Supreme Court of Victoria overturns planning permit puzzle for proposed ECEC service 

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 long day care (LDC) service 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.

At the centre of the case was a planning permit issued in May 2020 for the LDC service, proposed for 22–24 Edwards Road, Kennington, which required the development to be completed within two years, with provisions for time extensions under the Planning and Environment Act 1987 (Vic).

The Director of the company intending to develop the land sought to challenge the Greater Bendigo City Council’s decision to cancel the permit was invalid, claiming 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. The director 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 Supreme Court granted the Director 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 the developer to seek an extension of the permit, allowing the LDC project to proceed, subject to further deliberations by VCAT.

Read the full case notes here. Some material in this piece is drawn from a piece in Australasian Lawyer.