VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11994/2021
Permit Application no. 0233-15	
CATCHWORDS	
Sections 68, 69 and 81(1) of the Planning and Environment Act 1987 (Vic); Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).	

Applicant	David Carney	

Responsible Authority	Stonnington City Council	
SUBJECT LAND	122 Surrey Road North,
SOUTH YARRA  VIC  3121	
HEARING TYPE	Preliminary Hearing, online platform	
DATE OF HEARING	12 May 2022	
DATE OF ORDER	12 May 2022	
CITATION	Carney v Stonnington CC [2022] VCAT 574   	
Order

1	Pursuant to section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), proceeding P11720/2021 is summarily dismissed.

Picha Djohan
Member	

Appearances
For applicant	Mr S Edwards, solicitor, Planning & Property Partners Pty Ltd.
	
For responsible authority	Mr E Wilkinson, town planner, Stonnington City Council.

Reasons
Nature of Proceeding
1	Pursuant to s.81(1)(a) of the Planning and Environment Act 1987 (Vic) (the Act), the applicant seeks review of the decision of Stonnington City Council (Council) of 30 September 2020 to refuse to extend Planning Permit 0233-15 (the Permit).
2	The application for review was lodged by the applicant on 24 November 2021 and outside the sixty-day period (from the date of Council’s decision to refuse to extend the Permit) for the lodgement of an application for review required under regulation 34 of the Planning and Environment Regulations 2015 (Vic). The applicant seeks an extension of time under s.126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for the lodging of the application for review.
3	In addition, the parties disagree whether the development started within two years of the issue date of the Permit (that is, by 8 February 2018) and whether the Tribunal has jurisdiction to determine the application for review.
4	As a consequence, on 11 March 2022, the Tribunal set this proceeding down for a preliminary hearing – 
•	To consider whether the development started within two years of the issue date of Planning Permit 0233-15.
•	To consider whether the request made by the applicant to the responsible authority on 24 July 2020 to extend the Planning Permit 0233-15 was made within the relevant statutory time period.
•	To consider whether the Tribunal has jurisdiction to grant leave to the applicant for an extension of time pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 for lodging an application under s81(1)(a) of the Planning and Environment Act 1987.
•	To consider whether to grant leave to the applicant for an extension of time for lodging an application under s81(1)(a) of the Planning and Environment Act 1987, being a review of the decision of the responsible authority dated 30 September 2020 to refuse an extension of time to commence Planning Permit 233-15.
•	If leave is granted, to consider the future conduct of the proceeding, including whether the matter is suitable for the short cases list, whether any procedural orders should be made including hearing dates and pre-filing of evidence and submissions in the initiating order.
5	The parties have lodged a ‘Joint Statement of Facts Agreed and Facts Not Agreed’ (Joint Statement) as required by the Tribunal’s order of 11 March 2022. I have also considered the written submissions lodged by the parties supplemented by oral submissions on behalf of them and the additional material provided by the parties during this hearing.
Background
The Permit
6	The following facts are taken from the Joint Statement or from documents otherwise before the Tribunal from which I have made findings of fact.
7	The Permit was issued on 8 February 2016 and allowed – 
Construction of a new dwelling on a lot less than 500 square metres in area in a neighbourhood residential zone and special building overlay in accordance with the endorsed plans and subject to the following conditions.
8	Condition 1 requires that ‘before the commencement of the development’ amended plans (modified to show the requirements specified in condition 2) must be submitted and approved by Council.
9	Condition 17 of the Permit provides – 
This permit will expire if one of the following circumstances applies:
a)	The development is not started within two years of the date of this permit.
b)	The development is not completed within four years of this permit.
10	Under condition 17 of the Permit – 
a.	if the development had not started by 8 February 2018, the permit would have expired on 8 February 2018; and 
b.	if the development had started before 8 February 2018 but was not completed by 8 February 2020, the permit expired on 8 February 2020.
Events after the grant of the Permit
11	A geotechnical report from HardRock Geotechnical Engineers dated 19 August 2016 for the purpose of providing recommendations for the foundations of the proposed new three storey residence has been prepared.
