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[2009] VCAT 2350
procedural. The application under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 to extend time was refused. The section 82 review application was struck out because it was lodged...
The Tribunal treated the council’s email as received on 2 September 2009 because it was sent after 4.00 pm on the previous day. It considered 23 September the deadline for seeking review, so the Jennings’ application received on 1 October was late. It also said that, to ensure a consistent deadline for objectors, the 21 days should be counted from two business days after the date the notice was posted, even if notice was sent by email. The Tribunal found no sufficient reason to extend time and struck out the review application.
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2,668 words · generated 02/10/2026
Emer and John Jennings objected to a planning permit application for extensions to an existing dwelling at 74 Thompson Street, Williamstown. Hobsons Bay City Council decided to grant the permit and issued its notice of decision on 31 August 2009. The council sent the notice by email on 1 September 2009. Its confirmation showed that the email was successfully sent at 4.32 pm [2], [7].
1 cited instrument linked from this judgment.
The Jennings said that they did not receive the email. They later telephoned the council to make enquiries, but only after the review period had expired. The council produced an email confirmation, and the Tribunal found no specific evidence supporting the claim of non-receipt [3], [8]-[9]. The Jennings’ application for review was received by the Tribunal on 1 October 2009 [2].
The proceeding was a practice day hearing to decide whether the time for commencing the review should be extended under section 126 of the Victorian Civil and Administrative Tribunal Act 1998. The underlying review was brought under section 82 of the Planning and Environment Act 1987. The Tribunal treated 23 September as the closing date, concluded the application was late, refused the extension, and struck out the review [1], [10], [14], [23].
The dispute over time limits arose because the statutory framework dealt with receipt of notices by different methods. In earlier decisions, including Vitesnik v Macedon Ranges SC [2007] VCAT 598 and Archerduck Pty Ltd v Ballarat CC [2007] VCAT 1696, the Tribunal had considered the calculation of the review period for notices sent by post [4]. This case addressed the potential disparity between postal and email notices.
The Jennings’ planning concerns were about the proposed garage: alleged discrepancies in the plans, the position of the western boundary wall relative to a habitable-room window, the wall’s height, and possible loss of light or visual impact [19]. The Tribunal noted that the council had considered those concerns and that a permit condition addressed the wall impact [20]-[22]. The hearing did not decide the merits of the planning objections. It decided only whether the review could proceed despite being lodged after the deadline.
The first question was when the email notice counted as received. The decision explains that the Electronic Transactions (Victoria) Act 2000 and the Victorian Civil and Administrative Tribunal Act 1998 provided for electronic notices. It identifies section 13(3) of the Electronic Transactions Act and sections 141(1)(c) and 141(2) of the VCAT Act as relevant to the time of receipt [6]-[7]. Under section 141(2), an electronic transmission received after 4.00 pm was treated as received on the next business day [7].
The council’s confirmation showed that the email was sent successfully at 4.32 pm on 1 September. The Tribunal therefore treated it as received on 2 September. It also accepted that the email had reached the Jennings within the statutory meaning, relying on the council’s confirmation and the absence of specific evidence to the contrary [7]-[9]. This was a finding about the evidence before the Tribunal, not a general finding that an email will always be received whenever a sender records it as successfully sent.
The Tribunal then addressed how to calculate the 21-day period. Regulation 34 of the Planning and Environment Regulations 2005 linked the period to when the responsible authority gave notice [4]. The Tribunal said its practice was to use section 141 of the VCAT Act to support consistent calculation of time limits. For postal notices, that approach treated the notice as received two business days after posting [5], [10].
Email could produce a different deemed-receipt date. The Tribunal observed that an email would usually be treated as received on the day it was sent, unless it was sent after 4.00 pm, while a posted notice was treated as received two business days after posting [10]. The Tribunal considered it undesirable for objectors to have different closing dates merely because the council chose different methods of giving notice. It relied on the importance of certainty for responsible authorities and permit applicants, as well as fairness between objectors [10]-[12].
