1. Within 14 days of the date of this order the applicant must file a further and better site analysis and design response in support of its permit application and serve them upon:

(b) the owner and occupier of every lot adjoining 17 Talbot Crescent, Kooyong, in so far as those persons are not parties to this proceeding.

2. Adjourned for further hearing before Mr Gould upon a date to be fixed.

3. The costs of the determination of these questions are reserved.

[1] On 7 May 1998 Castik Investments Pty Ltd lodged with the City of Stonnington as Responsible Authority an application for planning permit under the Planning and Environment Act 1987 for a permit to erect four two storey dwellings on premises known as 17 Talbot Crescent Kooyong. The site is zoned Residential "C" under the Stonnington Planning Scheme.

[2] By letter dated 26 May 1998 the Council wrote to the applicant stating that it considered the site analysis did "not meet all of the requirements of Clause 21-2 of the Stonnington Planning Scheme". It requested the applicant to "resubmit the site analysis to Council pursuant to Section 54 of the Planning and Environment Act for reassessment".

[3] On 5 June the Council received a document styled "Site Analysis drawing" together with certain items of information which in the Council's view dealt with its request under Section 54 of the Planning and Environment Act. On 26 June 1998 Council directed the permit applicant to give public notice of its application. By letter dated 7 July 1998 Council advised the permit applicant "that the information provided is satisfactory. Notice of the application will proceed in due course." On 16 September 1998 with the Council not having made any determination to grant or refuse a permit, Castik Investments Pty Ltd lodged an application for review with the Tribunal in accordance with Section 79 of the Planning and Environment Act. On 4 November 1998 Council resolved to notify this Tribunal that were it in a position to make a decision, it would issue a Notice of Refusal. The resolution set out the grounds for Council's view. The Council's planning file indicates that its officers considered the material lodged by Castik Investments Pty Ltd and concluded that:

"The site analysis plan and written response is considered to be [to] Council's satisfaction in accordance with Clause 21-2 of the Stonnington Planning Scheme."

[4] Castik Investments' application came on for hearing before the Tribunal constituted by Mr Gould on 23 March 1999. The Council was represented by Mr Verhoeven of Bowden Verhoeven Planning Consultants; Mr Barton of Counsel represented Castik Investments Pty Ltd and a number of objectors were represented by Mr Wright QC and Mr Finanzio. Mr Fotheringham another objector represented himself. According to Mr Gould:

"When the application was called on for hearing, Mr Barton made application to substitute plans which contained a number of variations from the plans lodged with the application. Mr Wright QC objected to consideration of those plans and suggested that they had not been circulated prior to the hearing. Mr Barton however said that the plans had been forwarded to Messrs Purcell and Purcell (Mr Wright's instructors) some 10 days beforehand but, apparently, not received.

The matter was stood down to permit consideration of the amendments by the parties.

At the resumed hearing, Mr Wright stated that he considered the application was invalid because it was not accompanied by the various items - site analysis and so on - set out in Clause 21 of the Planning Scheme."

[5] The effect of the submission made by Mr Wright QC and Mr Finanzio was that in the events that had occurred, the Tribunal lacked jurisdiction to proceed to consider the merits of the application for review. Mr Gould adjourned the matter sine die. Despite Clause 66 of the First Schedule to the Victorian Civil and Administrative Tribunal Act 1998 Mr Gould who is not a legally qualified member, did not seek the consent of the parties to determine the legal question raised himself. The Tribunal has been reconstituted pursuant to Section 107 of the Victorian Civil and Administrative Tribunal Act to enable me to determine the question of law whether in the circumstances described, the Tribunal possesses jurisdiction to hear and determine the merits of the planning review application.

[6] Since the effect of Clause 21-2 of the Stonnington Planning Scheme (which is part of the Regional Section) is central to the determination of this question I will set it out in full.

A site analysis must contain a site context plan with a reference number and date which must be to scale and accurately show:

- Any other notable features or characteristics of the site

. The difference in levels between the site and surrounding properties.

