A planning permit will expire when a development, a use or subdivision approved by that planning permit is not carried out within the specified timeframes. These timeframes are usually set out in a condition of the permit, but if not in the permit then they are set out in Section 68 of the Planning and Environment Act 1987 (the Act). The timeframes specify dates for commencing and completing the requirements of the permit.
The timeframes on permit conditions usually match the “default” time frames set out in the Act. In the case of development and use this is two years for commencement, for development it is two years for completion and for subdivision it is two years to certify the plans and five years from the certification of the plans to complete the subdivision. Section 68 of the Act also requires that where a permit is issued for the use of land, and that use is discontinued for a period of two years, the permit expires.
Sometimes the timeframes set out in permit conditions do not match those in the Act. It is important to note and record the timeframe conditions as they need to be complied with for the development to be carried out lawfully.
Often it is not possible or feasible for the building and works or uses approved by a permit to be started or completed within the permit timeframes. This might be due to a number of reasons such as lack of finance, a change in market conditions, a change in ownership or other circumstances. In such cases Section 69 of the Act enables the owner or occupier of the land to ask the Responsible Authority (usually Council) to extend the timeframes for commencement or completion. This request is typically made in writing (with the prescribed fee) including reasons why the extension of time is needed. In order for the Responsible Authority to agree to the request, it must be made not later than three 3 months after the expiry date, however, the Responsible Authority may still decide not to issue an extension of time. If the Responsible Authority has not made a decision on the request after 30 days, then an applicant can lodge an application for review (appeal) to the Victorian Civil and Administrative Tribunal (“the Tribunal”) against the Responsible Authority’s failure to decide on the request.
It is possible to resurrect a permit that has expired, even after the three month grace period is passed. This requires a written request to the Responsible Authority who are then obliged to refuse the request for being out of time. This refusal can then be appealed to the Tribunal who have the authority to approve an extension of time. The request to extend the timeframes can not be made directly to the Tribunal, but an appeal against Council’s decision to refuse, or Council’s failure to decide on a request, can be considered by the Tribunal.
Council’s or the Tribunal’s decision on a request to extend a permit will be based on a number of tests. These tests have been established in case law, and in particular in the decision of the Supreme Court of Victoria in Kantor and Chernov v Murrindindi Shire Council (1997) 18 AATR 285. These tests were summarised by the Tribunal in Seven Oaks Development Pty Ltd v Glenelg Shire Council [2008] VCAT 1257 as follows:
Where a request is made to extend time the responsible authority:
- Should treat the applicant as being obliged to advance some reason or material in support of the grant of an extension.
- May rightly consider:
- Whether there has been a change of planning policy.
- Whether the landowner is seeking to warehouse the permit.
- Intervening circumstances as bearing upon grant or refusal.
- The total elapse of time.
- Whether the time limit originally imposed was adequate.
- The economic burden imposed on the landowner by the permit.
- The probability of a permit issuing should a fresh application be made.
In some cases new planning controls or policies may have come into effect, which were not considered in the grant of the original permit. Perhaps the neighbouring sites have developed or changed. These are examples of situations where the timeframes of a planning permit might not be extended. The decision will be based on the merits of each case.
Where a permit is not extended, then a new permit may be applied for. However, that new permit application should consider the types of changes discussed here to ensure it is appropriate in the current context.
Seek Professional Advice: Information contained in this publication should be considered as a reference only and is not a substitute for professiional 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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Last updated 151010