1. The applicant wishes to make an application to review the Council's decision to grant a permit which would allow the building next door to be partially demolished and extended.
2. In order to make an application for a review, an application is required to be lodged with the Tribunal within 28 days of the decision by the Council.
3. In this case the applicant did lodge an application in the evening of the 28th day of the 28 day period, but did not lodge the correct application - the application actually lodged sought to amend or cancel a permit which had not been issued ('incorrect application'). As it was lodged on the very last evening of the very last day there was no time to correct the error within the 28-day period.
4. The incorrect application was withdrawn and the new application was made 18 days after the date by which the application for review was required to be made.
5. At any time after midnight on the day the incorrect application was lodged, the applicant required an extension of time to be granted by the Tribunal for any review application to be considered.
6. The Tribunal must consider the matters bearing on whether an extension of time should be granted which include not just the explanation for delay, but also the impact on others including the permit applicant of the delay and the merits of the application sought to be made.
7. Having reviewed each of the relevant matters I have determined not to extend time to make the application.

1. A practice day hearing was convened to consider whether an application should be granted. It recited some of the relevant background in relation to its first purpose:
   • to consider the reasons that the application was filed out of time in circumstances where:

On 9 May 2025, the applicants filed application P428/2025 under sections 87(3)(a) and 93(1) of the Planning and Environment Act 1987 (Vic) to cancel or amend planning permit PDPL/00375/2024.

On 27 May 2025, the applicants filed application P492/2025 under section 82(1) of the Planning and Environment Act 1987 (Vic) an application by an objector to review a decision of the responsible authority to grant a permit PDPL/00375/2024.

Regulation 35 of the Planning and Environment Regulations 2015 (Vic) states that 'An application under section 82(1) of the Act for review of a decision by the responsible authority must be made within 28 days after the date of notice of that decision.'

1. Each of the parties provided written material and made oral submissions at the practice day hearing which I have taken into account.

1. The time limit for lodgement of an application under section 82(1) of the PE Act is set out in regulation 35 of the Planning and Environment Regulations 2015 (Vic) is 28 days.'
2. The applicant does not dispute that it lodged the incorrect application but says that his intention was always to lodge the correct form of application and to dispute or seek review of the Council's decision. Mr Perkins for the applicant says that due to his lack of familiarity with the process he lodged the incorrect form and should be permitted to pursue his application having now completed the correct application form and paid the relevant fee. He also says this should be treated as an amendment to the original application.
3. By the time of the practice day hearing, the incorrect application had been withdrawn and I could not have amended it. In any case, similar considerations would have arisen had an application to amend the incorrect application lodged been sought.
4. I find that the application for review under section 82(1) of the Planning and Environment Act 1987 ('PE Act') was lodged out of time.
5. A successful application for extension of time under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') is required for that application to be considered by the Tribunal.

DOES THE TRIBUNAL HAVE THE POWER TO EXTEND THE TIME FOR LODGEMENT OF THE APPLICATION FOR REVIEW?

1. Section 126(1) of the VCAT Act confers the power to extend time for commencement of the proceeding.
2. The power is subject to section 126(4) of the VCAT Act:

The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

1. It follows that there is power to extend time and that I must consider prejudice and detriment to others in considering the application. As has been observed in previous cases, there may be some debate about whether the detriment suffered by a party in not having the proceeding brought to an end is a factor which requires an application to be refused on that basis alone. Consistent with other decisions[2] I have treated this as one of the matters I have considered in coming to my decision rather than regarding that form or prejudice as requiring me to refuse the application in accordance with section 126(4) of the VCAT Act.
2. The Tribunal is also prohibited from extending time to commence a proceeding if the permit has been issued.[3] In this case, all parties agreed that no permit has been issued so that I am not precluded from granting an extension for this reason.

1. DP Gibson in the Tribunal's decision in Katsanis v Wyndham CC[4] ('Katsanis') discusses matters which may be relevant to considering whether to grant an extension of time. That decision records factors which are frequently relevant in exercising this discretion.
2. The criteria referred to in Katsanis as derived from earlier decisions are:[5]

(i) What reasons are given for the delay by the applicant for extension of time in lodging its appeal?