. Secluded private open space and habitable room windows on nearby properties which have an outlook to the site, particularly those within 9m of the site.

. Major and significant trees on surrounding properties.

. Location and height of walls built to the boundary of the site.

. The built form, scale and character of surrounding and nearby development, including characteristic fencing and garden styles.

. Street frontage features such as poles, street trees and kerb crossovers.

. Direction and distances to local shops and public transport.

The responsible authority may consider a site context plan which is not drawn to scale provided that it is satisfied that the site context plan accurately incudes all of the requirements as listed in relation to the site and surrounding area.

The responsible authority may waive or reduce the requirements of the site context plan in relation to an application for alterations to -

* a dwelling where two or more dwellings exist on a site,

* an existing dwelling on a lot less than 300 square metres or

if in the opinion of the responsible authority the requirement is not relevant to the evaluation of the application.

A design response to the site analysis must accompany the application. The design response must explain how the development's design:

* Relates to any other dwelling on the site and to surrounding land and development. This must include correctly proportioned street elevations showing the development in the context of adjacent buildings.

* Avoids future management difficulties in areas of common ownership.

* Respects, acknowledges and improves the existing neighbourhood character.

Unless the responsible authority refuses the application under section 52(1A) of the Act, the responsible authority must inform the applicant in writing -

* if notice of the application is not required to be given, before deciding the application,

that the site analysis meets the requirements of this clause and is satisfactory or does not meet the requirements of this clause and is not satisfactory.

The responsible authority must not give notice of the application or decide the application until it is satisfied that the site analysis meets the requirements of this clause and is satisfactory. If the responsible authority decides that the site analysis is not satisfactory, it may require more information from the applicant under Section 54 of the Act.

This requirement applies to an application made to the responsible authority on or after 30 April 1998.

Before deciding on an application, the responsible authority must have regard to the relevant element objectives, criteria and techniques of the Guide (including any local variations to techniques incorporated into the scheme which may replace or add to the techniques in the Guide).

If one or more techniques are not met, a permit may be granted if the proposed use or development meets the relevant objectives and criteria."

[7] A number of objectors were once again represented by Mr Wright QC and Mr Finanzio. Mr Fotheringham once again represented himself but did not seek to make any submission.

[8] Mr Wright submitted that upon the information available to him, the permit application when lodged was not accompanied by either a site analysis or a design response as required by Clause 21-2. He said that his clients could not deny that the information subsequently provided to Council constituted a "site analysis". He submitted however, that the absence of that material "accompanying" the permit application rendered it a nullity. Further, he said that upon his understanding nothing at all purporting to be a "design response" had been lodged in support of the permit application until Mr Barton on behalf of Castik Investments Pty Ltd sought to table such a document at the hearing before Mr Gould.

[9] He submitted that Clause 62 of the First Schedule of the Victorian Civil and Administrative Tribunal Act 1998 which permits the Tribunal in a planning proceeding to "determine a proceeding under a planning enactment despite any failure to comply with a planning enactment or any other enactment" and its progenitors in the repealed Planning Appeals Act 1980 did not extend to excusing non-compliances which rendered the entire application a nullity. He referred to and relied upon my decision in Cook v Melbourne City Council (1998) 1 VPR 41, 47-9 as indicating that requirements such as Clause 21-2 were mandatory and not merely directory and that failure to comply with them rendered the relevant application a nullity. He submitted that his clients' case was a stronger one than the case for nullity in Cook's case. In Cook's case a notice of determination to grant a permit and a permit which issued pursuant to it, were declared void because of failure by the Council to include prescribed information as to review rights on the notice of determination forwarded to one of the objectors. This non-compliance which proved fatal was the responsibility of the Council and not the permit holder who was deprived of his permit. In the present instance, any failure to lodge necessary material with the permit application was the sole fault and responsibility of Castik Investments Pty Ltd.

