1. Section 79 of the Act provides:
   1. Applications for review of failures to grant permits

An applicant for a permit may apply to the Tribunal for review of the failure of the responsible authority to grant the permit within the prescribed time.

1. Regulation 32 of the Planning and Environment Regulations 2015 states that for the purposes of section 79 of the Act, the prescribed time is 60 days. Regulation 32(2)(b) provides that:

(2) The prescribed time for the purposes of section 79 of the Act begins to run from -

(b) if within the prescribed time under section 54 of the Act the responsible authority has required the applicant to provide it or a referral authority with more information in accordance with section 54 of the Act and the applicant has not applied for a review of the requirement and has given the information as required, the day on which the information is given; ...

1. The issue to be determined is whether the information requested has been given "as required" and thus whether the prescribed time has commenced to run. If the information has not been given as required, the prescribed time will not have commenced. If it has not commenced, then no right of review will have arisen under section 79. This principle was relied upon in Stanley Pastoral Pty Ltd v Indigo SC[1] where the Tribunal dismissed a section 79 application after it was discovered (before the merits hearing) that a Cultural Heritage Management Plan was required but had not been prepared or approved. The Tribunal in Stanley Pastoral held that it could not use its discretion under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure to wait until the prescribed period for lodging a section 79 application had expired because the time for calculating the prescribed time had never commenced to run. On this issue, Deputy President Dwyer said:

[65] ... VCAT lacks jurisdiction to entertain the application for review under s 79 of the P&E Act. Time has not even started to run. The application is not merely premature. The circumstances that give rise the relevant right of review have not yet arisen. Indeed, Clause 62 refers to the clause being a mechanism to deal with a "failure to comply with a planning enactment...". Quite literally, when time hasn't even started to run under s 79, there is no obvious 'failure to comply' with the P&E Act. No opportunity has yet arisen for there to be a non-compliance.

1. The same principle would apply here.
2. Arguably, in failing to provide any response to the applicant about the information it provided on 8 September 2017, the council has been derelict in the general duty cast upon it by section 197 of the Planning and Environment Act 1987. This provides:
   1. Expedition

Where the Minister or any responsible authority, planning authority, referral authority, public authority, municipal council, panel, committee or officer is required to do any act, including making any decision or forming any opinion, that act must be done as promptly as is reasonably practicable, in any event within the time limits prescribed or any extension of those time limits allowed by or under this Act, so that loss or damage to any person from unreasonable or unnecessary delay is avoided.

1. However, there is no time limit prescribed for a responsible authority to communicate with a permit applicant about whether information that has been provided in response to a request under section 54 of the Act is complete or, as stated in regulation 32, the information is "as required".
2. I note that an application for a permit may apply to the Tribunal for review of a requirement by the responsible authority for more information under section 54[2] and may apply for review of a decision of a responsible authority under section 54A to refuse to extend the time within which information must be given by the applicant under section 54.[3] However, there is no right of review of the failure by the responsible authority to make a decision to extend time within which information must be given by the applicant under section 54. The only way in which it would seem that a permit applicant could be certain that the information it has given is "as required" in the event of a failure by the responsible authority to communicate with the permit applicant on this point would be to seek a declaration pursuant to section 149A of the Planning and Environment Act 1987.
3. This would seem to be a cumbersome mechanism. But short of this, I do not consider that the council's failure to assess the information provided by the applicant now prevents it from challenging the adequacy of the information and submitting that the information has not been given as required.
4. There is no doubt that by lodging this section 79 application for review, the applicant has galvanised the council into a proper assessment of the information given. However, the council's failure to act with the expedition required by section 197 of the Act does not create rights in the applicant which it does not otherwise have.
5. Accordingly, I must now determine whether the information given by the applicant was "as required".

1. The council says that a number of items have not been satisfied. In the table below, I set out the relevant request for further information for each item; what was provided; the council's assessment of it; and the applicant's response. I then consider whether the required information has been given. In doing so, it is important to bear in mind that the test is not whether the council likes the information given, but whether the request has been adequately responded to.

Given that the application proposes a residential frontage in excess of 2 metres at ground level, a permit is required for use of land. The applicable statutory fee of $1265.60 must be lodged before your application can be further considered.

The applicable statutory fee of $1265.60 has been lodged on this day.

The requisite fee (use of the land as Dwellings) has not been paid.

