Victorian Civil and Administrative Tribunal|2002-06-04

The application for review in this case indicated that it was an application under s 81(b) PE Act in relation to a failure of the Responsible Authority to extend time. In fact the Responsible Authority had refused to extend time and thus s 81(a) PE Act is the relevant provision under which the application was brought. This amendment was made by consent.

1. The hearing of this case occupied approximately four hours and most of that time was taken up with a consideration of the case put on behalf of the Responsible Authority. In the course of the hearing a good deal of time was devoted to a careful consideration, analysis and debate in relation to the Responsible Authority's case against the grant of an extension of time for the completion of development. In the course of discussion the various issues were considered in detail and I indicated my views in relation to a number of these issues as the hearing proceeded. At the close of the case on behalf of the Responsible Authority I heard briefly from Mr Hooper on behalf of the Applicant and then indicated that, having heard all that there was to be urged against granting the extension sought, I had come to the conclusion that the extension should be granted. I gave oral reasons at the conclusion of the hearing and referred to some of the conclusions I had reached on issues raised in the course of the hearing. Having given oral reasons in the course of the hearing, I do not propose to repeat here all that was then said. I will content myself with an outline summary.

2. A permit was granted by the Responsible Authority for six dwellings in April 1995. In fact the permit was issued on the 7 April 1995. In spite of that, for various reasons, construction was not commenced. The permit contained a condition in relation to time for commencement and completion. Condition 13 provided that the time specified under s 68 PE Act for commencement of the "use/development" is two years from the date of the permit and for completion within two years of the date of commencement. The condition also provided for extension of these times to be granted in writing before or within three months of the expiry of the permit.

3. In March 1997 the Applicant applied for an extension of time for commencement of works and this was granted by letter dated 4 April 1997. The extension was for 12 months to the 7 April 1998. On the 30 March 1998 the Responsible Authority received a letter seeking a further extension for the time for commencement and granted another 12 months extension with works to commence by the 7 April 1999. Although this extension also specified completion by the 7 April 2000 the Responsible Authority later conceded that this should have been the 7 April 2001.

4. The Applicant did not act with great promptness on this second extension and in fact commenced works only shortly before the second extension expired. Nevertheless, it was conceded, after some inquiry by the Responsible Authority, that works had commenced within the time limit of the second extension.

5. Works then proceeded, a building approval under the Building Act having been obtained. However, the project ran into difficulties when the building surveyor required further computations and information in relation to certain aspects of the building. These requirements related to roof framework matters and the manufacturers of these parts contended that further information and computations were not required. This dispute led to some delays and ultimately to a stop work notice being imposed under the building legislation.

6. At the time work stopped various substantial works had been undertaken and carried out. This included footings and walls in relation the sub-floor basement carparks and flooring at ground floor level. Works commenced include the erection of framework including roof structures for Unit 2 and wall frameworks for Unit 4. They have been in position now for many months, as no work has proceeded since the imposition of the stop work order. In fact, the flooring that has been constructed may need to be repaired or replaced, having regard to its exposure to the weather now for a couple of years. Various other works were included. The Applicant has alleged that the amount involved in the works to the time of cessation cost $200,000.00. I did not make a finding as to the cost of these works but I did recognise that they represent a substantial commencement in relation of a bona fide undertaking of works with a view to their completion. I did not regard them as a merely token commencement. I recognised that, whatever the actual costs, it would be a substantial figure.

7. On behalf of the Responsible Authority it was contended that, by the time the stop work notice was lifted, there remained only two to three months of the time for completion still available. The Applicant contends that freedom from the stop work notice was not achieved until after the date for completion namely the 7 April 2001. In either event, the time remaining was effectively insufficient to complete the works and the Applicant, however diligently he was proceeding at that stage, needed an extension of time for completion.

8. The Applicant made such an application on the 16 June 2001. In support of this application the Applicant relied on several grounds including part completion with, as he alleged, over $200,000.00 having been spent on the development including foundations, subfloor construction, plumbing and drainage and that delays had been incurred in relation to the disagreement between professional engineers as to satisfactory documentation in relation to which the Applicant claimed to have been "the meat in the sandwich". He also mentioned other grounds, but I do not regard the other matters as relevant.

9. The Responsible Authority refused to grant an extension. It must be noted that this was an application for an extension of time for completion, not for commencement. In this respect it is to be contrasted to the two previous extensions that had been granted. They were extensions of time for commencement.

10. The Responsible Authority, in its consideration of the matter, referred to the well known case (in this context) of Best & Zygier v City of Malvern 1 VPA 285. That case was referred to in the officer's report, but Ms Tuckwell's submissions also cited more recent decisions including Kantor v Murrindindi Shire Council 18 AATR 285. The latter case was a decision of Ashley J in the Supreme Court of Victoria. In that case he gathered together a number of principles in relation to extensions that had been expanded and developed in earlier decisions.

