VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P847/2019

APPLICANT	Cedric Naylor	
responsible authority	Cardinia Shire Council	
RESPONDENT	Matthew Law, Taylors Development Strategists	
SUBJECT LAND	770 Five Mile Road
NAR NAR GOON  VIC  3812	
WHERE HELD	Melbourne	
BEFORE	Teresa Bisucci, Member	
HEARING TYPE	Practice Day Hearing 	
DATE OF HEARING	31 May 2019 	
DATE OF ORDER	5 June 2019	
citation	Naylor v Cardinia SC [2019] VCAT 831	

Order

No extension of time to commence
1	The application pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 to extend the time within which to commence this proceeding is refused. 
2	The application is struck out because it was lodged out of time.
3	The hearing scheduled at 10:00am on 4 November 2019 is vacated.  No attendance is required.  

Teresa Bisucci 
Senior Member			

Appearances
For applicant	Mr James Naylor 	
For responsible authority	Mr Dean Haeuiler with Ms Tara Hooper, town planners	
For respondent	Mr Stefan Fiedler, lawyer, Russell Kennedy Lawyers	

Reasons

1	This application is brought on behalf of Mr Cedric Naylor under section 82 of the Planning and Environment Act 1987 (PE Act), to review the decision of the Cardinia Shire Council (Council) to issue a Notice of Decision to Grant a Planning Permit (NOD) for use of land and earthworks associated with the disposal of clean fill at land known as 770 Five Mile Road, Nar Nar Goon (land).  Mr Naylor’s property is approximately 1km from the land. 
2	The practice day was listed to consider whether an extension of time for lodging the application pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) should be granted.
3	Mr Naylor submits that his application was lodged within time and does not require any extension of time.  
4	Regulation 35 of the Planning and Environment Regulations 2015 (Regulations) was amended on 1 July 2018 and states:
35.	An application under section 82 (1) of the act for review of a decision by the responsible authority must be made within 28 days after the date of notice of that decision.
5	The NOD is dated 12 April 2019. The Council advised that it sent a copy of the NOD to Mr Naylor by email on Monday, 15 May 2019.
6	The application was filed with the Tribunal on 13 May 2019 by email at 1:02am.  If one calculates the number of days from the date of the NOD, the application was lodged three days late.  The last day for lodging the application was 10 May 2019.
7	However, Mr Naylor submits that one is not to use the date on the NOD for the purposes of calculating the commencement of the 28-day period.  Rather, he says that time commences to run for the purposes of regulation 35 when the notice is received by an objector.  If Mr Naylor is correct, the date for filing an application for review in this case would be 15 April 2019, in which case Mr Naylor’s application for review would be within time.
8	This very issue was determined by DP Gibson in 285 Lenox Pty Ltd v Yarra CC.  At paragraph 11 the Tribunal stated as follows: 
[11]	The notice of decision is dated 21 September 2018. Applying Regulation 35, the closing date was 19 October 2018, which is 28 days after the date on the notice of decision.  The application for review was filed with the Tribunal on 23 October 2018.  It was four days out of time.  It does not matter that the letter from the council sending out the notice of decision was dated 25 September 2018 and was not posted until 26 September 2018.  Having regard to the provisions of Regulation 35, I find that the application was lodged out of time. 
9	I find that the argument raised by Mr Naylor before me is analogous to the argument raised by 285 Lennox Pty Ltd before DP Gibson.  Mr Naylor submits that the decision in 285 Lennox Pty Ltd was incorrectly decided because regulation 35 refers to ‘notice’ and he says that ‘notice’ is a reference to the notice that is given to an objector of the decision of the responsible authority rather than the NOD itself.  I disagree with this submission.
10	Regulation 35 provides an opportunity for an application for review of a decision that must be made within 28 days after the date of notice of that decision.  Section 64 of the Act states:
(1)	The responsible authority must give the applicant and each person who objected under section 57 a notice in the prescribed form of its decision to grant a permit.
(2)	The notice must set out any conditions to which the permit will be subject.
11	It is clear when one examines the words of section 64 of the Act and regulation 35, the notice being referred to in regulation 35, is the notice of decision to grant a planning permit.  One need simply look at the words of section 64 (2) that require the notice to set out conditions to be included in the permit.  Having regard to that, it makes little sense to say that ‘notice’ is a reference to notice that is given to an objector of the decision of the responsible authority rather than the NOD itself.  The words of section 64 and regulation 35 are straight forward and relatively simple to interpret.  There is no need to resort to any extrinsic material to ascertain what is meant by the relevant words.  On that basis, I find that the ‘notice’ referred to in regulation 35 is reference to the notice of decision to grant a planning permit.  