• A requested additional fee was not paid. Council say they requested the wrong fee. We have now been told the right fee.
• The right fee can be paid promptly.

1. The applicant's failure to pay the relevant prescribed fee is fatal. Section 47 of the Act sets out requirements for applications for permits. Section 47(1)(b) provides that the application for the permit must be accompanied by the prescribed fee. Failure to pay the prescribed fee when the application is lodged is not fatal in itself, but the application remains incomplete.
2. In ML Design Pty Ltd v Boroondara CC[4] the Tribunal considered what constitutes a permit application or amendment and when it is received. It said:

[13] ... the actual application for permit is the application form that contains the information set out in regulation 15 and that is signed by the owner or contains a declaration as required by section 48(1) (if relevant). The application must be accompanied by the prescribed fee and other information set out in section 47 but the fee and the information do not constitute the application itself. Therefore it is the date upon which a completed application form is lodged containing all the information required by regulation 15 and which meets the requirements of section 48(1) (if relevant) that is the date upon which the application for permit is received.

[14] If the permit application is not accompanied by all the accompanying information required by the rest of section 47, this does not mean that an application has not been received, although it may mean that the application is not complete and cannot be determined until the information is provided. In fact, it is common practice for responsible authorities to include a requirement for any missing accompanying information as part of a requirement for more information under section 54.

1. The Tribunal then went on to consider the implications of incomplete permit applications saying:

[20] I have drawn a distinction between the actual application for permit or request to amend a permit application and the information and fee that must accompany the application or request for amendment. This distinction is based on the wording of the Act and regulations, and is necessary for the purpose of calculating when time begins to run for various purposes under the Act. However, that does not mean that payment of the fee and provision of the information required by section 47 or section 50(3)(b) are not mandatory before an application or amended application can be considered and their absence may not affect the validity of the application or amended application.

[21] What are the implications of incomplete information accompanying an application or a request to amend an application? In Najarian v Minister for Immigration and Multicultural Affairs[5] the Federal Court of Australia held that an incomplete form can become a valid application when the omitted information is supplied.[6] In reaching this conclusion in Najarian, Merkel J agreed with the views and conclusion expressed by Hill J in Nader v Minister for Immigration and Multicultural Affairs[7] where His Honour said:

[56] In my view, there was a valid application, not when the Application Form in its incomplete state was submitted, but once the information foreshadowed in the incomplete form was provided to the Minister. While it is clear, in accordance with the existing case law, that the information supplied could not operate retrospectively to validate the invalid application, it operated to complete the inchoate application and produce then, for the first time, a valid application. Thus Mr Nader had made a valid application for a protection visa to be granted to him and had done so before the application was considered by the Minister.

1. The Tribunal has a broad discretion under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard failures to comply with the planning enactment if it considers it in the interests of justice to do so. However, this discretion does not assist in the present case. Payment of the prescribed fee is a mandatory requirement under the Planning and Environment Act 1987. The correct fee was not paid at the time the application was made. A request for payment of the fee was made as part of the information required under section 54. The fee was not paid despite the response given by the applicant on 8 September 2017. Accordingly, I find that this item has not been responded to as required.

Confirmation whether there is vehicle or loading access to the adjoining land via the easement along the northern side of the site; and whether the proposal has the potential to affect use rights of the easement for any benefiting property.

There is currently no access permitted across the site to the existing loading door to Dan Murphy's. We understand this door has been "mothballed" and the loading area for Dan Murphy's is via the western laneway. The current title for the adjacent property 787-789 Heidelberg Road, Alphington has been provided.

No information regarding the carriageway easement was provided, save for saying that it exists and access is blocked.

• The response on the "easement question" may have been inelegant. But it answered that there is not currently any active loading or access over the easement, which is true. The plans also show that the easement is maintained as driveway at grade and it will allow access if it were ever legally enforced.
• This can be further clarified.

1. I consider this response is inadequate for the reasons put forward by the council. The information required by this item has not been given as required.

Written confirmation from the relevant Electricity Authority that the development's setbacks from the power pole and overhead powerlines to the west side of the site are acceptable to the Authority. And if not, what their requirements are.

Appropriate setbacks from the power pole and overhead powerlines to the west side of the site will be determined through design development, in consultation with the relevant Electrical Authority. If deemed necessary, the design will allow for these assets to be put underground.

No written information form the relevant power authority has been provided.

