VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P44/2023
Permit Application no. PLN/2015/204	
CATCHWORDS	
Macedon Ranges Planning Scheme; request to extend the ‘completion’ date of an existing planning permit pursuant to the ‘permit expiry’ condition, permit already extended once; Council has refused fresh request to extend permit; Tribunal review of such refusal; Tribunal hearing; approval given to extend the permit by 30 months. 	

Applicant	Itsokrov Pty Ltd	

Responsible Authority	Macedon Ranges Shire Council	
SUBJECT LAND	2-4 Davy Street
WOODEND  VIC  3442	
HEARING TYPE	Hearing	
DATE OF HEARING	17 April 2023	
DATE OF ORDER	19 April 2023	
CITATION	Itsokrov Pty Ltd v Macedon Ranges SC [2023] VCAT 421	

Order
1	Pursuant to Clause 64 of the Schedule to the Victorian Civil and Administrative Tribunal Act 1998, in relation to both the planning permit application PLN/2015/204 and the Application for Review to the Tribunal, the ‘applicant’ is deemed to be ‘Itsokrov Pty Ltd’. 
2	Pursuant to Sections 81(1)(b) and 85 of the Planning and Environment Act 1987 and in relation to the planning permit No. PLN/2015/204 first issued on 11 January 2017 (Permit), the date by which the approved development must be completed as per Condition 70(b) of the Permit is extended to 11 July 2025.

Philip Martin
Senior Member	

Appearances
For applicant	Mr Stephen Bitmead (planner) of Fastnet Consulting
	
For responsible authority	Mr Jack Chiodo (planner) of Jackson Lane Legal

reasons
[summary of oral decision]

1	This proceeding involves the large 6,778 sqm vacant site at 2-4 Davey Street in Woodend.  It is split-zoned Neighbourhood Character Zone Schedules 2 and 3 and also affected by an Environmental Significance Overlay and a Land Subject to Inundation Overlay.
2	On 11 January 2017 a planning permit No. PLN/2015/204 (Permit) was granted with respect to the site for the following development:
Construction of fourteen (14) double storey dwellings, construction of associated buildings and works (earthworks, roadworks and fencing), and removal of vegetation including two (2) non-native trees within the Davy Street road reserve, construction of works within the Black Gum Reserve (outlet drains and reserve).
3	Condition 70 of the Permit in the usual way provided that the approved development must be started in two years and completed within four years.  It is undisputed that for the purposes of Condition 70, the approved development ‘started’ on 27 November 2018 by virtue of certain tree removal works on the site.
4	Whilst Council did not support any extension of the Permit, the relevant VCAT proceeding Rite Track Pty Ltd v Macedon Ranges SC [2021] VCAT 580 directed that the ‘completion’ deadline pursuant to Condition 70(b) be extended until 11 January 2023.
5	A title search provided to the Tribunal shows that as at the date the search was done (26 October 2022), the owner of the subject land is now Itsokrov Pty Ltd.  I have been told that such ownership has not changed since then.
6	Later in 2022, the owner of the subject land applied for another two year extension of the ‘completion deadline’ pursuant to Condition 70(b) of the Permit, which Council again refused, and which has again come to the Tribunal on review.  The one day hearing of this dispute came before me on 17 April 2022, at which time I heard submissions from the two advocates shown above.  I indicated that I was already somewhat familiar with Woodend as a town.  The two particular grounds that Council relied upon in seeking a ‘no extension’ order was ‘the passage of time’ and Council’s view that the permit holder is seeking to ‘warehouse’ the Permit.
7	By consent, I confirmed that ‘Itsokrov Pty Ltd’ (being the current owner shown on title) shall be deemed to have been both the initial permit applicant and then the Applicant for Review to VCAT.   
8	At the end of the ordinary hearing process, after standing down the hearing briefly, I returned and gave an oral decision which can be summarised as follows.
9	The first part of the oral decision set out the context of this dispute i.e. the approval granted by the Permit, this being the second application for an extension, the nature of the local area and site, the relevant planning controls, the hearing before me that day, etc.  I confirmed that Sections 69 and 81 of the Planning and Environment Act 1987 enable a planning permit holder to seek its extension and then seek the Tribunal’s review of any refusal of same. 
10	I acknowledged that the key cases of my purposes here are the well known Kantor v Murrindindi Shire Council (1997) 18 AATR 285 and (particularly where the proposal is to extend the deadline for the completion of the approved development) Juric v Banyule CC [2002] VCAT 396.   
11	I gave two preliminary rulings, in terms of what I regarded for our purposes the word ‘warehouse’ to mean (essentially a lack of bona fides or real effort to progress the permit in question), plus confirming that under Kantor and Juric I have a broad discretion to consider and potentially give weight to the personal circumstances of the permit holder and day-to-day events in question like the weather.  
12	I then confirmed that a number of relevant factors under Kantor and Juric in totality created a substantial case that the Permit completion date should be extended, including the Council officer support for same, this being merely the second ‘extension’ request, the absence of any significant change to the physical setting or relevant planning scheme provisions since the Permit was granted, the fact that Council does not contest that the same Permit would be granted today, the bar being set somewhat lower for a ‘completion’ extension compared to a ‘commencement’ one as per Juric, and the real argument that the various Covid-related complications in the building industry made the two years extension granted until 11 January 2023 inadequate.
13	Finally, I considered whether this ‘substantial case to extend the completion deadline’ had any fatal flaw in terms of the ‘passage of time’ and/or the permit holder ‘warehousing’ the Permit, as was argued by Council.  I gave reasons why I found both lines of submission unconvincing, with some notable points being:
•	The considerable list of ‘site preparation works’ which Council either concedes or at least ‘does not actively oppose’ have been done by the permit holder, as shown at page 8 of Mr Bitmead’s written submission.
•	The following factors inevitably causing major on-going delays and being outside of the permit holder’s control – the Covid lockdowns since 2020, the on-going pressures and difficulties in the building industry in Victoria, the potential difficulty of finding a builder in rural Victoria that can take on a project as large as 14 double storey dwellings, the fact that three of the original owners died over the period 2020-August 2022 and the unusually wet weather over the last two years or so.  
14	In closing, I confirmed that I would be making orders extending the Permit ‘completion deadline’ in Condition 70(b) for another two and a half years until 11 July 2025.  This takes into account that the Permit expired on 11 January 2023 but there has been a delay of 3-4 months to then get the hearing on at VCAT before me and for me to issue this order. 

Philip Martin
Senior Member