VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P893/2021
Permit Application no. PA2008258	
CATCHWORDS	
Planning and Environment Act 1987 s 81(1) – application for review of refusal to extend time to complete development; development commenced     	

Applicant	Nataliya Thompson	

Responsible Authority	Moorabool Shire Council	
SUBJECT LAND	6 Peelmans Lane
MADDINGLEY  VIC  3340	
HEARING TYPE	Hearing 	
DATE OF HEARING	9 August 2021	
DATE OF ORDER	9 August 2021	
date of written reasons	17 August 2021	
CITATION	Thompson v Moorabool SC [2021] VCAT 935	

Order

1	The decision of the responsible authority dated 11 May 2021 is set aside.
2	Pursuant to s 85(1)(f) of the Planning and Environment Act 1987, I direct that the time within which the development described in permit PA2008258 is to be completed is to be extended to 29 March 2023.

Juliette Halliday
Member			

Appearances
For Nataliya Thompson 	Ms Emily Marson, lawyer of Best Hooper Lawyers	
For Moorabool Shire Council 	Mr Matthew Barkla, lawyer of Beck Legal	

Information
Description of proposal	Extension of time for completion of development under Permit No. PA2008258 for development of five dwellings.	
Nature of proceeding	Application under section 81(1) of the Planning and Environment Act 1987	
Planning scheme	Moorabool Planning Scheme	
Zone and overlays	General Residential Zone, Schedule 2
Environmental Significance Overlay, Schedule 2
Design and Development Overlay, Schedule 6	
Land description	The subject land is located on the north side of Peelmans Lane, east of the intersection with Rivergum Place (which runs off Peelmans Lane in a north-easterly direction). It is located to the south of the Werribee River. The subject land is rectangular in shape with a total area of 1206 square metres. It comprises 5 lots. Unit 5 in the north-east corner of the land has been constructed. Unit 3 is at lockup stage and Unit  4 is at fixing stage. Units 1 and 2 are at frame stage.  	

