VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P594/2023
Permit Application no.WH/2014/823 	
CATCHWORDS	
Application under section 81(a) of the Planning and Environment Act 1987 (Vic) – Review of refusal to extend the time within which any development is to be started or any development completed – Fifth extension of time – Kantor principles – AMV Homes principles – Lapse of time – Warehousing – Probability of a permit being issued.	

ApplicantS	See Song Yew & Geok Poh Yew	

Responsible Authority	Whitehorse City Council	

SUBJECT LAND	80 Winfield Road
BALWYN NORTH  3104	

HEARING TYPE	Hearing	

DATE OF HEARING	25 July 2023	

DATE OF ORDER	30 August 2023	

CITATION	Yew v Whitehorse CC [2023] VCAT 1000	

Order
Amend name
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) the application is amended by changing the name of the applicants to:
See Song Yew & Geok Poh Yew
2	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicants to:
See Song Yew & Geok Poh Yew
Extension of time of the permit
3	In application P594/2023 the decision of the responsible authority is set aside.
4	Pursuant to section 85(1)(f) of the Planning and Environment Act 1987 (Vic), in planning permit WH/2014/823:
(a)	The time within which the development is to be started is extended to 30 August 2025.
(b)	The time within which the development is to be completed is extended to 30 August 2027.

Sarah McDonald
Member			

Appearances
For applicant	How Ng, planning advocate,
Melbourne Planning Pty Ltd; and
Levi Adapon, building designer.
He called the following witness:
•	Nick McKenzie, traffic engineer,
Ratio Consultants Pty Ltd.	
For responsible authority	Kate Kennedy, lawyer, Planology.	

Information
Description of proposal	Extend the time of the permit to:
•	Extend the time to commence the development; and
•	Extend the time to complete the development.
The permit allows the development of four dwellings.	
Nature of proceeding	Application under section 81(a) of the Planning and Environment Act 1987 (Vic) (‘PE Act’) – review of refusal to extend the time within which any development is to be started or any development completed.	
Planning scheme	Whitehorse Planning Scheme (‘Scheme’).	
Zone and overlays	Neighbourhood Residential Zone – Schedule 2 (‘NRZ – Schedule 2’); Significant Landscape Overlay – Schedule 9 (‘SLO – Schedule 9’).	
Land description	The subject land is on the south-eastern side of Winfield Road, Balwyn North.  The land is a regular shape, with an 18.3 metre frontage to Winfield Road and area of 1,591 square metres.
A detached house, with a driveway adjacent to the northern boundary, currently occupies the subject land.
The surrounding area is residential, with a mix of single detached houses and multi-dwelling developments.  The rear boundary of the land adjoins a public reserve.	

