(given orally at the hearing and subsequently revised)

1 Application P345/2005 was made pursuant to section 82 of the Planning and Environment Act 1987 in respect of the decision by the responsible authority to grant a permit for part demolition, buildings and works, and waiver of associated car parking requirements in association with an existing tavern and multi-media gallery at 60 Smith Street, Collingwood.

2 The subject land is located in a Business 1 Zone and a Heritage Overlay applies to the land.

3 The applicant for review/objector owns land at 2 Derby Street, Collingwood, which abuts the rear of the subject land but right angles to it and is also in the Business 1 Zone. On the application for review, the applicant gave as its address for service 2 Derby Street, Collingwood.

4 The application for review was referred to mediation, which was scheduled for 19 April 2005 at 11.30am. Notice of this referral to mediation was sent to the applicant at 2 Derby Street, Collingwood on 15 March 2005. At the time scheduled for the mediation the applicant failed to appear. The Tribunal ordered that the application be struck out and gave directions about submissions in relation to a costs application by the respondent. The following reasons were given by Member Sharkey for his decision to strike out the application.

[3] Mr Andreou, for the Respondent/Permit Applicant, by facsimile received on 15 April 2005 requested that the matter not proceed to mediation and that the mediation be cancelled and the matter be scheduled for a Merits hearing. The Responsible Authority advised by facsimile received on Monday 18 April 2005 that it consented to the request of the Respondent/Permit Applicant.

[4] The Tribunal directed that the mediation proceed because consent of the Applicant for Review/Objector had not been provided. Christopher Doyle Pty Ltd Architects, for the Applicant for Review/Objector, advised the Tribunal by facsimile on 19 April 2005, the listed date for the mediation, that his client was currently away on business and had spoken with a VCAT representative on the previous day when he discovered that there was a Mediation hearing scheduled for 19 April 2005 at 11.30am. The facsimile stated that the client advised that the notification of mediation was sent to the property which was owned at 2 Derby Street Collingwood rather than the postal address and the client does not reside at 2 Derby Street and therefore was not aware of the mediation. It was requested that the mediation be adjourned to a later date when the client would be in Melbourne and suitable and correct notice was given. The Application for Review in fact gave 2 Derby Street Collingwood as the address for service. The Applicant for Review/Objector was not represented at the mediation.

[5] The notice of the mediation was in fact addressed to the address for service provided on the Application for Review and it is clear that the representative of the Applicant for Review/Objector knew of the mediation at least on the day prior, but the Applicant for Review/Objector was not represented at the Mediation.

[6] Section 78(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides that this section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantage another party to the proceeding by conduct including at Section 71(1)(g) failing to attend mediation or the hearing of the proceeding. Section 78(2)(a) provides that if this Section applies the Tribunal may order that the proceeding be dismissed or struck out if the party causing the disadvantage is the Applicant. I consider it appropriate that the failure of the Applicant to attend the Mediation warrants in these circumstances the matter being struck out, and I will so order.

5 The applicant has now applied to the Tribunal for an order under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 to reopen the Tribunal's order striking out the application for review.

6 It was argued on behalf of the applicant that a mistake had been made in completing the application for review by giving the wrong address for service. In fact the property at 2 Derby Street, Collingwood is vacant and the applicant's address is a post office box in Toorak. As a consequence of this mistake the applicant did not receive notice of the mediation and the principal of Falconbridge Pty Ltd, Mr Socrates Vasiliades, was interstate at the time. Mr Andreou, on behalf of the respondents spoke to Mr Vasiliades on 15 April 2005 seeking to obtain his consent to have the scheduled mediation at Victorian Civil and Administrative Tribunal cancelled. It was submitted that the applicant did not appear at the mediation or send a representative because he was under the impression that the mediation would be cancelled.

