a

The permit application has not lapsed; and

b

The Tribunal has jurisdiction to determine the application for review.

4 The decision of the responsible authority is set aside. The time to give the required information in respect of permit application No MPS2005/0267 under section 54 of the Planning and Environment Act 1987 is extended and the new lapse date for the application is 31 October 2005.

(given orally at the hearing and subsequently revised)

1 This is an application under section 81(2) of the Planning and Environment Act 1987 for a review of a decision of the responsible authority under section 54A to refuse to extend the time within which information must be given by the applicant under section 54. To my knowledge this is first such application for review to come before the Tribunal since amendments to the Act introduced time limits on the production of further information required by a responsible authority and provided for permit applications to lapse if the information is not provided within time.

2 The permit application in this case involves a proposal for a 10 storey building comprising offices, shops, café and conference centre, and a reduction of car parking requirements on a site in Sydney Road, Coburg. It is a substantial proposal.

3 The permit application was lodged on 27 May 2005. A request for further information was made by the responsible authority pursuant to section 54 of the Act on 20 June 2005. Pursuant to section 54(1B) of the Act a lapse date was specified of 20 July 2005. Four pages of further information was requested, some of it quite complex, including proof of existing use rights. The request also highlighted a number of perceived inadequacies with the permit application and suggested the application should be amended.

4 The applicant requested an extension of time within which to provide the further information on 12 July 2005. The application for an extension of time was made before the lapse date specified in the requirement notice as required by section 54A(2). The application was refused by the responsible authority on 5 August 2005. No reasons were given.

5 It appears from the council officer's report on the application that the applicant's failure to specify any reasons why the timeframe could not be met or to provide an alternative timeframe for the provision of the information were influential in refusing the request. This was confirmed by Mr Rantino on behalf of the responsible authority at the hearing. He advised that there had been extensive pre-application consultations between the applicant and the responsible authority and that much of the information requested is information which council officers had previously conveyed was necessary in pre-application meetings. For his part, Mr Martakis claimed to have provided much of the information during discussions with council officers. He said that although a pre-application meeting took place, a number of issues and opinions expressed by officers were subsequently contradicted in the request for further information. He also said that he had experienced great difficulty in contacting the relevant council officer to discuss the further information requested during the 30 day period.

6 The introduction of a lapse date for the provision of further information under section 54 was part of the implementation of the Government's Better Decision Faster programme. Specifically, a time limit on further information was put forward as option B1 in the discussion paper, Better Decisions Faster: Opportunities to Improve the Planning System in Victoria[1]. The rationale for this action was stated to be as follows:

An application should not be lodged until a proposal is a serious one. Combined with other initiatives such as pre-lodgement certification (Option A1) and a more comprehensive application form (Option A3) there should be a reduced need for further information requests. Also, any applicant of a serious proposal should be in a position to respond within a reasonable time.

7 It was submitted by the responsible authority that the legislative changes will:

•

Encourage better preparation of applications at the outset.

•

Remove the expectation that inadequate applications can be lodged and council will coach the applicant and fix inadequate applications during the statutory process.

•

Reduce requests for further information.

•

Free up valuable planning officer time for concentrating on decision making.

•

Encourage applicants to make better use of pre-application meetings.

It was submitted that requests for an extension of time should not be automatically granted as to do so will undermine the benefits of the legislative changes by enabling permit applicants to slip back into their old habits of lodging incomplete applications and "patching them up" during the statutory process.

8 I consider there are a number of deficiencies in the way that the permit applicant has handled this application and his request for an extension of time, but I am prepared to overlook the shortcomings in the present case, firstly because this is the first application of its kind and parties are still on a learning curve, but primarily because I consider that the initial 30 day lapse period was unreasonable.

9 Under section 54(1B) the responsible authority must specify a lapse date. Section 54(1C) provides that the lapse date must be a day not less than 30 days after the date of the notice. The lapse date of 30 days specified in section 54(1C) is a default provision and will not be appropriate in all circumstances. The period specified by a responsible authority to provide more information must be reasonable and must reflect:

•

The scale and nature of the proposal for which a permit is applied for.

•

The type and amount of information requested.

•

Any other factors relevant to the particular matter.

