Case referred to: Sewells Finance Ltd v Colac-Otway SC [2003] VCAT 423 (11 April 2003, noted [2003] 14 VPR.

Lot 3 on Plan of Subdivision No. 400318N being the land in Certificate of Title Volume 10285 Folio 006

Irregularly shaped piece of land with a frontage of 6.47m to the south side of Bank Street, a rear width of 6.34m and depth varying between 25.5m and 29.2m and with a total area of 175m2.

[2003] VCAT 993

This proceeding is adjourned to 10.00 a.m. on Wednesday, 5 November 2003 when one day of hearing has been allocated.

Mr Simon Gutteridge, town planner of the City of Port Phillip, appeared for the Responsible Authority. He presented written and oral submissions.

Mr Diana Allen and Ms Anne Parker, appeared in person. In addition to oral argument each presented a brief written submission.

Mr Robert Milner, town planner of Coomes Consulting Group Pty Ltd, appeared for the Requestor Company. He presented written oral and submissions.

Various plans, photographs and other documents were tendered. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Request under s 87 of the Planning and Environment Act 1987 (PE Act) for amendment of a permit.

To amend Planning Permit 1195/99 issued on 5 March 2001 by the Responsible Authority at the direction of the this Tribunal in its determination of Planning Reviews 2000/69913 and 2000/82958 which permit allows development of the land by alterations and additions to the rear of an existing shop including a roof terrace and dispensation from standard car parking requirements. The amendment sought is the deletion of condition 1(f) which requires amendments to plans to show a redesign/relocation of the proposed stair to the new roof terrace to avoid the need for a covered structure over the stair above the terrace.

Business 1 Zone and subject to a Heritage Overlay under the Port Phillip Planning Scheme. However, the property is on the Heritage Register under the Heritage Act so that heritage questions are the responsibility of Heritage Victoria.

1. This case is in relation to premises known as 193 Bank Street, South Melbourne. On that land there is a two-storey polychrome brick shop and residence. The building was constructed as a shop and residence, although it has not been used for residential purposes for many years.

2. It is the westernmost of a row of three such shops facing the south side of Bank Street between Perrins Street and Claredon Street. The premises can be said to be diagonally opposite, and to the southeast of the South Melbourne Town Hall. The Town Hall faces the north side of Bank Street and Perrins Street runs up to it from the south. There is an oval shaped garden in the middle of the intersection between Bank Street and Perrin Street, situated in front of the Town Hall. The otherwise straight southern alignment of Bank Street dips away to the south and curves back to the north to create an extended intersectional Plaza (containing the oval garden) in front of the Town Hall.

3. To the west of the land, and between it and Perrins Street, is the site of the old South Melbourne Post Office.

4. The whole general vicinity is rich in heritage buildings and in architectural and historic significance. The two-storey shop on the site is subject to a Heritage Overlay, as are the two adjoining shops to the east. So is the Post Office building, the court and Police Station building opposite to the east, the Town Hall, and even the oval garden. Other heritage overlays are to be found over the rest of the block in which the land is situated, in relation to properties facing the west side of Clarendon Street and in other locations roundabout.

5. The shop is on the Heritage Register under the Heritage Act. As such heritage considerations in relation to it are the responsibility of Heritage Victoria, and not the Responsible Authority or this Tribunal under the planning scheme.

6. Ms Allen lives in a dwelling at 24A Emerald Hill Place and Ms Parker lives in an adjoining dwelling at 24B Emerald Hill Place. Their dwellings back on to the rear boundaries of the row of shops at 193 - 189 Bank Street. Number 24B shares a common rear boundary with the rear boundary of the relevant premises at 193. Apparently both these Emerald Place dwellings were constructed fairly recently and as part of a single development. Their private open space areas are terraces or decks at first floor level located to the rear of their respective properties. This gives them northern exposure.

