VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P991/2020
	
CATCHWORDS	
Section 149(1)(a) of the Planning and Environment Act 1987; extension of time for planning permit; section 81(1) of the Planning and Environment Act 1987; extension granted for period other than what was sought; jurisdiction.  	

APPLICANT 	Victton Pty Ltd	
responsible authority	Melbourne City Council 	
SUBJECT LAND	83-89 Coventry Street
SOUTHBANK  VIC  3006	
WHERE HELD	Melbourne	
BEFORE	Susan Whitney, Member	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	25 & 30 September 2020	
DATE OF ORDER	5 November 2020	
citation	Victton Pty Ltd v Melbourne CC [2020] VCAT 1233	
Order
No jurisdiction under section 149(1)(a)
1	I determine that the Tribunal does not have jurisdiction under section 149(1)(a) of the Planning and Environment Act 1987 to review the merits of the decision of the Melbourne City Council to extend the time for the commencement and completion of planning permit TP-2016-981 for periods other than those sought by the Applicant, Victton Pty Ltd.
No jurisdiction under section 81(1)
2	I determine that the Tribunal does not have jurisdiction under section 81(1) of the Planning and Environment Act 1987 to review the merits of the decision of the Melbourne City Council to extend the time for the commencement and completion of planning permit TP-2016-981 for periods other than those sought by the Applicant, Victton Pty Ltd.
Summary dismissal
3	Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, VCAT Application P991/2020 is summarily dismissed on the basis of it being misconceived due to lack of jurisdiction.

Susan Whitney
Member			
Appearances
For applicant 	Ms Serena Armstrong of counsel by direct brief.	
For responsible authority	Mr Marcus Tschech, town planner of Melbourne City Council.	

Reasons
What is this proceeding about?
1	The Applicant, Victton Pty Ltd, sought an extension of time in relation to planning permit TP-2016-981 that was issued by the Melbourne City Council (“Council”) on 25 May 2017 (“Permit”). The Permit allows:
Construction of a multi-level residential building containing dwellings and ground level retail, and a reduction of the retail car parking requirement in accordance with the endorsed plans.
2	Condition 35 of the Permit contains the expiry provision. It says:
This permit will expire if:
a)	The development is not commenced within two years of the date of this permit.
b)	The development is not completed within four years of the date of this permit.
Pursuant to Section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend:
a)	The commencement date referred to if a request is made in writing before the permit expires or within six months afterwards.
b)	The completion date referred to if a request is made in writing within 12 months after the permit expires and the development started lawfully before the permit expired.
3	The Permit was extended on 24 May 2019, allowing an additional two years for commencement and two years for completion. This extended the time to 25 May 2021 for commencement and to 25 May 2023 for completion.
4	On 30 March 2020, the Applicant became the registered proprietor of the subject land.
5	On 14 April 2020, the Applicant applied to the Council for an extension of time for another two years for commencement and for completion. This would result in the Permit expiring if development was not commenced by 25 May 2023 and was not completed by 25 May 2025. 
6	On 14 May 2020 the Council refused the extension of time sought by the Applicant. However, it did not refuse the extension of time entirely. Rather, the Council decided to grant a one year extension to commence and another one year to complete. As such, the Permit will now expire if development is not commenced by 25 May 2022 and not completed by 25 May 2024.
7	The Applicant contends that this will be insufficient time and lodged an application for review of the Council’s decision under section 149 of the Planning and Environment Act 1987 (“PE Act”).
8	Some time later, under cover of email dated 1 September 2020, the parties filed proposed consent orders with the Tribunal. In these orders, the Council agreed with the Applicant that it would be appropriate to extend the time for commencement and completion of development by two years each, respectively.
9	Prior to the Tribunal determining whether the proposed consent orders should be approved on their merits, the Tribunal identified an issue that resulted in the proceeding being referred to a practice day hearing. That issue was whether the Tribunal has jurisdiction under either section 149 or section 81 of the PE Act to review the decision that the Council made to extend the time of the Permit but for less than the period sought by the Applicant.
10	I heard submissions on this issue at the practice day hearing on 25 September 2020. The proceeding was already listed for a short cases list hearing on 30 September 2020 and the Applicant requested that they be able to use that time to continue to address me on the reasons why the Tribunal did have jurisdiction.
11	At the outset I observe that I regard the consent position reached by the parties – that is, an extension for two years to commence and to complete – to be an acceptable outcome on the merits. I explained to the parties that the concern lay in whether the Tribunal was able to give effect to that proposed consent position, and this turned on the question of jurisdiction.