Accordingly, the Tribunal stated that the 21-day period should be calculated from two business days after the date on which the notice of decision was posted, whether the notice was posted or emailed [12]. In this case, the council said the notice was posted on 31 August. The two-business-day calculation therefore pointed to 2 September, the same date as the Tribunal’s deemed receipt date for the email. The Tribunal calculated the closing date as 23 September [10], [12]. The application received on 1 October was outside that period.
The separate question was whether the time should nevertheless be extended. The Tribunal referred to Katsanis v Wyndham CC [2005] VCAT 824 and described the approach to an objector’s late application as stringent. It said a very good reason was needed to tilt the balance significantly towards the objector, considering the disadvantage to a permit applicant if the certainty of a permit were reopened [15]. In applying that approach, the Tribunal considered the Jennings’ explanation, the electronic tracking system, the permit applicant’s interest in certainty, and the planning concerns themselves [16]-[22].
The Tribunal did not accept the assertion of non-receipt as a compelling reason in the circumstances. The Jennings had lodged their objection through the council’s Green Light system, which could also be used to track the progress of the application. The Tribunal considered that they had a ready means of checking whether a decision had been made, while also stating that this did not remove the council’s obligation to give notice in accordance with the Act [17]. It concluded that the disadvantage to the Jennings did not outweigh the prejudice to the permit applicant from loss of certainty [18].
Finally, the Tribunal considered that the council had already addressed the substance of the objections. The council’s officer report recorded a site inspection and stated that the relevant site context plan was correct [20]. A proposed permit condition addressed the concern about the western boundary wall’s impact [21]. Considering those matters and the nature of the objections, the Tribunal found no reason to extend time [22].
The decision describes the pre-existing framework rather than setting out a comprehensive history of the law. Section 82 of the Planning and Environment Act 1987 provided the relevant route for an objector to seek review. Regulation 34 of the Planning and Environment Regulations 2005 required the 21-day period to be calculated from when the responsible authority gave notice under section 64 [1], [4]. The statutory provisions governing electronic communication and VCAT service were relevant to when an email was treated as received [6]-[7].
Before Jennings, the Tribunal had considered the timing issue in the context of postal notice. It referred to Vitesnik and Archerduck as cases dealing with postal service and stated that the relevant date was when the notice was received at the address, not when it was physically collected or opened [4]. The Tribunal also explained its own practice of treating a posted notice as received two business days after posting [5], [10].
Jennings extended that practical approach to notices sent electronically. Its stated aim was a uniform closing date, rather than a separate calculation based solely on the notice’s delivery method. The Tribunal reasoned that different deadlines could create uncertainty and inequity for objectors, and uncertainty for permit applicants and responsible authorities [10]-[12].
The decision did not amend the legislation or regulations. Instead, it identified a legislative drafting issue: it said that an amendment to the Planning and Environment Act and/or the Regulations should require the closing date for review applications to be specified [13]. That is a recommendation in the reasons, not a legislative change effected by the case.
The decision also distinguishes calculating the original deadline from deciding whether to extend it. The actual closing date was calculated as 23 September. The separate section 126 question considered the individual circumstances and the competing interests relevant to an extension [12], [14]-[18]. The decision says those are different exercises. Thus, an application being late did not itself answer whether an extension might be granted, but the Tribunal found no compelling grounds for one on these facts [16]-[22].
At [7], the Tribunal explains the email timing rule: an electronic transmission received after 4.00 pm is taken to have been received on the next business day. In practical terms for this case, the 4.32 pm email sent on 1 September counted as received on 2 September.
At [9], the Tribunal says it relied on the council’s email confirmation because there was no specific evidence to the contrary. This explains the evidentiary basis for its finding that the email had been received. The reasoning does not say that a recipient’s denial is irrelevant in every case; it turns on the evidence presented in this hearing.
At [10], the Tribunal identifies the possibility that postal and email notices might generate different closing dates. The issue was not simply which method was faster. It was whether a consistent review deadline could be identified for all objectors affected by one decision.