7. The shop on the land I am concerned with is part of a Victorian Terrace of three shops, as I have mentioned. Each was constructed to have a residence above and behind the shop. They are designed and built, after the style of two storey Victorian terrace houses, but with a shopfront at the ground floor street frontage, rather than a habitable room. In each case, the shopfront extends across the full width of the frontage. In each case there is a room above it. In each case there are rooms behind.

8. After the style of this form of development, the rear rooms do not extend across the whole width of the respective allotments. In relation to 193 Bank Street there is a light alley along the central section of its eastern boundary.

9. For some years the requestor company (the company) has been conducting a hairdressing business in the shop premises. Several years ago it was decided that permission would be sought for extensions to the building to enlarge its facilities. These extensions were proposed for the ground and first floor at the rear of the existing building. Originally a third level, or second floor, was contemplated for the rear of the property, but that idea was subsequently abandoned. The proposal involved turning the light alley into a light court along the central part of the premises where they adjoin the neighbouring shop property to the east.

10. On 20 September 1999 a permit application was lodged seeking permission for these alterations. Notice of the application was given and objections were received. The Responsible Authority subsequently considered the application and the objections and determined to grant a permit subject to conditions. A Notice of Decision to Grant a Permit was issued on 16 August 2000.

11. There were two applications to this Tribunal for reviews of the decision of the Responsible Authority to grant the permit. One was an objector's review by Ms Parker and others under s 82 of the Planning and Environment Act 1987 (PE Act). That application sought reversal of the decision of the Responsible Authority to grant a permit. The other application for review was a permit applicant's review under s 80 PE Act in relation to several of the conditions that the Responsible Authority proposed to impose.

12. There were some fits and starts in relation to the hearing of those reviews but the main merits hearing was apparently conducted on 12 December 2002. The case was heard by Mr Gerard Sharkey, a member of the Tribunal. He gave a written determination with reasons in a document dated 26 February 2001. He disallowed the objectors' review and allowed the conditions review in part. He determined to grant a permit, subject to nine conditions which he specified, and he directed the Responsible Authority to issue a permit in accordance with his determination.

13. That permit, being Permit 1195/99, was issued by the Responsible Authority, in accordance with that direction of the Tribunal, on the 5 March 2001. This permit allowed, to quote its words of permission:-

To develop the land for the purpose of alterations and additions including a second level with a terrace at the rear of the existing shop and a dispensation in the standard car parking requirements in accordance with the endorsed plans and subject to the following conditions.

14. The second level terrace is on the roof of the extensions to the rear of the shop.

15. The first condition dealt with the question of the creation of the endorsed plans pursuant to which the development was to proceed. It required plans to be approved by the Responsible Authority, and when approved, endorsed for the purposes of the permit. The plans were to be generally in accordance with those submitted with the application but modified in accordance with specifications in sub-conditions (a) to (k) inclusive.

16. It is one of these sub-conditions that gives rise to the current proceeding, although the history that has led to the current proceedings is a complex one. The modification to plans required by sub-condition (f) is:-

(f) The proposed access stair to the new roof terrace redesigned/relocated to avoid the need for a covered structure constructed over the finished floor level terrace. Revised details must be submitted to and approved in writing by the Executive Director, Heritage Victoria.

17. This is a convenient point to mention that Heritage Victoria is happy with the current proposal being pursued by the company, including a structure to cover the head of the stairs referred to in condition 1(f).

18. I have already mentioned the proposed light court, previously a light alley, retained along the eastern boundary of the property. At all stages it has been proposed to retain this to provide natural light to ground floor windows. However, intentions have varied as to whether or not it should be enclosed with a glass roof that would let in the light but keep out the weather.

