1. In relation to declaration application P3535/2011 I declare that planning permit 711169 issued by the responsible authority on 8 July 2011 has not expired.
2. In relation to the extension of time for completion of development pursuant to s 81(a) of the Planning and Environment Act 1987 sought in proceeding P3534/2011, such time for completion is extended to 8 July 2016.
3. In relation to request proceeding P220/2012 the said permit is amended to substitute the numeral "19" for the numeral "26" in the words permission and condition 5 is to be amended to add the following words after the words "responsible authority", that is to say

"save that there are to be 19 premises (not 26) in accordance with amendment request to the Victorian and Civil Administrative Tribunal P220/2012 and the plans associated therewith"

Mr Andrew Walker, barrister, appeared on the instructions of Best Hooper, solicitors. He presented written and oral submissions and called three(3) witnesses. They were Arthur Papageorgiou, Nigel Robert Jenkins, architect and Paul Peter Ferla. Each witness gave sworn evidence and adopted an affidavit.

Mr B McIlraith, solicitor, of Maddocks, solicitors. He presented written and oral submissions, including a file of documents and called Darren Wayne Jackson, an officer of the responsible authority, as a witness. Mr Jackson gave sworn evidence, adopting an affidavit. Both representatives presented two separate written submissions.

Application under s 81(a) of the Planning and Environment Act 1987 (PE Act) for review of a decision of the responsible authority refusing to extend the time for commencement and development.

Application under s 149A of the PE Act for a declaration.

Request under s 87A of the PE Act for amendment of a permit.

Extension of time for the commencement and completion of development of 26 warehouses with signage allowed by Planning Permit 711163 issued by the responsible authority on 8 July 2009 at the direction of the Victorian Civil and Administrative Tribunal in its determination of planning review of NBH Business Park Pty Ltd v Whittlesea CC [2009] VCAT 1285

Amendment of the said permit to specify 19 warehouses rather than 26.

Industrial 1 Zone and Urban Floodway Zone and subject to a Public Acquisition Overlay (Schedule 2) under the Whittlesea Planning Scheme.

Lot 1 on Title Plan 515057L being the land in Certificate of Title Volume 8777 Folio 604

An irregularly shaped piece of land known as 182 Greenhills Road, Thomastown which lacks a frontage to that thoroughfare and has access via an easement through 64-68 Longview Court, Thomastown and having an area of 2.6 hectares.

NBH Business Park Pty Ltd v Whittlesea CC [2009] VCAT 1285

NBH Business Park Pty Ltd v Whittlesea CC [2007] VCAT 1681

Lyndale & Black Pty Ltd v Melbourne & Metropolitan Board of Works (1983) 1 PABR 207

Green v Kogarah N C [2001] NSWCA 123; (2001) 115 LGERA 231

Irongates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132

Petheridge v Secretary of State for the Environment (1984) 48

Whitley and Sons v Secretary of State for Wales and Clyde County Council 64 P. & C. R. 296

Egmond v Knox CC (1985) 7 PABR 249

Thayler v Secretary of State for the Environment [1991] 3 PLR 105

Planning and Environment Act 1987 section 81(a)

Planning and Environment Act 1987 section 68

Town and Country Planning Act 1961 sections 18(5) and (6)

Town and Country Planning Act 1971 (UK) section 43

1. Each of these proceedings concerns planning permit number 711163 issued by the responsible authority on 8 July 2009. That permit allows "use and development of 26 industrial buildings (warehouses) and associated signage in accordance with the endorsed plans". The permit contains 33 conditions.
2. The second proceeding[1] is an application for a declaration that the permit has not expired. The issue is whether it has expired on the basis that the development was not commenced within the time specified for commencement. Condition 33 specified 2 years for commencement.
3. If this second proceeding is successful, and a declaration is made that the permit has not expired, then the first[2] will become redundant or at least partly so. The first proceeding is an application under s 81(a) of the Planning and Environment Act 1987 (PE Act) for an extension of time for such commencement. The third proceeding[3] is only relevant if one or both of the preceding ones are successful. It seeks an amendment to the permit.
4. The permit was issued by the responsible authority at the direction of this Tribunal in its determination on planning application for review NBH Business Park Pty Ltd v Whittlesea CC[4]. That Tribunal case might have more conveniently been named NBH Business Park Pty Ltd v Whittlesea CC (No 2) because it was the second such case between NBH Business Park Pty Ltd (the company) and the responsible authority concerning similar proposals for this piece of land. The earlier case was NBH Business Park Pty Ltd v Whittlesea CC[5]. I took no part in either of those earlier cases.

1. The first one was heard on 13 September 2007 with a written determination dated 17 September 2007. In that case a permit was refused by the responsible authority and that decision was affirmed by the Tribunal.
2. In that earlier case, the Tribunal did not altogether reject the idea of such a development on the land. It is a somewhat difficult and complicated piece of land. The Tribunal, in its reasons, set out its concerns in relation to that original proposal.

1. That earlier decision contains a useful description of the land and its situation in [2] to [7] of the reasons. I am indebted to the member who heard that case for that description which I now set out:

"[2] The subject land is irregularly shaped and has an area of approximately 2.6 hectares. It is located to the east of Longview Court in Thomastown. It has no vehicular access to Greenhills Road. Vehicular access is available from a carriageway easement affecting the property at 64 - 68 Longview Court.

[3] The land falls from west to east at a gradient of approximately 1:27. It is currently vacant. A bicycle and walking path forming part of the Darebin Creek trail network bisects the northeast corner of the land. A 2.4 metre wide drainage and sewerage easement is located within the eastern part of the land. At its closest point the Darebin Creek watercourse is 15.0 metres from the northeast corner of the subject land.

[4] The land to the north and east of the subject land is owned by VicRoads and is mostly surplus undeveloped land forming part of a reserve and buffer for the Metropolitan Ring Road, which is located approximately 112 metres to the north. Approximately one hectare of the subject land is affected by a Public Acquisition Overlay, which reserves land for the proposed E-6 arterial interchange with the Metropolitan Ring Road. This part of the land is not proposed to be developed or used in any way as part of the proposal before me.

[5] Abutting the land to the south is the Melbourne Water pipetrack reservation, shown on the plans as the former Maroondah Aqueduct Reservation. It is intended that this reservation will be developed in the future as a regional shared trail extending to Healesville. This width of the reservation varies between, approximately, 20 and 25 metres. Abutting the south side of the pipetrack reservation are the rear yards of dwellings facing Greenhills Road and located in the Residential 1 Zone.

