2 The permit applicant must erect a sign on the subject land and maintain that sign for 14 days in a form to the satisfaction of the responsible authority indicating the fact that this appeal has been lodged with the tribunal, the substance of the matters raised in it and that any person wishing to contest the appeal must file the appropriate notice with the tribunal and serve that notice on the other parties within 14 days of the cessation of the maintenance of the notice.

REASONS (given orally at the hearing and subsequently revised)

1 This case involves the powers available to the tribunal to extend the time for lodging a conditions appeal. For many years the tribunal has interpreted the relevant legislation in such a way as to prevent the exercise of a power to extend the time limit for a conditions appeal in circumstances where a notice of decision was issued. The present application requires me to consider whether the previous approach is justified. After carefully considering the matter, I have concluded that it is not justified and does not give effect to the true meaning of the statute. Let me explain.

2 The permit in this case was issued on 21 February 2003. The permit applicant did not appeal against conditions, apparently in the belief that he could accept the conditions imposed upon the permit and any matters that needed to be resolved could be resolved as part of the provision of amended plans pursuant to the permit. Disputes have arisen between the permit applicant and the council in the course of considering amended plans; and it would also appear that new factors have emerged which made the permit applicant question whether he could comply with all the permit conditions. The permit applicant has also brought a review, pursuant to section 149 of the Planning and Environment Act, in relation to amended plans, but also wishes to accompany that application by an application to review certain conditions.

3 Section 126 of the Victorian Civil and Administrative Tribunal Act provides that the tribunal may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding. In the present case, the relevant regulations made pursuant to the Planning and Environment Act specify 60 days for the commencement of an application for review of conditions in a permit. Clearly the permit applicant is well beyond that time and hence would need an extension of time to bring the application.

4 Section 126(4) of the VCAT Act provides that the tribunal may not extend time if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages. Ms Lane suggests that prejudice would result to the council and, possibly, objectors if time was extended. I am not satisfied that this is the case. Certainly the mere fact that there have been delays has not caused any prejudice to those parties. This is illustrated by the fact that the permit applicant could lodge a fresh application, which would need to be considered, that would ultimately bring about the same outcome.

5 The central issue that arises is the meaning of clause 65 of Schedule 1 of the VCAT Act. This provides, relevantly:

The tribunal must not extend the time for commencing a proceeding under a planning enactment if -

(a) a proceeding in respect of the same or related facts and circumstances has already been set down for hearing; or

(b) a permit, licence or works approval has been issued to any person on or after the expiration of the time appointed for lodging an application for review of the decision to grant that permit, licence or approval.

6 In this case there were objectors and the council did decide to grant a permit. When there were no objector appeals, the council issued a permit. Ms Lane argued that, by reason of these facts, the tribunal is prohibited from extending the time for commencing a conditions appeal by the permit applicant because a permit has been issued after the expiration of the time appointed for lodging and application for review of the decision to grant that permit. She relies upon a series of cases decided by the tribunal. The first of these cases is Ellerton Amber Pty Ltd v Shire of Eltham (1991) 7 AATR 281. This case has been followed in subsequent cases, such as Hooper v Mornington Peninsula Shire Council (1997) 21 AATR 83, Hollier v Loddon Shire Council (Application No 99/14708) and Freeman Developments Pty Ltd v Knox City Council [2002] VCAT 1264.

7 In Ellerton Amber Deputy President Byard set out the relevant considerations in some detail. In particular, he traced the history of the provision to section 67(3) of the Planning Appeals Board Act 1980, carefully considered the apparent purpose of the provision and weighed this against what he regarded as the plain or literal meaning of the provision. He concluded:

I think the words are plain enough when read in the context of the relevant legislation. I do not think that there is a proper basis for me to read in restrictions that do not appear in the text.

Deputy President Byard commented that his interpretation could operate in ways that were inexpedient and arbitrary.

8 Later, in deciding Hooper v Mornington Peninsula Shire Council, Deputy President Byard, this time accompanied by Deputy President Preuss, reached similar conclusions. More recently in the Freeman Developments case Acting Deputy President Byard, although affirming the approach, commented that it was an "inconvenient, unsatisfactory and not a particularly fair result". Indeed, in that case Acting Deputy President Byard resorted to clause 62 of Schedule 1 of the VCAT Act to achieve a fair outcome. That provision allows the tribunal to disregard certain failures to comply with statutory provisions if it considers it to be in the interests of justice to do so.

9 I think it is time for the meaning of clause 65 of Schedule 1 of the VCAT Act to be reassessed from first principles. In conducting this task, although I am guided by previous tribunal decisions, I do not regard myself as being bound by them.

10 All statutory provisions must be interpreted so as to give effect to the purpose of the provision. In Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, AT 235, Dawson J explained how Victorian courts should approach statutory interpretation, particularly in the light of section 35 of the Interpretation of Legislation Act 1984. He observed that "the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act".

11 The purpose of clause 65(1)(b) stands out like a beacon. The purpose is to provide a permit applicant with security once a permit, licence, or works approval has actually been issued. That security is provided not only in respect of an objector appeal, but also in respect of the enlargement of time to permit an objector appeal out of time.

12 Given the obvious purpose of the provision, it would be an odd outcome if clause 65(1)(b) was interpreted as applying to permit applicant appeals against conditions. The fact that this would be an odd outcome indicates that it is unlikely to be what the Parliament intended.

13 The triggering event identified in clause 65(1)(b) is the issuing of the permit; and this event is conditional upon this occurring on or after the expiration of the time appointed for lodging an application for review of a decision to grant that permit (that is, an objector appeal). The event and the condition are directly related to objector appeals. By contrast, an application for review by a permit applicant of conditions contained in a permit (that is, a conditions appeal) is not rendered inappropriate by the issuing of the permit nor is the time limit for objector appeals (21 days) significant for conditions appeals (60 days).

14 In my opinion, in order to give effect to the purpose of clause 65(1)(b), it needs to be interpreted as if it contained the following words immediately before the words "a permit licence or works approval", namely "in the case of an application to review a decision to grant a permit, licence or works approval". Such an interpretation would not only give effect to the purpose behind and underpinning clause 65, but also would avoid the unfair result so accurately described by Deputy President Byard in the Ellerton Amber and Freeman cases.

15 As to the discretion to be exercised, Mr Peake referred me to the decision of the tribunal in Hillswick Pty Ltd v Port Phillip (2001) 9 VPR 82, in particular at 85-86. Relying on the affidavits of Judith Nicholson, dated 12 December 2003, and Jennifer Nicholls, dated 12 December 2003, and considering the matters contained in those affidavits in the context of the relevant principles, I am satisfied that there is sufficient basis to extend time in this case. As a general rule, I believe that the planning system should operate so that the substance of issues is considered where possible. This case is an example of the application of that principle.

16 Ms Lane raised one other issue that I need to note. She said that there may be persons who would wish to be involved in any appeal who may not have been objectors. She puts this on the basis that some persons may have been satisfied with the original nature of the application, which now may be changed. I propose to require limited re-notification to overcome this concern.