Victorian Civil and Administrative Tribunal|2010-06-01

Country Endeavours Pty Ltd v Baw Baw SC (No 5) [2010] VCAT 1199 (1 June 2010)

Country Endeavours Pty Ltd v Baw Baw SC (No 5) [2010] VCAT 1199

...and reserved costs in relation to the hearing on 18 September 2009 on an application under s 93 of the Planning and Environment Act 1987 which application was allocated tribunal number P2256/2009.

The hearing of enforcement application P2943/2009 is now fixed to commence at 10 am on Monday 22 November 2010 with five days allocated for the hearing.
A preliminary hearing in relation to enforcement application P2943/2009 is fixed to commence at 10 am on Wednesday 8 September 2010 when 3 hours have been allocated. The purpose of the hearing is to consider:
1. whether further parties should be joined to the proceeding, and
2. whether security for costs should be required of the applicant or applicants.
Enforcement application P2943/2009 is referred for mediation to be conducted commencing at 10 am on Tuesday 24 August 2010.

Request by Country Endeavours Pty Ltd for cancellation of Planning Permit PLA 0017/07 issued by the responsible authority on 3 March 2009 at the direction of this tribunal in its determination of the case of Giles & Others v Baw Baw SC & Casacir Pty Ltd.[1]

Application by Country Endeavours Pty Ltd under Section 114 of the Planning and Environment Act 1987 for an enforcement order.

Application by Country Endeavours Pty Ltd under Section 305A of the Water Act for declarations.

On 12 February 2010, I conducted a hearing in relation to these cases and gave a written interim determination with some orders dated 5 March 2010. The solicitors acting for the respondent Casacir Pty Ltd have sought a correcting order pursuant to s 119 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). This is on the basis that they suggest an accidental slip or error has occurred in the framing of the orders. The first order made in that document of 5 March 2010 read:
1. By consent leave is given for withdrawal of proceeding P2421/2009 and it is withdrawn pursuant to that leave.
The solicitors suggest that the proceeding being withdrawn by consent was P2256/2009. They are correct in that respect.
A degree of confusion has arisen. That case, for which leave to withdraw was given, was a request under s 87 of the Planning and Environment Act 1987 (PE Act) for cancellation of a planning permit. However, an application (which I heard) was made on 18 September 2009 for an urgent stop development order pursuant to s 93 PE Act. Such an application might be regarded as an ancillary application in relation to the principal proceeding namely the request under s 87. In fact, s 92, which authorises stop development orders, appears to contemplate the prior existence of request proceedings under s 87. In those circumstances there would only be one tribunal proceeding number, that being the one relating to the s 87 request.
However, in this case it appears that the application under s 92 was made before the s 87 request was filed with the tribunal. The tribunal gave the s 92 application the tribunal number P2421/2009. The s 87 request was subsequently given the number P2256/2009. The later number is a higher one than the former which would indicate that it was registered with the tribunal after the former.
The result has been that the tribunal has two files relating to the s 87 request proceeding, each with its own tribunal number.
The solicitors have pointed out, quite correctly, that the urgent application under s 93, heard on 18 September 2009, was refused and finalised (apart from reserved costs) as a result of that hearing as recorded in orders made in an interim determination dated 21 September 2009. The only aspect of the s 93 urgent application remaining after 21 September 2009 was the question of the costs in respect of the hearing on 18 September 2009, such costs having been reserved.
The s 87 request proceeding came to an end upon the hearing of 12 February 2010. Leave to withdraw the proceeding was granted by consent. However, when it came to recording this matter in the first order of 5 March 2010, a slip was made in the first order by referring to proceeding P2421/2009 (the urgent s 93 application) rather than P2256/2009 being the number relating to the s 87 request. Correspondence from Country Endeavours Pty Ltd agrees this is a slip that should be corrected.
It is an obvious slip and I will make an order to correct it.
During the hearing of 5 March 2010, there was argument as to the question of costs in relation to the s 87 request. The arguments were dealt with in the reasons attached to the document of 5 March 2010. The question of costs was dealt with in the second order in that document. That order was, of course, intended to relate to the s 87 request proceeding. An order was made for various costs including reserved costs. At the time of making that order I was regarding the costs reserved in relation to 18 September 2009 as being part of the reserve costs in relation to the s 87 request proceeding. They were intended to be included in the expression "including reserved costs" where that phrase appears in the order. However, to avoid any doubt, I will make the matter clear by amending the order to add, after that phrase, the following words:

...and reserved costs in relation to the hearing on 18 September 2009 on an application under s 93 of the Planning and Environment Act 1987 which application was allocated tribunal number P2256/2009.

