[19] Neither the planning scheme nor planning policies have changed to any significant degree subsequent to the grant of the original permit. The land remains in a Residential 1 zone and the Heritage Overlay continues to apply to the land. The permit triggers under the overlay and the decision guidelines are substantially the same now as they were in 2003. ...

1. Apos is therefore different to the present case because in Apos there had been no change to the planning controls since the permit was granted. In addition, development had commenced under the permit and it was only the time for completion that was being extended.
2. In Mitchell v Kingston CC[4] the Tribunal extended the time to both commence and complete the development and then made certain amendments to the permit relating to the design of the development. There was no substantive discussion in the Tribunal's reasons about the extension of the permit. However, it is noted that the council did not oppose the request to extend the permit for another two years and there was no change in the circumstances since the issue of the permit.
3. In both Apos and Mitchell it is significant that there had been no change to the planning controls since the permit was issued and that the grant of the permit therefore remained appropriate in its original form.
4. In Snooks v Mornington Peninsula SC[5] Member Martin converted the application (originally under section 87A) to a dual application under both sections 81(1)(a) and 87A of the Planning and Environment Act 1987 to enable him to extend the time within which the development in the permit was to commence and to be completed, and then to amend the permit to include new conditions as required under the Wildfire Management Overlay. The Wildfire Management Overlay was applied to the land subsequent to the original issue of the permit. All parties, including the CFA, consented to the amendment of the permit to include the new conditions. Member Martin relied on the precedent for taking this approach established by Deputy President Dwyer in Travis Monett v Mornington Peninsula SC[6].
5. The factual situation in Travis Monett is different to that in Snooks. In Travis Monett, there had been a change in planning controls, which now required a permit for use in addition to development. The permit was for development only. The Tribunal extended the permit for development and then amended the permit to include a condition requiring a new planning permit to be obtained for the use of the land for a dwelling in accordance with the planning scheme. In his reasons for decision, Deputy President Dwyer said:

[1] This application had sought an amendment of a permit to construct a dwelling. However, the permit had recently expired. The permit holder had sought an extension of the permit, but had not lodged an application to bring that matter before the Tribunal. I therefore amended the application so that the "extension" issue could also be dealt with.

[2] The permit has been previously extended. Since the original issue of the permit, the land has been re-zoned and is now in a Green Wedge Zone within which a permit is required to "use" land as a dwelling. The present permit is only for "development" - ie the buildings and works to construct the dwelling. For this reason, the responsible authority opposed the extension or amendment of the permit unless or until a permit for "use" was also obtained so as to assess and ensure compliance with the intent of the Green Wedge Zone. The issue of a permit for a dwelling in this zone is not guaranteed. Alternatively, the responsible authority contended that I should refuse any application for extension of the permit, and require the permit holder to seek a fresh permit for both use and development.

[3] For the permit holder, it was contended that the responsible authority's position had not been previously articulated in this way. However, I am satisfied that there does need to be some resolution of the "use" issue prior to any commencement of development, as the construction of a dwelling should not occur if the use of the land for a dwelling is not authorised.

