1. This case is fixed for hearing at the Tribunal's premises at 55 King Street, Melbourne to commence at 10.00am on Monday, 21 November 2002 when four (4) days have been allocated for the hearing.

2. I direct that a copy of this document be forwarded to Ms Ruth Spielman of 11 St Leonards Road, Ascot Vale 3032.

Mr C Canavan QC, barrister, appeared on the instructions of the firm of Allen & Allen, solicitors, for the Applicants.

Mr J Cicero, solicitor of the firm of Best Hooper, solicitors, appeared for the Responsible Authority.

Ms Ruth Spielman appeared for herself, Robin Inglis, Errol Malta, Sue Malta,

Application under s.149 of the Planning and Environment Act 1987 (PE Act) for review of the failure or refusal of the Responsible Authority to approve a proposed development plan.

Approval of a development plan to enable subdivision of the land.

Partly in a Residential 1 Zone and partly in a Public Conservation and Recreation Zone and subject to a Significant Landscape Overlay, Land subject to Inundation Overlay and a Development Plan Overlay (Schedule 1 to Clause 43.04) of the Surf Coast Planning Scheme.

1. There have been attempts to subdivide this land for residential purposes dating back to 1995. There have been proposed planning scheme amendments considered by two panels. I have had some involvement in the history of the case, although it is not necessary to recall those matters for present purposes. I note however that I conducted a hearing on the 4 May 1998 in relation to an enforcement order application by Mr Woodger. I recall this because a copy of my decision in that case is attached to the current file. That matter was heard by the Administrative Appeals Tribunal and was Appeal No. 1997/88201. I recall that there were protracted delays in relation to a proposed planning scheme amendment and that there were considerable complications in relation to the enforcement order application that I considered on that occasion. A good deal of time, patience and work were involved in trying to sort out difficulties, many of which arose from preparation of the enforcement application.

2. Ultimately a planning scheme amendment was achieved and the result is apparently to be found in Schedule 1 to Clause 43.04 of the current planning scheme. Clause 43.04 contains the control provisions in relation to the Development Plan Overlay that affects the land.

3. The purposes of this overlay includes the identification of areas that require the form and conditions of future use and development to be shown on a development plan before a permit can be granted for the use or development of the land and to exempt an application from notice and review generally if it is in accordance with such a development plan. Clause 43.04-1 provides that a permit cannot be granted for, amongst other things, subdivision of land until a development plan has been prepared to the satisfaction of the Responsible Authority. Clause 43.04-2 provides an exemption from notice and review. It provides that an application under any provision in the planning scheme which is generally in accordance with the development plan is exempt from notice requirements under s 52(1)(a), (b) and (d) of the PE Act, the decision requirements in s 64(1), (2) and (3) thereof and the review rights in s 82(1) of the Act. This provision excludes third party objectors who might otherwise have a role in relation to such an application.

4. Clause 43.04-3 goes on to make some specifications in relation to a development plan and that such a plan can be amended to the satisfaction of the Responsible Authority.

5. Schedule 1 to these overlay provisions deals with the land. It sets out some objectives and then an elaborate and complex list of requirements in relation to such a development plan. Mr Canavan made the observation that, in his opinion, the schedule is notably confusing, badly drafted and difficult to interpret and apply.

6. Before the applicants' proposal for subdivision can proceed such a development plan must be approved by the Responsible Authority. A proposed plan has been prepared by the applicant and submitted for approval. Such approval has not been forthcoming to date. According to the application for review herein the development plan was lodged with the Responsible Authority for approval on the 5 March 2002. After some meetings in March and April the Responsible Authority wrote to the applicants' representatives raising some specific concerns about the plan and seeking additional written information. Representatives of the applicants responded by letter of the 23 April 2002.

7. By further letter of the 13 May 2002 the Responsible Authority advised the applicants that the development plan had been the subject of notice to all neighbouring landowners and occupiers and other nominated bodies and authorities. This was an action outside the statutory procedures and was a voluntary and extra step taken by the Responsible Authority. In making this observation I am not suggesting that it was improper for the Responsible Authority to take such a course. I am merely noting that it is a course not contemplated by the planning laws and that it did not invest such neighbours or other authorities with legal rights to become parties to subsequent proceedings. If the Responsible Authority had simply made its decision on the material submitted there would not have been, so far as I can see, any legal basis for any third party to complain of that course or to be heard in relation to it. For example, if the Responsible Authority had been satisfied with the proposed development plan, either in its original or in some modified form, and passed a resolution to that effect, then that would have been sufficient to constitute the plan as a development plan for the purposes of the overlay control without more ado.

8. In fact the Responsible Authority has not made a decision to approve or reject the proposed development plan, either in its original or in a modified form. The applicants take the point that the Responsible Authority has not made a decision within a reasonable time and have applied under s 149 PE Act for a review of that failure. That application for review is the proceeding that is before the Tribunal at this stage.