19. The proposal for access to the roof terrace is by means of a spiral stairway to be erected in the light court up to the level of the roof terrace. If the light court is to remain open to the weather, then there is no particular need for a structure over the head of the stairs to protect the stairs from the weather. If, on the other hand, the light court is to be protected from the weather with a glass roof, then that protection would be defeated unless there is weather protection over the head of the stairs. This would call for some building structure of sufficient height to allow a person to climb the stairs and then emerge out onto the roof deck. The structure would, of course, be weatherproof. There would be little point in protecting the light court below with a glass roof if the rain was permitted to pour in down the stairway.

20. It should be noted that any such structure need only be fairly small in its length and breadth, although it would need to be tall enough to allow an adult to stand within it. It would be located in a position well set back from the Bank Street frontage and from the western boundary of the land. These are the directions from which views of the land can be obtained from the public domain. Any such structure would be invisible from the front, and either totally invisible or substantially invisible from the public domain to the west, because views would be obstructed by the rest of the building to the north and west of the structure.

21. Ms Allen and Ms Parker are opposed to any such structure being allowed. They are concerned that it would be visible from their first floor decks. They were and are opposed to other aspects of the proposal, but a position has been reached where planning permission now exists for everything the company wants to do, except for the question of the stairhead structure. Ms Allen and Ms Parker must reconcile themselves to an acceptance that their other objections have been considered on their merits and rejected, and that planning permission exists that overrules those other objections.

22. However, so far as a structure covering the staircase is concerned, condition 1(f) required its deletion from the plans. That condition was imposed by the Tribunal when it granted that permit. There are some references to that item in the reasons given for the decision in that case. The origin of the idea of deleting the item, and the reasons and weight of the considerations leading to the imposition of the

sub-condition, may be open some conjecture, but there is no doubt about what condition 1(f) says.

23. Plans were subsequently submitted, approved and endorsed in relation to the permit. These plans depicted a light court open to the weather, with no glass roof together with a spiral staircase, also open to the weather, and without the covering structure at its head.

24. Subsequently the idea arose that the applicant wished to construct a basement. This required further permission, both from Heritage Victoria and planning permission. Both were forthcoming. However, the means by which planning permission was originally sought was not successful. That means was to seek approval for amended plans in relation to the permit. Plans showing the basement were lodged for approval.

25. Approved plans can be amended with further approval pursuant to s 62(3) PE Act. However, such amendments are subject to the constraints that they must be consistent with the planning scheme then applicable to the area and consistent with the permit. The proposed plans could not be approved by the Responsible Authority under that section, because they were not consistent with the permit. Condition 1 required that the approved plans must be generally in accordance with the application plans subject to various specified modifications. Neither the application plans, nor the modifications, contemplated the changes depicted in the proposed amended plans, including the added basement. The Responsible Authority apparently took the view that it could not simply approve the proposed amendments to plans. Amendments to the permit would be necessary. The Responsible Authority has a limited power to amend permits pursuant to ss 72 and 73 PE Act. However, the power is constrained by s 73 including sub-sections (a) and (c) thereof. Sub-section (a) prevents the Responsible Authority from an amendment that would change the effect of a condition imposed by the Tribunal. Sub-condition (c) prevents an amendment that would cause an increase in detriment to any person.

26. When the Responsible Authority declined to approve the amended plans and/or to amend the permit, an application was made to the Responsible Authority for a second planning permit. The application was made on 6 August 2001.

27. Notice was given and some objections were received. On 12 October 2001 the Responsible Authority determined to grant a new permit subject to conditions. I will refer to the terms of this permit shortly. No applications were made to the Tribunal for a review of the permit.

28. This new, second permit is Permit 1092/2001 issued on 8 November 2001. As originally issued it was subject to six conditions. Its words of permission are in the following terms:-

To develop the land for the purpose of alterations at the rear of the existing building including construction of a basement under the existing building and construction of rear amenity buildings with associated car parking and dispensation, in accordance with the endorsed plans and subject to the following conditions.

29. It is relevant to note that the application for this permit, its supporting application plans and the notice that was given of it did not limit the permission being sought to the construction of a basement and other works beyond those covered in the first permit and its plans. The application, its plans and the notice included all the proposed new works, including those covered by the first permit.

