsibility of Responsible Authority to make a decision on a request to extend time - request made more than 3 months after expiry of permit.

Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the date of lodgement of the application for review is amended to 27 July 2007.
Pursuant to clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 I determine to disregard the failure of the applicant to comply with section 69(1) of the Planning and Environment Act 1987 to make an application for an extension of time of permit 01627 within 3 months of the expiry of the permit on 21 November 2006 and I hold that the Tribunal has jurisdiction to determine the application for review.
I direct that the time within which the development described in permit 01627 is to be completed is 21 November 2008.

This is an application under section 81(1)(a) of the Planning & Environment Act 1987 to review a refusal by the responsible authority to extend time to complete development of three dwellings authorised by Permit No. 01627. It is a case where the applicant and permit holder, Mr Burleigh, has felt himself trapped in a web of bureaucracy.
The problem stems from wrong information being given to Mr Burleigh at the time he approached the council to lodge an application to extend time on the permit. He was outside the 3 month period within which a responsible authority can grant an extension. Instead of accepting the application and then refusing it on the grounds that the council had no power to extend the permit, which would have enabled Mr Burleigh to lodge an application for review with the Tribunal, the council refused to accept his application. According to Mr Burleigh:

"When we went down to the Council, they would not accept our request to renew the permit. They wouldn't allow us to put in an application either. They said it was too late, and the only one who could look at the request was the Administrative Tribunal".

This was confirmed in the council's Practice Note 2 letter dated 5 June 2007, where the council said:

"No written request for an extension of time has been received by Council. A verbal conversation took place between the applicant and one of Council's Senior Statutory Planners confirming that should a request be received, Council would not be able to consider it but that there was an avenue of appeal to the Tribunal".

In CNC Homes Pty Ltd v Boroondara CC[1], I held it is not open to a permit holder to apply directly to the Tribunal to extend a permit. This is irrespective of whether the responsible authority consents to the extension or not. A permit holder must follow the proper procedure. They must first make a request to the responsible authority to extend time. It is only if the responsible authority refuses the request that an application for review may be made under section 81(1)(a) or, if the Responsible Authority fails to make a decision within one month, an application for review may be made under section 81(1)(b). The Tribunal only has a review function, not original jurisdiction.
The council should not have refused to accept the applicant's request to extend time because by doing so, it denied him the opportunity to lodge an application for review of its decision with the Tribunal under section 81(1) of the Planning & Environment Act 1987.
The Tribunal wrote to the parties explaining this and suggesting the application should be withdrawn and a new application made after the responsible authority had made a decision.
Rather than withdrawing his application for review, Mr Burleigh lodged a formal application to extend time with the council on 15 June 2007. The difficulty with this course of action from a procedural perspective is that even if the council had then refused his request to extend time, this would have occurred subsequent to the application for review being lodged. In other words, the application for review would still have been premature.
However, although the council said it did not oppose an extension of time, it persisted with its purported refusal to make a decision to refuse the request. The council took the view that as the 3 month "grace period" had lapsed, council had no legal authority to extend the planning permit, and on the basis that Council has no legislative power to assess any request, it cannot issue a formal refusal.
I disagree with the council's interpretation of its legislative power to assess a request made out of time and to make a decision. The council has power to make a decision; the power it lacks is the power to extend the time of the permit.
Section 69(1) of the Planning & Environment Act 1987 provides that before the permit expires or within 3 months afterwards, the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time. Subsection (2) provides that the responsible authority may extend the time. I do not consider that the responsibility authority can stop an owner or occupier of land from asking for an extension of time or that section 69 authorises it to refuse to receive such a request.
By implication, the responsible authority's power to extend time under section 69(2) can only be exercised if a request is made under section 69(1) before the permit expires or within 3 months. In the case of Schneider v Boroondara CC[2] Justice Morris held that if an application under section 69(1) was made to the responsible authority out of time, clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 can be used to disregard that failure. In doing so, he said:

[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.

Since Schneider's case, the Tribunal has frequently exercised its discretion in appropriate cases under clause 62 of schedule 1 to disregard the failure of a permit holder to make an application for extension of time of a permit within 3 months of the permit expiring. But, as the Tribunal said in CNC Homes Pty Ltd v Boroondara CC, it is only in the course of a valid proceeding under a planning enactment that the discretion conferred by clause 62 of schedule 1 arises. The Tribunal cannot assume a jurisdiction it does not have. Thus it cannot review a decision if no decision has been made.
The council is concerned that it has no legal authority to extend the planning permit if the 3 month period after expiry has lapsed. This is correct. But the council is wrong when it says it has no power to assess any request for an extension of time in those circumstances. If a request is made to it, it should consider that request and then refuse it. The council is not precluded from receiving a request made out of time and I consider it to be an abrogation of its responsibilities to refuse to receive such a request. The Tribunal has recognised that section 69(1) "connotes no degree of formality" in relation to asking for an extension[3]. It has nevertheless indicated that an asking, in practicable terms, has to be in words and in writing. Whilst formality is not required, a letter to the responsible authority asking for an extension would be informal and sufficient[4]. If a permit holder writes to a council seeking an extension of time, even though it is outside the 3 month period of grace, then I consider that a request has been made which the council has an obligation to make a decision about.
Mr Burleigh's problem is that he visited the council in person and the council refused to accept his request to extend the permit. I consider that the council erred in its refusal to accept his request. Nevertheless, when Mr Burleigh lodged his application for review with the Tribunal, there was nothing for the Tribunal to review - neither a refusal nor a failure.
In all the circumstances, I do not consider that Mr Burleigh should be penalised by this error on the part of the council. The Tribunal is vested with a range of discretions under the Victorian Civil and Administrative Tribunal Act 1998 to enable it to meet the obligation cast upon it by section 97 of the Act to act fairly and according to the substantial merits of the case in all proceedings. Further, section 98(1)(d) provides that the Tribunal must conduct each proceeding with as little formality and technicality as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
I consider it is in the interests of justice to exercise those discretions which are lawfully open to me so that I am in a position to exercise jurisdiction to extend the time for completion of the development authorised by this permit. I am therefore prepared to amend the date of the application for review to a date subsequent to the request being made for an extension of time under section 69(1) of the Planning & Environment Act 1987. I find as a question of fact that the council's letter dated 17 July 2007 to the applicant constitutes a refusal to extend time on the basis that the request was made more than 3 months after expiry of the permit on 21 November 2006. I will also exercise my discretion under clause 62 of schedule 5 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure by the applicant to request an extension of time within 3 months of the expiry of the permit.
Finally, I determine to extend time for completion of the development authorised by the permit until 21 November 2008. In deciding to extend time for completion, I note that the permit was first issued on 21 November 2001. There have already been several extensions of time. In my view, seven years is a long enough period within which to complete a relatively modest development of three single storey dwellings. Time limits for completion are intended to discourage a permit holder from ceasing work or proceeding at such a slow rate as to impose the burden of the partly completed work on the community for a substantial or indefinite period of time. Mr Burleigh has been undertaking construction of the dwellings himself. He should make a concerted effort over the next 18 months to complete construction and avoid any further complications which the need for a further extension of time might give rise to.

[3] Sewells Finance Ltd v Colac Otway SC [2003] VCAT 423 at [36]

[4] See CAJ Hairdressing Pty Ltd v Port Phillip CC [2003] VCAT 993 at [47]

Burleigh v Frankston CC [2007] VCAT 1414

At a glance

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Decision date

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Judgment (16 paragraphs)

Burleigh v Frankston CC [2007] VCAT 1414 (2 August 2007)

Parties