[2005] VCAT 2088

1 The application by the responsible authority to strike out the application for review on the grounds that it is premature is refused.

Mr Paul Little, senior planner, of Connell Wagner Pty Ltd

1 By way of context, this matter involved an appeal under section 79 of the Planning and Environment Act 1987 in respect of the failure by the responsible authority to decide to grant a permit for use and development of a 7 storey building for the purposes of shops and 54 dwellings and to reduce the standard car parking requirement. However the purpose of the directions hearing before me on 2 September 2005 was to consider an application by the responsible authority to strike out the application on the grounds that it has been lodged prematurely. The council says that the applicant amended the permit application before notice and the effect of this is to reset the clock for calculating the prescribed time in respect of section 79 to zero. Therefore, rather than 139 days having elapsed before the application for review was lodged, only 20 days have elapsed.

2 I have concluded that the applicant did not amend the permit application and therefore the application for review is within time. However, the matter raises, possibly for the first time, the interpretation of recent amendments to the Planning and Environment Act 1987 to implement the Government's Better Decisions Faster programme. The specific provision is section 50 of the Act, which relates to an amendment to a permit application at the request of an applicant before notice.[1] Section 50 provides a legislative framework to enable an applicant to request the responsible authority to amend a permit application before the giving of notice. This case involves the implications for an applicant who makes an amendment to a permit application in terms of the consequences for lodging a review against failure pursuant to section 79 of the Act. These implications are set out in section 50(7) where it states:

50. Amendment to application at request of applicant before notice

(7) On the amendment of an application under this section, the amended application is to be taken -

(a) to be the application for the purposes of this Act; and

(b) to have been received on the day that the request for amendment was received by the responsible authority.

3 It is sub-paragraph (b) that has consequences in the present case. Section 50(7)(b) effectively states that the planning permit application is taken to be received on the day that the amendment to the application is made. For the purpose of calculating the prescribed time for lodging an application for review under section 79,[2] lodging an amendment to the application resets the clock to zero days no matter how many days have previously elapsed.

4 Application P2107/2005 is made under section 79 of the Planning and Environment Act 1987. The permit application was lodged with the responsible authority on 30 March 2005. The applicant for permit is not the owner of the subject land. The permit application included a declaration by the applicant that the applicant had notified the owner about the application as required by section 48(1)(b) of the Act.

5 The responsible authority required more information pursuant to section 54 of the Act but the requirement was made after the prescribed time of 28 days. This meant that the clock did not stop for the purpose of calculating prescribed time for the purposes of section 79 of the Act.[3]

6 Some, but not all, of the further information was provided by the applicant. This included revised plans for the development, which were prepared in response to issues raised by the responsible authority. The revised plans were submitted on 27 July 2005. The letter submitted with the plans did not specifically ask the responsible authority to amend the application nor did it include a declaration by the applicant that the applicant had notified the owner about a request to amend the application as required by section 50(3)(c) of the Act.

7 On 9 August 2005 the responsible authority wrote to the applicant seeking the further information that had not been provided and requesting the applicant to sign a declaration as required by section 50(3)(c) of the Act. The council's letter clearly treats the amended plans which had been lodged on 27 July 2005 as an amendment to the permit application under section 50 of the Act. The declaration form required by section 50(3)(c) was not completed by the applicant. By letter dated 12August 2005 the applicant responded to the council addressing issues relating to the further information requested and stating with respect to the declaration as follows:

We note your reference to Section 50(3)(c) of the Planning and Environment Act and attached applicant's declaration to amend the application from the material originally lodged with Council. If we were to agree to amend the application we would be facing a further 60 days of Council deliberation with no substantial processing of this significant development proposal.

Having determined that such a declaration would re-start the statutory time frame within which Council must decide the application we conclude that our only option to have the application determined is to appeal to VCAT pursuant to Section 79 of the Planning and Environment Act.