  Reasons
What is this proceeding about?
1	See Song Yew and Geok Poh Yew (‘applicants’) are seeking to extend the time of planning permit WH/2014/823 (‘permit’) that applies to the land at 80 Winfield Road, Balwyn North (‘subject land’).  The permit allows the development of four dwellings on the subject land (‘development’).
2	The permit was issued on 2 March 2016.  The permit conditions allowed two years for the development to be commenced and four years for the development to be completed from the date of the permit.
3	The time allowed under the permit to commence and complete the development has previously been extended four times.  The last extension of time allowed for the development to be:
•	commenced by 2 March 2023; and
•	completed by 2 March 2024.
4	The development has not commenced.
5	The applicant has sought to extend the time of the permit for two years.  The Whitehorse City Council (‘Council’) has interpreted this as an extension of two years to commence the development and two years to complete the development.
6	The Council has refused to grant the extension of time.  The applicants have sought this review of that decision.
7	The applicants’ grounds for review are:
•	The refusal may be invalid because it has no grounds for refusal.
and
•	The refusal is unreasonable as the applicants have tried very hard to satisfy the conditions of the permit especially the crossing onto Winfield Road.  The Council's Town Planner has taken a harsh approach in approving the endorsed plans.
8	It is the Council’s position that:
9.2	The time limits imposed to commence the development through four previous extensions of time were adequate and the Applicants have not advanced sufficient justification to warrant a further extension.
9.3	The Applicants have not actively progressed the pre-commencement steps required to act on the Permit, noting there are still no endorsed plans for the development, nor have the Applicants lodged a section 72 application to amend the Permit, as anticipated since 2021.
9.4	In the event a fifth extension is granted by the Tribunal, the Applicants are not ready to commence construction.
9.5	When all relevant considerations are weighed, the balance lies in favour of refusing a fifth extension of time.
9	The Tribunal must decide whether the time of the permit should be extended and, if so, what time should be provided to commence and complete the development.
10	Based on the submissions, and the relevant facts, circumstances, and considerations, I consider the key issues to be decided to relate to:
•	the lapse of time between the permit and the request, and whether the landowner is seeking to ‘warehouse’ the permit;
•	the probability of a permit being issued should a fresh application be made;
•	whether the applicants have advanced good reasons as to why an extension should be granted; and
•	what extension of time should be provided if the time of the permit is extended.
11	Having considered the submissions, and the relevant provisions of the PE Act and the Scheme, I have decided to extend the time of the permit.  My reasons follow.
What are the relevant facts of the case?
12	The permit application for the development was made in July 2014, and the Council refused to grant a permit for the development in April 2015.  At the time the Council decided on the application the subject land was zoned NRZ – Schedule 7 and affected by the Vegetation Protection Overlay – Schedule 2 (‘VPO – Schedule 2’).
13	The permit was issued in 2016 at the direction of the Tribunal based on a consent position agreed between the parties to a review proceeding regarding the Council’s refusal of the permit.
14	The permitted development comprises four townhouses, which are part-two and part-three storeys in height, each with a two-car garage accessed from a driveway along the southern side of the subject land to be accessed from a new vehicle crossover (‘vehicle access’)from Winfield Road in the south-western corner.
15	The permit includes conditions that require various plans and other documents to be prepared and approved before the development commences.  These include, in summary:
•	Condition 1 – amended plans showing various changes to the siting and design of the development and to demonstrate ingress and egress to/from each car space;
•	Condition 3 – a landscape plan; and
•	Conditions 6 – civil plans and computations for stormwater detention.
16	The Council has not yet endorsed the various plans required by the permit conditions.
17	Condition 13 of the permit sets the time within which the permitted development must be commenced and completed.  It allowed two years from the date of the permit to commence the development and four years from the date of the permit to complete the development.  Condition 13 also provides that the responsible authority (the Council) may extend these periods pursuant to the provisions of section 69 of the PE Act.
18	Under the provisions of condition 13 the development was required to be commenced by 2 March 2018 and completed by 2 March 2020.
19	Since the permit was issued, the time to commence and complete the development has been extended four times as summarised as follows:
•	First extension (20 October 2017) – extended the time for commencement to 2 March 2019.
•	Second extension (7 February 2019) – extended the time for commencement to 2 March 2020 and the time for completion to 2 March 2021.
•	Third extension (12 November 2019) – extended the time for commencement to 2 March 2021 and the time for completion to 2 March 2022.
•	Fourth extension (27 November 2020) – extended the time for commencement to 2 March 2023 and the time for completion to 2 March 2024.
20	The applicants’ representative applied to the Council on 16 December 2022 to extend the time of the permit.  The request included the following information in support of the request:
Please note the following items that contributed for this application 
1.	We are working through the design difficulties and issues with the planning condition requirement with the proposed crossover in front of an existing speed hump. 
2.	We foresee that we cannot have all the documentation aligned to be able to commence by the permit date 
3.	The consultants will need to re-document the entire project and go through the building permit procedure.
21	The Council refused to extend the time of the permit on 8 March 2023.  Although not explicitly listing its reasons to refuse the application, the Council’s ‘Planning Section Report – Extension of Time – Delegate Report’, addresses matters relating to change in planning policy, warehousing the permit, intervening circumstances, total elapse of time, adequacy of original time limit, economic burden cast by a permit, and probability of a fresh permit being granted.
22	If the extension of time is not granted, the permit expired on 2 March 2023, as the development was not commenced by that date.
23	The land is now zoned NRZ – Schedule 2 and affected by the SLO – Schedule 9.
What are the key considerations?
