What you need to know about practice days

During these hearings, a tribunal member makes key decisions about how the dispute will be managed. This can include resolving procedural issues before a main hearing, deciding on any legal issues that arise, and making a final order to resolve a dispute.

This information series sets out key findings of recent practice day hearings.

More information about practice day hearings can be found here. 

Extension of time to commence a proceeding

In Broad Acres Pty Ltd v Stonnington CC [2024] VCAT 930, the Tribunal considered and refused extension of time to commence a proceeding under s 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). 

The applicant sought a review of a planning permit condition but did not lodge the proceeding within 60 days of the grant of a permit. The Tribunal noted that the application was lodged ‘roughly three weeks after the Deadline’. The applicant argued that they were still attempting to resolve the dispute with Council. The Tribunal found:

8. Turning to my findings, it seems helpful to first clarify that it is a formal statutory process involved here, then confirm that the Application was definitely lodged out of time, and then to consider whether the Tribunal’s ‘Section 126 discretion’ should be exercised here.

9. With the first point, it appears the permit applicant has fundamentally misunderstood the degree of formality with the steps that are involved here. When any of us apply for a planning permit in Victoria, you need to then move through a series of steps and deadlines set down by the PE Act. In other words, regardless of what any permit applicant and Council might think themselves, the necessary steps and the timeframe deadlines involved are mandatory under the PE Act. This creates a uniform process across the whole of Victoria for obtaining planning merits (sic) and dealing with any appeal rights that arise.

10. Being mandatory steps, it is irrelevant whether or not any one permit applicant believes that he or she was entitled to ‘lobby other parts of Council’ to try to achieve a better outcome. Once Council has issued a planning permit, ‘the horse has bolted’ and the permit holder has no choice but to comply with the relevant statutory process laid down by the PE Act, whether that person likes it or not. In other words, you cannot ‘undo’ the fact that the debate at a Council level has finished because Council has issued the planning permit, which makes the mandatory statutory steps then ‘kick in’ and any further debate needs to then happen at VCAT.

While it is open to applicants to seek an extension of time in a proceeding, whether or not an extension is granted is at the discretion of the Tribunal for the reasons given. The Tribunal emphasised that:

It seems fair to say that the Tribunal does not lightly allow such an ‘extension of time’. It is common sense and self-evident that this type of ‘60 day deadline’ is there for good reasons and needs to be taken seriously by the Victorian public. The risk otherwise is that permit applicants start treating VCAT deadlines as ‘arbitrary requirements’, which would seriously undermine having a workable planning permit application process in Victoria that the public has confidence in.

For further information see Guide time limits lodging applications planning list.

Remittal of an application 

The Tribunal can remit a review application to the responsible authority under section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) as one way of resolving a proceeding where an application is not hearing ready. In the following passages of Smith v Yarra Ranges SC [2024] VCAT 1036, the Tribunal adopted this approach:

20.  A decision to remit a matter to the responsible authority is not made lightly or without careful consideration of all the facts and circumstances. I have determined that remittal is appropriate in the particular circumstances of this proceeding including the following combination of matters:

•    It is necessary for inaccuracies to be rectified and/or modifications to be fully and accurately documented in the permit application for clarity, certainty, and to enable a full assessment under the relevant provisions of the Yarra Ranges Planning Scheme.
•    It remains uncertain as to what revisions are sought or needed and therefore whether there would be any additional permit trigger/s; and whether those persons originally notified of the permit application should be given the opportunity to consider any amended permit application and/or whether additional persons or authorities would need to be given notice.
•    The application for review is by an objector in response to a specific permit application. Errors and uncertainties with respect to the permit application are for the permit applicant to rectify or address.
•    The matter is not ready for a compulsory conference or hearing.

21. Setting aside the decision in permit application no. YR-2023/441 and remitting the matter to the responsible authority means:

•    The permit application remains live, amendments can be made to it, further notice can be undertaken if needed, and a fresh decision can subsequently be made by the responsible authority.
•    There is no proceeding still afoot at the Tribunal, and the compulsory conference and hearing dates will be vacated.
•    A decision by the responsible authority, such as to grant a permit or refuse a permit, would be reviewable by the Tribunal where an application for review is allowed by legislation and the Yarra Ranges Planning Scheme.