8 The application for review was lodged with the Tribunal on 16 August 2005. The responsible authority submits that the application is premature and should be struck out. It contends that when the amended plans were lodged, this constituted an amendment to the permit application. By virtue of section 50(7) the amended application is to be taken as the application for the purposes of this Act and to have been received on the day that the request for amendment was received by the responsible authority, namely 27 July 2005. Therefore, for the purpose of calculating the prescribed time for failure applications in accordance with regulation 31(2)(a) of the Planning and Environment Regulations 2005, prescribed time for the purposes of section 79 of the Act begins to run from the day on which the responsible authority received the application, which in the case of an amended application is the day that the request for amendment was received by the responsible authority. This was 27 July 2005 and consequently, according to the responsible authority, only 20 prescribed days elapsed between this time and the time the application for review was lodged at Victorian Civil and Administrative Tribunal.

9 The table set out below illustrates the different positions of the responsible authority and the applicant and highlights the dramatic impact on review rights that an amendment to a permit application under section 50 of the Act may have.

Table for calculating elapsed time

Further information requested within 28 days (if applicable)

Further information requested after 28 days (if applicable)

Further information provided including amended plans

10 The following issues are relevant in deciding this matter:

•

What constitutes a permit application or amendment to an application?

•

When is an application for permit or request to amend an application received for the purpose of starting the clock in calculating the prescribed number of days?[4]

•

What provisions of the Act are mandatory in terms of deciding whether an application for permit or request to amend an application is complete?

•

Can an incomplete application or request to amend an application trigger the statutory clock?

•

Was the submission of amended plans intended to constitute an amendment of the permit application?

•

If not, can an applicant make an inadvertent amendment to an application thereby resetting the statutory clock and losing the benefit of any prescribed number of days already elapsed for the purposes of section 79?

What constitutes a permit application or amendment and when is it received?

11 The day on which a responsible authority receives an application is relevant under several provisions of the Act. It is from this date that time is calculated for the purpose of requiring more information under section 54 and for the purpose of a review under section 79. It is therefore important that there is certainty about the day on which a permit application is received and equally the day on which an amendment to an application is received.

12 Section 47 of the Act deals with applications for permits and sets out what must accompany an application. Section 47(1)(a) states that an application must be made in accordance with the regulations and regulation 15 of the Planning and Environment Act Regulations 2005 sets out what an application must contain.[5] Section 48(1) requires an application for permit to be signed by the owner of the land or include a declaration by the applicant that the applicant has notified the owner about the application if the application is not the owner.

13 I interpret these provisions to mean that the actual application for permit is the application form that contains the information set out in regulation 15 and that is signed by the owner or contains a declaration as required by section 48(1) (if relevant). The application must be accompanied by the prescribed fee and other information set out in section 47 but the fee and the information do not constitute the application itself. Therefore it is the date upon which a completed application form is lodged containing all the information required by regulation 15 and which meets the requirements of section 48(1) (if relevant) that is the date upon which the application for permit is received.

14 If the permit application is not accompanied by all the accompanying information required by the rest of section 47, this does not mean that an application has not been received, although it may mean that the application is not complete and cannot be determined until the information is provided.[6] In fact, it is common practice for responsible authorities to include a requirement for any missing accompanying information as part of a requirement for more information under section 54.

15 There are now detailed provisions in the Act providing that if a requirement for more information is not fully complied with by a specified lapse date, the permit application will lapse.[7] Section 78(b) enables a permit applicant to apply for a review of any requirement for more information.

16 Turning now to an amendment to an application for permit under section 50, section 50(1) places the onus upon the applicant to ask the responsible authority to amend an application. It provides:

(1) An applicant may ask the responsible authority to amend an application before notice of the application is first given under section 52.

17 The regulations do not specify what a request to amend an application must contain but Section 50(3) provides that:

(3)

A request under this section must -

(a)

be accompanied by the prescribed fee (if any); and

(b)

be accompanied by any information or document referred to in section 47(1)(c) to 47(1)(e) that relates to the proposed amendment to the application and that was not provided with the original application; and

(c)

if the applicant is not the owner of the land to which the application applies, be signed by the owner or include a declaration by the applicant, that the applicant has notified the owner about the request.

