1. The compulsory conference scheduled at 10:00am on 22 January 2026 is vacated. No attendance is required.

1. The hearing scheduled at 10:00am on 16, 17, 18, 19, 20, 23, 24, 25, 26 & 27 February 2026 is vacated. No attendance is required.

1. The respondent has foreshadowed that it wishes to make an application for costs.
2. No later than 4:00pm on 2 February 2026, the respondent must give to the Tribunal and the parties a copy of the application, supporting submissions and documents relied on. The application must be made using the online form available at https://www.vcat.vic.gov.au/documents/forms/application-costs-or-fee-reimbursement-planning The supporting submissions must explain the following:

(a) The basis upon which costs are sought.

(b) The amount and details of the costs claimed, including any itemised bills with invoices where relevant.

(c) The basis on which the costs are calculated (for example, whether on a standard or indemnity basis, and whether on the County Court or Supreme Court scale. [Note - see Rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic), for the relevant default scale of costs.]

(d) The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

If you make an application for costs in this proceeding, you may be required to pay an application fee. For more information, see the VCAT website insert hyperlink?

1. By 4:00 pm on 23 February 2026, any party who wishes to oppose or otherwise respond to any application for costs must give to the Tribunal and the parties:

(a) Submissions which explain their position in respect of the costs application, including any basis on which they oppose the application; and

(b) A copy of any documents relied on in their submissions.

1. Unless varied by further order of the Tribunal, the hearing of any application for costs will be conducted 'on the papers' at 10:00 am on 23 March 2026. No attendance is required. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences.
2. If a party objects to the application for costs being determined 'on the papers', they must advise the Tribunal and the parties of this by 4:00 pm on 16 March 2026 and provide reasons for their objection.

Alex Gelber of counsel, instructed by Tania Cincotta, lawyer, Best Hooper Lawyers

He tendered and relied on three affidavits affirmed by Paul Marsden on 8, 10 and 12 December 2025. Mr Marsden was not called to be examined.

Juliet Forsyth SC and Rupert Watters of counsel, instructed by Rob McKendrick, lawyer, Planning & Property Partners Pty Ltd

They tendered and relied on an affidavit affirmed by Jack Hoffmann on 4 December 2025. Mr Hoffman was not called to be examined.

1. Kingston City Council ('Council') has applied to review a decision by the Minister for Planning ('Minister') to approve[1] the Former Kingswood Golf Course Development Plan (Revision 6, dated 7 October 2025) ('DP') under the Kingston Planning Scheme ('planning scheme') in respect of land at 179-217 Centre Dandenong Road, Dingley Village ('land').
2. In this part of the proceeding, I must decide if the Council lodged the application out of time and, if so, whether the Council's request that time be extended to commence the proceeding be granted.
3. In summary, I have decided the application was lodged out of time. For the following reasons, I have decided that time should not be extended to commence the proceeding. Accordingly, the application will be dismissed as misconceived.

1. Satterley Property Group Pty Ltd ('Satterley') prepared the DP. Satterley has been engaged by Satterley Dingley Village Pty Ltd ('Satterley Dingley Village') to provide 'project management and related services'. Satterley Dingley Village has a contract to purchase the land and wants to develop the land in accordance with the DP.
2. The Minister is the responsible authority for deciding whether to approve the DP.[2]
3. The Council lodged the review application on 14 November 2025 under section 149(1)(a) of the Planning and Environment Act 1987 (Vic) ('PE Act').
4. The Council has standing to make the application because it is 'a municipal council' and therefore a 'specified body' under section 148 of the PE Act.
5. In accordance with section 149(2) of the PE Act, the Council's application was required to be lodged within 28 days after the day on which the Minister's decision was made.
6. By correspondence sent at around 4.00 pm on Friday 17 October 2025, the Minister's Department (the Department of Transport and Planning) ('DTP') told the Council that the Minister's delegate had approved the DP. A copy of the DP was not attached. The correspondence stated the DTP officer's report and the DP 'will be shortly available for viewing on the [Government's] Engage Victoria website'.
7. The DTP correspondence did not state the date on which the DP had been approved.
8. The Council saw the documents for the first time on the Engage Victoria website when its officers returned to work on Monday 20 October 2025.
9. At a Special Meeting of the Council held at 7.00 pm on 10 November 2025, the Council considered an officer's report that included:

If Council does decide to pursue an application for review, the application must be lodged within 28 days from the date of the development plan approval (14 November 2025).