At [12], the Tribunal gives its central timing proposition: calculate the 21 days from two business days after the date on which the notice was posted, regardless of whether the notice was posted or emailed. Put plainly, the Tribunal sought one common starting point to avoid different deadlines based on delivery method. In this case, the stated approach produced 2 September as the starting date and 23 September as the deadline.
At [12], the Tribunal also separates the deadline calculation from the extension application. The actual closing date is calculated first. If an application is late, the individual circumstances are then considered under section 126. The possibility of an extension does not change the date on which the original period expired.
At [15], the Tribunal describes the demanding approach it applied to an out-of-time objector application. A late application required a very good reason that significantly favoured an extension, given the disadvantage to a permit applicant from reopening the certainty of the permit.
At [17], the Tribunal notes that the Green Light system made application progress accessible to the Jennings. It expressly qualified this by saying that the system did not remove the council’s obligation to give notice in accordance with the Act. The Tribunal treated the system as relevant to the extension request, not as a substitute for statutory notice.
At [22]-[23], the Tribunal concludes that the circumstances did not justify extra time and orders that the application be struck out. The merits of the proposed garage were not determined by that order.
The decision is most directly relevant to an objector’s application for review under section 82 of the Planning and Environment Act 1987 where the notice of decision has been sent electronically and the review application is lodged after the 21-day period calculated by the Tribunal. It is particularly relevant where a question arises about when an email counts as received, whether an email sent after 4.00 pm is treated as received the next business day, or whether different objectors could receive different closing dates because notices were sent by different methods [6]-[12].
Its uniformity reasoning is relevant where a responsible authority sends some notices by post and others by email, or where an argument arises that the applicable deadline should vary with the method of transmission. The Tribunal’s stated approach was to calculate the period from two business days after the date the notice was posted, irrespective of whether notice was posted or emailed [12]. The decision’s application in another case would depend on the relevant statutory provisions and facts; the supplied judgment does not address every possible method of notice or every form of electronic delivery.
The extension-of-time reasoning is relevant where an objector accepts, or the Tribunal finds, that the review application was late and the objector seeks an extension under section 126. Jennings identifies considerations used in this particular decision: the explanation for lateness, evidence of receipt, the applicant’s access to information about the application, the permit applicant’s interest in certainty, and whether the underlying objections had already been considered or addressed [15]-[22].
The decision does not establish that access to an online tracking system will always defeat an extension request. The Tribunal considered the Green Light system as one part of its factual assessment, while expressly acknowledging that use of such a system did not displace the council’s obligation to give notice [17]. Nor does the decision decide the merits of objections about garage location, boundary walls, light, or visual impact. Those matters were considered only insofar as they informed the extension application.
The supplied judgment does not identify any later court or tribunal decision that applied, distinguished, followed, or reconsidered Jennings. It would therefore be unsupported, on the material provided, to make claims about its subsequent treatment or current precedential status.
The judgment does identify the earlier decisions it drew upon. Vitesnik v Macedon Ranges SC [2007] VCAT 598 and Archerduck Pty Ltd v Ballarat CC [2007] VCAT 1696 are cited for the Tribunal’s prior consideration of calculation of the review period for postal notices [4]. The Deputy President reproduced comments from Archerduck about certainty for responsible authorities and permit applicants and applied the concern that different objectors should not have different expiry dates [11]-[12].
The Tribunal also referred to Katsanis v Wyndham CC [2005] VCAT 824 when explaining its approach to extensions sought by objectors [15]. The discussion in Jennings is an application of the stringent approach described there to the facts before Deputy President Gibson. The judgment does not provide the full reasons in those earlier cases, so their broader scope cannot be reliably set out from this source alone.
The Red Dot summary identifies the decision as significant because it highlights the potential difference between calculating time limits for posted and emailed notices. It also emphasises the need for a specified closing date in the legislation or Regulations. That summary expressly says it does not form part of the reasons. The operative analysis is therefore found in the judgment’s reasons, particularly [7]-[13] and [14]-[23].