[6] The section of the pipetrack reservation to the west of the subject land is abutted to the north by a developed industrial precinct. On the south side of this estate buildings are constructed to the boundary of the pipetrack reservation and present as a relatively unbroken "wall" of built form.

[7] The subject land is in the Industrial 1 Zone. The northeast corner is in the Urban Floodway Zone. It is also affected by a Development Contributions Plan Overlay and in part by a Public Acquisition Overlay and a Land Subject to Inundation Overlay."

1. The proposal considered in that first tribunal case was for 24 warehouse tenancies in several different buildings.

1. The second case, when the current permit was granted, was heard by the Tribunal on 16 June 2009 with a written determination having been dated 8 July 2009. This second case was heard by a different member of the Tribunal[6]. Attention concentrated on the aspects that had been previously identified as unsatisfactory. The new proposal attended to those concerns and the Tribunal, in 2009, concluded that the new proposal for 26 warehouses was satisfactory. The Tribunal granted the permit and directed its issue subject to conditions.

Time for commencement limited to 2 years from date of permit

1. It appears to me, from reading the reasons, that the issues in the case concerned amenity aspects and whether permission should be granted. It does not appear that there was controversy about the conditions. Rather it appears that a set of "standard" conditions was accepted and wholly or substantially adopted without critical consideration.
2. In the case now before me, reference is made to some of those conditions. In particular, condition 33 appears under a side heading reading "Expiry of Permit". That condition reads:

[33] The permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the date of this permit.

(b) The development is not completed within four years of the date of this permit.

(c) The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months thereafter.

1. Section 68 of the PE Act also deals with the setting of time limits for commencement and completion of developments and the commencement of uses of land in relation to planning permits and the expiry of permits if those time limits are not observed. More detailed discussion of that section and condition 33 can be anticipated later in these reasons.

Responsible Authority maintains the permit has expired

1. There is controversy in the present case as to whether the permit has expired. The responsible authority maintains that the permit has expired because, it contends, that the development was not commenced within the two year period specified in condition 33(a). The permit having been issued on 8 July 2009, the two years would expire on 8 July 2011. The question arises as to whether the actions taken pursuant to the permit amount to commencement of the development on or prior to, that date.
2. Although various actions were taken pursuant to the permit, the responsible authority denies that they amount to a commencement of the development. It advances a couple of arguments which seem to me to amount to a proposition that, even if there was commencement of development in fact, such commencement should be disregarded as commencement within time. This rather artificial proposition is based on a couple of arguments that will be dealt with later.

Permit conditions - time for commencement not an issue when permit granted

1. For present purposes I merely observe that, so far as my reading of the reasons in the second decision are concerned, it appears that the two year limit for commencement was imposed as a "standard condition" without attention being paid to whether the two years was reasonable or sufficient. Two years is commonly imposed as a standard time limit in relation to relatively simple and straightforward projects such as the construction of a house or perhaps two dwellings on an allotment. Two years can be quite inadequate in relation to a substantial and complex project that may involve many considerations, arrangements and permissions of which obtaining a valid planning permit would be but one.
2. Two years is the standard default time specified in s 68. That section imposes a time limit for commencement that applies in relation to a permit if it does not impose a time limit condition. This default operation means that all new permits now contain a commencement time limit imposed by either a condition or that section. Under the section the time is two years for all cases, large or small. A condition is needed for a case that demands a longer start or completion time.

Condition requiring thing to be done before development starts

1. Some of the other conditions have become relevant for present purposes. The second condition required the submission, approval and endorsement of amended plans. The condition contains a number of specifications and modifications to the application plans prior to approval. Plans have subsequently been prepared in accordance with condition 2 and submitted to the responsible authority which has approved and endorsed them. The words granting permission, quoted above, refer for the use and development to be "in accordance with the endorsed plans". These are the plans endorsed for that purpose that proves to be important. To 'use' permission was required.
2. Condition 2 requires approval of its plan before the development starts. That is sensible. Indeed it is important. It is the approval and endorsement of plans under condition 2 that defines the development being allowed by the permit. Prior to that definition it might be difficult to determine whether particular works were part of the approved development so that carrying them out would constitute a start on such development.
3. However, several other conditions require other things to be done where the condition specifies for them to be done before the development starts. In some instances it is not really necessary for them to be attended to at such an early stage. The purposes of the conditions, at least in some cases, might just as well have been required to accomplish at a later stage. It may be administratively convenient for the responsible authority to require them to be done before development starts, but sometimes such conditions make provision for a degree of flexibility. For example, a condition might require something to be done before development starts or at such later time as might be consented to by the responsible authority.
4. Condition 3 is an example. It requires a landscape plan before development starts.
5. Condition 4 requires the payment of a cash bond to secure the carrying out of that landscaping.
6. Condition 10 requires a design for stormwater drainage with the system. The works specified in the design are ultimately to be constructed prior to occupation of the development.
7. Conditions 4 and 10 nevertheless both specify compliance before development starts. Such early compliance is not really necessary.
8. Condition 27 is one required by Melbourne Water in relation to a site environmental management plan concerning subsidiary matters required prior to commencement of works.
9. Condition 30 looks for a plan showing provisions for access to land of the Roads Corporation "VicRoads" to the north of the company's land. Again condition 30 looks for these plans prior to the commencement of works.
10. These various conditions require several subsidiary things, which are not really necessary to be accomplished prior to the commencement of any development work. They are more inflexible than necessary in the circumstances.
11. There does not appear to have been any consideration or issues raised in the Tribunal case whereby the permit was granted in relation to these questions.
12. These conditions do, of course, appear in their present form. Being in that form, and without having been modified, it might be said that there would be a contravention of one or more of these conditions if work was commenced prior to those steps being taken. They might be contraventions that warrant enforcement or prosecution, but it does not seem to me to mean that a commencement that has in fact started ceases to be a commencement because one or more of such conditions was not previously complied with. That would be in the nature of a legal fiction.
13. I note that requiring various things to be done before the commencement of works loads up the catalogue of things to be accomplished before commencement, and thus loads up the things that must be accomplished within the specified two years for commencement. Such loading can create unnecessary inflexibility and may well mean a tight time limit is pushed over into becoming an insufficient, unreasonable or impossible time limit.
14. It can be noted that a permit containing conditions that cannot be achieved, or which requires things to be done within time limits that cannot be accomplished, is not really an effective planning permission at all but only a pretend one. It is a situation in which an extension of time might be reasonable, or indeed necessary.
15. I note too that some conditions required by other authorities duplicate requirements in relation to the responsible authority where they have been satisfied in relation to the responsible authority. It seems out of place for the responsible authority to now seek to rely on non-compliance before commencement in relation to a condition of another authority as the basis for saying that there has been no commencement, particularly when action did not need to be before commencement, and where that other authority is satisfied.

