8VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No.  P11627/2021
Permit application No.PA2000962
	
 catchwords
Section 82 Planning and Environment Act 1987; Regulation 35 Planning and Environment Regulations 2015; Section 126 Victorian Civil and Administrative Tribunal Act 1998; Application to extend time to commence proceeding
Applicant	Alcoa of Australia Limited	

responsible Authority	Minister for Planning	
Respondent	Waste Services Pty Ltd	
Referral Authorities	AusNet Services, Department of Environment, Land, Water & Planning, Development Victoria, EPA Victoria – North West, Greater Geelong City Council	
SUBJECT LAND	82-90 Buckley Grove,
MOOLAP VIC 3224	
hearing type	Practice Day Hearing 	
date of hearing	29 October 2021	
DATE OF ORDER	17 November 2021	
citation	Alcoa of Australia Limited v Minister for Planning [2021] VCAT 1371	
Order
Extension of time for commencement of proceeding
1	Pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998, the time for commencing this proceeding is extended until and to include the date on which the application for review was lodged with the Tribunal, namely, 14 October 2021.
Hearings
2	This application is listed for a compulsory conference and a hearing as detailed below.
The compulsory conference and the hearing will be at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you.
Compulsory Conference:	
Date and time	28 February 2022
10.00am – 1.00pm	

Conduct	Online Platform	

Hearing:	
Date and time	26, 27, 28, 29 April 2022 & 2 May 2022
10.00am – 4.30pm	

Conduct	Online Platform	
The details of the online platform will be provided to the parties before the hearing.
What the responsible authority must do
3	By 21 December 2021 the responsible authority must give the information required by the Tribunal’s Practice Notice PNPE2 – Information from Decision Makers (PNPE2) to the Tribunal, unless this material has already been given to the Tribunal.  The responsible authority must give a copy of the completed table of Practice Note PNPE2 (without the attachments) to the applicant and the respondent (permit applicant).
What the respondent (permit applicant) must do
4	If you are the respondent (permit applicant), you are a party to the proceeding.  By 21 December 2021 you must complete a Statement of Grounds online at www.vcat.vic.gov.au/respondplanning and give a copy to the responsible authority and the applicant.
What referral authorities must do
5	If you are a referral authority and want to take part in this proceeding you must give a completed Statement of Grounds form (available at www.vcat.vic.gov.au/respondplanning) to the Tribunal, the responsible authority and the applicant by 21 December 2021.
What all parties must do
6	No later than 10 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documentation, case law and photographs) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
7	All expert evidence must be filed and served in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Compulsory conference
8	All parties must attend the compulsory conference either in person or by a representative who has permission to settle the proceeding on their behalf.
(Note: See more information in Appendix A of this order).
9	No later than 10 business days before the compulsory conference the respondent (permit applicant) must give all parties a copy of any amended plans it wants to discuss or rely upon at the compulsory conference.
10	No later than 5 business days before the compulsory conference the responsible authority must give the Tribunal and all parties a copy of draft permit conditions that may be discussed at the compulsory conference.  A copy of the conditions must be brought to the compulsory conference in electronic Word format.
11	Any document to be relied on for the compulsory conference that is provided to the Tribunal must be clearly marked “For Compulsory Conference”.
Requests for procedural orders
12	Any request for procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.
Tribunal Book
13	No later than 5 business days before the hearing, the respondent (permit applicant) must provide an electronic copy of a Tribunal Book to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
Information on the content and format requirements of the Tribunal Book is available at www.vcat.vic.gov.au 

Teresa Bisucci
Deputy President

APPEARANCES:		
For Alcoa of Australia Limited	Jeff Lynn, lawyer, Ashurst 	
For Minister for Planning	Meg Lee, lawyer, Hall & Wilcox  	
For Waste Services Pty Ltd	Andrew Walker, of counsel instructed by Peter Merrylees, lawyer, Merrylees Pty Ltd	
For Greater Geelong City Council	Tim Webb, statutory planner	
For ​EPA Victoria - North West​, AusNet Services, Development Victoria	No appearances	