Reasons

Introduction
1	I made the above order on 14 December 2018. I gave oral reasons for the order at the conclusion of the hearing. In accordance with section 117(2) of the Victorian Civil and Administrative Tribunal Act 1998, the Council subsequently requested written reasons. The following paragraphs are those reasons in written but edited form.
2	On 29 September 2009, Planning Permit PA2008258 (Permit) was issued by the Moorabool Shire Council for the development of five dwellings at No. 6 Peelmans Lane, Maddingly (Land). Plans were endorsed under the Permit on 7 May 2010. Condition 11 of the Permit provides for two years within which to commence the development and four years within which to complete the development (before the Permit expires). Before the buildings and works commenced, the Council extended the time within which the development was to commence four times.
3	Construction of the development commenced in December 2016. Since then, the time within which the development is to be completed has been extended three times. The last three extensions have allowed further time for the development to be completed by 29 March 2021.   
4	The applicant has applied under s 81(1)(a) of the Planning and Environment Act 1987 (PE Act) to review the decision of the Council to refuse a further extension of time to complete the works authorised under the Permit.
Background
5	The facts with respect to the site; the locality; the relevant planning controls and the grant of the Permit, which I adopt, are set out in the Council’s submission. I will now set out the relevant chronology of events which have occurred since the grant of the Permit (this information has been extracted from the Council’s written submission):
a.	27 October 2011: an extension of time was granted so that works were to commence by 29 September 2013, and to be completed by 29 September 2015;
b.	16 September 2013: an extension of time was granted so that works were to commence by 29 September 2014 and to be completed by 29 September 2016;
c.	5 December 2014: an extension of time was granted so that the works were to commence by 29 September 2015 and were to be completed by 29 September 2017;
d.	3 February 2016: an extension of time was granted so that the works were to commence by 29 September 2016 and were to be completed by 29 September 2018;
e.	31 August 2018: an extension of time to require completion of the development by 29 September 2019 was granted;
f.	23 January 2020: an extension of time was granted to require completion of the development by 29 March 2020; and
g.	12 May 2020: an extension of time was granted to require completion of the development by 29 March 2021.
6	In addition, the applicants’ submissions state as follows:
a.	December 2016: construction of the buildings and works to develop the 5 units commenced;
b.	11 May 2021: building work on the subject land ceased; and
c.	23 June 2021: the relevant building permits were cancelled.
7	The resolution of this case turns on whether or not the decision of the Council to refuse an extension of time to complete the works authorised under the Permit should be affirmed or set aside by the Tribunal.
What are the party’s contentions?
8	I have summarised the grounds upon which the applicant relies in support of its position below:
a.	The approved development has been substantially completed and the permit holder has committed a significant amount of time and money to date in relation to the construction of the development. Notably the applicant refers to the following:
i.	The land has been subdivided and each unit has its own title;
ii.	Unit 5 is completed and is occupied;
iii.	Units 1 and 2 are at frame stage, Unit 3 is at lockup stage and Unit 4 is at fixing stage; and
iv.	Units 2 and 3 will be sold on completion and the purchasers have paid a deposit;
b.	Construction was significantly delayed due to disruptions caused by the COVID-19 pandemic and bushfires, which were beyond the control of the permit holder. Additional time is required for the completion of the development given the high level of uncertainty as to when the COVID-19 pandemic may end;
c.	The changes in planning policies and controls do not materially affect the approved development as the approved development benefits from accrued rights;
d.	In considering a request to extend the date for completion, the critical period for consideration is the time that was available and has elapsed since the development started within that time. Given that construction of the approved development commenced in December 2016, a request for additional time to complete the approved development is not unreasonable; and
e.	There has been no material change in circumstances to adjoining allotments since the approval of the last extension of time request. 
9	The Council refused the application on the following grounds:
a.	The applicant has had adequate time to complete the development since commencement;
b.	The applicant provided a written assurance not to apply for any further extensions of time in the previous extension of time approval; and
c.	The request for an eighth extension of time is beyond a reasonable amount of time since the issue of the Permit 12 years ago and commencement of development four years ago.
10	Having regard to the Tribunal’s decision in Hotel Windsor Holdings Pty Ltd v Minister for Planning, the Council submits that its decision to refuse to grant the extension of time for completion of the works should be affirmed. In support of this submission, it submits (amongst other things):
a.	Given the extent of work undertaken prior to the grant of the seventh extension of time, it was reasonable for Council to expect that the outstanding work would be completed within the extended time period of March 2021, and when considering the seventh extension of time, the Council relied on the Applicant’s written assurance that if the extension was granted all works would be completed by 29 March 2021; 
b.	The Council has issued seven extensions of time. This is the eighth extension of time, and Council has been fair in its assessment of these applications;
c.	No specific detail has been provided about how the disruption caused by COVID-19 and the bushfires have substantially delayed works on the site. Council is concerned that minimal work has occurred on the site since the grant of the most recent extension to the completion date issued on 12 May 2020 for completion by 29 March 2021; 
d.	The applicant has failed to provide a reasonable explanation as to why insufficient time was left in which to complete the development; and
e.	Condition 11 of the Permit allowed two years to commence and four years within which to complete and such a condition is generally found to be acceptable for the scale of development proposed in the application.
Discussion of key issue and findings