1. By informing the Council that the final day to lodge an application was 14 November 2025, the Council's officers were proceeding on the basis that the decision to approve the DP had been made on 17 October 2025.
2. At that meeting, the Council resolved:

That Council lodge an Application for Review with the Victorian Civil and Administrative Tribunal pursuant to Section 149(1)(a) of the Planning and Environment Act 1987, seeking a review of the Minister for Planning's decision to approve the development plan and supporting documents required by Schedule 8 to the Development Plan Overlay, for the former Kingswood Golf Course.

1. The Council's officers then prepared the application which was ultimately lodged, as I have stated, on 14 November 2025. The Tribunal's file reveals it was received at 11.30 am. Section 12 of the application form shows that, on 14 November 2025, the Council's officers continued to believe that the Minister's decision had been made on 17 October 2025.
2. The Council attached to its application an 11-page statement of grounds and facts on which it relied.
3. The DTP officer's report to the Minister's delegate was dated 7 October 2025 and recommended approval of the DP plus 24 'supporting technical documents' referred to in the DP. Other recommendations included that Satterley and the Council be notified in writing of the approval of the DP.
4. The Minister's delegate 'approved' the recommendations, including the decision to approve the DP, on 13 October 2025.
5. DTP notified Satterley by email on 15 October 2025 around 10.40 am and by letter dated 16 October 2025 of the approval of the DP. As I have already stated, DTP notified the Council by email and letter at around 4.00 pm on 17 October 2025.
6. The Minister's delegate endorsed each page of 60 pages of the DP on 15 October 2025 and each of the 24 supporting technical documents.
7. On 26 November 2025, Satterley notified the Council and contended the Minister had approved the DP on 15 October 2025 as evidenced by the date appearing on the endorsed documents and, as a result, the Council's application was lodged out of time.
8. On 2 December 2025, the Council applied for an extension of time to commence the proceeding and requested that the purposes of a practice day hearing scheduled for 5 December 2025 be extended to include consideration of its extension of time application.
9. In its submissions to a practice day hearing on 5 December 2025, Satterley repeated its contention that the Minister's delegate approved the DP on 15 October 2025.
10. On 5 December 2025, the Tribunal made various procedural orders including scheduling a further practice day hearing on 12 December 2025 with the following purposes:

To consider the applicant's request for an extension of time for the lodging the application under s 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

To consider whether the following declaration should be made under s 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic);

VCAT Application P1003/2025 was lodged outside of the statutory time period required by section 149(2) of the Planning and Environment Act 1987 (Vic).

1. Satterley Dingley Village's proposed development of the land is a significant project. It includes the creation of over 900 residential lots on a 52.35 hectare site. It is therefore unsurprising that planning for the development has involved Satterley Dingley Village (and Satterley), the Minister's Department, the Council, various agencies and the local community for an extended period of time. I will not set out the various steps in the planning process.
2. The Council has not lightly embarked on a review of the Minister's delegate's decision. It is unsurprising that the Minister and Satterley are vigorously resisting the review application and any extension of time to commence the proceeding.
3. The parties were unable to identify any other case in which a municipal council had sought review under section 149(1) of a decision by the Minister (or other responsible authority) to approve a development plan. I will therefore proceed on the basis that the Council's review application is a novel one.
4. The Council relies on three affidavits affirmed on 8, 10 and 12 December 2025 by Paul Marsden, the Council's Manager of City Strategy. The first affidavit comprised 59 paragraphs and exhibits comprising more than 200 pages. It also relies on written submissions comprising 132 paragraphs and 35 pages.
5. The Minister's written submission comprises 58 paragraphs and 20 pages.
6. Satterley relies on an affidavit affirmed by Paul Hoffman, Satterley's General Manager, on 4 December 2025. It included exhibits comprising 529 pages. It also relies on written submissions comprising 162 paragraphs and 43 pages.
7. Both parties referred to and relied on at least 28 Court and Tribunal authorities.

1. Before considering the Council's application to extend time to commence the proceeding, I must consider if the application was lodged out of time.
2. In my opinion, the day on which the Minister's delegate approved the DP was 13 October 2025. That is the day the Minister's delegate formally approved the officer's recommendation. The Minister's delegate did not approve the DP subject to conditions requiring specified amendments.
3. The date of approval was not any of the following:

(a) 15 October 2025, when DTP notified Satterley by email that the DP had been approved;

(b) 15 October 2025, when the Minister's delegate affixed an endorsement stamp to the DP and the technical documents;

(c) 16 October 2025, when DTP notified Satterley by letter that the DP had been approved;

(d) 17 October 2025, when DTP notified the Council by letter that the DP had been approved; or

(e) 20 October 2025, when the Council accessed a copy of the officer's report, the DP and the technical documents on the Engage Victoria website.