[10] He submitted that the absence of design response material was fatal in itself. The late provision of site analysis material was also fatal to the validity of the permit application. He referred to dictionary definitions of the verb "accompany" and said it meant that the material referred to had to be with the application at the time that it was lodged. Once Council began consideration of the permit application it "scrambled the egg" and the later addition of the material by way of site analysis could not cure the problem. This was not he said, a case where the material sent to Council by way of permit application had been held in limbo and not accepted for lodgment pending the provision of the further information, so that once its lodgment was completed it was in truth "accompanied" by the site analysis material.

[11] The consequence in Mr Wright's submission was that this proceeding could go no further and Castik Investments Pty Ltd would have to start again with a fresh and valid permit application to the Responsible Authority.

[12] Mr Wright QC was confronted with a letter from Herniman Associates' now said to constitute the "design response" for the first time at the hearing before me. He said he was unable to make meaningful submissions as to whether it in fact met the requirements of design response under the terms of Clause 21-2. He did observe however, that the additional plan lodged with the application in June did not, in his submission, meet the requirements of a site analysis as stipulated in the scheme.

[13] Ms Lane who appeared on behalf of the Responsible Authority, took a materially different position to the one adopted by Mr Verhoeven at the hearing before Mr Gould. Mr Verhoeven it seems conceded that Council did not hold any document which in the circumstances represented the "design response" required by Clause 21-2 of the Scheme, whether lodged with the application initially or subsequently. Ms Lane submitted however, that a letter dated 5 May 1998 from Castik Investments Pty Ltd's architect, Herniman Associates, fulfilled the "design response" requirements. This letter was lodged with the permit application and is headed "Good Design Guide Report". It will be seen from the text of Clause 21-2 quoted earlier that the "design response" must include four matters. She submitted that the letter clearly dealt with three of the four requirements but did not deal with one of them which requires an explanation of how the design "avoids future management difficulties in areas of common ownership". It remained unclear whether the permit application did in truth include any areas of common ownership. There was apparently no application for a permit for subdivision, nevertheless, it seems difficult to fathom how four separate residences could be erected upon a block of land which had previously housed a single residence without some area of common ownership, be it only driveways.

[14] In the circumstances Ms Lane submitted that there is no jurisdictional problem.

[15] Ms Lane said that matters had moved on since the present Clause 21-2 was introduced on 30 May 1998. She said that the Herniman letter which served as a design response was a much less comprehensive document than would characteristically be submitted to a responsible authority today, nevertheless, she adhered to her submission that the letter was sufficient in itself to meet the requirements of the Clause.

[16] Mr Barton on behalf of the permit applicant Castik Investments Pty Ltd submitted that the requirements for a valid permit application were to be found in Section 47 of the Planning and Environment Act and also as a matter of general principle. There was a valid permit application if the permit applicant was identified, the use or development proposed was identified and the land to be used or developed was identified. So long as these factors were present, a valid permit application had been made. Mr Barton submitted that the failure by the Council to make its determination within the time prescribed constituted a deemed decision under Section 4(1)(d) of the Victorian Civil and Administrative Tribunal Act or alternatively a decision under that Act within the meaning of Section 4(1)(a) and (h) and Section 4(2)(d) (these matters were not disputed by any other party). He also observed that the Tribunal's jurisdiction is enlivened even in relation to "a decision that purports to be made under an enactment ...if the decision was beyond the power of the decision-maker". See Section 4(2)(b) of the Victorian Civil and Administrative Tribunal Act. He also referred to the decision of Judge Jones, then President of the Administrative Appeals Tribunal in Traill v Rural City of Wodonga (1989) 3 AATR 107. Mr Barton further submitted that even if there had been a breach of a mandatory requirement under the Scheme, the Tribunal still had jurisdiction to determine the proceeding by virtue of Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act which states that the Tribunal has jurisdiction to determine a proceeding under a planning enactment "despite any failure to comply with the planning enactment or any other enactment". He said the definition of enactment which is contained in Section 3 of the Victorian Civil and Administrative Tribunal Act clearly extends to a planning scheme. Mr Wright QC was disposed to concede this.

