1. There is no dispute that the application was lodged out of time. The question is whether an extension of time to lodge the application is appropriate given the particular facts and circumstances.
2. It is well known that the Tribunal takes a stringent view on extension of time requests by objectors and it not an 'automatic' decision to extend time.[4]
3. The factors to be considered for an extension of time for an application are well established and articulated in Katsanis v Wyndham CC (Red Dot) [2005] VCAT 824:[5]
   1. What reasons are given for the delay by the applicant for extension of time in lodging its appeal?
   2. Did the applicant for extension of time take any other action (apart from the lodging of the objection or the late appeal) which continued to make the responsible authority aware that its decision to grant a permit was being contested?
   3. Will the applicant for the permit or the responsible authority suffer any prejudice if the application to extend time is granted?
   4. Will granting of the extension of time result in the unsettling of other people or of established practices?
   5. Does the proposed appeal have a real chance of success?
   6. Are any considerations of fairness as between the applicant for extension of time and other persons in a like position which are relevant?
   7. Is there to be an appeal in any event brought by persons who did lodge an appeal in time?
   8. Is there any other reason why it would be fair and equitable in the circumstances for the application for extension of time to be granted?
4. I do not consider 9(vi), 9(vii) and 9(viii) above relevant on the facts, I address the other matters below.

1. On the facts, the delay in lodging the application stems from a series of mistakes and procedural errors. The first mistake was council sending the NOD to the wrong email address and not noticing or correcting the mistake. The second mistake was, upon contact by the applicant, the council positively informed the applicant through their then lawyers that an extension of time for lodgement of the application was granted. The third mistake if it can be characterised as such, is that the then lawyers for the applicant accepted the extension of time from the council, without apparently knowing that it was beyond power for council to grant such an extension.
2. There were other complicating factors identified in the submissions to the practice day hearing. The advice from council that an extension was granted was provided by a junior planner ('para planner'). I was informed at the hearing that this advice was given without reference to a more experienced planner or manager.
3. It was also put to me by the applicant that their then lawyers are not a specialist planning law firm and therefore their reliance on the council advice was understandable in the circumstances.
4. The respondent argues that these reasons should not be accepted. It argues that the NOD is clear as are the statutory timeframes set down in regulation 35.[6] It further argues that no inquiries were made by the applicant with the Tribunal regarding an extension of time.
5. I find it somewhat surprising that, on the material before me, the original lawyers apparently did not undertake due diligence on the legal basis of the council extension of time. I accept that they may not be a specialist planning law firm, but this is even more reason why additional care should have been taken, or specialist advice sought.
6. That being said, a large part of the responsibility for the mistakes rests with council, who while administering the planning scheme should be aware of the statutory 'guardrails' that they work within.
7. I do not accept that because the advice given was from a para planner that it should carry less weight. It was provided as a formal email from council, and the applicant was entitled to rely on the advice that an extension was granted.
8. I note also that on 20 January 2026, which was outside the statutory period to lodge an application, council further advised the applicant that they were calculating the 28-day period from the 30 December 2025. Section 64 of the PE Act requires that notice of a decision be given to the objectors in a prescribed form. It has not been put to me that there is a defect in the NOD itself, and I am not clear that council has the power to unilaterally change the NOD date. In any event, it is not a matter I need to consider further given my overall decision.
9. On balance I consider that the reasons for delay in lodging the application are substantive reasons which fairly viewed are not the fault of the applicant. These reasons weigh heavily on my decision to grant the extension of time.

1. It appears on the facts that council was aware from the 9 January 2026 (still within time at that point) that the applicant intended to appeal and then it purported to grant the extension sought until 27 January 2026. Council then confirmed this on 20 January 2026 with the applicant who went on to lodge their application on 27 January 2026.
2. The chain of correspondence between the applicant and council suggests council was aware an application would be lodged, and when it was lodged it was within the (unlawful) timeframe provided by council.
3. In the circumstances it is difficult to see what other action the applicant might have taken apart from seeking further legal advice. There were no suggestions that this was needed given the advice from council and presumably their own lawyers at that time.

