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[2005] VCAT 824
respondent. The application for an extension of time was refused and the application for review was dismissed as out of time; the joinder application was not dealt with.
First State Constructions missed the deadline to challenge a planning permit by one day. The Tribunal accepted that the delay was short but found that the reasons given were matters within the company’s control. It also considered the permit applicant’s interest in certainty and the commercial consequences of reopening the permit decision. The Tribunal therefore refused extra time and dismissed the review application as late. It did not decide whether the permit was correct on its planning merits, nor whether Katsanis could join the proceeding.
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In Katsanis v Wyndham CC [2005] VCAT 824, the Victorian Civil and Administrative Tribunal considered whether to extend the time for an objector to apply for review of a planning permit decision. Deputy President Helen Gibson heard the matter on 29 April 2005 and made orders on 4 May 2005.
2 cited instruments linked from this judgment.
The permit concerned land at 381 Sayers Road, Hoppers Crossing. The responsible authority had granted a permit for “the use and development of the land for the purpose of a general medical centre, dental clinic, and ancillary pharmacy/dispensary with associated car parking in accordance with the endorsed plans” ([1]). First State Constructions was the only objector. Its proposed shopping centre was being developed on land across the road and was to include a medical clinic and pharmacy of its own ([4]). Paul Katsanis, who sought to join the review, was a prospective tenant of that proposed pharmacy.
The review application was lodged one day outside the 21-day period for an objector to seek review ([1]). First State Constructions sought an extension under s 126 of the Victorian Civil and Administrative Tribunal Act 1998. The responsible authority did not oppose the application, but the permit applicant, Baade Harbour Australia Pty Ltd, did ([3]).
The delay was explained by events within First State Constructions. The Council sent the Notice of Decision dated 16 March 2005 to its planning consultants, Tract Consultants, which received it on 17 March. The company director, Bruce Tilley, was on holiday and not contactable by phone. Tract contacted project manager Graham Bell, who did not fully appreciate the implications of the review process and did not have authority to instruct an application. After Tilley returned and learned of the notice, he instructed the consultants to lodge the review, but the deadline had passed ([5]).
First State Constructions relied on the short delay, the alleged detriment to it if review did not proceed, planning-merits arguments and a question about whether the proposed pharmacy could be ancillary to the medical centre ([6]). The permit applicant emphasised the delay to the permit and loss of certainty after expiry of the objector review period. It also identified a perceived commercial advantage associated with which competing medical facility could open first in a developing area ([8]).
The Tribunal refused the extension and dismissed the review as out of time. Because of that decision, it did not need to determine Katsanis’s application to be joined ([22]).
The Tribunal began with the statutory framework. Section 126(1) empowers it to extend a time limit for commencing a proceeding. Section 126(4), reproduced at paragraph 9, restricts that power: the Tribunal “may not extend or abridge time or waive compliance” if doing so would cause prejudice or detriment to a party or potential party that could not be remedied by an appropriate order for costs or damages.
The Tribunal described a group of considerations that had been used for many years when deciding extension applications ([11]). They include the explanation for the delay, whether the applicant took other steps to indicate that the decision remained contested, prejudice to the permit applicant or responsible authority, effects on other people or established practices, the apparent prospects of the proposed appeal, fairness between people in similar positions, whether another timely appeal would proceed, and any other reason that may make an extension fair and equitable.
Those factors were not treated as a formula. At paragraph 12, the Tribunal said that their relevance depends on the circumstances and that a satisfactory response to each does not guarantee an extension. It invoked Dingley Village Neighbourhood Centre Inc v Kingston City Council for the proposition that time limits facilitate the timely conduct of tribunal business, extensions are not automatic, and each case must be considered on its own merits. The Tribunal’s stated task was to exercise the discretion so justice could be done, while giving proper weight to the circumstances.
A particular feature of the reasoning was the distinction between an out-of-time review by an objector and one by a permit applicant. At paragraph 16, the Tribunal observed that a permit applicant whose review application is late may still be able to lodge a fresh permit application if an extension is refused. Requiring a fresh application could involve delay, uncertainty and expense. The Tribunal considered that those circumstances may affect the balance of convenience, although it expressly said they do not make an extension automatic.
By contrast, paragraph 17 states the approach taken to an objector’s late review: there must be “a very good reason” that tilts the scales significantly towards an extension, sufficient to overcome the disadvantage to a permit applicant from reopening the certainty of a permit. The Tribunal placed this reasoning in the context of the strict approach in Mantello Property Group Pty Ltd v Mornington Peninsula Shire Council and Becton Corporation Pty Ltd v Port Phillip City Council, both of which involved objectors seeking extensions after filing one day late ([13]–[15]).