Each of these days were days on which the administrative steps were completed of endorsing the DP, notifying persons of the approval, and making a copy of the DP available for inspection.

1. It should not be forgotten that section 149 of the PE Act does not require a responsible authority to notify any person, including an applicant, of its decision to approve or to refuse to approve a document such as a development plan.
2. As the Minister's delegate approved the DP on 13 October 2025, the Council's review application had to be lodged by 10 November 2025. The application was therefore lodged four days late.

1. Section 126(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') gives the Tribunal the power to extend time to commence a proceeding. No limitation to that power is specified in that subsection.
2. Section 149(2) of the PE Act is an example of a limitation period to lodge a cause of action.
3. In summary, the Courts have established that:

(a) an applicant seeking to extend a statutory limitation period to commence a proceeding in a wide range of circumstances bears the onus of justifying the exception to the limitation;[3]

(b) the reason for the limitation period must guide whether any injustice has occurred;[4]

(c) there are a broad range of permissible considerations;[5] and

(d) it is for the court or tribunal to have regard to, and place weight on, the facts and circumstances that it considers appropriate in the circumstances.[6]

1. In deciding whether to extend time, regard needs to be given to the purpose of the limitation period in section 149(2) of the PE Act.
2. The Tribunal often takes a more stringent approach to extensions of time by objectors than by those proposing to use or develop land. Instruments that facilitate the use or development of land, such as a permit, secondary consent or a development plan, are valuable to existing and prospective owners and occupiers of land. As well, the use and development that is in accordance with the objectives of planning should be facilitated.[7] A more stringent approach is also taken because of the potential prejudice to those owners and occupiers if time is extended.[8]
3. An objector does not have standing to seek review of a responsible authority's decision to approve a development plan. However, a municipal council can seek a review if it opposes a decision to approve a development plan. I agree with the Council that its interests are different from a usual objector because it has ongoing planning and other interests in the land, such as enforcement of the planning scheme (and any permit issued affecting the land) and a wide variety of municipal functions.
4. These other interests do not, however, derogate from the need for a municipal council to comply with section 149(2) in any review application.
5. The Tribunal has consistently considered the factors in Katsanis v Wyndham CC[9] ('Katsanis') in considering extensions of time to commence a proceeding under a planning enactment. These factors are based on the decision of the Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment.[10]
6. I will now consider those factors in this proceeding.

1. A finding that the Council had acceptable reasons for its delay in lodging an application is not a precondition to an extension. However, in the circumstances of this proceeding, acceptable reasons are a very important factor.
2. In summary, I find the Council's reasons are not acceptable for the following reasons.

1. The Council now correctly concedes that it made a mistake in calculating the expiry of the period in which the review application needed to be lodged.
2. 'Mistake' with dates is very rarely a reason that is given any weight in extension applications. 'Mistake' is sometimes pleaded by objectors (individuals or corporate bodies) in failing to lodge within time review applications of decisions by responsible authorities to grant planning permits.
3. The Council submits that its mistake is reasonable because it relied on a representation by a DTP officer that the day on which the decision was made was the date the Council was notified i.e. 17 October 2025. If I were to accept that it was reasonable to rely on that representation, the Council lodged the application 28 days after that date and was therefore within time.
4. There are several difficulties with the submission.
5. First, the representation (even if to the effect the Council contends) was not the advice of a legally qualified DTP officer and was no substitute for seeking independent legal advice. A potential litigant in the shoes of a municipal council should have sought independent advice and not rely on advice of the responsible authority.
6. Second, the Council's inquiry to DTP dated 12 September 2025 relevantly stated:

Acknowledging this process is procedurally quite different from what we are familiar with for a development plan approval, we would appreciate if you could confirm what constitutes statutory 'approval' of the DP under the process outlined below?

Is this the point at which DTP advises the applicant that the DP has been 'approved' subject to further amendments or the point at which the final Development Plan is endorsed by the Department?

You will appreciate that whilst potentially a subtle distinction, this is important from Council's perspective in terms ensuring that in considering the approved material and any further steps it may seek to progress, there is an ability to track relevant statutory timeframes.

We would appreciate if you could confirm that Council will be separately notified both at the point the applicant is advised that the DP has been conditionally 'approved' and at the point that the DP is endorsed.