11	Having considered the submissions of the parties, the material filed with the Tribunal and the relevant principles regarding a request to extend time stemming from Kantor v Murrindindi Shire Council and Hotel Windsor Holdings Pty Ltd v Minister for Planning,  I have decided that the time for completion of the development under the Permit should be extended. The basis for this decision is set out below.
12	Whilst there have been changes to the Moorabool Planning Scheme (Scheme) since the Permit was granted, the Council’s position is that there has been no amendment to the Scheme that would change Council’s decision if it were required to assess a similar application under the current Scheme controls. In my view, the changes to planning controls and policy (including the introduction of DDO6) are less relevant in this case because the development allowed under the Permit has commenced.
13	Works under the Permit have commenced, and I accept that the landowner is not seeking to warehouse the Permit.
14	Based on the facts and circumstances of this matter, there are intervening circumstances which bear upon the grant of the extension request which weigh in favour of the grant of the extension of time, as follows:
a.	There has been substantial commencement of the development. The applicant has committed significant resources to the construction of the development in terms of time and money, being the following:
i.	On 12 November 2018 subdivision of the subject land into 5 separate lots was registered;
ii.	Construction of Unit 5 is complete. On 19 March 2020 a certificate of occupancy was issued for Unit 5 which I understand is occupied;
iii.	Units 1 and 2 have been constructed to frame stage;
iv.	Unit 3 is at lock up stage and Unit 4 is at fixing stage;
v.	Common access has been constructed in accordance with the endorsed plans; and
vi.	Utilities such as power and water have been connected to the land.
15	In addition to this, the following works have been carried out between the issue of the extension of time on 12 May 2020 and the lodgement of the current extension of time application on 16 March 2021:
a.	Unit 3 has been constructed to lock up stage (noting that the certificate of compliance for building work for the frame of Unit 3 was issued on 18 January 2021);
b.	Unit 4 has been constructed to fixing stage; and
c.	Units 1 and 2 have been constructed to frame stage (noting that the certificate of compliance for the frame of Unit 2 was issued on 7 May 2021).
16	The substantial commencement of the development, and the buildings and works described above are factors that weigh in favour of the granting of the extension of time.
17	The applicant did state in writing that the extension of time request which was issued on issued on 12 May 2020 would be her last. However, based on the facts and circumstances of this matter, I accept that there have been intervening circumstances which have affected the ability to complete the development. The COVID-19 pandemic has caused the construction of Units 1 and 2 to be delayed due to delay in the delivery of the timber required for the construction of the roof trusses. The applicant’s submission is that this delay in timber supply occurred in late 2021. In my view, the impact of the COVID- 19 pandemic has contributed to the landowner being held up and left with insufficient time to complete the development. 
18	Whilst almost 12 years have elapsed since the grant of the Permit, the period of time that has elapsed between the issue of the Permit and the start of the development is less relevant once the development has started. What is more relevant is the period of time allowed by the last extension, and the time that was available and has elapsed since the development started within that time.   It is over four and a half years since the development works commenced. It is approximately three years since the first extension of time to complete the development was granted in August 2018. In my view, the period of time that has elapsed since the development started is not unreasonable given the intervening circumstances associated with the COVID-19 pandemic that I have described above. This is a factor that weighs in favour of the grant of the extension of time for completion.
19	Whilst the time limit originally imposed may usually have been adequate for a proposal of this nature, it is not uncommon for extensions of time to be granted to complete a development after the development has commenced. Based on the facts and circumstances of this matter, I consider that this is not a factor that weighs against the grant of an extension of time to complete the development.
20	The economic burden imposed on the landowner by the Permit does not appear to have been out of the ordinary for a development of this nature, and this is a factor that weighs against the grant of the extension of time to complete the development.
21	It is probable that a Permit would issue if a fresh application was made, particularly in circumstances where the land has been subdivided into a configuration that is unlikely to be suitable for a different residential development. This weighs in favour of the grant of an extension of time to complete the development.
22	No clear purpose can be gleaned from the standard two-year expiry date from commencement of development, and so this is a matter which has less relevance in this case. 
23	On balance, based on consideration of all relevant facts and circumstances of this matter, I conclude that there should be an extension of time to complete the development. In my view the extension of time granted should not be piecemeal but should allow sufficient time which is reasonable so that the permitted development can be completed within that time. Taking into account time required to obtain a fresh building permit, and based on the facts and circumstances of this matter:
a.	I will grant an extension of time of a further 24 months to 29 March 2023 for the completion of the development; and
b.	I consider this to be appropriate given the current constraints on building and construction due to COVID-19 pandemic.   
24	I do not consider that the applicant is entitled to any type of open-ended extension. Although each application request to extend time to complete development under a permit needs to be considered on its own merits, I do not consider that the applicant should have any great expectation of a further extension of time being granted in the future. The decision I have made gives the applicant a chance, probably the only chance she will now have to complete the development. 
Conclusion
25	For the reasons that I have provided, the decision of the responsible authority dated 11 May 2021 is set aside.
26	Pursuant to s 85(1)(f) of the PE Act, I direct that the time within which the development described in the Permit is to be completed is to be extended to 29 March 2023.
Juliette Halliday
Member