Applying that approach, the Tribunal did not regard the stated explanation as a good reason. It found that the director’s holiday, the project manager’s lack of appreciation of the appeal process, and the absence of authority to instruct a review were not matters outside the applicant’s control ([19]). The shortness of the delay did not itself resolve the discretion in the company’s favour.
The Tribunal also considered the competing detriment. The permit applicant argued that delay and the loss of certainty could affect its commercial position in a developing area ([8]). The Tribunal accepted that the consequences of delay in the circumstances would be the type of detriment s 126(4) was intended to avoid ([21]). It separately found that First State Constructions had not shown major or material detriment from the permit that, by itself, demanded a merits review. It recognised that a commercial competitor can raise legitimate planning objections, but noted that the Planning and Environment Act seeks to limit opportunities for commercial competitors to object in some circumstances ([21] and footnote 6).
Finally, the Tribunal did not treat the pharmacy-use issue as decisive. It said a question about whether an ancillary use had become a separate use could be addressed by seeking a declaration ([20]). This did not decide whether the proposed pharmacy was in fact ancillary; it explained why the issue did not require the late review to proceed.
The judgment does not set out a comprehensive account of the law before 2005. It describes the extension factors as considerations used “for many years” and attributes their basis to Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment, as enumerated in Reynolds v Macedon Ranges Shire Council ([11] and footnote 1). It also records the earlier Tribunal decision in Dingley Village Neighbourhood Centre Inc v Kingston City Council as emphasising the purpose of time limits and the case-specific nature of the discretion ([12]).
The judgment’s immediate context was the more stringent treatment of out-of-time objector applications in Mantello and Becton. The Tribunal applied that approach, noting that those cases also concerned objectors whose applications were one day late and whose requests for extensions were refused ([10], [13]–[15]). The decision therefore reinforces, for the circumstances before it, the importance of timely filing and of a compelling explanation where an objector seeks to reopen a permit decision after the deadline.
The decision also articulates a distinction between late applications by objectors and late applications by permit applicants ([16]–[17]). That distinction is not a separate statutory test: the Tribunal continued to treat the established considerations as relevant in both situations. Rather, it explains why the consequences of refusing an extension may differ. A permit applicant may be able to submit a fresh permit application; an objector’s late challenge may affect the certainty of a permit granted after the review period.
The available judgment text does not establish the state of the law after this decision or identify how later courts or tribunals treated it. Any broader claim about subsequent authority would require sources beyond the material supplied here. This case can be described as applying Mantello and Becton, but not, on this source alone, as having been followed or limited by later decisions.
At paragraph 12, the Tribunal cautioned: “it is inappropriate to place too much weight on any particular criterion or to assume that a satisfactory response to them all will guarantee an extension of time.” In plain English, a party cannot treat the factors as a tick-box exercise. The Tribunal weighs the relevant circumstances together, and a strong showing on several factors does not automatically settle the application.
At paragraph 17, the Tribunal said that an out-of-time objector application requires “a very good reason” that will “tilt the scales significantly” in favour of an extension. This describes the demanding approach adopted in this case. The Tribunal’s concern was that an extension could deprive the permit applicant of the certainty that follows when the objection review period expires.
At paragraph 19, the Tribunal explained its assessment of the particular delay. It did not consider the director’s holiday, the project manager’s lack of understanding or the absence of authority to instruct a review to be matters outside First State Constructions’ control. In plain English, the company’s internal arrangements did not excuse the missed deadline on the facts found.
At paragraph 21, the Tribunal stated that the consequences of delay for the permit applicant amounted to the type of detriment s 126(4) was intended to avoid. That finding connected the statutory restriction with the case-specific concerns about delay and certainty. The Tribunal did not state that every extension of an objector’s deadline necessarily creates irremediable detriment. Its conclusion was expressed in relation to “the present circumstances”.
The decision is most directly relevant to an application for more time to commence a third-party objector review of a planning permit where the review deadline has expired. Its facts included a one-day delay, an explanation based on internal communications and authority, a permit applicant opposing an extension, and concern about losing certainty after the review period.
The reasoning may be particularly pertinent where the stated reason for delay involves a party’s own organisational arrangements. The Tribunal’s findings focused on the director being away, the project manager not understanding the review process and lacking authority, and the company not arranging for instructions to be given within time ([5], [19]). The judgment does not establish that these explanations will always fail. It does show that this Tribunal did not regard them as a good reason on these facts.