18 I find that there is no specified form that a request must take - it must simply be an unambiguous request in writing by the applicant for the responsible authority to amend the permit application. The only mandatory requirement in section 50 in terms of what the request must contain is the requirement in section 50(3)(c) that if the applicant is not the owner, the request must be signed by the owner or a declaration must be made that the applicant has notified the owner about the request. That the request must be in writing (as distinct from verbal) is implied by the provisions of section 50(3)(c) requiring a signature or declaration. The date on which such a request in writing is received by the responsible authority is the day on which the amended application will be taken to have been received by the responsible authority for the purpose of section 50(7).

19 The requirements of section 50(3)(a) and (b) that the request be accompanied by the prescribed fee (if any)[8] and the information referred to in section 47(1)(c) to 47(1)(e) so far as it relates to the proposed amendment, are in the same category as similar requirements in respect of permit applications referred to above. If they are not provided, the responsible authority may refuse to consider the amended application, but this does not affect the making of the request or the fact that a request has been received.

20 I have drawn a distinction between the actual application for permit or request to amend a permit application and the information and fee that must accompany the application or request for amendment. This distinction is based on the wording of the Act and regulations, and is necessary for the purpose of calculating when time begins to run for various purposes under the Act. However, that does not mean that payment of the fee and provision of the information required by section 47 or section 50(3)(b) are not mandatory before an application or amended application can be considered and their absence may not affect the validity of the application or amended application.

21 What are the implications of incomplete information accompanying an application or a request to amend an application? In Najarian v Minister for Immigration and Multicultural Affairs[9] the Federal Court of Australia held that an incomplete form can become a valid application when the omitted information is supplied.[10] In reaching this conclusion in Najarian, Merkel J agreed with the views and conclusion expressed by Hill J in Nader v Minister for Immigration and Multicultural Affairs[11] where His Honour said:

[56] In my view, there was a valid application, not when the Application Form in its incomplete state was submitted, but once the information foreshadowed in the incomplete form was provided to the Minister. While it is clear, in accordance with the existing case law, that the information supplied could not operate retrospectively to validate the invalid application, it operated to complete the inchoate application and produce then, for the first time, a valid application. Thus Mr Nader had made a valid application for a protection visa to be granted to him and had done so before the application was considered by the Minister.

22 In the planning jurisdiction of the Victorian Civil and Administrative Tribunal there are various legislative provisions that enable the Tribunal to disregard non-compliance with technical or procedural requirements and enable it to deal with the substantial merits of the case so long as it acts fairly.[12] Thus clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act enables the Tribunal to disregard failures to comply with requirements. It provides:

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

23 In Castik Investments Pty Ltd v Stonnington City Council[13] Deputy President Macnamara considered the application of clause 62 of schedule 1 to failures to comply with mandatory provisions of the Planning and Environment Act relating to material that must be submitted with permit applications. Under section 4(2)(b) of the Victorian Civil and Administrative Tribunal Act, a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision maker. Likewise under section 4(2)(d), a failure by a decision maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision maker to refuse to make the decision. On this basis, Deputy President Macnamara held that:

[34] ...Accordingly, even if there was no valid application before the Council that does not mean that there is not a valid application before the Tribunal. If that is so, on the face of it, clause 62 is applicable....

[35] There is nothing in the text of Clause 62 which would restrict its operation to those failures in compliance falling short of rendering the relevant permit application a nullity. It is unnecessary to determine whether this application to the Responsible Authority was a nullity. The power under Clause 62 appears on its face wide enough to be exercisable in relation to null applications to Council as well as the merely irregular - if the interests of justice so require.

24 Therefore, I conclude that an incomplete application or request to amend an application, which is incomplete in terms of lacking all the information and material required to accompany it, can nevertheless trigger the statutory clock provided the form of the actual application or request for amendment is itself complete and meets the requirements set out above. This conclusion is consistent with Justice Hill's emphasis in the Nader case on the need for a complete "Application Form" as opposed to broader accompanying materials.

Was there a request to amend the permit application?

