Ibrahim v Greater Bendigo City Council
[2025] VSC 6
•17 January 2025
| 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 10 May 2023 (‘the Request’). No decision was made by the Council on the Request within the time provided by the Planning Act. The Council was unable to find any record of receiving the Request. Subsequent correspondence between the applicant and the Council culminated in a letter from the Council dated 8 November 2023 in which the Council stated its view that, as there was no record of the Request to extend the Permit being made within time, the Request could not be acted upon by Council and that the Permit had ‘unfortunately expired’.
The applicant issued an application in the Tribunal for a review of the Council’s decision under s 81(1)(a) of the Planning Act.
The Tribunal listed the proceeding for a Practice Day hearing called to determine a number of procedural and preliminary issues, including the issue of whether the Permit had expired.
At the Practice Day hearing, the Tribunal summarily dismissed the proceeding under s 75(1) of the VCAT Act on the basis that the application was misconceived as the Permit had expired, and that any exercise of the Tribunal’s discretion to extend time to bring the review was not justified.
The respondent in this proceeding is the Council, the responsible authority for the relevant planning scheme. The Council advised this Court on 19 September 2024 that it did not intend to participate in the proceeding and would abide by the decision of the Court. Consequently, submissions to the Court were made on behalf of the applicant only.
Three questions of law were identified in the Amended Notice of Appeal:[2]
[2]Amended Notice of Appeal dated 28 August 2024, exhibited in Court Book (dated 28 August 2024, filed in S ECI 2024 01872, Supreme Court of Victoria), 166 (‘Court Book’).
(a) insufficiency of reasons by which the process of reasoning could be discerned that the proceeding be summarily dismissed;
(b) whether it was reasonably open to the Tribunal to conclude that the application under s 81(1) of the Planning Act was misconceived without making a finding of whether that application was in fact made; and
(c) whether the Tribunal misdirected itself as to the operation of reg 34(1) of the Planning and Environment Regulations2015 (Vic) (‘the P&E Regulations’) and the Interpretation of Legislation Act 1984 (Vic) (‘the IL Act’) when the Tribunal found the review of the decision made 8 November 2023 was required to be made by Sunday 7 January 2024.
The focus of the applicant’s submissions was Question 3, being the alleged legal error in the Tribunal’s reasoning and conclusions as to those jurisdictional questions around time periods. It was argued that, having regard to reg 34 of the P&E Regulations and s 44(3) of the IL Act, the application for review under s 81(1)(a) of the Planning Act was made in time and, therefore, the Tribunal misdirected itself in that respect.
The applicant argued that the Tribunal’s summary dismissal of the review application was made on the basis of two conclusions which disclose error. The first was a conclusion that the application for an extension of time was out of time because it should have been made 60 days from the Council’s failure to extend time under s 81(1)(b) of the Planning Act. The second was that the Tribunal miscalculated the time under s 81(1)(a) because the time limited for making such an application ended on a Sunday and the application was filed with the Tribunal on the Monday immediately following.
Questions 1 and 2 went to the questions of adequacy of reasons. It was argued that the Tribunal’s reasons were inadequate in that while they disclosed the basis of the Tribunal’s misdirected reasoning that an extension of time was required, they did not disclose the basis or path of reasoning by which the Tribunal reached its conclusion that the application was misconceived. Additionally, the reasons did not include a finding on the material question of fact relevant to the application for review (being whether the request for an extension was in fact made).
The Court must be satisfied that the appeal has a real prosect of success in order to grant leave.[3]
[3]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(2A) (‘VCAT Act’).
For the reasons which follow, I have determined that leave to appeal will be granted in respect of Question 3. Whilst Question 2 was not pressed, I am not satisfied that there is a real prospect of success in respect of both Questions 1 and 2 which go to adequacy of reasons.
BACKGROUND TO COUNCIL’S DECISION
The Permit was issued on 18 May 2020.
Condition 19 of the Permit sets a time limit for the commencement and completion of the development of the Land:
19 EXPIRY OF PERMIT
This permit will expire if the development permitted by this permit is not completed within 2 years from the date hereof. The time within which the development must be completed may be extended, on written request to the responsible authority, before or within 6 months after the expiry of this permit where the development has not yet started or 12 months where the development has commenced.[4]
[4]The time limit in this condition reflects the default position under s 68 of the Planning and Environment Act 1987 (Vic) (‘Planning Act’).
In August 2021, around 15 months after the Permit was issued, works commenced on the Land with demolition of the existing buildings and earthworks being carried out. Approximately $37,500 of works were undertaken.
In October 2023, the applicant sought to amend the plans and, as part of the discussions between the architect retained by the applicant and the Council, it became apparent that there was a question of whether the Permit had expired pursuant to the operation of Condition 19 of the Permit.
The applicant exchanged email correspondence with the Council in October and November 2023 seeking to clarify the situation. The applicant was asked to provide evidence that the Request had been made in time. As part of the correspondence between the applicant and the Council, the applicant produced a photograph of an envelope addressed to the Council and a copy of the alleged letter seeking an extension of time to complete the development which was dated 10 May 2023.
On 8 November 2023, the Council advised the applicant that the Permit had expired. This advice followed a review of its records (undertaken at the applicant’s request) where the Council could not find any evidence that the request to extend the Permit had been made within the necessary time period.[5]
[5]Letter from Ross Douglas, Manager Planning, Greater Bendigo City Council to Bright Beginnings Learning Centre, 8 November 2023, Court Book, 110.