How does the PE Act deal with the expiry of a planning permit?
12	The PE Act creates a system for dealing with the expiry and extension of a planning permit. Sections 68, 69 and 81 of the PE Act deal with when a permit expires, how to extend a permit and applying for review of a refusal to extend, respectively.
13	Section 68 of the PE Act specifies when a permit expires. The subsections each deal with different types of permits and the subsections allow for a planning permit to specify time frames that are different to the ‘default’ timeframes contained in the subsection, noting that default timeframes are not set in every instance. Section 68 of the PE Act does not cover every variation regarding commencement and completion of use and development. For instance, it does not deal with the completion of a use.
14	Section 68 of the PE Act states:
(1)	A permit for the development of land expires if— 
(a)	the development or any stage of it does not start within the time specified in the permit; or 
(aa)	the development requires the certification of a plan of subdivision or consolidation under the Subdivision Act 1988 and the plan is not certified within two years of the issue of the permit, unless the permit contains a different provision; or 
(b)	the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit or in the case of a subdivision or consolidation within 5 years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988. 
(2)	A permit for the use of land expires if— 
(a)	the use does not start within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or 
(b)	the use is discontinued for a period of two years. 
(3)	A permit for the development and use of land expires if— 
(a)	the development or any stage of it does not start within the time specified in the permit; or 
(b)	the development or any stage of it is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or 
(c)	the use does not start within the time specified in the permit, or, if no time is specified, within two years after the completion of the development; or 
(d)	the use is discontinued for a period of two years.
(3A)	If a permit for the use of land or the development and use of land or relating to any of the circumstances mentioned in section 6A(2), or to any combination of use, development or any of those circumstances, requires the certification of a plan under the Subdivision Act 1988, unless the permit contains a different provision— 
(a)	the use or development of any stage is to be taken to have started when the plan is certified; and 
(b)	the permit expires if the plan is not certified within two years of the issue of the permit. 
(4)	The expiry of a permit does not affect the validity of anything done under that permit before the expiry.
15	Section 69 of the PE Act specifies how and when an extension of time for a planning permit can be sought and granted. Section 69 provides:
(1)	Before the permit expires or within 6 months afterwards, the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time. 
(1A)	The owner or occupier of land to which a permit for a development applies may ask the responsible authority for an extension of time to complete the development or a stage of the development if— 
(a)	the request for an extension of time is made within 12 months after the permit expires; and 
(b)	the development or stage started lawfully before the permit expired. 
(2)	The responsible authority may extend the time within which the use or development or any stage of it is to be started or the development or any stage of it is to be completed or within which a plan under the Subdivision Act 1988 is to be certified.
(3)	If the time is extended after the permit has expired the extension operates from the day the permit expired.
16	It is often the case that a planning permit will contain a condition dealing with its expiry. This condition usually specifies the time frames for commencement and completion and usually contains a statement that mirrors the content of section 69 of the PE Act – i.e. it states that an extension of time can be applied for within certain time frames. If the permit does not contain a condition specifying how to extend the permit, the provisions of section 69 of the PE Act will still apply and govern how the permit may be extended and what timeframes apply.
17	In saying this, section 69 of the PE Act does not deal with every situation where an extension of time may be sought. This was demonstrated in Kingston City Council v Transpacific Waste Management Pty Ltd, where the Supreme Court of Victoria identified that there was no statutory provision to extend time for the completion of a use, as opposed to the completion of a development. In that case, a condition was included in the relevant planning permit that provided that the tipping operation (the use) was to be completed within a defined period.
18	In another instance it was the planning scheme itself that governed how the applicant was to apply for an extension of time for commencement and completion of development under Schedule 2 of the Special Use Zone: EcoResorts Australia Pty Ltd v Yarra Ranges SC (“EcoResorts”). In that case, the decision of the council was to grant a conditional extension of time but the applicant took issue with both the length of time granted for the extension and the conditions attached to the extension. In that case, the applicant could not use section 69 of the PE Act for the extension of time sought because the extension of time did not relate to a planning permit.
19	Section 81(1) of the PE Act works in concert with section 69 of the PE Act. Section 81(1) of the PE Act provides that an application for review may be lodged in respect of an extension of time application, as follows:
(1)	Any person affected may apply to the Tribunal for review of—
(a)	a decision of the responsible authority refusing to extend the time within which any development or use is to be started or any development completed; or 
(aa)	a decision of the responsible authority refusing to extend the time within which a plan under the Subdivision Act 1988 is to be certified, in the case of a permit relating to any of the circumstances mentioned in section 6A(2); or 
(b)	the failure of the responsible authority to extend the time within one month after the request for extension is made.