The case also addresses situations where the proposed objector has commercial interests that intersect with the permit. First State Constructions was developing a competing shopping centre, and its prospective pharmacy tenant sought joinder ([4], [8]). The Tribunal accepted that a commercial competitor may raise legitimate planning objections, while considering the commercial context relevant to the asserted detriment and the consequences of delay ([21]).
The decision should not be read as determining that planning-merits arguments or a legal issue about ancillary use are irrelevant in every extension application. It considered those matters but concluded they did not displace the relevant time-limit and detriment considerations in this case ([6], [20]–[21]).
The supplied judgment contains no later decisions citing or considering Katsanis. It is therefore not possible, from the source provided, to say whether later courts or tribunals followed, distinguished, confined or rejected its reasoning.
What the judgment itself records is its treatment of earlier authority. It applied the approaches in Mantello and Becton, which concerned late objector review applications and the need to take time limits seriously ([10], [13]–[15]). It also referred to Dingley Village Neighbourhood Centre Inc v Kingston City Council when discussing the general purpose of extensions and case-specific discretion ([12]). Those are relationships from the perspective of the 2005 Tribunal, not evidence of how later decision-makers treated Katsanis.
For professional research purposes, the holding and later citation history should be kept distinct. The supplied text supports an account of the Tribunal’s reasoning in 2005. It does not support a claim about the judgment’s current precedential status or its subsequent judicial reception.
The judgment leaves open how the statutory restriction in s 126(4) applies where the relevant prejudice is said to arise from having to defend a review that would otherwise not exist. Paragraph 13 quotes Mantello as identifying controversy about whether that kind of prejudice is included in s 126(4), but records that the earlier decision did not need to resolve the question. In Katsanis, the Tribunal found that the consequences of delay in the circumstances constituted the type of detriment the provision was intended to avoid ([21]). It did not formulate a universal test for distinguishing ordinary inconvenience from detriment that cannot be remedied by costs or damages.
The judgment also does not quantify the commercial detriment or explain what evidence would be required to establish whether it could be remedied by costs or damages. Its reasoning is tied to the circumstances presented, including the asserted timing advantage in a developing area and the permit applicant’s concern about certainty ([8], [21]).
Nor does the decision decide the merits of the permit, whether the pharmacy use was legally ancillary, or whether Katsanis could otherwise have participated. The review was dismissed because the extension was refused; the joinder question was consequently unnecessary ([20], [22]). Those underlying matters remained unresolved in this proceeding.
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Sections 126(1) and 126(4) Victorian Civil and Administrative Tribunal Act 1998 - Considerations relevant to extending time for lodging an application for review - Destruction between applications for review lodged by objectors and permit applicants - Need for objectors to adhere strictly to time limits - Mantello Property Group Pty Ltd v Mornington Peninsula Shire Council and Becton Corporation Pty Ltd v Port Phillip City Council applied
Paul Katsanis and First State Constructions Pty Ltd
1 The application for extension of the time limit fixed for the commencement of the proceeding is refused and consequently the application for review is dismissed as being out of time.
Ms Sarah Porritt of Counsel, instructed by Ebsworth & Ebsworth
Mr Adrian Finanzio of Counsel, instructed by Phillips Fox
1 Application P874/2005 is made pursuant to section 82 of the Planning and Environment Act 1987 in respect of the decision by the responsible authority to grant a permit for "the use and development of the land for the purpose of a general medical centre, dental clinic, and ancillary pharmacy/dispensary with associated car parking in accordance with the endorsed plans". The application for review was lodged with the Tribunal one day outside the 21 day time limit within which objectors may apply for a review. Accordingly the purpose of this directions hearing was to consider an application by the applicant for an extension of time under section 126 of the Victorian Civil and Administrative Tribunal Act 1998.
2 An application was also made by Paul Katsanis, who was not an original objector, to be joined as an applicant for review.
3 The application for extension was not opposed by the responsible authority, but was opposed by the permit applicant.
4 The subject land is in a Low Density Residential Zone directly opposite a Business 1 Zone to the north, which is currently being developed by the applicant, First State Constructions, for a shopping centre that will include a medical clinic and pharmacy. Paul Katsanis is a prospective tenant of the proposed pharmacy in the applicant's new shopping centre.