[17] In conclusion Mr Barton said that nothing was required beyond the giving of a further notice under Section 55(1) of the Planing and Environment Act 1987 requiring the site context plan and design response to be sent to anybody who wanted to see them. He concluded:

"Even this may be overkill because the applicant was never required to send these documents to anyone other than the Council and they were produced for everyone to see at the hearing. An alternate course may be simply to say that these documents can be inspected [at] Council offices."

[18] The requirements for a valid permit application are set out in Section 47 of the Planning and Environment Act 1987. It requires that the permit application must:

(a) be made to the responsible authority in accordance with the regulations;

(c) be accompanied by the information required by the planning scheme.

[19] It has not been contended by any party that the permit application has been made otherwise than in accordance with the regulations or that it was not accompanied by the prescribed fee. What has been called into question is whether it was accompanied by the information required by the Planning Scheme.

[20] Since I considered a number of the authorities dealing with the question whether a statutory requirement is mandatory or directory at some length in the passages in Cook's case relied upon by Mr Wright, I take the liberty of reproducing a lengthy quotation.

"The more difficult question remains, namely whether the provisions of Section 64 and the regulations prescribing the contents of the Notice of Decision are to be regarded as mandatory or directory. Ideally Parliament would indicate in every case what civil consequences if any were to flow from non-compliance with a statute or regulation. In practice the statute or regulation is frequently silent on the matter. There is no simple or clear formulation which answers this question. Nevertheless, in S.S. Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229, 237-8 Sir Oliver Gillard offered an extended analysis of this question which was specifically approved by Stephen J. (with whose judgment the other members of the High Court of Australia concurred in Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242). Sir Oliver said:

"In order to decide whether legislative provisions are mandatory or directory it would appear that there are certain guides to indicate, that there is no conclusive test to decide into which category legislation may fall. The scope and object of the statute, it is said in the cases, are of primary and possibly of vital importance. Secondly, provisions creating public duties and those conferring private rights or granting powers must be distinguished. The former generally are regarded as directory, whereas the latter are generally accepted as mandatory, particularly where conditions are attached to the exercise of the duty or the power, as the place may be. Thirdly in the absence of an express provision, the intention of the legislature has to be ascertained by weighing the consequences of holding a statute to be directory or imperative. "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect to this duty would cause serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done". Per Privy Council in Montreal Street Railway Co v Normandin [1917] UKPC 2; [1917] AC 170, at p175."

... In the Montreal Street Railway case it appeared that the Sheriff and Prothonotary of the Supreme Court in Canada had failed to comply with the statutory requirements for the preparation and revision of jury lists. As a result it was contended that verdicts recovered in jury trials over many years were invalid. It was in that context that Their Lordships made the statement quoted by Sir Oliver Gillard in the S.S. Constructions case.

In Scurr v Brisbane City Council (1973) 133 CLR, the High Court of Australia held that a proposal by the Brisbane City Council to grant consent to a major retailer for a discount shopping centre was invalid because the advertisement which the Council was required to place did not comply with the relevant statutory requirements. The Court concluded that the statutory provision was mandatory despite the inadequacy being the responsibility of the Council rather than of the applicant for planning consent. The Court was specifically influenced by the express provision prohibiting the Council from considering the development proposal pending the placement of the advertisement. Moreover, the primary objective of the permit and appeal/review system provided for in the Planning and Environment Act is to balance the interests of development proponents against those of potential neighbouring opponents of the development giving the latter a right to be heard both at the initial permit application proceeding and on the review."