(ii) Did the applicant for extension of time take any other action (apart from the lodging of the objection or the late appeal) which continued to make the responsible authority aware that its decision to grant a permit was being contested?

(iii) Will the applicant for the permit or the responsible authority suffer any prejudice if the application to extend time is granted?

(iv) Will granting of the extension of time result in the unsettling of other people or of established practices?

(v) Does the proposed appeal have a real chance of success?

(vi) Are there any considerations of fairness as between the applicant for extension of time and other persons in a like position which are relevant?

(vii) Is there to be an appeal in any event brought by persons who did lodge an appeal in time?

(viii) Is there any other reason why it would be fair and equitable in the circumstances for the application for extension of time to be granted?

1. I have addressed these matters in turn below.
2. In Katsanis the Tribunal also discusses application of these principles, and the purpose of time limits set out in the PE Act referring to considerations including:
   1. That it is inappropriate to place too much weight on one criterion or to assume that a satisfactory response to them all will guarantee an extension of time.[6]
   2. Time limits are expected to be observed. They facilitate the timely conduct of the business of the court or tribunal.[7]
   3. A party obtaining benefit from the failure of another to observe a time limit is able to retain that benefit unless the discretion to extend is exercised in favour of the defaulter.[8]
   4. Time limits are necessary to make the operation of the law and the planning system effective. Without time limits, the whole system would degenerate into one lacking in certainty; and would become highly dependent upon discretion.[9]
   5. The applicant bears the onus of demonstrating that the time limit should be extended.[10]
   6. Using the analogy of a set of scales, it is not sufficient for the scale to be horizontal. The scales must be tilted in favour of the person seeking the extension of time to justify the grant of an extension.[11]
3. It follows that the Tribunal has long been conscious that in some circumstances the failure to follow correct procedures by objectors whether or not they are 'at fault' can result in outcomes which visit harsh consequences upon those who do not strictly comply with the statutory timelines or procedures.

1. The reason given for the delay is that the applicant was not someone who had been to the Tribunal previously and so was not familiar with the procedures required to lodge an application with the Tribunal. He said that he had always intended to contest the application but merely lodged the wrong form.
2. After being contacted by the Tribunal and told that he had lodged the incorrect application, he lodged an application under section 82(1) of the PE Act and requested an extension of time. He says that he acted promptly upon being made aware of the correct requirements. Mr Perkins did not provide a chronology of his correspondence with the Tribunal or how the 18 days between the lodging of the incorrect application and the application seeking a review were made up. I have given the applicant the benefit of the doubt and do not consider the length of the delay 'tips the scale' in either direction. Even if the delay were significantly shorter, I would have reached the same conclusion.
3. The applicant also says he acted within the time frame given by the Tribunal in correspondence for making this application. I accept this.
4. By making the application for extension he has enabled consideration of the application for extension of time to be considered rather than simply not being able to proceed with the application for review. There is no basis to conclude that making an application for extension of time would mean it would be granted.
5. I also note that the situation here is a little different to the case in Strilakos v Whitehorse CC ('Strilakos')[12] upon which the respondent's representative relied. In that case the applicant submitted the application with 5 days to spare but did not react in a timely manner to the Tribunal's communication indicating that the applicant had in that case (also) lodged the incorrect form.
6. In this case, by putting in the application on the last day and after hours on the last available day, the applicant deprived himself of the ability to realise the error and relodge the application within time on any view. I agree that this is unfortunate but is also a result of the applicant's actions.
7. The applicant for review also indicated at the practice day hearing that he intended to engage a town planner to assist him at and prior to the hearing. It is perhaps regrettable that this did not occur prior to lodging the review application.
8. In some cases, the other surrounding circumstances will mean that the balance of considerations favours the grant of the extension where there is a 'good' reason for delay. In others, that is not the case. In this case, I consider the explanation to weigh against the grant of the extension.
9. The mistake was within the applicant's control and to the extent that he required assistance to make the correct application, he could have sought that assistance or lodged it early enough to take any necessary action to correct an error if one was made.