25 In the present case, there was no unambiguous request by the applicant to the responsible authority to amend the application. The applicant submitted amended plans but they were not accompanied by a clear request to amend the permit application. Furthermore, the applicant's refusal to submit a declaration that the owner had been notified as required by section 50(3)(c) is further evidence that there was no request to amend the permit application within the meaning of section 50. I have previously concluded that to be a proper request, the request must be in writing and must be signed by the owner or include a declaration by the applicant that the applicant has notified the owner about the request. Those requirements were not met in this case and hence there was no request to amend the permit application within the meaning of section 50.[14]

26 It is not open to the responsible authority to treat something as a request to amend an application unless it is quite clear that this is what it purports to be. Thus, simply submitting amended plans is not of itself sufficient to constitute a request under this section unless the request complies with section 50(3)(c) and is clearly intended to be a request to the responsible authority to amend the permit application.

27 Therefore, an applicant cannot make an inadvertent amendment to an application thereby resetting the statutory clock and losing the benefit of any prescribed number of days for the purposes of section 79.

28 This conclusion is strengthened by reference to the provisions of section 50A, which deal with an amendment to a permit application by the responsible authority. Section 50A(1) provides that with the agreement of the applicant and after giving notice to the owner, the responsible authority may make any amendments to an application that it thinks necessary before notice of the application is first given under section 52. The agreement of the applicant is a necessary prerequisite to the responsible authority exercising its powers under this provision. It is therefore axiomatic that an applicant must knowingly have consented to any request to amend an application for permit under section 50.

29 If a permit application is amended, the amended application becomes the application under the Act and the effect of section 50(7) of the Act is to restart the statutory clock upon receipt of the amended application.[15] This means not only resetting the statutory clock for the purpose of section 79 of the Act but it also enables further information to be requested under section 54, which may result in the amended application lapsing if the further information is not provided in accordance with the Act.

30 Whilst the intent of these provisions may well be to provide responsible authorities with more time to consider amended permit applications, it remains to be seen whether many permit applicants will take advantage of the opportunity to amend their applications in light of the potential delays that doing so may entail to decisions and their review rights under section 79.

31 My conclusion is that the applicant did not amend the permit application and therefore the application for review in respect of the failure by the responsible authority to decide to grant a permit on the basis of the original permit application was not lodged prematurely.

[1] Section 50A of the Act relates to amendment of application by responsible authority before notice and the reasoning in this case is applicable to this situation as well.

[2] The prescribed time is 60 days calculated in accordance with regulation 31 of the Planning and Environment Act Regulations 2005.

[3] See section 54(2) of the Planning and Environment Act 1987

[4] In the present case the prescribed number of days relates to the time required to elapse before an application for review can be made under section 79 of the Planning and Environment Act 1987. However, the same issue may be relevant for other purposes under the Act; for example, requiring more information under section 54 and for the various procedures relating to applications for amendment to permits under Part 4 Division 1A of the Act.

[5] There is no prescribed form although there is a form prepared by Department of Sustainability and Environment that is commonly used.

[6] The same applies to payment of the prescribed fee, although in practice a responsible authority is unlikely to accept an application for permit unless it is accompanied by the fee.

[7] See sections 54, 54A and 54B, which include provisions to extend the lapse date and apply to the Tribunal for review the failure or refusal by a responsible authority to extend the lapse date.

[8] There is no prescribed fee for an amendment to a permit application.

[9] [2000] FCA 933

[10] See [2000] FCA 933 at [35] - [36]

[11] [2000] FCA 908

[12] See sections 97 and 98 Victorian Civil and Administrative Tribunal Act 1998

[13] [1999] VCAT 190 (1999) 3 VPR 46

[14] In the application for review now before the Tribunal the applicant wants the original permit application to be considered. It will be an interesting question as to what should happen in the event that the applicant subsequently requests the Tribunal to amend the plans accompanying the permit application in line with the amended plans submitted to the responsible authority on 27 July 2005. However, that is not a decision that is currently before me.

[15] Similar effects occur as a result of section 50A(5) in relation to amendments made by a responsible authority.