This correspondence was before the Tribunal in the Practice Day application and is discussed in more detail below.
RELEVANT LEGISLATIVE PROVISIONS
PLANNING AND ENVIRONMENT ACT 1987 (VIC)
68 When does a permit expire?
…
(3) A permit for the development and use of land expires if—
(a)the development or any stage of it does not start within the time specified in the permit; or
(b)the development or any stage of it is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or
(c)the use does not start within the time specified in the permit, or, if no time is specified, within two years after the completion of the development; or
(d)the use is discontinued for a period of two years.
69 Extension of time
(1A) The owner or occupier of land to which a permit for a development applies, or another person with the written consent of the owner, may ask the responsible authority for an extension of time to complete the development or a stage of the development if—
(a) the request for an extension of time is made within 12 months after the permit expires; and
(b) the development or stage started lawfully before the permit expired.
…
81 Applications for review relating to extensions of time
(1) Any person affected may apply to the Tribunal for review of—
(a) a decision of the responsible authority refusing to extend time within which any development or use is to be started or any development completed; or
…
(b) the failure of the responsible authority to extend the time within one month after the request for extension is made.
…
(3) Despite subsection (1) and clause 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, an application cannot be made to the Tribunal for review of a decision referred to in subsection (1)(a) or (aa) or a failure referred to in subsection (1)(b) unless the request to the responsible authority for the extension of time was made within the time specified under section 69(1) or (1A) (as the case requires).
PLANNING AND ENVIRONMENT REGULATIONS 2015 (VIC)
34 Applications for review under section 81
(1) an application for review under section 81(1) of the Act must be made within 60 days after—
(a) the decision of the responsible authority referred to in section 81(1)(a) or (aa) of the Act; or
(b) the failure of the responsible authority to extend the time within the one month period after the request for extension is made.
INTERPRETATION OF LEGISLATION ACT 1984 (VIC)
44Time
(1)Where in an Act or subordinate instrument a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.
(2)Where in an Act or subordinate instrument a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.
(3)Where the time limited by an Act or subordinate instrument for the doing of any act or thing expires or falls on a day that is a holiday, the time so limited shall extend to, and the act or thing may be done on, the day next following that is not a holiday.
(4)In subsection (3) holiday means—
(a)a Saturday or Sunday;
(b)a day appointed under the Public Holidays Act 1993 as a public holiday in the place in which the act or thing is to be or may be done.
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 (VIC)
4 When does a person make a decision?
…
(2)For the purposes of this Act or an enabling enactment—
(a)a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;
(b)a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision‑maker;
(c)a refusal by decision maker to make a decision under an enactment because the decision‑maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision;
(d)a failure by decision‑maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision maker at the end of that period to refuse to make the decision.
…
126 Extension or abridgement of time and waiver of compliance
(1)The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.
(2)If the rules permit, the Tribunal, on application by a party or on its own initiative, may—
(a)extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or
(b)waive compliance with any procedural requirement, other than a time‑limited that the Tribunal does not have power to extend or abridge.
(3)The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.
…
Schedule 1
…
62 Tribunal may disregard failures to comply
The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.
TRIBUNAL APPLICATION
On 8 January 2024, two months after the Council’s letter of 8 November 2023, the applicant applied to the Tribunal pursuant to s 81(1)(a) of the Planning Act, for a review of the Council’s determination that it could not consider the extension application (‘Tribunal proceeding’).[6]
[6]Application to VCAT to review the refusal or failure to extend the time of a permit, Court Book, 12.
The Statement of Grounds dated 19 February 2024[7] filed by the applicant in the Tribunal proceeding can be summarised as:
[7]Court Book, 62–63.
(a) The application to extend the Permit was made in a timely fashion.
(b) The application to extend the Permit is ‘deemed’ refused by the Council.[8]
[8]The application nominated 8 November 2023 as the date when the Responsible Authority issued its refusal, Court Book, 14 [19].
(c) The development the subject of the Permit has commenced.
(d) The extension is sought to allow completion of the development and commence the use.
(e) There is no impediment to the application being granted by reason of change to planning controls or policy, the total time elapsed since the grant of the Permit is not excessive given COVID impacts and supply chain disruptions and there is no question of warehousing the Permit, rather the applicant actively seeks to pursue the development.[9]
(f) The applicant refers to and relies on the affidavit of Mena Ibrahim (‘the Ibrahim affidavit’) made 22 December 2023.[10]
[9]These matters are referred to in the Statement of Grounds as responses to the Kantor principles: see Kantor v Murrindindi Shire Council (1997) 18 AATR 285 per Ashley J.
[10]Court Book, 7.
VCAT listed the application for a Practice Day hearing on 8 March 2024. The purpose of the Practice Day hearing was specified in the notice as being:
(a) to consider the matters raised in the application and affidavit filed by Mena Ibrahim, sworn 22 December 2023;
(b) to consider whether, and when, a request was made to the Council for an extension of time under s 69(1A) of the Planning Act, including to consider whether any request was made within the timeframes required by the Act or by planning permit DU/784/2019;
(c) to consider whether the correspondence from the Council dated 8 November 2023 is a decision of the responsible authority to refuse to extend time for the purposes of s 81(1)(a) of the Planning Act;
(d) to consider whether the application for review is made within time for the purposes of reg 34 of the P&E Regulations and, if not, consider the reasons that the application was filed out of time;
(e) to consider whether the application should be struck out or summarily dismissed; and
(f) to consider the future conduct of the proceeding. This may include a consideration of dates, duration, compulsory conference and/or venue.
