Dr R J Sadler of counsel, instructed by Willis Simmonds

(given orally at the hearing and subsequently revised)

1. This is an application under section 87 of the Planning and Environment Act 1987 to amend planning permit P06/1166 issued by he responsible authority on 31 October 2006. The permit allows the development of five dwellings and associated vegetation removal.
2. The applicant, Mr Lee, owns an adjoining property at Unit 1/102 Barkly Street, Mornington. He seeks an amendment to the permit to: "Move bedroom 4 of Unit 5 from boundary adjacent to my pergola to provide a reasonable setback to reduce loss of amenity to my open living space". The ground relied upon for his request is that there has been a failure to give notice in accordance with section 52 of the Act. He makes the request as a person under section 89 of the Act.
3. Before considering the merits of the request, there are three threshold issues that must be determined:
   • Does the applicant have standing under section 89(1)(a) of the Act?
   • Was the request made as soon as practicable as required by section 89(3) of the Act?
   • Is the Tribunal precluded from amending the permit by reason of section 88(a) or (b) of the Act because construction of the buildings is complete and the development is substantially carried out?

1. I am satisfied that the following events occurred relevant to this matter:

1. The planning permit application was received by the council in May 2006. 2. On 7 September 2006 the council advertised the application pursuant to section 52 of the Act by placing a sign on the land and sending a letter to adjacent and nearby property owners and occupiers. A letter was sent to "Jonathon J Lee, c/- Jacobs & Lowe - Bennetts, Unit 1/102 Barkly Street, Mornington". This property is tenanted and the agents are Jacobs & Lowe - Bennetts.

1. On 12 September 2006, one of the respondents/permit applicants, Kevin Warner, told Jacobs & Lowe - Bennetts (Mr Lee's agents) of the proposed development and requested contact details for Mr Lee. A rental representative of the agent told Mr Warner that she would contact Mr Lee and inform him of the proposed development. She refused to give Mr Lee's contact details to Mr Warner.

1. No objections were received and the planning permit was issued on 31 October 2006. 2. In February/March 2007 the existing buildings on the land were demolished. 3. On 5 March 2007, Mr Lee observed that the existing buildings on the land had been demolished and became aware for the first time that a new development was proposed.

On 5 March 2007 plans were endorsed under the planning permit.

1. On 14 March 2007, Mr Lee signed a Protection Work Response Notice in relation to the proposal under the Building Regulations 2006 agreeing to the proposed protection work.
2. On 27 March 2007, Nicholas Harrison of council spoke to Mr Lee. Mr Lee informed Mr Harrison that he was concerned that he was not notified of the permit application. Mr Harrison informed Mr Lee that a letter was sent to him care of Jacobs & Lowe - Bennetts to the property address at Unit 1/102 Barkly Street, Mornington. Mr Lee advised that he had concerns with the bedroom wall of Unit 5 and Mr Harrison advised him that council required the height of this wall to be reduced from an average of 3.6m to an average of 3m to meet the ResCode wall on boundaries standard.
3. On 11 April 2007, Mr Scott Collins of council emailed the applicant a copy of the council officer's delegate report.
4. On 23 April 2007, a building permit for the development was issued.
5. Towards the end of March 2007, Mr Lee contacted Mr Warner regarding the wall on the boundary. Mr Warner said he had tried to contact him through his agent. He told Mr Lee the planning permit had been issued.

1. On 5 April 2007 Mr Lee and Mr Warner met on site to discuss the wall. The matter was not resolved.

1. On 19 June 2007 Mr Lee lodged his section 87 application with the Tribunal.
2. On 9 July 2007 Mr Lee served a copy of the section 87 application on the respondents, which was received by them on 11 July 2007.