30. At the hearing Mr Gutteridge suggested that there might be an alternative interpretation of the permit, having regard to the words quoted above stating what the permit allows.

31. This suggested alternative interpretation was to say that the second permit gave permission only for a basement, rear amenity buildings and car parking dispensation, and did not cover the other alterations for which permission was granted in the first permit. Ms Allen contended strongly, not only that this alternative interpretation was available, but that it was the correct interpretation.

32. As to this question I disagree with Mr Gutteridge and Ms Allen. I think that the ordinary, and indeed the plain meaning of the words is that the permission granted is not limited to a basement, rear amenity buildings and car parking dispensation. This is because of the inclusion of the word "including" in the sentence granting permission. Those elements are specifically mentioned, but not to the exclusion of other alterations. Other alterations depicted in the application plans supporting the application for the second permit are included. There is no condition requiring modification to plans. I do not think it would be right to read the word "including" as if it were the word "namely". Including incorporates the items specified, but it does not exclude other things.

33. The point can be illustrated, if that is necessary, by an example discussed at the hearing. There were two ladies present, and five men. To say that there were people present, including two ladies, would not mean that the attendance was limited to those two ladies. On the contrary, it affirms their presence but also implies that there were others present, as indeed there were.

34. As formulated, the words of permission to do exclude the other alterations covered by the first permit and, as I have said, the application documents and notice included them. There is no reason why the second permit application, and the second permit, should not include the works covered by the first permit. There may not be much point in the second permit, unless there were others things for which permission was also granted, but that does not imply that permission could not be given again for something included in the first permit.

35. Subsequently it was decided not to proceed with the basement.

36. The first condition on the second permit related only to the basement. It required a structural report from an engineer to make sure that the basement would not adversely affect the historic building. With the abandonment of the idea of the basement, that condition, and the report it required, were no longer needed or justified. Apparently the Responsible Authority recognised this and amended the permit pursuant to ss 72 and 73 PE Act to delete condition 1 and renumber the remaining conditions accordingly.

37. By the beginning of 2003 the applicant company was in possession of two permits for extensions to the rear of the shop. One was the first permit which contained condition 1(f), and the other was the second, which did not. A new set of plans was submitted for approval and endorsement under each of the permits. This new set of plans contains all the development that the company now seeks. It does not include a basement, but does include a structure over the head of the stairs at first floor level. This is because the company now desires, after all, to have a glass ceiling over the light court, and to weatherproof it. This, of course, requires the weather proofing of the spiral stairway, including its top where it emerges onto the roof deck. A structure is needed that will both allow people to emerge from the top of the stairs onto the deck, and also weatherproof the stairway. All this is provided for in the latest plans submitted for approval. Heritage Victoria is happy with this latest proposal and has issued permits accordingly under its legislation. The Responsible Authority is also happy with the proposal, so far as the planning merits are concerned. If it had been free to do so it would simply have approved the new plans. However, it did not feel free to do that.

38. It could not approve the new plans under the first permit because the inclusion of the stairhead structure would be contrary to condition 1(f). It should not approve plans that are contrary to the permit under which they are to be endorsed, and cannot do so as an amendment to an existing approved plan, because that would be contrary to the constraints of s 62(3) PE Act.