Proposed Rezoning by proposed planning scheme amendment C111

1. There is another aspect of the planning history of this land. I understand that the idea of establishing warehouses on this land dates back beyond the first (2007) Tribunal case and that such proposals go back to 2003. However, the responsible authority, as planning authority, has, for some time, entertained the idea of a site specific planning scheme amendment to rezone this land (together with a triangle of land to the north currently owned by the Roads Corporation) from its present zoning of Industrial 1 Zone into Residential 1 Zone.
2. I have not noticed reference to this rezoning idea in the reasons given in relation to the 2007 determination at the Tribunal. However there is some passing reference to it in the reasons relating to the 2009 Tribunal determination to grant the permit. The idea was known about at the time. It is referred to paragraphs [11] and [12] of the reasons in relation to that decision. The proposal for rezoning had, at that stage, already progressed so as to have an identifying number, namely "C111".
3. The 2009 case was a review under s 79 PE Act of the failure of the responsible authority to grant a permit within the prescribed time. However, the responsible authority determined to oppose the granting of a permit for the 26 warehouses on four grounds. It did not include reference to planning scheme amendments C111. In that respect the reasons of the Tribunal, commencing at [11], stated:

"[11] Since the earlier permit application referred to above_[7]_, Council has prepared amendment C111 to the Whittlesea Planning Scheme. The amendment seeks to include the land and the adjoining land to the north owned by VicRoads within the Residential 1 Zone.

[12] Amendment C111 is currently on public exhibition. Having regard to the amendments_[8]_ embryonic status Council did not rely on the amendment as a relevant consideration in this application".

1. Amendment C111 has progressed since. There has been a panel hearing, at which the company was not represented, although there was a written submission on behalf of the company before the panel. This may have been unfortunate from the point of view of the company, as it is the party most seriously concerned with a rezoning of its land. Although it does not make much difference at this stage, it has sought to explain its absence from the panel hearing on the basis of it not having received notice due to a change in its address.
2. The panel has made a report. It recommends in favour of the rezoning to Residential 1 Zone.
3. The council, as planning authority, has adopted this recommendation and submitted the proposed amendment to the Minister for approval. The relevant Department has raised some questions in relation to potentially contaminated land but otherwise the progress and outcome of the submission to the Minister for approval is not known. Nevertheless, I think it is appropriate to now regard this proposed amendment as a so-called "seriously entertained planning proposal" in terms of Lyndale & Black Pty Ltd v Melbourne & Metropolitan Board of Works[9]. As such it would be a relevant consideration, but not necessarily decisive, if a permit application for the currently existing permit was now under consideration. It is also relevant to the proceedings that are, in fact, currently before me.

1. There are three proceedings currently before me.

(i) An application by the company for a declaration pursuant to s 149A PE Act for a declaration that the permit has not expired. The determination of that question turns on whether the company started development prior to 8 July 2011, that being the date being 2 years from the date of the permit (specified in Condition 33 of the permit) on or by which, development must start, failing which the permit is to lapse.

(ii) An application by the company under s 81(a) of the PE Act for an extension of time for commencement and completion of works. This proceeding will be wholly relevant if it is found that the development did not commence on or by 8 July 2011. Condition 33 and s 68 PE Act make provision for an extension of such a time limit if application is made before expiry, or within 3 months thereafter. In this instance the company made such an application for extension within the time. However, even if there was commencement of development on or by 8 July 2011, this s 81(a) proceeding still has some relevance. It also seeks an extension of time for completion of the development. Condition 33(b) provides that the permit will expire if the development is not completed within four years of the date of the permit. The fourth anniversary of the permit will be 8 July 2013. That date is only about 12 months away. Although work actually commenced in mid 2011, it did not get very far before it was stopped by virtue of an order from the responsible authority. Work having not progressed very far 12 to 13 months would clearly be insufficient for its completion, at least in normal circumstances. The project involves the construction of several buildings along the elongated site. The company intended to start with two buildings at one end and then to develop the site progressively.

(iii) The third proceeding is a request by the company for an amendment to the existing permit. It is a very limited amendment that is being sought. It does not involve any external alterations to the proposed development. The proposal is simply to reduce the number of warehouse tenancies from 26 to 19 by consolidating several to create a smaller number of tenancies, some with greater areas than previously proposed. This would appear to have no impact, from a planning point of view, as compared with the permit in its unamended condition, save that it may, if anything, reduce traffic to the site.

1. The Tribunal, in granting the permit, intended that the company should have reasonable opportunity of acting upon it. It was not intended to be only an apparent, rather than a practical permission, that was granted. That means that the time for commencement had to be sufficient for what would be involved, including all preliminary steps. In accessing this the nature of the project has to be taken into consideration.
2. Although I do not have to decide the point for the purposes of this case, I am not persuaded that the two years was ever enough. Even if it was, in retrospect, and having regard to what occurred in fact, it appears as a very tight time limit.
3. I have mentioned that there is no indication in the reasons of the Tribunal that there was discussion as to the time limit that should be imposed in the particular case. In any event, it might reasonably been supposed that if the time proved too unduly "tight", the company could apply (as it has done) for an extension of time for the start of the development.
4. Such extensions are common enough. In fact, sometimes a series of extensions are granted in appropriate cases.
5. In relation to this permit an extension was refused by the responsible authority on the very first application. Since then it has taken a tight and technical attitude to the question of whether the permit has expired and to the question of whether an extension should be granted. It has put itself and the company to a good deal of trouble and expense over what I consider to have been a fairly simple question.
6. In the course of the hearing it was pointed out to me that I had, on occasions, noted that a responsible authority and/or the community might just be waiting and hoping for expiry of a permit so that it cannot be acted upon. This situation can arise where circumstances have changed so that the permit is no longer appropriate or where, for some reason, it is thought to be an inappropriate permission.
7. I do not disagree with what I have said on such occasions, but such an attitude presupposes that the permission was or has become, inappropriate and that it is not in the public interest that it should be acted upon.
8. In this case there is certainly a changed circumstance. Proposed planning amendment C111 has moved from an embryonic stage to become "seriously entertained planning proposal". If there was a new permit application today for this project, this would be a serious consideration against granting it. It can also be regarded as a consideration against extending the permit.
9. The responsible authority, as planning authority, seeks to rezone the land from Industrial 1 to Residential 1 zone. It decided, when the Tribunal was considering the grant of the permit that it could not rely on that point at that stage. It now seeks to do so.