12	Mr Naylor submitted that if the decision in 285 Lennox Pty Ltd is followed it could lead to a situation where an objector loses the right to appeal the NOD if for example, the responsible authority issues the NOD but for various reasons does not send the notice to the objector.  There are remedies for such situations including an extension of time to lodge an application for review or even declaratory relief.
13	At this point, I consider it necessary to highlight the importance of time limits.  This issue has been considered on many occasions and I concur with previous Tribunal decisions that time limits are integral to the operation of the planning system.  They are designed to create certainty rather than the lack of it.  Mr Naylor’s argument would lead to greater uncertainty as it would require the calculation of the 28-day period in which to lodge an application for review under section 82 of the Act to commence when an objector receives the notice or more correctly is notified of the decision of the responsible authority.  Given that notification occurs by different means including email and post, that would mean that the commencement of the 28-day period would depend on when an objector received a copy of the NOD.  That is contrary to the certainty that was sought to be created by amendment to regulation 35.
14	Having regard to regulation 35, I find that the application was lodged out of time.
15	Before I turn to whether I should extend time to lodge the application for review I will address Mr Naylor’s submissions regarding defective notice.  It was put to me that the notice that was given was defective as it did not comply with Form 5, Schedule 1 of the Regulations which specifies that an application for review must be lodged within 21 days of the giving of notice.  Mr Naylor submits that the Council notice specifying 28 days for the lodgement of an application for review is inconsistent with the information in Form 5, Schedule 1 and is thus defective or invalid, such that time has not commenced to run for the purposes of the appeal.  
16	I do not accept Mr Naylor’s submissions.  First, whilst there is inconsistency between the time line specified in the Schedule and the Regulations for the lodgement of an application for review this does not assist Mr Naylor.  If I assume that Mr Naylor is correct that the notice should have specified 21 days rather than 28 days, it is difficult to see how this assists Mr Naylor.  Under that analysis an application for review should have been lodged by 7 May 2019, being a date much earlier than the date the application for review was lodged. 
17	Secondly, section 53 of the Interpretation of Legislation Act 1984 (ILA) provides:
Strict compliance with prescribed forms not necessary 
53.	Where a form is prescribed by an Act or subordinate instrument for any purpose, any form in or to the like effect of the prescribed form shall, unless the contrary intention appears, be sufficient in law. 
18	Section 64 of the Act states that the notice is to be given in the prescribed form.  It does not provide any contrary intention and thus section 53 of the ILA applies.  To determine if the notice is valid I must consider the purpose of the provision and the Act.  The purpose of section 64 is to give notice of the Council’s decision to grant a permit including any conditions included within the notice.  Form 5 of Schedule 1 not only provides notice to the objectors but also to permit applicants and referral authorities.  Its purpose is to inform permit applicants, objectors and referral authorities of the Council’s decision.  The form can be divided into two components, the notice and the information relating to the notice.  The notice provides the property address, what the permit allows, conditions, date of the notice and signature of the responsible authority.  The information component sets out the time within which an application for review can be lodged.  The inconsistency is in the information component of Form 5, to the extent that it is relevant, it is regulation 35 that must prevail with any inconsistency with the information set out in Form 5.
19	Moreover, it is clear to me that Mr Naylor proceeded on the basis that regulation 35 and the 28-day time limit applied as he commenced preparing the application well after 21 days of receiving the NOD.
20	I find that the NOD in this case contained all the detail that is required and is thus not defective or invalid.
21	I consider my finding to be consistent with section 4(2)(i) of the Act that states:
to ensure that those affected by proposals…..receive appropriate notice;
22	Having determined that the application was out of time, I must now consider whether I should grant an extension of time for the commencement of the proceeding pursuant to section 126 of the VCAT Act.  In support of such an application Mr Naylor says as follows:
•	his work takes him outside of the Metropolitan Melbourne on a regular basis;
•	he is acting on behalf of Mr Cedric Naylor under a Power of Attorney and it took some time for the relevant persons to gather to discuss the commencement of an application for review;
•	the Council does not come with clean hands as no council meeting was held and he was denied an opportunity to put forward his case to the Councillors;
•	he was not provided with additional information when he requested it from the Council;
•	there is no material detriment to the permit applicant as it has commenced activities on the land;
•	there is no inconvenience to the permit applicant; and
•	he will suffer detriment because there is a serious drainage issue that has not been properly considered by the Council.
23	I do not consider that the lack of an opportunity to attend a Council meeting, or information which was sought prior to the NOD being issued are matters that are relevant to the exercise of my discretion in this matter.
24	In terms of drainage impacts, I was advised by Council that Melbourne Water had originally objected to the application for review as earthworks were proposed to be undertaken on land with the Land Subject to Inundation Overlay (LSIO).  The permit application was subsequently amended to remove all earthworks from the area subject to the LSIO. At that stage, Melbourne Water no longer objected to the planning permit application.  Further, the NOD contains proposed conditions that address stormwater run-off and erosion.
25	The permit applicant submits as follows:
•	no matters of any substance were put by Mr Naylor to support an extension of time;
•	in any event, the prospects of success are not high given the statement of grounds sought to be relied upon to includes issues of process that are not relevant. 
•	amenity has been addressed by several conditions contained on the NOD including but not limited to condition 6, 20, 21, 32 and 34.
•	drainage has been considered by Council and Melbourne Water and in any event several conditions on the NOD address drainage. Therefore, the prospects of success of such an application on the merits is low;
•	there is prejudice to the permit applicant in delay as it has equipment ready to be mobilised from other sites to facilitate earthworks and disposal of clean fill; and
•	any works that are being undertaken on the land do not require planning permission and thus are not commencement of works pursuant to the planning permit.
26	The applicant was unable to provide a satisfactory explanation to the Tribunal for the delay. Whilst I accept that discussing matters with the relevant persons under a power of attorney can delay the commencement of proceedings, I also note that in such circumstances one might be more proactive regarding such discussions.  I was not provided with any specifics regarding when the relevant persons first discussed whether an application for review should be lodged. Mr Naylor waited a long time to prepare the application for review which demonstrates to me that he took few steps from the time he received the NOD until the time he lodged his application for review with the Tribunal.  This is particularly surprising in circumstances where discussion regarding the filing of such an application needed to occur with members of the family. 
27	I acknowledge that Mr Naylor’s work takes him outside of Metropolitan Melbourne and that may cause some delay but I do not consider it to be a sufficient reason on its own to support an application to extend time in this matter.
28	I agree with the permit applicant and the Council that matters of drainage, stormwater and amenity have been assessed by the Council and Melbourne Water.  Further, conditions have been included on the NOD such that an appeal on these issues alone would have a low prospect of success bearing in mind that Mr Naylor’s land is approximately 1km from the land.
29	I am also satisfied that the permit applicant will suffer detriment by delay in the issue of the permit.
30	I note that there are no other applications lodged within time by persons who would have been entitled to bring such applications.
31	Having regard to these matters, I do not consider that it would be just and fair in the circumstances to extend time to lodge this application.  Further, an extension of time in such circumstances undermines the certainty that the amendment of regulation 35 intended.
32	On that basis the application for extension of time within which to commence this proceeding is refused.

Teresa Bisucci 
Senior Member