1. The decision of the responsible authority is affirmed. No extension of planning permit MV/15114/2002 is granted.

Mr Stephen Coleiro, town planner, of Gattini & Partners

(given orally at the hearing and subsequently revised)

1. This is an application pursuant to section 81(1)(a) of the Planning and Environment Act 1987 to extend planning permit MV/15114/2002. The permit was issued on 21 January 2003. An extension of time has been granted previously and the permit expired on 21 January 2007. The permit allowed use and development of a 14 storey residential building in the Moonee Ponds Activity Centre.
2. The council refused to extend the permit because a request was not made within 3 months of the expiry of the permit as required under section 69 of the Act. Nevertheless, it would support the extension on the basis the same permit would issue today and there have been no changes in planning policy since the permit was issued. However, I note this may change within the next 12 months if the council completes a structure plan for the Activity Centre.
3. The applicant has not acted on the permit and allowed it to lapse because the market for apartments in Moonee Ponds was not perceived to be supportive of such a development. It now wishes to reactivate the permit because the market in Moonee Ponds is improving due to increased commercial investment in the area.
4. Because the applicant failed to request an extension of the permit before it expired or within 3 months, the only way in which I could consider this application for review is by exercising discretion under Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure to make a request within 3 months of the permits expiry.
5. The Tribunal has set out its views previously about the use of this discretion under clause 62 in cases where a permit has lapsed for a lengthy period of time. In Sar Developments Pty Ltd v Brimbank CC[1], I said:

[3] Sometimes situations arise where, for legitimate reasons, people overlook the need to apply for an extension of time of their permits before or within 3 months after they expire. If there is a good reason why a request for extension is not made within 3 months after the permit expired, and when the council does not oppose an extension and there has been no change in planning policy or zoning affecting the land, the Tribunal will frequently exercise its discretion under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure to make an application within 3 months. It does so for the reasons set out by Justice Morris in Schneider v Boroondara CC[2], and where it is in the interests of justice to disregard the failure of the permit holder to apply to the Responsible Authority for an extension for time within the time specified in section 69(1) of the Planning and Environment Act 1987.

[5] Whilst the Tribunal endeavours to be facilitative in genuine situations where the need to apply for an extension of time has been overlooked for one reason or another, I consider it would be a misuse of my discretion to exercise it in the circumstances of this case. When it is known that a planning permit has expired and there has been a conscious decision to let it lapse and not pursue its extension, but then the applicant changes its mind and wishes to proceed with the development, the correct course of action is to apply for a new permit.

[6] The Tribunal's discretion to disregard the failure to seek an extension within time should not be used to revive what is effectively a "dead" permit.

1. In my view, the facts of this case fall into the same category. The applicant chose not to proceed with the use and development and knowingly let the permit lapse. The permit has been expired for 18 months. The discretion to disregard a failure to comply with an enactment under clause 62 is available if the Tribunal considers it is in the interests of justice to do so. I do not consider this is a case where there are any interests of justice in issue, even though it may be in the applicant's commercial interests to reactivate this permit. The permit was knowingly allowed to expire and it has been expired for a lengthy period of time. The applicant had plenty of opportunity to act on the permit (having extended it once) but has chosen not to do so for commercial reasons. Effectively, it has sought to warehouse the permit. In my view, if the applicant now wishes to proceed with this use and development, the correct course of action is to apply for a new permit.
2. My conclusion is that there are no interests of justice arising in the present circumstances that would make it appropriate for me to exercise my discretion under clause 62 to disregard the failure to request an extension of the permit within 3 months of its expiry. For this reason, the decision of the responsible authority will be affirmed and the permit will not be extended.

[1] [2007] VCAT 2328 (3 December 2007)

[2] [2004] VCAT 642