Council too late to review Ministerial decision

Case note: Kingston CC v Minister for Planning (Red Dot) [2025] VCAT 1117

In December 2025, the Victorian Civil and Administrative Tribunal (Tribunal) considered an application by Kingston City Council (Council) to review the Minister for Planning’s (Minister) decision to approve the former Kingswood Golf Course Development Plan (Revision 6, dated 7 October 2025) (Plan) — see Kingston CC v Minister for Planning (Red Dot) [2025] VCAT 1117.

This marks the first known occasion of an application by a council for a review of a Minister’s decision to approve a development plan. From a practical point of view, the decision highlights the need to lodge applications for review within the statutory period.

Background

The Minister received an application to approve the Plan, which was assessed by the Department of Transport and Planning (DTP) and approved. The relevant dates were as follows:

• On 7 October 2025, DTP prepared a report recommending the Plan be approved.
• On 13 October 2025, the Minister’s delegate approved the Plan (Decision).
• In accordance with s149(2) of the Planning and Environment Act 1987 (Act), an application to the Tribunal for a review of the Decision was required to be filed within 28 days after the day on which it was made, being 10 November 2025.
• On 15 October 2025, DTP notified Satterley Property Group Pty Ltd (Applicant) of the Decision, and each page of the Development Plan was endorsed.
• On 17 October 2025, DTP notified Council of the Decision by email but did not state the date of the Decision or attach a copy of the endorsed Plan.

At a meeting on 10 November 2025 Council resolved to seek a review of the Decision. The application for review was lodged with the Tribunal on 14 November 2025, identifying the date of the Decision as 17 October 2025 (being the date Council was notified).

The Applicant notified Council on 26 November 2025 of its view that the Decision had been made on 15 October 2025, being the date the Plan was endorsed. On 2 December 2025, Council applied to the Tribunal for an extension of time to commence the proceeding, citing the following grounds:

• Council had made a mistake in identifying the wrong date of the Decision.
• DTP had delayed notifying Council of the Decision.
• Council was required to comply with its necessary decision-making processes prior to lodging any application for review.
• Council could not reasonably prepare brief and generalised grounds, as it needed to identify all the changes it sought to the Development Plan.

The Tribunal’s decision

The Tribunal’s reasons at [39] provide a useful summary of established principles to be applied when considering an application to extend a statutory limitation period.

The reasons note at [41] “the Tribunal often takes a more stringent approach to extensions of time by objectors than by those proposing to use or develop land” and that “instruments that facilitate the use or development of land, such as a permit, secondary consent or a development plan, are valuable to existing and prospective owners and occupiers of land.”

The Tribunal confirmed that a decision of the Minister to approve a development plan is not open to review by objectors, but that Councils do have standing under section 149(1)(a) of the Act as a ‘specified body’ under section 148.

The date of the Decision was held to be 13 October 2025, being the date the Minister’s delegate approved the Plan, as opposed to the date that any party was notified, or the date the Plan was endorsed.

The Tribunal declined Council’s application for an extension of time and found the grounds provided in support were not sufficient to justify the four-day delay in filing.

At [61-62], the Tribunal states Council’s error in mistaking the Decision date was not reasonable, as it is taken to be aware of the meaning and effect of section 149(2) of the Act — An application for review of a decision referred to in subsection (1)(a), (b) or (c) must be made within 28 days after the day on which the decision is made.

The Tribunal further held at [68], the delay in notice by DTP was not an acceptable reason for the extension of time, as there was “no legislative obligation to notify the Council of the decision to approve the DP on the same day it was approved or at the same time as [the Applicant] was notified or to be notified at all” (emphasis added).

The Tribunal dismissed the Council’s other grounds on the basis that an earlier Council meeting could have considered the Plan, which would have resulted in the application being lodged in time, and there was sufficient time to prepare grounds (at [86] and [92]).

Key takeaways

The decision of the Tribunal highlights that:

• The relevant day on which a decision is made for the purposes of section 149 of the Act is the first date of approval, not the day a party was notified of the decision or plans were endorsed.
• Councils are taken to be aware of the time limits associated with an application and are subject to a high bar for an extension of time.
• Where there is no legislative obligation to notify a party of a decision, any delay in that notification may not be considered a reason to justify a review out of time.
• Councils are ‘specified bodies’ under section 148 of the Act and have standing to review a Minister’s decision under s149.

The decision is a reminder that the Tribunal upholds a high standard for reasons which justify an application made out of time. When looking to review a decision of the responsible authority, applicants should seek advice to avoid any confusion as to the date a decision was made.

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For further information on the case, please contact a member of our Planning & Environment team.