11. It is of significance that all of the cases cited were commencement cases rather than completion cases. In other words they were applications for extension of the time for commencement, rather than extensions of time where commencement had been achieved but the time for completion had expired or was threatening to expire. In fact, neither of the representatives were able to cite or refer to any cases of the Tribunal or the court dealing with a completion case. I was not able to bring one to mind either.

12. The Responsible Authority relied heavily on the principles expounded in the to commencement cases. However, as I said at the hearing, without deciding that those matters are necessarily irrelevant, they are at least of much less significance in a completion case. The fact that there has been substantial commencement and significant commitment, and that significant amounts of work and money have been committed is a relevant consideration, indeed an important consideration, in relation to a completion case. That element is wholly absent, of course, in relation to a commencement case.

13. In a commencement case it is important as to whether there have been significant changes in circumstances, either in relation to the physical characteristics of the land and locality and/or in relation to relevant planning controls and policy considerations. The grant of the permit gave a right to act in accordance with it, subject to the time limit condition. If Applicant has failed to act on the permit while he or she could, then that right is lost. An extension can properly be refused where current planning controls, and good planning in the current context as represented by those controls, indicates that the proposal should not be allowed.

14. On the other hand, cases indicate that, where the merits still favour the permission that has been granted, and where circumstances have not changed in relation to that, these are considerations in favour of granting an extension. What is the point, in those circumstances, of requiring the Applicant to apply again for a new permit and to go through all the steps only to be granted a permit which is appropriate in the circumstances and when it is obvious at the time of the application for the extension that such permission is appropriate? Why, in those circumstances, waste the time and effort involved?

15. The in-between situation is where a new permit for the proposal can be granted but it is doubtful as to whether it aught now be granted, if a new permit application was to be made. In these circumstances it may appropriate to refuse to grant an extension on the basis that the Applicant will then need to apply again and go through the various administrative steps, including facing the hazards of giving notice and objections being made, with a decision eventually being made by the Responsible Authority or the Tribunal as to whether, in the current situation and on the basis of current planning controls, the permission should be granted. If a permit should be granted it may or may not be granted on the same conditions.

16. All this makes very good sense in relation to extensions of time for the commencement of works. However, as mentioned above, the circumstance of a substantial commencement has also to be taken into consideration. It appears that the principles in relation to imposing limitations on time for completion are either different from those for a commencement case, or overlap them but include some other considerations.

17. Limitations of time in relation to commencement prevent someone sitting on a permit for many years or decades until circumstances have changed so that the proposal has become inappropriate. Limitations on time for completion prevent or constrain someone who has made a substantial start from ceasing work, or proceeding very slowly so as to impose a part completed "folly" on the community for a substantial or indefinite period of time. A similar precaution against this difficulty that is sometimes employed is a permit condition requiring that a development that has been commenced must be completed. I think that the evil against which a completion limitation is directed is remedied where someone in fact proceeds with expedition to completion. It is more a matter of getting it finished, rather than preventing it from starting. As said previously, I recognise a substantial commencement and commitment by the Applicant. In these circumstances the Responsible Authority, as well as the permit holder, has already committed to the proposal, by granting the permit in the first place, and the problem can be seen more as getting it completed.

18. Ms Tuckwell emphasised the amount of time that had elapsed since the original grant of the permit. It is true that this time elapse has been considerable, but it is the time that has elapsed between commencement and the yet to be achieved completion that is more relevant in this case. I considered that I should assume that the two extensions of time for commencement granted by the Responsible Authority were appropriately given. I am thus more interested and concerned with the elapse of time since commencement.

19. That loss of time is not only much shorter, but the Applicant is able to give some reasonable account of his activities during that period, how he was held up, and how he came to be caught with little or no time left for completion by the time he was free of the stop order.

20. Ms Tuckwell said that she considered he should have got all his building consents clear and finalised before he started. I do not say that this would be unreasonable, although he may have been pinched to get a start because he was running out of even his second extension of time for commencement. Whilst getting everything right to begin with may be wise and appropriate, it does not mean that it is unwise or unreasonable to get started on what one can do if one is confident of being able, ultimately, to resolve other problems along the way. I had no evidence before me as to common building practice in regard to such circumstances. I said that I was not prepared to hold it against the Applicant, in relation to his explanation of how he got into difficulties with the completion date, that he did not have all the computations and requirements of the building surveyor satisfied from the beginning.

21. In any event, the Applicant contends that the building surveyor effectively "caught" the Applicant by changing his mind as to what was required in the course of the project, and after substantial works had commenced.

22. Whether or not the Applicant was "mucked around" by the building surveyor in the way suggested or not, I think that the Applicant has demonstrated some reasonable explanation as to why completion was not achieved within time. This does not mean that I am satisfied that it was impossible to achieve completion within that time, merely that there has been some reasonable explanation as to why it was not in fact achieved.