24	The application to extend the time of the permit is made under section 69 of the PE Act.  Section 69 of the PE Act does not include specific provisions for guiding decisions on extensions of time.  Nor does section 81(1) of the PE Act, under which this application for review has been made, include provisions for guiding decisions on extensions of time.
25	The parties have referred me to the decisions in Kantor v Murrindindi Shire Council (Kantor) and AMV Homes Pty Ltd v Moreland CC (AMV Homes) as providing well-established principles for assessing requests for extensions of time.  
26	The Council summarises the Kantor principles as follows:
20.1	whether there has been a change of planning policy;
20.2	whether the landowner is seeking to warehouse the permit;
20.3	any intervening circumstances bearing upon grant or refusal;
20.4	the total elapse of time;
20.5	whether the time limit originally imposed was adequate;
20.6	the economic burden imposed on the landowner by the permit; and
20.7	the probability of a permit issuing should a fresh application be made.
27	The Council summarises the AMV Homes principles as follows:
21.1	an applicant should advance good reasons as to why an extension should be granted;
21.2	a request should not be approved simply because it has been asked for;
21.3	the Kantor ‘tests’ are not mandatory nor exhaustive;
21.4	there may be other relevant considerations to those articulated in Kantor, including matters of natural justice and equity;
21.5	that the approved development is now prohibited does not mandate a decision refusing to extend the time to commence a development.  However, it is something that would usually be expected to be one factor weighing against an extension of time; and
21.6	each case needs to be decided on its own facts and circumstances including whether and how the development in question would undermine or offend the changed policy or planning control regime.
28	The Council’s submissions include:
… an assessment against the Kantor considerations is not a ‘check the box’ process.  Rather, the decision-maker must balance the factors having regard to the overall circumstances of the case.
What are the Tribunal’s findings?
The lapse of time between the permit and the request, and whether the landowner is seeking to ‘warehouse’ the permit
29	There are several aspects regarding this permit that might typically give rise to a finding that the applicants may be ‘warehousing’ the permit.  These include the fact that it is over seven years since the permit was issued, the development has not commenced, and none of the plans that are required to be endorsed under the permit conditions prior to the commencement of the development have been endorsed.
30	Despite this, I am persuaded that the applicants, through their representatives, have tried to get the amended plans required by condition 1 of the permit endorsed by the Council so that they can proceed with the development.
31	From the information before me, it is obvious that the applicants have had some difficulty getting the Council to agree to the vehicle access to the subject land.  Based on the submissions and evidence, the issue regarding the vehicle access emerged in 2019.  Based on Mr McKenzie’s evidence, I am persuaded that the applicant was seeking to resolve the issue regarding the vehicle access from when the issue emerged in 2019 and throughout 2020 and 2021.
32	In correspondence dated 11 September 2020, the Council made it clear that its engineering department would not grant approval for a new crossover  for vehicle access in the location shown in the plans that had been submitted to the Council for its consideration, and that its engineering department had commented that a redesign retaining the existing crossover may need to be reconsidered.
33	Commencing September 2020, the applicants then pursued an alternative location for the vehicle access.  In correspondence dated 25 September 2020, the Council advised the applicants that the proposed change would require an amendment to the permit under section 72 of the PE Act (‘section 72 amendment’).
34	Mr McKenzie’s evidence includes copies of correspondence that confirm the applicants were pursuing detailed design solutions regarding the vehicle access throughout 2021.
35	The Council does not dispute that ongoing discussions regarding the vehicle access occurred between the applicants representatives and Council officers, and that various iterations of plans and alternative design ideas have been exchanged.  It submits that:
Throughout this process, Council’s engineers have made it abundantly clear that Council does not support the location of the new crossover in the south-west corner, due to conflict with the existing speed hump.
36	The Council argues that the applicants have not engaged meaningfully with the Council to resolve the traffic engineers’ concerns with the development, particularly since the fourth extension to the permit was granted and Council’s most recent advice was provided.
37	From the information before me, I am persuaded that the applicants had engaged in a ‘meaningful’ way to seek to resolve the Council’s engineers’ concerns regarding the vehicle access issue seems to have arisen due to a disconnect between the Council’s planning department and its engineering department.  Plans are provided to the planning department to endorse.  The Council’s position, provided by its engineers, regarding the location of the vehicle access appears to conflict with the permitted development given that the requirements of condition 1 of the permit do not require any changes to the location of the driveway or vehicle access.  It is the role of the Council’s planning department to determine, having regard to any referrals to other departments, if plans are ready to be endorsed.  If the permit does not require a change in the location of the driveway or vehicle access, and a department of the Council is seeking such a change, the planning department ought to attempt to resolve the impasse and find a way forward.
38	It is true that the applicants did not engage further with the Council after the last round of communication between the parties in October 2021.  At that time, the Council advised that further information was required to be submitted for the section 72 amendment, and the applicants’ representative advised that they would take the opportunity to incorporate other changes and lodge the plans when ready.  Nor have the applicants sought a section 72 amendment.  However, in the circumstances, I am not persuaded that this amounts to an undue lapse of time or the applicants seeking to warehouse the permit.
39	The information provided by the applicants in support of its submissions includes evidence that they continued to work throughout the remainder of 2021 and 2022 to develop alternative design options for the development to relocate the vehicle access and driveway.  It is also evident that they had prepared engineering construction drawings and architectural working drawings for the permitted development in 2019 and 2021 respectively.  This indicates to me that the applicants had continued to work on preparing relevant documents to proceed with obtaining endorsed plans and constructing the development.  The issue was that the Council would not endorse the plans.  Rather than warehousing the permit the applicants have been delayed in proceeding with the development by the actions of the Council.