• It is unusual to require definitive answers from a power company about its Worksafe or similar requirements.
• The answer clearly advised that the design will either be seen as compliant or the power will be undergrounded. A clear answer that the concern will be properly managed.
• A specific requires has been made to Jemena, but no answer is yet forthcoming.

1. This item includes a specific request for written confirmation from the relevant electricity authority that setbacks from the power pole and overhead powerlines are acceptable and, if not, what the requirements are. No such written confirmation has been provided. The information given is not an adequate response. I therefore find that the information given by the applicant on this item is not as required.

Floor plans, to be fully dimensioned and drawn at a scale of 1:100 showing the following:

• Title boundary dimensions and easement details, in accordance with the Certificate of Title. The easement must be depicted on each floor level to show the relationship between the easement and the extent of building footprint which encroaches the easement's airspace.
• Natural ground levels at regular intervals along the site's boundaries to Australian Height Datum.
• Clear delineation of the height and location of walls on the eastern boundary associated with buildings at 787-789 Heidelberg Road (Dan Murphy). Where the wall heights change, the transition points must be shown.
• The provision of a dashed line showing the outline of the level immediately above any floor level, to ensure any overhang is of appropriate depth.
• The development is to be full dimensioned at each floor level and include setbacks of the building from the site's boundaries. Where the setbacks are staggered, additional dimensions must be provided.
• Full dimensions of the private and communal open space areas.
• Full dimensions of any aspect of the development that requires an assessment response e.g. what are the dimensions of the loading bay area (clear of structures); the width of the vehicle access etc.
• Gradients along the accessway along the northern side of the site and leading down to the basement are to be nominated on the ground and basement floor plans.
• Dimensions of the storage areas, demonstrating compliance with Clause 58.05-4 Table D6 of the Darebin Planning Scheme. You may wish to provide this information in the form of a storage plan for each level accompanied by a storage schedule. The width of aisles providing access to the storage areas must be nominated.
• Location and extent of any existing crossovers to the site which are proposed to be discontinued.
• Swept path diagrams for critical car parking spaces i.e. end bays and corner bays.
• Swept path diagrams for waste and recycling vehicles, demonstrating collection vehicles can enter and exit the site in a forwards direction.
• All car parking space bays located and dimensioned in accordance with the Planning Scheme (Cl. 52.06), including relevant clearances from columns and walls. There are several spaces which are encroached by inappropriately located columns or the bay has insufficient width adjacent to a wall or a column.
• Location of all existing infrastructure within the road reserve adjacent to the site's boundaries e.g. the power pole on the Yarralea Street frontage; traffic signals, parking sign posts; any underground infrastructure etc. and relocation of any as necessary.
• Statutorily required bicycle parking, to be located on the land. Any bicycle parking (or other structures/fixtures such as planter boxes) shown outside of title boundaries must be removed.
• Staff facilities such as bathrooms; storage and kitchen areas should be indicated on the floor plan for the commercial use at ground floor.
• Additional dimensions are required to demonstrate compliance with Clause Standard D17 (accessibility) of Clause 58.05-1 of the Scheme relating to door openings, clear path bedrooms and the provision of adaptable bathrooms. Please refer to Table D4 of the Standard.
  • Bedroom and living area dimensions (refer to Clause 58.7-1 of the Scheme).

Fully dimensioned floor plans at a scale of 1:100 have been provided showing the following:

(a) Title boundary dimensions and easement details, in accordance with the Certificate of Title.

• (b) Natural ground levels at regular intervals along the site's boundaries to Australian Height Datum.

• (c) Clear delineation of the height and location of walls on the eastern boundary associated with buildings at 787-789 Heidelberg Road (Dan Murphy).

• (d) The provision of a dashed line showing the outline of the level immediately above any floor level, to ensure any overhang is of appropriate depth.

• (e) The development is fully dimensioned at each floor level including setbacks of the building from the site's boundaries.

• (f) Dimensions of the private and communal open space areas have been provided indicating P.O.S. minimums based on the Victorian Better Apartment Design Guidelines.

• (g) Full dimensions of any aspect of the development that requires an assessment response have been provided (i.e. loading bay area and accessways).

• (h) Gradients along the accessway along the northern side of the site and leading down to the basement have been nominated on the ground and basement floor plans.

• (i) Dimensions of the storage areas and aisles widths have been provided in accordance with Clause 58.05-4 Table D6 of the Darebin Planning Scheme.