23. I did also consider whether the changes relied upon by the Responsible Authority since the permit was granted were relevant and important in relation to this case, assuming it to have been a commencement case and that those considerations received the full weight that would apply to them in relation to such a case. There had been changes to the zone and overlay controls, but upon careful consideration, and in light of concessions very fairly made by Ms Tuckwell in relation to them, I found that they were not of significance. Although the zone and overlay controls have changed their names, they do not significantly change the actual situation and considerations except that the new heritage control, which replaces a previously existing urban conservation control, now affects half the site whereas, at the time of the grant of the permit, the site was outside the area affected by the conservation area control. This damage was viewed by both sides of this case as a mapping difference and, in fact, a minor mapping error in relation to the new control and that the heritage control should not really affect the western half of the land as it purports to be. Whether that is so or not, I came to the conclusion, and Ms Tuckwell agreed, that it did not significantly affect the situation in any event.

24. Ms Tuckwell did seek to rely on possible changes of view that referral authorities might now take in relation to the proposal. I was not satisfied that these were significant. She speculated, in particular, that VicRoads might not take the same view as it took when it approved the current proposal. She thought it might impose further conditions. This is, indeed, speculation. I would have thought that if it was sought to make out a case on this point the current views of VicRoads should have been obtained in writing, if not by calling a witness, to confirm that the speculation is correct. I would not venture the guess involved. In the absence of some statement from VicRoads I would assume it continues to be satisfied with the proposal. I was untroubled by speculation as to the views of other referral authorities.

25. Similarly, I did not attribute much weight to the possibility that new objectors might arise if a new permit application was now to be made unless there were significant change to the circumstances to warrant a different view to the one taken when the permit was granted.

26. It was said that greater emphasis is now placed on site analysis and neighbourhood character considerations. This was contended on the basis that changed policy considerations, and in particular the changes that have taken place in guidance documents in relation to medium density housing that emphasise these things. The guidance documents have been known in planning circles as VicCode 2 which was superseded by the Good Design Guide for Medium Density Housing, and more recently by the so called VicCode provisions.

27. Whilst it may, or may not, be true that the Responsible Authority emphasises these matters more than it did, and that the present legislation imposes some requirements in an attempt to ensure that they are taken into consideration, I think that they were always relevant and appropriate and I am not satisfied that they were not considered at the time the permit was granted. Furthermore, I do not consider that the neighbourhood character is to be determined on the basis of the neighbourhood of extensive residential areas further to the north from this site. There is a little promontory of residentially zoned land extending down the eastern side of Rosanna Road between that road and parklands further to the east. This little residential strip is only one property wide. It extends down to include this site and one further to the south. However, the relevant neighbourhood for the purposes of this site is its immediate locale including its own side of Rosanna Road for several properties to the north and south and equivalent properties located on the opposite side of Rosanna Road. These include a substantial shopping centre and a primary school. There are also medium density developments next door and a little further to the north. Admittedly the one next door is of single storey scale whereas this proposal is of two storey scale, but I do not regard two storeys as being out of scale with a single storey. This proposal is only of three storeys to the extent that there is some under croft semi-basement parking under some of the proposed dwelling units. The immediate locality is eclectic or mixed rather than consistently single storey attached housing. The site is, from other points of view, an excellent one for medium density housing and suitable to the policy considerations that encourage a diversity of housing options to include such dwellings in the area. All in all the case that can be made in support of the proposition that the permit should not be granted if an application was made now is not a very strong one. In the context of this being a completion rather than a commencement extension I think these considerations are relatively much weaker than would otherwise be the case.

28. In all the circumstances, and for the reasons given in the course of the hearing, I determined that an extension should be granted. An extension of 12 months was sought. In the circumstances it appears to be convenient and appropriate that the extension should be until the 27 May 2003.

29. This extension does not preclude the possibility of there being a further extension if circumstances justify that. However, it is granted on the basis that the works permitted will proceed to completion, in the absence of some good reason, by that date. It is noted that the works to date have been carried out by the Applicant but that he has sold the land on a conditional contract of sale to a purchaser who proposes, if allowed, to complete the works.

30. The parties both prepared a case in relation to possible modifications to the plans which have been the subject of discussions between the Applicant and the Responsible Authority. I have made my decision on this case without any detailed consideration of the possible amendments. What I have extended is the permit as it now stands. If the parties consider that amendments to the permit or endorsed plans are appropriate pursuant to ss 72 and 73, 87 or 62(3); then that will be a matter for steps to be taken after this extension has come into effect.

Environment Act 1987

Juric v Banyule CC [2002] VCAT 396 (4 June 2002)

Juric v Banyule CC [2002] VCAT 396

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

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Legislation Cited (1)

Cases Cited (1)

Juric v Banyule CC [2002] VCAT 396 (4 June 2002)