Can You Extend an Expired Planning Permit in Victoria?
By Peter Micevski, construction and planning solicitor, Lovegrove Smith & Cotton
Recently in Victoria, the owners of a well-known hotel in the Melbourne CBD suffered a major setback in their plans to carry out a $300 million redevelopment of their famous site, as the Victorian Civil and Administrative Tribunal (“VCAT”) rejected their application to extend a planning permit, which included the development of a 26-storey tower.
Consequently, the decision has drawn the weary eye of many Melbournian property developers about whether their planning permit extension applications are worthy of the paper they are written on.
Section 69(2) of the Planning and Environment Act 1987 (“the Act”) states:
“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 a plan under the Subdivision Act 1988 is to be certified.”
Put simply, section 69 of the Act empowers the responsible authority, generally your local Council, to extend the time for completion of a planning permit. Unfortunately, section 69 of the Act goes no further in providing us with the general guidelines or “tests” that are applied by the responsible authority to guide an assessment of an extension application. In addition, there are no specific controls in the Planning Scheme relating to the assessment of an extension of time to a permit.
Fortunately, the case of Best & Zygier v City of Malvern (1974) 1 VPA 284, the Planning Appeals Tribunal (the predecessor to VCAT) provided us with the general guidelines or “tests” that section 69 of the Act lacks. In that case, the Tribunal found that the considerations necessary to determine whether to extend the time for completion of a planning permit were:
- The time originally limited was in all the circumstances reasonable and adequate taking into account the steps which would be necessary before the development could actually commence;
- Any intervening circumstances have rendered it unreasonable that the appellant should be held to the time originally fixed;
- Whether since the issue of the original planning permit there have been any changes in town planning policy which would militate against the grant of a permit for the proposed development at the time when the appeal is heard.
An expansion of the above test was provided by His Honour Mr. Justice Ashley in considering a number of Tribunal decisions in Kantor v. Murrindindi Shire Council 18 AATR 285. In that case, his Honour stated that a Responsible Authority “may rightly consider” the following:
- Whether there had been change in planning policy;
- Whether the landowner is seeking to “warehouse” the permit;
- Intervening circumstances as bearing upon grant or refusal;
- The total lapse of time;
- Whether the time limit originally imposed was adequate;
- The economic burden imposed on the landowner by the permit; and
- The probability of a permit issuing should a fresh application be made.
This decision is often cited as the authority which lists factors that should be considered when determining whether the life of a Permit should be extended. Additional considerations such as any financial or physical commitment to completing the permit and the potential effect of not completing the development (particularly if a building is only partially completed) must also be considered.
As with all decisions made with respect to planning, it is important that each proposal is assessed on the merits of the individual circumstances. That statement rings true with most of the above decisions as they do not necessarily provide clear direction on the “weighting” that should be applied to the various criteria.
However, what we have seen from the above cases is that the factors in favour of exercising the discretion are generally as follows:
- there has not been a change in Planning Policy or Legislation;
- it does not appear that the permit holder is warehousing the permit;
- there are intervening circumstances of relevance;
- the original time limit for the development was inadequate;
- the economic burden on the Applicant; and
- the probability that if a fresh application for a permit was made, that it would be granted.
More often than not, the cases concerning section 69 of the Act relate to requests for extension of time where the development has not commenced by the specified date. However, it should be noted that the guidelines contained in the abovementioned decisions are still generally applicable to an application for extension for the completion of a development.
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© Lovegrove Smith & Cotton 2014
In spite of the recent amendments to the Planning Scheme in 2014, specifically the changes to the ResCode, if you are a developer with expiring planning permits, it would be within your best interests to seek legal advice from a suitably qualified planning lawyer immediately.