Applicant v Respondents

3 For the reasons that follow, the application for an extension of time is refused. It is therefore unnecessary to consider the application for leave to appeal.

4 Development and use of the subject land is regulated by the Mornington Peninsula Planning Scheme, which includes an incorporated document titled 'National Golf Course and Cape Schanck Resort Development October 2003' (the 'Incorporated Document'). The subject land is subject to the following zone and overlay controls pursuant to the Scheme: the Green Wedge Zone (Schedule 24); the Environmental Significance Overlay (Schedules 16, 23, 24 and 28); the Significant Landscape Overlay (Schedule 6); and the Bushfire Management Overlay. However, the application of these controls is varied by the Incorporated Document, which provides that the provisions of the Green Wedge Zone are excluded in part, and the provisions of the Environmental Significance Overlay and the Significant Landscape Overlay are excluded in full.

5 The permit application was exempt from the notice requirements in s 52(1)(a), (b) and (c) of the Planning & Environment Act 1987 (Vic) (the 'PE Act'). Third party notice of the permit application was required to be given only in respect of the permission sought pursuant to cl 52.17 of the Scheme concerning the removal of native vegetation.

6 The Tribunal accepted the submissions of the applicant that, as a result of the operation of the Incorporated Document, no permits were required for the boundary realignment or the buildings and works, and that items concerning the Bushfire Management Overlay could not be reviewed because of exemption provisions in the Scheme. Accordingly, the Tribunal's assessment focused on native vegetation clearance and the provisions contained in the relevant State policy and cl 52.17.

7 In its reasons for decision,[1] the Tribunal expressed concern about the very high conservation rating of the vegetation proposed to be removed, stating that policy gave strong support to the retention of native vegetation and, as a priority, avoiding the removal of vegetation. The Tribunal was not persuaded that the subdivision and development of land containing vegetation of very high conservation significance achieved a net community benefit. On 18 September 2013, the Tribunal ordered that the Council's decision to grant a permit for the development be set aside and that no permit issue.

8 Following the Tribunal's decision, the applicant, perceiving there to be a 'mismatch' between the Tribunal's Reasons (which dealt only with the grounds for review concerning native vegetation) and the Tribunal's Order (which set aside the Council's decision to grant a permit in its entirety), requested the Council to issue a planning permit in respect of the boundary realignment and the proposed use and development of the land for a dwelling on the basis that these matters had not been the subject of the Tribunal's review. The Council immediately advised that it was not prepared to issue a planning permit as the Tribunal had set aside its decision and explicitly ordered that no permit issue.

9 Thereafter, on 31 October 2013, the applicant applied to the Tribunal under s 119 of VCAT Act to amend the Tribunal's Order on the ground that it contained a 'slip' in setting aside the entirety of the Council's decision and ordering that no permit issue. The applicant argued that the Tribunal intended to set aside only that part of the Council's decision concerning the removal of native vegetation and to order that no permit be granted for the removal of native vegetation.

10 The s 119 application was heard on 14 February 2014. It was duly refused by the Tribunal on 8 April 2014 on the basis that it was evident from its reasons for decision that the Tribunal considered that the subdivision and construction of a dwelling had a direct bearing on how much vegetation was to be removed and concluded that this did not achieve a net community benefit.[2]

11 Section 148(2) of the VCAT Act provides that an application for leave to appeal from an order of the Tribunal is to be made within 28 days of the day of the order. That time limit may be extended by the Court pursuant to s 148(5).

12 The principles applicable to the exercise of the discretion to extend time under s 148(5) of the VCAT Act area as follows:[3]

(a) The power to grant an extension time is discretionary and its exercise is not automatic;

(b) The purpose of the discretion is to do justice between the parties;

(c) There are no fixed or binding rules for the exercise of the discretion and each case depends on its facts;

(d) There are, however, factors that influence the exercise of the discretion, including the length of and reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondents;

(e) An extension will not be granted if the case is hopeless, unarguable or bound to fail; and

(f) The party seeking the extension bears the onus of proving it should be granted.

13 On any view, in order to be granted the indulgence of an extension of time, the applicant must provide a reasonable explanation for the delay. This is especially so when the delay is significant. In this case, the delay was more than 7 months. This is a very long delay in bringing an application for leave to appeal a decision of the Tribunal for which detailed and cogent reasons were given.

14 The applicant has filed an affidavit explaining the delay, largely by reference to the time taken to have the s 119 application heard and determined. However, it relies principally on the merits and what it says is the public importance of its proposed appeal, and on the absence of any prejudice to the respondents if the appeal is allowed to be brought out of time. The applicant also submits that to allow a decision to stand that sets aside the whole permit when only part of the decision was amenable to review by the Tribunal is to give the objectors something to which they were not entitled at the expense of the applicant. It says that the grant of an extension of time is therefore necessary to ensure that justice is done between the parties.

