[2005] VCAT 2082

1 The application is struck out on the grounds that it was lodged prematurely.

1 Application P2147/2005 is for review of the failure by the responsible authority to grant a permit for construction of an additional dwelling on the subject land. The purpose of the directions hearing is to consider whether the application was lodged prematurely, i.e. before the elapse of 60 prescribed days. The dispute between the applicant and the responsible authority turns on whether further information was required by the responsible authority within 28 days of when the permit application was lodged.

2 According to the responsible authority, the letter requesting further information was dated and sent on 8 June 2005. However, according to the applicant it was not received until 16 June2005. The question is whether the further information was required on the date of the council's letter or the date upon which it was said to have been received.

3 Section 54 of the Planning and Environment Act 1987 sets out the provisions regarding more information. Important consequences attach to a requirement for more information. If the information is not provided by the date specified in the notice, the permit application will lapse.[1] If a requirement for more information is made within the prescribed time of 28 days, the clock stops for the purpose of calculating the prescribed time for lodging an application for review in respect of failure under section 79.[2] If a requirement for more information is made after the prescribed time of 28 days, that requirement does not affect the time after which an application for review may be made under section 79.[3] It is therefore very important that the day on which more information is required can be ascertained with certainty.

4 The relevant provisions of section 54 are as follows:

(1) A responsible authority may require the applicant to provide it or a referral authority with more information before it deals with the application.

(1A) A requirement under sub-section (1) must be made by giving notice in writing setting out the information to be provided.

5 Section 54(1A) is a new provision inserted as part of the recent amendments to the Planning and Environment Act 1987 relating, in part, to the lapse of permit applications if more information is not provided within a specified time. In my view, section 54(1A) acknowledges the importance that will attach to a requirement for more information by requiring that the notice must be in writing. Importantly, it provides that the requirement for more information must be made by giving notice in writing setting out the information. It is therefore the making of the requirement that is significant. Consequently, it is the date upon which the requirement is made that is relevant, not the date upon which the notice is received. Too much uncertainty would arise if the latter was the case.

6 This potential for uncertainty is highlighted by the facts of the present case. In asserting that the requirement for more information was not received until 16 June 2005, the applicant could not point to a date stamp on the letter as to when it was received, but rather relied upon the fact that there were no references in his diary to having dealt with the notice until 16 June. The Tribunal was told that it was the applicant's practice to deal with such notices the day they were received and to diary all action, and the lack of any reference in the diary until 16 June was evidence that the notice was not received until that date. My interpretation of the statutory provisions in this case means that it is not necessary to rely upon such nebulous evidence to resolve the conflict between the applicant and the responsible authority but I would be reluctant to do so in any event because I consider the evidence to be too uncertain.

7 I therefore find that for the purposes of ascertaining the date from which the prescribed time in regulation 31(2) of the Planning and Environment Act Regulations 2005 must be calculated for the purpose of an application for review under section 79 of the Act, it is the date upon which the requirement for more information is made that is relevant, and that will be the date of the written notice of the requirement which is given under section 54(1A).

8 Applying that finding to the facts of the matter before me, I find that the date upon which the requirement for more information was made was 8 June 2005. That was within the 28 day period and hence the clock stopped until the information was provided on 30 June 2005. As the application for review was lodged with VCAT on 18 August 2005, only 49 days have elapsed. Accordingly I find that the application was lodged prematurely and I will strike it out on this ground. I note that the responsible authority will by now have made a decision to refuse the permit application; therefore it will be open to the applicant to lodge a further application for review, this time under section 77 against refusal.

[1] See sections 54(1B) and 54B

[2] See regulation 31(2) Planning and Environment Act Regulations 2005

[3] Section 54(2) Planning and Environment Act 1987