1. Condition 33, quoted in paragraph 11 above, imposes the two year limit for the start of the development. At one stage such limits were not required but now s 68 PE Act imposes a limit if the permit conditions do not.
2. Section 68 appears in the PE Act under a heading reading, "When does a permit expire?" So far as relevant for present purposes, the section reads

"68(1) a permit for the development of land expires if -

(a) the development...does not start within the time specified in the permit; or

(b) the development...is not completed within the time specified in the permit, or, if no time is specified within two years of the issue of the permit...".

1. There are other provisions in s 68 in relation to "use" permits and permission for use and development of land but they are not relevant here. This case deals with a development permit.

1. The word development is defined by the purposes of the Act in s 3(1) in the following terms.

(a) the construction or exterior alteration or exterior decoration of a building, and

(b) the demolition or removal of a building or works; and

(c) the construction or carrying out of works; and

(d) the subdivision or consolidation of land, including buildings or airspace; and

(e) the placing or relocation of a building or works on land; and

(f) the construction or putting up for display of signs or hoardings.

1. It is to be noted that this is an inclusive, and not an exclusive definition. In other words, development means whatever that word would mean in its context on the basis of its ordinary English meaning as well as what is said in the s 3(1) definition. The purpose of the written definition is to promote clarity and thereby avoid avoidable disputes. The statutory definition may include things that go beyond the ordinary English meaning and may also contain specifications aimed at removing doubt.
2. The definition refers to both "building" and "works". Both those words are also defined in s 3(1). Again they are both "inclusive", and not "exclusive" definitions.
3. The word building is defined as follows

(a) a structural part of a building or a structure; and

(b) fences, walls, out-building, service installation and other appurtenances of a building; and

(c) a boat or a pontoon which is permanently moored or fixed to the land;"

1. Thus "building" means building as in ordinary English but including the above.
2. Likewise "works" is defined in s 3(1) as follows

"works includes any change to the natural or existing condition or topography of land including the removal, destruction, or lopping of trees and the removal of vegetation or topsoil."

1. The words of permission in the permit are quoted in paragraph 1 above. It refers to use and development of 26 industrial buildings (warehouse) with associated signage. In the absence of need for planning permission to use the land for warehouse it is only the development permission that is relevant. (Even if a use permission was involved, it would not alter the basis of my reasoning).
2. It is obvious that 26 industrial buildings include buildings. In fact, as I understand it, the plans do not disclose and were never intended to disclose 26 separate buildings, but rather 26 warehouse tenancies within a smaller number of buildings. However that petty distinction is beside the point.
3. The buildings did not exist at the time of the permit was granted. The permit allows their construction. However, certain works are implicit in the construction of the building. At the most fundamental level, a building is constructed upon footings and the footings rest upon the foundations, that is to say, the earth (be it rock, soil or whatever) under the footings. It might be said that the foundations, the footings and the excavation to put the footings onto the foundation, are a most fundamental part of a building. It is liable to be dangerous or to fall down if they are inadequate.
4. The excavation of earth down to the foundations for the purpose of laying the footings is undoubtedly works, whether or not it could also be regarded as part of the construction process.
5. This project assuredly involves development by both the construction of buildings and construction or carrying out of works.
6. It is the development that is allowed by the permit. The time limit on starting is a time limit that relates to the start of the development. As the development both includes the construction of buildings and the construction and carrying out of works, the start of development is the first step in relation to the building or the works that are part of the development.

1. Section 68 and condition 33 talk about the "start" of development .
2. The predecessor of the current PE Act was the Town and Country Planning Act 1961. The equivalent provisions to s 68 appeared in s 18(5) and (6) of that Act. The term there was not "start" but "commenced".

Difficulties with non Victorian authorities - Part 1

1. I do not discern any significant difference in this context between "start" and "commenced". However, this does point to a serious danger and difficulty when "foreign" authorities are thought to be relied upon. By "foreign" I mean non Victorian such as interstate decisions or cases from other countries like the United Kingdom of Great Britain. In this present case the responsible authority has sought to rely upon several New South Wales authorities that in turn refer back to certain English cases.
2. It can be difficult and doubtful, indeed, sometimes quite misleading, to rely on interpretations made in other jurisdictions of a quite different legislative provisions. For example, at some stage, according to my recollection, the equivalent provision in the New South Wales legislation was not "start" or "commence", but rather, "substantial commencement". That is a very different concept. Other expressions have appeared in the English legislation, also differing from our "start". It is my recollection that there have been difficult problems discussed in New South Wales cases about what is meant by "substantial commencement" and the meaning of various other words and phrases that can have relevance to this topic in New South Wales, but do not appear in our legislation. They include "building work", "engineering work" and "construction work". They have given rise
3. This problem is compounded by the circumstance that legislation here and elsewhere, does not necessarily stand still. Statutory provisions can be changed from time to time. Any attempt to rely on such foreign authority has to take account not only of different wording, but of different wording from time to time.
4. Care, analysis and therefore research is often necessary to work out whether foreign interpretations are really relevant or helpful in relation to Victorian planning law and practice. Advocates, quite apart from the Tribunal need to be diligent in this respect, to ascertain whether that which is said in New South Wales is relevant in Victoria.
5. This is a problem that becomes more acute in relation to an aspect of the case for the responsible authority that will be dealt with later. For present purposes it is sufficient to note that, in this permit and under current Victorian legislation I am dealing with "start".

1. The word "start" is not defined in the PE Act itself. It has its ordinary English meaning, or at any rate, its ordinary English meaning in the context in which it is used. We are talking here about the start of development.
2. It is a question of fact as to whether a start has been made in this present case, and whether it was made within time, and that is to say, by 8 July 2011. There are legal consequences that flow from the answer to that question of fact. If there was no start the permit has expired, and if there was a start, it has not expired. Nevertheless, those consequences flow from the question of fact as to whether there has been a start.
3. Perhaps I should also note that, apart from not defining start, our legislation does not specify things that will constitute a start. It is, or was, otherwise with the English legislation. As the question of start can be regarded, in doubtful cases, as one of fact and degree I will refer to the English specification. I do so, bearing in mind that there are significant differences in the English legislation, but also bearing in mind that the purpose of imposing time limits of this sort is common between the Victorian and British legislation.
4. I think that the purpose and intention of these time limit provisions sometimes gets overlooked in a flurry of evidence and argument and of technicalities and fine distinctions that are in no way related to the purpose and intention of the legislation. In fact, I think such a pedantic and technical approach is contrary to the purpose. The English statutory provision gives some idea of what the British legislature though what warranted to avoid expiry and not commencing within time. The case of Oakimber Ltd v Elmbridge Borough and Surrey County Council was a decision of the English Court of Appeal of 1991[10]. The case dealt with transitional provisions in relation to the introduction of time limits for the commencement of works granted by planning permissions. For the transition existing permissions lacking time limits were granted five years for commencement from the introduction of the new legislation for the commencement after which the permission would lapse. The planning permission concerned was referred to as WAL 362. At page 606 Purchas L J. noted that under s 19(1) of the relevant amending legislation, the permission was deemed to have been granted subject to a condition that the development must be begun not later than 31 March 1974. In order to avoid lapse, Oakimber had to establish the carrying out of a "specified operation" as defined in s 43 of the 1971 Town and Country Planning Act (UK) by that date. According to the report that section provided

