VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No.  P11586/2021
Permit application No.D/461/2020

Applicant	Brian Beaden	

Responsible Authority	Darebin City Council	
Respondent	Alfina Sparta	
SUBJECT LAND	620-622 High Street
PRESTON VIC 3072	
hearing type	Practice Day Hearing 	
date of hearing	11 February 2022	
DATE OF ORDER	4 March 2022	
citation	Beaden v Darebin CC [2022] VCAT 240	

Order
Extension of time to commence 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 was lodged with the Tribunal, namely 5 October 2021.
Amend permit application and application for review
2	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by changing the name of the permit applicant to:
Alfina Sparta
3	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the respondent to:
Alfina Sparta
Amended statement of grounds
4	By no later than 29 April 2022, the applicant must provide the Tribunal and all parties, further and better particulars of the grounds he relies upon.

Hearings
5	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	11 April 2022
2.00 pm – 5.00 pm	

Conduct	Online Platform	

Hearing:	
Date and time	14 June 2022
10.00 am – 4.30 pm	

Conduct	Online Platform	
The details of the online platform will be provided to the parties before the hearing.
What the responsible authority must do
6	By 8 April 2022 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 in another related proceeding.  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
7	If you are the respondent (permit applicant), you are a party to the proceeding.  By 8 April 2022 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
8	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 8 April 2022.
What all parties must do
9	No later than 5 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
10	All expert evidence must be filed and served in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Compulsory conference
11	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).
12	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.
13	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.
14	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
15	Any request for procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.

Teresa Bisucci
Deputy President

APPEARANCES:		
For Brian Beaden	In person	
For Darebin City Council	Matthew Spencer, town planner	
For Alfina Sparta	Matt Gorman town planner, Big Picture Urban Rural	

