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.

1. I do not consider that the reasoning of Deputy President Macnamara in Castik Investments Pty Ltd v Stonnington CC[13] should be taken as authority for the proposition that clause 62 of Schedule 1 is necessarily limited to overcoming 'technical' or 'procedural' non-compliances. Similarly, consideration of this and other cases relied upon by Mr Appudurai does not change my view that I should follow the decision of Deputy President Gibson in Waraglen.
2. The failure to comply with section 69(1) of the Planning and Environment Act 1987 is a failure to comply with a planning enactment. I agree with the reasoning and finding of Deputy President Gibson in Waraglen, that a permit does not irrevocably expire after the three month grace period.[14] It follows that the potential exercise of the Tribunal's power under Clause 62 of Schedule 1 would not be futile.
3. I conclude that I have jurisdiction to disregard the fact that the request to extend the permit was made outside the three month 'grace period'. Arguably the more pertinent question is whether I should exercise my discretion to disregard this non-compliance. This hinges on whether it is in the interests of justice to do so.

Would it be in the interests of justice to disregard the failure to apply for an extension of time within three months of the expiry of the permit?

1. The Harveys did not contest the fact that it may be in the interests of justice to disregard this failure. Rather, they submitted more generally that the permit holders did not act to maintain or preserve their rights under the permit while it was still current.
2. In Waraglen Developments Pty Ltd v Maroondah CC[15] I considered a number of factors that might bear on the Tribunal's exercise of its discretion. On the current facts, the most relevant matters are:
   • With the benefit of hindsight and relevant facts, I consider it most likely that amended plans were never endorsed and that the permit consequently expired on 26 February 2008. Nevertheless, I consider that the applicants can show an acceptable reason for the delay namely, what I consider to be a reasonably held belief that plans had been endorsed under the permit.[16] Had this been true, the permit would have expired on 26 February 2010 with the request for an extension made on 7 June 2010, less than one month after the three month grace period. While Mr Mustaers may have read the planning permit, I accept that due to intervening events he did not appreciate that the permit had expired[17];
   • While a number of years have elapsed since the permit had expired, approximately 14 months of this time was tied up with the responsible authority's processing of the application to amend the permit and the review proceedings that followed. Therefore, the permit holders had not 'sat on their hands' but were actively pursuing an amended permit throughout;
   • I consider that it is fair and equitable to disregard the failure. In this regard I note that the applicants acted almost immediately when the expiry of the permit was discovered during the hearing of related proceedings. The permit holders were also directly influenced by actions/representations by the responsible authority indicating that the permit was still current - on one occasion they were advised that they could apply to amend the permit and also the responsible authority subsequently approved (or attempted to approve) two separate amendments to the permit;
   • Although the Harveys claim that they may be prejudiced in the two related proceedings, for the reasons detailed below I do not believe that such prejudice would in fact eventuate or that it would be a persuasive factor against the grant of an extension;
   • One factor tilting the balance in favour of the extension is that it would be open to the permit applicant to lodge a new application for the same development contingent on the proposed removal of the dwelling on the property next door (in common ownership). This would involve potentially unnecessary delay and expenditure;
   • Since this is a first extension of time, the extension of time is sought to enable the completion of the development and an acceptable reason has been given for the delay, it is unlikely that there would be any impact on established practices of the Tribunal in similar cases;
   • To my mind, the merits of the substantial application weigh in favour of the grant of an extension of time. This is elaborated on below;
   • The grant of an extension of time would facilitate the Tribunal's consideration of the most appropriate planning outcome for the subject land and adjoining properties on the merits in the related proceedings before it; and
   • Mr Mutsaers gave sworn evidence that he intends to complete the approved development if an extension is granted, although the timing may be influenced by availability of finance.
3. Balancing these and other relevant matters, I conclude that it is in the interests of justice for me to disregard the permit holders' failure to request an extension of time within three months of the expiry of the permit.

Should the permit be extended having regard to the planning merits?