• (j) The location and extent of any existing crossovers to the site which are proposed to be discontinued have been provided.

• (k) Swept path diagrams for critical car parking spaces have been provided (i.e. end bays and corner bays).

• (l) Swept path diagrams for waste and recycling vehicles have been provided, demonstrating collection vehicles can enter and exit the site in a forwards direction.

(m) The location and dimensions of all car parking space bays have been provided in accordance with the Planning Scheme (Cl.52.06), including relevant clearances from columns and walls.

(n) The location of all existing infrastructure within the road reserve adjacent to the site's boundaries have been provided.

(o) The location of statutorily required bicycle parking has been provided. Any bicycle parking (or other structures/fixtures such as planter boxes) shown outside of title boundaries has been removed.

(p) The location of staff facilities such as bathrooms; storage and kitchen areas have been indicated on the floor plan for the commercial use at ground floor.

(q) Additional dimensions have been provided to demonstrate compliance with Clause Standard D17 (accessibility) of Clause 58.05-1 of the Scheme relating to door openings, clear path bedrooms and the provision of adaptable bathrooms. The apartments in this proposal are generous in area and circulation corridors are generally greater than 900mm. We believe that practically all apartments in this scheme can be adapted to include at least 1 accessible bedroom. Apartment 203 is an example of this with the main impact being the provision for latch side clearances to both bedroom and bathroom.

(r) Dimensions for bedrooms and living areas have been provided.

Many plan details have not been shown including the carriageway easement, details of the eastern adjoining wall, details of the overhang of levels above, setbacks, balcony dimensions, storage and vehicle manoeuvrability.

• 18 dot points of plan details were requested.
• The elements said to be omitted do not create an information vacuum preventing Council forming a proper view.
• Additional plan sheets have been drafted to include the particular details.
• They can be provided.

1. I agree with the council's assessment that not all the details or information requested have been shown. This is admitted, in effect, in the applicant's response. I therefore find that the information given by the applicant in response to Item 9 is not as required.

• The overall maximum height of the development as measured above natural ground level.
  • The clearance height above the carriageway easement.

A full set of elevations have been provided showing the following:

(a) The overall maximum height of the development as measured above natural ground level has been provided.

(b) There is no proposal to build over the carriageway easement.

The clearance height above the easement is not shown on the plans, elevations or sections.

• This item indicates Council already understood the easement was clear, but built over on upper levels.
• The elevation plans were able to be interpreted to understand that Level 1 built over the easement.
• Specific dimensions have been added in the draft plan sheets.
• They can be provided.

1. I am not satisfied that the information given with respect to item 10 is as required. This is tacitly admitted in the applicant's response.

1. My overall conclusion in respect of each of Items 1, 4, 8, 9 and 10 is that the applicant has not given the information as required. Accordingly, I find that the prescribed time for the purposes of section 79 of the Act has not commenced to run.
2. Therefore I find that this application under section 79 is premature because the prescribed time for the purposes of section 79 under regulation 32(2)(b) has not commenced to run.
3. As a result, I propose to strike out the application pursuant to section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 because in my opinion it is misconceived.
4. In striking out the application for review, there remains a valid permit application before the council. The council should now respond to the applicant's request for an extension of the lapse date within which the applicant must provide the balance of the information required under section 54. This includes payment of the prescribed fee. In formulating its response to the outstanding items of further information, the applicant should pay particular attention to the details of the information requested not simply ignore them or generalise. If the applicant considers that the information requested is onerous, inapplicable or it should otherwise be excused from responding, the appropriate course of action is to make an application to review the further information request pursuant to section 78 of the Planning and Environment Act 1987.
5. I note that the Tribunal has received a number of statements of grounds from persons wishing to participate in the hearing of this proceeding and who are parties to the proceeding. They will be sent a copy of this order and advised that the scheduled hearing and compulsory conference will be vacated. It may well be that if the permit application is not supported by the council, a further application for review of either the council's refusal or failure to grant a permit may be lodged in the future. However, this will be a separate proceeding and separate hearing dates will be scheduled. Objectors will then have an opportunity to become parties to any such proceeding if they so wish.

[1] [2015] VCAT 36

[2] Section 78(b) Planning and Environment Act 1987

[3] Section 81(2) Planning and Environment Act 1987

[4] [2005] VCAT 2088

[5] [2000] FCA 933

[6] See [2000] FCA 933 at [35] - [36]

[7] [2000] FCA 908