Victorian Civil and Administrative Tribunal|2007-03-13

Austwide Trading Pty Ltd v Moonee Valley CC [2007] VCAT 386 (13 March 2007)

Section 82B Planning and Environment Act 1987 - Leave to apply for review refused - proceeding brought primarily to secure or maintain a direct or indirect commercial advantage

Austwide Trading Pty Ltd v Moonee Valley CC [2007] VCAT 386

1 Leave is refused pursuant to section 82B of the Planning and Environment Act 1987 for the applicant, Austwide Trading Pty Ltd, to apply for review of the decision of the responsible authority to grant a permit with respect to permit application in V/17956/2006.

2 The application is struck out.

3 No order as to costs.

Ms K Bizos, Solicitor, of Dan Dandaris & Associates

1 This application is made under section 82 of the Planning and Environment Act 1987 to review the decision of council to grant a permit to use the subject land for a shop and for reduction in the carparking requirements. The purpose of this directions hearing is to consider an application by the respondent/permit applicant that the application for review be struck out as the applicant for review, Austwide Trading Pty Ltd, is not an "objector" as required by section 82 of the Planning and Environment Act 1987.

2 Austwide Trading Pty Ltd was not an objector to the planning permit application. However, it has recently purchased the business known as Taranto Fruit & Veg. The proprietor of Taranto Fruit & Veg, Vince Taranto, was an objector. The application for review was lodged in the name of "Austwide Trading Pty Ltd as Assignee of Taranto Fruit and Veg". I was advised that in the contract of sale of the business, Taranto Fruit & Veg (or more specifically Vince Taranto) signed all its right, title and interest in the objection to planning permit application in P17956/2006 to Austwide Trading Pty Ltd.

3 It was submitted on behalf of Austwide Trading Pty Ltd that Taranto's interest in the objection was a chose in action and that pursuant to section 134 of the Property Law Act 1958, any absolute assignment by writing under the hand of the assignor of any debt or other legal chose in action of which express notice in writing has been given to the other person from whom the assignor would have been entitled to receive or claim such chose in action is and is deemed to have been effectual in law to pass and transfer the legal right to such chose in action.

4 In simple terms, a chose in action is a right (eg. a right to recover a debt) that can be enforced by legal action.[1] On the basis of the limited submissions put to me on this point, I am not persuaded that an objection to a planning permit application under the Planning and Environment Act 1987 can be characterised as a chose in action and, even if it could, that the requirements of section 134 of the Property Law Act 1958 have been complied with. I do not consider that the law relating to choses in action is applicable to "rights" of review under the Planning and Environment Act 1987. Section 82(1) gives an "objector" a right of review. Austwide Trading Pty Ltd did not object to the grant of a permit under section 57(1) of the Act. It was therefore not an objector and consequently it does not have a right of review under section 82.

5 However, in this type of situation section 82B is relevant. Section 82B provides as follows:

(1) Any person who is affected may apply to the Tribunal for leave to apply for review of a decision of the responsible authority to grant the permit in any case in which a written objection to the grant of the permit was received by the responsible authority.

(2) Subject to sub-section (3), the Tribunal must give the applicant for the permit, the responsible authority and the affected person an opportunity to be heard before making a decision.

(4) The Tribunal may grant the leave to apply for review if it believes it would be just and fair in the circumstances to do so.

(5) If leave is granted by the Tribunal, the person affected may apply to the Tribunal for review of the decision of the responsible authority to grant the permit.

6 In the present case, the applicant for the permit opposed leave being given under section 82B for Austwide Trading Pty Ltd to apply for review of the responsible authority's decision to grant a permit on the basis that the application for review is frivolous and vexatious in that it has been made primarily to maintain a direct commercial advantage.

7 The permit application is to use an existing commercial building for a shop for the sale of fruit and vegetables. The previous use of the site was for a shop selling fruit and vegetables, but the building has been vacant for approximately three years. Therefore no existing use rights exist. The site is in a Business 2 Zone in the Moonee Ponds principal activities centre. Eight on-site carparking spaces are provided and a loading bay. To the south of the site on the opposite side of Young Street is a large carparking facility generally utilised for the nearby Safeway Supermarket and to the south-east is the Taxation Office and a multi-storey carpark. Other carparks are also located in the general area.

8 Taranto Fruit & Veg is located four doors away, also in Young Street. It too is a fruit and vegetable shop.

9 The grounds relied upon in Vince Taranto's original objection were based on traffic and access issues, including the availability of parking, and general amenity of the area. The following, very generalised, statement of grounds is provided in the application for review:

1. The proposed use of the premises is inconsistent with the amenity and character of the area and represents an overuse of the area.

