Victorian Civil and Administrative Tribunal|2004-08-25|Before: Tylden Nominees P

Tylden Nominees PL v Macedon Ranges Shire Council [2004] VCAT 1655 (25 August 2004)

Application under S.81(b) of the Planning and Environment Act 1987 for review of the failure of the Responsible Authority to extend time. Rural Living Zone. Environmental Significance Overlay. Dwelling (A single dwelling on each of 34 lots). Ambit of discretion. Significance of the heritage place. Effect on the significance of the heritage place. The public realm. Demolition. State and Local Planning Policy Framework. Zone Purposes. Neighbourhood character. Extension of time for the completion rather than commencement (Juric v Banyule CC [2002] VCAT 396). Effect of conditions. Comprehensively considered. Practical consequences.

The order of the Tribunal is that the decision of the Responsible Authority is set aside. In accordance with S 85(f) of the Planning and Environment Act 1987 the Tribunal directs that the time for the completion of the development granted by Permit PA6111 must be extended until 25 August 2008.

1 This is an application to review the refusal of the Responsible Authority to extend the life of a permit first issued in 1988 at the direction of the then Administrative Appeals Tribunal. The permit allowed the construction of 34 dwellings, a single dwelling on each of 34 existing lots. The lots form part of what is known as the Woodleigh Heights estate which was in part developed as a time-share resort. The Responsible Authority has extended the permit on a number of occasions, the most recent being in 2002 when the permit was extended until March 2004.

2 The Responsible Authority in this instance resolved:

That council resolves to refuse to extend the time of planning permit PA6111 and advises the Applicant that any future proposals related to the use and development of the land subject to the permit will be assessed against the controls of the land specified in the Macedon Ranges Planning Scheme.

3 The parties at the hearing of the application for review relied on both written and oral submissions and a number of documents, plans and photographs were tendered to the Tribunal.

4 At the conclusion of the hearing the Tribunal gave oral reasons for its decision to set aside the decision of the Responsible Authority and direct the extension of the permit. A summary of the Tribunal's reasons is set out below:

* I agree with Mr Hooper's submissions that this is a case where the application is for an extension of time for the completion of the development permitted. The original permit has already in part been acted upon. Mr Hooper relied on the decision of Mr Byard in Juric v Banyule CC [2002] VCAT 396. It was submitted that this decision gave support to the following propositions or principles:

* There was no question that the works had commenced within time allowed under the permit [as extended] as is the situation in the present case.

* The works that had been carried out were substantial and not merely of a token nature.

* It is inappropriate to consider a completion application solely on the principles applicable to commencement applications.

* A substantial commencement, where significant amounts of work have been carried out and a significant commitment in terms of time and money have been made, the face and nature of such a commencement is a relevant consideration, indeed an important consideration, in relation to a completion case.

* The purpose and objectives of limiting times for completion for development are very different to those kinds of safeguards the limitation of times for completion are designed to achieve.

* The critical period for consideration is the period of time allowed by the last extension, and in particular the time that was available and has elapsed since the commencement of the development within that time.

* A reasonable explanation of why a Permit Holder has been held up and left with insufficient time to complete the development is a compelling reason in favour of an extension.

* In completion cases unless planning scheme changes significantly alter the planning situation and considerations they are not an important consideration enough to warrant the refusal of an extension.

* The views of any referral authority and possible objector are not relevant unless it can be demonstrated that some new or significant change to the circumstances has occurred of a kind that would be likely to warrant a different view to the one taken when the permit was granted.

* The nature of the extension to complete that should be given, should allow for sufficient time that is reasonably calculated and foreseeable as would be necessary to carry out the completion of the development permitted.

* The delay has primarily resulted from the delay in the delivery of reticulated services to the subject lots in accordance with the requirements of the permit. The issues in relation to reticulated services have recently been largely resolved.

* In my view the provision of this reticulated infrastructure is a substantial part of the permitted development, and the permit holder has already invested significantly both in terms of time and money in the provision of these services.

* The existing permit provides a comprehensive set of controls over the development of dwellings of the subject lots, notwithstanding the inauspicious wording of some of the conditions. Mr Hooper in particular drew the attention of the Tribunal to condition 1 submitting that the condition gave the Responsible Authority a broad power to require the submissions of plans and information, and to approve the development of a dwelling on the particular lot in accordance with the submitted plans and information.

* The original assessment of the proposal, for the Administrative Appeals Tribunal, was comprehensive, and dealt with all the issues which could be reasonably said to be addressed by the current planning scheme provisions, in particular the zone and overlay provisions.

* Whether or not I extend the life of the current permit, there are 34 separate lots, and it can be reasonably anticipated that ultimately a dwelling will be constructed on each of the lots, upon the provision of reticulated services. Having regard to the comprehensive nature of the permit's conditions it seems to me that there is little to be gained by refusing to extend the life of this permit, with the result that each lot gets dealt with on a lot by lot basis.

5 I agree that a four year extension of time is reasonable in the context of the negotiations and works to be completed. A further extension may be feasible having regard to the scope of the works involved, but that would depend on whether or not a view is formed about the reasonableness of the action taken in the intervening period, having regard to the remaining obstacles to completion, if any.

Environment Act 1987

Tylden Nominees PL v Macedon Ranges Shire Council [2004] VCAT 1655

At a glance

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Decision date

Before

Source

Judgment (26 paragraphs)

Tylden Nominees PL v Macedon Ranges Shire Council [2004] VCAT 1655 (25 August 2004)

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Legislation Cited (1)