43(1) For the purposes of sections 31 and 42 of this Act, development shall be taken to be begun on the earliest date on which any specified operation comprised in the development begins to be carried out.

(2) In subsection (1) of this section "specified operation" means any of the following, that is to say:

(a) any work of construction in the course of the erection of a building:

(b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c) the laying of any underground main or pipe to the foundation, or part of the foundations, of a building or any such trench as it mentioned in the preceding paragraph;

(d) any operation in the course of laying out or constructing a road, or part of a road;

(e) any change in the use of any land where that change constitutes material development.

1. Sub paragraph (e) points to a significant difference in some other planning legislation compared with the Victorian equivalent. It talks about the "use" of land possibly constituting "a material development". In Victorian planning law there is a clear distinction between "use" on the one hand, and "development" on the other. It is an important distinction. There has occasionally been some unfortunate blurring with the use of such phrases as "the use of land for the purpose of constructing a shop". Nevertheless, I think the authorities have kept clear of the distinction between the development or construction of a building on the one hand and its use as a shop on the other.
2. So far as the English judgement I have been referring to is concerned, the next paragraph contains the following two sentences:

So far as this case is concerned (d) and (e) are the main specified operations, although (a) may also be relevant. In considering the application of these provisions it is important to remember that the effect of their application is preserving "vested and valuable rights".

1. The phrase in section 43(2)(a) is "any work of construction". "Any" is a word of very wide meaning.
2. I think (b) may not maintain the distinction I drew above between footings and foundations. It speaks of a trench that contains foundations rather than footings.
3. Any operation in the course of laying out a road might include the surveying and pegging it out. I wonder if pegging out the location of the trench to be dug to accommodate footings or foundations would suffice, either under the English legislation or the Victorian. However, I do not need to decide that.

1. The representatives of the company admit that they had been busy with various aspects of the project but realised, toward the end of the two year period, that they were running out of time for the start of their development. Apparently it was appreciated that this could result in the expiry of their permit. They set about getting started on the development.
2. They had an approved and endorsed plan under the permit that at least defined what the development was to be. They obtained a building approval. They brought heavy equipment onto the land for the purpose of doing earth movement. All this might be regarded as preparatory work rather than actual development.
3. Then, however, they set about physical work upon the land.
4. The representative of the responsible authority was pleased to use expressions that would seem to minimize this work such as "scraping the site" and "removing topsoil".
5. On the evidence, which I accept, it amounted to a lot more than that. The equipment was used to level the site for the construction of at lease 2 of the proposed buildings. This involved the movement of some 200 cubic metres, equivalent to 200 tonnes, of soil. The site was then consolidated. Aggregate was introduced to the site where building was to occur. It was mixed with the soil the aggregate was rolled in and then compacted by running back and forth with heavy vehicles.
6. The company then proceeded to excavate 15 or 20 holes or trenches for the pouring of footings, these holes or trenches for footings, were referred to in the evidence as "pads". They had to be excavated, and were excavated, down to a satisfactory base of clay to form the foundations upon which the concrete footings were to rest.
7. At this point, time caught up with the company. A few days later footings were poured into the holes, but that was done after the magic date of 8 July 2011.

Did the works carried out prior to 8 July 2011 amount to a "start" of "development" for the purposes of condition 33?

1. On the evidence I think it not even doubtful that the works carried out did amount to a start of the development. As to that question of fact I find it to be a start, and quite clearly a start, of the development. Accordingly I find that the permit has not expired and I am prepared to make a declaration to that effect.
2. Notwithstanding that, the responsible authority raises various arguments to the contrary.

1. The responsible authority seeks to rely on the legal maxim expressed in the following Latin expression de minimis non curat lex. It means the law does not concern itself with trifles. The suggestion seems to be that the works done are so trifling that they should be disregarded as a start of development.
2. In this connection I recall the proverb, I think a Chinese proverb_,_ to the effect that a journey of a thousand miles starts with a single step.
3. In the course of argument at the hearing, there was discussion of a parable about a hiker at Wilson's Promontory setting out from the Mount Oberon Carpark to hike to the Lighthouse. He or she might make preparations the night before at the Tidal River campsite; sorting out the tent pegs, the tent, cooking gear, rations, sleeping bag, etc and packing them into the pack for an overnight stay at the Roaring Meg campsite site near the Lighthouse is all preparatory. Perhaps for the purpose of clarity I should start my hiker from Tidal River. All preparations done, with the pack on the back and with hat and sunglasses adjusted, the hiker takes the first step on a hike of 20 kilometres or more. How far does the hiker have to go have achieved a start? Does he or she have to reach Roaring Meg, or will Miller's Hill suffice, or Halfway Hut, or 100 paces along the way? No. The first step is the start and once it is performed the hiker has started.
4. It depends what was done, not how much of it was done. It does not matter, in relation to this case, whether there were 15 holes or 20, whether there were 200 cubic metres or 1 tonne or whether it was 50% of the work to be done or 1%, or whether the value of the work done was $30,000 or $60,000 (or something in between, in accordance with the evidence) or $10; it was a start.
5. On behalf of the responsible authority, an attempt was made to be drawn between "contextual de minimis" and "absolute de minimis". In spite of inquiring into the question, I never came to understand what was meant by "absolute de minimis". As far as I can see, de minimis is always contextual. It means trifling in the circumstances. If the Wilson's Promontory hiker departed from the track for a few metres to admire a Blue Tongue Lizard or to get a drink or to avoid a snake, or for some other reason; a diversion of 10 or 20 metres, or 50 or 100, would be trifling in that context. However, in precision engineering or watchmaking a 100th of a millimetre might be critical and not de minimis in that context.