39. In relation to approving the latest plans under the second permit, the Responsible Authority was in a somewhat different position. There is nothing in the planning scheme or the second permit which would prevent approval of the plans. There is no legal constraint. There is no even a constraint created by an opinion in the Responsible Authority that the plans are inappropriate. However, the Responsible Authority was conscious that the Tribunal, in granting the first permit, required the inclusion of condition 1(f). That was a decision made by the Tribunal on the merits of the proposal then before it. The Responsible Authority may not have been altogether clear as to the reasons for that requirement. It may have been, at that stage, that Heritage Victoria was requiring the deletion of the stairhead structure. If that is so, it has since changed its mind. It may be that the Tribunal was accepting an agreement or concession by the applicant in that case. It may be that the Tribunal formed a view that the sub-condition was necessary and should be imposed. Whatever the reasons for the imposition, the sub-condition was, in fact, imposed. It might be seen as rather bold of the Responsible Authority to simply grant a new permit and approve new plans including a stairhead structure, at least unless it was perfectly clear in the second application that such an inclusion was intended. I assume that the Responsible Authority would not wish to circumvent a decision on the merits made by the Tribunal on this point in relation to the first permit, and presumably would not wish to appear to be doing that either. The Responsible Authority took the view that any such decision ought to be made by the Tribunal, and not by itself. I think that it would be hard to be critical of the Responsible Authority for taking that stance. I certainly do not criticise it for doing so.

40. It seems that there were two means by which approval for the stairhead structure might be obtained. One would be to apply for a third permit, just for permission for that structure. The alternative adopted was to seek an amendment to the first permit, the amendment sought being the deletion of part (f) of condition 1. It is to achieve such an amendment that the present request proceedings under s 87 were commenced. If granted, the amendment would then enable plans in the form of the latest submitted for approval to be in fact approved and endorsed under the first permit. It would also be an indication that, on the merits, the Tribunal regarded the stairhead structure as acceptable. It would mean that the Tribunal was effectively making a decision on the merits which would remove the inhibition on the Responsible Authority from approving the new plans in relation to the second permit.

41. What the Responsible Authority in fact did was to approve the new plans under both the first permit and the second permit. It overcame its problem in relation to its concern about the stairhead structure by deleting it from the plans before approving and endorsing them. The result was that the company, at that stage, built two permits, and one set of plans endorsed in relation to each of them which contained approval for all of the development it desires, except for the one element of the stairhead structure.

42. That was the situation when the request proceeding was commenced before the Tribunal at the beginning of 2003. There has been a development since then. The first permit was granted on 5 March 2001. In the absence of a condition dealing with the question of expiry, s 68(1)(b) PE Act applies. It provides that the permit will expire if the development is not commenced with two years after the issue of the permit. On that basis the first permit, though alive at the time the request proceeding commenced, expired on 5 March 2003.

43. Section 69(1) PE Act provides for a possible extension of a permit that would otherwise expire. It provides that the owner or occupier of land may "ask" the Responsible Authority for an extension of time before the permit expires or within three months afterwards. Under that section an extension sought before 5 June 2003 (3 months after 5 March 2003) could have preserved the first permit from expiry. However, such an extension was not sought within that period. The result is that the first permit has now expired. The point is taken against the company that there is no point in amending a permit that has expired, and, indeed, that there is no power to do that.

44. Mr Milner, on behalf of the company set about the somewhat daunting task of seeking to persuade me that the permit has not expired, or has not expired beyond or hope of resurrection. He argues that there was an implied request or asking for an extension of time for commencement under the first permit pursuant to s 69(1) PE Act. Presumably he also argues that there was implied granting of what was asked for.

45. To support this argument he referred to a fairly recent decision of the Tribunal in Sewells Finance Ltd v Colac-Otway SC [2003] VCAT 423 (11 April 2003).

46. In that case it was pointed out and held that s 69(1) is that the word "ask" and that this "connotes no degree of formality".

47. I agree that an informal asking is sufficient. That would normally mean that the asking should be done by the informal means of writing a letter. There is no formal application form prescribed, or other formalities prescribed for this purpose. It would be hazardous, and in my opinion, inappropriate to make and accept an asking under s 69(1) PE Act in a form that was so informal that it did not create a written record of what was asked, when and by whom. The asking and granting of such an extension is, after all, an official statutory action under the PE Act and in relation to the administration of Victorian planning laws. It is not a matter for asking or answering orally in the course of the third shout whilst watching the races in the public bar or a local hotel, or in the outer of the Melbourne Cricket Ground whilst waiting for the football to be returned to the centre of the ground for a new bounce after a goal has been kicked.