20	As was stated by Deputy President Gibson in EcoResorts, section 81(1)(a) of the PE Act only applies to time limits contained in planning permits. In that case, because it was the planning scheme itself that governed how the applicant was to apply for an extension of time for commencement and completion of development, the applicant could not apply under section 81(1)(a) of the PE Act for review of the decision. However, in that case DP Gibson found that the applicant could use section 149(1)(a) of the PE Act to apply for review of the decision. 
21	Section 81(3) of the PE Act was inserted into the PE Act in 2013. It provides:
Despite subsection (1) and clause 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, an application cannot be made to the Tribunal for review of a decision referred to in subsection (1)(a) or (aa) or a failure referred to in subsection (1)(b) unless the request to the responsible authority for the extension of time was made within the time specified under section 69(1) or (1A) (as the case requires).
22	Prior to the inclusion of this provision, a person could apply to the Tribunal under section 81 in circumstances where they had not applied to the responsible authority within the time required by section 69 of the PE Act. The effect of the inclusion of this provision is that an application under section 81(1) of the PE Act can only be made if the time frames contained in section 69(1) or (1A) of the PE Act are met.
What does section 149 of the PE Act address?
23	The current proceeding was lodged under section 149 of the PE Act. 
24	Section 149(1) of the PE Act provides as follows:
(1)	A specified person may apply to the Tribunal for the review of— 
(a)	a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; or 
(b)	a decision of a specified body in relation to a matter if an agreement under section 173 provides that the matter must be done to the satisfaction, or must not be done without the consent, of the specified body and makes no provision for settling disputes in relation to the matter; or 
(c)	a decision of a specified body or of a person or body specified in an enforcement order in relation to a matter if the order requires that the matter must be done to the satisfaction of that person or body; or 
(d)	if there is no prescribed time for a decision of a kind referred to in paragraph (a), (b) or (c), a failure of a person or body to make that decision within a reasonable time after the matter is referred to it.
25	The terms “specified person” and “specified body” are defined in section 148 of the PE Act. “Specified body” includes where the Council acts as a responsible authority. The Applicant is a “specified person” because it is the owner of the land that is directly affected by the matter.
26	In EcoResorts DP Gibson described section 149 of the PE Act as:
…a very wide provision designed to offer a general opportunity for the review of matters lying outside the opportunities for review offered by other provisions of the Planning and Environment Act. 
27	To be a decision reviewable under section 149(1)(a) of the PE Act, the following must be present:
•	a decision of a specified body
•	in relation to a matter if a planning scheme specifies or a permit contains a condition
•	that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body.
28	This provision is used, for instance, when a permit contains a condition that the development as shown on the endorsed plans must not be altered or modified without the prior written consent of the responsible authority, and the responsible authority refuses to provide its consent to a proposed modification. Another example is where a permit contains a condition that before a development is occupied, landscaping must be carried out to the satisfaction of the responsible authority, and the responsible authority says that it is not satisfied with the landscaping that has been carried out and that the development cannot be occupied. In both of these scenarios, section 149 of the PE Act allows an applicant to apply to the Tribunal for a review of the merits of the responsible authority’s decision.
29	Section 149(1) of the PE Act has also been used where a condition in a permit provided a time limit for the use of land and that time could be extended with the prior written consent of the responsible authority. In that instance, the condition in question was not a permit expiry condition in that it did not require the use or development to be commenced or completed within a particular period of time; rather, it provided that the use that was authorised by the permit had to cease by a particular time.
What were the parties’ positions?
30	I will not detail all of the arguments put to me by the parties. I note that the Applicant advanced arguments in favour of why it said that there was jurisdiction available to the Tribunal while the Council did not disagree with the Applicant but did not separately advance arguments.
31	In short, the Applicant relied on section 149(1)(a) of the PE Act, arguing that the decision by the Council to extend the Permit in the way it did was “a decision of a specified body in relation to a matter if a…permit contains a condition that the matter…must not be done without the consent or approval, of the specified body”. 
32	The Applicant relied on the Tribunal’s interpretation of section 149(1) of the PE Act in various cases to submit that the provision was sufficiently broad to enable it to deal with the matter before the Tribunal in this application. 