The decision itself identifies a legislative question: whether the Planning and Environment Act 1987 and/or the Planning and Environment Regulations should be amended to require the closing date for review applications to be specified [13]. The judgment recommends such an amendment but does not supply draft wording or decide which instrument would be the appropriate vehicle.
A further issue is how the uniform calculation should operate where the factual record does not identify a posting date, where the notice is sent only electronically, or where different notice methods are used without a corresponding postal event. The decision’s formulation refers to two business days after the date on which the notice was posted, while the case involved both a stated posting date and an email sent the following day [10], [12]. The supplied reasons do not resolve every variant.
The decision also does not examine in detail what evidence would displace the presumption of regularity in an electronic-notice dispute. Here, the council produced a successful-sending confirmation and the Jennings produced no evidence substantiating non-receipt [8]-[9]. The judgment does not specify what technical records or other evidence might be sufficient in a different case.
Finally, the reasons do not set out a comprehensive list of considerations governing section 126 extensions. They apply the approach described in Katsanis and assess the particular circumstances, including the explanation for lateness, access to Green Light, prejudice to the permit applicant, and the treatment of the planning concerns [15]-[22]. How those factors might weigh differently in another factual setting remains open on the material in this judgment.
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Mr Russell Hocking, town planner, of Cityside Planning Pty Ltd
[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.
[17] ... However, in the case of an application for review lodged out of time by an objector there must be a very good reason to extend the time limit that will tilt the scales significantly in favour of the person seeking the extension of time in order to overcome the disadvantage caused to a permit applicant by opening the certainty of a permit to challenge.
[18 Third party objectors in Victoria are provided with generous opportunities to participate in the permit decision making process. In most instances a range of informal consultative processes are undertaken as well as third parties having the legal right to lodge an objection which must be taken into consideration by the responsible authority before making a decision. In addition, objectors have an opportunity to lodge an application for review if a decision is made to grant a permit, but it is an opportunity with a time limit. As the Tribunal has often said, the time limit is there for a purpose and needs to be strictly adhered to. ...
After a site inspection on the 11.08.2009 it appears the site context plan is correct and shows the property at 33 Osborne Street in the correct location and set back.
[1] The same principal would also apply to calculating the closing date for other applications for review.
[2] Regulation 34 Planning and Environment Regulations 2005
[5] Section 13(3) Electronic Transactions (Victoria) Act 2000
[6] Section 141(1)(c) Victorian Civil & Administrative Tribunal Act 1998
[7] Section 141(2) Victorian Civil & Administrative Tribunal Act 1998
[8] Section 141(1)(b) Victorian Civil & Administrative Tribunal Act 1998
[9] Section 141(1)(c) Victorian Civil & Administrative Tribunal Act 1998
[12] The same principal would also apply to calculating the closing date for other applications for review.
[13] [2007] VCAT 1696 at [22] - [26]
Jennings
Hobsons Bay CC
Comments in Archerduck Pty Ltd v Ballarat CC [2007] VCAT 1696 at [26] are reemphasised that there should be no possibility that the expiry date for lodging applications for review could be different for different objectors. It would be inequitable for there to be one closing date for objectors who are sent a notice of decision by post and another for objectors who are sent notice by email. This is just as likely to give rise to uncertainty and inequity as to have different closing dates depending upon where an objector lives. For this reason, the 21 day period for applications for review under section 82 of the Planning and Environment Act 1987 should be calculated from 2 business days after the date on which the notice of decision was posted[1] irrespective of whether the notice was posted or sent by email. If an application for review is lodged outside this time, the individual circumstances will be relevant in deciding whether any extension of time for commencing the proceeding should be made under section 126 of the Victorian Civil & Administrative Tribunal Act 1998. However, this is a different exercise to the calculation of the actual closing date.
The application under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 to extend time was refused. The section 82 review application was struck out because it was lodged outside time.