[21] Mr Wright contended that there is every reason to accept that the requirement for the provision of the information required by the regulations was mandatory because the material required by Clause 21-2 of the Planning Scheme would assist residents without the skills of professional architects or town planners to perceive the effect of a proposed development upon their area and enable them more easily to envisage what the finished product would look like. That objective would be wholly frustrated if the requirement were treated as being other than mandatory. Performance of the duty of furnishing the information required by the Planning Scheme rests upon applicants. A permit applicant is not in the unfortunate position of the permit holder in Cook's case brought undone by the default of a party, the Council, over which it had no control. The requirements of the Planning Scheme and of Section 47(i1(c) of the Planning and Environment Act are part of an integrated framework of disclosure of development proposals to potential objectors. The integrity of that framework would be subverted if its principal features, including the requirement of disclosure under the Planning Scheme were not treated as mandatory.

[22] It is difficult to accept Mr Wright's contention that both the site analysis and the design response must "accompany" in the sense of be with the permit application at the time of its lodgment. The clause itself states that:

"If the Responsible Authority decides that the site analysis is not satisfactory it may require more information from the applicant under Section 54 of the Act."

[23] This is a clear indication that the permit application may be supplemented after its lodgment. It is not a situation where the permit application is annulled without hope of resuscitation once it is lodged without the additional information. Further, the specific reference to the Responsible Authority's exercising powers under Section 54 of the Planning and Environment Act is a sufficient answer to the suggestion that the Council had somehow acted wrongly in proceeding by making a request under that section, rather than refusing to deal with the permit application in any way at all.

[24] It is unnecessary for me to express a view as to whether the Herniman Associates' letter constitutes a "design response" for the purposes of Clause 21-2 because the plan lodged with Council on the 5th of June 1998 does not seem to be an adequate compliance with the requirement for a site analysis. It does not include details of the "slope" of the subject site nor is there clear identification of "drainage and services" on the site. Ms Lane drew attention to some small arrows which she said were indicative of the existence of drainage lines but this identification is too uncertain for the purpose. In relation to the surrounding areas there are no details of the location and height of walls to the boundary of the site nor is there any clear identification so far as I can make out indicting the difference in levels between the site and surrounding properties, though my attention was drawn to some relatively unintelligible figures which might provide some detail of levels.

[25] Are these matters sufficient to deprive the Tribunal of jurisdiction?

[26] The answer to this question appears more clearly when the various provisions relied upon by the parties are considered in their historical and juridical context. This proceeding is in the Administrative Division of the Tribunal. Its immediate predecessor was the Administrative Appeals Tribunal of Victoria established under the Administrative Appeals Tribunal Act 1984. That Tribunal was modelled on the Commonwealth Tribunal established by the Commonwealth Administrative Appeals Tribunal Act 1975. The Commonwealth Tribunal axiomatically exercises administrative and not judicial power, accordingly it is not subject to Chapter III of the Commonwealth Constitution. Its proceedings are by way of merits review. That is, the Tribunal reviews the original decision in light of the evidence placed before the Tribunal not before the original decision-maker reaches the correct or preferable decision in light of that evidence. What is reviewed is the merits of the decision, not the legal adequacy of the decision making. This form of review stands in contrast to judicial review which has been provided historically by means of superior courts' general declaratory and injunctive powers and under the prerogative writs and now at Commonwealth and State level under special statutes such as the Administrative Decisions (Judicial Review) Act of the Commonwealth. A judicial review does not focus upon the merits of the decision but rather whether the decision-maker has misdirected himself in law, acted without jurisdiction or in excess of jurisdiction etc. The nature of the Commonwealth Tribunal's merits review function was authoritatively reviewed by the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 per Bowen CJ and Deane J, 99 (per Smithers J).

[27] An important issue for a body engaged in merits review of the type described is what powers it has to review a decision or purported decision which upon proper legal analysis is a nullity. Sir Gerard Brennan the inaugural President of the Commonwealth Tribunal considered this issue in Brian Lawlor Automotives Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 and concluded that the Tribunal could review something which operated as a decision in fact despite it being legally a nullity. Judge Jones, as President of the Victorian Tribunal, followed the Brian Lawlor case in Traill v Rural City of Wodonga (1989) 3 AATR 107.