15 In my view, whatever the merits of the proposed appeal and the public interest in it being heard and determined, the applicant must still provide a good explanation for the delay. This too has to do with the requirement to do justice between the parties. The legislature has decided that the period in which an appeal may be brought from a Tribunal decision is limited. As McHugh J said in Brisbane South Regional Health Authority v Taylor,[4] a limitation period should not been seen as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgement that the welfare of society is best served by causes of action being litigated within the limitation period even if this may result in a good cause of action being defeated.[5] In this case, the legislature has created only a small window in which to bring an appeal from the Tribunal. This no doubt has to do with the nature of the Tribunal's jurisdiction and as well as the more general need for finality in litigation. The parties to the Tribunal proceeding are entitled to the measure of certainty that this constraint provides. A good reason for the delay therefore remains a very important consideration for the exercise of the Court's discretion to extend time.

16 The explanation for the delay given by the applicant was divided into two parts: the delay attributable to the pursuit of the s 119 application (31 October 2013 to 8 April 2014); and the delay thereafter (8 April 2014 to 20 May 2014), for which there was allegedly a variety of reasons.

17 The applicant says that the principal cause of the delay was the time that it took to hear and determine the s 119 application. Thereafter, it encountered a series of obstacles, including having to liaise with and obtain the consent of the RACV to make an application for leave to appeal the Tribunal's Order, numerous public holidays and the unavailability of senior counsel, due to his involvement in the East-West Link Assessment Committee at Planning Panels Victoria.

18 The applicant's argument that the delay post 8 April is explained by the 'numerous' public holidays in April and May is without substance. There were only three public holidays between 8 April and 20 May. Its reliance on the unavailability of its senior counsel due to his involvement in the East-West Link Assessment Committee is also unpersuasive, as the hearing in that matter concluded on 16 April 2014. In any event, there are many alternative sources of legal advice at the Victorian Bar and among solicitors working in the planning area. No explanation has been given as to why the RACV's consent to obtaining leave to appeal was required, or when it was sought or obtained.

19 In argument before me, senior counsel for the applicant conceded that the delay post 8 April 2014 was not justified. That concession was rightly made. There is no reasonable explanation for the 42 days of delay after the resolution of the s 119 application.

20 I am not persuaded that the delay caused by the s 119 application was reasonable either. The applicant can be taken to have known of its right to seek leave to appeal the Tribunal's decision and the time limit, but chose to pursue the s 119 application instead of exercising its rights under s 148(1) of the VCAT Act. That was a deliberate and informed choice.

21 The applicant submits that it was reasonable to take the path of the s 119 application in lieu of seeking leave to appeal the Tribunal's Order. It submits that the Tribunal's Order is ambiguous, that there is a mismatch between the Tribunal's Reasons and the Tribunal's Order, and that it was therefore entirely reasonable for it to apply for the Tribunal's Order to be varied under s 119 of the VCAT Act.

22 I am not persuaded that there was a 'mismatch' between the Reasons and the Tribunal's Order. It is clear from the Reasons that the Tribunal considered the removal of vegetation in the context of the proposed subdivision and the construction of the dwelling. It identified the 'central issue' in the proceeding to be whether the creation of the new lot and the buildings and works would avoid and minimise the removal of native vegetation in accordance with relevant policy.[6] The Tribunal observed that the subdivision and construction of a dwelling designed to meet fire management requirements had a direct bearing on how much vegetation was to be removed[7] and concluded that allowing the subdivision and development of land containing vegetation of Very High Conservation Significance did not achieve a net community benefit.[8] In my view, it is plain from the Reasons that the Tribunal intended to set aside the Council's decision in its entirety and to refuse the permit application.

23 Moreover, even if there were good grounds for the s 119 application, there was nothing to prevent the applicant from exercising its right to seek leave to appeal the Tribunal's Order at the same time. It chose not to do so. Instead, on the very last day of the 28 day period in s 148(5) of the VCAT Act, the applicant made its request of the Council and then, when the Council refused to issue a permit, it elected to make an application under s 119 in lieu of seeking leave to appeal. It is not reasonable in the circumstances of the limited period in which to launch an appeal under the VCAT Act to make a deliberate decision to pursue a different course and not to pursue an appeal, but to then seek an indulgence to pursue the appeal some seven months later when the different course turns out to be unproductive of the outcome sought.

24 Even if it were reasonable for the applicant to delay seeking leave to appeal the Tribunal's Order until it had exhausted the other options, there is a further period of 42 days following the refusal of the s 119 application that is either unexplained or such explanations as have been given are inadequate.

25 While the applicant concedes that at least some of the delay has not been adequately explained, it submits that both the public interest in ensuring that the Tribunal acts within power and the requirement to do justice between the parties requires the Court to grant an extension of time and leave to appeal.

26 As I have previously said, I do not consider that the requirement to provide a good explanation for the delay can be lightly brushed aside. There would have to be a very strong public interest or other reason to allow an appeal to be brought out of time in the absence of a good explanation for the delay.