1. The responsible authority argued that the work actually done should not count as a start of the development as it was merely preparatory work. This, in my opinion, is a dangerous and misleading concept. Some work might be preparatory, and not a start on development works. I think the drawing of a plan or the making of an application would clearly be in that category. There are other actions that might be said to be preparatory, in some sense.
2. The question is not whether they can be described as preparatory, but rather whether they constitute a start on the works. The levelling and compacting of the site, indeed the excavating and pouring of the footings can all be said, in one way, to be preparatory to the construction of a building above ground level. Nevertheless, whether they are described as preparatory or not, such actions are necessary and integral parts of the work involved in the development. In this context I recall that development means the constructing of buildings and the constructing and carrying out of works.
3. I therefore remain satisfied that the works carried out were a start of the development and that the talk of preparation is merely a misleading distraction.

Is some development work to be disregarded in accessing whether development has started?

1. In my view the permit and the approved plans identify the development for which the permit was granted. That is the development, and development work necessary to construct or carry out that development counts, for the purposes of a start.
2. It was argued that it is only the works for which planning permission was actually required that can count as a start. I regard this notion as undesirable as well as wrong. It would lead to dreadful future arguments and distinctions that would be wasteful as well as futile.
3. However, I am not rejecting it because it would be inconvenient. That is a by product. I think it is an error.
4. There is no doubt that to build a house on a large residential allotment is a development. It is a development for which no planning permit is required under the present Victorian Planning Schemes based on the Victoria Planning Provisions (VPPs). On this argument such a house could be built, completed, issued with a Certificate of Occupancy, and in fact lived in for five years without a development having started. Indeed, it would never start, but that would seem to be absurd.
5. Another example, where a planning permit is required, arises in relation to those parts of the Shire of Mornington Peninsula subject to a type of design and development overlay that appears in the Mornington Peninsula Planning Scheme. Under the sort of overlay I have in mind, no planning permission is required to build a house of up to two storeys or up to a certain specified number of metres in height. However, to run to three storeys or above that height, planning permission is required. It is not prohibited, but a permit is required. On this argument a development of a two storey house would never commence, though it be finished; and the development would only start if and when a third storey was embarked upon.
6. The argument is absurd. Submissions were made about various exemptions which might mean that permission is needed for one thing and not another. I do not propose to pursue them further.

1. The start has to be on development work in connection with the development. If a permit exists for a two dwelling development at one end of a 10 hectare property, the construction of a shop at the other end, or the commencement of the construction of a shop at the other end, does not qualify as a start on the development allowed by the permit.
2. A token start in the interests of "warehousing" a permit does not qualify either.
3. The notion of warehousing a permit is where a permit, or some other cases, several permits, are obtained with no present intention of acting upon them. A piece of land can be enhanced in value if a permit or permits exist allowing its use and/or development. Sitting on permits, with no present intention of acting upon them, is known as warehousing.
4. The making of a token start to prevent expiry, but with no intention of proceeding beyond the token start is not a bona fide start.

1. I have found the New South Wales cases referred to, to be problematic in relation to Victorian planning law and this case. That is particularly so in relation to the unfulfilled conditions argument of the responsible authority that I have yet to deal with. New South Wales planning law and practice differs quite significantly to the situation here in Victoria. The New South Wales Land and Environment Court has a wider jurisdiction than the Planning and Environment List of this Tribunal. Amongst other things it includes building control matters. Instead of permits as we understand them, it appears that "planning permissions" take the form of consent letters with what in Green v Kogarah N C[11] are called conditions. Some of the conditions could be regarded in Victoria as planning conditions here but others would not. We have a distinction between building control and planning so that a condition in a planning permit requiring the compliance with building control laws would not here be regarded as appropriate. Various other things, treated in Green's case as conditions, would not satisfy our tests for the validity of planning permit conditions. In Victoria, information of that sort might be conveyed as advice in a letter or a note added to a permit document, but which is not part of the permit. New South Wales planning consent letters are less formal than our permit documents. That may explain, in Victorian terms, would be regarded as extraneous statements.
2. Be that as it may the New South Wales cases of Green and Irongates Developments Pty Ltd v Richmond-Evans Environmental Society Inc.[12] provide examples of token starts or works not related to the development permit given that should not qualify as bona fide development starts.
3. In Green at paragraph [24] to [27], we find that in August 1998, a surveyor prepared a survey to establish a 30 metre foreshore building line and pegged out the foundations for a second dwelling, and between September of that year and March of the next some scrub and small trees within the footprint of the proposed building were removed. The pegs were removed and replaced on 26 February 1999. On 1 March 1999, a labourer dug some trenches, ostensibly for the footings for the second dwelling but it was found that the position of the excavations was not for the building shown in the architectural plan. Irongates is seriously complicated by working out by what is meant by "engineering work" and "construction work" for the purposes of commencement pursuant to s 99(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW). The question there was not whether work had started but whether engineering work or construction work had started. Those terms had to be defined and an adverse finding was made.
4. In another case a segment of floor, I think only 10 square metres, was constructed as a token and then nothing further was done for four years. Ultimately it was found that the section of floor constructed did not suit the building for which planning consent had been given. That is a good example of token rather than bona fide commencement. It is a step towards warehousing, rather than towards completing the development. It should not be regarded as a start under Victorian legislation.

1. The purpose of commencement time limits, whether they be in permit conditions or legislation, is important. It is important to bear in mind the purpose when applying and interpreting the provisions. It is also important in excluding artificial or merely technical arguments.
2. There have not always been commencement time limits and originally they only existed where they were imposed by means of a permit condition. The Victorian legislation now provides that there will be a time limits, imposed by s 68, in default, if there is none in the permit conditions. This can be traced back to the Town and Country Planning Act 1961, as it stood when it was superseded by the Planning and Environment Act 1987.
3. Why is it a problem that permits could remain valid indefinitely? Planning laws had existed for quite some time before such time limits were authorised, and before they became mandatory in default of a permit condition imposing one.
4. My understanding of this has been that a permit might otherwise stay effective indefinitely and then be acted upon at a time and in circumstances when it has become quite inappropriate. After some decades, the circumstances of the land might change completely, to say nothing to alterations to planning laws and planning schemes.
5. The statutory provisions do not exclude the possibility of extensions of commencement time. Sometimes a series of extensions are granted for quite a number of years. In fact, if circumstances have not changed an extension is a reasonable and convenient means of keeping and appropriate permit alive, rather than putting the applicant to having to make a new permit application.
6. However, if circumstances have changed and unless the permission has become prohibited, the applicant can always make a new application and have the merits reviewed as to whether a new permit should be granted.
7. The current provisions are an anti-warehousing device. They prevent old permits that have become stale and inappropriate being acted upon.
8. That point is also made in the Oakimber case that I referred to earlier. In the last paragraph on page 606, Purchas L J. (the others members agreed with him) pointed out

"Prior to 1968[13] it was not the rule to attach any time limit upon a planning permission limiting the time in which the development could be left in abeyance. The Town and Country Planning Act 1968[14] made provision for the statutory implication of time limits where no express limits had been included. It was designed to eliminate a large and highly undesirable accumulation of un-implemented planning permits".