12	Structural engineering plans for the development dated ‘August 2016’ have been prepared.
13	Working drawings by MHA Building Consultants dated September 2016 have been prepared. 
14	On 22 March 2017, Council approved the applicant’s application for a Local Law permit for a vehicle crossing.
15	On 27 March 2017, Amendment VC110 to the Stonnington Planning Scheme (the scheme) introduced amendments applying to the Neighbourhood Residential Zone – Schedule 3 (that applies to the subject land) such that the development approved under the Permit would now be prohibited under the scheme.
16	On 3 April 2017, Council approved an amendment to the proposal plans by secondary consent and endorsed the amended plans under the Permit. These plans are the ‘endorsed plans’ for the development approved under the Permit.
17	On 15 June 2017, the applicant (and his wife) entered into a building contract with JRA Construction Co to construct the approved development.
18	On 15 June 2017, the applicant obtained domestic building insurance with QBE for ‘new single dwelling construction contract’.
19	In furtherance of conditions set out in the South East Water Information Statement under s.75 of the Water Industry Act 1994 and s.158 of the Water Act 1989 issued in relation to the subject land, the applicant applied for and obtained (on 13 August 2017) consent from South East Water for works involving a new drain and sewerage connection.
20	In September 2017, the new drain and sewerage connection were completed and connected to the existing dwelling on the land, and a plumbing certificate was obtained. Alterations were also undertaken to the existing dwelling to accommodate these works.
The first request for extension of the Permit
21	On 8 March 2019, the applicant made a request to Council to extend the Permit stating “Due to lack of funds for construction I require an extension to my permit”. The parties agree that this communication amounts to the ‘first request for an extension of time’. The parties disagree as to whether the first request was one for an extension of time to start the development, or a request for an extension of time to complete the development. 
22	Mr Edwards submitted on instructions, that the first request was one made to extend time to complete the development. Mr Wilkinson submitted that Council proceeded on the basis that the first request was one for an extension of time to start the development. On the material before the Tribunal, I am unable to make a finding of fact as to whether the first request was one for the extension of time to start or to complete the development. Ultimately, however, I do not need to make such a finding because it is not necessary to do so to determine the issues before me in this hearing.
23	On 19 March 2019, a council officer requested, by email, that the applicant confirm if any of the works approved under the Permit commenced prior to 8 February 2018 and if so to provide images of those works. The officer also included the following statement in that email – 
I have further reviewed your application and note that the permit expired on 8 Feb 18 if works had not started and 8 Feb 2020 if the development is not complete.
24	On 26 March 2019, the following email exchange occurred between the applicant and the same council officer – 
•	The applicant informed the council officer that – 
The revised permit is valid until 3/4/19. This is the one that I want to extend.
•	The council officer responded to the applicant as follows – 
Planning permit 233/15 was issued on 8 Feb 2016. As per condition 17 the permit will expire if one of the following circumstances applies:
a)	The development is not started within two years of the date of this permit.
b)	The development is not completed within four years of the date of this permit.
The Secondary Consent Amendment approved on 3 April 2017 allowed for changes to the approved plans. The Secondary Consent does not alter the date of the permit (8 Feb 16). Therefore, if no works commenced on site prior to 8/02/18 the permit will have expired.
•	The applicant informed the council officer – 
I rang council last year concerned about this matter and was advised that my permit was valid for 2 years from the date of secondary consent. I swear that this information was provided by planning at Stonnington. My had (sic) was diagnosed with cancer last year and for the past 12 months we’ve been focused on fighting the disease and given the above information by council I did not act on this matter till now. 
How can I rectify this situation.
•	The council officer responded to the applicant, in part, as follows – 
As outlined in my previous email the expiry date of the permit relates to the issue date of the permit and not the date the secondary consent application was approved.
A planning permit is a legal document, once it has expired there are no means to allow Council to extend the permit outside of the 6 month period as per the permit notes.
You will need to submit a new planning permit application for the site. Please let me know if you would like me to send through a copy of the approved plans and application form.
25	The material before the Tribunal does not contain any communication in response from the applicant to Council advising what work had been undertaken by the applicant as at March 2019.
26	By email on 3 April 2019, Council’s Manager Statutory Planning communicated with the applicant as follows – 
Thank you for speaking to me this afternoon.
As discussed, the expiry of a planning permit is governed by the Planning and Environment Act 1987 and Council does not have discretion to extend a permit that has expired.
The only option is to apply for a new planning permit.
Please find attached an application form, plans you submitted originally and planning report.
You will need to submit all this information again plus a current Certificate of Title.