27 The applicant submits that there is a strong public interest in ensuring that the Tribunal act lawfully and within its jurisdiction. It contends that it has a very strong case that the Tribunal acted in excess of its jurisdiction because, having correctly found that the scope of the proceeding was limited to a review of only one part of the Council's decision to grant a permit, the Tribunal had no power to order that the entirety of the Council's decision be set aside. Based on the decision of the Court of Appeal in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal,[9] the applicant submits that the Tribunal was correct to limit its review to the discrete decision of the Council to grant permission to remove native vegetation from the land. This is because it was that component of the permit application alone that triggered the need to give third party notice. The remaining components of the permission granted by the Council - for the subdivision of the subject land and its development for the purposes of a dwelling - were discrete decisions favourable to the applicant that were not and could not be the subject of review by the Tribunal.

28 Furthermore, the applicant says that the need to ensure justice between the parties is most important, and this requires both an extension of time and the grant of leave in order to ensure that the objectors do not benefit - through a stroke of luck - from having the permit decision set aside in its entirety when they only had a right to seek review of the decision to grant a permit for the removal of native vegetation.

29 I do not accept that the legal issue raised by the applicant requires the exercise of the Court's discretion to enable the Tribunal's Order to be appealed notwithstanding the absence of an adequate explanation for the delay. The legal argument advanced by the applicant is not overwhelmingly strong. The alternative argument is a good one. It proceeds as follows.

In Sweetvale, Warren AJA (with whom Ormiston and Buchanan JJA agreed) described an application for a planning permit as a single application made up of 'parts', and stated that any review was limited to those parts of the application for the permit to which the objectors were able to object in accordance with the PE Act and the Scheme. Applying this analysis, when the applicant applied for a permit for its proposal, it made one application made up of three parts. The Council decided to grant a planning permit for the proposal, which was in turn one decision made up of three parts. The objectors applied to the Tribunal for a review of the decision to grant the planning permit and there was, as a consequence, one decision before the Tribunal with three parts to it. Only one part of that decision could be the subject of consideration by the Tribunal. However, based on what was said by the by Ashley J below in Sweetvale,[10] the Tribunal was obliged to take the remaining two parts as having been established. The Tribunal found, in respect of the one part it had to consider, that the removal of native vegetation did not achieve a net community benefit. It was then required to decide what to do with the review proceeding having regard to its powers in s 85(1) of the PE Act. Section 85(1) constrained the Tribunal to grant the permit and to direct the Council to issue that permit with or without conditions. Alternatively, the Tribunal could direct that a permit must not be granted, and that is precisely what the Tribunal did. The Tribunal did not have power to grant a permit for an isolated part of the proposal.

30 The question of law raised by the applicant is an interesting and important one. However, it is unnecessary to resolve it in order to determine the application for an extension of time. The resolution of the question is not so important, and the merits of the proposed appeal are not so great, as to overcome the absence of an adequate explanation for the delay.

31 Finally, the applicant submits that the extension of time should be granted because the respondents will not be prejudiced by the grant of an extension of time in circumstances where no relevant permit has been issued.

32 In the absence of other good reasons why an extension should be allowed, the absence of obvious prejudice to the respondents does not provide a basis for the grant of an extension of time. In my view, the respondents are entitled to the benefit of the Tribunal's Order and it would be unfair to expose them to further legal proceedings given the deliberate choices the applicant has made. There is a public interest in the finality of litigation. That public interest is particularly strong here, as the Tribunal's Order was made over seven months ago and the respondents have already been exposed to one contested proceeding in the s 119 application. The applicant elected to pursue that application instead of applying to this Court for leave to appeal from the Tribunal's Order and it has not now persuaded the Court that it should be allowed to revisit its choices and start again.

33 The length of the delay - of more than seven months - is extensive. The VCAT Act plainly contemplates the speedy identification of any question of law underpinning an appeal and the bringing of an application for leave to appeal within a confined period. That has not happened here and no good reason has been given for why it has not.

34 The applicant has not discharged its onus of establishing that an extension of time should be granted. The application is refused. It is unnecessary to consider the application for leave to appeal.

[1] Jonson v Mornington Peninsula SC [2013] VCAT 1634 ('Reasons').

[2] Johnson v Mornington Peninsula SC [2014] VCAT 400, [19].

[3] See Jason Pizer, Annotated VCAT Act (JNL Nominees Pty Ltd, 4th ed, 2012) [VCAT.148.440].

[4] [1996] HCA 25; (1996) 186 CLR 541.

[9] [2003] VSCA 83 ('Sweetvale'). The applicant submits that Sweetvale stands for the following propositions:

(a) whilst a decision of a responsible authority to grant a planning permit is in singular form, it properly represents a discrete decision favourable to the permit applicant in respect of each of the planning controls that required the grant of the planning permit;

(b) no right of review to the Tribunal lies on the part of objectors to a permit application in respect of those components of a permit application that were exempt from the giving of third party notice; and

(c) any right of review on the part of objectors to a permit application is instead limited to those components of a permit application that did attract a requirement to give third party notice.

[10] Sweetvale Pty Ltd and Anor v VCAT and Ors [2001] VSC 426, [71].