[28] The Commonwealth Tribunal is not a primary decision-maker, therefore it can only review matters which have been the subject of a reviewable decision by a primary decision-maker. See Lawlor's case (1978) 1 ALD 167, 175; Re Tradigrain Pty Ltd and Export Development Grants Board (No. 1) (1984) 6 ALD 442; Hospital Benefit Fund of Western Australia Inc. v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 111 ALR 1, 11; Flick, Federal Administrative Law paragraph [1416/1] (Release 58). It follows that an applicant before the Commonwealth Tribunal if seeking some form of administrative approval could only seek approval from the Commonwealth Tribunal of the very same proposal put to the initial decision-maker. If the proposal was in any way varied it would not have been the subject of a decision by an initial decision-maker and therefore the Commonwealth Tribunal would have no jurisdiction to deal with it.

[29] The descent of the planning jurisdiction to the Planning List of this Tribunal is not as direct and simple as the foregoing analysis would suggest. The history already narrated is an accurate account of the jurisdiction now exercised by this Tribunal's General List. Merits review of planning decisions by tribunals was first introduced into Victoria under the Town and Country Planning Act 1961 with the establishment of the Town Planning Appeals Board. In 1980 a body known as the Planning Appeals Board was established by the Planning Appeals Board Act 1980 (renamed in 1987 the Planning Appeals Act 1980). The Board was incorporated into the former Victorian Administrative Appeals Tribunal by the Planning Appeals (Amendment) Act 1987.

[30] The ordinary planning jurisdiction of the Victorian Administrative Appeals Tribunal generally resembled the merits review model established by the Commonwealth Tribunal and considered in Drake's case but the resemblance was not complete. Speed of disposition is essential in planning matters. The property development industry is notoriously subject to cyclical market movements and burdensome holding costs. A relatively minor amendment to a development proposal might lead to the withdrawal of an objection at the Tribunal stage or permit the Tribunal to grant a permit which would not otherwise be forthcoming. Unless the Tribunal is granted jurisdiction to consider the proposal as varied, any variation would have required the entire process to recommence from the point of permit application to the responsible authority. So Section 53 of the Planning Appeals Act permitted the Tribunal to amend the permit application "upon such terms as to the giving or publication of notice of the amended application (including the giving of notice to the responsible authority) or otherwise as the Tribunal" thought just. It was always a difficult question to determine whether a particular amendment amounted to a complete "transformation" of the proposal, in which case the amendment would generally not be permitted.

[31] A further issue particular to the planning jurisdiction is non-compliance. The procedural regime for the making of planning permit applications, their advertisement, the giving of notices of determination etc. is elaborate. Justice and convenience may require that a party be relieved from non-compliance with that regime, either absolutely or subject to conditions, otherwise non-compliances may once again require the process to be recommenced from the start leading to delay inconvenience and expense without any ultimate improvement to the planning outcome. Hence Section 54 of the Planning Appeals Act authorised the Tribunal to disregard failures in compliance subject to specific powers to direct the giving of further notices and an ability to permit persons having a material interest in the outcome to be heard on the subject.

[32] Section 54 could not operate unless there was a valid proceeding in the Tribunal. Urban Land Authority v Shire of Mornington (unreported 12 August 1988); for instance because the purported appellant, being an unincorporated association was neither a natural or a legal person and therefore not competent to bring proceedings. Pentaco Oil (Aust) Pty Ltd v Dingley Village Community Association (1997) 12 VAR 193. Care needs to be taken with earlier authorities as to Section 54. It was materially amended in 1991.

[33] These provisions have their analogues for this Tribunal in Clause 62 (disregard of failures to comply) and 64 (amendments of applications) in Schedule 1 to the Victorian Civil and Administrative Tribunal Act.