Given the circumstances, we will waive ALL FEES associated with your planning application. This includes the lodgement fee and advertising fees.
Please let me know once you have lodged the application, I will make sure it is allocated to Senior Planner and I will also explain the background information.
Please let me know if you need anything else.
Looking forward to hearing from you once the application is lodged.
27	The parties agree that taken together, Council’s emails of 26 March 2019 and 3 April 2019 constitute refusal of the extension of time to commence the development under the Permit (the first refusal to extend).
The second request for an extension
28	By email on 24 July 2020, the applicant informed Council – 
We are currently disputing the expiry of our planning permit for 122 Surrey Road North, South Yarra.
However, the matter of the 4 year time period provided to complete construction from the time the permit was issued (given construction has begun) has arrived, and we would like to extend the permit for an additional 2 years.
29	The parties agree that the applicant’s email of 24 July 2020 constitutes the ‘second request for an extension of time’.
30	The material before the Tribunal does not disclose the method by which the applicant was ‘disputing the expiry’ of the Permit. Mr Edwards confirmed at the hearing that the applicant did not file an application for review disputing Council’s refusal of the first request for an extension.
31	On 1 September 2020, the applicant provided to Council a memorandum of advice dated 31 August 2020 from Ms J Lardner of Counsel.
32	By letter dated 30 September 2020, Council’s Manager Statutory Planning informed the applicant that – 
I refer to your request for an extension of time for the above Planning Permit and advise that Council has decided to refuse your request.
Council has reviewed the documents provided, including the advice of Ms Larder (sic). Based on Council’s review, it respectfully does not agree that events, namely geotechnical works and sewerage/drainage works, constitute the commencement of development.
The reasons for the above position is based on the following:
•	The geotechnical works are considered to be preparatory in nature.
•	The sewerage works do not appear to have a nexus to the permission granted.
Notably, there are no permit conditions in relation to sewerage.
Accordingly, on the basis of the information provided Council is of the opinion that the permit expired on 8 February 2018.
33	The parties agree that Council’s letter of 30 September 2020 did not contain the following words – 
If you do not agree with this decision, a Section 149 declaration hearing is an option through the Victorian Civil and Administrative Tribunal.
34	In the Joint Statement, the parties agree that Council’s letter of 30 September 2020 constituted the ‘second refusal for an extension’. In his written submissions however, the applicant contended that after further review, Council’s letter of 30 September 2020 did not offer an option of appealing Council’s decision to refuse the second request for an extension and in the eyes of the applicant, that letter is not a ‘final decision’. For the reasons that follow, whether or not the letter of Council of 30 September 2020 is a ‘final’ determination of the second request for an extension is immaterial to my determination of Council’s application under s.75(1) of the VCAT Act.
35	Between the period 17 December 2020 and March 2021, email communications occurred between Ms Lardner of Counsel on behalf of the applicant and a council officer. The thrust of those communications was that Ms Lardner was following up the council officer as to whether Council required anything further than documentation which evidences the consent/approval of South East Water to the drainage works which the applicant has undertaken in order to establish that works were commenced under the Permit within the relevant time. The material before the Tribunal does not include any material that evidences a reply from Council to Mr Lardner’s enquiry.
36	On 12 October 2021, the applicant provided additional documents to Council in relation to plumbing requirements of South East Water for new development and again requested that the Permit be extended.
37	On 26 October 2021, Council responded to the applicant’s email of 12 October 2021 and reiterated the contents of its letter of 30 September 2020 and added the following – 
To provide absolute clarity, there are no conditions on the planning permit from South East Water, South East Water were not a referral authority and they did not participate in the planning process. Therefore, any conditions required by South East Water sit outside the remit of the planning permit, and are not grounds to demonstrate commencement of works. The clearing of the site and preparatory works do not form part of the planning approval.
If you do not agree with this decision, a Section 149 declaration hearing is an option through the Victorian Civil and Administrative Tribunal.
38	On 23 December 2021, the applicant lodged the application for review under s.81(1)(a) of the Act.
39	The applicant has not, at any time, lodged with the Tribunal – 
a.	an application for review of the first refusal to extend; or 
b.	an application under s.149 of the Act; or 
c.	an application under s.149A of the Act.
Relevant Statutory provisions – expiry of permits
40	The Permit allows the development of the subject land for the construction of a single dwelling on a lot less than 500m2. 
