Harvey & Anor v Mutsaers & Ors

[2012] VSCA 69

Victorian Court of Appeal

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Interrogate

Catchwords

1. Town and Country Planning
2. › Planning permits
3. › Extension of time
4. › Application to responsible authority after expiration of prescribed time
5. › Whether VCAT empowered to extend permit despite late application
6. › Planning and Environment Act 1987 (Vic), s 69(1)
7. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), Schedule 1, cl 62
1. Administrative Law
2. › Victorian Civil and Administrative Tribunal
3. › Jurisdiction
4. › Power to disregard failure to comply with enactment
5. › Whether failure to take permissive step within prescribed time constitutes 'failure to comply'
6. › Whether cl 62 extends to all forms of non-compliance regardless of effect
7. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), Schedule 1, cl 62
1. Statutes
2. › Interpretation
3. › Permissive and mandatory provisions
4. › Whether failure to exercise permissive right within stipulated time constitutes failure to comply with enactment
5. › Plain and ordinary meaning
6. › Whether words should be read into statute

Quick Take

Clause 62 of Schedule 1 to the VCAT Act empowers VCAT to disregard a failure to apply for extension of a planning permit within the time prescribed by s 69(1) of the Planning and Environment Act 1987, even where the application is made well outside the three-month grace period. A planning permit does not irrevocably expire without prospect of resuscitation after the expiration of the three-month grace period. Whether the failure to apply within time should be excused is a question of fact and degree for VCAT, depending on the circumstances of each case.