1. Section 82(1) of the PE Act provides that an objector may apply to the Tribunal for review of a decision of the responsible authority.
2. Regulation 35 of the PE Regulations provides that an application for review under s 82(1) of the PE Act must be made within 28 days after the date of notice of the decision.
3. Notice under s 64 of the PE Act was given to the applicants on 30 December 2024.
4. The application for review under s 82(1) of the PE Act was lodged with the Tribunal on 2 February 2025, 34 days after the date of the notice of decision.

1. The responsible authority issued a notice of decision dated 30 December 2024 ('NOD'). It states that the proposed permit will allow:

2. The NOD also contains information as required in Form 5 of Schedule 1 of the PE Regulations and relevantly states:

1. The applicant submitted that he did not receive the NOD until three days after the date of the notice. Nevertheless, as the information contained in the NOD makes clear, an objector must lodge an application for review within 28 days of the date of the notice of decision and not the date on which the notice was received by the objector.
2. I find that the responsible authority gave the NOD to the applicant in compliance with the requirements of s 64 of the PE Act and that the NOD complied with the requirements of Form 5 of Schedule 1 of the PE Regulations.

1. On 23 January 2025, the applicant lodged with the Tribunal an application under s 87(1) and 93(1) of the PE Act. This application stated that the applicant sought the amendment of a permit including conditions or plans.[1] The application stated that the applicant believe that they were adversely affected by a material mistake in the grant of the permit.
2. An application under s 87(3)(b) of the PE Act is an application for the cancellation of a permit by a person specified in s 89 of the PE Act. It is also an application that invokes the original jurisdiction of the Tribunal and not its review jurisdiction.
3. An application under s 93(1) of the PE Act is an application to seeking an order that no development occur on land pending a hearing by the Tribunal. That application is also one that invokes the Tribunal's original jurisdiction and not its review jurisdiction.
4. The online application form used by the applicant contained the following information (in part):

1. The application also provided an email address for the applicant.
2. On 24 January 2025, the Principal Registrar rejected the application made under s 87(3)(b) and s 93(1) of the PE Act.
3. The Principal Registrar's rejection letter stated in part as follows:

Section 71 of the Victorian Civil and Administrative Tribunal Act 1998 (the Act) provides that the principal registrar may reject an application if it -

• is made by a person not entitled to make it;
• does not otherwise comply with the Act, the regulations or rules.

I have rejected your application on the grounds that you have applied under the incorrect section of the Planning and Environment Act 1987.

We draw attention to Notice of Decision provided by the council, which includes rights of review and strict timelines which must be adhered to.

We strongly suggest you seek legal or expert advice on which section of the Planning and Environment Act 1987 to apply under.

Under Section 71(2) of the Act you may request the Principal Registrar to refer your application to the Tribunal for a review of this rejection. Any request to review the rejection of your application must be made in writing within fourteen days of you receiving this notice.

1. The Principal Registrar's letter of rejection was provided to the applicant on 24 Janaury 2025 via the email address provided by the applicant on the online application form.
2. A request to refer the application to the Tribunal for a review of the Principal Registrar's rejection was not received by the Tribunal.

1. The Tribunal's records show that on 31 January 2025, George Strilakos called the Tribunal's customer service number and spoke to a customer service officer. The notes of that conversation show that there was discussion about the Principal Registrar's rejection letter, general information was given about applications under s 82 of the PE Act. George Strilakos was also informed that any application filed out of time was 'not a guarantee'. At the practice day hearing, George Strilakos confirmed that this conversation did in fact occur.
2. On 2 February 2025, the applicant lodged the s 82 application through the Tribunal's online portal.
3. The final date for the lodgement of an application for review by an objector in respect to the NOD was 28 January 2025.[2]
4. I find that the applicant's application for review under s 82 of the PE Act was lodged outside the time required under regulation 35 of the PE Regulations.

1. Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') confers on the Tribunal the power to extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding. It provides:

126. Extension or abridgement of time and waiver of compliance

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(2) If the rules permit, the Tribunal, on any 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; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

(3) The Tribunal may extend time or waive compliance under this section even if the tie or period for compliance had expired before an application for extension or waiver was made.

(4) 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.

(5) In this section - relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section.

