Timeframe error prompts court to overturn Victorian Civil and Administrative Tribunal ruling

The case involved an expired planning permit for a proposed childcare centre in Kennington

Timeframe error prompts court to overturn Victorian Civil and Administrative Tribunal ruling

The Supreme Court of Victoria has overturned a decision that summarily dismissed an application to review the expiration of a planning permit for a proposed childcare centre in Kennington, Victoria.

The court ruled that the Victorian Civil and Administrative Tribunal (VCAT)  miscalculated statutory timeframes and failed to properly consider legal provisions regarding the timing of the review application.

Mena Ibrahim, director of Bendigo Corp Pty Ltd, sought to challenge the Greater Bendigo City Council’s decision that the planning permit for a childcare centre at 22–24 Edwards Road had expired. The permit, issued in May 2020, required the development to be completed within two years, with provisions for time extensions under the Planning and Environment Act 1987 (Vic).

Ibrahim claimed that a request for an extension had been submitted to the council in May 2023, but the council argued it had no record of receiving the request and deemed the permit expired. After further correspondence, the council formally communicated on November 8, 2023, that it could not act on the extension request. Ibrahim subsequently applied to VCAT for a review on 8 January 2024, under s. 81(1)(a) of the Planning Act.

VCAT dismissed the application, finding it was filed outside the allowable timeframe and deeming it "misconceived."

The court granted Ibrahim leave to appeal on one of three legal questions raised, focusing on whether VCAT had misdirected itself regarding statutory timeframes.

The court found that the application to VCAT was filed within the 60-day limit for reviews under s. 81(1)(a) of the Planning Act. While VCAT calculated the 60-day period to end on Sunday, January 7, 2024, the Interpretation of Legislation Act 1984 (Vic) extends deadlines falling on weekends to the next business day, which was Monday, January 8, 2024. The application was, therefore, timely.

Additionally, the court clarified that s.81 of the Planning Act allows separate grounds for review of a failure to decide (section 81(1)(b)) or a deemed refusal (section 81(1)(a)). VCAT erred in treating these triggers as mutually exclusive.

The Supreme Court set aside VCAT’s decision and remitted the matter to a differently constituted tribunal for reconsideration. This decision reopens the possibility for Bendigo Corp Pty Ltd to seek an extension of the permit, allowing the childcare centre project to proceed, subject to further deliberations by VCAT.