1. This company in the current case has not been guilty of such delays, accumulations, or warehousing. It was getting on with its proposal. It seems to me that the submissions and arguments relied on by the responsible authority do not relate well to the purpose of the legislation. That is particularly true in relation to the last of its submissions that I will now deal with.

1. It concerns permit conditions and the question of what is the situation if the permit contains a condition requiring something to be done before development starts and work has started, works that are clearly part of the development, without that condition having been attended to.
2. It is perhaps obvious that it is not possible to determine whether a development has started if the nature and extent of the permitted development cannot be ascertained, at least so far as necessary to determined whether works actually performed do constitute a start.
3. A permit which authorises a development without identifying it within the permit document would raise some problems in that respect. In Victoria the problem is frequently overcome by a permit condition requiring the approval and endorsement of plans. When that is done the permit is identified in a way that will usually be sufficient to determine whether works performed constitute a start on the development.
4. In this present case, plans have been approved and endorsed. They do identify the development. They do enable it to be ascertained as to whether there has been a start. As indicated above, I consider that the works performed before 8 July 2011 did constitute a start of development. Not only that, it is the development identified in the endorsed plans, and authorised by the permit.
5. Problems have arisen in foreign cases where there has been a mismatch between works performed and development authorised, or where it is uncertain as to whether the works performed are really part of the development approved.
6. It was submitted, on behalf of the responsible authority, that a permit condition, such as those appearing as 2, 3, 4, 10, 26 and 30[15] are capable of preventing a start of an authorised development.
7. I agree that this is so in relation to condition 2. Condition 2 requires the submission, approval and endorsement of plans of the development. Until that has been accomplished I can see that there are real problems in determining whether or not any work that might be done is really a start to the development.
8. However, that does not arise as a problem in the present case because such plans have been approved and endorsed.
9. The point relied upon in relation to those other conditions is that they say that the things they require must be done before development starts. It was pointed out that it was administratively convenient for the responsible authority to require, for example, that the landscape bond be paid before work starts. There is no actual need for that, but it means that the responsible authority gets the money in hand and does not have to worry about it anymore.
10. In the present case, the company was busy in the last month or two prior to 8 July 2011. It was busy getting various things done, including obtaining a building approval and, of particular importance, getting started on the development work.
11. In the circumstances, it overlooked paying the bond to the council. At 8 July 2011 the bond had not been paid.
12. The responsible authority had not reminded the company of the need to pay the bond. I do not criticise the responsible authority in that respect. It is the responsibility of the company to comply with the conditions. Shortly afterwards, perhaps only a few days later, the company remembered or was reminded and promptly paid over the bond. In the circumstances all was put right, and no harm done.
13. However, now the responsible authority now wishes to argue that the failure of the company to pay the bond before commencing work has the effect that the work did not commence when it did in fact commence, or that it should be deemed not to have commenced when it in fact did commence.
14. This submission appears to me to be the merest nonsense. What possible justification could there be for such a doctrine? It seems to me to be a complete fiction. It would be a fiction that is hardly fair and one that in no way promotes the purposes of commencement time limits.
15. Does that mean that work that in fact started without paying the bond never started and remained unstarted even after the bond was paid? If that meant that the permit expired and could not be redeemed, why did this council back or accept the bond money?
16. Is there any purpose or principle that could justify such a notion? When the submission was put to me it immediately provoked a discussion of what are the purpose and principles underlying the requirement for a commencement time limit (whether by condition or by s 68). It is true to say that no purpose or principle was suggested beyond what I have already expounded above in relation to the dangers of stale permits being acted upon, warehousing and the need, by means of the imposition of extendable time limits, to review from time to time permits that have not been acted upon to determine whether they should be further extended.
17. I am satisfied that this is the purpose of those provisions, and that those purposes are not achieved by this deemed non start argument of the responsible authority. Its submission does not gain justification by those purposes.
18. I have used the landscape bond condition as an example for the purpose of discussion in these reasons. The responsible authority would like to rely on it and the other condition mentioned that imposed requirements of being carried out before development starts. I do not propose to go through an analysis of each of them. I think the landscape bond one illustrates the point, and its fallacy, clearly enough.
19. It is quite different in relation to an equivalent of condition 2, with its need for approved and endorsed plans. That is fundamental, but these other conditions, such as the landscape bond are merely subsidiary ones. Enforcement by reminder, prosecution or enforcement order may be warranted, but not this proposed fiction.
20. It was said that the approach is justified on the basis of New South Wales cases which in turn refer back to English cases. In particular the New South Wales cases of Green and Irongate were referred to and they refer back English cases such as Etheridge v Secretary of State for the Environment[16], Oakimber Ltd v Elmbridge Borough Council[17] and Whitley and Sons v Secretary of State for Wales and Clyde County Council[18].
21. It was readily admitted that there were no Victorian submissions that lend support to this contention.
22. I asked whether any of the foreign cases cited discussed the question of the purpose of conditions or statutory provisions imposing time limits on commencement, but none were referred to, although I have discovered some discussion in Oakimber. There is also some discussion of the purpose of the legislation in Whitley & Sons v The Secretary of State for Wales and Clyde County Council [19] on pages 306 and 307 with a quotation form Thayler v Secretary of State for the Environment[20]. I referred to the distinction I discussed above between conditions like 2 in this permit that is fundamental to identifying development allowed for the purpose of determined whether that development has commenced; as compared with what I have called subsidiary conditions that did not relate in that way. I am not aware of being directed to anything in the foreign decisions that recognises such a distinction.
23. I also asked whether the cases pointed to some justification for such a proposition, a proposition which, made it clear, I thought, to be without merit.
24. In this connection there was some reference to the notion of not being able to benefit by ones own wrongdoing. This proved to be red herring. There is some mention of the notion in Irongate, but only to put it aside and not rely upon it. The reference to the English case of Alghussein Establishment v Eton College[21]. That is a case concerning private contract law, but not statutory planning, indeed it is not a planning case at all. In my opinion it is irrelevant for present purposes.
25. Reference was also made to Van Egmond v Knox CC[22]. I do have some recollection of this case and other Victorian planning cases where observations have been made that people are not entitled to benefit from their own wrongdoing. An example is where somebody has built without a permit which was required by the planning scheme. They get no benefit, in assessing whether retrospective permission should be granted, from the fact that the structure already exists. There is a certain advantage for the responsible authority or the tribunal in being able to look at it three dimensions rather than having to conceptualise it from plans, but its existence in bricks and mortar (or whatever) should not predispose the responsible authority, or the tribunal on review, to grant permission if it had otherwise been refused. This is all very interesting, but I do not see that it has any relevance to the present problems.
26. I have already mentioned that there are significant difficulties and complications in trying to extract principles from foreign cases where they are based on different legislation, indeed on different planning law and practice. It would not be becoming, and I would not venture, to lecture the New South Wales Land and Environment Court, much less the New South Wales Court of Appeal on New South Wales planning law or how it should be interpreted or applied. I think that those cases may really turn on whether work done can truly be identified as work authorised in the planning consent. Be that as it may, I would not adopt the submission that conditions like the landscape bond one prevent a start, or deem and actual start had not been made, unless compelled to that view by binding authority. If the New South Wales cases, however correct they may be in relation to New South Wales planning law and practice, are advanced to me as persuasive for Victorian planning law, I remain unpersuaded.
27. I have not purported to list all the differences in statutory wording in New South Wales, although I have mentioned some of them. Victorian wording does not contain quotes of "essential commencement" or "physical commencement" but uses the word "start". Just one interesting example of how building control is integrated with planning in New South Wales, I refer to Greens case. There was a condition in the planning approval letter in that case requiring the building control plan to be obtained before work commenced. Not only is building control (as I understand it) within the jurisdiction of the Land and Environment Court, but such building control plan would, in New South Wales, define the development; in other words, it would take the place of the approved and endorsed plan required pursuant to condition 2 of this permit. It is little wonder that compliance with that requirement was treated as a prerequisite.
28. An examination of the English cases also raises problems about different wording and different legislation and in different times and circumstances. Passages like this one from Etheridge[23] can be found