[34] After this lengthy excursus I now consider the correctness of Mr Wright's submission that Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act empowering the Tribunal to disregard failures to comply has no application unless there has been a valid, as distinct from null, permit application. When the Council failed to make a determination within the prescribed period, there was a deemed decision which could be reviewed under the Victorian Civil and Administrative Tribunal Act. See Section 4(2)(d). By virtue of Section 4(2)(b) if it be the fact that Council had no power to deal with or consider the permit application, Council's lack of power did not deprive its deemed decision of the character of a reviewable decision. See section 4(2)b of the Victorian Civil and Administrative Tribunal Act which provides that a decision purporting to be made under an enabling enactment "is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision-maker". Accordingly, even if there was no valid application before Council, that does not mean that there is not a valid application before the Tribunal. If that is so, on the face of it, Clause 62 is applicable. It is worth considering the words of the clause itself which is in the following terms:

"The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so."

[35] There is nothing in the text of Clause 62 which would restrict its operation to those failures in compliance falling short of rendering the relevant permit application a nullity. It is unnecessary to determine whether this application to the Responsible Authority was a nullity. The power under Clause 62 appears on its face wide enough to be exercisable in relation to null applications to Council as well as the merely irregular - if the interests of justice so require.

[36] My own research discloses that this approach accords with the view taken of the operation of Clause 62's predecessor Section 54 of the Planning Appeals Act 1980. In Geelong Regional Commission v City of Geelong (1989) 2 AATR 304, 317 Mr Barton, Deputy President, rejected an argument by Mr Wright that "Section 54 was not available to cure invalidity" [of a permit application] In Bourakis and Associates v City of Hobsons Bay (1995) 16 AATR 50 Mr Byard resorted to Section 54 to disregard the failure of an applicant to provide a site analysis. In that case the requirement was introduced by transitional provisions after lodgment of the application and the application was not a nullity when lodged. In 24th Klingon Pty Ltd v Shire of Bachus Marsh (1993) 11 AATR 227, 233 the Administrative Appeals Tribunal accepted

"that once a planning scheme has been amended, and institutes a referral procedure, any application made but not determined cannot ever be rectified. Mr Wright was putting that all applicants in that position are pursuing something invalid."

but nevertheless resorted to Section 54. Mr Byard in Shire of Mount Alexander v G. Duss [1997] VCAT 160; (1997) 18 AATR 247, 258 rejected the argument that Section 54 could not be used to cure defects rendering the instituting application invalid. He referred to earlier Tribunal decisions and said

"People still raise the objection that s.54 is only available to remedy defects that are found in the running of a valid appeal arising from a valid application and cannot be used where the initial application was invalid ..."

[37] There seems to be no reason why, subject to the further direction which I will make, that it is not in the interests of justice to proceed to hear and determine the planning merits of Castik Investments' proposal as long as the material required by the Planning Scheme is made available to the parties for their consideration and to any other person whose interests in accordance with the principles laid down by Section 52 of the Planning and Environment Act 1987 would be regarded as affected. Section 98(1)(d) of the Victorian Civil and Administrative Tribunal Act obliges this Tribunal to proceed with as much speed as possible consistent with procedural fairness and proper adjudication. This objective would scarcely be achieved by needlessly sending this application back to scratch requiring a new permit application to the Council. If the provision of further material at this stage brings forth further opponents to the development proposal they could seek joinder as parties pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act.

