ORDER
VCAT REFERENCE: L0020/2024
Planning and Environment List
PROCEEDING TYPE:	Review of land classification (Local Government Act 1989, s 183)	
APPLICANT:	Mr Chris Siamsiaras	
RESPONDENT:		
Relevant Authority	Maribyrnong City Council	

LAND:	58 Donald Street  FOOTSCRAY  VIC  3011	
HEARING TYPE:	No Hearing 	
ORDER MADE BY:	Justine Jacono, Senior Member	
ORDER DATE:	30 September 2024	
CITATION:	Siamsiaras v Maribyrnong CC (Land Valuation) [2024] VCAT 896	

ORDERS
No extension of time to commence
1.	The application pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to extend the time within which to commence this proceeding is refused. 
2.	The application is struck out because it was lodged outside time.

Justine Jacono, Senior Member  

	

	

REASONS
Background
3.	On 20 February 2024 the Applicant, Mr Chris Siamsiaras (Applicant) made an application to the Tribunal for a review of a decision to the classification of land to his property at 58 Donald Street, Footscray (Subject Property).
4.	The Applicant contended that the Maribyrnong City Council (Council) incorrectly classified the Subject Property as Residential Vacant Land while it was under construction, and should have classified it as a residential property.
5.	The matter was listed for a Practice Day on 10 April 2024 to consider whether the application is out of time and whether an extension of time should be granted.
6.	The Tribunal made the following Orders on the 10 April 2024:
7.	On or before the 17 May 2024, the parties must file with the Tribunal and serve on the other party a written submission as to whether or not that party considers the application made by the Applicant pursuant to section 183 of the Local Government Act, 1988 (Vic) (LG Act) is within time and if not, whether the Tribunal has jurisdiction to consider an extension of time and if so, should it be granted. 
8.	On or before the 7 June 2024, the parties must file with the Tribunal and serve on the other party any written submission in reply. 
RELEVANT LEGISLATIVE PROVISIONS
9.	The relevant legislation is this matter are outlined as follows:
LG Act
10.	Section 183 - Review of differential rating by VCAT
(1)	An owner or occupier of land whose interests are affected by a decision of the Council to classify or to not classify that land as land of a particular type or class for differential rating purposes may apply to VCAT for review of the decision.
(2)	An application for review must be made within 60 days after the day on which the owner or occupier receives the first notice under section 158(3) following the decision.
(3)	The provisions of Part III of the Valuation of Land Act 1960 apply to a review under this section with any necessary modifications.
Victorian Civil and Administrative Tribunal Act, 1998 (Vic) (VCAT Act)
11.	Section 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 limit 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.
(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 relevant enactment for the purposes of this section.
Question of Law
12.	The Tribunal corresponded with the parties on 20 May 2025 and asked each party if they agree that any question of law that arises in the proceeding can be decided by the Presiding Member; or if a party requires a Member who is an Australian Lawyer to determine any question of law.
13.	On 31 May 2024, Council submitted that as the proceeding is an application for review pursuant to s 183 of the LG Act and is not a proceeding under a ‘planning enactment’ or the VL Act. Therefore, clauses 66 and 98 of Schedule 1 of the VCAT Act do not apply; as such, s 107(1) requiring any question of law to be decided by a legal member applies.
14.	In the event that the Tribunal has a different view, Council consents to any question of law in the proceeding being decided by the Presiding Member.
15.	On 31 May 2024, the Applicant advised that his preference was that for any question of law in the proceeding to be decided by the Presiding Member, rather than a Legal Member as he cannot afford a legal representative. 
16.	I do not consider the resolution of whether an extension of time should be granted necessarily raises a question of law. Given my findings below, I do not need to determine whether s 126(4) of the VCAT Act applies and thus, there is no question of law to resolve in this proceeding.
SUBMISSIONS
Applicant 
17.	The Applicant provided written submissions dated 15 May 2024 and submissions in reply dated 7 June 2024.
18.	By way of background, the Applicant explained that he owned the property situated at 58 Donald Street, Footscray and on 5 September 2016, the original house that occupied the site was demolished for the construction of two units.
19.	The Applicant submitted that due to the builder that he had engaged, not building in accordance with the building standards, a Certificate of Occupancy was not able to be obtained until 17 February 2023.