The parties were directed to provide their submissions addressing the matters identified above together with any material sought to be relied upon.
Both the applicant and the Council filed submissions[11] and they made oral submissions at the Practice Day hearing.[12]
[11]Applicant, Written Submissions dated 4 March 2024, Court Book, 83–87; Respondent Council, Written Submissions (with attachments) undated, Court Book, 88–119 (‘Council’s Written Submissions, VCAT’).
[12]Transcript of Proceedings, Ibrahim v Greater Bendigo CC (VCAT Practice Day Hearing), P22/2024, Member J Perlstein, 8 March 2024 (‘Transcript of VCAT Practice Day Hearing’), Court Book, 130.
APPLICANT’S CASE AT VCAT
The Ibrahim affidavit annexed the correspondence dated 10 May 2023 which was a letter from or on behalf of the applicant formally requesting a 12 month extension of the Permit. It specifically sought an additional 12 months to complete the development. It erroneously referred to the new deadline to complete the development being sought to 18 May 2024 (the Permit would expire on 10 May 2022).
A copy of the envelope said to have contained the extension request was exhibited. It is addressed to the ‘Bendigo Council, Planning & Development Department at 195–229 Lyttleton Terrace, Bendigo’.[13] As noted in the Council’s submissions to the Tribunal, this address was inactive at this time, the site being under construction and the mail address for the Council was a post office box address. Nothing turns on this as the Tribunal was of the view that the letter would in the normal course be redirected to the Council’s correct mail address.[14]
[13]Court Book, 48. This address was not the correct address of the Council at this time; see further, Council’s Written Submissions, VCAT, Court Book, 90, [20].
[14]Court Book, 143–144.
The affidavit also exhibited email correspondence which commenced on Monday 9 October 2023 between Mena Ibrahim and an officer from the Council’s planning department.[15]
[15]Court Book, 51–53.
On 8 November 2023, the manager of planning at the Council wrote to the applicant as follows (with formalities excluded):
You are advised that planning permit DU/784/2019 has unfortunately expired.
At your request, a review of all documents associated with both the above reference planning file and the above property has occurred. That review concludes that City has no evidence that a request to extend the permit was made within the necessary period for consideration of an extension to the permit.
Unless you can produce clear evidence from Australia Post that the attached document was sent on or before 18 May 2022, the City cannot accept that a request to extend the permit was made in the required timeframe.
The Planning and Environment Act does make provision for the extension of an expired permit, where a request for extension is received within 6 months of the date of expiry (or 12 months where the development has commenced).
As the expiry of this permit occurred on 18 May 2022 and the aforementioned request was not received until 10 October 2023, the request cannot be acted upon.
Should you wish to use and develop the subject site for a childcare centre, you are obliged to apply for a new permit.
You may also wish to seek advice regarding appeal of the City’s position.
If you have any questions regarding this matter, …
[signed by Manager Planning].
The applicant’s submissions to the Tribunal at the Practice Day hearing were that:
(a) The application is made pursuant to s 81(1)(a) of the Planning Act being an application by an affected person for review of a decision which within any development or use is to be started or development completed.
(b) The Tribunal was asked to make a positive finding of fact on the basis of the Ibrahim affidavit that the application to extend the planning permit was made on 10 May 2023 and was therefore made within time.
(c) It was acknowledged that absent such a finding, the application ought to be summarily dismissed as having no proper basis and that clause 62 of Schedule 1 of the VCAT Act cannot be used to cure this defect.
(d) There is no evidence to the contrary of that deposed by Mr Ibrahim of his 10 May 2023 extension application. It was submitted that Mr Ibrahim received no response to the Council as to the mailroom processes and, therefore, in the applicant’s submission the application was made on time and should be accepted.
(e) The letter from the Council dated 8 November 2023 is a decision of the responsible authority to refuse to extend the time for the purposes of s 81(1)(a) of the Planning Act.
(f) Alternatively, it is a failure to make a decision which is a ‘deemed’ decision.
(g) The correspondence from the Council is a ‘deemed decision’ pursuant to s 4(2)(c) or (d) of the VCAT Act.
(h) The application for review to the Tribunal was made within time for the purposes of reg 34 of the P&E Regulations, having been made on 8 January 2024, being the 60th day after the deemed decision of 8 November 2023.
(i) The mathematical calculation of days would result in the expiry day being 7 January 2024. As that day was a Sunday, by operation of the IL Act, the following business day was 8 January 2024.
(j) A failure to comply with reg 34 of the P&E Regulations can be cured by reference to clause 62 of Schedule 1 of the VCAT Act. Alternatively, the Tribunal had jurisdiction pursuant to s 126 of the VCAT Act to remedy non‑compliance and allow the application for extension of time review to procced.[16]
[16]An application under s 126 of the VCAT Act was made orally at the VCAT Practice Day hearing, Court Book, 153.
COUNCIL’S CASE AT VCAT
Council attached as appendices to its written submission the correspondence between the applicant and the Council between October and November 2023.[17]
[17]Council’s Written Submissions, VCAT, see Appendices B–G, Court Book, 99–115.