41	As the Permit is one for the development of land, s.68(1) of the Act applies to the expiry of the permit. It provides – 
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 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 1998.
42	Section 69 of the Act plays a central role in the dispute between the parties and is extracted in full below – 
(1)	Before the permit expires or within 6 months afterwards, the owner or the occupier of the land to which it applies, or another person with the written consent of the owner, 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, or another person with the written consent of the owner, 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)	A request under subsection (1) or (1A) by a person who is not the owner or occupier of the land must be accompanied by a copy of the written consent of the owner.
(3)	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 the plan under the Subdivision Act 1988 is to be certified.
(4)	If the time is extended after the permit has expired the extension operates from the day the permit expired.
43	A request for an extension of time under s.69(1) or (1A) is distinguishable from an application for a permit made under s.47 of the Act and an application for amendment of a permit made under s.72 of the Act. Accordingly, neither Division 1 or 1A of Part 4 applies to the processing or assessment of a request under s.69 of the Act. 
44	In contrast to the statutory requirements for notice of a decision to grant a permit or an amendment of a permit, or to refuse a permit or an amendment of a permit, there are no statutory requirements imposed on a responsible authority regarding the form of notice that a responsible authority is required to adopt when communicating its decision on a request under s.69 of the Act. 
45	Section 81 of the Act provides – 
Applications for review relating to extensions of time
(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.
(2)	An applicant for a permit may apply to the Tribunal for a review of a decision of a responsible authority under section 54A to refuse to extend the time within which information must be given by the applicant under section 54.
(3)	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).
The position of the parties on expiry of the permit
Applicant
46	The applicant relies on a memorandum of advice from Ms Lardner of Counsel dated 31 August 2020 (the applicant’s advice) that considered whether the various actions undertaken by the applicant since the grant of the Permit amount to a start of development for the purposes of condition 17 and s.68(1) of the Act. As the oral submissions of Mr Edwards (on behalf of the applicant) adopted and did not depart in substance from the approach, analysis or conclusions contained in the applicant’s advice, I will continue to refer to the contents of the applicant’s advice.
47	In short, the applicant’s advice categorises the various actions undertaken since the grant of the Permit as either ‘preparatory steps’ or ‘development’. This classification is undertaken by applying the meaning of ‘development’ and ‘works’ as those terms are defined under the Act to the various actions undertaken by the applicant. 
48	Using this approach, the applicant’s advice concludes that “development started on 10 August 2016 when the geotechnical works took place”  and that “the plumbing works undertaken at the property constitute development which occurred within two years of the date of the planning permit.”
49	The applicant’s advice refers to the report from HardRock Geotechnical Pty Ltd concerning a site investigation conducted on 10 August 2016 and the two bore holes that were drilled to assist in forming recommendations as to the type of foundations to be used in the construction of the proposed new dwelling. The applicant’s advice states – 
55.	Having regard to the definition of “works”, it is my view that the drilling of the bore holes constitute development in connection with the approved three storey residence. The works clearly involved a change to the natural or existing conditions or topography of the land at a depth which cannot be considered trifling or minimal.
50	In his oral submissions, Mr Edwards stated that the drilling of the bole holes for the purposes of the geotechnical investigations of the land were a ‘crucial’ and ‘essential’ element without which the new dwelling could not progress.
51	In respect to the plumbing work that is relied upon by the applicant, the applicant’s advice relies upon the previous decisions of the Tribunal in Nubuild Construction Pty Ltd v Monee Valley CC (Correction) [2012] VCAT 1510 (Nubuild) and 535 Hogan’s Road Pty Ltd v Wyndham CC (535 Hogan’s Road) as support for the proposition that the installation of inground drainage and sewerage pipes are works sufficient to constitute a start under a permit. I will consider these decisions below.
Council
52	In short, Council’s position is that both the geotechnical works and the plumbing works are preparatory steps and do not amount to a start of the development under the Permit. 
53	Council submitted that in order for works to constitute a start of the development, such works need to be an essential component of the approved development and they cannot be preparatory works that fall outside the ambit of works approved under the relevant planning permit. In support of its submission, Council relied upon the Tribunal’s decision in Kastaniotis v Boorondara CC [2007] VCAT 1259 (Kastaniotis).
Expiry under the Permit
54	Condition 17 of the Permit specifies both the time within which ‘the development’ allowed under the Permit must start under s.68(1)(a), and the time within which development must be completed as contemplated under s.68(1)(b). 