9. In lodging the application for review the solicitors for the applicants requested a Directions hearing to consider the listing of the application for hearing, to consider the time required for the hearing and the conduct of the matter generally. That request appears in their covering letter of the 12 June 2002.

10. The Responsible Authority, in a letter to the Tribunal of the 24 January 2002, confirmed that it has not determined the application. It supported the idea of a Directions hearing for such purposes. It was on the basis of these communications that the Directions hearing of the 1 August 2002 was appointed with 30 minutes allocated for the purpose.

11. There had been concern that the Responsible Authority was requiring further information, but I was informed at the hearing that the Responsible Authority was now satisfied in that respect.

12. Mr Cicero indicated that the Responsible Authority intends to call four expert witnesses covering the fields of planning, landscaping, arboriculture and ecology. He estimated a day for the case of the Responsible Authority and 2 to 3 days for the hearing, or four days if further parties were admitted. After discussion it appeared that 3 or 4 days was a reasonable assessment.

13. Ms Spielman raised a further matter which had not been anticipated when the time for the Directions hearing was fixed. She applied for herself and the other persons for whom she appeared to be made parties to the review proceedings under s 60(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). She produced a letter dated 30 July 2002 to the Registrar indicating this desire. The letter had not reached the Tribunal file by the time of the Directions hearing. Indeed it has still not done so, although I have a copy tendered at the hearing. There is no notation on the letter indicating that copies were sent to the Responsible Authority and the applicants.

14. Ms Spielman and her associates have no right to be parties to this application. The parties, in accordance with s 149 and 148 PE Act are merely the "specified person" and the "specified body" (in this case the applicants and the Responsible Authority). Section 149(3) provides that the Responsible Authority is to be a party to the proceedings but in the present case it is already a party being the "specified body". I will not bother here with the definitions of the concepts of specified body and specified persons. They can be found in s 148 and understood by reference to s 149 PE Act. I note that the PE Act, when creating the opportunity for various applications, requests and referrals specifies the parties and people who are entitled to be heard or to make submissions. Third parties are not included in this instance.

15. Ms Spielman indicated that she, and the others for whom she appeared, would (if permitted) participate as a group presenting a single case, that she would communicate with the others and that her address should be the address for service for them all. On being asked as to how long would be required for the presentation of her contemplated case she mentioned two hours, or half a day at the most. However, I took that to be for presentation of a prepared submission and any witnesses. It does not necessarily represent the total addition to the time that would be required to hear the case if the group was permitted to cross-examine witnesses and participate in the debate in relation to other matters such as procedural or legal questions that might arise.

16. In relation to possible legal questions, and whether a legally qualified member would be required, the existing parties considered that an experienced senior town planning member would be appropriate and each volunteered, in advance, that they would consent to such member determining any legal questions that might arise. I am not sure, at the moment, whether they would be necessarily bound to that view if some legal question arose that, for some reason, they thought should be dealt with by a legally qualified member. At any event, Ms Spielman did not volunteer a similar advanced consent, and perhaps was not in a position to do so.

17. Although Ms Spielman and the others do not have a right to be parties, nevertheless s 60(1) VCAT Act enables the Tribunal to join a person as a party if it considers that the person ought to be bound or have the benefit of an order of the Tribunal in the proceeding or that the person's interests are affected by the proceeding or if, for any other reason, it is desirable that the person be joined as a party. It is pursuant to these provisions that Ms Spielman seeks joinder.

18. Mr Cicero, on behalf of the Responsible Authority, took a position of neutrality as to such joinder whilst making the observation that it may be helpful to have the views and guidance of such residents. As to that, it has occurred to me that this could be accommodated by giving leave for the making of a submission without necessarily admitting Ms Spielman and the others as full parties.

19. She contends that they should become parties because they are residents on the adjoining site, are affected by the proposal and, having regard to the applicable provisions, will have no further opportunity to comment. She also says that it is a significant site and that important issues are involved.

20. I think she is right in saying that there would be no further opportunity. That is because the relevant provisions intend that there should be no such opportunity. The Schedule 1 constraints and parameters are elaborate and detailed. They arise from a planning scheme amendment in relation to which there was a panel hearing where Ms Spielman and the others were heard or had the opportunity to be heard.

21. Mr Canavan opposes the joinder of these third parties. He claims that this is only the second time in his career that he has taken such a position. He gave three reasons.

22. The first was the long history of the matter. I am not persuaded that this is a good reason for refusing joinder unless there is reason to fear that doing so might considerably widen and/or protract the proceedings.

