(2) The prescribed time for the purposes of section 79 of the Act begins to run from -

(a) if within the prescribed time under section 54 of the Act the responsible authority has not required the applicant to provide it or a referral authority with further information in accordance with section 54 of the Act, the day on which the responsible authority receives the application; or

(b) if within the prescribed time under section 54 of the Act the responsible authority has required the applicant to provide it or a referral authority with further information in accordance with section 54 of the Act and the applicant has not applied for a review of the requirement and has given the information as required, the day on which the information is given; ...

7 The consequence of this provision is that if I hold that the responsible authority required the applicant to provide it with further information in accordance with section 54 of the Act on 30 December 2005, then the responsible authority acted within the prescribed time of 28 days and the prescribed time for the purposes of section 79 did not commence to run until (at least) 1 February 2006. As the application for review was lodged on 13 February 2006, the council contends that it is clearly premature, being lodged well within the 60 day period.

8 On the other hand, if I hold that the requirement was not made under section 54 until it was received by the applicant, which was 3 January 2006, then the requirement was not made within the prescribed time of 28 days. This means that for the purposes of section 79 the prescribed time begins to run from 2 December 2005, which is the date on which the responsible authority received the permit application. According to the applicant, 73 days elapsed from the date the permit application was received by the responsible authority to the date the application for review was lodged with the Tribunal, which exceeds the prescribed time of 60 days.

9 It can therefore be seen that quite a deal turns on when it can be said that the requirement for more information under section 54 was made. As an aside, I can only wonder why the planning officer at the council failed to send a copy of the request for further information to the applicant by fax on 30 December 2005 before posting it. Clearly, with the dates involved and the looming new year holiday period, making the request on 30 December 2005 was a critical issue. In the future, it may be good practice for responsible authorities to ensure that a copy of any request for more information is faxed to an applicant on the date that it is issued as well as being posted on the same date. However, that did not occur in this case and I am left to decide whether the section 54 requirement was made on the day the document is dated and was posted or was not made until the day it was received.

10 The applicant relies upon section 49 of the Interpretation of Legislation Act 1984 which 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.

11 The applicant then relies upon the following provisions to activate section 49 of the Interpretation of Legislation Act 1984.

12 Section 54 of the Planning and Environment Act 1987, insofar as here relevant, provides as follows:

(1) A responsible authority may require the applicant to provide it ... with more information before it deals with the application.

(1A) A requirement under sub-section (1) must be made by giving notice in writing setting out the information to be provided.

13 Pursuant to section 147(1)(c) of the Act:

If this Act requires a person to give, serve or publish any notice or document -

(c) the person may give or serve the document personally, by post, or in any other prescribed way.

14 Insofar as here relevant regulation 52 of the Regulations provides:

For the purposes of section 147(1)(c) of the Act, the other prescribed ways in which a person may give, serve or publish any notice or document are -

(b) if the person required to serve the notice or document has taken reasonable steps to ensure that the person to be served with the notice or document has suitable arrangements for its receipt, by document exchange, electronic communication or facsimile machine.

15 On behalf of the applicant, Mr Pitt submitted that section 54(1A) requires that the requirement must be "made" by "giving notice in writing" and that it is the giving of notice that is significant because that is how the requirement is "made". By virtue of section 49 of the Interpretation of Legislation Act 1984, the giving of notice is deemed to have been effected at the time when the letter would be delivered in the ordinary course of post. I was invited to find as a matter of fact that if the request was posted on 30 December 2005 it would not be delivered in the ordinary course of mail before the next business day after that day[2]. The next business day after 30 December 2005 was 3 January 2006.[3]

16 The same issue was considered by me in the case of McKernan v Boroondara CC[4] where I said:

[5] Section 54(1A) is a new provision inserted as part of the recent amendments to the Planning and Environment Act 1987 relating, in part, to the lapse of permit applications if more information is not provided within a specified time. In my view, section 54(1A) acknowledges the importance that will attach to a requirement for more information by requiring that the notice must be in writing. Importantly, it provides that the requirement for more information must be made by giving notice in writing setting out the information. It is therefore the making of the requirement that is significant. Consequently, it is the date upon which the requirement is made that is relevant, not the date upon which the notice is received. Too much uncertainty would arise if the latter was the case.

[7] I therefore find that for the purposes of ascertaining the date from which the prescribed time in regulation 31(2) of the Planning and Environment Act Regulations 2005 must be calculated for the purpose of an application for review under section 79 of the Act, it is the date upon which the requirement for more information is made that is relevant, and that will be the date of the written notice of the requirement which is given under section 54(1A).

17 Did I make a mistake in McKernan's case by not considering the effect of section 49 of the Interpretation of Legislation Act 1994? I do not consider that I did for the following reasons.

18 First, the statutory provision that is being interpreted is Regulation 31(2) of the Planning and Environment Regulations 2005. It talks about whether the responsible authority has required the applicant to provide it with further information in accordance with section 54 of the Act within the prescribed time under section 54. Regulation 20 provides that:

For the purposes of section 54 of the Act, the prescribed time is 28 days after the responsible authority received the application.