1. Thus in Travis Monett, the Tribunal did not purport to amend the permit to conclude the additional primary permission required under the new planning control. Rather, it left that to be determined by way of a separate permit application.
2. I am not sure that collectively these cases provide any consistent guidance as to when a permit should be extended to facilitate its amendment. Instead, I consider that each case must be determined on its own merits.
3. There are, however, a number of general observations that can be made.
4. First, a separate decision needs to be made in respect of each application that is before the Tribunal upon its own merits.
5. I would not endorse the approach that appears to have been taken, for example in Snooks and Travis Monett, where a single application to amend a permit (under 87A Planning and Environment Act 1987) was "amended" to also include an application to extend time under section 81(1)(a). These are separate types of applications and should not be morphed into one simply to achieve a particular desired outcome, no matter how convenient.
6. If the only application before the Tribunal is an amendment application and the permit has expired, then the Tribunal has no power to amend the permit. The Tribunal should ensure there is a valid application for review under section 81(1) Planning and Environment Act 1987 before it before making any decision about whether to extend the permit.
7. The Tribunal should be particularly wary about allowing applicants to seek to revive expired permits in order to amend them, when an application to extend the permit was not made to council within the three month period after the permit expired specified in section 69(1) of the Act. On occasions, the Tribunal will exercise its discretion under clause 62 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 to disregard the failure to request an extension within three months, and will then proceed to make a decision on an application for review under section 81(1). However, the Tribunal should only exercise its discretion under clause 62 if it considers it is in the interests of justice to do so. That issue will need to be determined on the basis of individual circumstances. Relevant matters likely to be considered are issues such as the length of time a permit has been expired and whether development has commenced under the permit.
8. If discretion is exercised under clause 62, a decision will still need to be made based on the Kantor criteria as to whether the permit should be extended. The generally accepted criteria, which guide the exercise of discretion about extensions of permits, were established by the Supreme Court in Kantor v Murrindindi Shire Council[7]. They can be summarised as:
   • Whether there has been a change of planning control or planning policy.
   • The probability of a permit issuing should a fresh application be made.
   • The total elapse of time.
   • Whether the land owner is seeking to warehouse the permit.
   • Intervening circumstances.
   • Whether the time limit originally imposed was adequate.
   • The economic burden imposed on the landowner by the permit.

1. In the present case, a request was made to council by the applicant to extend the permit before the permit expired. Therefore, no question of discretion under clause 62 arises. There is a valid application for review under section 81(1) before the Tribunal as well as an application to amend the permit under section 87A.
2. The question is whether, in deciding whether to extend the permit, I can or should take into consideration the proposed amendment to the permit. This issue arises in the context of considering the first two Kantor criteria:
   • Whether there has been a change of planning control or planning policy; and
   • The probability of a permit issuing should a fresh application be made.
3. There has been a change of planning control with the introduction of a Heritage Overlay. This means that the permit could not be acted upon without further consent for demolition under the Overlay. However, the need for an additional consent does not automatically mean that a permit should not be extended. The real issue is whether a permit is likely to issue if a fresh application was made.
4. In the present case, there is no doubt that a permit would be issued for alterations and additions and for partial demolition of the existing building if a fresh application was made. This extension of the permit will not allow anything that would now be inappropriate or prohibited under the amended planning controls. What the permit allows, however, will need to be amended to include the additional consent required under the Heritage Overlay. I consider that an extension of the existing permit would be appropriate in this case.
5. In making this decision, I consider it would be highly artificial to completely disregard the proposed amendment, which is the subject of the concurrent amendment application. In this situation, I consider I should apply the principles set out in sections 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998, in particular section 98(1)(d). They provide that:
   1. The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
   2. The Tribunal -

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

1. I consider I am entitled to be informed by both applications currently before me when deciding whether to extend the permit. The criteria in Kantor are guidelines: they are not mandatory requirements. I have considered the other principles in Kantor v Murrindindi Shire Council and conclude that, apart from the issue of the change in planning control since the permit was issued and the likelihood of a new permit issuing, none of the other criteria would lead me to a conclusion that the permit should not be extended.
2. The permit remains an appropriate permit under the current planning controls apart from the Heritage Overlay. Whilst the permit cannot be acted upon until the additional consent is given, it does not mean that the permit should not be extended. By extending the permit, I am then able to amend it to provide the additional consent requests under the Heritage Overlay and to approve the modified design. The council has assessed the proposed amendment against criteria in the Heritage Overlay and considers that the amended permit would be acceptable under this control. The adjoining landowner, who had previously objected to the permit, now supports the amendment.
3. In this way, I consider that I have acted fairly and according to the substantial merits of both proceedings. The permit satisfies all planning controls and the applicant may commence his proposed alterations and additions without the delay associated with having to lodge a fresh application.
4. For these reasons, I will therefore extend the permit and then amend it pursuant to section 87A.

[1] Dunstan v Stonnington CC [2008] VCAT 1064 (application P255/2008)

[2] 18 AATR 285

[3] [2009] VCAT 103

[4] [2010] VCAT 1273

[7] (1997) 18 AATR 285