This correspondence included a letter from the solicitors for the applicant dated 22 November 2023, which summarised their client’s instructions that their client maintained the request for an extension was mailed to Council on 10 May 2023 in compliance with the Planning Act, and that Council has jurisdiction to grant the extension pursuant to s 69(2) of the Planning Act. That letter observed that Council’s letter of 8 November 2023 ‘merely outlines that it has no evidence of the Extension Application being received, and does not satisfactorily outline the review measures undertaken’. It stated that in light of the circumstances, it intended to make an application to VCAT within seven days, and it invited Council to reconsider its decision.
The response from the Council dated 22 November 2023 stated:
In response to your correspondence dated 22 November 2023, no evidence from Australia Post has been provided by your client to demonstrate that a request was made to the City for an extension to the above permit within the necessary timeframe.
Should your client determine that an appeal to VCAT is the most appropriate course of action, it is their right to do so.
Council maintained it had no record of any request to extend the Permit having been received. It submitted that the request to extend the Permit was not made within the required timeframe and the application should be struck out as misconceived under s 75 of the VCAT Act.[18]
[18]VCAT Act, s 75(1) provides that at any time the Tribunal may make an order summarily dismissing or striking out all or part of a proceeding if in its opinion it is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process.
In order for an extension request to be considered under the provisions of s 69 of the Planning Act, the request would needed to have been made either within six months of expiry i.e. 18 November 2022, or within 12 months of expiry i.e. 18 May 2023, if the development had lawfully commenced.
The Council accepted that development was lawfully commenced within time and the date by which a request for extension needed to be made was consequently 18 May 2023. The Council’s submissions expressed some scepticism as to the reason why the request, if it had been made, had not been followed up and noted that this was raised with the applicant’s architects on or about 13 September 2023, a date after which the Council submitted the Permit had expired beyond resuscitation.
The Council submitted that the letter dated 8 November 2023 was not a ‘decision’ to refuse the request. Rather, it characterised the letter as merely confirming that no request had been received in time pursuant to the timeframe specified in s 69(1A) and thus the Permit had expired.
As to whether the application for review to the Tribunal under s 81 of the Planning Act was made within time consistent with reg 34, the Council submitted that an application for review under s 81 of the Planning Act was required to be made within 60 days after:
(a) the decision of the responsible authority referred to in s 81(1)(a) or (aa) of the Planning Act; or
(b) the failure of the responsible authority to extend time within the one month period after the request for extension is made.
Council submitted that if the Tribunal was of the view that Council’s correspondence dated 8 November 2023 constituted a decision not to extend the Permit (which it disputed), 60 days after that decision would have been Sunday 7 January 2024. Consequently, the application was made outside of the time limit by one day, being made on Monday 8 January 2024.
Alternatively, if the Tribunal accepted that the request to extend the Permit was received on or about 18 May 2023, the 60 day timeframe for review to the Tribunal would have to be received by Thursday 17 August 2023. Both dates had passed.
Consequently, the Council submitted that the application should be summarily dismissed as being misconceived under s 75 of the VCAT Act on the basis that no request to extend the planning permit was made within time and the Permit had expired.
TRIBUNAL DECISION AND ORDERS
At the conclusion of the hearing the Tribunal ordered that the proceeding be summarily dismissed, and gave oral reasons for the decision.
The orders made were:
1.Proceeding P22/2024 is summarily dismissed under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that the application is misconceived.
2.The hearing scheduled at 10.00 am on 27 May 2024 is vacated. No attendance is required.
On 12 March 2024, the applicant requested written reasons pursuant to s 117(2) of the VCAT Act. The Tribunal published its written reasons on 22 March 2024. Save for a correction to a legislative reference, the written reasons reflected the oral reasons given at the Practice Day hearing.
In its reasons, the Tribunal was critical of the applicant, as a professional operating in multiple jurisdictions, that it should understand the requirements of each jurisdiction and act both in a timely manner and follow up to ensure its application had been successful.
The Tribunal accepted that it had a discretion to cure the time defects in procedure, but it considered that the applicant was ‘simply asking for too many defects to be cured’ and it considered that it was inappropriate to exercise its discretion to do so.
It went then to recite the defects observing that ‘there are difficulties at each step of this matter’.
The Tribunal’s analysis was that, if it accepted that the letter was posted on the date alleged (there seemed to be some implied scepticism as to this fact), then s 81 of the Planning Act applied and the application must be made within 60 days after the decision of the Council or the failure of the Council to extend the time within one month after the request for extension is made.
The Tribunal then went on to find that the application should have been made within 60 days of the Council’s failure to determine the application. That failure to determine meant the timeframe was ‘well before November’. The Tribunal observed that it would be unusual for a Council to wait so long to make a decision. The Tribunal concluded that the application was not made with the s 81 timeframe which was sufficient to determine the application.
The Tribunal then addressed the alternative time limit trigger the applicant had argued to be available consequent upon the 8 November 2023 letter being characterised as a ‘deemed’ decision. The Tribunal concluded that the application was still out of time. The Tribunal found the application was filed on Day 61 rather than Day 60.