33	Alternatively, if the Tribunal was not minded that there was jurisdiction available under section 149 of the PE Act, the Applicant contended that it could rely on section 81(1) of the PE Act. In this scenario, the Applicant also seeks leave for the application for review to be amended to an application brought under section 81(1) of the PE Act.
What is the Tribunal’s decision regarding jurisdiction?
34	In the case before me, unlike in the other cases cited by the Applicant, there was a decision by the Council not to refuse the application for extension of time for the planning permit but to approve an extension of time, just not the extension of time sought by the Applicant. 
35	The question is, do the provisions of the Act dealing with the expiry and extension of a permit, or the review of decisions made regarding a permit, enable the Tribunal to review this decision of the Council? 
Does the Tribunal have jurisdiction under section 149(1)(a) of the PE Act?
36	Given the application has been brought under section 149 of the PE Act, it is appropriate to start with whether there is jurisdiction under this provision.
37	In the matter before me, is the Council’s decision of a type that falls within the ambit of section 149(1)(a) of the PE Act?
38	In determining this question, I have considered the breadth of this section as discussed by the Tribunal in the cases referred to me by the Applicant. But the comments made in those cases need to be understood in the context of the type of permission and condition being dealt with by the Tribunal, and when those decisions were made.
39	Starting with EcoResorts, in that case DP Gibson was dealing with a provision in the planning scheme that provided that:
The development of the land for the purposes authorised by this clause must be commenced by 1 December 2003 and completed by 1 December 2008, unless an extended time for commencement or completion is approved by the responsible authority after receipt of a written request from the owner within three months of expiry of the commencement or completion date.
40	In determining that jurisdiction was available under section 149 of the PE Act, DP Gibson explained her view that section 149 of the PE Act should be read broadly, consistent with the general intent that the Tribunal should have power to review the merits of a decision made by a responsible authority, where something requires the consent of the responsible authority. In the extract that follows, DP Gibson provides reasoning as to why section 149 of the PE Act was available in the circumstances of that case:
…I do not believe that the interests justice would be served by reading down the words of section 149 to give it a narrow application. I consider that the general intent of this provision must be considered in the context of the opportunities to seek declarations under sections 149A and 149B of the Act, the general direction given to the Tribunal in sections 97 and 98 of the Victorian Civil and Administrative Tribunal Act that the Tribunal should act fairly and according to the substantial merits of the case, and the broad discretion given to the Tribunal elsewhere in the Victorian Civil and Administrative Tribunal Act to overcome defects in procedures and failure to comply with enactments in order to act in the interests of justice. In my view, the gamut of these provisions evidences a general intent that the Tribunal should have the power to review the merits of decision making by a responsible authority where things require its consent or things must be done to its satisfaction.
10 The provisions of clause 2.9 of Schedule 2 of the Special Use Zone in the Yarra Ranges Planning Scheme have a similar effect to a planning permit in so far as they confer certain rights to undertake specified use and subdivision. They require a permit for development for the purposes authorised by this clause and they also require that development must be carried out within certain time limits unless the responsible authority consents to an extension of time. An alternative way of expressing the effect of clause 2.9 is to say that development must not be carried out outside the time specified without the consent of the responsible authority. I consider that the provision therefore comes within the ambit of the provision in Section 149(1)(a) of the Act relating to whether a matter must not be done without the consent of the specified body.
11 I note that if the planning scheme had intended to shut the door completely on any opportunities to extend time, it could have included a sunset provision to clause 2.9. It has not done this. The scheme gives the responsible authority the discretion to extend time and I consider that this is the type of matter that section 149(1)(a) of the Act was intended to provide an opportunity to review in much the same way as section 81(a) provides an opportunity to review decisions about the extension of time in planning permits. I do not believe there is any good reason for shutting the applicant out of the opportunity to argue its case on the merits about the reasonableness of the extension granted by the responsible authority or the conditions it has attached to its consent. I consider that the Tribunal should have an opportunity to consider the responsible authority's decision on its merits and it would be contrary to the general tenor of discretions otherwise vested in the Tribunal to interpret the words of section 149(1)(a) in a way that would narrow the Tribunal's ability in this respect.
12 I note that there is no authority for indicating an interpretation contrary to the one expressed above. On this basis, I do not consider there are any strong grounds for adopting another interpretation that would read down the legislation so as to deprive the applicant of a right of review. 
(my emphasis)
41	In that case, section 69 of the PE Act did not apply to the extension of time being sought and, therefore, section 81(1) of the PE Act was not available. It was the provision in the planning scheme that was the source of the consent that could be obtained from the responsible authority for an extension of time. Therefore, the decision by the responsible authority in that case to grant a conditional extension of time in terms other than sought by the applicant was a decision of a specified body in relation to a matter where the planning scheme specified that the matter must not be done without the consent of the responsible authority.