When should the Tribunal extend the time to commence a proceeding? 

One of the things practice day hearings consider are applications for extension of time limits to commence a proceeding, under the provisions of Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). This means VCAT can decide to extend the time limit to commence a proceeding, if it is deemed appropriate.

In Conroy v Greater Bendigo CC [2024] VCAT 644 , VCAT set out the factors for exercise of discretion regarding time extensions as:

• Whether the applicant can show an acceptable explanation for the delay.
• Whether it is fair and equitable in the circumstances to extend time.
• Whether the applicant’s actions continued to make the decision maker aware that they contests the finality of the decision as distinct from allowing the decision maker to believe that the matter was finally concluded.
• Whether the respondent has been prejudiced by the delay.
• Whether the delay may result in the unsettling of other people or of established practices.
• The merits of the substantial application.
• Consideration of fairness as between the applicant and other persons otherwise in a like position.

The Tribunal noted the factors above are based on the decision of the Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305.

In applying these factors to an application under Section 82(1) of the Planning and Environment Act 1987 (Vic), the Tribunal found that ‘whilst the purpose of time limits is to provide certainty for all, this is not a case where there has been a blatant disregard of such time limits’ and allowed the extension of time. The Tribunal noted that:

83. However, it would be a different situation if this was the only application for review lodged pursuant to section 82(1) of the PE Act with respect to the permit applicant and it was lodged out of time. The competing interest would then be whether it would be fair to grant an extension of time when the statutory time period has passed and the permit could be issued.

Practical advice

Further information can be found here.

Third party review rights and Development Plan Overlays

Permit applications on land affected by a Development Plan Overlay can raise considerations of third-party notice and review rights.

In Ritchie v Bass Coast SC [2024] VCAT 831 , the applicants sought a review of a decision of the Bass Coast Shire Council to refuse an application to build a dwelling and outbuilding on land included in the Rural Living Zone under the relevant planning scheme.

A local community group, the Residents and Friends of Ruttle Estate Inc., sought to be joined as a party to the proceeding. Under the relevant planning controls, the application was exempted from being notified to third parties and third parties did not have the right to seek review of Council’s decision.

The community group said it had a vested interest in the land, it was a beneficiary of ‘common property’ set aside for the development of a wetland area, and it had an expectation the land would be used as a wetland and not for a dwelling.

The Tribunal refused to join the community group as a party because it had not provided sufficient justification or any compelling reason to override the clear legislative intent to exclude third party participation in the decision-making process.

What does consent of a landowner mean?

Planning permit applications made by someone other than the owner of the land need to ensure that the owner has been notified. A practice day hearing can consider whether applications comply with this requirement.

In Devereaux v Greater Bendigo CC [2024] VCAT 518 , the Tribunal considered what is meant by the requirement in s48(2) of the Planning and Environment Act 1987 (Vic) for an application to ‘include a declaration by the applicant that the applicant has notified the owner about the application’.

The Tribunal agreed with the review applicant that letters provided by the permit applicant and the subsequent site visit by the review applicant did not constitute sufficient notice to the owner of the land of the application for planning permit.

The Tribunal stated: ‘Neither the letters nor the file notes from the site visit provide clear details about any application for permit for the proposal so as to constitute notice of an application for planning permit under s 48(1)(b) of the PE Act.’

However, the Tribunal said that did not mean the application for planning permit is now invalid rather, the Tribunal exercised discretion under cl 62, sch 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to disregard the permit applicant’s failure to give notice of the application to the owner of the land.

Two NODs?

The grant of a Notice of Decision is an important step in the planning process.

In Blackwell v Mitchell SC [2024] VCAT 502 , council issued two NOD for the same proposal in response to the same application. The relevant facts are:

• on 1 August 2023, council issued the first NOD;
• on 18 September 2023, council issued a permit with 1 August 2023 as the date of the permit;
• on 18 October 2023, council issued the second NOD; and
• on 13 November 2023, the applicants filed their application for review.