55	The word ‘start’ is not defined in the Act. 
56	In NBH Business Park Pty Ltd v Whittlesea CC & Ors (No 3) [2012] VCAT 968 (NBH Business Park), the Tribunal observed – 
70.	The word “start” is not defined in the PE Act itself. It has its ordinary English meaning, or at any rate, its ordinary English meaning in the context in which it is used. We are talking here about the start of development.
71.	It is a question of fact as to whether a start has been made in this present case, and whether it was made within time, and that is to say, by 8 July 2011. There are legal consequences that flow from the answer to that question of fact. If there is no start the permit has expired, and if there was a start, it has not expired. Nevertheless, those consequences flow from the question of fact as to whether there has been a start.
57	The word ‘start’ is also not defined in the Interpretation of Legislation Act 1984 (Vic). I agree with the Tribunal’s statement in NBH Business Park that for the purposes of s.68(1)(b), the word ‘start’ is to be given its ordinary English meaning in the context in which it is used. 
58	The Macquarie Dictionary contains numerous meanings for the word ‘start’ but in the context it is used in s.68(1) the meaning of ‘to begin’ is the most apt. For present purposes there is no distinction between the meaning of the word ‘start’ in s.68(1) and the word ‘started’ as it appears in condition 17(a). 
59	It is a question of fact whether a start has been made in a given case, and that determination of fact is to be arrived at by objectively considering relevant facts before the Tribunal.
Start of development
What is required to ‘start’?
60	Consideration of the context in which a ‘start’ is required to be made would be incomplete without consideration of what it is that is required to start. Under s.68(1)(a) and condition 17(a), it is the development allowed under the relevant permit that must ‘start’ or have been ‘started’.
61	Section 68(1) of the Act applies to “A permit for the development of land”, and therefore as a matter of construction ‘the development’ referred to in subsections (1)(a), (1)(aa) and (1)(b) must necessarily be ‘the development’ approved under the permit in question and not any ‘development’ or ‘works’ as defined in s.3 of the Act. 
62	Similarly, “The development” to which condition 17 applies, properly construed, is a reference to the development approved under the Permit.  
63	Condition 1 of the Permit requires that prior to the commencement of the development approved by the Permit, modified plans must be submitted and approved by Council.
64	On the facts of this matter, the relevant modified plans under condition 2 and subject to changes approved under secondary consent were endorsed by Council on 3 April 2017. As observed by the Tribunal in NBH Business Park, of conditions that have the effect of condition 1 on the Permit – 
18.	Condition 2 requires approval of its plan before the development starts. That is sensible. Indeed it is important. It is the approval and endorsement of plans under condition 2 that defines the development being allowed by the permit. Prior to that definition it might be difficult to determine whether the particular works were part of the approved development so that carrying them out would constitute a start on such development.
65	On the facts of this matter, the development allowed by the Permit was finally defined by the endorsed plans of 3 April 2017. It is those plans that are relevant for determination of whether any of the ‘works’ relied upon by the applicant constitute a start for the purposes of condition 17 and s.68(1) of the Act, because it is the endorsed plans that must be examined to determine whether those ‘works’ are part of the approved development and fall within the ambit of the Permit. 
66	This approach is consistent with the Tribunal’s approach in Kastaniotis. In that decision, the Tribunal considered whether certain activities amounted to a start of the development under the relevant permit. In finding that only the construction of a concrete pad constituted a start of the development, the Tribunal stated – 
4	In 2004 the applicant constructed a reinforced concrete pad on the land. It cost approximately $3,500.00. The applicant has undertaken other preparatory work such as negotiations with Citipower regarding the relocation of overhead powerlines in front of the subject land to underground; removal of a petrol tank and site remediation; and levelling of land. I do not consider that any of these actions are relevant in terms of constituting the commencement of development under the permit, as they are actions that fall outside of the ambit of the permit. The only issue is whether the construction of the single reinforced concrete pad constitutes commencement of construction.
…
7 I find that the construction of the pad is development for which a permit was required. On the basis of the affidavits filed on behalf of the applicant and the council’s examination of them and the working drawings, I am satisfied that the pad is part of the development which permit PP03/00075 authorises. I therefore find that development under the permit commenced before 14 May 2005 and the permit had not expired at the time when the request for extension was made.