The Tribunal observed that by November 2023 the applicant had legal representation, had the ability to understand what the requirements were and could have applied for a review at any time before the 60 days expired. The Tribunal was critical of the applicant’s failure to attend to the permit expiry issue with haste, particularly in the face of the knowledge by then that there was a disagreement about the permit expiry and there was going to be a need for the Tribunal’s intervention with respect to matters of non‑compliance.
The Tribunal considered the case not to be one where it was appropriate ‘to use its discretion to cure multiple defects in procedure’.[19]
[19]Ibrahim v Greater Bendigo CC, 5.
LEAVE TO APPEAL CONSIDERATIONS
An appeal lies on a question of law only, with the Court’s leave, the Court being satisfied that there is a real prospect of success.[20]
[20]VCAT Act, s 148(2A).
The applicant submitted that leave should be granted in this appeal and cited principles or matters relevant to the Court in whether to grant leave in Chopra v Department of Education and Training.[21]
[21][2019] VSC 488, [22]–[23] per Richards J.
First, there was a real prospect as opposed to a fanciful prospect of success on the questions of law raised.
Second, the importance of the question of law in respect of which leave is sought, in particular in respect of the relationship between s 81(1)(a) and (b) of the Planning Act, was said to be a question of some public importance in the sense that the resolution of that question has implications for those in the position of requesting any extension to a planning permit.
Third, as to whether the proposed appeal would be futile or of limited practical impact, that was not the case here as, if the Tribunal’s decision were set aside, the merits of the application for extension of the Permit could be heard, potentially allowing the Permit to be extended and the development to proceed.
Fourth, as to errors identified, it was submitted that errors in respect of the time calculation are a reasonable reading of the reasons central to the order made by the Tribunal and the effect of the orders was final in that the application was summarily dismissed.
QUESTIONS OF LAW
(1) Do the Tribunal’s reasons sufficiently explain the process of reasoning by which it formed the opinion that the proceeding should be summarily dismissed because the application was misconceived?
(2) Was it reasonably open to the Tribunal to conclude that the application under s 81(1) of the Planning Act was misconceived without making a finding on the question of whether that application was in fact made?
(3) In concluding that any application for review of the decision made 8 November 2023 was required to be made by Sunday 7 January 2024, did the Tribunal misdirect itself as to the operation of reg 34(1) of the P&E Regulations and s 44 of the IL Act?
THE APPLICANT’S SUBMISSIONS
The applicant submitted that the review to the Tribunal was made under s 81(1)(a) of the Planning Act and was premised on:
(a) The request having been made for an extension of time under s 69(1A) of the Planning Act in the form of the letter dated 10 May 2023.
(b) A decision having been made by the Council on 8 November 2023 refusing to extend time in accordance with the request represented by the letter of that same date indicating that it considered it could not lawfully extend the Permit.
(c) Being an application for review under s 81(1) of a decision referred to in s 81(1)(a) of the Planning Act, the application for review was required to be made within 60 days after 8 November 2023.
(d) The period of 60 days after 8 November 2023 expired on 7 January 2024. 7 January 2024 was a Sunday. Having regard to s 44(3) of the IL Act, the time limited by reg 34(1) of the P&E Regulations was therefore extended to the next day and the application for review was able to be made on Monday 8 January 2024, which it was.
ADEQUACY OF REASONS (GROUNDS 1 AND 2)
Both Grounds 1 and 2 rely on an underlying argument of adequacy of reasons.
The applicant submitted the purpose and importance of reasons are well‑established and that a failure to give reasons which adequately revealed the path of reasoning which leads to the ultimate conclusion will constitute an error of law.[22]
[22]Franklin Ubaldi Foods Pty Ltd [2005] VSCA 317; State of Victoria v Turner (2009) 23 VR 110; Secretary to the Department of Justice v Yee [2012] VSC 447 (‘Secretary to the Department of Justice v Yee’).
Ground 1 alleged a failure by the Tribunal to adequately disclose the path of reasoning it followed to ultimately conclude that the proceeding was misconceived. It was submitted the decision reveals no intelligible path of reasoning by which the factors relevant to the Tribunal’s decision to make the order might be weighed and synthesised. There was no explanation of the relevance of the statutory provisions upon which the decision was based on, no consideration of any of the authorities relating to s 75 of the VCAT Act or how discretion under s 75 ought be exercised.
It was submitted in relation to Ground 1 that the failure to expose the path of reasoning led to the Tribunal’s ultimate conclusion and this inadequacy amounted to a vitiating error of law.
In relation to Ground 2, the allegation of a failure to address the question of whether an extension request was in fact made, it was submitted that the Tribunal’s written reasons did not include in those reasons its findings on material questions of fact. However, at the hearing it was considered that on a fair reading of the Tribunal’s reasons the Tribunal did proceed on the basis that the request had been made and Ground 2 was not pressed.
CONSIDERATION OF GROUNDS 1 AND 2 — ADEQUACY OF REASONS
It is uncontroversial that the Tribunal is required to provide reasons which allow a course of reasoning to be established.[23]
[23]Victoria v Turner (2009) 23 VR 110, [241]; Dimatos v Combe [2011] VSC 619, [20].
The level of detail required will be dependent to some extent on the matter before it. In determining whether reasons are sufficient, the reasons must be read fairly and as a whole without overzealous scrutiny,[24] and read in context. The context will often include the way in which the proceeding was conducted before the Tribunal.[25]
[24]Medical Board of Australia v Liang Joo Leow [2019] VSC 532, [52], [55]–[65]; Secretary to the Department of Justice v Yee, [96].