reasons
background
1	Alcoa of Australia Limited (applicant) has lodged an application for review (application) under section 82 of the Planning and Environment Act 1987 (PE Act) seeking a review of the decision of the Minister for Planning (responsible authority) to issue a notice of decision to grant a planning permit (NOD).  The NOD allows the use and staged development of land at 82-90 Buckley Grove, Moolap (land) for a transfer station, materials recycling, removal of native vegetation, business identification signage and reduction in car parking and bicycle facilities (proposal).
2	The application was listed for a practice day hearing to consider:
an extension of time for lodging the application pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998, given the Notice of Decision to Grant a Permit is dated 5 September 2021 and the application for review was lodged on 14 October 2021.  
3	The parties now agree that the application was lodged out of time and that an extension of time to commence the proceeding is required pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), if the application is to proceed.
4	Having regard to the submissions of the parties, I have decided to grant an extension of time to commence the proceeding because that enables justice to be done in this case.   My reasons follow.
factual matrix
5	A summary of the relevant facts follows:
•	The NOD was signed by the responsible authority on 5 September 2021;
•	The last page of the NOD states:
WHAT HAS BEEN DECIDED?
The responsible authority has decided to grant a permit. The permit has not been issued.
This notice sets out what the permit will allow and what conditions the permit will be subject to if issued.
WHAT ABOUT REVIEWS?
For the applicant –
•	The person who applied for the permit may apply for review of any condition in the notice of decision to grant a permit. The application for review must be lodged within 60 days of the giving of this notice.

For an objector –
•	An objector may apply for review of the decision of the responsible authority to grant a permit. The application for review must be lodged within 28 days of the giving of this notice.*
•	If there is no application for review, a permit will be issued after 28 days of the giving of this notice.
*Tribunal emphasis
•	The NOD was sent to Waste Services Pty Ltd (respondent) and the applicant by email on 17 September 2021 (email), 12 days after the date of the NOD;
•	The email included a covering letter which provides inter alia:
…I refer to the above matter submitted to the Minister for Planning C/-Department of Environment, Land, Water and Planning (DELWP) on 18/9/2020.After considering all relevant matters, I advise that the Minister for Planning has decided to grant a permit, subject to conditions.  
Please find enclosed a Notice of Decision to Grant a Permit issued under Section 64 of the Planning and Environment Act 1987.
I wish to draw your attention to the Application for Review provisions on the reverse side of the Notice, and in particular the following:
1.	An objector may apply for a review of the decision of the responsible authority to grant a permit.  The application for review must be lodged within 28 days after the date of this notice.
2.	If there is no application for review lodged within 28 days after the date of this notice, a permit will be issued.
3.	The person who applied for the permit may apply for a review of any condition in the notice of decision to grant a permit. The application for review must be lodged within 60 days of the giving of this notice…
•	The application was lodged with the Tribunal on 14 October 2021.
legislative framework
6	Section 82 of the PE Act provides the legislative mechanism for an objector seeking review of the decision of a responsible authority to issue a NOD.  The Planning and Environment Regulations 2015 (PE Regulations) provides the timeframes within which such an application can be made.  Regulation 35 of the PE Regulations provides:

35	Application by objector for review under section 82
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.
7	In order to remove any ambiguity in the interpretation of the timeframe provided for an application under section 82 of the PE Act, the PE Regulations were amended on 1 July 2018.  Regulation 35 now provides that an application must be made ‘within 28 days after the date of the notice of that decision’.  Prior to 1 July 2018 the relevant Regulation allowed for an application to be made to the Tribunal ‘within 21 days after the responsible authority gave notice of the decision to an objector’.  
8	For this application, having regard to regulation 35 of the PE Regulations, the closing date for the lodgement of an application under section 82 of the PE Act was 4 October 2021.  The application was lodged on 14 October 2021.  
9	Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides: 
126 	Extension or abridgment 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.
relevant case law
10	The Tribunal decision in Katsanis v Wyndham CC (Katsanis) sets out the following factors to be considered when deciding whether to extend time:
[11]	For many years the criteria that the Tribunal has considered when deciding whether to extend time for lodging an application for review have been: 
(i)	What reasons are given for the delay by the applicant for extension of time in lodging its appeal?
(ii)	Did the applicant for extension of time take any other action (apart from the lodging of the objection or the late appeal) which continued to make the responsible authority aware that its decision to grant a permit was being contested?
(iii)	Will the applicant for the permit or the responsible authority suffer any prejudice if the application to extend time is granted?
(iv)	Will granting of the extension of time result in the unsettling of other people or of established practices?
(v)	Does the proposed appeal have a real chance of success?
(vi)	Are any considerations of fairness as between the applicant for extension of time and other persons in a like position which are relevant?
(vii)	Is there to be an appeal in any event brought by persons who did lodge an appeal in time?
(viii)	Is there any other reason why it would be fair and equitable in the circumstances for the application for extension of time to be granted?
11	Further, some parties rely on the decision of the Tribunal in 285 Lennox Pty Ltd v Yarra CC (285 Lennox) and the following paragraphs:
[7]	The change made to Regulation 35 on 1 July 2018 was intended to overcome the difficulties identified in these (and other) cases. The change creates certainty about the date by which an application must be made under section 82(1). It is 28 days after the date of notice of the decision. It is not 28 days after the giving of notice of the decision.
[8]	The giving of notice may be days later than the actual date of the notice of decision depending on when the responsible authority posts or emails the NOD. Now under Regulation 35 the critical date is the date of the notice of the decision. Counting of the 28 days starts on the day after the date on the notice of decision.
[9]	The change to Regulation 35 has also increased the number of days from 21 to 28, which gives objectors more time within which to lodge their application.
[10]	It is unfortunate that some responsible authorities do not appear to have appreciated the implications of the new time limit in Regulation 35. They provide misleading and wrong advice to objectors in covering letters and in information on the back of the notice of decision itself, which harks back to the previous wording of the regulation relating to the giving of notice, not to the date of the notice of decision itself. That is what has occurred in this case.
…
[13]	The application was lodged by the firm of Best Hooper, which is an experienced firm of planning lawyers. The applicant points to wording on the back of the notice of decision to grant a permit, which provides information about reviews. For an objector, it states:
•	An objector may apply for review of the decision of the responsible authority to grant a permit. The application for review must be lodged within 28 days of the giving of this notice.
•	If there is no application for review, a permit will be issued after 28 days of the giving of this notice.
[14]	It was submitted by the applicant that this wording was misleading and that wrong advice was given by the lawyers based on this wording resulting in the application being lodged out of time.
[15]	I am not satisfied that this justifies the applicant’s failure to lodge the application within time. The applicant is a professional development company with professional representation. Such experienced professionals should be familiar with the relevant time limits for lodging common types of planning applications such as section 82 applications.
[16]	In any event, it is very clear on the front of the Tribunal’s application form itself what the time limit is for lodging an application for review. The form clearly states:
If you are an objector or a recommending referral authority and want to review a decision by a responsible authority to grant a permit, you must lodge your application under section 82 or section 82AAA of the Planning and Environment Act 1987 within 28 days of the Council’s Notice of Decision to Grant a Permit.
[17]	Equally, the Tribunal’s website also clearly states the time limit as follows:
Time limits
An objector has 28 days after the date of the Notice of Decision to Grant a Permit to lodge an application for review with VCAT.
[18]	The application form, which was submitted by the applicant, and the website, clearly reflect the requirements of Regulation 35. In my view, the applicant cannot rely upon the words on the back of the notice of decision to say that it was unaware what the correct time limit was for lodging an application for review.
12	In 285 Lennox the Tribunal took a particularly stringent view about timeframes for lodging an application under section 82 of the PE Act and refused to extend time to commence the proceeding.  The Tribunal stated:
[23]	The Tribunal has taken a particularly stringent view about the need for objectors in particular to adhere strictly to the time limits allowed for lodging applications for review. It has taken the view that in the case of an application for review lodged out of time by an objector there must be a very good reason to extend the time limit that will tilt the scales significantly in favour of the person seeking the extension of time in order to overcome the disadvantage caused to a permit applicant by opening the certainty of a permit to challenge.  In the present case, I am not satisfied there is a sufficiently good reason.
[footnotes omitted]
parties submissions
Applicant
13	The applicant submits that an extension of time pursuant to section 126 of the VCAT Act should be granted for the following reasons:
i	The delay was as a result of three issues: error on the part of the applicant’s lawyer in the understanding of the timeframe for lodging the application, the receipt of the NOD 12 days late and the inconsistency in the language between the notes on the NOD and the email.
ii	The applicant should not be disadvantaged because it was represented by experienced planning and legal advisors.  To find otherwise is tantamount to a different measure of justice for the applicant which would be unfair.
iii	On 29 September 2021, the applicant’s lawyers wrote to the responsible authority requesting copies of various documents relating to the application for planning permit.  In this correspondence the responsible authority was put on notice that the applicant had statutory rights of appeal that would expire on a particular date.
iv	Correspondence between the applicant and the Department of Environment Land Water and Planning (department) in which it was made clear that the applicant intended to lodge an application.
v	As a consequence of the correspondence above, the responsible authority and the department were aware that the applicant had miscalculated the date for lodging an application and they should have corrected the error by the applicant. 
vi	The applicant has a history of involvement with the application for planning permit and lodged two objections with the responsible authority. 
vii	The principal prejudice in this case is to the applicant as it will lose its right to have the application heard and determined by the Tribunal.  Whilst the respondent will not suffer any prejudice as it cannot proceed with the development until the requisite permission is obtained pursuant to the Environment Protection Act 2017 (EP Act) and the Environment Protection Regulations 2021 (EP Regulations).  In further correspondence received after the practice day hearing, the applicant submits that the development of the proposal requires a development licence under section 44 of the EP Act and that an operating licence is then required for a prescribed operating activity which may be dictated by through-put volumes.  Thus, regardless of when an operating licence is required, a development licence will be required for all stages of development.  Therefore, I should place little weight on submissions from the respondent that it will delay its ability to enter contracts expeditiously.
viii	An extension of time to commence this proceeding will not lead to an unsettling of other people or established practices.  The fact scenario in this application is unique and unusual and should be considered when weighing up the certainty of time limits.
ix	The applicant’s case is with merit and its grounds are clearly arguable and it is not the role of this Tribunal to undertake a merits review at this stage in the proceeding.
x	Justice in this case will be done if the Tribunal grants the extension of time to commence the proceeding having regard to the unique fact scenario.
Responsible authority 
14	The responsible authority opposes the extension of time to commence the proceeding being granted by the Tribunal because it says that the following factors weigh against the discretion being exercised:
i	The NOD was provided to the applicant and the respondent at the same time by email.  Therefore, receipt of the NOD was instantaneous.
ii	There was sufficient time between the receipt of the NOD and the last day for lodging any application for the applicant to receive advice from its lawyers about the correct date for such filing. 
iii	There was sufficient time for the applicant to obtain the requisite instructions, and to prepare and lodge an application. 
iv	The responsible authority was contacted separately by the applicant’s planning consultants prior to the request for documents from the department.  This demonstrates that the applicant was well represented by experienced planning and legal advisors. This is not a case of an individual objector with a lack of understanding of the legislation or an inability to seek legal advice. 
v	The respondent will be put to significant delay in pursuing its development and associated costs if an extension is granted. 
vi	Both the responsible authority and the respondent will incur costs associated with the hearing that would not be incurred if the extension of time is not granted as there are no other parties who have lodged applications for review. 
vii	The application does not have a strong chance of success particularly considering the grant of a green waste permit at an adjacent site in the Tribunal decision of Probert v Greater Geelong City Council. 
15	The responsible authority does not make any comments on whether a development licence is required. 
Respondent
16	The respondent submits that the request for an extension of time should be refused and relies upon 285 Lennox and decisions that have followed to support its submission.
17	Further, it says that:
i	Time limits are important and necessary to allow the effective and efficient operation of the law and the planning regime.
ii	The application was lodged by an experienced and ‘highly regarded’ firm of planning lawyers and thus, I should not be satisfied that there is any ambiguity regarding the date of the NOD.
