1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:

1. Pursuant to section75 of the Victorian Civil and Administrative Tribunal Act 1998, the application for review is struck out because it was lodged out of time.

1. This case illustrates the ambiguities, uncertainties and inequities that arise from the current wording of regulation 35 of the Planning and Environment Regulations 2015. This regulation provides that an application for review by an objector under section 82(1) of the Planning and Environment Act 1987 must be made within 21 days after the responsible authority gave notice of the decision to the objector under section 64 of the Act. The problem arises in interpreting what is meant by the words "giving of ... notice".
2. The Tribunal has drawn attention to the problems with the wording of this regulation in various decisions such as Archerduck Pty Ltd v Ballarat CC[1]. The problem highlighted in Archerduck is based on the operation of section 49 of the Interpretation of Legislation Act 1994.
3. Section 49(1) of the Interpretation of Legislation Act 1984 (Vic) provides that when a document is required to be given or served by post, this shall, unless the contrary is proved, be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. This provision applies to a notice of decision sent by a responsible authority to a permit applicant and objectors.
4. This raises the possibility that there may be different closing dates for applications for review depending on the vagaries of the postal delivery system. This has added significance given recent changes by Australia Post to mail deliveries that create differential delivery times and delays of 5 days or more for standard items. This is inequitable for objectors and permit applicants, creates uncertainty for councils issuing permits, and potentially undermines the certainty of permits once issued. The point was made in Archerduck that modifications to legislation or regulations would be desirable to avoid this situation. The Tribunal stated:

[24] The importance of there being absolutely no ambiguity about calculating time limits for the lodging of applications for review stems from the need to ensure consistency and certainty. Responsible authorities need to know when they may validly issue a permit. There should be no doubt about the date when this may occur depending on the vagaries of the postal delivery system.

[25] Permit applicants need to know that once a permit is issued, it cannot be set aside or doubt cast on its validity by reason of the fact that postal delays may have resulted in an objector failing to receive (by delivery to the correct address) the notice of decision within 2 business days of it being posted. The prejudice which may be suffered by a permit applicant in these circumstances could be considerable.

1. To try to provide some consistency and certainty, the Tribunal's practice when calculating time limits for the lodging of applications for review is to refer by analogy to section 141 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). In determining the closing date for applications to review a responsible authority's decision to grant a planning permit, the Tribunal treats the date from which it calculates the 21 day period for applications for review under section 82 of the Planning and Environment Act 1987 (Vic) as being two business days after the date on which the notice of decision was posted.
2. This practice has worked well and provided equity for all objectors in terms of there being a common closing date for lodging applications for review. It has also provided certainty to permit applicants and responsible authorities. However, with the tendency of responsible authorities to now email notices of decision to objectors, referral authorities and permit applicants, different legislative provisions apply. The circumstances of this particular case illustrate the unfairness to objectors in these circumstances.
3. The facts of the matter are as follows:
   • On 30 June 2016 the council issued a Notice of Decision to Grant a Permit for a telecommunications facility. On 4 July 2016 the council advised VCAT that the Notice of Decision was posted on 4 July 2016. In actual fact, the council did not post the Notice of Decision but sent it by email to all relevant people including objectors, at 9:26am on 4 July 2016.
   • Mr Hoxha says he spoke to someone at VCAT on 27 July 2016 and was told that the closing date for lodging an application for review was that day.
   • On 27 July 2016, a council officer checked the VCAT website in the afternoon to see if any applications for review had been lodged in respect of the Notice of Decision. At that stage, there was no information about the application on the website.[2]
   • At 7:07pm on 27 July 2016 the applicants lodged their application for review with VCAT by email.
   • At 9:00am on 28 July 2016 a council officer issued planning permit No. T160014 for the use and development of a Telecommunications Facility, associated equipment shelter and associated works in accordance with the endorsed plans in accordance with the same conditions set out on the Notice of Decision to Grant a Permit.
   • At 12:56pm on 28 July 2016 VCAT advised the council by email that it had received a section 82 application for review.
   • On 2 August 2016 the council sent the planning permit issued on 28 July 2014 to the permit applicant.
4. The question arises whether the council was entitled to issue the permit on 28 July 2016 after an application for review was lodged with VCAT on 27 July 2016. This depends on whether the application for review was lodged after the relevant 21 day period set out in regulation 35.
5. If the application was lodged within time, the council was not entitled to issue the permit and the permit would not be a valid permit. On the other hand, if the permit was issued after the closing date, it would be a valid permit[3] and the applicants could not apply to extend the time to commence the proceeding pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 because of the operation of clause 65 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. Clause 65(1)(b) of schedule 1 provides that the Tribunal must not extend the time for commencing a proceeding under a planning enactment if a permit 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.

