Victorian Civil and Administrative Tribunal|2002-07-05

Deakin University v Whitehorse CC [2002] VCAT 475 (5 July 2002)

1. This matter is entered into the Commercial List.

1. This matter is entered into the Commercial List upon certification by solicitors for the Applicant that no application will be made to amend the Master Plans the subject of the application for review.

2. The certified plans are to be circulated to all parties no later than 30 July 2002.

3. Any party who desires to call an expert witness must file and serve a copy of the report of such expert by 13 September 2002 and that report stand as the evidence in chief of that witness subject to the leave of the Tribunal for that witness to give further evidence in chief.

4. The application for review is fixed for hearing before two members of the Tribunal not necessarily a Presidential Member on 30 September, 1, 2, 3 & 4 October 2002 commencing at 10.00am at 55 King Street, Melbourne.

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For the Applicant: Mr S Morris QC of Counsel instructed by Minter Ellison

For the Responsible Authority: Mr T Montebello, Solicitor, Maddocks

1. Mr Morris sought to have both matters put into the Commercial List, indicated that application P1426/2002 was an application for declaration pursuant to Section 149B Planning and Environment Act 1987 which required the matter to be heard by a Presidential Member of the Tribunal and estimated the hearing would take 2 days. He also sought that application P1427/2002 pursuant to Section 149 (1)(a) Planning and Environment Act 1987 relating to the failure by the Responsible Authority to approve a Master Plan be heard as soon as possible.

2. Mr Montebello indicated he did not oppose the inclusion in the Commercial List of application P1426/2002 or the listing of the matter for 2 days before a Presidential Member. He however opposed the listing in the Commercial List of application P1427/2002 and the fixing of this matter for hearing.

3. In this respect he indicated the application pursuant to Section 149 (1)(a) PE Act 1987 was based as Mr Morris had indicated on sub-section (1)(d) the failure by the Responsible Authority to make a decision within a reasonable time after the Master Plan had been referred to it. He submitted the Responsible Authority had not failed to make a decision within a reasonable time. The Responsible Authority had requested and had been advised an advisory committee had been appointed pursuant to Section 191 PE Act 1987 to consider submissions received in relation to the Master Plan and to advise. This committee had only recently been appointed. He requested that the hearing not be fixed until the committee had given advice to the Responsible Authority.

4. In support of his submission Mr Montebello submitted a temporary amendment had been approved by the Minister for Planning on 16 October 2001 which placed the land in a Design and Development Overlay. The Responsible Authority had prepared amendment C24 which sought to make permanent the Overlay this amendment has been exhibited and a Panel has been appointed to hear submissions in July 2002 and make recommendations.

5. The Master Plan is a requirement of the Design and Development Overlay. Deakin University commenced consultation with the Responsible Authority in relation to the Master Plan in December 2001 and lodged on 13 February 2002 its final Master Plan for approval by the Responsible Authority. The Responsible Authority exhibited the Master Plan between 27 March 2002 and 29 April 2002 and received approximately 690 submissions. The Responsible Authority resolved on 3 June 2002 to refer the Master Plan to an Advisory Committee. Mr Montebello submitted the Tribunal needs to be satisfied that the time taken and the process being undertaken is unreasonable given also that the Master Plan relates to the whole of the University. In his view the listing of this matter would be premature and should be put in abeyance until such time as the Advisory Committee had advised the Responsible Authority and the Responsible Authority had made its decision.

6. Mr Montebello sought to have weight placed upon the extent of the area, the number of submissions received by the Responsible Authority, the use of a statutory process namely the request for an Advisory Committee and the appointment by the Minister of that Committee.

7. Mr Morris submitted no weight should be placed upon the appointment by the Minister, the Responsible Authority in effect nominating the persons appointed. Section 191 PE Act 1987 has always been in earlier planning acts and enables the Responsible Authority to accord natural justice to persons wishing to make submissions without requiring those persons to appear before the Responsible Authority itself. It facilitates actions by the Responsible Authority.

8. Mr Morris submitted the issue was whether sufficient time had elapsed for the Responsible Authority to make a decision and as there is no specified time within the Act he submitted guidance could be taken from the use of the 60 days for the making of a decision in relation to a permit application before a failure to decide application could be lodged with the Tribunal. He submitted a bundle of correspondence to support his contention that the Responsible Authority had had a reasonable time to make a decision and the matter should not be deferred any longer.

9. A specified person, in this case the Applicant can apply to the Tribunal to have reviewed the failure of the Responsible Authority to make a decision within a reasonable time under Section 149(1)(d) PE Act. The Tribunal agrees that given the issues to be considered in this case a reasonable time would not be a few weeks. However there has been considerable time, 5 months, including periods of consultation conducted by both parties between the lodging with the Responsible Authority of the Master Plan and the Applicant's lodging of its application with the Tribunal.

10. In the Tribunal's view it is a matter for the Responsible Authority as to how it wishes to be informed, if at all, as there is no specific requirement as to any procedures it is required to undertake before it reaches its decision, but how it is informed is irrelevant to its failure to make a decision within a reasonable time.

11. In this matter the Responsible Authority went through a process of consultation as it was required to do under the Overlay provisions, with submissions closing on 29 April 2002. It was not until 29 May 2002 that the Applicant lodge its application with the Tribunal, a month after the Responsible Authority had received submissions. Given the process of consideration of the Master Plan commenced in December 2001 when the Plans were first referred to the Responsible Authority, it is considered that the Responsible Authority has had a reasonable time in which to make a decision even if it was not until the Applicant confirmed in February 2002 that the plans before the Responsible Authority were the final plans it wished to rely upon. It is considered that the Responsible Authority has had time to make a decision and has failed to make a decision within a reasonable time after the matter was referred to it. That the Responsible Authority has now decided to seek another form of advice, being from an Advisory Committee is not relevant to its failure to have made a decision. There is no requirement that it receive such advice before it makes its decision.

12. A specified person has a right to make an application to the Tribunal if the Responsible Authority has failed to make a decision within a reasonable time, the Responsible Authority has so failed, the matter will be listed for hearing as soon as possible.

13. A further issue was raised about the possibility of persons wishing to make submissions to the Tribunal. There are no other parties to the applications except the Applicant and the Responsible Authority. Mr Morris indicated he would vigorously oppose any other applications by persons to become parties. The Responsible Authority indicated the Minister for Planning may wish to make a submission, that is a matter for the Minister and would be dealt with at the time such a request was made. It was also noted that two groups representing a number of persons indicted their interest in the matter, they also would need to make application to become parties and have such applications dealt with at the appropriate time.

14. The Tribunal also noted there were a number of persons who had made submissions to the Responsible Authority and Mr Montebello indicated that such persons may wish to make submissions to the Tribunal. As the applications before the Tribunal relate only to matters between the Applicant and Responsible Authority, there is no third party rights in relation to the applications, the Tribunal considers that it is not appropriate at this time to require advertising of the applications to be made to other persons. The Tribunal noted that the Responsible Authority was not prevented from notifying any persons who had made submissions to it of the applications.

15. Both matters will be entered into the Commercial List. Application P1426/2002 will be heard by a Presidential Member over two days and Application P1427/2002 will be heard over five days by two members of the Tribunal not necessarily a Presidential Member.

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Deakin University v Whitehorse CC [2002] VCAT 475

At a glance

Court

Decision date

Source

Judgment (27 paragraphs)

Deakin University v Whitehorse CC [2002] VCAT 475 (5 July 2002)

Parties

Legislation Cited (1)