1. Rule 4.25 and Schedule 1 of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) read together provide that the PE Act is a relevant enactment for the purposes of s 126 of the VCAT Act.
2. Clause 65(1) of Schedule 1 of the VCAT Act prohibits the Tribunal from extending the time to commence a proceeding under a planning enactment if:

(a) a proceeding in respect of the same or related facts and circumstances has already been set down for hearing; or

(b) a permit, licence or works approval has been issued to any person on or after the expiration of the time appointed for lodging an application for review of the decision to grant that permit, licence or approval.

1. Both the responsible authority and the respondent confirmed that a permit has not been issued by the responsible authority to the respondent. Clause 65 of Schedule 1 of the VCAT Act does not therefore apply on the facts in this matter.

1. The factors set out in the Tribunal's decision of Katsanis v Wyndham CC (Red Dot) [2005] VCAT 824 ('Katsanis') are often relied upon by the Tribunal when considering whether to extend time to commence applications for review under the PE Act. These factors are:
   1. What reasons are given for the delay by the applicant for extension of time in lodgings its appeal?
   2. Did the applicant for extension of time take any other action (apart from the lodging of the late objection or the late appeal) which continued to make the responsible authority aware that its decision to grant a permit was being contested?
   3. Will granting the extension of time result in the unsettling of other people or of established practices?
   4. Does the proposal appeal have a real chance of success?
   5. Are any considerations of fairness as between the applicant for extension of time and other persons in a like position which are relevant?
   6. Is there to be an appeal in any event brought by persons who did lodge an appeal in time?
   7. If there any other reason why it would be fair and equitable in the circumstances for extension of time to be granted?
2. Although not all these factors are relevant to all matters, the Katsanis factors provide a sensible framework for the Tribunal to consider matters relevant to the exercise of discretion under s 126 of the VCAT Act that are pertinent to planning matters.
3. In Becton Corporation Pty Ltd v Port Phillip CC [2004] VCAT 1897, the Tribunal stated at paragraph 7:

...I must seriously consider whether the onus, which is clearly upon the applicant, of demonstrating that the time limit should be extended has been discharged. To use the analogy of a set of scales, the onus is not discharged if the arguments on each side result in the scales being horizontal. It is necessary for the scales to be tilted, and significantly tilted, in favour of the person seeking the extension of time.

1. The applicant's reason for the delay is partly reliant on the fact that they lodged an application under s 87 and s 93 of the PE Act on 23 January 2025 that was rejected by the Principal Registrar on 24 January 2025.
2. I accept that an error was made by the applicant by completing the incorrect online application form, however the timing of completion of that form five days before the expiry of the period under regulation 35 of the PE Regulation was at the applicant's choosing.
3. When asked why the applicant did not lodge the correct application with the Tribunal by 28 January 2025 after receiving the Principal Registrar's rejection letter, the applicant submitted that he did not see that letter until a few days after it was sent. In response to my query whether the applicant could be more specific about when they saw the Principal Registrar's letter of rejection, the applicant replied something to the effect that they 'did not stand over their computer all the time' to check emails.
4. I am not satisfied with the applicant's reason for the delay in lodging the correct online application form with the Tribunal after receipt of the Principal Registrar's rejection letter for the following reasons:
   1. the applicant nominated an email address for the purpose of communication with the Tribunal;
   2. the applicant was aware that if they provided an email address to the Tribunal that email communication from the Tribunal about the application was to be expected;
   3. any failure to be aware of the communication from the Principal Registrar that the application under s 87 and s 93 of the PE Act was rejected and the correct application should be lodged within the appropriate period was caused by the applicant's own conduct.

1. I find that the facts establish that the responsible authority was aware that the applicant intended to contest its decision to grant a permit.
2. I am also satisfied that the respondent was not aware of the applicant's intention to contest the decision to grant a permit until after 28 January 2025 (when contacted by the responsible authority).

1. I accept that the responsible authority will not suffer any prejudice if an extension of time to lodge the application for review is granted.
2. I accept that upon the passing of 28 January 2025 without notification that an application for review had been lodged with the Tribunal by an objector, the respondent was entitled to proceed on the basis that it could expect a permit to issue on 29 January 2025.
3. I accept that if an extension of time is granted to the applicant, the respondent will suffer the costs of an application for review and delay in advancing the proposed development (if successful in any application for review), in circumstances where there is no other application for review by another objector before the Tribunal.
4. I accept that if an extension of time is not granted to the applicant, they are unable to seek review of the responsible authority's decision and a permit will issue to the respondent.