42	In that case, section 149 of the PE Act effectively stepped in to provide the ability for there to be merits review of the decision, in circumstances where merits review would not otherwise be available. 
43	DP Gibson continued the examination of section 149 of the PE Act in Naroghid Wind Farm Pty Ltd v Minister for Planning (“Naroghid”). In that case, the permit condition was closer in form to that before me and although it did not refer to section 69 of the PE Act, it mirrored the timeframes that were in place at that time:
Notwithstanding other provisions of these conditions, this permit will expire if one of the following circumstances applies:
(a)	The development is not started within three years of the date of this permit.
(b)	The development is not completed within six years of the date of this permit.
The Minister for Planning may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
44	In that case, the Minister for Planning was the responsible authority at that time because the application was for a wind energy facility of a certain capacity. In that case, the Minister exercised his power under section 97B of the PE Act to ‘call in’ the permit application from himself. The Minister refused to grant an extension of time under the permit. That decision, among other things, was before the Tribunal.
45	DP Gibson described a key issue in that case as whether the permit condition in question provided the Minister with the power to extend time limits by way of secondary consent, independent of any power under section 69 of the PE Act. Again, this was a situation where, but for section 149 of the PE Act, merits review was not available for this decision.
46	In Naroghid, DP Gibson provided a fulsome discussion regarding the condition in question and the relevant provisions, as follows:
…Condition 36 does two things:
•	It specifies when the permit will expire. Section 68 of the Act specifically contemplates that permits may specify the times when a permit may expire.
•	It gives the Minister power to extend time by way of secondary consent. The condition provides:
The Minister for Planning may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
These words have a meaning and a purpose. In my view, there is no reason why they should not be given the same meaning and purpose as where similar words appear in other conditions giving the responsible authority (or some other body) power to extend a time period or to otherwise change something set by a condition, such as hours of operation or numbers of patrons. There is nothing in sections 62, 68 or 69 of the Act to say that a condition in a permit cannot govern when a permit will expire or that any time specified in such a condition may not be extended with the consent of the responsible authority.
The Minister submitted that a permit is a right created under the Act for a finite period, capable of extension. The extension of that right can only be done under the Act which creates the right not under the instrument which embodies that right. Condition 36 is in the nature of a note explaining how something is to be done rather than an operative provision in its own right.
I disagree with this submission. Whilst section 68 deals with when a permit expires, it does not cover all situations. For example, it does not deal with the situation where the permit provides that a use must cease within a specified time, although section 62(2)(c) clearly contemplates that this may be provided for under a permit. There have been cases before the Tribunal where a permit has provided for a use to cease by a certain date, with power given to the responsible authority to extend the period. An application for review by the permit holder against a responsible authority’s refusal to extend the time for the use to continue was dealt with under section 149 of the Act. 
Section 69(2) only provides that the responsible authority may extend the time within which the use or development or any stage of it is to be started or the development or any stage of it is to be completed. It is silent about an extension of time for a use to be completed. Likewise, sections 81(1)(a) and 85(1)(f) are similarly limited. An extension of time to complete a use can therefore only be dealt with by way of condition and the only opportunity to review a decision about such an extension of time (if there is power to extend by way of secondary consent) is under section 149.
Section 62 sets out what conditions can be put on permits. In addition to those conditions which must be included under section 62(1), section 62(2) provides that the responsible authority may include any other condition that it thinks fit. Sections 62(4), (5) and (6) temper that wide power, but do not constrain the type of condition embodied in condition 36.
In my view, the ordinary principles of interpretation require meaning and effect to be given to all the words of a condition wherever possible. There is no difficulty in giving meaning and effect to the words of condition 36. There is nothing in the Act that would suggest the condition giving power to the Minister to extend time under the condition is unlawful or only to be used where section 69 does not apply.
With respect to whether the consent is one that is reviewable within the terms of section 149, I find that it is.
When determining whether a condition falls within the ambit of section 149, it is important to focus on the real and substantive purpose of the condition. Section 149(1)(a) specifies that for a specified person to be able to apply to the Tribunal for review of a decision, a matter must either be –
•	Done to the satisfaction of a specified body; or
•	Must not be done without the consent or approval of the specified body.
