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The first proceeding, P54/2009, was Mr Stuart Jenkin's request under s 87 of the Planning and Environment Act 1987 (Vic) to amend the existing permit. The permit was dated 10 April 2008. The second proceeding, P3766/2008, was a merits review under s 82 concerning an application by the permit holder to amend that permit. The Tribunal treated the question whether it could consider Mr Jenkin's request as a preliminary issue before proceeding to the separate merits hearing.

The parties agreed to amend the respondent description in both proceedings to include Parito Quen Nominees Pty Ltd, Ross Chapman and Gwen Chapman. That was a procedural correction, not the substantive issue decided.

The central dispute in the preliminary proceeding was timing. Mr Jenkin said the silos were installed, to his recollection, between April and June 2008. He wrote to Council in July 2008 to ask about the planning permit situation and said he waited for Council to respond before lodging his Tribunal request on 18 December 2008. Council and the respondents argued that this was not as soon as practicable, as required by s 89(3).

The Tribunal agreed with that submission. It refused to consider the s 87 request. It did not decide whether the original permit application had been properly notified to the public. The separate merits proceeding was not heard on its merits because the half-day hearing time was nearly exhausted. The parties agreed that it should be listed for a further half-day hearing on 16 July 2009 at 10.00 am.

Why the court decided this way

The Tribunal's decision turned on the statutory timing requirement stated in the reasons: a s 87 request had to be lodged “as soon as practicable”, and s 89(3) allowed the Tribunal to refuse to consider a request that did not meet that requirement. The Tribunal treated this as a threshold issue. It did not need to determine the substantive merits of Mr Jenkin's proposed permit challenge once it found that the request was not lodged in time under that standard.

The Tribunal accepted that the precise point when Mr Jenkin became aware of the facts was debated. It nevertheless concluded that even a “benevolent interpretation” of the timing left an approximately six-month delay between the silos being erected, or the relevant July 2008 correspondence, and the filing of the request on 18 December 2008. That formulation matters: the decision did not depend on resolving every disagreement about the exact date of awareness.

The Tribunal gave three practical reasons for its assessment. First, the silos were a “very prominent component” of the development when viewed from the public realm, and it was common ground that they had been erected by no later than May or June 2008. Secondly, Mr Jenkin had not sought independent professional advice during the relevant six-month period. Thirdly, the Tribunal did not accept that waiting for Council to respond to the July correspondence adequately explained the delay. In its view, it was for Mr Jenkin to progress the matter promptly.

The reasons do not establish a general rule that a person must always obtain professional advice, nor that correspondence with a council can never explain delay. They show how those particular circumstances informed this Tribunal's assessment of practicability. The decision is fact-sensitive: the Tribunal relied on the length of the delay, the visibility of the structures, the lack of independent advice, and the applicant's reliance on waiting for a response.

The Tribunal also addressed public notification, but expressly left that matter undecided. Council accepted there was some doubt about whether proper notification had occurred. The respondent's representative noted the absence of a statutory declaration that a public sign had been placed at the site, while pointing to correspondence said to provide some evidence that a sign had been there. Mr Jenkin said that he received no direct correspondence and did not see a yellow sign. The Tribunal stated that it had “real doubts” about whether the notification requirements had been met, but said it did not need to make a definitive finding. That concern was not the basis of the order.

Before and after state of the law

The judgment does not describe a change in the law, amend a statutory rule, or analyse earlier authorities. It applies the timing requirement in s 89(3) as the Tribunal understood it in 2009. The statutory proposition available from the reasons is limited: a request under s 87 had to be made “as soon as practicable”, and the Tribunal could refuse to consider it if it was not.

Before the decision, the relevant permit amendment request and the separate merits review were both before the Tribunal. After the preliminary ruling, the s 87 request was no longer to be considered in P54/2009. The distinct merits proceeding in P3766/2008 remained unresolved and was deferred to a later hearing. Thus, the decision changed the procedural position of these proceedings, but does not purport to alter the statutory test.

The reasons give no account of the broader legislative history, later amendments, or the operation of s 89(3) in other factual settings. They also cite no prior decisions as authorities for the timing test. Any account of the wider or current law would require sources beyond this judgment and is not supplied here.

