1. Mrs Giles seeks to review the decision to grant the licence. To do so she claims to have an interest in the subject matter of that application. The legislation does not grant her such a right. It does not exclude the possibility of her being given notice or having an opportunity of making a submission, but those possibilities are not rights that she can legally insist upon. Of course, if she does not know of an application she will not have any practical opportunity to make a submission in relation to it, or to review a decision made in relation to that application. The W Act deals with these matters, in relation to works licences, in s 65. Section 65 (1)(a) specifically says that s 65 applies to an application for a licence under s 67 to construct works. Subsections (2) and (3) of s 65 read as follows:

(2) The Minister may[2] require an applicant to give notice of an application to which this section applies in any manner specified by the Minister.

(3) A notice given under subsection (2) may[3] invite submissions on the application to be made in the manner specified in the notice within the period specified in the notice.

1. I have already noted that for the word "Minister" we can here read "authority".
2. Section 65 gives the Authority a discretion as to whether to require notice to be given and a further discretion as to whether to invite submissions. None of this creates a right. Although the Authority may determine to do both those things, it may equally determine to do neither of them. I am aware of another case[4] where it appears that some criticism is made of this discretion or the absence of a right or the absence of procedural requirements to give people notice. I do not question that such things might be appropriate or necessary in the circumstances of some particular cases, and I am not questioning that it would be appropriate in the previous case I have in mind. However, I am not criticizing the existence of a discretion in general terms, or in relation to the circumstances of this present case.
3. It appears to me that there can well be applications for licences that are so specific, minor or limited in their impact as not to require the giving of notice or the calling for submissions. Even when such notice or calls are given, the Authority would need to decide how widely and in what style notice was appropriate.
4. It seems to me that the discretion is appropriate because it is easy to imagine cases where notice and submissions would not be warranted. In any event, that is what the law provides.
5. Furthermore, the time for deciding whether notice is to be given is when an application is received. Any reconsideration has to be as at that time, and not in the light of further developments that may or may not emerge or become known at a later stage.
6. The decision on whether to give notice is an administrative discretion. It is a discretion in the Authority. A court or this tribunal will not interfere with or overrule that discretion unless it is exercised in a way that is invalid. There are possible ways in which it could be invalid. For example, if it was made in contravention of the law, or for an ulterior motive, or by taking into account considerations that were irrelevant, or failing to take into consideration matters that were relevant. One way in which some such error, which amounts to an error of law, will be presumed is if the Authority makes a decision that is so unreasonable that no authority exercising the relevant power could have come to the decision this authority came to in its determination of the question. This degree of unreasonableness is often referred to as "Wednesbury unreasonableness" because of the formulation of this notion in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation[5]. The discretion will not be interfered with by a court or this tribunal just because the court or tribunal may have come to a different decision on the point in the circumstances. Wednesday unreasonableness is of a much higher order than that. It might be said to be something like impossibly unreasonable in that no reasonable authority could have come to that conclusion.
7. In this case, the Authority had Casacir's application which defined the extent of the works for which a licence was being sought. Those works were limited to the piped culvert. As it happens, it also had the opportunity to inspect such works already constructed and in operation. However, even without that advantage, I do not suppose that the Authority would have had any difficulty in coming to the conclusion that no notice or invitation to submit was warranted in this case, either to Mrs Giles or Country Endeavours or anybody else.
8. One of the respondents has referred in this connection to the presumption of regularity. This is a presumption of law that an official act which appears, on its face, to have been carried out regularly will be presumed to have been carried out regularly and in accordance with the law in the absence of any evidence to the contrary. Regular performance of the duties under s 65 and exercise of the discretion under s 65 calls upon the Authority to consider the application and whether notice and an invitation to submit is necessary. In this case, it is presumed that it had proper regard to relevant considerations and concluded that notice should not be given.
9. I find no evidence to rebut the presumption of a regular carrying out and exercise of those duties and this discretion. On the contrary, having regard to the limited nature and the circumstances of the application, I find it entirely unsurprising, and indeed reasonable, for the Authority to have decided not to require the giving of notice to Mrs Giles, Country Endeavours of anyone else.
10. The effect of this is that no third parties were given notice or had the opportunity to submit or to apply for a review. I find this, in the circumstances of this case, to be in accordance with the intention of the legislation. It does not necessarily mean that a decision or failure to give notice would be appropriate in relation to all other licence applications or other applications that might subsequently be necessary.