2. The proposed permit contravenes the objectives of the Moonee Valley Planning Scheme and the Local Planning Policy.

3. The reduction in the carparking requirements is inappropriate to the requirements of the area.

10 I have read the council planning officer's report about the permit application and I have concluded that the application for review has no tenable basis and no likelihood of success. The previous use of the site for an identical purpose; the character and zoning of the area; the amount of carparking in the area and the availability of public transport; plus the added vitality that will result from an active use compared to the present vacant premises, all support the grant of a permit. There is nothing specified in the grounds of review or the original objection that would lead to a different outcome.

11 I believe that an obvious inference can be reasonably drawn in these circumstances, where an application for review is made by an identical business located several doors away on very general and non-specific grounds, that the bringing of the application for review is designed to secure or maintain a direct or indirect commercial advantage for the applicant for review.

12 The Planning and Environment Act 1987 and the Victorian Civil and Administrative Tribunal Act 1998 both contain provisions to ensure that the processes under each Act are not used for commercial advantage. For example, section 57(2A) of the Planning and Environment Act 1987 provides that a responsible authority may reject an objection to a permit application which it considers has been made primarily to secure and maintain a direct or indirect commercial advantage for the objector. Section 150(4) of the Act provides that if any proceedings are brought before the tribunal under this Act and the tribunal is satisfied that the proceedings have been brought vexatiously or frivolously or primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings; and any other person who suffered loss or damage as a result of the proceedings, the tribunal may order the person who brought the proceedings to pay to that other person compensation for loss or damage and an amount for costs. Under the Victorian Civil and Administrative Tribunal Act 1998, section 78 enables the tribunal, if the tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party by vexatiously conducting the proceeding, to order that the proceeding be dismissed or struck out and to make an order for costs. Section 109(3) also enables the tribunal to make an order for costs against a party vexatiously conducting the proceeding. Finally, clause 63 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides:

(1) In determining whether or not to make an order for costs in a proceeding under the Planning and Environment Act 1987, the Tribunal may have regard to whether the proceeding was brought primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceeding.

(2) Sub-clause (1) is in addition to the matters that the Tribunal may have regard to under section 109(3).

13 In Oglesby v East Gippsland SC[2] Justice Morris considered the various provisions relating to a proceeding that has been brought to primarily secure and maintain a commercial advantage. He expressed the view that provisions such as clause 63 of Schedule 1 of the VCAT Act 1998 and section 150 of the Planning and Environment Act 1987 ought to be interpreted to give effect to the intent of the parliament, which is to prevent an abuse of process in circumstances "where the objector is not primarily seeking to advance an interest as a neighbour, but is mainly concerned as a commercial competitor".[3] In deciding how an abuse of process in such circumstances may be evidenced, Justice Morris said:

[13] In his decision in Collins v Shire of Nillumbik[4], Deputy President Byard observed that in determining whether an application was primarily brought to secure a commercial advantage, the tribunal should not resort to guesswork. This is undoubtedly true, but it does not prevent the tribunal from making inferences from the evidence. Relevant evidence will include, but not be confined to, the grounds relied upon and the manner in which the application for review is prosecuted. Even if the grounds are undoubtedly "town planning" grounds and the proceeding is prosecuted responsibly, it would still be possible to make an inference that the primary motivation for the bringing of a proceeding was to secure or maintain a commercial advantage. If the tribunal was not prepared to make such an inference in an appropriate case, it would be too easy for the intention of parliament to be defeated.

14 I have set out the factors that lead me to make the inference that this proceeding has been brought primarily to secure or maintain a direct commercial advantage for Austwide Trading Pty Ltd, namely to frustrate a competing business from establishing in close proximity to its premises. In these circumstances I do not consider it would be just and fair to make an order under section 82B to grant leave for Austwide Trading Pty Ltd to apply for a review of the council's decision to grant a permit.

15 Whilst I am conscious that the various statutory provisions I have referred to relate primarily to costs, it is desirable to avoid a situation where a potential liability for such costs becomes an issue. Equally, the clear intent of section 78 of the Victorian Civil and Administrative Tribunal Act 1998 is to avoid a proceeding that will unnecessarily disadvantage another party. Even if this current proceeding had been validly brought under section 82, section 78(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 would enable me to dismiss or strike it out because of the inference I have drawn. As it is, the same outcome will be achieved by refusing leave under section 82B of the Planning and Environment Act 1987.

16 There was no application for costs made and in the circumstances I consider it is appropriate not to make any order for costs. It is more relevant that the matter has been dealt with promptly and the proceeding has been disposed of.

[1] A Concise Dictionary of Law, Oxford University Press (1983) page 59

[4] Unreported, 1995/23263, per Deputy President Byard, quoted at length in Ram v Whitehorse City Council (1997) 19 AATR 281

Environment Act 1987

Austwide Trading Pty Ltd v Moonee Valley CC [2007] VCAT 386

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Judgment (24 paragraphs)

Austwide Trading Pty Ltd v Moonee Valley CC [2007] VCAT 386 (13 March 2007)

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Legislation Cited (2)