[25]Ritchie Stores Pty Ltd v Kingston City Council [2022] VSC 495, [50].
Some consideration needs to be given to the circumstances in which the decision and reasons are given, which in this instance was at a Practice Day hearing. Written submissions and oral submissions were made to the Tribunal. The Tribunal gave oral reasons and the written reasons which followed largely reflecting the transcript of the oral reasons produced.
In my view, given the written submissions which clearly stated the parties’ respective positions, the reasons for the decision given by the Tribunal are intelligible, responsive to the submissions made and enable a path of reasoning to be followed.
The grounds relating to adequacy of reasons was not strongly urged on the Court. As noted above, Ground 2 in particular was not pressed. This is understandable as Ground 3 in effect relies on the correctness of the Tribunal’s analysis disclosed by the path of reasoning to make out that ground.
I am not satisfied that Questions 1 and 2 have a reasonable prospect of success but, if leave were granted on them, I would not be satisfied that the error has been established.
The Tribunal accepted (albeit with some scepticism) that there was an application to extend the Permit made on or about 10 May 2023. As a consequence, the time for bringing an application pursuant to s 81 of the Planning Act was 60 days. The Tribunal recognised that the time period was 60 days, whether it be a failure to determine or a refusal decision.
This path of reasoning is clear.
I will consider further, for the purposes of Ground 3, the correctness of the reasoning that the Tribunal followed in concluding the right to review was in relation to a failure to determine rather than a refusal decision. However, for the purposes of Grounds 1 and 2, it is the path of reasoning rather than its correctness which is the substance of the challenge and this issue is more conveniently dealt with in the consideration of Ground 3 below.
Secondly, the Tribunal also considered the alternative proposition that the letter of 8 November 2023 was a ‘deemed’ decision, thus engaging the time limit provision set out in reg 34(1)(a) of the P&E Regulations to seek a review under s 81(1)(a) of the Planning Act for review of a decision to refuse, rather than a failure to determine review. A 60 day limit to bring the application to review also applies.
It is clear to me that the Tribunal’s approach and analysis was correct and appropriate until the point in the reasons where the 60 day time limit is applied and the calculation of time, in respect of an application brought against the refusal decision pursuant to s 81(1)(a) (as opposed to a review brought pursuant to s 81(1)(b)) of the Planning Act, was made.
It is clear that the Tribunal’s path of reasoning was, first, that it was prepared to consider that the request for extension was in fact made by the letter alleged to have been sent on 10 May 2023. It then proceeded to deal with the timeframe for the application to review the failure to determine as being one which was not made in accordance with s 81(1)(b) of the Planning Act.
The Tribunal then considers whether an extension of time ought be granted in the exercise of the Tribunal’s discretion and forms the view that too long a time has passed, given the professional capability and legal advice available to the applicant, without action tended against the exercise of discretion.
The reasons given by the Tribunal in my view adequately explain the course of reasoning.
I am not satisfied that Grounds 1 or 2 have a real prospect of success because, reading the reasons as a whole in the context of the submission made in writing and orally, the path of reasoning is clear.
Ultimately, given my conclusions on the merits in relation to Ground 3, it is not influential in the ultimate disposition of the appeal. Whether all matters relevant to the exercise of discretion to extend time to bring the review application under s 81(1)(b) of the Planning Act were fully considered becomes moot once the consideration moves to the application being brought pursuant to s 81(1)(a).
MISDIRECTION AS TO TIME — GROUND 3
By Ground 3, the applicant challenged the orders of the Tribunal in respect of the calculation of time and submitted that the Tribunal had misdirected itself in relation to the following conclusions that:
(a) firstly, the applicant should have issued an application for the review of the failure of the respondent to extend the time within one month after the extension request was made under s 81(1)(b) of the Planning Act and therefore the application for review should have been made within 60 days of such failure; and that
(b) secondly, the Tribunal concluded that if the decision of 8 November 2023 was the decision to refuse to extend the time, the application for review should have been made by 7 January 2024 and it was therefore out of time.
THE REVIEW APPLICATION PROPERLY MADE UNDER S 81(1)(A) OF THE PLANNING ACT
The applicant argued that the application for review was made under s 81(1)(a) of the Planning Act by reference to the decision of the respondent recorded in the letter of 8 November 2023. It was made on the basis that the Council’s decision (as embodied in the 8 November 2023 letter) was deemed by s 4(2)(c) of the VCAT Act to be a decision to refuse to decide to extend time.
It was submitted that it can be inferred from the Tribunal’s reasons that the Tribunal applied s 81 of the Planning Act and reg 34 of the P&E Regulations in a manner which gave them the effect of:
(a) establishing a one month time limit for a Council to make a decision on a request to extend time;
(b) obviating the ability of the Council to make a decision on request for an extension more than one month after the request is made; and therefore
(c) precluding the making of an application for review under s 81(1)(a) of the Planning Act of any decision made more than one month after a request was made.
The applicant submitted that the words of s 81(1) of the Planning Act do not indicate an intention to limit the powers of the Council or restrict the entitlement of a person who requests an extension of time in such a manner. The section should be construed liberally, having regard to its character as a remedial provision on the principle that no narrow view should be taken of the rights established by such a provision.[26]
[26]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 335 per Mason CJ.