1. I am content to accept that the reference to the 'procedurally different' process is a reference to a process of approval subject to amendments. It is unclear why the Council this process was anticipated. I am also content to accept that the 'relevant statutory timeframes' is a reference to the limitation period in section 149(2) of the PE Act.
2. However, the inquiry asks if the approval date is the date on which approval is given 'subject to further amendments' or the date the DP is endorsed after the amendments are made. Neither scenario was to relevantly apply.
3. Third, and in any event, the DTP reply dated 17 September 2025 (which was 26 days before the date the Minister's delegate approved the DP) stated:

At this stage we are working towards two potential scenarios in terms of finalising DTP's assessment and determination of the [DP]:

1. DTP issues a determination letter to the applicant that the DP has been 'approved' subject to further amendments. The applicant would then need to resubmit a revised DP for endorsement.
2. The applicant submits an amended DP to respond to any outstanding issues or amendments identified through our assessment prior to a determination. In which case, the determination letter and endorsement would occur concurrently.

In terms of Council considering further steps it may seek to progress, I would think the date DTP issues a determination letter as the relevant date for the purposes of statutory timeframes.

Under Scenario 1, Council will be separately notified both at the point the applicant is advised that the DP has been conditionally 'approved' and at the point that the DP is endorsed.

For Scenario 2, Council would simply be notified when the DP is endorsed.

1. The advice refers to two scenarios. Scenario 1 did not apply and is not relevant. Scenario 2 appears to have applied because Satterley gave DTP revision 6 of the DP on 7 October 2025, following DTP's 'detailed assessment'. The Minister's delegate approved revision 6 of the DP one week later.
2. The advice goes on to state that a determination letter would be issued but it is unclear if this is a letter notifying Satterley of approval or both Satterley and the Council of approval. The advice that 'I would think the date DTP issues a determination letter date [would be] the relevant date for the purposes of statutory timeframes' is tentative in its reference to 'I would think'. The tentative terms ought to have put the Council on notice that it should seek its own advice.
3. The Council should not have relied on the advice because the advice erroneously considered the date of the decision to approve the DP would be either the date the DP is endorsed following approval or the date of the determination letter (without clarity as to whom).
4. The Council sought legal advice on or about 11 October 2025 to settle the grounds of the application for review and engaged lawyers on or about 24 November 2025 to represent it in relation to its review application. It is unclear whether the Council sought advice from either about whether it could or did lodge the review application within the section 149(2) limitation period.
5. Fourth, the Council as a responsible authority for the planning scheme must be taken to be aware of the meaning and effect of section 149(2). The Council makes decisions almost every business day under permits (these are usually referred to as 'secondary consent' decisions) and must be aware that, if it refuses approval, an applicant has 28 days from the date of the decision to refuse to lodge a review application. It is not uncommon for a municipal council as a responsible authority to plead the review application has been lodged out of time and, if an extension is sought, to often oppose an extension.
6. At the practice day hearing, the Council said this proceeding was different because the Council was not the responsible authority. This is correct but did not persuade me that it was reasonable to not be aware that section 149(2) applied to a review application if a municipal council was either responsible authority or applicant.
7. In summary, the Council's 'mistake' does not support an extension of time.
8. In addition to mistake, the Council relies on other reasons, to which I now turn.

1. The Council submits the delay to lodge the review application is reasonable because:

(a) DTP did not notify the Council of the approval of the DP until four days after the Minister's delegate had approved the DP;

(b) DTP did not notify the Council of the approval of the DP until two days after DTP endorsed the DP and supporting documents;

(c) DTP did not notify the Council of the approval of the DP until two days after it notified Satterley of the approval of the DP; and

(d) there was a delay of seven days between the day on which the DP was approved and the first day on which the Council could access the approved DP.

1. In support of these submissions the Council referred to the Tribunal's finding in CPG AFM Property 01 Pty Ltd v Minister for Planning[11] ('CPG') that the responsible authority delayed notifying the applicant of its decision and its observation that the delay was a 'plausible explanation' in commencing the proceeding.[12]
2. I would not read into CPG any general principle that a notification delay is an acceptable reason for failing to commence a proceeding within the prescribed period. To start with, the Tribunal's observation was obiter. Then, simply put, a plausible delay is not the same as an acceptable delay. As well, the delay was substantial - the applicant was notified more than four months after the expiration of the section 149(2) period.
3. None of the DTP delays was an acceptable reason for the Council's delay in lodging the review application. There was no legislative obligation to notify the Council of the decision to approve the DP on the same day it was approved or at the same time as Satterley was notified or to be notified at all. DTP complied with the notification part of the Minister's delegate's decision and, in any event, a notification delay of between four and seven days left between 21 and 24 days to lodge the review application.