23. His third reason was that the issues sought to be raised by the third parties are the same as those that will be dealt with by the Responsible Authority. While I note this, I do not regard having the Responsible Authority advocating the same side of the same issues as necessarily the same as, or is good as, having the opportunity to present one's own case in one's own way with one's own emphasis, evidence and arguments.

24. Mr Canavan's other point (his second in the order in which he gave them) was that the legislation does not provide for third parties and Clause 43.04-2, in excluding notice and review rights to third parties, rather supports the view that they are not intended to have a role here.

25. I said at the hearing that I felt constrained to caution in relation to the proposed joinder, partly because of experience I have had in relation to proceedings of this sort. A question as to whether a development plan should be approved is a question in relation to which there are distinct limits. It is not so broad a field of inquiry as is relevant to some permit applications. It can be difficult when people lacking the right to be parties are admitted if they then fail to understand or refuse to recognise the constraints.

26. I was careful to observe that I was not suggesting that Ms Spielman herself was likely to abuse the privilege if it was extended to her. I did feel a pang of apprehension on recalling the confusions of previous proceedings I have been involved in in relation to this land and again when there was reference to other concepts it seemed to me of doubtful relevance.

27. On reflection, I considered that it would not be appropriate to join third parties without being clear as to what grounds in relation to the question of approval of the proposed development plan they propose to raise and rely upon. In this connection I mean specific and particularised grounds that would be not be so vague as to allow anything and everything, relevant or irrelevant, to be raised.

28. In this connection I note that there were grounds specified in the letter of Ms Spielman of the 30 July 2002. However, it needs to be appreciated that these were grounds for the application for joinder, not grounds upon which it was intended to rely if joined. They read as follows:-

* as residents adjoining and immediately adjacent to the site, we are affected by the proposed development

* after approval of the Development Plan there will be no further opportunity for us to comment on how the site is developed as third party exemptions apply

* in our view the proposed Development Plan is not site responsive and has not addressed the requirements of the Surf Coast Planning Scheme

* the proponent has not provided sufficient information on which to adequately assess the proposed Development Plan

* as Council's position has not been communicated to us in writing we believe our interests may not be adequately represented.

29. Of these it is only really the third that gives any indication of what grounds might be relied upon in relation to the question as to whether the development plan should be approved, and this indication, namely that the proposed plan is not site responsive and has not addressed the requirements of the planning scheme, is hopelessly vague and general. Apart from anything else there is no specification of which requirements are said to be not addressed or what ways the plan is said to be not site responsive.

30. The fourth point complains of lack of sufficient information without being specific as to what the deficiency is. I note that the Responsible Authority was initially not satisfied with information but now is. It may be that the proposed third parties would be satisfied too, if they checked what the Responsible Authority now has.

31. I emphasised that I am not intending to be carping about the above grounds because they are not intended to be proper grounds that the third parties would rely upon if admitted as parties. I merely make the point that they are far from sufficient for that purpose and that I would not admit them as parties without proper and specific grounds.

32. At the hearing I was handed a weighty bundle of documents which, I was told, were submissions of various people made to the Responsible Authority in response to the extra legal notice it gave to them of the plan. Some of those submitters are not in the group of proposed third parties, and some are. I accepted the bundle on the basis that I may wish to peruse these documents to get an idea of possible grounds. However, it is not sensible or appropriate for me to attempt to draw grounds out of this bundle of documents of this disparate group of people.

33. I have mentioned that I have had some experience in the conduct of proceedings and hearings of the sort herein involved. I have found that more particular care and attention needs to be devoted to the conduct of such hearings and that it might sometimes be necessary to maintain a stricter control than is common in ordinary planning review proceedings in relation to permit applications. Perhaps the mode and scope of that type of review is better understood by participants generally. It may sometimes be appropriate or necessary to proceed on the basis of parties being put on terms as to time, cross-examination, relevance and the like. These are matters for the presiding member in the conduct of the hearing. I think that if I was to be conducting such a hearing I would prefer not to be committed in advance as to procedures and terms by earlier orders of another member not responsible for conducting the hearing. I think that the Tribunal, charged with responsibility for the conduct of its procedures, is in a position to allow participation on limited terms without the participant being admitted as a full party with all the rights and opportunities that might be involved, including rights of appeal and rights to object to a member who is not a lawyer determining questions of law.

34. In the circumstances I do not feel justified in simply joining Ms Spielman and her associates as full parties on the basis of the application as it was made and supported on the 1 August 2002. Rather I propose to give a direction that notice of the hearing should be sent to Ms Spielman so that she and her associates will be aware of its time and place and will have an opportunity to attend and seek leave to make a submission. It may be that this will satisfy their requirements. It may be that they might, at the beginning or in the course of the hearing, seek to participate in other ways, for example having questions asked of witnesses or being granted leave to cross-examine, perhaps on terms as to time or relevance. I intend to leave the control and conduct of these matters in the hands of the presiding member.