48. Much emphasis was placed by advocates in the Sewells case on the lack of formality required by s 69(1). The lack of requirement of formality does not invite approval of the fantastic. By fantastic, in this context, I do not mean the wonderfully good, but the stuff of fantasy which is, in my opinion, a fair description of a number of the arguments advanced by advocates to the Tribunal in the course of the hearing of the Sewells case. I might say that they were advanced in that case, without success.

49. In that case a permit was granted that was due to expire two years later. Subsequently there were five purported amendments to that permit granted by the Responsible Authority pursuant to ss 72 and 73. Two of these amendments were granted before the original expiry date, and three of them afterwards. On each occasion of an amendment, the Responsible Authority issued a new permit document representing the terms of the permit as issued but subject to each subsequent amendment, including the most recent one. The result of five amendments was that there was the permit as originally granted and five subsequent ones, each cumulatively recording the permit as amended by each of those amendments. These were referred to as "amendment permits". That is an unfortunate and misleading expression because it tends to suggest that there were five, or really six, separate permits. That would not be a correct account of the situation. There was only one permit. That was the original one. It was the one permit amended five times. There could only be a second, third, fourth and fifth permit if there were second, third, fourth and fifth permit applications duly processed in accordance with the requirements of the PE Act and resulting in separate new permits. That did not happen.

50. The argument was, either that there were a series of new permits, or there were a series of, not only amendments to the original permit but also extensions to the new permit. Each amendment, it was argued, was not only amendment, but also an extension of the permit.

51. It appears from a reading of the case that the true situation was that the parties simply forgot about the fact that the life of the permit was subject to a time limit, and overlooked the need, if its life was to be preserved, for an extension to be sought and obtained under s 69. It appears that the Responsible Authority, in that case, simply attended to requests for amendment when they were made whilst no one realised that the permit was about to expire, as was the case in relation to the second amendment, or that it had expired, as was the case in relation to the third, fourth and fifth purported amendments. No doubt steps would have been taken if this negligent oversight had not occurred, but the responsibility would appear to be that of the permit holder rather than the Responsible Authority. The Responsible Authority cannot be expected to bear in mind the expiry date of every permit it is granted. It is for the permit holder to guard its own position.

52. The arguments that the Responsible Authority had induced the permit holder to rely on the proposition that the permit had not expired or been extended, is far fetched, to say the least. That is especially so when it is recalled that planning law is public, not private law, and that the grant or extension of a planning permit is a public act in which the public, as well as the Responsible Authority, has an interest. The degree to which the doctrine of estoppel can apply in this situation is very limited indeed, if, indeed, it exists at all.

53. I have described these arguments as fantastic because I think it is fantasy to suppose that a permit holder can "ask" for an extension by implication without knowing that it is doing so; that it is fantastic to suggest that a Responsible Authority can receive such a request without knowing that it is doing so; that there can be such an asking without either of those parties or anyone else knowing when the asking was made; that the Responsible Authority can grant such an extension without knowing it has done so; and without considering whether it should do so; and that it is fantastic to suppose that there has been an extension, not only when nobody knows that this has been done, but where nobody knows whether the extension was for a day or a week or a month or a year or a decade or a century. I have not had the benefit of hearing directly the arguments advanced in that case. I have only the record of the Tribunal's decision, which appears to recite them fairly fully, and Mr Milner's arguments based thereon. Subject to that reservation the whole proposition seems to me to be a considerable load of nonsense.

54. As I have observed, the Tribunal in Sewell's case held, on its findings of facts, that no request for extension was made. It went on to comment that the facts did not necessarily imply a request for extension and that they were "equally an indication of forgetfulness or careless administration". It was further said that a grant of extension by the Responsible Authority would require the Responsible Authority to be conscious that it was performing that act. I certainly agree.