1. The Council submits the delay is reasonable because it was not apparent to the Council what changes had been made in revision 6 of the DP to the previous version on which it had considered and provided DTP with written submissions.
2. The Council says it asked DTP on 23 October 2025 for track-changed versions of the DP and the supporting documents to facilitate its consideration and that it received no response. The Council submits this meant voluminous documents needed to be manually compared to determine the scope and effect of changes.
3. This reason carries little weight. The Council has not proven that the scale of changes was significant or that electronic comparison tools were not available.

1. The Council submits the delay is reasonable because, unlike a private individual or corporate body, it was required to comply with instruments of delegation and follow the Council's 'Governance Rules' before a review application could be lodged. The Council submits it acted without delay in complying with and following these arrangements.
2. A close examination of those arrangements and the way they were followed does not support the Council's submission.
3. First, I accept that the power to lodge a review application under section 149(1) of the PE Act is not delegated under the Council's current instrument executed on 22 September 2025.
4. However, the Minister and Satterley drew my attention to a separate instrument of delegation bearing the same date that confers power on the Council's CEO 'to determine any issue, take any action, [or] do any act or thing arising out of or connected with any duty imposed, or function or power conferred on Council by or under any Act'. The power is subject to express exclusions, none of which are relevant for present purposes. The Council did not sufficiently explain why lodging a review application did not fall within the CEO's broader delegated powers.
5. Second, if there was no delegation, the lodging of a review application required a Council resolution. Mr Marsden's evidence was that on 20 October 2025 (when the Council can be taken to have been notified of approval and could inspect the approved documents), the first available regular meeting was not scheduled until after the expiry date for lodging that it had mistakenly calculated as 14 November 2025.
6. The Council's staff then set upon a course of action to have the Council consider resolving to lodge a review application at a Special Meeting of the Council on 10 November 2025, which Mr Marsden said was the earliest date on which such a meeting could be scheduled. The gravamen of the Governance Rules was that the Mayor needed to give Councillors at least three days notice of a Special Meeting. The Mayor gave such notice on 7 November 2025 for a meeting at 7.00 pm on 10 November 2025.
7. Before the Mayor was able to give notice, Mr Marsden's evidence was the Council's planning staff needed to brief the Council's Executive Leadership Team ('ELT') and this was done on 21 October 2025. As well, he stated all councillors needed to be given a 'comprehensive briefing' and this was given on 5 November 2025.
8. I am not persuaded that the Governance Rules were a sufficient reason for the delay in lodging the review application.
9. It is unclear that an ELT briefing and a councillors' briefing is required under the Governance Rules. Copies of these briefings were not exhibited to any of Mr Marsden's affidavits. Satterley sought production of the ELT briefing and the Council gave a copy to Satterley but did not consent to Satterley tendering a copy in the proceeding. I ruled that Satterley could tender it. Satterley also sought production of the councillors' briefing but it was not provided and no summons was issued before the hearing and no direction to produce was sought at or before the practice day hearing.
10. The ELT briefing identifies two options, one of which is to seek review of the Minister's decision if the DP is approved and the Council's previously-resolved requested amendments are not included. This infers the briefing was prepared before at least 17 October 2025 when the Council was notified of its approval.
11. There is also a suggestion that the Council's mistake no longer existed at the time of this briefing because the briefing states that a review application 'must be lodged within 28 days of the decision being made by the Minister'. I do not give weight to this suggestion because the Council's processes led to a Special Meeting being scheduled and conducted on 10 November 2025 at 7.00 pm which, if the Council resolved to seek review and if it had lodged immediately following passage of the resolution, it would have been outside the 4.00 pm deadline on 10 November 2025.
12. The Council was unable to explain why there was a 16 day delay between the date of the ELT briefing and the Mayor directing on 7 November that notice be given of a Special Meeting at 7.00 pm on 10 November 2025.
13. The Council took no action of substance in relation to preparing a potential review application during those 16 days. After those 16 days and by the time of the direction, 24 of the 28 days had elapsed. It is unclear why the Mayor could not have directed the scheduling of an earlier Special Meeting.
14. Finally, Satterley submits that there was an ordinary Council meeting held on 27 October 2025 to which Mr Marsden did not refer in his affidavit and to which the Council did not refer in its submissions.
15. If the ELT authorised briefing the Council about the DP on 21 October 2025, it is unclear why the 'urgent business' on the agenda for that meeting could not include the DP, even if expedited compliance with the Governance Rules was needed. If the Council had resolved to lodge the review application at its meeting on 27 October 2025, there would have been 14 remaining days to prepare and lodge the application.

