Vitesnik v Macedon Ranges SC [2007] VCAT 598

Pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 the time for lodging the application for review is extended until and to include the date on which the application was lodged with the Tribunal, namely 22 February 2007.

If not already paid, the filing fee must be paid within 7 days of the date of this order.

1 This is an application under section 82 of the Planning and Environment Act 1987 by an objector to review the decision by the council to grant a permit for subdivision of the subject land into five lots. Effectively, this is a re-subdivision of six existing Crown allotments into five new lots. The purpose of this directions hearing is to consider an application under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 to extend time for commencing this proceeding.

2 The notice of decision was issued by council on 29 January 2007 and posted on the same day. Mr Vitesnik lodged his application for review with the Tribunal on 22 February 2007.

3 Mr Vitesnik challenged the fact that his application for review was out of time. Mr Vitesnik submitted that the current VCAT Planning and Environment List Guide for Objectors states that:

If the responsible authority has issued you with a Notice of Decision to Grant a Permit or a Notice of Decision to Amend a Permit you have a right to lodge an application for review against the decision, provided that you lodge your application within 21 days of receipt of the notice.

4 According to Mr Vitesnik, the notice of decision was sent to his post office box and he did not receive it (ie. collect it) until Friday 2 February 2007. The application for review was lodged by facsimile "at 21:59 on Thursday 22 February 2007, hence within 21 days of receipt of the notice"[1].

5 There are a number of reasons why I do not accept Mr Vitesnik's submission that his application for review was received within time.

6 Regulation 34 of the Planning and Environment Regulations 2005 provides as follows:

An application for review under section 82 of the Act must be made within 21 days after the responsible authority gave notice to the objector under section 64 of the Act.

7 First, regulation 34 of the Planning and Environment Regulations 2005 takes precedence over advice contained on the VCAT website. Under regulation 34, the 21 days must be calculated from time when the responsible authority gave notice to the objector under section 64 of the Act. Section 64 of the Act provides that the responsible authority must give the applicant and each objector a notice in prescribed form of its decision to grant a permit.

8 Under the heading "What About Appeals?" the prescribed form of the Notice of Decision to Grant a Permit (Form 5) included in Schedule 1 of the Planning and Environment Regulations 2005[2] states:

An Objector may apply for review of the Decision of the Responsible Authority to grant a permit. The application for review must be lodged within 21 days of the giving of this notice.

9 However, whilst the Act and the Regulations talk about "giving" notice, what does it mean "to give notice"? Section 49(1) of the Interpretation of Legislation Act 1984 provides:

(1) Where an Act or subordinate instrument authorizes or requires a document to be served by post (whether the expression "serve" or the expression "give", "send" or "deliver" or any other expression is used), the service shall -

(a) unless the contrary intention appears, be deemed to be effected by properly addressing, prepaying and posting the document as a letter to the person on whom it is to be served; and

(b) unless the contrary is proved, be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post.

10 There are two components to section 49(1) and the application of each will normally yield a different date. Which date will be relevant will depend upon the circumstances and why it is important to know when a notice (or the like) has been given. The most common reason why the date of "giving" a notice will be important is to calculate some time limit. Which date is relevant - i.e the date the letter was posted or the date it was delivered - will depend upon who has the benefit of the time limit.

11 Thus in the case of Wilbow Corporation Pty Ltd v Boroondara CC[3], I held that it was the responsible authority that had the benefit of the 28 day time limit for requesting further information under section 54 of the Planning and Environment Act 1987. Therefore what was important in that case was the date upon which the requirement for more information was sent, not the date upon which the requirement was received.[4]

12 In the present case, it is the objector who is given the notice of the decision who should have the benefit of the 21 day time limit within which to lodge an application for review. Therefore, the relevant date for calculating this time period should be the date upon which the notice is "received". Under section 49(1)(b) of the Interpretation of Legislation Act 1984 this would be when the letter containing the notice was delivered in the ordinary course of post, unless the contrary is proved.