1. Bearing in mind what is involved in an application for an extension of time under s 126, that is sufficient to dispose of this immediate application. I say this bearing in mind the various tests and considerations that have been pointed to in the previous decisions[6] that were cited to me in the course of the hearing and that are mentioned in the annotations to s 126 and case notes in relation thereto at [8.15] in Planning and Environment Victoria[7]. I do not wish to present a long treatise here on the relevant considerations, but a number of those cases indicate that there is an onus on the applicant for an extension of time to establish a case for such an extension. It is not available just for the asking. Time limits are expected to be observed. Indeed, the proper working of the law and the administration of the tribunal depend upon that being done. This does not mean that there cannot be an extension, where the interests of justice call for that, but it should be available only where there is at least a strongly arguable case or a substantial basis for supposing that the decision was not correct and that the extension will not prejudice others. It has been said that there must be a very good reason to extend time, that it should not be done lightly and that the tribunal should be strongly of the opinion the time should be extended[8]. A number of relevant considerations have been identified in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment[9] and Reynolds v Macedon Ranges SC[10]. As to one of those criteria, it is to be understood in the light of the decision of the Supreme Court of Victoria in Dix v Crimes Compensation Tribunal[11]. I do not wish to discuss all the criteria listed in those cases, but I note that the reason for delay in making the application is relevant and that the question of whether the review has any real change of success is important together with considerations of fairness and prejudice to others. In Dingley Village Neighbourhood Centre Inc v Kingston CC[12] I considered these matters. Amongst other things I said:

Time limits are expected to be observed. They facilitate the timely conduct of the business of the court or tribunal. A party obtaining benefit from the failure of another to observe the time limit is able to retain that benefit unless the discretion to extend is exercised in favour of the defaulter. The grant of an extension is not automatic.

Should time to commence proposed proceeding be extended?

1. It is true that the failure to give notice excluded Mrs Giles and Country Endeavours from an opportunity to submit or review, but I consider that the not giving of that notice at the time and in the circumstances, and having regard to the limited and specific nature of the licence being sought, was appropriate.
2. The Country Endeavours grievance does not really relate to the licence or the culvert at all. Photographs produced at the hearing show the water flowing out of the end of the culvert pipe on its downstream side. The end of the pipe is the downstream end of the works for which the licence was granted and the downstream end of the scope of the licence. What might happen to the water after it leaves the pipe is another matter and may or may not give rise to legitimate grievances or be the occasion for other remedies.
3. Country Endeavours grievance is that the flow of water from the spring to its land has been diverted downstream of the end of the pipe so that it is denied the benefit of that water for stock and domestic purposes. It is said that, instead of continuing as a surface flow onto the Country Endeavour land it now disappears underground downstream of the pipe outlet. This allegation is denied by Casacir. Whatever the truth might be, it is, in my opinion, a matter for other proceedings and not this proposed one for which a time extension is sought.
4. As a matter of fact, in accordance with indications given to me at the hearing, such other proceedings under s 19 W Act have already been commenced in the Real Property List of this tribunal. The tribunal under that and related sections has power, where appropriate, to provide remedies in relation to unreasonable interference with the flow of water from one property to another.
5. In my opinion, it is the question of the flow of the water onto the Country Endeavours land that provides the only legitimate concern for Country Endeavours at this stage. That sums up the concerns expressed by Mrs Giles in her wide ranging affidavit in paragraph 28 except for subparagraph "e" thereof. Without going into details, I observe that "e" is wide ranging, speculative and does not really amount to an arguable basis for reasonable concern in relation to the culvert.