1. The Council submits the delay is reasonable because it could not reasonably prepare brief and generalised grounds in its review application.
2. Mr Marsden's evidence is that the Council's review application 'proceeds on the basis that it does not oppose the [DP], but that various changes are required to be made to the [DP] and supporting documents to achieve an acceptable planning outcome'.[13] Consequently, the Council submits that the delay is reasonable because it could not reasonably prepare brief and generalised grounds and that it needed to identify all the changes it seeks.
3. The Council took three and a half business days after resolving to lodge the review application to prepare the grounds and facts to include in the application. The Council submits that it worked diligently and without unreasonable delay in preparing those grounds.
4. In his second affidavit, Mr Marsden 'clarified' that counsel's advice was sought and obtained in preparing the grounds and facts but that it was 'substantially informed by the officers' instructions and analysis of the [DP], which was being undertaken throughout this period of time'.
5. It is unclear when counsel's advice was sought and obtained and what was the relevant 'period of time'.
6. On the evidence before me, the Council had sufficient time between 20 October 2025 and 10 November 2025 to prepare sufficient grounds to include in the Council's review application if the Council resolved to proceed to lodge the application. The Council has not persuaded me that the approved DP was so different from the previous versions on which it had been consulted for months before the DP was approved that it needed to 'start from scratch' to understand and assess the DP.
7. In addition, a careful review of the Council's grounds and facts do identify all the changes to the DP that the Council seeks. Paragraphs 7 to 21 of its grounds identify a wide range of topics on which the Council contends the DP does not represent 'an acceptable planning outcome' and seeks orders 'that the [DP] be amended before being endorsed by the Minister'.
8. The reference to the Minister's endorsement is curious because, as I have stated, endorsement is an administrative step following approval of the DP. I doubt the Tribunal could order changes to the approved DP before endorsement. A different cause of action would be necessary to restrict endorsement. In any event, the inclusion of requested orders relating to endorsement suggests the grounds were prepared before 20 November 2025 when the Council had access to the endorsed DP.

1. The Council's reasons for the delay in lodging the review application do not support the grant of an extension of time.

1. A relevant factor is whether the Council took action to notify the Minister that a decision to approve the DP would be contested and, if so, whether the action enabled the Minister and Satterley to take steps to avoid disadvantage or wasted expenditure.
2. Mr Marsden's evidence is that on 7 November 2025 a senior colleague telephoned both a senior DTP officer (in particular, the officer who was subsequently the Minister's delegate) and Satterley's general manager to advise of the scheduled Special Council Meeting on 10 November 2025 and its purpose and the officer's report and recommendations. The Council submits these calls put the Minister and Satterley on notice that it was likely the Council would lodge a review application to contest the DP approval.
3. Satterley does not contest Mr Marsden's evidence. I find that the Council did take action to notify the Minister and Satterley. The notice was given on day 24 of the 28-day period. To the extent that the Minister and Satterley could take steps to avoid any prejudice so close to the end of the period, there was limited opportunity to take those steps. On the facts in this case, the action offers very limited support as sufficient reason to extend time.

1. A relevant factor is whether the Minister or Satterley may suffer prejudice if an extension is granted.
2. Section 126(4) of the VCAT Act provides:

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.