(footnotes omitted)
67	Following on from Kastaniotis, the Tribunal in NBH Business Park (after considering the definitions for ‘building’ and ‘works’ in the Act) also emphasised that it is the development the subject of the permit under consideration that is required to have started in the relevant period. The relevant paragraphs in NBH Business Park are set out below to provide the appropriate context in which that observation was made – 
57.	The words of permission in the permit are quoted in paragraph 1 above. It refers to use and development of 26 industrial buildings (warehouse) with associated signage. In the absence of need for planning permission to the use the land for warehouse it is only the development permission that is relevant. (Even if a use permission is involved, it would not alter the basis of my reasoning).
58.	It is obvious that 26 industrial buildings include buildings. In fact, as I understand it, the plans do not disclose and were never intended to disclose 26 separate buildings, but rather 26 warehouse tenancies within a smaller number of buildings. However that petty distinction is beside the point.
59.	The buildings did not exist at the time of the permit was granted. The permit allows their construction. However, certain works are implicit in the construction of the building. At the most fundamental level, a building is constructed upon footings and the footings rest upon the foundations, that is to say, the earth (be it rock, soil or whatever) under the footings. It might be said that the foundations, the footing and the excavation to put the footing onto the foundation, are a most fundamental part of a building. It is liable to be dangerous or to fall down if they are inadequate.
60.	The excavation of earth down to the foundations for the purpose of laying the footings is undoubtedly works, whether or not it could also be regarded as part of the construction process.
61.	This project assuredly involves development by both the construction of buildings and construction or carrying out of works.
62.	It is the development that is allowed by the permit. The time limit on starting is a time limit that relates to the start of the development. As the development both includes the construction of buildings and the construction and carrying out of works, the start of the development is the first step in relation to the buildings or works that are part of the development.
68	Therefore, describing works or development simply as having a sufficient ‘nexus’ with development approved under a permit, as has been the tendency in previous Tribunal decisions, tends to misdirect the proper enquiry to be made when considering whether the development approved under a permit has started. What is required is consideration of the relevant permit and the endorsed plans to ascertain – 
a.	What permissions have been granted which will identify in planning terms the nature of the approved development; and
b.	Consideration of the endorsed plans to ascertain the physical extent of the development and works that form part of the overall development approved under the permit.
Did the drilling of the bore holes consitute a ‘start’?
69	The drilling of the bore holes for the purpose of informing the geotechnical report that contained the recommendations as to the foundations required for the new dwelling did not constitute a start of the development allowed under the Permit. 
70	Putting aside the fact that the final form of development approved under the Permit was not finalised until the endorsement of plans on 3 April 2017 and accepting that such activity amounts to ‘the carrying out of works’ (and therefore ‘development’ as defined under the Act), it is not development that falls within the ambit of the Permit. 
71	It is a long stretch to say that the drilling of bore holes for the purpose of conducting a geotechnical investigation is, in the words of NBH Business Park, ‘implicit in the construction of the building’. I accept that such activity is a required preparatory step to determine the very important engineering design elements for the construction of the foundations of the approved dwelling, but even when such activity amounts to ‘development’ under the Act, it does not fall within the ambit of the Permit. The drilling of bore holes for the purposes of geotechnical investigation that bear no relationship with the location of intended footings or foundations, as on the facts here, is nothing more than a preparatory step to the start of development under a permit.
72	Further, the purpose of the bore holes was to investigate the soil profile of the subject land so that a recommendation could be made as to the design of foundations and footings for the new dwelling. It is not enough, as proffered in the applicant’s advice that the drilling of bore holes constitute “development in connection with the approved three storey residence”.  A simple nexus with the development allowed under the Permit is not enough. It must be a start of the development approved under the Permit and the drilling of bore holes does not constitute part of the development approved under the Permit but rather a preparatory step to the start of the approved development.
Did the plumbing work constitute a ‘start’?
73	A more detailed description of the plumbing works relied on by the applicant as constituting a start under the Permit is set out in the applicant’s advice as follows – 
35.	In or around August and September 2017, plumbing works were undertaken at the property. I am instructed that those works consisted of the following:
	(a)		a trench was dug all the way along the side of the block; 
(b)		new sewage pipe was installed and connected to the main sewage point on the street;
(c)	new sewage vent was installed at the front of the property as per the photo provided;
(d)	old sewage was terminated and all bathrooms within the existing house were reconnected to the new sewage lines;
(e)	a gas hot water system had to be disconnected and moved to allow access to the side of the house. This was later reconnected; and
(f)	hot and cold water was temporarily disconnected to allow access. The connection was restored at the end of the works.
