1. The Tribunal directs that the time for completion of the development specified in condition 1 of permit no P173/93 issued by the Responsible Authority and amended on 23 February 1998 is extended to 4 June 2006.

Oral reasons for the decision were given at the hearing.

1 These reasons reflect the oral reasons given at the hearing.

2 This is an application under section 81(a) Planning and Environment Act 1987 by the applicants for extension of permit P173/93 originally issued by the responsible authority in 1993 for the development of the land as a road house service station, public toilet and bus terminal in 3 stages in accordance with the endorsed plans.

3 Between 1993 and 1998 the project was delayed (despite endorsement of plans now regarded as inadequate) because of proposals for the Shepparton Bypass which might have resulted in the compulsory acquisition of the subject land.

4 The permit was amended and extended by the responsible authority on 23 February 1998 to include the use of the land as well as development (replacing an earlier separate permit for use) and also extending the permit.

"That the time pursuant to Section 68 of the Planning and Environment Act 1987 for commencement of the development hereby permitted is 2 years from the date hereof and for completion two (2) years from the time of commencement, unless either time is extended by the responsible authority on application to it before or within 3 months after expiry of this permit."

6 It is common ground between the parties that work under the permit has been commenced namely road access works and drainage works in the road reserve, the installation of power and telecom in the addition to the sewerage already installed on the site.

7 On 7 November 2003 the applicant requested an extension of the planning permit on the basis that the works were commenced on 26 November 2001.

8 By letter dated 11 May 2004 Council wrote to the applicant refusing the request for extension of time on the following grounds:

* The planning controls which relate to the subject land have undergone significant changes

* There has been significant development and the commencement of new uses on land in the vicinity of the subject site.

* It will be appropriate to allow adjoining land holders and any other interested parties (including any referral authorities) the opportunity to consider the proposed use and development of the subject land in the light of the current planning controls and circumstances.

* No significant works have been undertaken on the subject land pursuant to the permit.

9 The application for review was lodged on 18 May 2004 and a directions hearing before his Honour Mr Justice Morris adjourned the matter for a prompt hearing to 4 June 2004.

10 Council's representatives that attended the hearing spoke to written submissions. The applicant appeared personally and made oral submissions and produced various documents. There was no expert or other evidence. The written submissions together with the plans photographs and other material tabled in the course of the hearing were attached to the Tribunal's file. The hearing occupied 3 hours. No inspection of the land was necessary.

11 There was no dispute that the principles applicable to the case were those enunciated by the Supreme Court of Victoria in Kantor and Others v Murrindindi Shire Council 18 AATR 285 at 313.

12 It was acknowledged that there has been a change in planning policy since the grant of the permit. The former planning schemes has been replaced by the new VPP format planning scheme. The land now zoned Industrial 1, which allows the proposed use of service station as a section 1 use as of right, and accordingly no permit is now needed for the use of the land, therefore the permit only relates to buildings and works.

13 Clause 33.01-4 of the planning scheme regulates buildings and works and a permit is required to construct a building or construct or carry out works as under the previous scheme. What is new is the application requirements some of which is not being complied with. Also new is an exemption from notice and review from the need to give notice of the application and excluding third party appeal rights. Decision guidelines, particularly in relation to stormwater discharge, now apply.

14 In addition the land is now subject to an Inundation Overlay and under Clause 44.04-1 a permit is required to construct a building or to construct or carry out works including a fence and roadworks. The exemptions referred to in that clause do not apply. Under Clause 44.04-4 a referral of the application to the Floodplain Management Authority is required. Clause 44.04-5 sets out decision guidelines.

15 Despite these changes the issue remains substantially one of buildings and works. Before the project proceeds it will be necessary as outlined below for the applicant to prepare detailed plans and specifications of the works and my view is that all the issues under the new scheme including the floodplain issues can be dealt with by the Council under the endorsement of plans processed under the existing permit rather than require a new permit application. The applicant is willing to address the "levels" issue under the Inundation Overlay and the application requirements and new decision guidelines. I find the changes in planning policies are not so significant to require the refusal of the extension.

16 It is also significant that the land and surrounding land is principally industrial or commercial. There are no sensitive residential or environmental uses nearby and third party rights are excluded under the Industrial 1 zone provisions. No objectors were referred to.