7 I do not accept this as a reasonable explanation for not attending or being represented at the hearing on 19 April 2005. The request by the respondent's solicitor, Mr Andreou for the mediation to be cancelled was refused by the Tribunal on 18 April 2005. Advice of this was faxed to all parties on 18 April 2005 clearly indicating that the matter remained scheduled for the following day. A copy was faxed to Falconbridge Pty Ltd to the fax number included in the application for review and the Tribunal's file indicates that the result was "OK". It was possibly as a result of receiving this fax that Christopher Doyle Pty Ltd Architects, acting on behalf of their client, Socrates Vasiliades, sent a fax to the Tribunal on 19 April 2005 requesting that the mediation be adjourned. The fax states (in part):

Our client is currently away on business and spoke with a VCAT representative yesterday when he discovered there was a mediation hearing to be held today at 11.30am.

8 It is therefore clear that the applicant knew the day before the mediation that there was a mediation scheduled, that the request for it to be cancelled had been refused and that it would proceed. Notwithstanding this no representative of the applicant appeared at the hearing.

9 Whilst section 120 of the Victorian Civil and Administrative Tribunal Act enables the Tribunal to reopen an order on the substantive grounds if the person did not appear and was not represented at the hearing at the which the order was made, section 120(4) requires that the Tribunal must be satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing and it thinks fit that the order be revoked or varied. It provides as follows:

120.

Re-opening an order on substantive grounds

(a) hear and determine the application if it is satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing; and

(b) if it thinks fit, order that the order be revoked or varied.

10 I am not satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing. Being a corporate entity, the applicant must be represented by a person. Whilst the principal of the company, Mr Vasiliades, might have been unable to attend the hearing there is no reason why some other representative could not have attended on the applicant's behalf. Notwithstanding the applicant's mistake in giving an incorrect address for service on the application for review form and possibly not receiving the notice of mediation sent out on 15 March 2005, the applicant was aware at least on 15 March 2005 that a mediation was scheduled as 19 April and certainly knew the day before that the mediation was not adjourned and was proceeding. There was therefore an obligation on the part of the applicant to attend or arrange for representation.

11 In any event, even if the applicant was able to satisfy the requirements of section 120(4)(a) of the Act, I do not think it fit that the order by Member Sharkey to strike out the application, which has resulted in a permit now being issued, should be revoked or varied for the following reasons.

12 Under the provisions of the Business 1 Zone, a permit for buildings and works is exempt from the third party objection, notice and review provisions of the Planning and Environment Act 1987 (see clause 34.01-4 of the Yarra Planning Scheme). It was therefore not open to the applicant to raise or rely upon any issues arising from the requirement for a permit under the Business 1 Zone (see Court of Appeal in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2003] VSCA 83).

13 A permit was also required for demolition and buildings and works under the Heritage Overlay and for a waiver of car parking under clause 52.06 of the planning scheme. The same exemptions from the objection, notice and review requirements of the Act do not apply in respect of these permit requirements. However, the grounds of review relied upon by the applicant do not relate to either of these permissions. The grounds of application for review were:

•

A multi-media art gallery will generate an unacceptable noise level.

•

The building shall overshadow the Northern courtyard of the residence.

14 Mr Isles, on behalf of the applicant, acknowledged at the hearing that due to the relationship of the subject land and his client's land there would be no overshadowing. With respect to the concerns raised about noise levels, the land is already being used for the purpose of a multi-media art gallery and the permit issued does not relate to the use of the land. Both properties are in a Business 1 Zone where a quite different level of amenity is expected to a Residential Zone. In any event, there are no aspects of the development that indicate noise levels would increase as a consequence of development.

15 As neither overshadowing or noise are issues that arise as a result of a need for a permit under the Heritage Overlay or clause 52.06, they are therefore not matters that it would have been open to the applicant to rely upon at a hearing in any event. The Court of Appeal in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal[1] said that:

[17] ...no right of review to the Tribunal lies where an exemption is imposed. Any review is limited to those parts of the application for a permit to which the appellants were able to object in accordance with the Act and the Scheme.

16 For these reasons, the applicant would not have been successful in its application for review and accordingly I do not think it is fit for the Tribunal's order striking out the application for review to be revoked. An application for costs was made on behalf of the respondent. I will give directions about submissions relating to costs both in respect of the mediation on 19 April 2005 and this hearing.

[1] [2003] VSCA 83