"...it appears to me that paragraph 20(1) of Schedule 24 requires development to be begun, that is lawful development, from a planning point of view. If the development were development without planning permission at all, then the situation would be that it would not be lawful. Equally, if it were development that was commenced in contravention of conditions of a planning permission, it seems to me that it would be development that from a planning point of view, would be in breach of the planning control."

That is fine, although, of course, it does not follow that the remedy should be the adoption of a legal fiction, but rather that there might be steps taken to achieve compliance.

1. I have spent a good deal of time attempting to analyse and understand the English cases cited to me. I think I can sum up what seems to me to be the situation without going through them all in detail. If work is done before a deadline it will only prevent lapse if it is work that constitutes a commencement of the development permitted. If it is not possible to identify the limits of the work permitted, it may not be possible to determine whether it constitutes a start to the permitted work.
2. It does not follow from this that non compliance with any or every condition creates a problem. It does not even mean that a condition like the one requiring a landscape bond to be paid before commencement of work, will be a problem in relation to start of development. It appears that the scope of conditions in English permissions are or have been vastly less than the large sets of conditions now commonly seen in Victorian permits.
3. In England there appears to have been a scheme whereby there are two stages in obtaining a planning permit. The first is a so called "in principle" permission which cannot be acted upon until a further permission is obtained that will specify the development. The first "in principle" permission can impose a condition that requires the second permission defining the development to be obtained before the development starts. It is little wonder then, that there would be difficulty in identifying work as a commencement of development before that second permission defined what the development is. In other words, the second permission rather takes the place of a condition like that in condition 2 of the present permit. It defines the nature of the development, and is needed to establish whether the works will constitute a commencement.
4. This notion of an outline or "in principle" permit does not exist in Victoria. It seems to rather take the place of what, under Victorian planning law, is covered by a development plan overlay or an outline development plan. Perhaps it is only that I am used to Victorian practice that I prefer it, but the function seems to be similar.
5. It is obvious, at least, from some of the English cases, they take a more benign, perhaps more reasonable, attitude to the question than that urged by this responsible authority where it seeks to take such a hard line in wanting to establish expiry. For the purposes of this case I was initially provided with copies of 26 previous decisions of courts and tribunals, but ultimately another 15 brought the total to 41. Diligence is a virtue, but so too is discrimination. In one of the English cases, there was an illustration that demonstrates a somewhat different attitude. In this illustration there was the notion that there was to be a road from Point A to Point B. The route of this road was yet to be decided. Nevertheless it was postulated that works at Point A could constitute the commencement of development providing that they were works which would be essential whatever route was taken from that point to Point B.

1. None of this discussion of subsidiary conditions like that in relation to the landscape bond persuades me that the commencement of development in fact carried out be 8 July 2011 should be discounted or disregarded, or that there should be a finding that there was no commencement prior to that date. Therefore, I consider that at base this is a relatively simple case. It is a case where there was, in fact, a start on the development, prior to the expiry of the permit. Accordingly it did not expire.
2. If this permit had expired I would have been minded to grant an extension in spite of the advancement of Amendment C111 since the permit was granted. I do not need to go to that and I will not discuss it further.
3. Nevertheless, there is a need to extend the time for completion. That time will expire on 8 July 2013. I think the time should be extended by 3 years.
4. As to the request to amend the permit to allow 19 tenancies within the same buildings, rather than the original 26 tenancies; I think the difference is inconsequential from a planning point of view and that, for that reason, the request should be granted.
5. I am aware that the responsible authority sought to rely on this matter of the tenancies in relation to its arguments pertaining to the other proceedings before me. If the proposed changes were significant, from a planning point of view, my decision might be otherwise. Because the changes are inconsequential, I think that removes the weight of the objection to the change. I think it also means that the tenancies change is inconsequential in relation to the declaration and extension proceedings.

[4] [2009] VCAT 1285

[5] [2007] VCAT 1681

[7] That is to say, the permit application giving rise to the 2007 decision of the Tribunal

[9] (1983) 1 PABR to 207 at 211 and following.

[10] 62 P. & C.R. 594

[11] [2001] NSWCA 123; (2001) 115 LGERA 231

[12] (1992) 81 LGERA 132

[15] Such as those referred to in paragraphs 18, 22 to 26 above

[16] (1984) 48 P. & C.R. 35

[18] 64 P. & C. R. 296

[20] [1991] 3 P.L.R 105 at 109

[21] A House of Lords decision reported at [1998] 1 W.L.R. 587

[22] (1985) 8 PABR 249