Country Endeavours Pty Ltd v Baw Baw SC [2009] VCAT 2086

1. The further preliminary hearing and directions hearing in relation to these cases is adjourned to 10 am on Friday 20 November 2009 when 2 hours have been allocated for the hearing.
2. An administrative mention is appointed for 16 October 2009 on the basis that the requestor company must, by close of business on that day, advise the Registrar of the tribunal and the other parties in writing as to whether it is proposed to continue with these proceedings.
3. If these matters are to proceed then the requestor company must, by close of business on Friday 30 October file with the Tribunal and serve on the other parties an amended request specifying which of the three grounds so far referred to are to be relied on specifying any material misstatement or concealment of fact being relied upon, any breach of condition being relied upon and any alleged material mistake in relation to the grant of the permit, clearly identifying the material facts, conditions or mistakes and giving particulars thereof including why the same are said to be sufficiently material to warrant cancellation or to have caused or possibly caused a different determination by the tribunal in its decision to grant a permit.
4. In the event of such amended request being filed, the respondents are to file with the tribunal and serve on the other parties a statement in writing to be filed and served by close of business on Friday 6 November 2009 as to whether they intend to proceed with the application under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 for dismissal of these proceedings, such written statement to set out the grounds to be relied upon.

Mr Andrew Walker, barrister, appeared on the instructions of his client for the requestor company Country Endeavours Pty Ltd.

Mr Peter McWhinney, town planner of the Shire of Baw Baw, appeared for the responsible authority.

Mr T Sowden, barrister appeared on the instructions of Ken Smith & Associates, solicitors, for the respondent company Casacir Pty Ltd and also for David Jeffrey and Thomas Curnow who are directors of that company.

Application under s 93 of the Planning and Environment Act 1987 for an Interim Stop Development Order.

Request for cancellation of planning permit PLA 0010/07 issued by the responsible authority on 3 March 2009 at the direction of the Victorian Civil and Administrative Tribunal in its determination of the case of Giles and Others v Baw Baw SC and Casacir Pty Ltd[1].

1. These cases were before me on an urgent application from an interim stop order at 12 noon on Friday 18 September 2009. I declined to make a stop order for reasons given in a written determination arising from that hearing dated 21 September 2009. In those written reasons I referred to a number of problems, as I perceived them at that time, in relation to the proceeding.
2. I conducted a further hearing at 10 am on Friday 25 September 2009. I note that the parties had received copies of my previous interim decision prior to that hearing.
3. I also note that the responsible authority had, in the meantime, submitted a statement of grounds. It was confirmed to me that copies of that statement of grounds had been provided to the other parties although the need to include a note to that effect on the document had been overlooked.
4. A similar situation arose in relation to a statement of grounds submitted on behalf of the respondents. Again, it was confirmed that that statement had been provided to the other parties.
5. On 25 September 2009 Mr Andrew Walker, barrister, appeared on the instructions of his client for the requestor company Country Endeavours Pty Ltd. He said that he had only received instructions on the Wednesday before the Friday, and that he needed more time to investigate the matter. He sought an opportunity to take full instructions and to prepare an amended request setting out the grounds relied upon, identifying any alleged material mistake in relation to the grant of a permit, material misstatement or concealment in relation to the application for the permit and any conditions that might ultimately be relied upon in relation to s 87 (1)(b) of the Planning and Environment Act 1987 (PE Act). He also said that he had noted my remarks in relation to the possible relevance of an enforcement application under s 114 of the PE Act. As to that, I mentioned that I had referred to enforcement proceedings as possibly being the appropriate approach if there really were problems in relation to contraventions of conditions. In that connection, I noted that there could be a distinction between works undertaken for the purpose of complying with conditions and works utilising the permission granted in relation to which it might be or have been necessary to comply with conditions.
6. Mr Sowden, on behalf of the respondents, said he had instructions to apply for the current proceedings to be dismissed pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). However, he appreciated that I might be minded to give the requestor an opportunity to reformulate the request.
7. As to that, I remarked that I was not really able to say, at this stage, as to whether the requestor company had an arguable case or not. Part of the reason that the basis of the proceeding needed to be clarified was, not only to give the parties and the tribunal an understanding of the basis of the claim, and of the case that the respondents would be called upon to answer, but also to appreciate whether there really was a case or not.
8. Mr Sowden also indicated that his clients were minded to seek an order for costs in relation to the hearing on 18 September 2009.
9. Mr McWhinney, on behalf of the responsible authority, did not oppose the granting of an opportunity to the requestor company to discern whether in fact it had a case, and to formulate and particularise it in the event that the matter was to proceed.
10. I indicated that I would afford to Mr Walker the opportunity sought. I said that I considered that he should indicate within 14 days whether the case was to proceed. He asked for this to be extended and I increased it to 21 days. He said this was on account of the volume of material that he would need to consider.
11. The idea then is that he will advise the tribunal and the other parties in writing by close of business on 16 October 2009 whether this case is to proceed. I think the convenient way of arranging for this is to appoint that date for an administrative mention. That does not mean that the parties need to attend on that day, but rather that the requestor company is to indicate in writing by that date to the tribunal and to the other parties whether or not the case is proceeding.
12. In the event that it is proceeding, the requestor has leave to file and serve an amended request. Such request is to specify which grounds under s 87 (1) are being relied upon of the three currently specified, and whether any and which of those grounds are not now going to be relied upon. There is a need for any alleged material misstatement of fact or concealment of fact in relation to the permit application to be identified with particulars as to why this is said to be material and why it is so relevant that it might have made a difference as to whether the permit was granted in the first place. Similarly, in relation to any allegation of there having been a material mistake in relation to the grant of the permit, such mistake or mistakes need to be clearly identified with particulars as to why this means that they are material so as to have effected or potentially effected the decision made by the tribunal.
13. It is also necessary to identify whether and which conditions are said to be contravened and why they are being relied upon as a basis for cancellation as opposed to, for example, an enforcement application. In this connection, I referred to the decision of the Administrative Appeals Tribunal in City of Springvale v Kydas[2].
14. Mr Walker had indicated a willingness to give particulars by which I take him to mean particulars of the material facts to be relied upon to establish the ground or grounds ultimately to be relied upon. Any such amended request is to be filed and served by 30 October 2009 after which the respondents have 7 days to indicate whether they propose to persist with an application under s 75 VCAT Act for dismissal of the proceeding. Such indication should be in writing, filed with the tribunal and served on the other parties and should specify the grounds upon which such dismissal is being sought.
15. A further hearing is fixed for 10 am on Friday 20 November 2009 when 2 hours have been allocated to consider such a dismissal application if it is to be pursued and to give any necessary further directions in relation to the future conduct of the case.
16. I indicated that I would not make an order on 25 September in relation to the costs of the respondents incurred in relation to the appearance on 18 September 2009, but on the basis that it is the respondents costs on that date and not costs generally, that are being reserved. I also reserve the costs in relation to the hearing on 25 September 2009.

[1] [2009] VCAT 61

[2] (1990) 4 AATR 317 also referred to in the case notes to the Planning and Environment Service - Victoria published by Butterworths at [5.60.3.2] and [5.60.26] and the annotations to s 87 PE Act found at [10,035.25] in that work.