Kantor vs Construction

During periods of market uncertainty or for any number of other reasons, planning permit holders may understandably determine to delay constructing developments.

Most planning permits will contain a condition requiring construction to have commenced within two years of the permit being granted, and completed within a further two years. Permit holders may seek to have these timeframes extended. The mechanism for doing so is contained at Section 69 (2) of the Planning and Environment Act, which 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.

The tests contained in the Supreme Court decision Kantor v. Murrindindi Shire Council 18 AATR 285 form the basis of Council’s consideration of an extension of time request. The Kantor tests are listed below:

• Whether there had been change in planning policy;

• Whether the permit holder is seeking to ‘warehouse’ the permit;

• Whether intervening circumstances have a bearing upon grant or refusal;

• The total elapse of time since the granting of the permit;

• 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.

The recent changes to Victoria’s residential zones  adds a new layer of complexity. In many instances, a significant change in planning policy (including the imposition of new, potentially more restrictive zones) has occurred. Many approved applications would now be prohibited or subject to additional restrictions under the new zones. For example three dwellings within the Neighbourhood Residential Zone, or a 9.2 m tall building in areas with maximum mandatory heights, means that a permit for the same application may not be granted if it were sought afresh.

For this reason we strongly urge planning permit holders to seriously contemplate commencing developments rather than relying on an application to extend a permit.

Unweary permit holders may be left in the unenviable situation of having their permit expire, without extension or recourse to seek a new one.

The definition of what constitutes ‘commencement’ is a subject for another article; however permit holders are encouraged to be proactive, act early on permit timeframes and seek advice in specific circumstances.

Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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