Victorian Civil and Administrative Tribunal|2008-07-09|Before: Morris J

Figueroa v Moonee Valley CC [2008] VCAT 1303 (9 July 2008)

Figueroa v Moonee Valley CC [2008] VCAT 1303

The decision of the responsible authority is affirmed. No extension of planning permit MV/16305/2004 is granted.

This is an application pursuant to section 81(1)(a) of the Planning and Environment Act 1987 to extend planning permit MV/16305/2004. The permit was issued on 24 June 2004 and allows an attic extension to a garage. The only reason why a permit is required is under the Heritage Overlay.
The council refused to extend the permit because a request was not made within 3 months of the expiry of the permit as required under section 69 of the Act. Nevertheless, it would support the extension on the basis that the same permit would issue today and there have been no changes in the circumstances or planning policy since the permit was issued.
The permit holder did not commence development under the permit and allowed the permit to expire in June 2006 because at that stage he could not afford to proceed. Circumstances have now changed and the owner is able to proceed with the proposal. However, the owner has lost his right to request an extension of the permit and the only way in which I could consider this application for review is by exercising discretion under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard his failure to make a request within 3 months.
The Tribunal has set out its views previously about the use of this discretion under clause 62 in cases where a permit has lapsed for a lengthy period of time. In Sar Developments Pty Ltd v Brimbank CC[1], I said:

[3] Sometimes situations arise where, for legitimate reasons, people overlook the need to apply for an extension of time of their permits before or within 3 months after they expire. If there is a good reason why a request for extension is not made within 3 months after the permit expired, and when the council does not oppose an extension and there has been no change in planning policy or zoning affecting the land, the Tribunal will frequently exercise its discretion under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure to make an application within 3 months. It does so for the reasons set out by Justice Morris in Schneider v Boroondara CC[2], and where it is in the interests of justice to disregard the failure of the permit holder to apply to the Responsible Authority for an extension for time within the time specified in section 69(1) of the Planning and Environment Act 1987.

[5] Whilst the Tribunal endeavours to be facilitative in genuine situations where the need to apply for an extension of time has been overlooked for one reason or another, I consider it would be a misuse of my discretion to exercise it in the circumstances of this case. When it is known that a planning permit has expired and there has been a conscious decision to let it lapse and not pursue its extension, but then the applicant changes its mind and wishes to proceed with the development, the correct course of action is to apply for a new permit.

[6] The Tribunal's discretion to disregard the failure to seek an extension within time should not be used to revive what is effectively a "dead" permit.

In my view, the facts of this case fall into the same category. The owner was not able to proceed with the development and knowingly let the permit lapse. The permit has been expired for 2 years. The owner's change in financial circumstances is not a sufficient reason to disregard a failure to request an extension of permit after this length of time. There is no reason why a new permit cannot be applied for and it appears that council would support the grant of a permit. It does not appear that there would be any third party rights of review. Consequently, there is no reason why a new permit could not be issued reasonably promptly.
In conclusion, I find there are no interests of justice arising in the present circumstances that would make it appropriate for me to exercise my discretion under clause 62 to disregard the failure to request an extension of permit within 3 months.

[1] [2007] VCAT 2328 (3 December 2007)

Figueroa v Moonee Valley CC [2008] VCAT 1303

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Figueroa v Moonee Valley CC [2008] VCAT 1303 (9 July 2008)

Parties