55. The Tribunal accepted the notion that s 69(1) did not require formality. It apparently accepted that the request could be oral or "implied by conduct".

56. I am not going to necessarily disagree with this. I have already indicated that I consider that the asking should be in writing. It may one day be necessary to analyse what the minimum requirements of such an "ask" would be. It may be possible that an "ask" could arise by implication. I do not say that it is necessarily impossible that acts, matters, circumstances and things could arise that would amount to an asking even though there was no verbal asking, whether oral or written. However whilst not finding such an implication to be a theoretical impossibility, my imagination to date has not enabled me to envisage any situation where it could arise as a practical reality. No doubt that can be considered if and when such a situation arises, or is at least contended.

57. So far as the current case is concerned, I accept that Mr Milner's client was intending to rely on the first permit when the current request proceedings were embarked upon, and that it intended, or would have intended if it had directed its mind to the question, that the permit should remain alive whilst such continuing reliance was intended.

58. I agree with Mr Milner in this case that the continued life would have been intended, if it had been thought of, and that a request under s 69(1) might well have been made, if it had not been overlooked. That does not mean that either notion was actively in anybody's mind on behalf of the applicant company. It is perfectly clear, in my opinion, that nobody took any action under s 69(1). I am not prepared to hold that the commencement of this request proceeding, or the approval and endorsement of the latest plan by the Responsible Authority, constituted a request for an extension or the granting of an extension. Such a finding would involve similar Gilbertian fantasies to those I have deprecated in relation to the arguments advanced in the Sewells case. I say Gilbertian because the submissions remind me of that made by Ko-Ko to the Mikado in the second act of the comic opera of that name where he says:-

When your Majesty says, `Let a thing be done,' it's as good as done - practically, it is done - because your Majesty's word is law. Your Majesty says, `Kill a gentleman', and a gentleman is told of to be killed. Consequently, that gentleman is as good as dead - practically, he is dead - and if he dead why not say so?

In fact Nanki-Poo was not dead and in this case, in fact no extension was asked for or granted. As before, if there was an asking neither the asker, nor the askee was aware of the fact or when it had occurred. Furthermore, the Responsible Authority, if it granted an extension, never considered the merits of doing so and was unaware of having done so. If it did so, nobody knows when or on what terms. In particular nobody knows the period for which any such supposed extension was granted.

59. Notwithstanding Sewells case, Mr Milner's argument or the ruling of the Mikado, I am satisfied that the first permit expired on 5 March 2003 and that any hope of its resurrection in turn expired on 5 June 2003. It is dead now beyond recall.

60. I think it does follow that there is no point now in attempting to amend it.

61. Mr Milner gave notice of an intention to ask for an amendment to the request document so that his client might seek an amendment, not only to the first permit, but also to the second one. Such an amendment is resisted by Ms Allen and Ms Parker. I have made no such amendment at this stage.

62. I am not sure that I am clear as to exactly what amendment to the request document is being sought. I realise that Mr Milner wants the second permit to be included, but what amendment to that permit does he seek? It is not necessary to amend it to delete condition 1(f), because that condition does not appear in the second permit, and there is no equivalent of it in the second permit.

63. The company is in possession of the second permit. It lives on. Plans have been endorsed in relation to it which contained everything that the company now wants, except for the stairhead structure. The stairhead structure has been specifically deleted from the latest plans that have been approved and endorsed. Perhaps Mr Milner wants the second permit included in the request proceeding because he thinks that that might be a way of achieving an amendment to the endorsed plans in relation to that permit. However, on the basis of the analysis in my decision in Grotius v Monash CC [2003] VCAT 626 (29 May 2003), a s 87 request is not the correct procedure to achieve that goal. The Responsible Authority has granted approval and endorsement to the latest plan under the second permit, but only on the basis of the deletion of the stairhead structure. A review in relation to that item under s 149(1) may be a possibility. I doubt that s 87 is the way to go.

