What to do if your Planning Permit Expires.
By Phillip Leaman
29 July 2013
Planning Permits have an expiry date by which the construction of the development must commence and finish
Usually, construction will need to:
- commence 2 years after the permit is issued;
- be completed 4 years after the permit is issued.
What if an extension is required?
- Generally, the applicant will have until the expiry of the permit date and up to 6 months later (since 22 July 2013) to apply to the Council to request an extension. However, you need to review your permit conditions to determine what procedure applies to your permit.
- The application to the Council can be a straight forward process and particularly if it is the first extension, the Council is likely to grant the application.
What if you miss the deadline to extend?
- If the Council’s right to extend the permit under the permit conditions has lapsed then since 22 July 2013 you can no longer apply to VCAT for a review of the Council’s decision and ask the Tribunal to exercise its discretion (pursuant to Section 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998) to disregard the failure of the applicant to comply with Section 69(1) of the Planning and Environment Act 1987. The only time you can seek a review is if you made an application for an extension of time with the responsible authority prior to the expiry of 6 months after the permit expiry date.
- If an application is made to the Tribunal (after your application has been refused by the responsible authority, the Tribunal must be convinced that it is in the interests of nature justice to do so as well as a consideration on whether the relevant planning scheme has changed.
- The Tribunal must deal with the principles of law outlined in Kanto v Shire of Murrindindi (and various other authorities).
The importance of getting it right
- It is important that you consult a solicitor with experience in planning matters if an application for an extension of time (or any other planning permit amendment) is sought as the effect of not properly preparing could mean that the applicant is denied the extension and forced to make a new application.
- If the Tribunal is of the view that the planning scheme has changed since the permit issue date, the Tribunal may reassess the entire permit application as part of its consideration of whether to grant the permit. This may mean the Tribunal insists on substantial changes to your plans or permit conditions or that a fresh application is made.
- Our firm recently had a matter where the Council consented to the application for an extension but the Tribunal ordered a Practice Day Hearing to consider the issues prior to agreeing to the extension.