Did the applicant for extension of time take any other action which continued to make the responsible authority aware that its decision to grant a permit was being contested?

1. The responsible authority was notified of the application to cancel or amend the application.
2. The respondent, however, was not notified until after the second application was made.

Will the applicant for the permit or the responsible authority suffer any prejudice if the application to extend time is granted?

1. The responsible authority indicated that it accepted that the failure to correctly lodge the application which led to the need for the extension of time was inadvertent but did not make submissions as to whether the extension of time should be granted.
2. I do not consider that the responsible authority will suffer prejudice if the extension of time is granted.
3. I accept that the applicant will suffer prejudice in that he will not be able to run the case that he would like to run at a hearing, and that the permit will issue as a result of this decision.
4. Were the application granted, the respondent's submission[13] indicates that it will suffer prejudice as follows:

The Respondent will clearly suffer prejudice if an extension of time is granted and the matter proceeds to a contested Hearing. Not only will the certainty of the permit be removed, but the Respondent will suffer a significant financial burden associated with firstly the delays in being able to progress the build and secondly in engaging representation and likely evidence to support their application in what could be expected to be a multi-day Hearing.

1. I accept that from the permit applicant's point of view, on 10 May 2025, it could have expected a permit to issue. This is because the applicant for review notified the Council but not the permit applicant of its incorrect application leaving the permit applicant with the expectation that a permit would issue.

Unsettling of people of established principles

1. I accept that extending time would unsettle the expectations of others in the planning system that once a decision to issue a permit is made it is only a valid and timely application to the Tribunal which will prevent the permit from issuing.
2. I agree with the permit applicant's submission that there are some similarities between the present situation and the considerations in Strilakos and that this is an example of one of the ways expectations are set in respect of applications for extensions of time.

Does the application have a real prospect of success?

1. In considering an application for extension of time, the Tribunal does not ordinarily conduct a detailed review of the merits. In this circumstance, some assessment is required. The notification of issues to be addressed at the practice day hearing made it clear that the proposed grounds of review would have to be considered even if the extension of time were granted.
2. The ground of review set out in the application lodged is:

The intention to issue a planning permit based on a compliant heritage overlay, by the City of Port Phillip, is wrong at Law, procedure and in fact.

1. In addition, the application sets out a purported question of law:

City of Port Philip has failed to take into account the relevant laws surrounding the issuance of an Heritage permit for 9 Canterbury Road Albert Park, whose lack of compliance, materially impacts on southern neighbour - 10 Canterbury Road, Albert Park.

Importantly, there is no trigger under the Zone that would call up amenity considerations under the provisions of clause 54 (ResCode). The applicant's submission to Council related to ResCode and further matters not relevant to the permit application. This continues to be the case in appeal P492/2025.

Council submits that there is no utility in granting leave to extend the time to file the section 82(1) application if the grounds are not relevant to the permissions sought and reviewable by the Tribunal.