40	The Council acknowledges that the circumstances are not a classic case of ‘warehousing’, as there had been action from the applicants ‘behind the scenes’.  However, the Council argues:
Had the Applicants wished to challenge Council’s position on the vehicle crossover and associated requirements of the traffic engineers, they ought to have done so in a different forum, long before the Permit expired.  As the Applicants took no steps to challenge Council’s position, it is inappropriate to now agitate the merits of those requirements in this proceeding.
41	The applicants may have had cause to seek a review under section 149(1)(a) of the PE Act to review the Council’s decision in relation to the amended plans required by condition 1 of the permit to the Council’s satisfaction.  However, given the extensive work the applicants have undertaken to try to resolve the issue directly with the Council, the fact that they have not sought a remedy through a review under section 149(1)(a) does not persuade me that they have been warehousing the permit or that it would warrant refusal of an extension of time for the permit.  
The probability of a permit being issued should a fresh application be made
42	The Council submits that there are material differences between the relevant zone provisions applying to the subject land since the permit was granted.  These differences include, among other things, 
•	the NRZ – Schedule 2 including local variations to clause 55 standards, whereas the NRZ – Schedule 7 that applied when the Council first assessed the permit application did not;
•	the NRZ now including a ‘minimum garden area requirement’ and ‘maximum building height requirement’.
43	While the zoning of the land has changed from the NRZ – Schedule 7 to NRZ – Schedule 2, in response to my question at the hearing the Council clarified that this occurred in November 2015.  While this zone change occurred after the Council decided to refuse the original application for the permit, it preceded the date on which the permit was issued in March 2016.  So, while the NRZ – Schedule 2 includes local variations to various standards under clause 55 that the NRZ – Schedule 7 did not, these should have been considered by the Council at the time it consented to the permit being issued.
44	A key change in planning provisions since the permit was issued is that Amendment VC110 introduced the minimum garden area and maximum building height requirements under the NRZ provisions in March 2017.  
45	The Council submits that it is unclear whether the development complies with the minimum 35% garden area requirements that now applies, the applicant submits that the development provides 40.2% of the site as garden area.
46	Under the maximum building height requirement, the building height must not exceed 9 metres and the building must contain no more than two storeys at any point.  The development comprises three-storey dwellings, and as such a permit could not be granted for the development in its current form.  Despite this, I am not persuaded that this is sufficient reason to refuse to grant an extension of time for the permit in the circumstances that I am satisfied that the applicants have not been warehousing the permit.  The fact that the development does not comply with the maximum building height requirement would have been a relevant consideration when the Council extended the time for the permit in October 2017, February 2019, November 2019, and November 2020.
47	In addition to the zone change, the land is now affected by the SLO – Schedule 9.  At the time the permit was issued the land was affected by the VPO – Schedule 2.  The Council acknowledges that the trees on the subject land and adjoining land ‘were carefully assessed as part of the original permit application’ and that ‘this assessment informed conditions 1(a) and 5 of the permit relating to tree protection zones’.  However it submits that, if assessed again today some of the trees proposed for removal are protected by the SLO – Schedule 9 and would therefore trigger a planning permit requirement.  I do not consider this to be a reason to not extend the time for the permit.  If the removal of trees required to enable the development now requires a permit under the provisions of the SLO – Schedule 9, this could be addressed through an amendment to the permit or a separate permit application.
Whether the applicants have advanced good reasons as to why an extension should be granted
48	I am satisfied that the reasons on which the applicants rely in relation to the lapse of time and whether the applicants are seeking to warehouse the permit, as discussed above, are good reasons as to why an extension of time should be granted.
49	The applicants have argued that if the time for the permit is extended, they will pursue a review under section 149(1)(a) of the PE Act.  Such a course of action may bring the issue regarding the vehicle access and endorsement of the plans to a head, rather than the current situation that has the applicants and the Council at an impasse.
50	For these reasons, I am satisfied that the applicants have advanced good reasons as to why an extension of time for the permit should be granted.
What extension of time should be provided if the time of the permit is extended?
51	As I have already outlined, the Council has interpreted the application to amend the permit to extend the time to be an extension of two years to commence the development and two years to complete the development.
52	The parties agree that under section 85(1)(f) of the PE Act, the Tribunal has the power to make any changes to the times of the permit.
53	There is still a lot to be done to satisfy various permit conditions before the applicants can commence the development, not the least of which is getting amended plans endorsed in accordance with condition 1 of the permit.
54	As I have already commented on above, the resolution of the current impasse between the applicants and the Council may involve an application to the Tribunal for review under section 149(1)(a) of the PE Act.  It is obvious that such a course of action may take some time.
55	Having regard to these circumstances, while I am satisfied that a period of two years to commence the development and a further two years to complete the development is appropriate, I acknowledge that if the two-year period for commencement were taken from 2 March 2023 more than six months of this time has already elapsed.  As such, I consider it appropriate to align the time for commencement and completion of the development to be from the date of this decision.
Conclusion
56	For the reasons given above, the decision of the Council as the responsible authority is set aside.
57	The time for the commencement of the development is extended to two years from the date of this decision and the time for completion is extended to four years from the date of this decision.

Sarah McDonald
Member