Six orders were made and appear in the document of 5 March 2010. At the conclusion of the giving of those orders, only one proceeding then remained on foot before the planning and environment list of the tribunal. That remaining proceeding was an application by Country Endeavours Pty Ltd seeking an enforcement order under s 114 of the PE Act. That proceeding is P2943/2009.
The sixth order of 5 March 2010 fixed a hearing for the enforcement order application to commence on Tuesday 15 June 2010 with five days allocated. This date has proved inconvenient to two of the parties and remaining parties are prepared to consent to an adjournment. However, difficulties arise in relation to fixing a new date suitable to the parties and to the tribunal. Although the tribunal could accommodate the hearing on 15 June and on some other dates thereafter, the parties are now seeking 8 September 2010 which is unsuitable from the point of view of the tribunal. The next date convenient to the tribunal will be 22 November 2010. The hearing of the case has been fixed to start at 10 am on that day with five days allocated, and with two members to sit on the matter.

The solicitors for Casacir Pty Ltd have sought a further preliminary hearing in relation to the enforcement application. The matters that are sought to be dealt with at that hearing are:
1. whether or not further parties should be joined to the proceeding, and
2. whether the applicant (or applicants if new ones are added) should be required to provide security for costs.
A question has been raised as to whether the West Gippsland Catchment Management Authority should or would want to be joined as a party. Correspondence on behalf of that authority has been received indicating that it does not wish to become a party.
On the other hand, correspondence dated 5 March 2010 has been received from the Department of Primary Industry stating that it does want to be joined.
It has been intimated on behalf of the responsible authority that it does not regard itself as being a party to the enforcement application and that it does not wish to become a party. It is certainly normal that a responsible authority attends and participates in such a hearing, if for no other reason than to provide information or documents from its file that might be relevant. Furthermore, s 115 (1)(a) PE Act requires that notice of such an application be given to the responsible authority and s 117 (1)(a) requires that the responsible authority be given notice of the hearing and a chance to be heard or to make written submissions. Accordingly, the responsible authority must remain on the list of persons or parties to be given notice of the hearing.
The solicitors for Casacir Pty Ltd also wish to have John David Giles, Virginia Anne Giles and Shapher Pty Ltd joined as applicants for the enforcement proceeding. That company, along with Country Endeavours Pty Ltd, is associated with Mr and Mrs Giles.
The other matter which the solicitors for Casacir Pty Ltd wish to have dealt with at the preliminary hearing is an application that those two companies and Mr and Mrs Giles be ordered to give security for costs in relation to the proceeding and that, failing such security being given, the application should be dismissed.
The solicitors suggested that security should be ordered to be given by 31 May 2010. That was no doubt in anticipation of the full hearing proceeding on 15 June 2010. As matters now stand the full hearing will not proceed on that date and is delayed so that urgency in relation to the proposed preliminary hearing is relieved.
The preliminary hearing is now appointed for 10 am on Wednesday 8 September 2010 with three hours allocated. Although the tribunal cannot accommodate a five day hearing commencing at that time, a three hour hearing on that day can proceed. The date has been chosen on the basis of indications by other parties that they and their representatives can be available at that time.

In a letter dated 14 April 2010 on the letterhead of Country Endeavours Pty Ltd referring to orders of 5 March 2009 there is a paragraph that reads:

The final paragraph should read P3041/2009, not P3241/2009.

I have been unable to identify which "final paragraph" is being referred to.

In that letter, there is a suggestion that there should be a mediation in relation to this case although the suggestion is accompanied by a statement that the respondent or respondents do not agree with the suggestion. Nevertheless, it does appear that it would be of considerable advantage to everybody if this matter could be resolved without the trouble and expense of a five day hearing. I do feel some concern about the time, trouble and expense that has been and appears likely to be consumed in relation to disputes arising from the proposed reopening of the Casacir Pty Ltd quarry and the series of proceedings that have been or may be commenced in relation there to. I will refer the matter for mediation. I will not myself be involved in any such mediation, and neither will the member who is to sit with me if the full hearing proceeds.

Civil and Administrative Tribunal Act 1998

Country Endeavours Pty Ltd v Baw Baw SC

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Country Endeavours Pty Ltd v Baw Baw SC (No 5) [2010] VCAT 1199 (1 June 2010)

Country Endeavours Pty Ltd v Baw Baw SC (No 5) [2010] VCAT 1199 (1 June 2010)

Parties

Legislation Cited (1)