The applicant submitted that it may be inferred from the Tribunal’s reasons that it misdirected itself to the contrary, concluding the proper construction of s 81(1) of the Planning Act was to limit the applicant only to applying for review of the failure to extend time within one month after the extension request and it was not open to make an application for review under s 81(1)(a).
On the basis of this reasoning, the Tribunal’s conclusion that the application for review was out of time was said to be inapposite to the application for review having been made under s 81(1)(a) of the Planning Act and, in doing so, the Tribunal misdirected itself and erred in law.
ALTERNATIVE ‘DEEMED’ DECISION TIME CALCULATION ERROR
The Tribunal then reasoned that if the 8 November 2023 letter was taken to represent a ‘deemed’ decision by operation of s 4(2)(c) of the VCAT Act, the application for review was one day out of time. The effect of s 44(3) of the IL Act has the effect of extending the time to, and providing that the application for review may be made on, Monday 8 January 2024.
Consequently, the Tribunal’s reasons demonstrated it misdirected itself in its approach to s 81(1) of the Planning Act and in the calculation of time.
CONSIDERATION OF GROUND 3
The first proposition to be examined is whether the application was properly an application for review brought pursuant to s 81(1)(a) of the Planning Act rather than under s 81(1)(b), a failure to extend review.
I am satisfied, as set out earlier, that the Tribunal reasoned that the letter of 10 May 2023 was assumed to be a request to extend time. The request being made before the expiry of the 12 month period set by s 69 of the Planning Act, the Council had jurisdiction to determine whether to extend the Permit. The Tribunal reasoned that as there was no decision made by Council within one month of the (assumed) request being made, s 81(1)(b) of the Planning Act required an application for review to be filed within 60 days and proceeded to assess the time for the application for review on that basis.
Clearly, the application made on 8 January 2024 was out of time by several months and, if this application were to proceed, the Tribunal would be required to consider whether to exercise its discretion to extend time under cl 62 of Sch 1 or s 124 of the VCAT Act.
However, the position consistently argued by the applicant before the Tribunal and in this appeal was that the application for review was properly brought in accordance with s 81(1)(a) of the Planning Act based on the deemed refusal of the Council on 8 December 2023. The Tribunal considered the alternative time calculation in the context of a deemed decision to refuse, and thus the relevant trigger is s 81(1)(a) of the Planning Act.
What is said to be an error of construction or a misdirection is said to be the implicit error in the interpretation of s 81 of the Planning Act and that s 81 operates as a binary choice. An application for review is available either because there is failure (s 81(1)(b)) or where there is a refusal (s 81(1)(a)), but not both. That is, once the circumstances which would enliven a review on the basis of failure have occurred, there is no subsequent right to review a refusal which is determined outside the one month time period allowed for a decision on the request to be made.
On a plain reading of s 81 of the Planning Act, I am of the view that the word ‘or’ between sub‑paragraphs (1)(a) and (1)(b) does not operate as a limitation (or a mutually exclusive choice) but as opportunities for review which may be triggered respectively by a refusal, or a deemed refusal in the case of (1)(a), or by a failure to determine the request in accordance with (1)(b).
For the purposes of whether there is a right to review under s 81(1)(a) of the Planning Act, the applicant argued both before the Tribunal and in this appeal that s 4(2)(c) of the VCAT Act is engaged in the circumstance here where the letter of the Council of 8 November 2023 provides the explanation that it has no jurisdiction to consider the extension of the Permit, the Permit having expired.
The Council’s letter of 8 November 2023 states its view of the circumstances before it at that time. They could find no record of the request having been made. The view was expressed that there was no request that they could act upon. By the time a copy of the application was brought to their attention, it was October 2023, outside the time for the request to be made in accordance with s 69 of the Planning Act. However, in my view, that characterisation does not determine the question of whether the Council’s letter of 8 November 2023 can be a ‘decision’ for the purposes of invoking the Tribunal’s review jurisdiction under s 81(1) of the Planning Act and the time limit which then applies to invoking that jurisdiction.
The Tribunal then went on to consider the calculation of time where the 8 November 2023 letter was considered to be a deemed decision to refuse. There is no explicit analysis of the rationale for the Tribunal’s acceptance that the appropriate trigger is s 81(1)(a) of the Planning Act. What is stated is an acceptance that the 8 November 2023 letter is a deemed decision pursuant to s 4(2)(c) of the VCAT Act. However, I consider that, on the facts before the Tribunal, it was open to the Tribunal to form that view and act accordingly.
In Waraglen Developments Pty Ltdv Maroondah CC,[27] the Tribunal found that a Council’s refusal to make a decision on a request for an extension of a planning permit on the basis that it said it had no power to make the decision would, by virtue of s 4(2)(c) of the VCAT Act, be deemed to be a decision to refuse the request for extension and there is a right of review under s 81(1)(a) of the Planning Act.[28]
[27](2008) 160 LGERA 408 (‘Waraglen v Maroondah CC’).
