I refer to the above matter and wish to advise that before VCAT can consider an application to extend time under section 81, an application in writing should first be made to Boroondara City Council even though it is out of time. The Tribunal can only review a decision of the responsible authority, it cannot act on its own initiative.

You are also required to ascertain whether the Council would consent to the Tribunal dealing with the application 'on the papers' if there is no objection to an extension of time, and then advise the Tribunal as to the outcome of these steps before further action can be taken.

Please provide a response within 21 days from the date of this letter. Should you have any further queries, please contact this office on the phone number below.

4 Since then, the responsible authority has advised by letter dated 9 February 2006:

Although Council has not yet received an application to extend Planning Permit PP03/00126, Council (if it did receive such an application) would have no other option but to refuse such an application. Therefore, Council considers that the Tribunal should consider the current Application for Review, which Council consents to being dealt with on the papers.

As such, I refer to the above Application for Review and advise that Council consents to the extension of Planning Permit PP03/00126 for a period of twelve (12) months.

5 No response has been received from the applicant.

6 Section 81(1)(b) of the Planning and Environment Act 1987 provides as follows:

(1) Any person affected may apply to the Tribunal for review of -

(b) the failure of the responsible authority to extend the time within one month after the request for extension is made.

7 The Tribunal only has jurisdiction to review the failure of the responsible authority to extend the time after a request for extension is made. In appropriate cases, even though the request may be made more than three months after the permit has expired and consequently the responsible authority cannot extend time by virtue of section 69 of the Act, the Tribunal is prepared to exercise its discretion pursuant to clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure to comply with section 69(1) of the Act for the reasons set out in Schneider v Boroondara City Council[1]. However, 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 it fails to make a decision within one month, may make an application for review may be made under section 81(1)(b).

8 In the present case, no request to extend time has been made to the responsible authority under section 69 of the Act. There is therefore no jurisdiction for an application for review to be made to the Tribunal under section 81. Clause 62 of schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 confers a wide discretion upon the Tribunal to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment. The Tribunal may determine to disregard that failure if the Tribunal considers it is in the interests of justice to do so. However, 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.

9 For example, it would not be open to a person to make an application to review the failure by a responsible authority to grant a planning permit for a use and development when no planning permit application had ever been made to the responsible authority. Even if a responsible authority has clearly indicated that it would not grant such a permit, an application must still be made under the provisions of the Act before the Tribunal has jurisdiction to review that failure. The same principle applies in the present case.

10 This application will therefore be struck out pursuant to section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 on the grounds that it is misconceived. If the applicant wishes to pursue the matter, it should make a proper request to the responsible authority to extend the time of the permit. The responsible authority should refuse the request (as it must do by virtue of section 69 of the Act). The applicant may then, and only then, lodge an application for review under section 81(1)(a) of the Act. Only at this point may the Tribunal exercise its discretion under clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure of the applicant to comply with section 69(1) of the Planning and Environment Act 1987 to make application for an extension of time of permit PP03/00126 within three months of the expiry of the permit on 10 October 2005 and proceed to determine the application for review.

[1] [2004] VCAT 642