iii	A reasonable enquiry about the relevant time limit would have revealed the correct date for the last day of filing for an application under section 82 of the PE Act.
iv	It will suffer ‘severe prejudice’ because of a likely delay in the issue of a permit of 12 months and anticipated costs of more than $100,000.
v	The uncertainty created by any delay will prevent it from entering into contracts ‘sooner rather than later and could well result in losing long term business opportunities which may not be recoverable’ and this will have a flow on effect to waste disposal in the area.
vi	The applicant’s case is weak because the land is in an area expected to be developed for industrial uses.
18	The respondent agrees that section 44 of the EP Act requires a development licence to be obtained prior to engaging in activities specified in items 19 and 20 of Schedule 1 of the EP Regulations.  However, it submits that given that the NOD authorises development in two stages: Stage 1 for the transfer station and Stage 2 for the materials recycling facility, that a development licence is not required for Stage 1. 
tribunal determination
19	There have been numerous Tribunal decisions that have considered whether an extension of time to commence a proceeding should be granted.  In Becton Corporation Pty Ltd v Port Phillip CC, the Tribunal succinctly summarised the task as:
[7]	… I must seriously consider whether the onus, which is clearly upon the applicant, of demonstrating that the time limit should be extended has been discharged.  To use the analogy of a set of scales, the onus is not discharged if the arguments on each side result in the scales being horizontal.  It is necessary for the scales to be tilted, and significantly tilted, in favour of the person seeking the extension of time.
20	Having regard to the submissions made to me, I am satisfied that the applicant has discharged its burden and the scales are significantly tilted in favour of the applicant.  Justice is done in this case, by granting the extension of time to commence the proceeding.  Whilst I consider time limits exist to create certainty rather than uncertainty and as such time limits are integral to the operation of the planning system, I am required to act fairly and in accordance with the facts and circumstances as presented to me in each case.
21	Having regard to the factors set out above, I am satisfied that an extension of time should be granted for the following reasons:
i	The applicant has clearly articulated the reason for the delay.  The explanation was set out in its submission to me, and it accepted that the error was because of its lawyer’s misunderstanding of the law.  This was compounded by the lateness in receipt of the NOD and the erroneous information contained within it and the accompanying letter from the responsible authority.  Whilst I agree that an experienced firm of lawyers or planning consultants should understand the law in respect of time limits, should the applicant itself then be denied its rights because of the error of its representative?  The Tribunal has traditionally taken a very strict view of this issue and concluded that it is insufficient to explain the delay.  When this is taken by itself as the explanation for the delay, one may conclude that it is not a sufficient explanation.  However, in this case the NOD and email were sent 12 days late, resulting in the applicant only being provided with 16 days or 11 business days to lodge its application with the Tribunal.  The proposal is substantial and includes the use and staged development of the land for a transfer station, materials recycling, and removal of native vegetation.  The lawyers requested information from the responsible authority before lodging the application, which demonstrates a measured and considered decision to the lodgement of the application.  In other words, it did not immediately lodge an application on broad ranging matters.  Rather, the statement of grounds is detailed and considered, and the application states that the applicant will rely on three witnesses to support its case.  I do not agree with the responsible authority that the applicant had sufficient time to obtain requisite instructions, and to prepare and lodge an application.  The proposal is substantial, and the applicant should have been provided with sufficient time to review its position, having regard to legal or expert advice.  In this case the time left for the lodgement of the application was not sufficient when one considers the nature of the proposal.  
I now return to the experience of the applicant’s lawyers and whilst it is true that the Tribunal’s application forms, and the website provide sufficient details about the time limits of section 82 applications, this is of little assistance when one reviews the website and the application forms after the last date for the lodgement of an application has passed.  Whilst I agree with the responsible authority that the email could be said to clarify the position about the lodgement date, the inconsistency within the language in the notes section of the NOD is not helpful.  In this case, the combination of the size of the proposal, the request by the applicant for further information, the erroneous and inconsistent information provided by the responsible authority explain the delay by the applicant in the lodging of the application.
ii	The applicant informed the responsible authority that an application was being contemplated.  I do not agree that in conveying this to another party, one needs to be finite about it, rather a strong indication can, in some cases, be sufficient.  In this case, the applicant: 
o	lodged two objections with the council about the application for planning permit;
o	contacted the council within one week of being provided the NOD to seek copies of documents relevant to the NOD; and
o	made the responsible authority and the department aware that it was considering its statutory rights.