In EcoResorts, the Tribunal characterised the planning scheme provision in that case as effectively saying that the development must not be carried out outside the time specified without the consent of the responsible authority. I consider that condition 36 can be characterised in a similar way – the permit will expire within the time specified except with the consent or approval of the Minister to an alternative time.
Therefore, I find that the real and substantive purpose of condition 36 is to give the Minister power to consent to or approve an extension of time within which the permit will expire. As such, a decision to refuse to give consent or to approve an extension of time is a decision that may be reviewed under section 149.
I further find that the right of review under section 149 exists independently of any power under section 69 of the Act. As a result, I find that I have jurisdiction to consider the decision of the delegate to refuse to extend time under the permit on the merits of the case.
(my emphasis)
47	The wording of condition 35 of the Permit differs from the provision in EcoResorts and from the condition in Naroghid. In both of those instances it was the provision or condition that was the source of the consent that was able to be obtained for an extension of time. That is, the wording in each of those conditions is what opened the door to merits review under section 149(1)(a) of the PE Act being available.
48	By contrast, in condition 35 of the Permit, clear reference is made to section 69 of the PE Act: the source of the ability to obtain consent for an extension of time is referred to as being “pursuant to” section 69 of the PE Act. Accordingly, it is not a planning scheme provision or a condition of the Permit under which the requirement to not do something without the consent of the Council is contained, it is section 69 of the PE Act. The inclusion of the reference to the process “pursuant to” section 69 of the PE Act effectively functions as a note, providing information as to how the Permit might be extended.
49	I acknowledge the parallels between my approach to condition 35 of the Permit and the argument advanced by the Minister in Naroghid – i.e. that the condition in that case and condition 35 of the Permit “is in the nature of a note explaining how something is to be done rather than an operative provision in its own right.” I also acknowledge the response of DP Gibson in Naroghid to that argument. However, unlike in Naroghid, the condition before me actually refers to section 69 of the PE Act and does not purport to create any other way in which consent might be obtained – i.e. that the Minister may extend the periods referred to, in the specified circumstances.
50	As such, the necessary elements for review under section 149(1)(a) of the PE Act are lacking in respect of condition 35, in that the condition does not specify that something must not be done without the consent of the Council. Rather, the condition refers you to the process pursuant to section 69 of the PE Act.
51	The Applicant urged a broad reading of section 149(1)(a) of the PE Act and its utilisation to enable merits review of decisions, and cited various cases in support of this approach.
52	In this respect I observe that in Naroghid itself DP Gibson acknowledged that since deciding EcoResorts, there had been subsequent decisions that qualified the breadth of section 149 of the PE Act:
Comments made in EcoResorts about the ambit of section 149 offering a general opportunity for review of matters lying outside the opportunities for review offered by other provisions of the Planning and Environment Act 1987 have since been qualified to make it clear that section 149 is not a general provision for review. In subsequent cases, the Tribunal has said it is necessary to characterise the type of consent required under the provisions of a planning scheme or permit to ensure that the consent is one that is reviewable within the terms of section 149.
53	The authorities referred to in Naroghid included Casey City Council v Dennis Family Corporation (“Dennis Family Corporation”), a decision of the Supreme Court of Victoria involving contributions for road works. Among other things it was submitted that the Tribunal exceeded its powers under section 149 of the PE Act arising out of the relevant permit conditions. As originally drafted, the conditions at issue required provision and construction of road works to the satisfaction of the responsible authority. One of the conditions was amended to remove the requirement for works to be constructed. This left the other condition, which still required roads to be provided and constructed to the satisfaction of the responsible authority. The subdivider had submitted that the plain meaning of ‘provide’ extended to supplying money.
54	The Court identified the fundamental question as being whether section 149 of the PE Act enabled the Tribunal to go behind the condition that was directed to the provision and construction of the roads and direct the council with respect to the funding of the roads. The Tribunal had thought that the condition in question was a general condition giving the responsible authority control over matters including financial agreements for provision of road works. The Tribunal considered that section 149 of the PE Act provided a general dispute resolution mechanism involving specified persons and specified bodies and that anything in a planning scheme or permit requiring something to be done to the satisfaction of the responsible authority triggered the opportunity for an application under section 149 of the PE Act.
55	The Court found that the condition was directed to the physical provision of the roads and it was that which must be to the satisfaction of the responsible authority. Based on the plain meaning of the words used in the permit condition, the Court disagreed that the condition was directed at more than the physical provision and construction of roads.  The Court then stated:
I do not accept that s.149 is a “general provision” for review. In my view it is relevantly directed to adjudication with respect to compliance with the terms of permit conditions where these conditions require performance to the satisfaction of the responsible authority.