13 To ensure consistency and certainty when calculating time limits for the lodging of applications for review, the Tribunal's practice is to apply section 141 of the Victorian Civil and Administrative Tribunal Act 1998.

14 Under the Victorian Civil and Administrative Tribunal Act 1998, section 140 deals with service of a notice, order or other document for the purposes of the Victorian Civil and Administrative Tribunal Act 1998. Section 141 provides as follows:

(1) For the purposes of this Act, a notice or other document must be taken to have been served on, or given to, a person or an unincorporated association -

(a) in the case of delivery in person - at the time the document is delivered;

(b) in the case of posting - 2 business days after the day on which the document was posted;

(c) in the case of facsimile or other electronic transmission - at the time the facsimile or transmission is received.

(2) If a facsimile or other electronic transmission is received after 4.00 p.m. on any day, it must be taken to have been received on the next business day.

(b) a public holiday or public half-holiday in the place to where the notice is sent or delivered.

15 In applying section 141 of the Victorian Civil and Administrative Tribunal Act 1998 when determining the closing date for applications against a responsible authority's decision to grant a planning permit, the Tribunal will treat the date from which it calculates the 21 day period for applications for review under section 82 of the Planning and Environment Act 1987 as being two business days after the date on which the notice of decision was posted. Thus in the present case, where the notice of decision was posted on Monday 29 January 2007, the Tribunal would consider it to have been received on Wednesday 31 January 2007. Thus the closing date for applications for review was 21 February 2007. On this basis, the application for review was lodged out of time.

16 Mr Vitesnik contended that he did not receive the notice of decision until he collected it from his post office box on 2 February 2007. However, delivery or receipt of a notice refers to the time when it is received at the address to which it is sent, not when it may be physically collected or opened by the recipient. Mr Vitesnik said he had not checked his mail box for several days before 2 February 2007, therefore he could not prove that the notice of decision was not delivered before then.

17 I therefore find that the relevant date for the purpose of calculating the 21 day time period under regulation 34 of the Planning and Environment Regulations 2005 is 31 January 2007. As the application for review was not received until 22 February 2007 (or 23 February 2007 if consideration is given to section 141(2) of the Victorian Civil and Administrative Tribunal Act 1998) the application for review was lodged out of time.

18 Having found that the application for review was lodged out of time, I must now determine whether to exercise my discretion under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 to extend the time limit for commencement of this proceeding.

19 The criteria that the Tribunal commonly considers when deciding whether to extend time for lodging an application for review are[5]:

i

What reasons are given for the delay by the applicant for extension of time in lodging its appeal?

ii

Did the applicant for extension of time take any other action (apart from the lodging of the objection or the late appeal) which continued to make the responsible authority aware that its decision to grant a permit was being contested?

iii

Will the applicant for the permit or the responsible authority suffer any prejudice if the application to extend time is granted?

iv

Will granting of the extension of time result in the unsettling of other people or of established practices?

v

Does the proposed appeal have a real chance of success?

vi

Are any considerations of fairness as between the applicant for extension of time and other persons in a like position which are relevant?

vii

Is there to be an appeal in any event brought by persons who did lodge an appeal in time?

viii

Is there any other reason why it would be fair and equitable in the circumstances for the application for extension of time to be granted?

20 None of these criteria are determinative on their own. The overriding purpose of the power to extend time is to enable justice to be done.[6]

21 Looking at the circumstances of the present case, I am not satisfied that the applicant had any good reasons for his delay. Mr Vitesnik says that he was busy consulting with the council and obtaining further documentation from them. However, once a responsible authority decides to issue a notice of determination to grant a permit, that decision cannot be changed except by order of the Tribunal following an application for review. Whether the decision was made by the council or by delegated officers is irrelevant and any time spent by Mr Vitesnik on this issue does not justify his delay. Extra information requested by him was supplied by the council well within the 21 day period. Whilst Mr Vitesnik says council officers did not address his specific concerns about the notice of decision, this is not an adequate reason for his delay in lodging an application for review.