74	I note that in Nubuild, the Tribunal found the inground drainage and sewerage pipes for each of the proposed dwellings under consideration there were shown on the engineering plans endorsed under the relevant permit. As a result, the endorsed engineering plans formed part of the Permit and the works shown on the engineering plans formed part of the works approved under the Permit. Accordingly, the facts in Nubuild are distinguishable from the facts under consideration here where the permission under the Permit together with the endorsed plans do not include the installation of a new sewer.
75	It is not clear to me from a reading of 535 Hogan whether the sewer works there considered by the Tribunal were shown on the endorsed plans or whether those works were accepted as forming part of the development approved under the permit by the parties. What is clear is that the Tribunal considered those works to be development, but nothing further can be ascertained from the reasons in that decision regarding whether that development formed part of the development approved under the Permit.
76	Accepting the activities involved in the installation of the new sewer amount to the ‘carrying out of work’ and therefore ‘development’ as defined under the Act, the necessary consideration is whether that development forms part of the development approved under the Permit.
77	None of the plumbing works described above is shown on the endorsed plans under the Permit or required to be installed as a condition of the Permit. 
78	Relevant to consideration of whether the plumbing work constituted a start of development under the Permit, is the fact that the existing dwelling on the subject land has not been demolished and continues to be occupied.
79	Objectively considered, the plumbing work cannot be said to have been installed only for the proposed new dwelling because as a matter of fact it currently serves and benefits the existing dwelling. 
80	It may be that something further than that approved under a planning permit may be needed to be done to satisfy a utility provider, and that something further may amount to ‘works’ or ‘development’ on the relevant land, but that alone does not lead to the conclusion, objectively derived at, that the development approved under a permit has started. 
81	On the facts of this matter, the plumbing work does not amount to a start of the development under the Permit for the above reasons.
Conclusion on ‘start’ of development
82	For the reasons given above – 
a.	Development did not start within two years of the issue date of the Permit.
b.	The second request for an extension made by the applicant on 24 July 2020 was not made within the time required under condition 17(a) of the Permit and therefore was not made within the statutory period required under s.69(1) of the Act.
disposal of proceeding
83	In light of my finding that development under the Permit did not start by 8 February 2018, s.69(1) of the Act requires that any request for an extension to time (in this case to start development) must be made within 6 months of the expiry of the Permit, being by 8 August 2018. 
84	Section 126 of the VCAT Act generally empowers the Tribunal to extend any time limit fixed by, or under an enabling enactment, for the commencement of a proceeding.
85	Clause 62 of Schedule 1 of the VCAT Act specifically empowers the Tribunal to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so. 
86	Both s.126 and clause 62 of the VCAT Act, on first blush, appear to confer on the Tribunal a very broad power to extend time to allow for an application to be made to the Tribunal for a review of a decision.
87	Section 81(3) of the Act, however, makes it very clear that despite clause 62 of the VCAT Act, an application cannot be made to the Tribunal for review of a decision referred to in s.81(1)(a) unless the request to the responsible authority for the extension of time was made within the time specified under s.69(1) of the Act. 
88	Further, the power conferred under s.126 of the VCAT Act extends only to the commencement of proceedings before the Tribunal and not, extension of fixed times to do certain things under an enabling enactment that are required to precede the commencement of proceedings.
89	On the facts, the applicant did not make a request to Council for an extension of time to start the development under the Permit before the time specified under s.69(1) of the Act, being 8 August 2018. As a result, neither the power under clause 62 of Schedule 1 or s.126 of the VCAT Act are available to the Tribunal to extend time to commence this proceeding within the time specified under regulation 34 of the Planning and Environment Regulations 2015 (Vic).
90	As a consequence of the failure of the applicant to request an extension of time to start the development under the Permit before 8 August 2018, the applicant has no standing to bring an application for review before the Tribunal under s.81(1)(a) of the Act.
91	Pursuant to s.75(1)(a) of the VCAT Act, this proceeding is summarily dismissed because it is misconceived as the applicant does not have standing to bring a proceeding under s.81(1)(a) of the Act.

Picha Djohan
Member