Emails Comms in Planning Matters

We all use email as a common business communication tool. In a legal-sense and at VCAT, email is considered a valid means of giving notice and communication. However, the new world is not without its problems – sometimes emails don’t arrive or are said to have not arrived or, indeed, were never actually sent. The follow two VCAT matters provide some interesting warnings.

In Bruno v Bayside CC [2018] VCAT 1753 (7 November 2018) an objector lodged an application under Section 82 of the Act seeking to review Council’s Notice of Decision (NOD) to issue a permit. Council emailed the NOD on 18 May 2018. At that time the period for lodging an appeal against a Notice of Decision to Grant a Permit was 21 days from the date that Notice was given. (It is now 28 days.)

Where the Act allows notice to be given by email, the notice is taken to be received at the time it is able to be retrieved at the receiver’s email address. That meant the appellant needed to lodge an application for review to the Tribunal by 8 June 2018. As no appeal was lodged at that time, Council issued the planning permit on 15 June 2018.

The Tribunal records showed an application for appeal was received on 28 June 2018. The Tribunal scheduled a Practice Day hearing to consider the late application. The appellants were overseas at the time, were not able to attend the hearing and subsequently the Tribunal refused to extend the 21 day time period and struck out the proceeding.

On 14 September 2018 the appellants filed an application under Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) seeking to reopen the matter. 

Section 120 applications must be made within 14 days of becoming aware of an order, however in this case the appellants lodged the Section 120 proceeding 38 days after their agent become aware of the order. The Tribunal stated that it was not prepared to extend the time frame to lodge an application to reopen the matter. The Tribunal found that even if it did consider the Section 120 application, the application for review against Council’s NOD had been made late and had already been struck out.

On this issue, the appellants stated that they lodged their Section 82 (NOD) appeal by email on 6 June 2018. If that was the case, then it would have been prior to the 21day period lapsing.

But, the Tribunal found that, “on the balance of probabilities”, the appellants did not lodge their Section 82 Application by email on 6 June 2018 because:

  • Multiple checks of the Tribunal email system were made and no email was found by the Tribunal dated 6 June 2018 containing the application for review.
  • The applicants also confirmed that they had not received an acknowledgement email from the Tribunal.
  • The appellants emailed the Tribunal on 28 June 2018 with an attached document in PDF format, containing text purporting to be a copy of the email dated 6 June 2018. However, only the text of the email was contained in the PDF and it did not contain a copy of the attachment (appeal documents) also allegedly sent.

The Tribunal stood the matter down to allow the appellants time to provide material to persuade the Tribunal that the application had been lodged by email on 6 June 2018, including an opportunity to go back to their office and “Resend” the 6 June email. The appellants failed to do so and the matter was struck out.

In Halliday v Manningham CC [2018] VCAT 1780 an objector’s appeal against Council’s issue of an NOD was struck out because it was lodged late. The Appellant then filed an application to have the permit cancelled or amended under Section 87 of the Act, on the basis that there had been a material mistake, that included (among others):

  • Council sent the NOD to an inappropriate email address and it was not received.

In considering the application at a Practice Day hearing the Tribunal decided to have the matter struck out, finding that:

  • Council was able to give notice of its decision by email pursuant to Reg. 53B of the Regulations;
  • Council emailed a copy of the NOD to the Appellant’s solicitors on 25 June 2018.
  • The appellant’s solicitor’s searched its emails and found the NOD emailed by Council on 25 July 2018, however, on questioning from the Tribunal it was found that the solicitors email address had ceased being checked at the time Council sent the email with the NOD;
  • Council did give appropriate notice and used the same email address from which the objection had been sent.

The bottom line for permit applicants is; email is a great and acceptable way to communicate in planning matters but be a little prudent about ensuring your emails are well managed and followed up.

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