"Lists"' of relevant considerations, such as those set out in Reynolds & Ors v Macedon Ranges Shire Council & Ors (1997) 19 AATR 9 note and Spathos & Ors v City of Greater Geelong (1994) 12 AATR 188 are not to be regarded as conditions precedent, nor exhaustive, nor conclusive in any particular case. See Dix v Crimes Compensation Tribunal [1993] VicRp 21; (1993) 1 V.R. 297; Dingley Village Neighbourhood Centre Inc v City of Kingston & Ors (1997) 20 AATR 272.

The Tribunal has weighed the evidence before it carefully and was initially concerned about the number of amendments to plans made by the permit applicant, and the confusion that it could cause in the minds of lay persons. However, after an analysis of the facts and the time frame within which they occurred, the Tribunal finds that this is not an appropriate case for leave to be granted to the Poles or to Ms Psomiadis to commence an Application for Review.

As Mr Bisset pointed out, no amendments or simultaneous correspondence in respect of the first application were served during the period of November 1998. Whilst criticism was made of the amending plans submitted by Neometro, they were submitted to allay concerns, which is recommended under the Good Design Guide. The next batch of amending plans was only served after 6 January 1999.

In our view, although two applications were lodged with the Tribunal, only the application under Section 82B of the Planning and Environment Act 1987 is relevant to the circumstances of these applicants. Their circumstances are such that no "extension of time" under s.126 to commence an Application for Review could be given.

Regulation 16 of the Administrative Appeals Tribunal (Planning Appeals) Regulations 1997 (which are still in operation pursuant to Clause 16 of Schedule 2 to the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998) provides that:

"An objector may appeal under section 82(1) of the Act by lodging a notice of appeal with the Registrar within 21 days after the Responsible Authority gave notice to the objector under section 64 of the Act".

Mr Zervos submitted that time did not run against his client, because the Responsible Authority did not give notice to Ms Psomiadis. It was not obliged to do so under Section 64, because she had not lodged an objection prior to the decision to grant being made. In our view, he is correct. The same principle applies to the Poles.

Mr Bisset argued that the form of leave necessary for these Applicants to commence an Application for Review was a two-step process: Section 82B was needed because they were not objectors, and Section 126 because the 21 days had expired. He referred us to Pentaco Oil (Australia) Pty Ltd v Dingley Village Communtiy Association, a decision of McDonald J in the Supreme Court, no.5184 of 1997, Butterworths Unreported Judgments BC9704607, and Taradale Nominees Pty Ltd v Melbourne City Council (1997) 21 AATR 91, a decision of Deputy President Byard in the Administrative Appeals Tribunal.

Pentaco Oil concerned an attempt to appeal to the Administrative Appeals Tribunal by an unincorporated association. As in the present legislation, an unincorporated association could not be a party to an appeal (see now Section 61 Victorian Civil and Administrative Tribunal Act 1998). Then as now, Section 82B(1) of the Planning and Environment Act 1987 provided that "Any person who is affected" may apply for leave to review the decision of the Responsible Authority to grant a permit. The argument was largely about whether a legal entity could be substituted. In the course of it, his Honour referred to the requirement in Section 57(1) that "Any person" ,,, may object to the grant of a permit. Because an unincorporated association is not a person, it cannot be an objector. This is trite. The relevant passage is to be found on page 8 of the report. It deals with the options available to the Association at the appeal stage, when an incorporated association had been formed.

The Association had lodged an objection. No other objector appealed, but other objections had been lodged. Section 82B therefore potentially applied, as this was a case in which "a written objection to the grant of the permit was received", in addition to the invalid objection from the unincorporated association. McDonald J considered that the new incorporated body could have applied under Section 82B; it had not, however, done so. As a second option, he stated that it was within the power of the Tribunal to extend time to a person who had objected to the grant of the permit to instigate an appeal. He was referring particularly to the fact that some of the individual objections lodged with the Council were from natural persons who were also members of the unincorporated association. However, neither of these alternatives had been taken, and the Tribunal was found to have erred in having failed to determine the jurisdictional issue before dealing with the merits of the appeal. The Tribunal had thus denied both the incorporated body and the individual objectors the chance to take one or other of the options described, and seek the alternative forms of leave to start a valid appeal.

This case does not say that all persons who make application for leave under Section 82B also have to seek an extension of time to commence an Application for Review. An objector whose right to commence an Application for Review had been allowed to expire under Section 82 would also be able to consider lodging an application under Section 82B.

In our view, the only "time limit" which a person making application under Section 82B has to overcome is the one in Section 82B(6), which contains what could more accurately be called two defining events. The Section does not apply if a permit has been issued under Section 63, or if the Planning Scheme exempts the decision from review.

If we had found that the Poles had lodged a valid objection to the second application, it would then have been necessary to consider Section 126 with respect to their application for an extension. This is not the case.

In our view, Taradale Nominees should not be interpreted as saying anything inconsistent with that. The objector seeking leave in that case was found to have been served with a Notice of Decision as "one of a number of persons" under Section 57(3), so that no further copy of the Notice had to be served on that objector. Time for commencing an appeal was found to have run from the date that Notice was given to the applicant through service of it on the other objector. The time had expired, and the permit had been issued, so that no leave to extend time was available under Clause 65 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, which also places limits on the power to extend time.

Mr Bisset's argument that we are dealing with a two-step process may appear to be supported by Mr Byard's statement (at p.98) that -

"Section 82 PE Act says that an objector "may appeal", but that does not mean that this right of appeal is not subject to statutory limitations as to time. The same would appear to be true of s.82B where leave has been granted".

However, in our view this is a misunderstanding of what was intended by Mr Byard. The "statutory limitation as to time" in Section 82B is the date of issue of a permit. Any other time limit on the lodging of an Application for Review pursuant to leave must come from the terms of the Tribunal's order granting leave.