1. The factors outlined in Kantor v Murrindindi SC[18] are routinely accepted as a guide to the exercise of the Tribunal's discretion and I have considered and applied them below. From the outset, I observe that no party suggested that there had been a change in the planning controls, planning policy or any relevant physical change within the immediate area since the grant of the permit.
2. I have already addressed the reasons advanced for the delay above, and consider them to be generally sufficient. The Harveys submitted that total elapse of time should be a definitive reason why an extension of time should be refused. I disagree. Certainly the length of time after its expiry is a relevant matter and may prove to be determinative in some applications. However, what is equally relevant is the permit holders' action under the permit and subsequently. This is where the chain of events described above is enlivened.
3. There is also no suggestion that Mr and Mrs Mustaers are intending to warehouse the permit. To the contrary, the principal works approved by the permit have been completed and they are currently occupying the completed new dwelling. In these circumstances, I agree with Mr Tobin that there is no planning benefit to be gained through either preventing the completion of the development or requiring that fresh or additional planning permission is required for these works.
4. An important consideration is that the request is sought to enable the completion of development, rather than its commencement. In these circumstances the Tribunal has commonly been more disposed to grant an extension of time where substantial works have already been carried out under the permit.
5. At the same time, I accept that the original time limit for the development was most likely to have been adequate. However, on balance, I do not regard this as determinative against the request. One additional factor is that the permit as originally framed would have allowed the development to have been completed by mid 2009. It was only upon the amendment of the permit to include the tennis court and swimming pool that the expiry of the permit became more constrained.
6. If a fresh application were to be made, there is every likelihood that a permit would be granted. The only 'live' question would be whether the front dwelling or the existing dwelling on the adjoining property would need to be removed (contingent on the potential success of the application for subdivision as currently on foot).
7. The Harveys urged on me that an extension of time would undermine their position in the two related proceedings. To my mind, this is far from a logical conclusion. Although I am not convinced that this is a relevant consideration in the application before me, I make a few brief observations.
8. The related proceedings will involve the determination of whether a planning permit for the re-subdivision of the land owned by the applicants is appropriate and also whether the permit should be amended to require the removal of a house on the adjoining land in the same ownership, rather than the house currently on the same lot as the new dwelling. An extension of the date for expiry of the dwelling permit would not detract from the rights the parties would have in these other proceedings. It would simply facilitate a fulsome exploration of the planning merits of the proposal.
9. Even in the absence of a decision directing the extension of the permit, it may still have been possible to amend the contested condition of the planning permit. However, I am not required to make any findings on this legal issue.
10. Balancing the factors set out above[19], I conclude that it is appropriate to grant an extension of time for the completion of development under the permit and that a two year period would be appropriate.

1. Having determined to grant an extension of the planning permit, I consider that it would now be appropriate to re-list the two related proceedings for hearing before me. At that hearing, I would be able to consider submissions as to any points of law that may arise in relation to the proposed amendment of the permit in addition to the merits of the two proceedings. It seems likely that a minimum of one day will need to be set aside.
2. Since these matters have already been listed for administrative mention on 30 July 2010 I am content to wait for the parties to advise whether they are comfortable with this proposed course of action, or whether some other course might be preferable.

1. [1] The permit was varied to include permission to construct a tennis court and swimming pool and a new expiry date was provided for the permit, such that it would expire if plans for these works were not endorsed within 12 months of the issue of the amended permit.

[2] This was listed as a question of law, to be determined at a later date. The parties agreed to the adjournment of that hearing pending this determination.

[3] Reasons for making an order for joinder were given orally at the hearing and will not be repeated here.

[5] Mr Mutsaers gave sworn evidence that he assumed this had been attended to. His representative had originally submitted amended plans for endorsement and was told that minor matters needed attending to before they would be endorsed.

[6] The contested condition that requires the removal of the front (original weatherboard) dwelling.

[7] Including people seeking refuge and accommodation after the bushfires.

[8] Within a week of being advised by the responsible authority.

[9] (Red Dot) [2008] VCAT 1608, a decision of Deputy President Gibson.

[10] Including myself, for example in Waraglen Developments Pty Ltd v Maroondah CC [2008] VCAT 2582

[11] Deputy President Gibson in Burleigh v Frankston CC [2007] VCAT 1414 held that a responsible authority has power to make a decision on a request made out of time, but that it does not have the power to extend the time of the permit.

[12] Relative to section 69(1) of the Planning and Environment Act 1987.

[15] [2008] VCAT 2582.

[16] An additional piece of evidence that supports this finding is that Mr Mutsaers advised that he was sent accounts from this town planner following his instruction to submit the final plans for endorsement.

[17] He was only informed of this possibility immediately prior to the hearing of the related proceedings

[18] [1997] 18 AATR 285.

[19] In addition to other relevant but less pertinent matters.