1. As previously noted, regulation 35 provides that an application for review under section 82 must be made within 21 days after the responsible authority gave notice to the objector under section 64 of the Act.
2. Section 147(1)(c) of the Planning and Environment Act 1987 provides that if the Act requires a person to give, serve or publish any notice or document, the person may give or serve the document personally, by post, or in any other prescribed way. Other prescribed methods are set out in regulation 53, which provides:

For the purposes of section 147(1)(c) of the Act, the other prescribed ways in which a person may give, serve or publish any notice or document are -

(b) if the person required to serve the notice or document has taken reasonable steps to ensure that the person to be served with the notice or document has suitable arrangements for its receipt, by document exchange, facsimile machine or, subject to paragraph (c), other electronic communication; and

(c) if the person required to give or serve the notice or document (the notifier) has taken reasonable steps to ensure that the person to be given or served with the notice or document (the recipient) has suitable arrangements for the receipt of electronic communications and has agreed to receive the notice or document by electronic communication in accordance with this paragraph, by -

(i) making the notice or document available on the notifier's electronic address or an electronic address appointed by the notifier for retrieval by electronic communication by the recipient; and

(ii) promptly notifying the recipient by electronic communication that the notice or document is available for retrieval on that address and the nature of the notice or document.

1. I interpret the reference to other electronic communication in sub paragraph (b) as including by email directly to the email address of the person on whom the notice is served.
2. I do not interpret sub paragraph (c) as precluding this. Rather, I interpret sub-paragraph (c) as providing an additional means for serving a notice or document electronically whereby the notice or document may be made available on the notifier's website and an email is sent directly to the recipient notifying them that it is available for retrieval and the nature of the notice or document.
3. In the present case, I am satisfied that the council sent to Mr Hoxha at his personal email address a copy of the Notice of Decision and covering letter on 4 July 2016 at 9:26am. For the purpose of calculating the closing date under regulation 35, it is the time when notice was given that is relevant, not when it may have been received - see Vitesnik v Macedon Ranges SC[4] and Archerduck Pty Ltd v Ballarat CC[5]. With respect to the giving of notice, the Tribunal in Mandjian v Kingston CC[6] said:

[35] The Responsible Authority's obligation is to give notice of the application for the permit. The obligation is not to demonstrate that it has been received. Such an obligation would make the notice provisions of the Act too onerous, and would undermine the certainty of planning permits if they were constantly open to challenge by people alleging they had not received notice. This would be contrary to the interests of good public policy.

1. What constitutes giving notice is discussed in some detail in Vitesnik and Archerduck, which is where section 141 of the Victorian Civil and Administrative Tribunal Act 1998 becomes relevant. In these cases, the Tribunal ruled that for purposes of consistency and certainty, the Tribunal will apply section 141 in determining a closing date for applications for review under section 82 of the Planning and Environment Act 1987. It will calculate the 21 day period as commencing two business days after the date on which the Notice of Decision was posted on the basis that this is the date on which it is deemed that the notice has been received. Section 141 provides as follows:
   1. When is service effective?

(1) For the purposes of this Act, a notice or other document must be taken to have been served on, or given to, a person or an unincorporated association -

(a) in the case of delivery in person - at the time the document is delivered;

(b) in the case of posting - 2 business days after the day on which the document was posted;

(c) in the case of facsimile or other electronic transmission - at the time the facsimile or transmission is received.

(2) If a facsimile or other electronic transmission is received after 4.00 p.m. on any day, it must be taken to have been received on the next business day.

(b) a public holiday or public half-holiday in the place to where the notice is sent or delivered.

1. Strictly speaking, section 141 deals with notices and documents under the Victorian Civil and Administrative Tribunal Act 1998, whereas a Notice of Decision to Grant a Permit is a notice under the Planning and Environment Act 1987.
2. The two business days referred to in section 141(1)(b) is now out of date considering the much longer periods of time it takes to deliver mail by post - five business days being advertised, but experience indicating that longer times are not unusual.
3. Changes to Australia Post practices only highlight the disparity between the effective time, which objectors may have to consider their options upon receipt of a Notice of Decision before an application for review must be lodged, between those who are sent their Notice of Decision by email and those who are sent it by post. I can understand why councils may increasingly choose to send notices of decision by email, however the practice is not yet universal and may never be if there are some objectors who do not provide an email address.
4. When section 141(1)(c) is applied in cases where a notice of decision sent by email for the purpose of calculating the closing date, the date when the email is sent will usually be the date upon which it is received. However, the provisions of section 141(2) create a further element of uncertainty and complexity, because to calculate the correct closing date it will be necessary to know the time of day when the email was sent and consequently taken to have been received. It will add to the administrative burden of both councils and the Tribunal to record and take account of these times for the purpose of calculating the closing date for applications under section 82.
5. In the present circumstances, notwithstanding the Tribunal's advice to the applicant that the closing date was 27 July 2016 and notwithstanding the application was lodged on this date, I find that the correct closing date was 25 July 2016. I find that the Notice of Decision to Grant a Permit was given by email on 4 July 2016. Twenty-one days after this date is 25 July 2016. Consequently the application was lodged out of time.
6. I further find that the council was entitled to issue the permit on 28 July 2016, which was in compliance with section 64(3)(a) of the Act. I find that it is not relevant that the permit was issued after an application for review was received when the application was out of time and no extension for the commencement of the proceeding had been granted. Equally, I find it is not relevant that the council took several additional days before it sent the permit to the permit applicant even though it was aware, by this time, that an application for review had been lodged. The critical time is the date of issue of the permit and whether or not a valid application for review had been lodged before that time. In this context, an application for review lodged out of time could only be valid if an extension of time for commencement of the proceeding was granted before the permit was issued. This did not occur here.
7. My conclusion is therefore that:
   • The application for review by Mergim Hoxha was lodged out of time.
   • A valid planning permit was issued on 28 July 2016.
   • The Tribunal cannot extend time for commencing the proceeding by Mergim Hoxha because a valid permit has been issued.
8. Accordingly the application for review must be struck out without any consideration of its merits.