1. Under section 89(1)(a) of the Act, any person who would have been entitled to object to the issue of a permit may ask the Tribunal to cancel or amend the permit if the person believes that the person should have been given notice of the application for the permit and was not given that notice.
2. The address held by the council for Mr Lee is care of his agents, Jacobs & Lowe - Bennetts. Their postal address is a post office box in Mornington. In fact, the notice to Mr Lee, care of his agents, was not sent to this post office box but to the address of the property itself. It seems that the tenants did not pass on the notice to the agents. Notwithstanding this, I am satisfied that the council gave adequate notice by sending the letter to the subject land. The failure of the tenants to pass on the notice to Mr Lee was a circumstance beyond the control of the council.
3. However, this was not the only means by which direct notice to Mr Lee was attempted. Mr Lee's agents were told already about the proposed development prior to the permit being issued. The agents declined to give Mr Lee's contact details to Mr Warner but said that she would contact Mr Lee and inform him of the proposed development. Again, if she failed to do so this was a circumstance beyond the control of the permit applicant. Nevertheless, by telling Mr Lee's agent about the proposed development, Mr Warner effectively told Mr Lee himself. Jacobs & Lowe - Bennetts are Mr Lee's agents and effectively stand in his shoes for the purpose of receiving notice regarding matters for which they act as the agent of Mr Lee.
4. What is required by the reference to "notice" in section 89(1)(a) is effective notice of the permit application. This may be notice by means other than by written notice. This interpretation is supported by reference to section 91(3)(a)(i) of the Act, which provides:

The Tribunal must not direct a responsible authority to cancel or amend a permit on a request under section 89(1) unless it is satisfied that -

(a) In the case of a request under section 89(1)(a) the person -

(i) could not reasonably be expected to have been aware of the application for the permit in time to lodge an objection under Division 1;

1. Mr Lee's agents were directly informed of the proposed development on 12 September 2007. I therefore find that it was reasonable to expect Mr Lee to have been aware of the application of the permit in time to lodge an objection. The permit was not issued until 31 October 2007. There was therefore plenty of time between 12 September and 31 October to follow up on this advice and lodge an objection if Mr Lee was so minded. I find that it is reasonable where the owner of a rental property has an agent acting for him and the agent refuses to disclose the owner's contact details, to expect that the agent will communicate information given to the agent for the owner. I therefore find that Mr Lee was given effective notice of the application for the permit. Consequently I find that Mr Lee does not have standing under section 89(1)(a) because it cannot be said that he was not given notice of the permit application.

1. It was submitted by the council and the respondents that the external works for Unit 5 have been completed and the fit-out for the unit is currently being undertaken internally and is almost complete. The wall adjacent to Mr Lee's pergola has been constructed and, therefore, pursuant to section 88(a) of the Act, the Tribunal cannot exercise its power to amend the permit as the works in question have been completed for Unit 5.
2. I am not satisfied that this application is precluded by section 88(a). The permit allows development of five units. Unit 5 is only part of the development allowed by the permit and to which the endorsed plans relate. I consider that section 88(a) relates to the permit as a whole, not parts of the permit. There is no evidence that all the buildings allowed by the permit have been constructed. There is evidence in the form of the report by the building surveyor, Ken Weir, dated 15 August 2007, that Unit 5 is not completed. The fact that it may be completed in the near future is not relevant today.

1. The section 89(3) of the Act provides as follows:

The Tribunal may refuse to consider a request under this section or section 87 unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request.

1. I find that Mr Lee has not made his request as soon as practicable and on this basis also his request should be refused. He first became aware that the permit had been issued on 5 March 2007, yet he waited 3.5 months before lodging his request with the Tribunal. During that time he consented to protection work and allowed construction to commence and continue to the point where the unit he is particularly concerned about is almost complete without taking action. The onus was not on Mr Warner to refrain from acting upon the permit because he knew that Mr Lee was concerned about a particular aspect of the wall on the boundary. Mr Warner is entitled to act upon the permit unless the permit is cancelled or amended. The onus was on Mr Lee to take action and he failed to do so. In my view, it is now too late for him to make this request.

1. It is important that there be certainty about the status of planning permits and that once issued, they are able to be relied upon and acted upon. For this reason, they are not to be set aside lightly and the Act contains a number of hurdles that third party requestors in particular must overcome. In the present case, Mr Lee has not overcome those hurdles. He has not acted as soon as practicable after becoming aware of the permit and, in any event, he does not have the necessary standing under section 89(1)(a). For this reason his request will be refused.
2. An application for costs was made on behalf of the respondents/permit holders but I do not consider that there are good grounds to depart from the Tribunal's normal rule set out in section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 that parties to a proceeding bear their own costs.