Sar Developments v Brimbank CC [2007] VCAT 2328

Sar Developments v Brimbank CC [2007] VCAT 2328 - VCAT 2007 case summary — Zoe

[6]

Planning permit P030505 expired on 1 June 2006. The permit holder made a request for an extension of time on 10 November 2006. This was more than three months after the permit had expired and the council refused the request, as it was required to do under section 69 of the Planning and Environment Act 1987. The permit holder did not make any application for review in respect of this refusal.
On 8 August 2007 the applicant made a further request to the council for an extension of time of the permit. Again, the council refused the request as it was obliged to under the Act. This time, the applicant lodged an application for review under section 81(1)(a) of the Act. The council does not oppose an extension of time of the permit.
Sometimes situations arise where, for legitimate reasons, people overlook the need to apply for an extension of time of their permits before or within 3 months after they expire. If there is a good reason why a request for extension is not made within 3 months after the permit expired, and when the council does not oppose an extension and there has been no change in planning policy or zoning affecting the land, the Tribunal will frequently exercise its discretion under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure to make an application within 3 months. It does so for the reasons set out by Justice Morris in Schneider v Boroondara CC[1], and where it is in the interests of justice to disregard the failure of the permit holder to apply to the Responsible Authority for an extension for time within the time specified in section 69(1) of the Planning and Environment Act 1987.
The present case does not fall into this category. The permit expired in June 2006. A request was made for an extension outside the 3 months period and it was refused. At that stage, the applicant chose not to exercise its rights of review. It says at that time it had decided not to proceed with the development. That situation has now changed and it does wish to proceed with the development. It has therefore re-applied for an extension of time in order to re-activate the permit.
Whilst the Tribunal endeavours to be facilitative in genuine situations where the need to apply for an extension of time has been overlooked for one reason or another, I consider it would be a misuse of my discretion to exercise it in the circumstances of this case. When it is known that a planning permit has expired and there has been a conscious decision to let it lapse and not pursue its extension, but then the applicant changes its mind and wishes to proceed with the development, the correct course of action is to apply for a new permit.
The Tribunal's discretion to disregard the failure to seek an extension within time should not be used to revive what is effectively a "dead" permit.
For this reason the application is refused. The applicant will need to lodge a fresh planning permit application if it wishes to proceed with this development.

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Before

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Judgment (7 paragraphs)

Sar Developments v Brimbank CC [2007] VCAT 2328 (3 December 2007)

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