20.	The Applicant acknowledges and agrees that in accordance with s 183 of the LG Act, an application should have been lodged with the Victorian Civil and Administrative Tribunal (VCAT) before mid November 2022.
21.	The following is a summary of some of the circumstances that the Applicant submits prevented him from lodging an application within the required timeframes:
21.1.	misunderstanding of the legal requirements;
21.2.	previous legal advice that Council maintained that the property was vacant residential land;
21.3.	lack of funds to continue engagement of legal advice;
21.4.	desire to minimise costs by self representation; and
21.5.	on-going litigation at VCAT in relation to the buildings.
22.	The Applicant requests an extension of time to file his application. The reasons provided for the Tribunal to exercise its power pursuant to s 126 of the VCAT Act are:
22.1.	The Applicant submits that he was unaware of the statutory 60-day requirement from the date of issue of the Council Notice to lodge an application with VCAT.
22.2.	However, the Applicant considers that VCAT has the power and discretion to grant an extension of time in particular circumstances where there are compelling circumstances.
22.3.	Extenuating circumstances are highlighted such as another application proceeding at VCAT in relation to building construction and safety issues and ongoing discussions with Council in relation to the classification of the subject property.
22.4.	Lack of awareness of statutory processes and complexities of navigating legal processes.
22.5.	If an extension of time was granted, the Applicant would be able to challenge the classification and have fair consideration given to his unique circumstances.
22.6.	Continual communications were on-going with Council with the intention to convince Council that an error had occurred.
22.7.	Council would suffer no prejudice should an extension of time be granted.
22.8.	The granting of an extension of time would however afford the Applicant fairness and an ability to challenge the classification on what the Applicant believes are strong merits of his case.
Council 
23.	The Council filed written submissions dated 14 May 2024.
24.	Council submits that it is uncontentious that the Application is not within time.
25.	S 183(2) of the LG Act provides that ‘An application for review must be made within 60 days after the day on which the owner or occupier receives the first notice under section 158(3) following the decision’.
26.	S 158(3) of the LG Act provides that ‘A Council may levy general rates, municipal charges, service rates and service charges by sending a notice to the person who is liable to pay them.’
27.	Council’s Annual Budget 2020/2021 defined ‘Vacant Residential Land’ as:
any land which is zoned residential under the Maribyrnong Planning Scheme and on which there is no dwelling or other building designed or adapted for permanent occupation.
28.	From 2021/2022, Council defined ‘Residential Vacant Land’ as:
any land which is zoned residential under the Maribyrnong Planning Scheme and on which there is no dwelling or other building designed or adapted for occupation. It includes a land [sic] on which: 
•	a planning permit authorising the subdivision of the land has been issued; and 
•	a certificate of occupancy has not been issued from Council for residential purposes. 
29.	Council submits that the four first rates notices issued by Council to the Applicant were on the following dates, with the corresponding expiration in accordance with s 183(2) of the LG Act, at or around the dates below:
29.1.	20 August 2019, expiration 19 October 2019;
29.2.	2 September 2020; expiration 1 November 2020;
29.3.	6 August 2021; expiration 5 October 2021;
29.4.	31 August 2022 expiration 30 October 2022.
30.	Council does not consider that the Applicant’s contention that the notice of decision was Council’s undated letter of 20 January 2024, as it is not a ‘notice’ for the purposes of s 158(3) of the LG Act for the following reasons:
•	it was not a notice levying rates issued under s 158(3) following the decision to classify the Subject Land as ‘Residential Vacant Land’; and 
•	it does not reflect the current classification of the Subject Land for rating purposes – by the time of the letter, the Subject Land had been classified as ‘Residential’ for more than 9 months. 
31.	Council relies on two main arguments. Firstly, that s 126(4) of the VCAT Act prohibits the Tribunal from extending time, as ‘Council would suffer the prejudice, or detriment, of no longer having the right to be free from the prospect of review of its classification of land for rating purposes even in subsequent Financial Years. This would, in turn, prevent Council, and Victorian councils generally, from having certainty about the generation, collection and application of rates and charges. 