Prejudice to the permit applicant or responsible authority

1. The council (responsible authority) submits it will suffer no prejudice and does not object to the extension of time.
2. The respondent submits that it will suffer prejudice if the time to lodge the application is extended. It filed an affidavit which essentially outlines that if the extension is granted, the building and works will be delayed, and the respondent will incur additional costs related to loans and land tax including on a separate property that it resides in and will sell when it moves to the subject land.
3. Council and the applicant did not take issue with the affidavit or its contents. That the respondent will suffer some costs and delay if the extension is granted is essentially not contested.
4. I consider it relevant that the prejudice suffered is little different to a scenario where the application was lodged in time. But for the mistakes and procedural errors earlier discussed, the costs and inconvenience of a s 82 application would still need to be borne at some level by the respondent.[7] These costs and delay are a function of the planning system which in some circumstances allows objections and review by third parties.
5. In this case I consider the prejudice to the applicant, particularly in relation to the mistakes by council, means that the greater prejudice is to the applicant in not allowing the extension.

1. Given the particular facts in this matter, I am not concerned that it unsettles established practice. As outlined in the reasons for the delay earlier, I am satisfied that the set of circumstances that led to the council positively advising the applicant that they had additional time, through the purported extension, is not something that is likely to occur often.
2. I consider it is of sufficient gravity that it is appropriate to depart from the Tribunal's usual stringent approach to requests for extension of time; and on that basis it is appropriate to exercise discretion under s 126 of the VCAT Act.

1. The respondent submits that in the applicant's original objections many issues were raised that are not relevant to the application, given that the Heritage Overlay is the sole permit trigger that attracts the requirement of notice. It submits that even in the revised statement of grounds the chances of success of the application are limited given the location of the building and works proposed and their impact on the heritage values sought to be protected by the overlay.
2. The applicant submits that while the original objections identified several issues that might not be relevant, this is not unusual in objections from non-experts in planning. It submits that heritage was included in these objections and the grounds submitted in the statement of grounds are focused on heritage matters. Further the applicant submits it now seeks to call expert evidence on heritage to supports its objection.
3. The applicant drew my attention to Bowd v Bayside CC [2022] VCAT 285 where the Tribunal noted[8], in accordance with other Tribunal decisions, that it is not up to the Tribunal considering the application for an extension of time to undertake a merits review. Rather, it is up to the Tribunal to consider the grounds put forward against the planning scheme to conclude whether an application could succeed, that is, whether there is an arguable case.
4. Having reviewed the grounds, I am satisfied that they are sufficiently relevant to the permit triggers and policy in the planning scheme to provide an arguable case. In this sense they do not weigh against the extension of time application.

1. In the circumstances I consider it just and fair to grant the extension of time and have made orders accordingly.
2. I will make separate orders for a compulsory conference and hearing in due course.

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[1] The closing date to make an application to the Tribunal under s82 thus being 28 days from 19 December 2026 (16 January 2026).

[2] All references to 'lawyers' in these reasons are references to the original lawyers acting for the applicant, not the firm acting for the applicant in the practice day hearing.

[3] Council submitted that it is reviewing its procedures and practices to address the shortcomings leading to the provision of incorrect advice.

[4] See for example Kingston CC v Minister for Planning (Red Dot) [2025] VCAT 111 at [41].

[6] Planning and Environment Regulations 2015

[7] Albeit in a different factual context the Tribunal observed in Alcoa of Australia Limited v Minister for Planning [2021] VCAT 1371 at 21(iii) 'There is little doubt that the responsible authority and the respondent will suffer some prejudice including by delay and costs. In fact, it is difficult to envisage a situation where the respondent would not suffer some detriment by the granting of an extension of time for the lodgement of an application. However, the greater prejudice in this case, is to the applicant, who through no fault of its own finds itself seeking an extension of time to commence the proceeding.'