1. In reaching my conclusion, I have no discretion to disregard the particular statutory provisions, which are applicable and which lead to this conclusion. The consequences, of this decision, though, create unfairness and uncertainty.
2. The unfairness arises because, if councils adopt a practice of sending out notices of decision to grant a permit (or other notices) by email, a different closing date for making an application for review by objectors (or permit applicants) will apply depending on whether the notice was sent by email or by post. If some notices are sent by email and some by post, then objectors sent their Notice of Decision by post will have two extra days within which to make an application for review. This is unfair between objectors. More particularly, it will create considerable uncertainty.
3. The uncertainty created will arise because:
   • Objectors will not know the closing date. They will not know that there may be a difference in dates depending upon whether the Notice of Decision was sent electronically or by post.
   • The Tribunal will not be able to provide reliable advice about the closing date because it will not necessarily know if notices have been sent electronically or by post to all or some of the objectors unless specifically endorsed by the council.
   • Councils will need to be hypervigilant in ascertaining if it is appropriate to issue a permit.
   • Permit applicants will not know, unless they inquire with the council whether all notices were served electronically or by post, when the closing date for lodging applications for review falls and when they may expect to receive a permit.
   • There are likely to be more challenges by disgruntled objectors to the issue of permits if their applications are lodged after the closing date when that closing date may be two business days earlier than what has hitherto been the practice.
4. To address these issues of uncertainty and inequity, the Tribunal may need to reconsider its automatic application of section 141 of the Victorian Civil and Administrative Tribunal Act 1998 in terms of calculating the 21 day period commencing two business days after the date on which the Notice of Decision was posted. This may disadvantage objectors to whom a notice of decision is posted, particularly at a time when delays in postal deliveries by Australia Post exceed two business days. However, having a variable closing date depending on whether a notice of decision has been sent electronically or by post, is unworkable and unfair.
5. Of course, all of this confusion and inequity could be eliminated very simply by changing the Regulations to specify a date with certainty by which an application for review must be made. Such a change to regulation 35 would mean that it might read:

An application for review under section 82 of the Act must be made within 21 days after the date of a notice of decision to grant a permit, which is given by the responsible authority to the objector under section 64 of the Act.

1. Such a change would mean that the 21 day period would be calculated from the date of the notice. It would provide certainty and would be the same date for all objectors no matter how notice was given to them. No category of objector would receive any additional time benefit. All the uncertainties associated with calculation of dates by reference to the giving of notice would be removed. Even better would be a requirement to specify the closing date for applications for review on the Notice of Decision itself.
2. Such a change to regulation 35would reflect other legislation such as the Environment Protection Authority 1970 and the Water Act 1989, which set periods for making an application for review based on the number of days after the date of a notice or decision.
3. I will direct that a copy of this decision is sent to the Minister for Planning with a recommendation that regulation 35 (and other regulations such a 29, 32, 34A and 46, which share a similar wording) are reviewed as a matter of urgency.
4. Unfortunately for Mr Hoxha and his family, in reaching this conclusion and striking out the application, I am unable to consider their submissions about the planning merits of this permit application.

[1] [2007] VCAT 1696

[2] The Tribunal's practice is that each day at about 4:00pm it publishes applications for review VCAT has received under section 82 of the Planning and Environment Act 1987. The information on the website allows councils and responsible authorities to check whether applications for review have been made within the required 21 days. This information is not sent to councils. The list includes all new applications for review received in the previous 48 hours. This information remains online for 30 days.

[3] Section 64(3) of the Planning and Environment Act 1987 provides that the responsible authority must not issue the permit to the applicant until the end of the period within which a person who objected under section 57 may apply to the Tribunal for a review of the decision to grant the permit.

[4] [2007] VCAT 598

[5] [2007] VCAT 1696

[6] [2008] VCAT 964