Time elapsed when Council does the advertising

Regular permit applicant’s will be aware, Section 79 of the Planning and Environment Act 1987 (“the Act”) allows applicants to lodge an appeal to VCAT against Council’s failure to grant a permit within the prescribed time (10 statutory days for a VicSmart application or 60 statutory days for all other applications).

Of recent times more and more Councils are opting to undertake the public notice of permit applications themselves, including erecting signs on site. Council’s that do erect signs onsite have been given cause to ponder the impacts of that service in a recent VCAT decision.

In National Property Group Pty Ltd v Manningham CC [2018] VCAT 313, the Tribunal considered whether an application for review lodged under Section 79 was premature. In this instance it was the responsible authority (Council) itself that had given notice of the application, including erection of the required sign onsite.

When calculating the statutory timeframe the clock would normally stop between Council notifying the permit applicant that the sign was ready for collection and the actual day the sign was erected onsite.

 Regulation 32(3) of the Planning and Environment Regulations 2015 provides that the prescribed time for the purposes of a Section 79 appeal does not run:

  • if the responsible authority requires the applicant to give notice under section 52(1)or (1AA) of the Act, for the time between the making of that requirement and the giving of the last required notice.

This means that in circumstances where the permit applicant is required to give notice, the calculation of the 60 day timeframe does not include the time between when Council advises the applicant that the application needs to be notified and the giving of the last required notice (putting notices up on site, or the letters to affected parties being sent) whichever is the later.

In  National Property Group Pty Ltd v Manningham CC  the Tribunal found that where a responsible authority elects to undertake the public notice rather than requiring a permit applicant to do so, the halt on time running that is contained in Regulation 32(3)(a) does not apply. The Tribunal found the appeal was not premature and ordered that the matters proceed to a hearing of the merits.

This finding provides permit applicants with an additional incentive to take up the service from Council’s who offer to erect public notification signs on site.

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