For the reasons set out above, I have made orders on page 1 of this decision, summarily dismissing this fatally misconceived proceeding and directing that a permit issue.
Parties
Applicant/Plaintiff:
Bills-Thompson
Respondent/Defendant:
Mornington Peninsula SC [2024] VCAT 658
Legislation Cited (1)
Civil and Administrative Tribunal Act 1998
Cases Cited (4)
Bills-Thompson v Mornington Peninsula SC [2024] VCAT 658 (17 July 2024)
With this Section 75, the main principles and points to consider are helpfully clarified in the leading case of Axicom Pty Ltd v Melton CC (Red Dot) [2020] VCAT 190. Some main points made by DP Dwyer in this decision are that for a proceeding to be summarily dismissed, the proceeding must be "obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail". DP Dwyer similarly states that it must be very clear that the proceeding is "absolutely hopeless". Another possible grounds for 'summary dismissal' is that the proposal is fatally 'misconceived' or 'lacking in substance'.
In making my findings, I think a helpful way to tackle same is to:
First deal with any more confined points.
Then consider whether the 'easement' issue raised in the Bills-Thompson AFR is a valid planning objection?
If not, to then resolve whether or not it is fair and reasonable to now allow the Bills-Thompson AFR to be broadened, to incorporate other planning issues?
I have taken this approach in my findings set out below.
My overall decision is that I have made orders summarily dismissing the Bills-Thompson AFR, because I accept that the sole 'vehicle access over the splay area' issue which it raises is fatally misconceived and I see no valid basis for allowing that AFR to now be broadened (at such a late stage). In the resulting situation where there is no valid AFR on foot, I have out of completeness also made the usual orders directing that a permit issue for the proposal.
To recap, the Application for Review (AFR) form lodged by Ms Bills-Thompson with the Tribunal on 2 May 2024 includes Section 16 of the form, which asks the question "State your reasons for applying". This is the opportunity for the person lodging the AFR to explain their grounds for opposing the proposal. It is common for persons in this position to in Section 16 cross-reference to an attached Word document, where the 'context and the relevant grounds' are set out in detail.
Also relevant is Sections 10 and 11 of the form, which asks the person filling out the form whether they are using someone else to represent them and if so, to provide that person's details. If this section of the form is filled out, in the Planning and Environment Division (PED) of the Tribunal, this would typically involve the applicant for review person utilising a planner or a planning lawyer or perhaps architect as their representative.
In the particular circumstances here, what transpired was that Ms Bills-Thompson:
Did confirm in Sections 10 and 11 of the form that she was represented by Mr Price of HGB lawyers.
In Section 16 of the form simply stated (as her grounds of opposing the proposal) that - "Part of the proposal would deny me vehicle access to my garage".
Where at the PDH Ms Cincotta argued that this 'filling out of Sections 10 and 11' indicated that Mr Price had prepared and lodged this AFR form on behalf of Ms Bills-Thompson, this was denied by Mr Price. Rather, Mr Price advised that he had done no more than spoken to Ms Bills-Thompson a couple of days before the AFR was ledged by her i.e. it was the client rather than Mr Price that actually filled out and lodged the AFR with VCAT.
Otherwise, Ms Cincotta submitted that it is critical that in her AFR, Ms Bills-Thompson only raised one 'grounds of objection' i.e. "Part of the proposal would deny me vehicle access to my garage" - which Ms Cincotta argued is not a legitimate planning issue or objection.
That is, Ms Cincotta opined that 'whether or not there should be some form of easement rights over someone else's land' is a property-law issue, not a planning issue, where there is a consistent line of Tribunal caselaw that 'property law issues' lie outside of the proper jurisdiction of the Tribunal.
She for example quoted SM Byard in Richards v Hobsons Bay CC [2013] VCAT 527, who stated that:
At [31] and [32] of the Best Hooper written submission, there is quoted equivalent statements by the Tribunal in ASVA Holdings Pty Ltd v Stonnington CC [2015] VCAT 1517 and Neerim Prime Investments Pty Ltd v Glen Eira CC [2017] VCAT 1336.
As mentioned, other than seeking to rely on the role of the Condition 4 in the previous 2016 planning permit that went on to lapse, it seems fair to say that Mr Price did not particularly contest the proposition that there is this consistent line of case law at VCAT that VCAT is not tasked to deal with property law disputes.
Turning to my own findings, it is clear cut to me that it is 'one way traffic' that the relevant caselaw is telling us that the PED at VCAT has no scope or jurisdiction to be resolving property law disputes between neighbouring owners. I accept that this type of 'vehicle access' or 'carriageway easement' dispute' is precisely the type of property law dispute that cases such as Richards, ASVA and Neerim are telling us needs to be pursued in the higher courts, not VCAT.
I have already explained further above why I find that the fact that the lapsed 2016 planning permit included a voluntary Condition 4 (which was privately agreed between the relevant owners at that time) is irrelevant to the situation now.
For the reasons set out above, in summary, I accept (with one proviso) that the AFR lodged by Ms Bills-Thompson does not include any valid planning objection. Accordingly, subject to the proviso, the default position is that the Bills-Thompson AFR must be summarily dismissed as being fatally misconceived, because it does not actually raise any valid/relevant planning objection to the proposal.
The aforementioned proviso is that at the PDH, Mr Price argued that it would be fair and reasonable for the Tribunal to now allow Ms Bills-Thompson to broaden her AFR - I will now address this in the discussion below.