56	The Court went on to state that it would be eminently desirable for section 149 of the PE Act to be amended to enable the decision that was at the heart of the dispute – being the decision regarding contributions – to be reviewed by the Tribunal on its merits. However, notwithstanding such desirability, given the ultimate decision it is apparent that the Court was not prepared to read the terms of the condition so broadly so as to find jurisdiction under section 149 of the PE Act.  
57	Adopting the phrasing in Naroghid, the real and substantive purpose of condition 35 of the Permit is to provide timeframes by which development must be commenced and completed and to direct attention to the process pursuant to section 69 of the PE Act for any extension to these times. So, in the present case, the plain meaning of the wording of condition 35 is to direct attention to section 69 of the PE Act for any extension of time. Whilst the extension of time is sought from the Council, it is not sourced in the Permit condition, but rather, the PE Act. In the present case, it might also be desirable to read the words of condition 35 so as to provide jurisdiction for merits review of the Council’s decision (as was similarly expressed in Dennis Family Corporation). However, the wording of condition 35 of the Permit does not allow for this to occur.
58	After Naroghid was decided, section 69 of the PE Act was amended to change the timeframes within which an application for extension of time could be sought and to prevent the Tribunal from being able to entertain an application for extension of time made outside of those time frames. 
59	However, both before and after the amendment, section 69 of the PE Act governed how a permit can be extended. Whether a permit contains a condition dealing with its extension or is silent on the matter, and whether any condition that is included refers to section 69 of the PE Act or not, an extension of that permit is required to occur in accordance with the terms of section 69 of the PE Act. However, if a permit deals with something outside of the scope of section 68 and 69 of the PE Act, then the terms of section 69 will not apply. It is in such a situation that a permit might contain a condition that ‘fills the gap’ and enables the permit to be extended with the approval of the responsible authority. In such a circumstance, arguably section 149(1)(a) of the PE Act might enable merits review of that decision.
60	I understood the Applicant to argue that irrespective of condition 35 of the Permit mirroring the words of section 69 of the PE Act – which applies to any extension of time sought – the fact of the inclusion of these words in the Permit meant that merits review under section 149(1)(a) of the PE Act was available. If condition 35 did not contain those words, and simply referred to timeframes for expiry, then merits review of the Council’s decision would not be available under section 149(1)(a) of the PE Act.
61	This argument misses the point that the permission for extension is sourced in section 69 of the PE Act and the relevant wording in condition 35 of the Permit merely directs the reader to that section of the legislation; it does no more than that. Including those words in condition 35 – that in essence do no more than mirror a provision of the PE Act – do not, merely by their inclusion, open up a right to merits review that otherwise would not be available. The jurisdiction available turns on the wording of the condition in question. For this reason, another case cited by the Applicant – Mount Road Nominees Pty Ltd v Moorabool SC can be distinguished from the present situation, given the different wording involved in condition 4 of that permit. The wording employed in condition 35 of the Permit does not create another independent mechanism in which to seek review of an extension of time; it only refers to the process pursuant to section 69 of the PE Act.
62	Accordingly, for the foregoing reasons I determine that I do not have jurisdiction under section 149(1)(a) of the PE Act to review the merits of the Council’s decision to extend time for periods other than what was sought by the Applicant.
Does the Tribunal have jurisdiction under section 81(1) of the PE Act?
63	Given that I have found that jurisdiction does not exist under section 149(1)(a) of the PE Act, I need to determine whether jurisdiction is available under section 81(1) of the PE Act. 
64	Section 81(1) of the PE Act deals with a decision of a responsible authority to refuse to grant an extension of time, or, the failure of the responsible authority to extend the time within one month after the request for extension is made. 
65	Hence, section 81(1) of the PE Act deals with where the responsible authority refuses the application to extend time or fails to extend time within the prescribed period. 
66	In the present case, there is neither a refusal nor a failure to extend time within the prescribed time period; rather, there is an approval granted of a time frame different to that which was sought. 
67	Notwithstanding the wording of section 81(1) of the PE Act, the Applicant contended that section 81(1) of the PE Act should be read broadly to include the situation where the decision of the responsible authority was to vary what was sought by the Applicant. The Applicant argued that a purposive reading of the PE Act supports this approach, despite the words of section 81(1) of the PE Act not specifically dealing with this situation. The Applicant argued that if Parliament had intended for this type of decision to be excluded from the ambit of section 81(1) of the PE Act it would have needed to include specific words to this effect, in circumstances where the PE Act provides broadly for merits review of decisions by the Tribunal. I was taken to section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”) and section 85(1)(f) of the PE Act in terms of the functions of the Tribunal on review. 