The Tribunal stated:

13. Once the permit issued and until its issue was invalidated by the Tribunal or the permit was cancelled by the Tribunal, council did not have any statutory power to issue the second NOD for the application for permit. The council had discharged its duty under the PE Act with respect to the application for permit. Council did not have any residual power under the PE Act to issue the second NOD.

14. On that basis, I must deal with the second NOD. Accordingly, the second NOD dated 18 October 2023 is invalid.

Does the Tribunal have jurisdiction?

Questions of jurisdiction often arise at practice day hearings.

In Mahmood v Merri-bek CC [2023] VCAT 1183 , the Tribunal considered whether it had jurisdiction to consider an application for review regarding a decision of council to grant a permit to extend time under a permit for a different period than requested.

The relevant facts are that the applicant made an application to council to extend the time for commencement and completion of the development permitted under the permit by two years. On 28 June 2023, council advised the applicant that it had considered the request for an extension of time and approved a further one-year period rather than the two years requested by the applicant.

The Tribunal agreed with a previous decision in Victton Pty Ltd v Melbourne CC [2020] VCAT 1233 and stated:

13. For completeness, I now set out the relevant parts of the decision in Victton:

64. Section 81(1) of the PE Act deals with a decision of a responsible authority to refuse to grant an extension of time, or, the failure of the responsible authority to extend the time within one month after the request for extension is made.

65. Hence, section 81(1) of the PE Act deals with where the responsible authority refuses the application to extend time or fails to extend time within the prescribed period.

66. In the present case, there is neither a refusal nor a failure to extend time within the prescribed time period; rather, there is an approval granted of a time frame different to that which was sought.

67. Notwithstanding the wording of section 81(1) of the PE Act, the Applicant contended that section 81(1) of the PE Act should be read broadly to include the situation where the decision of the responsible authority was to vary what was sought by the Applicant. The Applicant argued that a purposive reading of the PE Act supports this approach, despite the words of section 81(1) of the PE Act not specifically dealing with this situation. The Applicant argued that if Parliament had intended for this type of decision to be excluded from the ambit of section 81(1) of the PE Act it would have needed to include specific words to this effect, in circumstances where the PE Act provides broadly for merits review of decisions by the Tribunal. I was taken to section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (“ VCAT Act”) and section 85(1)(f) of the PE Act in terms of the functions of the Tribunal on review.

68. Alternatively, the Applicant says that approval for something less than what was sought could be construed as a refusal for the purposes of section 81(1) of the PE Act.

In Mahmood, the Tribunal said:

16. Having considered the facts in this proceeding, and the submissions of the parties, I concur with the reasoning in Victton and its determination that the Tribunal does not have jurisdiction to consider application P1028/2023 for the following reasons:

• there was no decision by council to refuse the extension of time. Such a decision would invoke the Tribunal’s jurisdiction under s 81(1)(a) of the PE Act;
• there was no decision of council failing to extend time within one month after the request for an extension of time was made. Such a decision would invoke the Tribunal’s jurisdiction under s 81(1)(b) of the PE Act; and
• the decision of council was to approve an extension of time to commence and complete development under the permit. There is no provision under the PE Act that allows for a review of a decision of a council to approve an extension of time to commence and complete development for a different period than was sought.

The application was summarily dismissed because the Tribunal did not have jurisdiction.

Provision of delegate report

In PB Industrial Estate Pty Ltd v Horsham Rural CC [2024] VCAT 542 , the Tribunal considered the refusal of council to provide a copy of the delegate report upon the reasonable request of permit applicant. Council said that it would provide the delegate report as required under Tribunal practice note when ordered to do so. The Tribunal said:

24. In my view, council’s response is disappointing. Council had notice that an application for review had been lodged and to my mind it is irrelevant whether an initiating order has been provided to the council. Once council has knowledge that an application for review has been lodged, it should comply with any reasonable request by a party for the provision of documents. It could refuse to provide documents if the request was somehow unreasonable. However, in this case the request was not unreasonable particularly in circumstances where council had notice that an application for review had been made to the Tribunal and it was the Tribunal that sought the delegate report.

The Tribunal also ordered council to pay costs because its behaviour was unreasonable in the circumstances.

Practical advice

Further information on the importance of the role of responsible authority can be found here.