Readers will likely be aware of plans to refurbish Melbourne’s famous Windsor Hotel, the development includes the construction of a 26-storey tower and a north wing extension. This matter was before the Victorian Civil and Administrative Tribunal (“the Tribunal) again recently, this time to consider an extension of the time authorised to complete the development, in Hotel Windsor Holdings Pty Ltd v Minister for Planning  VCAT 351.
The tiReaders will likely be aware of plans to refurbish Melbourne’s famous Windsor Hotel, the development includes the construction of a 26-storey tower and a north wing extension. This matter was before the Victorian Civil and Administrative Tribunal (“the Tribunal) again recently, this time to consider an extension of the time authorised to complete the development, in Hotel Windsor Holdings Pty Ltd v Minister for Planning  VCAT 351.meframe previously provided for completion expires on 10 January 2017. While works approved under the relevant planning permits have commenced, completion by that date was considered unfeasible by the applicant, who sought to extend the expiry date for completion by 3 years to 10 January 2020.
The Planning Minister (who was the responsible authority for the consideration of the original planning permit) contended that relevant planning scheme policies and controls had changed significantly since the Permit was first issued in 2010, and that the development would now be prohibited but for the Permit, and that there had been no material intervening circumstances to warrant a further extension of time. These reasons relate to the relevant tests for considering a request to extend the time frames for a permit, stemming from the decision of the Supreme Court in Kantor v Murrindindi Shire Council (1997) 18 AATR 285. In the Hotel Windsor case, the Tribunal also considered Juric v Banyule CC  VCAT 396 in which the Tribunal had commented on issues which might be relevant for the completion of a development for a permit which had commenced.
While the Tribunal’s decision in the Hotel Windsor case is lengthy, the main findings of the Tribunal (in relation to the request to extend the completion date) are summarized here:
- The 2 years to commence and 2 years to complete conditions included in the original permit were never going to be adequate for a major central city development;
- This proceeding was the first to consider completion time frames for this permit. Extensions to commence the development were previously considered by the Tribunal in 2012 and 2014, but did not consider
- Different principles and factors may apply where an extension of time is sought to complete a development that has already started. Where an extension of time is being sought to complete a development, an intervening change to the planning controls will often carry less weight than if the development has not yet started. The change to the height controls in the Bourke Hill precinct contains transitional provisions that protect development already authorised under an existing permit. The potential for an on-going permit for the Windsor Hotel redevelopment was expressly considered by the Amendment C240 panel;
- The change in planning controls must be counterbalanced against other relevant considerations;
- While the planning permit was first issued in November 2010, total elapsed time since then is not of great significance to the completion date. The development did not start until December 2014. It is the time since then that is more relevant to considering a realistic timeframe to complete the development;
- Evidence at the hearing estimated a construction timeframe of 3 to 3.5 years, the previous timeframe only allowed 2 years;
- The applicant was in a situation where planning permits and heritage permits (via Heritage Victoria) were out of sync and that the applicant never had a clear 36 to 42 month construction opportunity to provided security to builders and financiers;
- While the tests of the Kantor case were relevant considerations, that decision was concerned with the commencement date rather than the completion date, and therefore the Hotel Windsor case should not be considered solely on the principle of the Kantor case;
The Tribunal provided an extension of 48 months to the completion lapse date, to 31 March 2020. This decision reflects an approach to applying conditions (in this case the relevant lapse dates) which are realistic, and takes into account the commercial requirements of a development. Larger proposals need a clear period of time for construction so that contractual and funding arrangements can be made. The usual 2 years to commence plus 2 years to complete (the “default” requirements derived from Section 68 of the Planning and Environment Act 1987) will not be sufficient nor reasonable for all proposals.
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