In brief

The case of Dahlenburg v Hindmarsh SC (Red Dot) [2022] VCAT 669 concerned a preliminary hearing in the Victorian Civil and Administrative Tribunal (VCAT) in respect of the interpretation of the permit expiration provisions in section 68 of the Planning and Environment Act 1987 (Vic) (PE Act) in an appeal proceeding against the decision of the Hindmarsh Shire Council (Responsible Authority) to amend an amended planning permit granted in 2019 (2019 Amended Permit) to facilitate additional buildings and works to increase the holding capacity of ducks on a duck farm.

The Applicants relevantly lodged an objection in relation to an application made by the Respondent to the Responsible Authority in 2021 seeking to amend the 2019 Amended Permit. The Responsible Authority granted the amended planning permit, which resulted in the appeal to VCAT and the preliminary hearing seeking to determine whether the 2019 Amended Permit had expired because the development aspect of the 2019 Amended Permit was not acted upon within sufficient time.

The question in respect of the currency of the 2019 Amended Permit raised further issues, being; whether there is still a permit in existence which can be amended and if so, the terms of that permit.

VCAT held that the 2019 Amended Permit had, under section 68(3)(b) of the PE Act, expired because the development the subject of the 2019 Amended Permit had not been completed within two years from its date of issue. Accordingly, the Responsible Authority could not amend the 2019 Amended Permit because it had expired.

Facts

The Respondent operates a duck farm located at 142 Drapers Road, Nhill (Site). The ducks are housed in a number of sheds constructed on the Site.

The establishment of the existing duck farm was authorised by the original planning permit, which was issued by the Responsible Authority on 18 August 1999 (Original Permit).

On 27 May 2019, the Responsible Authority granted the 2019 Amended Permit which facilitated the construction of additional buildings and works to increase the shed size and increase the maximum number of ducks able to be kept on the Site from 12,000 to 24,000 (Proposed Development). There were no conditions in the 2019 Amended Permit concerning its date of expiration.

In September 2021, the Respondent made an application to the Responsible Authority seeking to amend the 2019 Amended Permit to change the nature of the buildings and works authorised by the 2019 Amended Permit. The Responsible Authority granted the amendments sought to the 2019 Amended Permit.

2019 Amended Permit had expired under section 68(3)(b) of the PE Act

Section 68(3) of the PE Act relates to a permit for the development and use of land that is taken to be a combined development and use permission. Thus, a permit under section 68(3) of the PE Act can expire as a whole for reasons that may only relate to a part of the permission, i.e. a part relating to the use of land or a part relating to the development of land (at [20]).

Since the Proposed Development or any stage of it was not completed within two years after the date of issue of the 2019 Amended Permit and no expiration condition existed, section 68(3)(b) of the PE Act was triggered and rendered the 2019 Amended Permit to expire (see [31] to [32] and [36]).

The consequence of the expiration of the 2019 Amended Permit was that only the terms of the Original Permit remained in force (see [46] to [49]). Thus, the Responsible Authority in making the 2021 amendments was required to amend the Original Permit and not the 2019 Amended Permit (at [48]).

VCAT noted that the ability to extend a timeframe under a permit to complete development is provided for in section 69 of the PE Act. However, as no application was before VCAT in relation to section 69, no determination could be made on that point (at [51]).

Conclusion

VCAT held that the 2019 Amended Permit had expired and therefore was not capable of being amended. 

This decision emphasises the importance of including conditions in a planning permit in respect of the expiration of the permit to avoid circumstances where the permit expiration provisions under section 68 of the PE Act are triggered and result in a mandatory two-year expiration date.

This decision is also significant as it demonstrates that both use and development requirements in a planning permit must be satisfied to ensure that the permit does not expire.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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