1. The respondent says that the objection to the Council and the surrounding material such as the notes of a meeting with the Council[14] make it clear that the real concern here is to ask the Tribunal to consider the amenity aspects of the proposed design of the building.
2. At the practice day hearing the applicant said that he would rather have a hearing if it were limited only to heritage issues but did not persuade me that that was the issue the applicant intended to pursue or that intended by the grounds of review lodged.
3. While the Tribunal proceedings are intended to be conducted with as little formality as possible, it remains important that an applicant clearly identifies grounds which are within the scope of the discretion the applicant wishes the Tribunal to exercise on review.
4. The applicant has not done this or at least has not done it clearly.
5. There are limits to the accommodations which it is fair to make for lay people who are not familiar with the system. This does not extend to denying one party's interests in favour of a party who has not complied with the formal requirements to make an application nor provided grounds of review which are clearly understood and which address the matters for which a review may be sought.
6. Taken with the explanation given at the hearing, I have concluded that the grounds sought to be relied upon do not raise heritage concerns but are rather intended to refer to the amenity impact on the southern neighbour arising from the proposed application.
7. The only permit triggers for this application are:
   • Clause 43.01-1 Demolish or remove a building in a Heritage Overlay
   • Clause 43.01-1 Construct a building or construct or carry out works in a Heritage Overlay
   • Clause 43.01-1 Externally paint a building in a Heritage Overlay
   • Clause 43.01-1 Externally alter a building by structural work, rendering, sandblasting or in any other way in a Heritage Overlay
8. It is apparent that any application would be required to be amended to clearly state the grounds sought to be relied upon. At present, I do not consider the application has any real prospect of success.
9. It is possible that an amended application could be better expressed so as to bring the matter more squarely within the ambit of the discretion open to the Tribunal. This would involve a considerable indulgence as I have not been persuaded that the current application, nor the applicant for review's real intention, is to raise heritage grounds.
10. If that course were taken, the amendment of grounds would require a further process with the attendant delay and the possibility of a further application to the Tribunal to strike out any amended grounds.
11. I agree with the permit applicant that the application for review was not made on heritage grounds - this is apparent from a considered reading of the way the application is expressed. The application does mention the existence of a 'heritage permit' but it is the impacts on the southern neighbour which is the matter which is sought to be addressed. This is an amenity consideration not a heritage consideration.
12. The prospects of success of the application weigh against granting the extension of time.

Consideration of fairness between the applicant and other persons in a like position

1. These considerations do not arise in the current circumstances.

Is there to be an appeal in any event brought by persons who did lodge an appeal in time?

1. There are no other material matters for consideration arising here.

SHOULD TIME BE EXTENDED OR SHOULD THE APPLICATION BE STRUCK OUT?

1. On balance I find that the time should not be extended to make this application.
2. The matters which the applicant seeks to have determined do not address matters which are open for him to argue on an application for review. They relate primarily to the amenity impacts on his dwelling and not to the only decision the Tribunal can consider, which is whether the application is an appropriate response to the Heritage Overlay.
3. The explanation for delay, while unfortunate, is a circumstance brought about by the applicant's actions. Had the applicant taken steps to carefully establish how to make an application (with professional assistance if required) or made the application early enough to correct defects or lodge a different application, it is possible that a competent application could have been made within time.
4. The prejudice to the permit applicant is real in that it is entitled to have a permit issued if no competent application is made. If the extension of time were granted there would be significant delay, cost, expense, and uncertainty suffered by the permit applicant. I accept that the grant of the permit will affect the applicant but that is not an overwhelming consideration.
5. Considering all of the relevant issues together I am not persuaded that this is an appropriate case in which to grant the indulgence to extend the time to lodge a competent application with the Tribunal. I have made an order striking out the proceeding.
6. In view of this order, I am not required to consider the further matters identified for consideration at the practice day hearing.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] See the discussion of Mantello Property Group Pty Ltd v Mornington Peninsula SC [2003] VCAT 2042 in Katsanis v Wyndham CC [2005] VCAT 824, [13].

[4] [2005] VCAT 824.

[5] Ibid [11], which criteria the Tribunal records in a footnote as being derived as follows: 'These considerations were based on a decision of the Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305 and were enumerated in Reynolds v Macedon Ranges Shire Council (1999/33825) noted at (1997) 19 AATR 9.

[7] Dingley Village Neighbourhood Centre Inc v Kingston City Council (1997) 20 AATR 227, 285, quoted in Katsanis, [12].

[9] Becton Corporation Pty Ltd v Port Phillip CC [2004] VCAT 1897, [6], quoted in Katsanis, [15].

[10] Becton Corporation Pty Ltd v Port Phillip CC [2004] VCAT 1897, [7], quoted in Katsanis, [15].

[12] [2025] VCAT 235.

[14] Which were filed prior to the practice day hearing by the applicant.