This case considered the time limit for an objector to seek review of a decision by a responsible authority under the Planning and Environment Act 1987. The Tribunal noted that the period for objecting is 21 days from the date when the objector was given notice of the decision. Due to the different rules governing when a person is deemed to have received notice of a decision sent by different means, however, it was possible for closing dates for seeking review to vary depending on how particular objectors were sent notice. The Tribunal stated that this was unacceptable and so held that a person would be deemed to receive notice to a decision two business days after notice was sent to them, regardless of whether it was sent by post or by email.

The Tribunal also recommended that the Planning and Environment Act be amended to require that all notices of decision expressly state when the period for objecting closes.

Persons who objected to a permit may seek review of a decision to grant that permit under s 82 of Planning and Environment Act. Under regulation 34 of the Planning and Environment Regulations 2005, an application for review must be made within 21 days 'after the responsible authority gave notice to the objector under section 64 of the [Planning and Environment] Act'. As such, the question of when notice is received by a person is significant in determining the time limit for them seeking review.

To ensure consistency, the Tribunal applies section 141 of the Victorian Civil and Administrative Tribunal Act 1998 to notices. Section 141(1)(b) provides that when a notice is sent by post it is taken to be received two business days after it was sent.

The Tribunal noted that notices sent by email were subject to a different set of rules. Section 13(3) of the Electronic Transactions (Vic) Act 2000 provides that, where a person has said they will accept service at a particular email address, an email to that address will be taken to be received once it 'enters that information system.' Sections 141(1)(c) and 141(2) of the VCAT Act makes similar provision, except that an email that enter the relevant information system after 4pm will be taken to be received the next business day.

These two sets of rules meant that notice of a decision could be deemed to be received on three different days depending on how and when it was sent. By way of example, a notice sent on 23 November 2009 (a Monday) would taken to be received on:

1. 23 November, if sent by email before 4pm;
2. 24 November, if sent by email after 4pm; or
3. 25 November, if sent by post.

The effect of this is that there might be up to three different closing dates for applications for review of a single decision. The Tribunal held that this was unacceptable and, as such, applied the postal receipt rule (i.e. that notice is deemed to be received two business days after it is sent) to all notices of decision sent by post or email.

The Tribunal stated that it would be appropriate to amend the Planning and Environment Regulations to require notice of a decision to expressly state the closing date for review applications.

• The full decision is available on Austlii