Victorian Civil and Administrative Tribunal|2004-04-08|Before: Stuart Morris J

Schneider v Boroondara CC [2004] VCAT 642 (8 April 2004)

Application to review a failure to extend a permit - Application made to responsible authority out of time - Failure to make application to responsible authority within time can be characterised as a failure to comply with section 69(1) of the Planning and Environment Act 1987 - Clause 62 of schedule 1 can be used to disregard that failure - Accordingly application to extend permit granted.

1 Pursuant to clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 I disregard the failure of the owners or occupiers of 42 Eglinton Street, Kew to apply for an extension of the time within which the development described in Permit BOR/00/00852 pursuant to the Boroondara Planning Scheme may commence and I hold that the tribunal has jurisdiction to determine the application for review.

2 I direct that the time within which the development described in the said permit is to be started is to be extended to 17 May 2005 and I direct that the time within which the development is to be completed is two years from the date of commencement of the development.

(given orally at the hearing and subsequently revised)

1 The issue that arises in this case is whether the tribunal has power to allow a permit to be extended in circumstances where the request to the responsible authority to extend the permit was made out of time.

3 On 7 May 2001 (although I was told that it might have been 17 May 2001) a permit was granted pursuant to the Boroondara Planning Scheme for the construction of a dwelling on land at 42 Eglinton Street, Kew. The permit contained the standard condition that it would expire if the development did not start within two years of the date of the permit. The permit was amended on 18 July 2001 but nothing turns on that amendment.

4 On 4 December 2001 the responsible authority approved plans pursuant to the permit. For various reasons the development did not proceed promptly after the approval of those plans.

5 The permit holders believed that the condition of the permit providing that the permit would expire after two years ran, not from the date of the permit, but from the date the plans were approved. Of course, this was wrong, but one can understand how a layperson might form that view.

6 On 11 November 2003 the permit holders sought an extension of the time within which to commence the development. The responsible authority considered the application and decided, quite rightly, that it did not have power to approve the extension because the request had not been made prior to 17 August 2003, which it took to be the date three months after the date that the permit had expired.

7 The council has indicated to me today that if the tribunal has the power to allow the extension of time it would not oppose the tribunal ordering such an extension. Further the council has informed me that it does not dispute the bona fides of the permit holder in relation to her belief that the two years ran not from May 2001 but from December 2001.

8 The Planning and Environment Act contemplates that, from time to time, permits will expire and further extensions of time may be granted. Section 68 of the Act sets out detailed provisions as to the expiry of permits. Section 69 then provides:

Before the permit expires or within three months afterwards the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time.

The responsible authority is then empowered to extend the time within which development may be started. If a responsible authority refuses or fails to extend time any person affected may apply to the tribunal for a review of the decision to refuse, or the failure, to extend time.

In such a case the tribunal may direct that the time within which a development is to be started must be extended for a specified period.

9 If the time limit contained in section 69 of the Act could be characterised as a time limit "in a proceeding" then the tribunal would have available to it its powers under section 126(2) of the Victorian Civil and Administrative Tribunal Act (the VCAT Act). That provision provides:

If the rules permit, the tribunal, on application by a party or on its own initiative, may

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding.

The expression "relevant enactment" is defined to mean an enactment specified in the rules to be a relevant enactment for the purposes of the section.

For the purposes of section 126 all the enactments mentioned in schedule 1 of the rules and any regulations made under any of those enactments are specified to be relevant enactments.

In turn, schedule 1 of the rules refers to the Planning and Environment Act 1987, except sections 94(5) and 105.

The tribunal may exercise any of the powers referred to in section 126(2) in any proceeding.

12 What this all means is that the tribunal has the power to extend a time limit fixed by or under the Planning and Environment Act (except sections 94(5) and 105, neither of which are relevant in this context) for the doing of any act in a proceeding. The word "proceeding" is not defined in the VCAT Act. Clearly it is a term that would cover all acts that are taken from the commencement of a matter before the tribunal to its completion by the tribunal. However it is more difficult to see how it would extend to acts occurring by or in relation to a responsible authority before the application for review was commenced. It may be that the word "proceeding" could extend to a time prior to the commencement of an application for review, but, fortunately, I am not required to determine this question in this case in order to achieve the just outcome.

13 The reason for this is that the tribunal has available to it another power being clause 62 of schedule 1 of the VCAT Act. This provides:

The tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and in doing so may determine to disregard that failure if the tribunal considers it in the interests of justice to do so.

The expression "planning enactment" is defined in clause 2 of the schedule of the Act to mean, amongst other things, the Planning and Environment Act (except sections 94(5) and 105).

14 Clause 62 of schedule 1 has been considered by the Supreme Court in Rumpf v Mornington Peninsula Shire Council [2000] VSC 311; [2000] 2 VR 69. In that case Balmford J was required to consider whether clause 62 could be used to disregard a failure to comply with section 39(3) of the Coastal Management Act 1995. In her decision in Rumpf Balmford J commented that clause 62 was consistent with the general legislative approach of giving the tribunal extensive powers to enable it to resolve planning issues which arise in the community and to resolve them according to the merits of the case. She commented that, in this regard, the tribunal's powers are, in many respects, wider than the powers of the responsible authorities whose decisions it reviews. In particular she held that clause 62 could be used to confer jurisdiction upon the tribunal in circumstances where the tribunal would not otherwise have jurisdiction.

15 I hold that the requirement in section 69(1) of the Planning and Environment Act that the owner or occupier seeking to have a permit extended must apply to the responsible authority before the permit expires or within three months afterwards is a provision to which clause 62 of schedule 1 of the VCAT Act may apply. Section 69(1) imposes an obligation upon an owner or occupier to make an application to the responsible authority within a certain time if the owner or occupier seeks to have a permit extended. In my opinion, if an owner or occupier makes an application for an extension of a permit, but does so out of time, this can be characterised as a "failure to comply" with that provision. I further hold that in this case it is in the interests of justice to disregard the failure of the permit holder to apply to the responsible authority for an extension of time within the time specified in section 69(1). That being so I hold that the tribunal has jurisdiction to determine the proceeding before it, namely the proceeding which seeks to review the decision of the responsible authority in which it refused, or at least failed, to approve the extension of time.

16 I also propose to direct that the hearing of the application for review proceed forthwith. Neither that course nor the application is opposed, hence I grant the relief sought.

Schneider v Boroondara CC [2004] VCAT 642

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Judgment (30 paragraphs)

Schneider v Boroondara CC [2004] VCAT 642 (8 April 2004)

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