Extension (of time) termination - More learnings from Mondib

The long-running litigation involving a development by Mondib Group Pty Ltd of a site in Moonee Ponds Junction has this week received another entry of interest to planning practitioners in Victoria.

In 2021, the Supreme Court, in Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722, upheld an appeal that the Tribunal had erred in determining that an amendment under Section 72 was a ‘transformation’ to the original permit.  The Court remitted the review of the Section 72 to the Tribunal to be-redetermined.

The remitted proceeding was heard by the Tribunal alongside a declarations application in Mondib Group Pty Ltd v Moonee Valley CC [2023] VCAT 369 (Justice Quigley, President). Declarations were sought by a nearby land owner related to two previous extension of time requests that had been granted by Council.

The nearby land owner challenged the validity of the extension decisions by Council on the basis that:

1. the requests were not made by the owner or occupier of the land as required by Section 69 of the P&E Act; and
   
2. there were fundamental errors in Council’s assessment of the second request.
   

As to the identity of the applicant for the extension of time, the Tribunal was not satisfied that the requests were made by the owner or occupier of the land.  Despite this finding, Her Honour Justice Quigley declined to make the declarations sought.  The reasons reflect various equitable considerations informed this decision, including the elapse of time, the consequence suffered by the permit holder if the declaration was made as well as the Tribunal’s power to forgive procedural failures through Clause 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

‍It is important to note that the decision was made on the version of Section 69 of the P&E Act that was in force prior to the Act’s amendment in 2021.  In 2021, Section 69 was amended to insert a requirement that an application not made by the owner or occupier of the land must be accompanied by the written consent of the owner or occupier (Section 69(1)(B)).

A decision favourable to the nearby land owner was made in relation to the alleged errors in the Council’s assessment of the second extension request.After a forensic examination of the application material and the Council assessment, the Tribunal found that no consideration had been given to an amendment to the planning scheme that would have had the affect of prohibiting the proposal if a fresh permit was being sought (i.e. the eigth Kantor factor).  Her Honour found that the Council was bound to consider the relevant legislative context (including the current planning scheme) and could also not ignore the principles established by the Supreme Court in Kantor.

As to the exercise of declaratory discretion, Her Honour found that because the error related to the merits of the decision (rather than any procedural non-compliance) the Tribunal should not excersise its discretion under Clause 62 of Schedule 1 of the VCAT Act to forgive the failure.  Ultimately the Tribunal declared that the second extension of time request was invalid and of no effect. This has the consequence of invalidating the permit.

The decision reinforces the importance of having regard to both the current planning scheme and the overall Kantor principles in consideration of a request for an extension of time to a permit. Failure to have regard to relevant scheme amendments may result in the extension decision being invalid.The reasons of Quiqley, J provide a number of other key takeaways for Victorian planners.  Some important points from the Tribunal’s reasons are:

• The decision reaffirms the broad power available under Section 149B of the P&E Act for the making of declarations in that they can relate to ‘anything done by a responsible authority under this Act’ and factors relating to a lack of separate entitlements to bring a review proceeding or the availability of alternative remedies are no bar to bringing an application under Section 149B (but may relevantly be considered as a matter of discretion when the Tribunal is determining whether to make a declaration) ([107] to [115]).
  

• Her Honour suggests that, prior to the 2021 amendment of Section 69, it may have been open to a third party to lodge a request on behalf of the owner or occupier [120]. However, it is made clear that following the 2021 amendment, this is no longer open to an applicant unless it is accompanied by the written consent of the owner or occupier ([134]).
  

• The decision restates the principles emerging from the Supreme Court decision in The People of the Small Town of Hawkesdale Incorporated v Minister for Planning [2021] VSC 510 in that, when drafted in certain terms, an expiry condition of a permit may create separate power to seek an extension to the permit that is distinct from the power available under Section 69 of the Act ([122] to [123]).
  

• Crucial to the decision was the finding that the omission in a written assessment (i.e. Council report) of a particular factor required to be considered can give rise to a finding that the factor was not considered ([160] to [178]). In this case, the Tribunal was satisfied that the consequences of the relevant amendment had not been considered as it was not addressed in either the planning assessment submitted with the application or the Council officer’s report.
  

The decision in Mondib Group Pty Ltd v Moonee Valley CC is a prompt for councils to reconsider:

• The contents and particular wording (including the affect of any omissions) of reports that consider extension of time requests;
  
• The wording of expiry conditions of permits insofar as the ability for an extension to be sought; and
  
• The wording and nature of requests for extension of time, including who the requests are made by/on behalf of and whether the request is sought under Section 69 of the Act or under a condition of the permit.
  

Get in touch with us if you would like to discuss the case and the implications it may have.