Victorian Civil and Administrative Tribunal|2004-06-21|Before: Simon Molesworth AM

ECO Resorts Aust PL v Yarra Ranges SC [2004] VCAT 1190 (21 June 2004)

Section 149(1)(a) Planning and Environment Act; discretion to extend time for development in a planning scheme; can decision on extension of time be reviewed under section 81(a) or section 149(1)(a) of Planning and Environment Act.

1 The application for review is made pursuant to section 149(1)(a) of the Planning and Environment Act 1987.

2 The application for review shall be listed for hearing at the same time as application for review P1457/2004 on 9 - 13 August 2004.

1 The subject land at 40 Martyr Road, Warburton is included in the Special Use Zone Schedule 2 of the Yarra Ranges Planning Scheme. Pursuant to clause 2.9 of this schedule, the subject land may be used and subdivided without a permit for a major tourist facility, the details of which are set out in the planning scheme. Paragraph 2.9 goes on to state:

"The use and subdivision of the land must be in accordance with the requirements of Amendment L33 to the former Upper Yarra Planning Scheme.

Any permit granted to construct a building or construct or carry out works must be in accordance with the requirements of Amendment L33 to the former Upper Yarra Planing Scheme, except the time specified for commencement and completion of development.

The development of the land for the purposes authorised by this clause must be commenced by 1 December 2003 and completed by 1 December 2008, unless an extended time for commencement or completion is approved by the responsible authority after receipt of a written request from the owner within three months of expiry of the commencement or completion date."

2 The applicant has made a planning permit application for the development that is described in clause 2.9 of Schedule 2 to the Special Use Zone and this is the subject of application for review P529/2004 against the responsible authority's refusal of a permit. The case is listed for a 5 day hearing on 9 - 13 August 2004.

3 The application for review in P1457/2004 concerns a request made by the applicant to the responsible authority to extend the time for commencement and completion of the development pursuant to the provisions set out in clause 2.9 of Schedule 2 of the Special Use Zone. The responsible authority has granted a conditional extension of time but the applicant takes issue with both the length of time granted and the conditions attached to the extension. It is these matters that the applicant seeks to have reviewed pursuant to this application for review.

4 The purpose of this directions hearing is to clarify:

* Whether the application is made pursuant to section 81(a) or section 149(1)(a) of the Planning and Environment Act 1987.

* If the application is made under section 81(a) whether Victorian Civil and Administrative Tribunal has the jurisdiction to consider the application

* If the application is made under section 149(1)(a) the grounds for the application and whether Victorian Civil and Administrative Tribunal has jurisdiction to consider the application in the circumstances.

5 The applicant's primary submission was that the application is made pursuant to section 149(1)(a) of the Act.

6 The responsible authority contended that the circumstances did not fall within the ambit of this section of the Act. The Council submitted that section 149(1)(a) specifically applies to, among other things, circumstances where a planning scheme specifies that a matter must either be:

* Done to the satisfaction of the responsible authority; or

* Must not be done without the consent of the responsible authority.

It was submitted that in the current circumstances, neither of the above apply. The relevant provision of the scheme provides the responsible authority with the discretion whether or not to approve an extension of time. It does not provide that something must not be done without the consent of the responsible authority. Hence section 149(1)(a) does not apply and Victorian Civil and Administrative Tribunal does not have jurisdiction.

7 My decision is that the application for review cannot be brought pursuant to section 81(a) of the Act because this provision, which provides for appeals relating to extensions of time, only applies to time limits in planning permits. Although the section does not say this in so many words, section 81 is included in Division 1 of Part 4 of the Act and Part 4 of the Act is headed "Permits". Pursuant to section 36(1)(a) of the Interpretation of Legislation Act 1984 the heading to a part forms part of an act. On this basis, I find that section 81(a) is therefore confined to extensions of time within planning permits.

8 However, it is relevant that the Planning and Environment Act specifically provides an opportunity to review decisions of a responsible authority refusing to extend time limits in planning permits.

9 By contrast, section 149 applies to decisions of a specified body in relation to planning schemes, permit conditions, section 173 agreements and enforcement orders. It is a very wide provision designed to offer a general opportunity for the review of matters lying outside the opportunities for review offered by other provisions of the Planning and Environment Act. I do not believe that the interests justice would be served by reading down the words of section 149 to give it a narrow application. I consider that the general intent of this provision must be considered in the context of the opportunities to seek declarations under sections 149A and 149B of the Act, the general direction given to the Tribunal in sections 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998 that the Tribunal should act fairly and according to the substantial merits of the case, and the broad discretion given to the Tribunal elsewhere in the Victorian Civil and Administrative Tribunal Act to overcome defects in procedures and failure to comply with enactments in order to act in the interests of justice. In my view, the gamut of these provisions evidences a general intent that the Tribunal should have the power to review the merits of decision making by a responsible authority where things require its consent or things must be done to its satisfaction.

10 The provisions of clause 2.9 of Schedule 2 of the Special Use Zone in the Yarra Ranges Planning Scheme have a similar effect to a planning permit in so far as they confer certain rights to undertake specified use and subdivision. They require a permit for development for the purposes authorised by this clause and they also require that development must be carried out within certain time limits unless the responsible authority consents to an extension of time. An alternative way of expressing the effect of clause 2.9 is to say that development must not be carried out outside the time specified without the consent of the responsible authority. I consider that the provision therefore comes within the ambit of the provision in Section 149(1)(a) of the Act relating to whether a matter must not be done without the consent of the specified body.

11 I note that if the planning scheme had intended to shut the door completely on any opportunities to extend time, it could have included a sunset provision to clause 2.9. It has not done this. The scheme gives the responsible authority the discretion to extend time and I consider that this is the type of matter that section 149(1)(a) of the Act was intended to provide an opportunity to review in much the same way as section 81(a) provides an opportunity to review decisions about the extension of time in planning permits. I do not believe there is any good reason for shutting the applicant out of the opportunity to argue its case on the merits about the reasonableness of the extension granted by the responsible authority or the conditions it has attached to its consent. I consider that the Tribunal should have an opportunity to consider the responsible authority's decision on its merits and it would be contrary to the general tenor of discretions otherwise vested in the Tribunal to interpret the words of section 149(1)(a) in a way that would narrow the Tribunal's ability in this respect.

12 I note that there is no authority for indicating an interpretation contrary to the one expressed above. On this basis, I do not consider there are any strong grounds for adopting another interpretation that would read down the legislation so as to deprive the applicant of a right of review.

13 For these reasons, I find that the circumstances of this case come within the ambit of section 149(1)(a) of the Planning and Environment Act and that the applicant is therefore entitled to make this application for review pursuant to this provision of the Act.

Environment Act 1987

Legislation Act 1984

Civil and Administrative Tribunal Act 1998

ECO Resorts Aust PL v Yarra Ranges SC [2004] VCAT 1190

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ECO Resorts Aust PL v Yarra Ranges SC [2004] VCAT 1190 (21 June 2004)

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