In the recent case of Pogorzelski v Latrobe City Council, the bar has been raised as to the obligations of the applicant to justify extensions of time where a number of extensions have already been approved.

In this case, Council had approved two extensions of time for a planning permit issued at the direction of the Tribunal in 2013 for the construction of 16 dwellings at 4-6 McClure Court, Traralgon. Each extension was for an added 18 months and both requests were based on the owner’s ill health. The Council then refused to issue a third request on the basis that over a period of six years, the applicant had not taken any active steps to develop the land and that the applicant had not demonstrated that he was not warehousing the permit.

The matter was then referred to the Tribunal and it was determined that whilst the applicant’s continued ill health was a contributing factor, it is not of itself a sufficient reason for the total lapse of time. In the absence of any other extenuating circumstances, the applicant had not demonstrated that he is not seeking to warehouse the permit.

The applicant then referred the matter to the Supreme Court. There were issues of natural justice claimed but this was found to not be proven. In determining in favour of the decision of the Tribunal, the judge made the following conclusions.

  • The applicant should have been aware through the application and appeal process that a reliance on ill health was not of itself sufficient to ensure support for a further extension of time.
  • Additional information was presented to support this on-going ill health, however the bona-fides of the health of the applicant was not challenged, just that this was the only reason provided and that this was not sufficient.
  • As this was the third extension of time, the onus was significantly on the applicant to demonstrate that active steps had been taken to act on the permit and this was found to be lacking and a fundamental failure to meet the Kantor principles.

The Supreme Court decision is clearly saying that when dealing with issues of repeated extension of time requests, the burden of proof is heavy on the applicant to demonstrate that specific and meaningful actions have been taken to bring the permit to fruition. The planning fundamental principle is that permits are designed to be acted upon and not set aside or warehoused and developers need to be proactive and demonstrate a clear progression of actions after a first extension of time.

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