VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P346/2024
Permit Application no. P392/2023	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic); Regulation 30 of the Planning and Environment Regulations 2015 (Vic); Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic);Application to extend time to commence proceeding.	
Applicant	Michael Stephen Cue	

Responsible Authority	Banyule City Council	
SUBJECT LAND	37 Warriparri Crescent
GREENSBOROUGH  VIC  3088	
HEARING TYPE	Practice day hearing	
DATE OF HEARING	3 May 2024	
DATE OF ORDER	3 May 2024	
CITATION	Cue v Banyule CC [2024] VCAT 410   	

Order
Extension of time refused
1	The application pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to extend time within which to commence this proceeding is refused.
2	Pursuant to section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the application is summarily dismissed because it is misconceived as it was lodged out of time.

S P Djohan
Senior Member	

Appearances
For applicant	In person.

For responsible authority	Heather Darbyshire, town planner, Banyule City Council.
	
Reasons

background
1	On 18 December 2023, Banyule City Council (‘Council’) issued a notice of refusal to grant a permit (‘refusal’) for buildings and works associated with the construction of a swimming pool and the construction of a fence on land situated at 37 Warriparri Crescent, Greensborough, Victoria (‘subject land’).
2	On 26 March 2024, the applicant lodged with the Tribunal an application under s.77 of the Planning and Environment Act 1987 (Vic) (‘P&E Act’) seeking a review of Council’s refusal.
3	Regulation 30 of the Planning and Environment Regulations 2015 (Vic) (‘Regulations’) provides – 
Applications for review under section 77
An application for review under section 77 of the Act must be made within 60 days after the responsible authority gave notice under section 65 of the Act.
4	There is no dispute between the parties that the application for review was filed 23 days late.
5	The applicant submitted that there were ongoing discussions with Council regarding the merits of the permit application and this, together with the delayed responses from Council is the reason why he filed the application late. Council confirmed that there were discussions with the applicant after the issue of the refusal regarding the merits of the application. Council does not oppose an extension of time being granted by the Tribunal.
6	Having heard from the parties and considered the material before the Tribunal, I refuse to extend time under s.126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) for the following reasons. 
Consideration
7	The knub of the submissions made by the parties is summarised above. Specific details of the discussions engaged in by the parties post the refusal were not provided at the practice hearing, however I am satisfied from the oral submissions of the parties that there is no allegation that Council encouraged the applicant to file the application outside the 60 days required under the Regulations.
8	Relevantly, s. 126 of the VCAT Act provides – 
126	Extension or abridgment of time and waiver of compliance
(1)	The Tribunal, on application by any person 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 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 limit that the Tribunal does not have the 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.
(4)	The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.
(5)	In this section – relevant enactment means an enactment specified in the rules to be a regular enactment for the purposes of this section.
9	The applicant has explained that his further discussions with Council about the merits of the application is the cause of the delay for lodgement of the application for review. I am not satisfied that this explanation justifies a substantial extension of time to file the application. This factor weighs against the grant of an extension of time.
10	I also am not satisfied that fairness and equity on the present facts tends to the grant of an extension. The extension sought is not short and is, in the context of the 60 day period in which to lodge an application for review under s.77 of the P&E Act, substantial. 
11	As has been noted in many Tribunal determinations in the past, the time limits imposed under the regulations for the lodgment of an application for review exist for a reason. In the absence of an acceptable explanation or satisfactory reason for the delay, it would be unsettling to other persons and the established practices of the Tribunal to grant an extension of time to commence a proceeding.
12	I accept that Council does not oppose the extension of time and has not raised any prejudice to its conduct in the proceeding and this does weigh in favour of the extension.
13	Accepting that the merits of the permit application do not have to be very strong, I am satisfied that the current grounds of review are not so weak as to make the applicant’s case untenable or hopeless. This weighs in favour of the grant of the extension.
14	I am, however, not satisfied that should time be extended, the applicant is able to serve the application for review on the beneficiaries of the restrictive covenant affecting the title of the subject land.  This is because those beneficiaries have not been identified in any of the material before the Tribunal. 
15	In addition, the applicant indicated that he may wish to apply for removal of the restriction affecting the fence that has been constructed and as result would not be required to serve any beneficiaries under s.47(2) of the P&E Act. The decision under review does not include a decision on a request to remove the restriction affecting the rear boundary fence and Council has not considered the implications of such an application to its grounds of refusal. After hearing from the parties, I am not satisfied that the applicant has finally resolved what the permit application should include.
16	Having regard to all of the above, on the facts and circumstances before me, I am not satisfied that on balance, an extension of time should be granted in this proceeding. Accordingly, no extension of time is granted and the application is summarily dismissed because it was misconceived as it was lodged out of time.

S P Djohan
Senior Member