68	Alternatively, the Applicant says that approval for something less than what was sought could be construed as a refusal for the purposes of section 81(1) of the PE Act.
69	Notwithstanding the relatively broad opportunities for merits review available under the PE Act, in light of the specific wording used in section 81(1) of the PE Act I disagree that I can read the references to the responsible authority refusing to extend time or failing to extend time within a certain period of the request being made as anything other than a refusal or a failure. Notwithstanding that the Tribunal has all the functions of the decision‑maker in exercising its review jurisdiction and can affirm, vary, set aside and make another decision or set aside and remit the decision under review, I am being asked to disregard the specific wording of the section of the PE Act that provides jurisdiction and instead read those words as allowing review of a decision to approve on unwanted terms. 
70	This flies in the face of the approach of the PE Act in setting out the decisions that can be made in relation to permit applications (Part 4 – Permits, Division 1 – Permits required by planning schemes) and the corresponding different types of applications for review pertaining to planning permit decisions (Part 4 – Permits, Division 2 – Reviews by Tribunal). Division 2 contains section 81(1) and also section 85, the latter which specifies what the Tribunal may do after hearing an application for review. Relevant to this proceeding, section 85(1)(f) of the PE Act provides that the Tribunal may:
direct that the time within which a development or use is to be started or the development is completed or within which a plan under the Subdivision Act 1988 is to be certified must be extended for a specified period or must not be extended, in the case of an application for review of the refusal or failure of the responsible authority to extend the time
(my emphasis).
71	This section reiterates the link between the type of application – an application for review of the refusal or failure of the responsible authority to extend the time – and the decision that the Tribunal can make in that respect: that the time must be extended for a specified period or must not be extended. 
72	The PE Act is somewhat methodical in the way that it sets out the decisions that can be made and the applications for review available in respect of those. The wording of sections 81(1)(a) and (b) of the PE Act is clear:
Any person affected may apply to the Tribunal for review of—
(a)	a decision of the responsible authority refusing to extend the time within which any development or use is to be started or any development completed; or 
…
(b)	the failure of the responsible authority to extend the time within one month after the request for extension is made.
73	In terms of refusal, the wording does not refer to a decision of the responsible authority refusing the extension of time sought or requested; it deals with a decision refusing to extend the time within which any development or use is to be started or any development completed. If there is a refusal to extend the time then section 81(1)(a) of the PE Act is available. To read those words to include the situation before me for the purposes of finding jurisdiction under section 81(1)(a) of the PE Act would be at odds with this clear wording.
74	In the context of the above, I do not consider that I can read section 81(1) of the PE Act in the manner advanced by the Applicant.
75	The alternative argument – to view the Council’s decision as a constructive refusal of the extension of time sought – was not pursued as vigorously as the aforementioned argument. I was not provided with any cases where the Tribunal had treated an approval as a constructive refusal. Given the system is intended to operate in a practical manner that is understandable to ordinary people, it would seem confusing if an approval of anything other than what was sought was able to be construed as a refusal. I also query whether that logic then could or should be applied elsewhere: for instance, a situation where a person applies for three permissions in an omnibus application and the responsible authority issues a Notice of Decision to Grant a Permit (“NOD”) but only for two of those permissions. Is this similarly a constructive refusal, notwithstanding that an NOD has issued? 
76	In saying this, there might be circumstances of a particular case that warrant further consideration of whether a particular approval is actually a constructive refusal. However, in the circumstances of the case before me and the facts as presented, I am not persuaded that Council’s approval of an extension of time for the Permit of one year to commence and one year to complete the development is actually a refusal for the purposes of section 81(1)(a) of the PE Act. 
77	Accordingly, for the reasons set out above I determine that I do not have jurisdiction under section 81(1) of the PE Act to review the merits of the Council’s decision to extend time for periods other than what was sought by the Applicant, even if the application was made under that provision.
Conclusion
78	As stated at the outset, in this case the parties have now arrived at a consent position regarding the extension of time sought. However, for the foregoing reasons I find that I do not have jurisdiction to deal with this matter under either section 149(1)(a) or section 81(1) of the PE Act. 
79	Accordingly, pursuant to section 75 of the VCAT Act this application is summarily dismissed on the basis of it being misconceived due to lack of jurisdiction.

Susan Whitney
Member