1. At the hearing, I pointed out that, if the flow from the spring really was being lost at some point downstream of the pipe outlet by it disappearing underground, it would appear that such a problem should be susceptible of a fairly simple and inexpensive civil engineering remedy. In fact, I suggested that Casacir might like to review the situation and consider whether it might give effect to such a remedy so as to circumvent this dispute, and possibly others such as that under s 19. If the water is now disappearing into a hole rather than proceeding south towards the Country Endeavours land, it should be possible to stop the hole so that the flow is resumed.
2. Be that as it may, if that was a genuine concern, Country Endeavours might have asked Casacir to remedy the alleged problem rather than pursuing an application for an extension of time to commence further proceedings. Of course, failure to do that may be because it was not thought of, rather than arising from a desire to open a new front in the disputes between Casacir and Country Endeavours in relation to the quarry. I have expressed some concern about the proliferating proceedings being commenced in relation to that dispute during and since September last year. Of course, that does not mean that each particular one of them has to be considered on its merits, including legal merits. However, if the idea of a practical solution to the alleged diversion had not been thought of at the time this current application was conceived of, it has been thought of now. If it has not been given serious consideration, I think it should receive such consideration.

1. I do not consider that the proposed application for review, if time for commencement was extended, would have any reasonable prospect of success, much less a strong case. When consideration is given to the limited scope and purpose for which a licence was sought, and the limited ramifications of granting a licence for that limited purpose, I do not think that any basis is apparent for a result other than a confirmation of the issue of the licence. I do not think that any prima facie case for a contrary decision has been made out. The case that has been argued is based on a mistake that has supposed a connection between the licence and the grievance complained of. If there is a genuine grievance, its remedy must be pursued by means other than the contemplated review for which an extension of time is sought.
2. I consider that an extension of time would be prejudicial to Casacir. Delay and expense that would be consequent simply upon a review is not, in my view, a prejudice of the sort that should prevent an extension of time. However, here Casacir not only has the benefit of the licence granted to it, but the works permitted have been carried out. A review would, in my view, clearly result in failure and would be a futile waste for all the parties.
3. If the review should be successful, there is a question as to what, if anything, can be done about the works carried out pursuant to the licence. I realise that the works are alleged not to have been pursuant to a licence when originally carried out because they were carried out before the licence was issued. However, they are covered by a licence now. It has been pointed out that the W Act does not provide a remedy in this respect. I am not sure whether that must necessarily be the end of that question. I note that the tribunal does have power to grant under s 123 VCAT Act to grant an injunction as an ancillary or alternative remedy for another proceeding. Nevertheless, an injunction is an equitable remedy and its grant is discretionary. Without attempting now to determine an application that has not been made, I will content myself with the observation that the prospect of obtaining an injunction in these circumstances appears to be dubious. I note that the construction of the access road, and a culvert for the purpose of that road, are things that have always been in contemplation after the decision was made to grant the planning permit.
4. It is hard to see why a review would be successful in removing the existing licence in the absence of anything apparently untoward about it having been granted. If it was refused, there would be nothing to stop a new application, and no apparent reason why it should not again be granted. There certainly seems to be no good reason to require the removal of the works, if there is power to order that. Furthermore, the grievance complained of does not, in my view, arise from the licence or the works, but (if at all) at some point downstream of the pipe outlet and thus downstream of the works.
5. There was some discussion at the hearing as to whether cl 65 of schedule 1 VCAT Act constitutes a statutory bar that would prevent an extension of time in this case, having regard to the circumstance that the W Act, apart from s 19 and 225 (6), is a planning enactment. It may put a legal bar on an extension in this case, but I do not propose to go into that question as I do not propose to grant the extension in any event. Similarly, I make no decision on whether there has been a satisfactory explanation of the delay in the proposed commencement of the review proceeding. There may well be considerations either way on that question, but I do not need to go into them.