1. The word 'may' in this subsection might mean a limitation (ie when an extension must be refused) or as a discretionary consideration. The latter is more consistent with the interpretation statute in this State.[14]
2. Based on the authorities brought to my attention, there is also some uncertainty about whether the prejudice or delay should be confined to the delay or to the application being allowed to proceed.
3. It is unnecessary to consider these matters concerning the meaning and effect of subsection (4) in this proceeding.
4. Satterley submits that an extension will suffer 'serious' prejudice having regard to the difference between having the benefit of an uncontested DP and the consequences of a contested DP. Satterley relies on Mr Hoffman's evidence that those consequences include holding costs, delay in consideration of Satterley's permit applications currently with the Minister to subdivide the land, and costs of participation in any hearing of the review application.[15]
5. Satterley also submits there would be prejudice to the community in terms of delay in the provision of residential lots (and subsequent construction of houses) and provision of the affordable housing component in the DP.
6. The Council concedes that Satterley will be impacted by the cost and delay of the review application if time is extended but contends those impacts are irrelevant based on the reasoning in Australia Pacific Airports v Hume CC.[16]
7. As I have stated, I do not understand subsection (4) to be a restriction on the broader discretion under subsection (1). Potential prejudice in a broad sense may be considered under subsection (1).
8. It suffices to find that the prejudice to Satterley beyond the costs of the proceeding is uncertain.
9. First, Satterley is not the owner of the land and Mr Hoffmann's evidence is that Satterley's unconditional contract to purchase the land settles on 1 March 2026.
10. Second, the approval of a development plan does not confer an authorisation to use or develop land. I will not set out what permissions are required but, broadly speaking, a permit is required to subdivide and otherwise develop the land. Satterley will not be able to proceed to subdivide and otherwise develop the land until those permissions are granted. In other words, if an extension is granted and if the Tribunal were to ultimately affirm the Minister's decision, there is no change to possible prejudice in starting subdivision and other development of the land.
11. Third, the responsible authority for the permit application is the Minister, not the Council. Mr Hoffmann's evidence is that on 20 May 2025, Satterley in fact applied to the Minister for a permit to subdivide the land in stages and for other matters and he states that application was prepared to be generally in accordance with the form of the development plan as it existed at that time.[17] Before the DP was approved, DTP informed Satterley that it would not assess the application in detail before the DP was approved.
12. Mr Hoffmann relies on prejudice to the consideration of the permit application and states he 'is concerned that the uncertainty in the final form of the development plan, as a result of the proceedings, will delay DTP's assessment of the permit application, including further requests for further information'.[18]
13. Any prejudice is very limited because, as Satterley concedes, the permit application was framed around an earlier draft version of the development plan. It is probable that the permit application will need to be amended to comply with the version (i.e. revision 6) that comprises the DP. If the extension were granted and if the Tribunal were to ultimately vary the Minister's decision and approved the DP with further amendment, the permit application would be likely to require further amendment. Only then could the Minister decide the permit application. Any of Satterley's costs associated with the permit application before approval of a development plan are not costs related to the grant of an extension.
14. Although no notice of the permit application is required to be given to the Council and although the Council, if it were to object, could not apply to review the Minister's decision,[19] Satterley could apply to review the Minister's decision if the decision were to refuse to grant a permit or to include conditions that Satterley challenged.
15. In short, the likelihood of amendment of the permit application and the possibility of review of the decision on the permit application means that any prejudice of an extension is speculative.
16. I would also observe that Mr Marden's evidence is that the Council is ultimately seeking various amendments to the DP. If an extension were to be granted, there are therefore prospects for settlement of the Council's review proceeding at a compulsory conference. Again, potential prejudice may be discounted.
17. In conclusion, potential prejudice to Satterley is neutral and does not weigh in support of the grant of an extension.

1. It is relevant to consider whether an extension will result in the unsettling of other people or of established practice.
2. The impact on established practice is the relevant matter in this proceeding. Of course, the expectation is that a proceeding is brought within the section 149(2) period. Established practice is more likely to be unsettled if granted when the applicant does not provide adequate reasons for the late lodging.[20]
3. Although the Council's application was lodged four days after the expiration of the section 149(2) period, my finding of the Council's insufficient reasons supports a finding that an extension would unsettle established practice.
4. The Council relied on 723 Calder Highway Maiden Gully Pty Ltd v Head, Transport for Victoria (Department of Transport and Planning) and the Tribunal's observation that 'there is a genuine controversy which requires resolution [and that is not] so devoid of merit to suggest that it should not be considered by the Tribunal'.[21]
5. The Council submits that there is also a 'genuine controversy' underlying its review application. I do not take the Tribunal's observation that a genuine controversy is sufficient to overcome any unsettling of established practice. As well, the case may be distinguished because it concerned a failure by the respondent to confirm within a reasonable time that the requirements of a condition of a permit had been completed to the respondent's satisfaction.
6. The factor does not support the grant of an extension.

1. It is relevant to consider whether the Council's review application has a real chance of success.
2. This is a high level assessment, particularly as I only have the report to the Minister's delegate, the DP, the Council's grounds and other filed documents. The Minister's and Satterley's grounds are unknown. I am content to find that the Council's review application is not unarguable, to apply the reasoning of the Tribunal in Rockford Constant Velocity Pty Ltd v Melbourne CC.[22] However, this finding weighs in favour of extending time to a very limited extent.

1. It is relevant to consider whether there are other proceedings on foot that might render the review application being unnecessary and, if so, this might weigh against an extension.
2. There are no other known proceedings and, accordingly, this does not weigh against an extension.