64. In any event, there are difficulties in relation to both s 149 and s 87. If permission for the stairhead structure is to be sought, the appropriate means of doing that would be to apply for a third permit, just for that structure. If a new permit application was made, notice of it can be given and potential objectors who consider they might be affected will have an opportunity to object. Section 149 proceedings only include the applicant and the Responsible Authority. Even if Ms Allen and Ms Parker were joined as parties, that would not account for the possibility that there may be others who, if they were aware of the matter, would wish to be heard.

65. If a new application is made as I have suggested, and notice of it is given, and objections are received, the Responsible Authority can then make a decision, on its merits, as to whether it considers that the structure should be approved or not. Any dissatisfied party, whether objector or applicant, would then have an opportunity of a review before this Tribunal.

66. Mr Milner was concerned that all this might take 6 to 12 months. There appears to be no reason why it should take so long. All the circumstances are known to the present parties, and it should be possible to deal with the matter in much shorter time. With the concurrence of the parties I have adjourned the current request proceeding to 5 November 2003. That date is a little over three months after the hearing on 30 July 2003. There was concurrence that such a delay was sufficient for an application for a third permit to be made, for notice of it to be given, for a decision to be made and for a review to be launched at this Tribunal in time to be heard on that date.

67. Such a proceeding would enable the real merits of whether or not the stairhead structure should be allowed to be considered and determined in a way that would be both legally valid and fair to all parties and potential parties. Mr Gutteridge suggested that the time allowed would be ample and that, for his part, it would be intended to facilitate the matter being able to be heard at that stage.

68. On that basis the present request proceeding would become redundant and I expect that it might be withdrawn when the foreshadowed new permit application, and any review arising from them, has been determined. In the meantime it serves as a means of fixing a date in early November without incurring a number of weeks delay that would otherwise occur.

69. I think the request proceedings would face difficulties, as a means of seeking the permission the company wants for the stairhead structure. Apart from what amendment would then be sought to the second permit, there is the question of what grounds could be relied upon under s 87(1). The ground specified in the request is material change of circumstance since the grant of the permit. The only circumstance referred to is the grant by Heritage Victoria of a permit similar to the one now sought under the planning legislation. That looks remarkably like a change that amounts to no more than a change of mind on the part of the requestor. That has been held to be insufficient. Also, the request may have complications as to the inclusion of other potential parties. The amendment would mean that the request was rather different to the one of which notice was given to the Minister.

70. I note again that the inclusion of condition 1(f) in the first permit was a decision of Mr Sharkey. I think it is proper and appropriate, in the circumstances of this case, and the foreshadowed one, that he and I should sit together on 5 November 2003. Rather than speculate as to what his views might be, or what his views in relation to the original decision might have been, it is better that he should participate directly in determining the fate of the foreshadowed new application.

71. As a closing comment I refer to a point raised by Ms Parker. She was concerned as to whether the Responsible Authority had endorsed the correct plans in relation to the second permit. This was a reference to the latest set of plans. She noted earlier dates on the plans. In doing so she overlooked various update notes endorsed on the plans when they were modified. I see nothing inappropriate in using a base plan prepared at an earlier stage for an earlier purpose, with certain updates noted on the plan, for a subsequent purpose. On examination, I could find nothing untoward in the point raised in her brief written submission.

72. In the event of any party lodging a review with the Tribunal in relation to the foreshadowed third permit application such application for review to this Tribunal should be accompanied by a covering letter referring to this request proceeding and to the hearing in relation to it that I conducted on 30 July 2003. It should also refer to the fact that the current request proceeding has been adjourned to 10.00 a.m. on Wednesday, 5 November 2003 and that I expressed the view that any such new review proceeding should be set down for hearing on that day together with this proceeding.