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Cautionary Tale – Lodging appeals within time and recent line of decisions on late objector appeals

Article by Eliza Minney

Cautionary tale – lodging appeals within time and recent line of decisions on late objector appeals

Our office has recently been involved in a number of Tribunal decisions which highlight the importance of ensuring strict compliance with the statutory timeframes pursuant to the Planning and Environment Act 1987 (Vic) (Act) and the Planning and Environment Regulations 2015 (Vic) (Regulations) in respect of objector appeals.

In each of the matters, our office was acting on behalf of the Permit Applicant in instances where the relevant Council had issued a Notice of Decision to Grant a Permit (NOD) and an objector to the proposal had lodged an application for review pursuant to section 82 of the Act, but this had been done outside the statutory timeframe. We note that the prescribed timeframe for lodging an appeal pursuant to section 82 is informed by regulation 35 of the Regulations, which requires an application to made within 28 days of the date of notice of that decision.

Whilst the Tribunal has the power and discretion pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) to grant an extension of time for the commencement of a proceeding, in each of these recent decisions, the Tribunal did not exercise such a discretion and the objector applications were struck out. The key factors to be considered by the Tribunal in determining an application to extend time for the lodgement of a proceeding are enshrined in the decision of Katsanis v Wyndham CC (Red Dot) [2005] VCAT 824 and we say the recent decisions in which our office was involved, build upon these matters as follows:

1. Certainty in the timeframes and not unsettling established practices

In the case of Brownv Boroondara CC [2022] VCAT 99, Mr. Brown (who was an original objector) lodged a section 82 proceeding one day out of time. Mr Brown submitted that he had calculated the 28 days from the time he received the Notice of Decision, rather than the date included on the Notice of Decision (which was one day different).

In this case, there was a separate objector appeal on foot but irrespective of this, the Tribunal determined not to exercise its discretion and allow for an extension of time to commence a proceeding given, in its view, such extension would undermine the certainty and unsettle the established practices and the role of the timeframe in regulation 35.

2. Use of the correct form and understanding the information provided in the NOD  

The case ofWilkinson v Boroondara CC [2022] VCAT 218involved a third party (who was an original objector) who had lodged a “statement of grounds” form indicating her objection to the proposed development rather than the correct form for initiating a section 82 proceeding. Whilst the statement of ground form was lodged within the statutory timeframes for initiating a section 82 proceeding, it was the position of our client that it had no formal status. Ms Hopper therefore sought an extension of time, pursuant to section 126 of the VCAT Act, to lodge an application for review in the correct form.

The Tribunal, in considering this request, held that it would not be just and fair to allow such an extension and commented that the filing of a statement of grounds form (instead of an application for review form) should not be liberally construed as constituting an intention to file an application for review. On this basis, Ms Hopper’s request was refused.

3.  Location of the objector in relation to the review site

In the case of Aitken v Frankston CC, an unreported decision, the applicant who lived more than 1 kilometre from the review site sought to file a late application for review. In considering the application by the objector to lodge its proceeding outside of the statutory timeframes, the Tribunal was not persuaded to grant an extension of time and cited that their distance from the review site location as a key reason for justifying same.

4. Prejudice to Permit Applicant and whether another proceeding is already on foot

In the Wilkinson, Brown and Aitken decisions, it is relevant that each of these decisions contemplated secondary objector applications (meaning there was already an objector proceeding on foot). Accordingly, whilst such a factor could weigh in favour of an extension being granted (i.e. because there is already a proceeding on foot, therefore allowing a secondary proceeding to commence may not be considered prejudicial), it is important that the Tribunal considered the prejudice to the applicant significant in refusing to grant extensions to the secondary objector appeals in each of those proceedings, given that it would mean more time and costs to be incurred in defending the NOD position.

5. Factors which may mitigate Council providing an objector with misleading information

In Dowsett v Bayside CC [2022] VCAT 282, Council issued the relevant NOD on 19 November 2021 however the objector party was not provided with the NOD until 23 November 2021 via email (with the letter dated 22 November 2021). In this case, the Council used a prescribed form for the NoD that was more than one year out of date, which stated that the NOD “must be lodged within 28 days after the date of this notice”, meaning the objector party thought they had until 21 December 2021 to lodge an appeal (which was not the correct information).

Whilst the Tribunal found this was a regrettable error on Council’s behalf, it was noted that this error was not the Permit Applicant’s doing and instead was a matter between the Council and the objector party. Moreover, the Tribunal commented that this error was compounded by the objector party failing to lodge the application in an efficient manner (i.e. by considering the Tribunal’s guides and forms without delay) or seeking independent advice. In this case, the objector appeal was the only proceeding on foot, which also weighed in favour of the extension not being granted given the prejudice to the Permit Applicant that would follow.

These decisions provide further guidance on the principles established in Katsanis and show the importance of lodging an objector appeal within the statutory timeframes.

If you have any questions about time limits under the Act or Regulations or if you need advice on whether an application has been lodged in time, please do not hesitate to contact our planning team.

Eliza Minney

Principal Lawyer
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