10 Given the significant scale of the proposal in the present case, the extensive amount of further information requested and the complex nature of some of it, I consider that a 30 day lapse period was patently inadequate to assemble and provide all this material. I consider that a further 30 days extension from the date of this order is appropriate and I will so order. I make this order notwithstanding some inadequacies in the way that this matter has been handled, which I will now address.

11 If permit applicants apply for extensions of time under section 54A of the Act, they should provide reasons why more time is required and should also specify a realistic timeframe within which the information will be provided as the basis for setting a new lapse date. Likewise, if a responsible authority decides to refuse a request for extension, it should provide reasons. The responsible authority should base its decision on what is reasonable in all the circumstances.

12 On the other hand, permit applicants should recognise that the new legislation introduces a paradigm shift to the processing of permit applications. Time limits on the provision of further information are part of an overall package of measures and one of the imperatives of that package is to encourage applicants to provide complete information with their application. The intent is to encourage pre-application meetings in order to sort out the details of an application prior to its lodgement. Whilst it is questionable whether this will result in any less time being spent on dealings between applicants and council officers it will tend to push the work to the front end of the process and hopefully avoid half-baked proposals being lodged and then sorted out once the application is lodged.

13 However, if a paradigm shift is expected of permit applicants, an equal paradigm shift will be required of responsible authorities. They must be prepared to provide practical and constructive critique of proposals prior to applications being lodged. It will not be appropriate to adopt an attitude of saying "lodge an application and then we will look at it". It will also place an onus on responsible authorities not to retract from positions adopted and advice given in the pre-application process where this has been relied upon in formulating the application that is finally lodged or to ask for information that has already been provided. I am not suggesting that this is the case with Moreland, but there are reports of these practices.

14 It is important to recognise that the development of a proposal is influenced by many factors. Gaining input from the responsible authority about its attitude to various aspects is an important part of the process. The changes to the legislation will not eliminate the importance of this part of the process but rather may shift how and when it is done. Responsibility will rest on both applicants and responsible authorities to make the changes work effectively.

15 What this case also illustrates is how important it is for permit applicants to submit all further information in written form. It is not adequate for permit applicants to claim that they have given council officers relevant information during the course of discussions. They need to put this in writing. They must also perceive the need to adhere to time limits and recognise that the rules of the game have changed.

16 There are several other technicalities that must be addressed in connection with this application. Under section 54B of the Act the application for permit had lapsed before the application for review was lodged at the Tribunal.

17 Regulation 33 of the Planning and Environment Regulations 2005 provides as follows:

(2) An application for review under section 81(2) of the Act in relation to an application for a permit must be made before the last of the following to occur -

(a) the lapse date specified in the notice under section 54(1A) of the Act;

(b) the new lapse date set out in a notice under section 54A of the Act, if applicable;

(c) if the applicant for the permit has made an application to the Tribunal under section 78(b) of the Act in respect of a requirement for more information and the Tribunal has confirmed or changed the requirement, the new lapse date determined by the Tribunal under section 85(3) of the Act.

18 Regulation 33(2)(b) is the relevant date in this case. Although the responsible authority refused the permit applicant's request for an extension of time to provide more information, under section 54A(6) it was obliged to provide a new lapse date that was 14 days from the date of its decision of refusal. That was 14 days from 5 August 2005, which is 19 August 2005. The application for review was not lodged until 23 August 2005.

19 In the circumstances, I am prepared to exercise my discretion under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 and extend time within which to lodge the application for review to 23 August 2005. I am also prepared to exercise my discretion under clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure by the applicant to lodge an application for review under section 81(2) of the Planning and Environment Act 1987 within the prescribed time, which enables me to hold that the permit application has not lapsed and that the Tribunal has jurisdiction to determine the application for review.

20 Finally, given the serious consequences of failing to provide further information by the lapse date specified in notices under either section 54 or section 54A, I consider it would be good practice for responsible authorities to specify the lapse date in terms of an actual date rather than simply stating that if information is not provided within 30 days or 14 days etc that the application will lapse. This will avoid disputes and uncertainties over when the 30 days or 14 days etc is to be counted from. The legislation is quite specific in providing that a lapse date must be specified. I consider that the wording of section 54(1B) and (1C) and section 54A(5) and (6) require a specific date to be specified as the lapse date rather than a calculation being required by reference to a number of days.

[1] Department of Sustainability and Environment (August 2003) page 16.