[28]Waraglen v Maroondah CC, [22]: This proceeding was a review of a decision to extend time for a permit and the availability of cl 62 of Sch 1 of the VCAT Act when the request was made outside the three month time permitted by s 69(1) (as it was then). The Tribunal recognised that there had been some debate as to whether a failure to make a decision in circumstances where there is a specific right of review in respect of a failure to decide such as s 79 and s 81(1)(b) of the Planning Act can be considered a deemed decision to refuse under s 4(2)(d). It had generally been considered that where there are specific rights of review in respect of failure, an application for review should be made under the specific provisions. Section 4(2)(d) was said to only become relevant in the context of s 51(2)of the VCAT Act in the case of a failure decision and the Tribunal would exercise its power on the basis of a deemed refusal and frame its order accordingly.
In Harvey v Mutsaers,[29] Emerton J considered an appeal against a decision of the Tribunal to extend a permit notwithstanding the Permit had expired in reliance on cl 62 of Sch 1 of the VCAT Act. Whilst that decision was made in the context of consideration of the extent of power in the Tribunal under cl 62 of Sch 1, her Honour considered that the decision was reviewable under the VCAT Act whether or not the applicants had the right to make the extension application in the first place, on the basis that a decision that purports to be made under an enactment is deemed to be a decision made under that enactment, even if the decision was beyond the power of the decision‑maker (s 4(2)(b) of the VCAT Act). Her Honour commented further that:[30]
Similarly, a refusal by a decision‑maker to make a decision under an enactment because the decision‑maker considers that the decision cannot lawfully be made is deemed to be a decision made under an enactment to refuse to make the decision (s 4(2)(c) of the VCAT Act). Accordingly, the Tribunal was properly seized of jurisdiction under s 81(1)(a) of the Planning Act to review the decision of the Council not to extend the permit.
[29][2011] VSC 23 (‘Harvey v Mutsaers’); an appeal was dismissed in Harvey v Mutsaers [2012] 35 VR 389.
[30]Harvey v Mutsaers, [32].
In Coburg Quarter Holdings Pty Ltd v Moreland CC,[31] the Tribunal applied s 4(2)(c) of the VCAT Act in determining a preliminary question of law in circumstances where the Council had argued that the request to extend time had not been validly made in accordance with s 69 of the Planning Act because the owner was not the owner and occupier of land to which the permit applied. The Tribunal found that, irrespective of any potential technical non‑compliance with the preconditions of s 69 of the Planning Act, the fact remained that the Council had failed to grant an extension of time and an application for review had been lodged in respect of it. By virtue of s 4(2)(c) and (d) of the VCAT Act, the decision was reviewable in the proceeding.
[31][2017] VCAT 879.
I accept that there is no error in the Tribunal’s acceptance that, in the circumstances, the letter of 8 November 2023 was a deemed refusal based on the effect of s 4(2)(c) of the VCAT Act and, as a consequence, the review is properly brought pursuant to s 81(1)(a) of the Planning Act.
Consequently, consideration must be given to the question of whether the Tribunal misdirected itself as to the correct calculation of time.
The Tribunal properly identified the calculation of time to bring an application for review under s 81(1)(a) of the Planning Act was 60 days in accordance with reg 34 of the P&E Regulations. However, it failed to take into account the operation of s 44(3) of the IL Act.
The calculation of the timeframe of 60 days terminated on 7 January 2024, which being a Sunday the expiry does not operate until the next business day, which was Monday 8 January 2024. This was in fact the day the application was made.
The Tribunal did not engage with this issue notwithstanding it was pointed out to it that the mathematical expiry date fell on a Sunday. I note there appears to be no explicit reference to the IL Act in the hearing before the Tribunal.[32] Rather, the transcript indicates Counsel for the applicant raised the fact that 7 January 2024 was a Sunday. This ought to have been sufficient to trigger in the mind of the legal member who was presiding the operation and effect of the IL Act.
[32]Transcript of VCAT Practice Day Hearing, Court Book, 152.
Consequently, the application for review under s 81(1)(a) of the Planning Act was made within time and the Tribunal was in error in dismissing the application for review as misconceived pursuant to s 75 of the VCAT Act.
Consequently, there is also no need for the Court to give consideration as to whether an extension of time to bring the application under s 81 of the Planning Act is required.
I will allow the appeal on Question 3.
CONCLUSION
I accept the applicant’s submissions in respect of the proper construction of s 81 of the Planning Act. I agree that the opportunity to review under s 81 of the Planning Act is not a binary or mutually exclusive one. If the facts, as they do here, provide the foundational basis for review, the fact that one trigger for review may have passed does not operate to deny a review by operation of another part of that provision.
The 60 day time limit calculation is required to be undertaken with s 44(3) of the IL Act in mind. The consequence here is that the Tribunal did not have a proper basis to determine that the application for review be dismissed summarily as misconceived under s 75 of the VCAT Act.
There was no requirement for the Tribunal to exercise its discretion to extend or refuse time to bring the application for review, the application having been brought within time. There is consequently no impediment to the Tribunal hearing the s 81(1)(a) of the Planning Act application for an extension of the permit expiry time to complete the construction under the Permit on its merits.
I will make orders generally in accordance with those sought in the Amended Notice of Appeal as follows:
(a) Leave to appeal is refused on Question 1 and 2.
(b) Leave to appeal is granted on Question 3.
(c) The appeal is allowed on Question 3.
(d) The order made by the Victorian Civil and Administrative Tribunal in proceeding number P22/2024 is set aside.
(e) The proceeding be remitted to be heard and determined by a differently constituted Tribunal.
I will further provide the opportunity for the parties to make any written submissions in respect of costs by 4:00pm on Friday, 14 February 2025.
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