5 An affidavit by Bruce Tilley, a director of First State Constructions, was submitted which outlined the reasons why the application for review was lodged out of time. First State Constructions was the only objector to the permit application. The objection was prepared and submitted by planning consultants, Tract Consultants Pty Ltd, to whom the Council sent the Notice of Decision dated 16 March 2005 (received by Tract Consultants Pty Ltd on 17 March 2005). At this time Mr Tilley was on holidays and not contactable by phone. Tract Consulting contacted Mr Graham Bell, Project Manager for First State Constructions, immediately upon receipt of the Notice of Decision. However Mr Bell failed to fully appreciate the implications of the appeal process and in any event did not hold any instructions to lodge an application for review. When Mr Tilley returned from his holidays and learned of the Notice of Decision he immediately instructed Tract Consultants Pty Ltd to lodge an application for review but it was one day outside the 21 day time limit for objector appeals.
6 It was submitted on behalf of the applicant that the time delay is of the shortest possible period and the detriment to the applicant if an extension of time in which to lodge the application for review is not granted will be considerable. There are various aspects of the planning merits of the permit application which it was submitted should be the subject of consideration by the Tribunal. A legal point was also raised, namely whether the pharmacy use proposed for part of the premises is lawful as the use of land for "retail" is prohibited in the Low Density Residential Zone. Given the proposed size, configuration and number of staff proposed for the pharmacy use, it was submitted that the use cannot be considered as ancillary to the use of the medical centre.
7 On behalf of the applicant Ms Porritt canvassed the considerations that are commonly seen to be relevant in extending time for lodging an application for review at the Victorian Civil and Administrative Tribunal and concluded that none of the responses would preclude an extension of time.
8 By contrast, it was submitted by Mr Finanzio on behalf of the respondent/permit applicant that none of these considerations outweighed the prejudice or detriment that would be suffered by the respondent/permit applicant. The detriment that will be suffered is delay in the issue of a planning permit and the loss of certainty that a permit will be issued once the time for objectors to lodge an application for review has expired. Hoppers Crossing is a newly developing residential area. As Mr Finanzio put it, this case is about . The applicant is in the process of developing a shopping centre which will contain its own medical centre and pharmacy that will be in competition with the medical centre and ancillary pharmacy on the subject land. There is a perceived commercial advantage to the medical centre which is first able to open its doors and attract clientele in this rapidly developing area. He submitted that this is an advantage the loss of which cannot be compensated by the means outlined in of the .
126.
Extension or abridgment of time and waiver of compliance
(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.
10 Mr Finanzio also drew the attention of the Tribunal to several recent cases decided by the President of the Tribunal, Justice Morris, in Mantello Property Group Pty Ltd v Mornington Peninsula Shire Council (2003) 15 VPR 255 and Becton Corporation Pty Ltd v Port Phillip City Council [2004] VCAT 1897. Both these cases involved applications for review by objectors: Each was lodged one day out of time and in each an extension of time pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act was being sought. In each case, Justice Morris refused the application to extend time.
CONSIDERATIONS RELEVANT TO EXTENDING TIME FOR LODGING AN APPLICATION FOR REVIEW
11 For many years the criteria that the Tribunal has considered when deciding whether to extend time for lodging an application for review have been:[1]
(i) What reasons are given for the delay by the applicant for extension of time in lodging its appeal?
(ii)
Did the applicant for extension of time take any other action (apart from the lodging of the objection or the late appeal) which continued to make the responsible authority aware that its decision to grant a permit was being contested?
(iii)
Will the applicant for the permit or the responsible authority suffer any prejudice if the application to extend time is granted?
(iv)
Will granting of the extension of time result in the unsettling of other people or of established practices?
(v)
Does the proposed appeal have a real change of success?
(vi)
Are any considerations of fairness as between the applicant for extension of time and other persons in a like position which are relevant?
(vii)
Is there to be an appeal in any event brought by persons who did lodge an appeal in time?
(viii)
Is there any other reason why it would be fair and equitable in the circumstances for the application for extension of time to be granted?
12 These may all be relevant considerations depending on the circumstances but it is inappropriate to place too much weight on any particular criterion or to assume that a satisfactory response to them all will guarantee an extension of time. As Deputy President Byard said in Dingley Village Neighbourhood Centre Inc v Kingston City Council[2] :
... the overriding purpose of the power granted to extend time is to enable justice to be done. Time limits are expected to be observed. They facilitate the timely conduct of the business of the court or tribunal. A party obtaining benefit from the failure of another to observe a time limit is able to retain that benefit unless the discretion to extend is exercised in favour of the defaulter. The grant of an extension is not automatic. It is generally relevant to consider the history of the case, but none of these things establish any hard and fast rule, and each case must be judged on its own merits with various considerations being given appropriate weight in the circumstances of the case. Finally however, it is a matter of doing justice, or enabling justice to be done.