17 In considering the endorsed plans it is open to the responsible authority to seek the views of the floodplain management authority in relation to the Inundation overlay. It appears conceded that the flood prone nature of the land is marginal and that it is not in a floodway, and the applicant disputed that it is flood prone at all.

18 As the applicant has spent considerable sums to date in commencing the works, particularly the road access, I am satisfied that the applicant is not seeking to warehouse the permit but intends to proceed with the development.

19 I am also required under Kantor to consider intervening circumstances, the total lapse of time and whether the time limit originally imposed was inadequate. There is no doubt that there has been a certain amount of disorganisation in the conduct of the permit application by the applicant but also he has encountered some unexpected difficulties. The particular difficulty causing delay him since the grant of the extended permit was obtaining approval of a drainage plan. The drainage plan is vital to the establishment of the development and I accept the applicant's submission that it is impossible to design the project properly until the drainage plan is approved. However despite the Council being obliged by Condition 6 (of the permit) to consider whether it should endorse the plan, it failed to do so and referred it to the drainage authority (Goulburn Murray Water) who also failed to come to a decision on the plan.

20 Instead of bringing an application to the Tribunal under section 149(1) Planning and Environment Act 1987 for failure of the responsible authority to endorse the plan under Condition 6 of the permit, the applicant commenced and has continued proceedings in the Supreme Court and the Court of Appeal against the drainage authority over the discharge rate and other matters. This has all taken a considerable amount of time and got the applicant nowhere, whereas the relatively expeditious procedures available to the applicant under Section 149(1) should have produced a definite outcome.

21 Accordingly the applicant may well have been delayed and taken wrong turns in his attempts to pursue the development, but Council and the drainage authority may also have caused delays. Certainly Council could have referred the plan to the floodplain management authority, and considered what might be the most appropriate procedures under the Planning and Environment Act. Instead the applicant has been stalemated in progressing the application. I find that insufficient time was allowed by the permit to enable the development to be completed.

22 I consider that the applicant has suffered some economic burden to date as a result of the expenditure on the project. I accept his submission that if he was required to apply for another permit he might lose the benefit of the access provisions allowed under the existing VicRoads approval which have already been constructed. This would be a significant detriment

23 Council has advised that it is expected that a new permit may possibly issue but with more detail and which addresses the various additional criteria. Accordingly the Tribunal is not faced with a situation where the proposed use and development in the long term is unacceptable to the responsible authority.

24 In these circumstances I consider it is appropriate that the permit be extended under the criteria in Kantor. However I set out below the steps I consider that applicant should promptly take to progress the application:

* he should seek appropriate and professional planning and design advice for the preparation of detailed plans and specifications and for their submission to the Council for approval under the permit;

* under Condition (4) of the permit he should have prepared and submitted to the Council for endorsement detailed plans of each stage of the development. Condition (4) requires that these detailed plans be submitted to and approved by the responsible authority prior to any works not detailed in stage 1 commencing;

* he should have prepared and submit fresh drainage plans for the development to the responsible authority pursuant to Condition (6) of the permit.

* under Condition (7) of the permit he should submit with the plans a proposal to the responsible authority for all effluent emanating from any development on the site to be contained within the site and disposed of;

* pursuant to Condition (8) of the permit he should have prepared and submitted to the Council for endorsement a landscaping plan. The landscaping plan and the endorsed plan should set out all car parking spaces, accessways and loading bays;

* pursuant to Condition (11) of the permit he should submit appropriate engineering plans for the engineering works to be carried out under the permit;

* pursuant to Condition (14) of the permit he should have prepared and submitted to the responsible authority for endorsement a full colour scheme of the buildings and pursuant to Condition (15) details of any additional signs to be installed.

25 He should ensure in the preparation of the plans that his consultants satisfy themselves that the provisions of Condition (12) relating to the regulations for the storage and handling of dangerous goods, Condition (13) the requirements of the Department of Labour and Industry in relation to the storage and dispensing of LPG can be complied with.

26 It may be that some of these plans have already been submitted to the responsible authority but it appears that some files have been lost. In my view the applicants best course of action is to start again.

27 If he is unable to obtain approval or endorsement of the plans submitted by the responsible authority within a reasonable time, the appropriate course of action is to apply to the Tribunal pursuant to section 149(1) Planning and Environment Act 1987 for determination of the dispute.