22 There is no other application for review that has been lodged by an objector, therefore the only thing preventing the issue of a permit is this late application for review.

23 In the case of Katsanis v Wyndham CC[7] I considered a number of cases where the Tribunal had taken a stringent view about the need for objectors, to adhere strictly to the time limits allowed for lodging applications for review. In particular, I referred to the cases of Mantello Property Group Pty Ltd v Mornington Peninsula SC[8]and Becton Corporation Pty Ltd v Port Phillip CC[9].

24 In exercising his discretion in Mantello's case, Justice Morris commented on the apparent harshness of a time limit that operates so as to shut out a person if they miss it by one or two days. He went on to say:[10]

[9] ... But harsh though it is, the law requires objector appeals to be in by the day that the regulations require and that if the appeal is not in on time, the applicant for the permit has every right to think that they have a permit and not merely a decision of the council in their favour.

[18] Third party objectors in Victoria are provided with generous opportunities to participate in the permit decision making process. In most instances a range of informal consultative processes are undertaken as well as third parties having the legal right to lodge an objection which must be taken into consideration by the responsible authority before making a decision. In addition, objectors have an opportunity to lodge an application for review if a decision is made to grant a permit, but it is an opportunity with a time limit. As the Tribunal has often said, the time limit is there for a purpose and needs to be strictly adhered to. If there is a proceeding already on foot, the permit applicant may suffer little harm if time is extended, nevertheless even in these cases a proper discretion must still be exercised to enable justice to be done.

26 In the present case the permit applicant did not appear at the hearing to oppose the application to extend time. It was the applicant who produced a copy of a statement of grounds ostensibly sent to VCAT by Tomkinson and Associates which objects to the granting of an extension of time (although without providing any detail). However to date, the statement of grounds has not apparently been filed with the Tribunal.

27 The harm that the permit applicant will suffer if time is extended is that the certainty is lost of knowing that a permit will be issued once the 21 day period for applications for review to be lodged has expired and none are lodged. The permit applicant then faces the uncertainties associated with a hearing. However, since the hearing, the permit applicant has lodged an application for review under section 80 of the Planning and Environment Act 1987 against a number of the conditions. The applicant for review, and other objectors, have the right to be parties to the section 80 application if they wish. This means that many of the issues which Mr Vitesnik is concerned about will be contested in any event.

28 Section 97 of the Victorian Civil and Administrative Tribunal Act 1998 directs that the Tribunal must act fairly and according to the substantial merits of the case all proceedings. In the present case, I consider that fairness dictates a hearing where both the merits of granting the permit and the conditions are able to be canvassed. If there was no section 80 application it would be more difficult to justify the current section 126 application to extend time but as there is now another proceeding on foot, the permit applicant will not be prejudiced to the same extent by an extension of time as if there was no other proceeding. As I said previously, the overriding purpose of the power to extend time is to enable justice to be done. On balance therefore, I determine to exercise my discretion to extend time under section 126 to commence this proceeding.

[1] In fact, according to the Tribunal's records it was received at 22.51 on 22 February 2007, although nothing turns on this discrepancy.

[2] Regulation 25 of the Planning and Environment Regulations 2005 provides that a Notice of Decision to Grant a Permit given under section 64 of the Act must be in the form of Form 5.

[3] [2006] VCAT 437

[4] Section 49(1) of the Interpretation of Legislation Act 1984 was held not to apply in Wilbow Corporation Pty Ltd v Boroondara CC, but for the same reason as given here.

[5] These considerations were based on a decision of the Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305 and were enumerated in Reynolds v Macedon Ranges Shire Council (1999/33825) noted at (1997) 19 AATR 9.

[6] See Dingley Village Neighbourhood Centre Inc v Kingston CC (1997) AATR 227 at 285

[7] [2005] VCAT 824

[8] [2003] VCAT 2042; (2003) 15 VPR 255

[9] [2004] VCAT 1897