We do not consider that Mr Byard intended to imply that there was an absolute time limit applicable to all "persons affected" as well as objectors, and calculated from the date on which the Notices of Decision were posted to objectors. Apart from the possibility that posting took place over more than one day to different objectors, this would be inconsistent with the clear statement in Regulation 16 that "an objector" may appeal ... "within 21 days after the Responsible Authority gave notice to the objector". People who are not objectors are clearly not included in this. The nature of these rights is set out by Mr Byard on p.94, where he relates the time limit only to the objectors.

We accordingly find that the Tribunal has no power to make an order extending the time for lodging an Application for Review, because no period of limitation related to the giving of Notice of Decision applies. Not being objectors to the second application, neither the Poles nor Ms Psomiadis require an extension of time. Their position is to be determined solely under Section 82B.

Mrs Pole admitted receiving notice of the second application around 5th November 1998. She says that she was under the impression that these were another set of amendments in the first application but made no inquiries of the Council in this regard.

A comparison of the two Notices of Application shows that they differ with respect to -

5. the date after which Council would consider each application.

The letter from the Council dated 12th August 1998 (referred to earlier) was perhaps ambiguous in stating that "any original objections stand", as well as "further comments in light of the amending plans are welcome". The issues raised in the objections needed to be further addressed in order to respond to the amendments. Maintaining an objection to 11 flats when amended plans have been submitted for 9 flats without addressing the differences is unlikely to result in the desired outcome. However, the Poles did address the differences on this occasion. This demonstrates they were aware of the need to consider the development in detail, and respond to changes in the details of the design.

The Tribunal is of the opinion that the Poles' receipt of notice of the second application, combined with new signs on the land almost a year after the first lot of signs had been erected in respect of the first application, should have alerted a reasonable person in their position to the need to make an inquiry of the responsible authority as to the status of the notices received. The Poles made no such inquiry. Further, the purported objection which they delivered late, and in fact after the determination had been made by the Council, was a replica of the objection in respect of the first application and in no way demonstrates that any inspection had been made by them at Council of the plans relating to the second application. According to Mrs Pole, her husband is a civil engineer who understands building and planning. At the minimum he would have known to inquire at Council as soon as new public notices went up on the land.

The Poles have "sat on their rights" and have not pursued their rights in respect of this second application with any seriousness. The permit applicant abided by everything it was obliged to do, including amending its development in order to address neighbours' concerns under the Good Design Guide. The Poles apparently did nothing about the second application from approximately 5th November 1998 when public notice of it was given - to 13th January 1999 when they lodged their applications pursuant to s. 82B, other than possibly lodge a late mirror objection identifying the first application.

Further, the Poles have had an opportunity to air their concerns at the hearing before the Tribunal in respect of the first application. They are not abutting neighbours to the subject land and are not affected by the second application to an extent greater than has already been pursued by them, that is, in respect of the issues of overdevelopment, inconsistency with the Good Design Guide and amenity.

In considering the applications, we have had regard to the prejudice that granting leave would cause the permit applicants, who would otherwise be able to proceed with a planning permit in respect of their second application.

On balance the Tribunal is of the opinion that it would not be just and fair in the circumstances to give the Poles leave to apply for review now.

There is no evidence that Ms Psomiadis actually received notice of the second application (as opposed to notice being sent), but even if the Tribunal accepts that she did not receive any notices or letters about it, nevertheless she lives at No 3 Cheel Street, which abuts the subject land. Given the fact that there were three prominent notices on the land on the Cheel, High Street and Sutherland Road frontages, the Tribunal is also of the opinion that she "sat on her rights" and did not, as a reasonable person would have done in the circumstances, at least make inquiries of the Council when a new batch of signs appeared on the subject land almost one year after the signs for the first application. These new notices would have alerted a reasonable person in her position to the need to make an inquiry of the responsible authority as to the status of the application. Ms Psomiadis made no such inquiry.

The Tribunal understands that Ms Psomiadis' state of mind was distressed at the time because of the terminal illness of her father. However, we are satisfied that the Council and the permit applicant has carried out the notice requirements correctly, and the permit applicant should not be prejudiced by the fact that Ms Psomiadis has not at least made the inquiries that a reasonable person in her shoes would have made.

In a recent detailed analysis of the historical and legislative progression behind the notice provisions of the Planning and Environment Act 1987 (Vic), Deputy President Macnamara concludes that the scheme of the Act has progressed to a point where private rights are created in favour of persons who should have been, but are not, given notice of various documents. But he stresses that where notice is given, it is necessary for persons to be vigilant in order to protect those rights, rather than `sit on their rights'. See Cook v City of Melbourne Application No. 1998/63663 unreported dated 11 December 1998.

Further, the issues regarding overlooking which do concern Ms Psomiadis, she being an immediate abutting neighbour, would appear to be exaggerated. A high brick wall and a brick garage separate the Psomiadis' property from the subject land. The sight lines prepared for the Tribunal at its request after the hearing of 13th January 1999 by Neometro indicate the difficulty of justifying an argument regarding overlooking of the Psomiadis residence, even allowing for the fact that the two developments have a number of differences.

On balance therefore, the Tribunal feels that it would not be just and fair in the circumstances to give leave to Ms Psomiadis to apply for review of the Council's decision to grant a permit.

1. Leave to apply for review of the decision of the Responsible Authority to grant a permit in application no.1266/98 is denied.

2. The Tribunal has no power to grant an extension of time to these Applicants within which to lodge an application for review, as no relevant time limit applies to them.

3. The Responsible Authority is directed to issue a Permit in application no. 1266/98 in accordance with its Notice of Decision.