32.	Further, Council submits that ‘[t]his prejudice, or detriment, cannot be remedied by orders for costs or damages. It will infect Council’s generation, collection and application of rates and charges indefinitely.’
33.	Council’s second argument is that should the Tribunal not be persuaded that it is prohibited from considering the Applicant’s request for an extension of time, that it should not exercise this discretion.
34.	A summary of the Council’s reasoning in consideration of Hunter Valey Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley) are as follows:
34.1.	The Applicant provided no reason for his delay in making the application and had no meaningful communication with Council by which the Applicant continued to agitate his purported challenge to the classification.
34.2.	The classification was applied for some three years without any challenge being made other than a ‘please explain’ letter from the Applicant’s lawyer to Council in late December 2023.
34.3.	Council does not view the non-payment of the Applicant’s rates as sufficient evidence of dialogue or challenge in this context.
34.4.	Council is reliant on rates revenue for the delivery of essential services to the community. If the time to challenge classifications was extended indefinitely, as is seemingly sought by the Applicant in this instance, Council would lose the benefit of having certainty of its revenue and expenditure for budgeting purposes.
34.5.	Council submits that there is no merit to the substantive application as Council has adopted clear definitions for the classification of land and that the Subject Land fell within the relevant definition in each of the Financial Years.
TRIBUNAL DETERMINATION
35.	Turning to s 126(1) of the VCAT Act and the parties’ submissions, the Applicant has effectively attempted to roll up four applications for the years 2019, 2020, 2021 and 2022 in one application.
36.	The most recent of these four rate notices was issued on 31 August 2022.  Applying the 60-day time limit for an application for review to the Tribunal would result in an expiry date of on or around 30 October 2022. The application to the Tribunal was submitted on 20 February 2024, in excess of 15 months later.
37.	The Applicant provided no evidence to support his stated continual communications with Council or the communications with Council on behalf of his lawyers and is therefore rejected. The Applicant has made many references to the difficulties in the redevelopment of the land and the building of the units. However, I do not consider the other proceeding at VCAT in relation to these issues an extenuating circumstance.
38.	The Council’s classification definitions cannot be varied by the Tribunal under a s 183 of the LG Act. The Council clearly has a requirement in the definition of ‘Residential Vacant Land’ in FY 2022/2023 that includes land which states that ‘a planning permit authorising the subdivision of the land has been issued; and a certificate of occupancy has not been issued from Council for residential purposes’. 
39.	A certificate of occupancy (CO) was issued on 17 February 2023. After the issue of the CO a supplementary valuation was undertaken and new rate notices issued for the two new lots with each lot classified as ‘Residential’.
40.	Having considered the Applicant’s actions and explanation for the delay, fairness and equity to both parties, prejudice and the merits of the substantive application; the Applicant’s request for an extension of time to commence the proceeding is refused. I do not consider that the Applicant has provided an adequate explanation for the lengthy delay of in excess of 15 months in bringing the proceeding to VCAT. 
41.	For the avoidance of doubt, this includes all four time frames stemming from the rate notices issued on 20 August 2019, 2 September 2020, 6 August 2021 and 31 August 2022.
42.	Turning to s 126(4) of the VCAT Act and Council’s submissions, without determining this issue, the Tribunal is not convinced, that in this matter, that s 126(4) of the VCAT Act prohibits the consideration of an extension of time. The Tribunal does not consider the case cited by Council, in Kay is directly analogous with the impact of Council’s generation, collection and application of rates and charges indefinitely. 
43.	The Tribunal comments by Deputy President Dwyer in Decleah Investments Pty Ltd v Cardinia Shire Council VCAT 1852 (Decleah) that ‘[t]ime limits exist in legislation for a reason, and are expected to be observed….Without time limits, the system would degenerate into one lacking in certainty, and would become highly dependent upon discretion’. However, the Tribunal does not consider that s 126(4) prohibits the Tribunal in exercising its discretion to consider the relevant facts and circumstances in this case and making a determination accordingly.
CONCLUSION
44.	The application pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to extend the time within which to commence this proceeding is refused. 

Justine Jacono, Senior Member