Mondib Pty Ltd v Coral Rise Pty Ltd

[2023] VSCA 237

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Planning Law
2. › Planning permits
3. › Extension of time
4. › Mandatory considerations
5. › Whether current state of planning scheme is implied mandatory consideration under s 69
6. › Implied mandatory considerations under Peko-Wallsend principles
7. › Planning and Environment Act 1987 (Vic), ss 14, 60, 69
1. Planning Law
2. › Planning permits
3. › Extension of time
4. › Declarations of invalidity
5. › Discretion under s 149B
6. › Whether exercise of discretion legally unreasonable
7. › Planning and Environment Act 1987 (Vic), s 149B
1. Administrative Law
2. › Jurisdictional error
3. › Decision affected by jurisdictional error
4. › Whether decision-maker obliged to redetermine
5. › Bhardwaj principle
6. › Whether permit expired or duty to decide remained unperformed
7. › Planning and Environment Act 1987 (Vic), s 69
1. Administrative Law
2. › Mandatory relevant considerations
3. › Implied mandatory considerations
4. › Determination by construction of statute
5. › Subject matter, scope and purpose of Act
6. › Planning and Environment Act 1987 (Vic), s 69

Quick Take

When a responsible authority considers an application to extend a planning permit under s 69 of the Planning and Environment Act 1987, the current state of the relevant planning scheme is an implied mandatory consideration that must be taken into account. Failure to consider changes to the planning scheme (such as the introduction of mandatory height controls) constitutes jurisdictional error. However, where a permit extension is declared invalid due to jurisdictional error, the permit does not thereby expire; rather, the duty to determine the extension application remains unperformed and the responsible authority must redetermine the application according to law.