Reasons
background and factual matrix
1	The application has been filed by Brian Beaden (applicant) pursuant to section 82 of the Planning and Environment Act 1987 (PE Act) and seeks a review of the decision of the Darebin City Council (council) to issue a Notice of Decision to Grant a Planning Permit (NOD) for use and development of land at 620-622 High Street, Preston (land). 
2	The application was listed for a practice day hearing to consider inter alia:
…whether an extension of time for lodging the application should be granted pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act;
3	The following facts are not disputed:
i	notice of the application for planning permit was sent to the applicant’s address in New South Wales, being the address on council’s database;
ii	the applicant objected to the grant of the planning permit on or around 11 April 2021 and this objection was received by council by post on or around 23 April 2021;
iii	NOD is dated 3 September 2021;
iv	the NOD was sent to the applicant by post under cover of letter dated 7 September 2021;
v	the cover letter and NOD were sent to the applicant’s address in Victoria that is, 24 Percival Street, Preston; 
vi	the applicant was provided with a copy of the delegate report by his neighbour Mr Zugna on 1 October 2021 following discussions between himself and Mr Zugno about the status of the application for planning permit; and
vii	the application for review was filed with the Tribunal on 5 October 2021 and did not include a copy of the NOD, as the applicant had not received a copy of it at that time.
4	Having considered the submissions of the parties, I consider it appropriate to extend the time for the filing of the application for review.
legislative framework
5	Section 82 of the PE Act provides the legislative mechanism for an objector seeking review of the decision of a council to issue a NOD.  The Planning and Environment Regulations 2015 (PE Regulations) provide 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.
6	In order to remove any ambiguity in the interpretation of the timeframe in which an application under section 82 of the PE Act can be made, 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’.  
7	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 1 October 2021.  The application was lodged on 5 October 2021.  
8	Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides the legislative basis for an extension of time and states: 
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
9	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?
10	Further, some parties in this application 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.
…
[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.
11	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]
submissions and findings
12	I accept the factors that a decision maker is to have regard to in considering an extension of time are as set out in Katsanis. However, not all of these factors are necessarily relevant on every occasion.
13	Accordingly, I set out the relevant factors in this case below.
14	However, I consider it necessary to make comments about the reliance on the 285 Lennox decision. Whilst the Tribunal has taken stringent views about time limits and the need for objectors to adhere to such limits, 285 Lennox does not prevent nor fetter the exercise of discretion under section 126 of the VCAT Act.  Each case must be considered having regard to the relevant facts and circumstances.
Reasons for delay
15	The applicant was provided with a copy of the NOD at his residential address in Victoria and not where he was domiciled at the time the NOD was issued.  He was given a copy of the delegate’s report following a conversation with his neighbour about the application for planning permit.  The applicant says that his neighbour contacted council on Friday, 1 October 2021 to enquire about the application for planning permit.  The neighbour was given a copy of the delegate report which was then sent to the applicant.  Upon reading the delegate report the applicant was concerned that a planning permit had issued and so on Monday, 4 October 2021 he sought clarification from council about the status of the application.  He was told that a planning permit had not issued.
16	The Tribunal records indicate that the applicant filed an application for review on 5 October 2021 and did not include a copy of the NOD as at that time, he did not have a copy of the NOD.  This was subsequently provided by council on 5 October 2021.
17	Council acknowledges that it sent the original notice of the application for planning permit to the applicant in NSW but that the NOD was sent to the Victorian address. 
18	Council says that I ought to exercise my discretion to extend the time for the filing of the application because it was council’s error in sending the NOD to the wrong address.  Further, it says that the information provided with the NOD continues to refer to the ‘giving notice’ refers to the previous version of Regulation 35 of the PE Regulations.  However, I was told that council was in the process of amending the information so that it conforms with the relevant legislative regime.
19	The respondent says that the Tribunal’s application form is clear with respect to the timeline for the filing of an application for review under section 82 of the PE Act.  Further, the respondent says that the error with respect to the address was the applicant’s error because the Victorian address was referred to in the letter containing the applicant’s objection.
20	I find that the applicant has provided a reasonable explanation for the delay in filing the application for review.  Further, once he become aware that a permit may have issued, he immediately took steps to contact council bearing in mind he could not contact council in the interviewing period because it was a weekend.
21	I do not consider the confusion caused by the incorrect information contained on council’s NOD regarding the timeline for filing an application for review as relevant in this matter.  Thus, this case can be distinguished from 285 Lennox.  
22	The applicant acted as quickly as he could once, he was apprised of the facts, and only relied on the confusion caused by the incorrect information to establish the last day for the filing of an application for review.
23	Regulation 35 of the PE Regulations has provided certainty regarding timelines and it is clear that the last day for the filing of an application for review with respect to the NOD in this case was 1 October 2021.
Other action 
24	As set out above, the applicant took immediate action once he was provided with a copy of the delegate report noting that it was received on a Friday and that the application for review was filed the following Tuesday.
25	The applicant also immediately made the council aware of his interest as he sought a copy of the NOD.
26	I am satisfied that the applicant took the necessary action of informing council as soon as he could bearing in mind that he received the delegate report on a Friday and contacted council on the following Monday.
Prejudice
27	I agree with the respondent that she will suffer detriment if I grant an extension of time.  However, this is true for all respondents in the same situation.  This prejudice is predicated on the basis that, but for the application for review being filed, the respondent would have a planning permit.
28	However, the greater prejudice in this matter is to the applicant, who through no fault of his own, finds himself seeking an extension of time.
Real chance of success
29	I accept the respondent’s submission that the statement of grounds supporting the application for review are broad and vague.  However, they do raise matters that are properly characterised as planning matters, including interface issues.  
30	Given the general nature of some of the grounds, I will require further and better particulars of these grounds to be provided if the application is not resolved at the compulsory conference.

31	
conclusion
32	Having regard to the above, I consider it in the interests of justice to extend the time for the filing of the application for review.

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.

To find out about the Tribunal’s support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

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	P11586/2021	
Applicant	

	Brian Beaden	

Responsible authority	Darebin City Council	

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:________________