Key passages with plain-English translation

At [Findings 3], the Tribunal said that even a favourable view of when Mr Jenkin learned the relevant facts left a delay of about six months before he filed. In plain English, the Tribunal did not consider it necessary to settle every dispute about the precise date of awareness because the delay remained substantial on the most favourable version it was prepared to accept.

At [Findings 4], the Tribunal stated: “I am not satisfied that it can be said that Mr Jenkin acted ‘as soon as practicable’”. This is the decisive finding. It did not say that every six-month delay will fail the test. It applied the standard to the chronology and circumstances before it.

At [Findings 5], the Tribunal identified the practical circumstances behind the decision: the silos were prominent and installed by May or June 2008; Mr Jenkin did not seek independent professional advice; and waiting for Council to respond to his July letter did not adequately explain the delay. The passage translates to a practical assessment of whether he had taken steps to progress his concern, not merely whether he had contacted Council.

At [Findings 6], the Tribunal said it had “some real doubts” about whether the public-notification requirements were met. In plain English, the Tribunal saw a potentially significant unresolved issue, but did not decide it. The order should therefore not be read as a finding that notification was proper or improper.

Finally, the order for P3766/2008 records that the merits hearing was deferred to 16 July 2009. This confirms that the decision dealt with the preliminary request only and did not determine whether the permit amendment should be granted on its merits.

What fact patterns trigger this precedent

The decision is most directly relevant to a fact pattern involving a request under the provisions identified in the judgment, where the Tribunal must consider whether it was lodged “as soon as practicable” under s 89(3). It illustrates that the elapsed time between awareness of relevant facts and lodging may be assessed alongside what the applicant knew, what had visibly occurred, and what steps were taken to progress the concern.

The closest factual match would involve a person who becomes aware of a prominent development feature, communicates with a responsible authority, then waits for a response for several months before lodging a Tribunal request. In Jenkin, the Tribunal did not treat the July letter as, by itself, enough to explain the delay until December. It also noted the absence of independent professional advice. Those facts were part of the assessment, but the judgment does not prescribe a checklist or say that each must be present in every case.

The decision may also be relevant where an applicant argues that uncertainty about public notification bears on a permit challenge. However, its value on that point is limited because the Tribunal did not determine whether notification was adequate. It recorded competing evidence and expressed doubts, but disposed of the preliminary request on timing.

The judgment does not establish how the same statutory test would apply where the relevant facts were concealed, where the applicant could not reasonably identify the permit or its implications, where there were substantial obstacles to lodging, or where the period of delay was materially shorter. Those scenarios were not decided. The appropriate use of the case is therefore as an example of a fact-specific application of the timing requirement, not as a universal time limit.

How later courts have treated it

The judgment supplied for analysis contains no discussion of later decisions and gives no citations to authorities that applied, followed, distinguished, or rejected its reasoning. Its own reasons are dated 28 May 2009, with a last-updated date of 24 June 2009. On this source alone, it is not possible to report how later courts or tribunals treated the decision.

The reasons also do not identify any earlier precedent that the Member applied or distinguished. The ruling rests on the statutory wording as described in the judgment and the circumstances of Mr Jenkin's delay. A reliable account of its subsequent treatment would require access to later judgments or legal research sources not included here.

Still-open questions

The most immediate unresolved issue in the proceeding was whether the original permit application had been properly notified to the public. The Tribunal noted the absence of a statutory declaration relating to a public sign, competing accounts about whether the sign was present, and Mr Jenkin's claim that he received no direct notice. It expressed doubts but made no definitive finding. The judgment therefore does not resolve whether a notification defect existed or what consequence such a defect would have had on the merits.

The separate merits review also remained unresolved. The Tribunal deferred that matter to 16 July 2009, but this decision does not disclose what happened at that later hearing or how the permit amendment application was ultimately determined.

More broadly, the reasons do not explain how “as soon as practicable” should be assessed across different circumstances, or whether the same practical considerations would carry different weight in another case. Nor do they discuss the possible interaction between a notification issue and the timing requirement beyond identifying notification as potentially relevant to a ground under s 87(1). These are limits of the decision as presented, rather than findings that the questions have no answer.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.