The applicant did not inform the respondent directly that it would be taking further action.  However, the respondent advised that it did not make enquiries of the responsible authority at the expiration of the period for the filing of an objector appeal seeking an update on the status of its planning permit.  Notwithstanding, the passage of some 9 days between the date on which the responsible authority could have issued the permit and the application being lodged with the Tribunal.  I should add that the fact that the responsible authority did not issue the permit in the intervening period (some nine days) may indicate that it expected an application to be lodged.
iii	There is little doubt that the responsible authority and the respondent will suffer some prejudice including by delay and costs.  In fact, it is difficult to envisage a situation where the respondent would not suffer some detriment by the granting of an extension of time for the lodgement of an application.  However, the greater prejudice in this case, is to the applicant, who through no fault of its own finds itself seeking an extension of time to commence the proceeding.  
I do not agree with the respondent that it is clear that it could proceed with Stage 1 of the development as no further permissions under the EP Act or EP Regulations are required.  Having reviewed some of the documents that accompanied the application for planning permit, it is difficult to infer that the respondent intended to undertake the development in stages notwithstanding, the permit is for staged development.  There is a difference between obtaining a permit for a staged development and actually constructing the works or using the works in a staged manner.  The Operation Plan 2020 refers to two stages of development but does not provide any further details about how the use and development will occur in a staged manner, for example by different through puts and the like.  Instead, in response to my order dated 3 November 2021 the respondent states: 
We disagree that Stage 1 of the proposed activities, namely the construction of the TF, in the manner planned by the respondent* will constitute an activity as described in items 19 or 20 above.  That is because we are instructed that the relevant thresholds which dictate whether a facility is a medium or large facility (both of which require a Development Licence) will not be reached before Stage 2 is constructed.
… we are instructed that the projected waste estimates contained in the Operational Plan were and remain indicative only. These estimates were made in July 2020, without prior knowledge of EPA legislative regime concerning Waste and Resource Recovery activities introduced on 1 July 2021*.  We note that NOD condition 29 provides for the submission of an amended Management Plan. The amended Management Plan could specify waste volume maximum thresholds for Stage 1 consistent with the permissible thresholds for small facilities under the Regulations, should the Responsible Authority so require.  
Whilst the environmental regulatory regime was amended on 1 July 2021, in reality, the draft legislation has been in existence for a long time, and permit applicants lodging applications for planning permits would be cognisant of the likely regulatory regime that will follow post the planning regime.  In any event, I am concerned with the recent recognition by the respondent that somehow there is a new plan regarding the construction of the transfer station so that it avoids the need or permission under the EP Act and/or EP Regulations.  To effect this, the respondent has suggested that the responsible authority could require an amended Operations Plan to be endorsed under the permit.  I conclude that that there is sufficient doubt about whether such permission is required and on that basis the respondent is not ready to proceed.
iv	I do not consider that the granting of an extension of time to commence this proceeding will ‘unsettle’ the Tribunal practice which is generally to refuse extensions of time to commence a proceeding.  Rather, this is an unusual case so as to comprise an exception that allows for the discretion provided in section 126 of the VCAT Act to be exercised for valid reasons.
v	I disagree with the respondent and the responsible authority that the case is ‘weak’ or does ‘not have a strong chance of success’.  The criterion in this respect set out in Katsanis is: does the appeal have a real chance of success?  It is not for me at this stage when considering whether to extend time to commence a proceeding to undertake a ‘merits’ review.  I must look to the grounds of review as articulated in the application having regard to the planning controls and ascertain, if the proceeding, could succeed.  Having regard to that, I find that the applicant’s grounds of review are arguable and raise important issues to be determined including: 
o	the compatibility of the proposal with the Geelong Planning Scheme;
o	the compatibility of the proposal with the potential future land uses on surrounding land; and
o	the amenity impacts of the proposal by way of noise and odour.
This is not a situation where the grounds raised by the applicant are either addressed by permit condition such as to have no real chance of success.  A common example of this is overlooking and car parking.  If a proposal does not raise a permit trigger under clause 52.06 of a planning scheme or overlooking has been addressed in the manner contemplated under clauses 54 or 55, I might readily conclude that the application has no real chance of success.  The case before me, is not of that kind.  The issues are complex, and will no doubt involve the consideration and balancing of many factors to ascertain whether the proposal is an acceptable planning outcome.
vi	When the above factors are taken cumulatively, I agree with the applicant that it would be fair and equitable in the circumstances of this case to extend the time for commencement of the proceeding.
22	I have only considered the factors which are relevant to the exercise of my discretion, rather than all the factors which are set out in Katsanis.
conclusion
23	Having regard to the submissions of the parties, and the factors that I am to consider, justice is done in this case by granting the extension of time to commence the proceeding.