19 It is important to consider in this context what is the nature of the statutory scheme that is being set up here. Who has the benefit of this prescribed time period of 28 days and for what purpose? In my view, it is the responsible authority who has the benefit of this time during which to examine the application it has received and decide whether it requires the applicant to provide it with more information before it deals with the application. The 28 day period is non-negotiable. There is no opportunity for the responsible authority to extend this time either unilaterally, by agreement with the applicant or upon review to the Tribunal[5]. This is unlike an applicant who has the right to apply for an extension of time to provide more information[6] or for a review of a requirement by the responsible authority for more information under section 54.[7]

20 If a responsible authority was required to factor into the prescribed time of 28 days the time for letters to be delivered by post, it would have the effect of reducing the 28 day period it is given to make its assessment of the application. The effective period for assessment would vary depending upon when public holidays fell, as occurred in the present case, or the address of the applicant. Section 49(1)(b) of the Interpretation of Legislation Act 1984 refers to when the letter "would be delivered in the ordinary course of post." According to the Australia Post Letter Guide, this might be the next business day after lodgement day or the second, third or fourth business day after lodgement day depending on the place of lodgement and the place for delivery. As I said in McKernan v Boroondara CC, too much uncertainty would arise if this was the case and it is the date upon which the notice of the requirement is received or deemed to be received that is relevant in terms of calculating the prescribed time for the purposes of section 79 in accordance with regulation 31.

21 I do not consider this is what Parliament intended. I consider that Parliament intended a responsible authority would have 28 days in which to assess an application and to require the applicant to provide it with more information. Further, if the responsible authority requires more information within this time, the prescribed time within which it must make a decision before the applicant may lodge an application for review against failure (60 days) does not commence to run until the information is given. The intent of the statutory scheme is to ensure that the responsible authority has all the information it requires in order to assess the permit application. Thus the 28 days is a provision for the benefit of the responsible authority. I do not consider Parliament intended that this 28 day period would be truncated according to where the applicant lives or has its place of business, or for any other reason. Certainly the applicant must be given notice of what further information it is required to provide and that notice must be given in writing. But the time when the notice is received by the applicant is not critical and nothing hinges on it in the same way as things hinge on whether or not a requirement for more information is made by the responsible authority within 28 days.

22 If a responsible authority requires more information, it must be provided within a specified period of time or else the permit application will lapse[8]. The lapse date must be specified in the notice, but the applicant has an opportunity to extend the lapse date with a right of review to the Tribunal[9]. Significantly, the lapse date is not calculated by reference to the date upon which the notice is received. Section 54(1C) provides that the lapse date must be a day not less than 30 days after the date of the notice. I consider that reference to "the date of the notice" reinforces my view that it is the making of the requirement that is significant, not the date upon which the notice of the requirement is received.

23 Section 49 of the Interpretation of Legislation Act 1984 is an aid to interpretation and applies "unless the contrary intention appears". In my view, the statutory scheme evident in the provisions of the Planning and Environment Act and the Planning and Environment Regulations, which relates to the ability of a responsible authority to require an applicant to provide more information for dealing with an application and the calculation of the prescribed time for the purposes of section 79 (failure) applications for review, indicate a contrary intention. The statutory scheme envisages that a responsible authority will have 28 days from the date it receives a permit application within which to make a requirement for more information under section 54 of the Act, not some lesser period depending on the time and method of dispatch of notice of the requirement.

24 Further, section 145(2) of the Planning and Environment Act 1987 provides as follows:

(2) Unless this Act or the regulations authorise or require a notice or order to be given in any other way, a notice or order may also be served by post by prepaid letter addressed to the owner or occupier, and in proving service it is sufficient to prove that the notice or order was addressed to the usual or last-known place of residence or of business of the owner or occupier and was put into the post.

25 This provides that service of any notice to be given under the Act is effected by properly addressing the letter and putting it into the post. Thus it is the date the notice is sent that is relevant, not the date of receipt. Again, this evidences as "contrary intention" within the meaning of section 49 of the Interpretation of Legislation Act1984.

26 I therefore confirm my finding in McKernan's case that it is the date upon which the requirement is made that is relevant, not the date upon which notice of the requirement is received. More specifically, it is the date upon which the notice in writing of the requirement is dispatched. Under section 54(1A) the requirement is made by giving notice in writing. Notwithstanding the provision of section 49 of the Interpretation of Legislation Act 1984, I find this is a case where it is the actual "giving" or sending of the notice that effects the making of the requirement. The responsible authority has 28 days from receipt of the application to give the notice. This should occur on the same day as the date of the notice. If there is any discrepancy between the date of the notice and the date it is sent, it will be the date of sending that is relevant.

27 Accordingly, I find that the responsible authority in the present case made a requirement for more information on 30 December 2005. This was within the prescribed period of 28 days specified by regulation 20. Therefore, under regulation 31(2)(b) the prescribed time for the purposes of section 79 began to run from 1 February 2006, which was the day on which the information was given (subject to clarification that all the further information has in fact been given). The application for review under section 79 was lodged less than 60 days after this and hence is premature.

28 As a consequence of this finding, it is not necessary for me to make any ruling about the extent of advertising. This is a matter that will be required to be directed by the responsible authority as it continues now to process the permit application. If the applicant is dissatisfied with the level of advertising required, it may apply to the Tribunal for a review of a requirement by the responsible authority to give notice under section 52(1)(d) pursuant to section 78(a) of the Act. It is also not necessary to make any ruling on the other submissions put on behalf of the council by Mr Montebello.

[1] [2005] VCAT 2082

[2] See Kudewek v T & J Keller Builders Pty Ltd [1990] VicRp 60; [1990] VR 701 at 708-710 and the Letter Post Guide November 2005, section L3.1.2 issued by Australia Post.

[3] Mr Pitt acknowledged that the request was sent and received by facsimile on 3 January 2006 but was not received by post until 4 January 2006. However, he was prepared to accept that 3 January 2006 was the relevant date for the purpose of this argument.

[4] [2005] VCAT 2082

[5] Indeed many councils say this 'one size fits all' time of 28 days is unreasonable especially in the case of major projects of the scale of the one in this case.

[6] See section 54A Planning and Environment Act 1987

[7] See section 78(b) Planning and Environment Act 1987

[8] See section 54B Planning and Environment Act 1987

[9] See section 54A Planning and Environment Act 1987