Ibrahim v Greater Bendigo City Council - [2025] VSC 6

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2024 01872

Mena Ibrahim	Applicant
v
Greater Bendigo City Council	Respondent

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2024
DATE OF JUDGMENT:	17 January 2025
CASE MAY BE CITED AS:	Ibrahim v Greater Bendigo City Council
MEDIUM NEUTRAL CITATION:	[2025] VSC 6

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ADMINISTRATIVE LAW — Appeal from VCAT — Summary dismissal of proceeding at VCAT — Expired planning permit — Request to extend time to enable completion of development commenced under a planning permit — Request to Council for permit extension made within time — No record of application received by Council — Application to Tribunal for review of deemed decision — Whether review trigger was s 81(1)(a) and s 81(1)(b) — Planning and Environment Act 1987 (Vic) (‘Planning Act’), ss 69, 81(1)(a)–‍(b) — Planning and Environment Regulations 2015 (Vic) (‘P&E Regulations’), reg 34 — Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), ss 4, 75, 126, cl 62 sch 1 — Harvey v Mutsaers [2011] VSC 23, referred to — Leave to appeal on limited grounds — Appeal allowed.

GROUNDS OF APPEAL — Adequacy of reasons — Reasons demonstrated course of reasoning — Context of decision and reasons given — Leave not granted.

STATUTORY INTERPRETATION — Calculation of time — Expiry date falling on a Sunday — P&E Regulations, reg 34 — Interpretation of Legislation Act 1984 (Vic), s 44(2).

STATUTORY INTERPRETATION — Planning Act, s 81 — Whether s 81(1)(a) and s 81(1)(b) have a mutually exclusive operation — Not mutually exclusive triggers.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Forrester	Zervos Lawyers
For the Respondent	No appearance	Maddocks

HER HONOUR:

INTRODUCTION

This proceeding is an application made under s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (‘VCAT Act’), subject to leave being granted, to appeal the orders made on 8 March 2024 by the Victorian Civil and Administrative Tribunal (‘the Tribunal’) summarily dismissing the applicant’s review pursuant to s 75 of the VCAT Act.[1]
[1]Ibrahim v Greater Bendigo CC [2024] VCAT 237 (22 March 2024) (‘Ibrahim v Greater Bendigo CC’).

The applicant, Mena Ibrahim, is the director of Bendigo Corp Pty Ltd, which is the registered proprietor of land at 22–24 Edwards Road, Kennington, Victoria (‘the Land’).

On 18 May 2020, the Greater Bendigo City Council (‘the Council’) approved and issued Planning Permit No. DU/784/2019 (‘the Permit’) in relation to the Land. The Permit provided for the use and development of the Land for a childcare centre. According to the terms of Condition 19 of the Permit, and of the operation of s 68(2) of the Planning and Environment Act 1987 (Vic) (‘Planning Act’), the Permit expired on 18 May 2022.

A request to extend the Permit was alleged to have been made by letter dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 6
Decision Date: 17 January 2025

CaseChat Overview and Summary

In the matter of Ibrahim v Greater Bendigo City Council, the dispute concerned the validity of a planning permit and the subsequent application for an extension to complete development. The case was heard in the Supreme Court of Victoria, with the appellant, Ibrahim, seeking to appeal the decision of the Victorian Civil and Administrative Tribunal (VCAT). The Tribunal had dismissed the appeal on the basis that Ibrahim had not complied with the statutory requirements for lodging an application to extend the time for completing a development that had commenced under an expired planning permit.

The central legal issues before the court were whether the statutory triggers for judicial review under sections 81(1)(a) and 81(1)(b) of the Planning and Environment Act 1987 (Vic) were mutually exclusive and whether the statutory time for lodging an application for a permit extension had been met. The court also needed to determine the correct interpretation of the Planning and Environment Regulations 2015 (Vic) and the relevant provisions of the Interpretation of Legislation Act 1984 (Vic). The appellant argued that the statutory triggers were not mutually exclusive and that the application was lodged within the prescribed time frame.

The Supreme Court found that the statutory triggers under sections 81(1)(a) and 81(1)(b) of the Planning and Environment Act 1987 (Vic) were not mutually exclusive, meaning that both could potentially apply in a given scenario. However, the court determined that the application for an extension was not made within the statutory time limit. The interpretation of the regulations and the act led the court to conclude that the application was deemed to be invalid because the expiry date of the permit fell on a Sunday, and the following Monday was a public holiday. As such, the statutory time for lodging the application had expired, and the application was deemed not to have been received by the council. The court also noted that the reasons provided by VCAT demonstrated an appropriate course of reasoning and were adequate in context.

The appeal was allowed, and the matter was remitted to VCAT for reconsideration in light of the court's determination.

Orders