Teresa Bisucci 
Deputy President

Help and support
Information for all parties is available at the Tribunal’s website www.vcat.vic.gov.au

For information about what happens after you make your application, visit
www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

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appendix A 
compulsory conference INFORMATION SHEET
What is a compulsory conference?
A compulsory conference is a private meeting between the parties to the proceeding. 

With the assistance of a Tribunal member the parties can explore options to reach an agreement on all or some of the matters in dispute.  The parties should come with an open mind and flexibility in considering options that could resolve the case.

Unless all parties agree, evidence of anything said or done in the course of a compulsory conference (including any document provided to the Tribunal for the purpose of the compulsory conference) is not admissible in any hearing before the Tribunal in the proceeding. 

More information about compulsory conferences is available on the Tribunal’s website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 – Alternative Dispute Resolution (ADR).

Requirement to attend compulsory conference
If you are a party, you must attend the compulsory conference in person or by a representative who has written permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in an adverse way. 

The Tribunal may make any of the following orders under the Victorian Civil and Administrative Tribunal Act 1998:
•	If you are the applicant, your application may be dismissed or struck out.
•	If you are not the applicant, you may be struck out as a party. This means that you can take no further part in the proceeding, including the hearing. 
•	The matter may also be settled, approving the proposal with or without changes.
•	You may be ordered to pay the costs of the other parties in certain circumstances.

Who may attend a compulsory conference?
Only parties to the proceeding may attend a compulsory conference.

A person is a ‘party’ to the proceeding if the person:
•	lodged an objection to the planning application
•	has given a completed Statement of Grounds form to the Tribunal by the due date and paid the fee
•	has indicated in their Statement of Grounds form that they intend to participate in the hearing

The following persons are NOT a party to a proceeding:
•	a person who did not lodge an objection to the permit application
•	a person who did not give their Statement of Grounds form by the due date and/or did not pay the fee
•	a person who has indicated on their Statement of Grounds that they do not intend to participate in the hearing

If you are not a party to the proceeding but wish to be heard, you can attend at the start of the compulsory conference and ask the Tribunal to join you as a party to the proceeding.  You will need to explain why you should be joined as a party to the proceeding.  Other parties will also be given the opportunity to tell the Tribunal whether they agree or disagree about you being joined as a party.  The Tribunal will then make a decision to join you as a party or not.

If you are not joined as party, you cannot take any further part in the compulsory conference and the Tribunal may make a final order or make other orders that may affect you in an adverse way.

A party who is struck out because they do not attend a compulsory conference cannot participate in any further compulsory conference or hearing.

What happens if agreement is reached at the compulsory conference?
If the parties present at a compulsory conference reach agreement, the Tribunal may make a final order to give effect to the agreement without a hearing being required. This can include allowing the proposal with or without changes.

What happens if agreement is not reached at the compulsory conference?
If parties present at the compulsory conference do not reach an agreement, a hearing date/s will be confirmed. An order will be issued by the Tribunal.

What happens if a partial agreement is reached at the compulsory conference?
If the parties reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference. 

What should you bring to the compulsory conference?
Parties should be come to the compulsory conference with a summary of their issues and solutions. This could include possible changes that could be made to the proposal in order to address your concerns or the concerns of other parties.  The attached ‘Summary of Issues and Solutions for a Compulsory Conference’ may be used.  The applicant for the permit should bring an extra copy of any relevant plans including elevations.

Planning and Environment List
SUMMARY OF ISSUES AND SOLUTIONS for a compulsory conference
VCAT reference number	P11627/2021	
Applicant	

	Alcoa of Australia Limited	

Responsible authority	Minister for Planning	

Your name		

It is suggested that each party identify key issues and potential solutions before the compulsory conference.  This will help to clarify the key issues that the parties consider most important to them and possible solutions.
Most important issues in dispute from your perspective (including any legal matters) Use additional pages if required

	

	
	
What potential solutions would you consider?  Use additional pages if required

	

	

Signature:_______________________________________ Date:________________