13 In the recent cases of Mantello Property Group Pty Ltd v Mornington Peninsula Shire Council and Becton Corporation Pty Ltd v Port Phillip City Council the Tribunal has taken a particularly stringent view about the need for objectors in particular to adhere strictly to the time limits allowed for lodging applications for review. In commenting on the operation of section 126(4), Justice Morris said in Mantello's case:[3]
[6] The question then arises as to whether I should extend the time. The power to extend the time is given by section 126 of the Victorian Civil and Administrative Tribunal Act. That power is conditioned by a provision that prevents the extension of time if it would cause any prejudice or detriment to a party or potential party that could not be remedied by an appropriate order for costs or damages. There has been some controversy as to whether or not that requirement includes prejudice by reason of the fact that an appeal will now be brought, whereas if the extension is not granted it would not be brought. As interesting as that legal question is, I do not feel it need be resolved in this case. Regardless of whether prejudice is a mandatory factor, it is certainly a discretionary factor.
14 In exercising his discretion in Mantello's case, Justice Morris commented on the apparent harshness of a time limit that operates so as to shut out a person if they miss it by one or two days, however he went on to say:[4]
[9] ... But harsh though it is, the law requires objector appeals to be in by the day that the regulations require and that if the appeal is not in on time, the applicant for the permit has every right to think that they have a permit and not merely a decision of the council in their favour.
15 Mantello's case was followed in Becton Corporation Pty Ltd v Port Phillip City Council where Justice Morris again commented:[5]
[6] However time limits are necessary to make the operation of the law and the planning system effective. Without time limits, the whole system would degenerate in to one lacking in certainty; and would become highly dependent upon discretion.
[7] Thus I must seriously consider whether the onus, which is clearly upon the applicant, of demonstrating that the time limit should be extended has been discharged. To use the analogy of a set of scales, the onus is not discharged if the arguments on each side result in the scales being horizontal. It is necessary for the scales to be tilted, and significantly tilted, in favour of the person seeking the extension of time.
16 In my view, there is a discernable difference between an application for review lodged by an objector against the decision of a responsible authority to grant a permit and an application for review lodged by a permit applicant against conditions or the decision of a responsible authority to refuse a permit. In a situation where the applicant for review is the permit applicant, it is always open to a permit applicant to lodge a fresh application for permit if an extension of time for lodging an application for review is not granted. It may well be in those circumstances that the balance of convenience for all parties lies with an extension of time and an early resolution of the merits of the application than requiring a fresh application for a permit to be lodged with the consequent delays, uncertainty and expense this may entail.
17 This does not mean that an extension of time is automatic in such cases. The considerations outlined above are still relevant. 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. If there is a proceeding already on foot, the permit applicant may suffer little harm if time is extended, nevertheless even in these cases a proper discretion must still be exercised to enable justice to be done.
19 In the present case I find there are no compelling reasons to extend time. I do not consider that the applicant had a good reason for its delay. Mr Tilley's holiday, the lack of appreciation by the applicant's project manager of the need to lodge an application for review and the lack of authority to do so are not matters which were outside the control of the applicant. In my view they do not justify an extension of time.
[1] These considerations were based on a decision of the Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305 and were enumerated in Reynolds v Macedon Ranges Shire Council (1999/33825) noted at (1997) 19 AATR 9.
[2] (1997) 20 AATR 227 at 285
[6] See for example section 57(2A) of the Planning and Environment Act 1987.
Katsanis
Wyndham CC
(1984) 58 ALR 305
The application for an extension of time was refused and the application for review was dismissed as out of time; the joinder application was not dealt with.
9 Section 126(1) of the Act enables the Tribunal to extend any time limit fixed for the commencement of the proceeding, but subsection 4 provides as follows:
20 The issue of legal significance concerning the ancillary use of the pharmacy is not a matter that can only be addressed by means of this application for review. If any ancillary use ceases to be ancillary and, by degree, becomes a separate use in its own right, the opportunity always exists to seek a declaration.
21 So far as the planning merits are concerned they will not be open to testing but that is a consequence of the applicant failing to lodge its application for review within time. I am not persuaded that the applicant will suffer any major or material detriment by the grant of this permit that, of itself, would demand the planning merits be revisited. The applicant is a commercial competitor. Whilst the Planning and Environment Act seeks (not always successfully) to limit the opportunities of commercial competitors to object to permit applications[6] and there is no reason why a commercial competitor may not raise legitimate planning objections, I consider that the consequences of the delay which the respondent/permit applicant would face if an extension of time was granted in the present circumstances would constitute the type of detriment that section 126(4) is intended to avoid.
22 For these reasons I determine that the application to extend time under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 should be refused. As a result, it is unnecessary to deal with the application by Mr Katsanis to be joined as an applicant.