Unsettling of people or established practices

1. As has been observed by this Tribunal before, timeframes for the commencement of proceeding exist for very good reasons. One of these reasons is to provide all stakeholders in the decision-making process certainty as to the outcomes that can be expected once a decision is made. The grant of an extension of time to commence this proceeding on the facts before the Tribunal would unsettle established practice in the absence of an adequate justification for the delay in filing the application for review on time.

1. When considering an application under s 126 of the VCAT Act, the Tribunal does not undertake a detailed review of the merits of the application for review, however relevance of grounds to the permissions required under the scheme should be considered.
2. The subject land is included in the General Residential Zone ('GRZ') under the Whitehorse Planning Scheme ('scheme') and included in the 'Classic Garden Suburban Areas' under Schedule 3 to the GRZ.
3. Clause 32.08-1 of the scheme provides that a schedule to the GRZ may contain neighbourhood character objectives to be achieved for the area.
4. Schedule 3 to the GRZ does not identify any neighbourhood character objectives to be achieved for the area.
5. Ground 1 alleges that part of the proposed development does not meet the 'Neighbourhood Character Objectives of the area'. (There are no neighbourhood character objectives prescribed for any land in the GRZ). As there are no prescribed neighbourhood character objectives that apply to the area in which the subject land is located, it is difficult to see how ground 1 can be sustained.
6. Ground 2 alleges that the proposed development will significantly reduce the applicant's daylight to habitable rooms. The delegate report states that Standard B19 (clause 55.04-3) is met. Where standard B19 is met by a proposal, the relevant objective to allow adequate daylight into existing habitable room windows is deemed to have been met. The applicant does not allege that Standard B19 has not been met by reference to diagram B2 'Daylight to existing windows' and the permit application plans. On the material before the Tribunal, it is difficult to ascertain whether there is any merit in this ground.
7. Ground 3 refers to concerns regarding the impact the development will have on the major drain on the corner of Summit Road and McGowans Lane. The applicant alleges that stormwater and drainage issues have been ignored and there has been no mention of how these issues will be addressed.
8. The notice of decision contains six conditions that specifically address stormwater and drainage issues arising from the proposed development. These are proposed conditions 12, 13, 14, 15, 16 and 17. Contrary to the applicant's allegation, the proposed conditions set out the means by which the stormwater and drainage issues, including those impacting on public authority assets, will be addressed. On the current material before the Tribunal and the contents of ground 3, I am not satisfied that this ground has merit.
9. Ground 4 alleges that the reduction in natural sunlight that meets the 'compliant standards' will significantly reduce the applicant's quality of life.
10. Clause 55.04-5 of the scheme sets out the overshadowing open space objective and sets Standard B21 as the relevant standard. Where that standard is met, the objective of clause 55.04-5 is met (see clause 55 - Operation). There is no requirement for the respondent to provide more access to sunlight than provided for under Standard B21. I am not satisfied that there is merit in this ground.
11. Ground 5 alleges that proposed unit 1 will cause a major encroachment to Tree #1 in the front yard of the subject land such that the health and safety of the applicant's household is at risk. The ground is based on an assessment of the permit applicant materials (including the arborist report that accompanied the permit application). The ground does not extend to allegations or criticisms of the proposed conditions that require further investigation and protection of all trees to be retained on the subject site. I have assumed that the applicant does not consider these conditions either sufficient or appropriate. This ground does raise a relevant consideration in light of the permission required under clause 42.03-2 of the scheme and is therefore arguable, however this ground does not tilt the scales in favour of granting an extension of time to the applicant.

1. On balance, after consideration of all of the above matters, I am not satisfied that the applicant has discharged their onus that the scales are tilted in favour of a grant of an extension of time to commence this proceeding. The unsatisfactory reason for the delay in lodging the application for review under s 82 of the PE Act after receiving the Principal Registrar's rejection of their initial application weighs heavily against the grant of an extension of time which is not overcome by any other consideration on the facts before the Tribunal.
2. The applicant's application for an extension of time under s 126 of the VCAT Act is refused.

[2] Allowing for the public holiday on 27 January 2025.