6. Insofar as it was suggested in Mantello Property Group v Mornington Peninsula SC[13] that the tribunal "must be strongly of the opinion that time should be extended", in this case I am clearly of the view that it should not.
7. I come to this conclusion despite the submission made by Dr Sadler based on s 69 (2) W Act. That subsection provides that the Authority must defer consideration of an application pending determination of any related application under Part 4 of the W Act. Part 4 is constituted by sections 40 to 64 (which later section contains the review provisions in relation to Part 4 cases). Part 4 deals with allocation of water. That is quite a different notion to works licences and reviews dealt with under Part 5 (sections 65 to 83). There is at present no related application under Part 4 pending on account of which a decision on this works licence should be deferred. That situation may or may not arise at some future time. There will be or will need to be a licence application under Part 4 for allocation of water, perhaps in relation to stage 2 of the quarry reestablishment project. The culvert and its licence are needed now. There is no point in, and no legal requirement for, deferral on the basis of s 69 (2) which deferral may be for an indefinite period.
8. Furthermore, I am not dissuaded from refusing the extension on the basis of Dr Sadler's argument that the decision to grant the licence did or may have miscarried having regard to the matters to be taken into account in that connection as set out in s 68 W Act. I do not find anything in the subsections of 68 that should be taken into account, which was not apparently taken into account.
9. Section 68 (c) calls for consideration of the likely effects of escape of water from the works. At the time the decision was made there was no reason to suppose that there would be any escape of water from the works, and no escape from the works has eventuated. I do not regard the intended discharge from the end of the pipe as an "escape". If there is an escape further downstream, that is not an escape from the works.
10. Section 68 (ba) calls for regard for the matters in paragraphs (b) to (n) of 40 (1). That section is, of course, in the allocation of water part. Nevertheless, the considerations listed in subparagraph (b) to (n) are incorporated into s 68 by reference. In my opinion, they do not avail Country Endeavours.
11. Originally s 40 (1)(d) was referred to, but Dr Sadler, correctly in my view, withdraw reliance upon that consideration. It is not relevant.
12. Section 40 (1)(b) is a consideration in relation to existing and projected availability of water in the area, but that is particularly a matter in relation to water allocation, and not relevant to the culvert works which do not vary the existing or projected availability of water in the area.
13. The same can be said in relation to s 40(1)(m). It calls for regard to be had to the needs of other potential applicants. That obviously is the need of other potential applicants for water allocation. That does not arise in the present case. There can hardly be competing applications for culverts on the Casacir land.
14. I do not find anything in s 68 or the referred to provisions from s 40 (1) that assists Country Endeavours.
15. The last consideration in s 68 is that regard is to be had to any other matter that the Authority thinks fit. In spite of the width of that consideration, I am not led to think that it constitutes a relevant matter overlooked by the Authority in making its decision.
16. Reference was also made, in the course of the hearing, to conditions 25 to 30 in the licence. These appear under the subheading "WEST GIPPSLAND CATCHMENT MANAGEMENT AUTHORITY". Condition 28 reads:
    1. Prior to Stage 2 works a Works on Waterways Licence (under sections 160, 161 and 209, by-law 001 - Waterways Protection of the Water Act 1989) will be required. No licence will be granted by the Authority until the Spring water Management Plan has been approved by the Authority.
17. I note that s 161 was repealed by s 63 of Act 85 of 2006 but the comment I wish to make is that 28 is not really a condition to a planning permit but rather a reminder. Also the granting of a licence, when an application is made, is a matter for the Authority. It is subject to review under the W Act, but cannot be constrained by a condition in a prior planning permit made under the PE Act.
18. For the above reasons the application for an extension of time under s 126 VCAT Act is refused.

[1] [2009] VCAT 61

[4] Conroy v Goulburn Murray Water Board [2009] VCAT 2108

[6] Norton v Southern Rural Water [2007] VCAT 787

Paul v Goulburn Murray Rural Water Corporation [2009] VCAT 970

Young v Environment Protection Authority [2009] VCAT 564

[7] Published by LexisNexis Butterworths.

[8] See Katsanis v Wyndham CC (2005) 19 VPR 341; [2005] VCAT 824 at [17] and cited in Blackburne and Valea v Bundoora CC [2007] VCAT 75 at [7].

[9] [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305

[10] Unreported decision in Administrative Appeals Tribunal appeal 1997/33825 noted at (1997) 19 AATR 9

[11] [1993] VicRp 21; [1993] 1 VR 297

[12] (1997) 20 AATR 272

[13] (2003) 15 VPR 255 at 256; [2003] VCAT 2042 [7]