[38] Mr Wright observed that no reference was made to Clause 62 in my decision in Cook's case. The simplest explanation for that is that no party (and in particular the permit holder whose permit was declared invalid) sought to rely upon it. Nevertheless, this lack of reliance, whether deliberate or inadvertent, was appropriate. In addition to the merits review jurisdiction already described, by means of which successive Boards and Tribunals have reviewed the merits of determinations to issue or refuse to issue permits for use and development of land, the Administrative Appeals Tribunal and now this Tribunal has had a declaratory jurisdiction. The origin of that declaratory jurisdiction was to be found in the revised version of Section 14 of the Planning Appeals Act which was introduced simultaneously with the merger of the Planning Appeals Board and the Administrative Appeals Tribunal. The purpose of this jurisdiction was, together with other statutory measures, to establish the Planning Division of the Administrative Appeals Tribunal as a "one stop shop" in land law matters. The passages from the Minister's Second Reading Speech in support of the proposed legislation are quoted in the decision of Judge Jones in State Transport Authority v Rural City of Wodonga (1989) 2 AATR 175, 181-2. Another part of the package of legislation was a restriction upon the jurisdiction of the Supreme Court to deal with matters which could be the subject of the Administrative Appeals Tribunal's declaratory jurisdiction under Section 14 of the Planning Appeals Act (Section 66A of the Planning Appeals Act). These measures derived from widespread public disquiet as to the expense and delay involved in the notorious Doug Wade litigation however, extensions to a terrace house in Parkville [1985] VicRp 48; [1985] VR 433. In the event, the jurisdiction proved to be far extensive than Judge Jones had concluded it was in the State Transport Authority case. See the decision of Ashley J in the Supreme Court in Kantor v Murrindindi Shire Council and Metrovski (1997) 18 AATR 285, 299. A somewhat more extended form of the declaratory power is now to be found in Section 149B of the Planning and Environment Act 1987 bestowing the jurisdiction upon this Tribunal. There is a similar jurisdiction to be found in Section 185AA of the Local Government Act 1989 empowering the Tribunal to make declarations as to the validity of special rate and special charge schemes. The present jurisdictions bestowed on this Tribunal and its predecessor the Administrative Appeals Tribunal were exercisable solely by presidential members. In their form they represent the declaration of existing legal rights, not a process of merits review at all. The history of these provisions demonstrates that they were intended to move determinations of legal right in planning matters to the relevant planning tribunal rather than the courts. That is, the provisions are concerned solely with issues of venue not to change the substantive law against which rights were to be determined. Accordingly, provisions such as Section 54 of the Planning Appeals Act and now Clause 62, could never have been intended to permit this Tribunal or the Administrative Appeals Tribunal in declaration proceedings, to disregard the substantive law. Even if I were wrong and as a matter of statutory construction these provisions could be regarded as applicable to the declaratory jurisdiction, it is difficult to see how it would ever be in the interests of justice, to deprive a party of a legal right based upon non-compliance with a mandatory requirement of a statute which could be asserted in court merely because the matter was being heard in a tribunal. Tribunals are expected to bring a more relaxed attitude to procedural matters but not to play fast and loose with the substantive law or procedural fairness. Even if all this were wrong and Clause 62 applied and in declaratory proceedings it could be regarded as appropriate to disregard non-compliance with mandatory statutory requirements, I would nevertheless in Cook's case have declined to exercise the power granted by Clause 62 because it would not have been in the interests of justice to have disregarded the statutory non-compliance. In concurrent proceedings between the same parties, a differently constituted Tribunal concluded that the substantive planning merits pointed against the grant of the permit which the Council had purportedly granted. It was only by declaring that permit void that the Tribunal was enabled to deal with the substantive planning merits and direct that no permit issue pursuant to a second notice of determination which the Council had made.

[39] None of the matters relied upon by Mr Wright QC and Mr Finanzio deprives the Tribunal of jurisdiction to hear and determine this proceeding. The actual or alleged non-compliances with Clause 21-2 of the Stonnington Planning Scheme should be disregarded. Unlike Section 54 of the Planning Appeals Act, Clause 62 does not give specific power to direct the giving of further notices to interested parties or potentially interests parties, nevertheless the general power to give directions granted by Section 80 of the Victorian Civil and Administrative Tribunal Act and to regulate procedure under Section 98(3) of the Victorian Civil and Administrative Tribunal Act give ample power to give such direction. Accordingly, I will grant leave to the applicant to file and serve a further and better site analysis and design response in support of its application and further direct that those documents be served upon the owners and occupiers of all lots adjoining 17 Talbot Crescent, Kooyong, in so far as such owners and occupiers are not parties to this proceeding. The proceeding is adjourned for further hearing on a date to be fixed before Mr Gould.