1. As the relevant factors are not closed, I may consider any other reasons why it would be fair or in the interests of justice to grant an extension.
2. The Council contends that its 'proactivity' in considering the Minister's delegate's decision to approve the DP is a factor in support of extension. I have considered the Council's conduct in its reasons for delay and it suffices to repeat my finding that the Council's conduct does not weigh in support of an extension.
3. Satterley contends that there is a public interest reason to refuse the extension. It contends the wider community will suffer detriment from delay in providing affordable housing in accordance with the DP. Mr Hoffmann's evidence is that a 'delay of 6-7 months would compromise the viability of the project and in particular the viability of the affordable housing contribution'.[23]
4. It is unnecessary to detail the planning scheme requirements for affordable housing that must be included in a development plan and Satterley's Affordable Housing Report that forms part of the DP. It suffices to state that claims of delay risking the provision of affordable housing lack evidence and are unpersuasive.

1. It follows from the above reasons that I will refuse the Council's application to extend time to commence its review application.
2. As the Council's review application is lodged out of time, I will dismiss it as misconceived. I will therefore also vacate the urgently scheduled one-day compulsory conference in January 2006 and 10 day hearing in February 2026.

VCAT Application P1003/2025 was lodged outside of the statutory time period required by section 149(2) of the Planning and Environment Act 1987 (Vic).

1. A declaration is a discretionary remedy that may be made as part of another proceeding. I will not set out references to all the authorities on making a declaration in these circumstances. It suffices to state that a declaration should not be made if there is no practical effect.[24]
2. The making of the declaration is unnecessary. It would not have any practical effect. I have found that there are insufficient grounds for the grant of an extension. The legal result is that the Tribunal does not have jurisdiction to consider the review application and I should dismiss the application as misconceived because there is no jurisdiction. Accordingly, I will refuse Satterley's application for declaration.

1. Satterley has foreshadowed that it will apply for an order that the Council pay its costs. I will make appropriate procedural orders for the making of a costs application.
2. A costs application will be determined in accordance with section 109 of the VCAT Act. Having regard to its representation in this proceeding, I take Satterley to be aware of the provisions of section 109. An application for costs will be considered on its merits, if it is made.
3. Nonetheless, on the material before me, I doubt I would be satisfied that it would be fair to make an order awarding costs, having regard to the following observations.
4. I do not regard the Council as having conducted the proceeding in a way that has unnecessarily disadvantaged Satterley.[25]
5. The Council has not been responsible for any delay in completing the proceeding.[26]
6. The relative strengths of the claims do not appear to favour an award.[27] I mention two examples. First, the Council's reasons for delay were arguable even if they ultimately lacked sufficient merit to support an extension. Second, the facts show that Satterley was also originally mistaken as to the date the Minister approved the DP.
7. The nature and complexity of the proceeding do not favour an award.[28] Although written submissions were detailed, the assessment of the Council's extension of time application involved the application of well-established principles, albeit to a complex fact scenario. As well, the duration of the practice day hearing was a half day and witnesses were not called and examined.

[1] Clause 43.04-2 of the Kingston Planning Scheme provides that 'a permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority'. For convenience and brevity, I will refer to this provision in these reasons as requiring an 'approval' by the responsible authority.

[2] Planning scheme cl 72.01 sch cl 2.0 dot point 4.

[3] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553 (McHugh J).

[5] Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 [62] (Gordon, Edelman and Steward JJ).

[8] See eg 285 Lennox Pty Ltd v Yarra CC [2018] VCAT 2029 [23]; Katsanis v Wyndham CC [2005] VCAT 824 ('Katsanis') [18].

[9] [2005] VCAT 824.

[10] (1984) 3 FCR 344; [1984] FCA 176.

[11] [2024] VCAT 465.

[13] Paul Marsden, affidavit affirmed 8 December 2025 [29].

[14] Interpretation of Legislation Act 1984 (Vic) s 45(1).

[15] I discern no foreshadowed claim for damages by Satterley if an extension is granted. In any event, I doubt the Tribunal has power to make any award of damages in this type of proceeding.

[16] [1999] VCAT 47.

[17] A permit must be generally in accordance with an approved development - planning scheme cl 43.04-2.

[18] Jack Hoffmann, affidavit affirmed 4 December 2025 [50].

[19] Planning scheme cl 43.04-3 - see especially the exemption from notice requirements under s 52(1)(b) of the PE Act.

[20] See eg Strilakos v Whitehorse CC [2025] VCAT 235 [45].

[21] [2024] VCAT 1218 [27].

[22] [2023] VCAT 933 [265].

[23] Jack Hoffmann, affidavit affirmed 4 December 2025 [66].

[24] See eg Luu v Minister for Immigration and Multicultural Affairs [2001] FCA 1136.