Victorian Civil and Administrative Tribunal|1998-10-23|Before: Mr J

First Watusi Pty Ltd v Port Phillip CC [1998] VCAT 509 (23 October 1998)

APPEALS NOS. 1998/23418 APPLICATION NO. S 1342

Application under S.81(b) of the Planning and Environment Act 1987 (PE Act) for review of the failure of the Responsible Authority to extend time.

Referral of a matter under S.149A PE Act, (now S.149 of that Act).

Residential `C' Zone and in an Urban Conservation Area No. 1, Height Control Area 0818 and subject to a Heritage overlay under the Port Phillip Planning Scheme.

"1. Our client as a recent purchaser of the property should be entitled to a reasonable opportunity to complete the works which were commenced by the former owner of the property.

2. Our client has relied upon the existence and validity of the planning permit in proceeding to purchase the property and should therefore be given a reasonable opportunity to act on that planning permit.

3. There has been no change of zoning or overlay controls applicable to the property since the grant of the planning permit.

4. An application has been made to Heritage Victoria for the relevant permit to enable the completion of works on the property authorised by the planning permit.

5. It is noted that the former Historic Buildings Council had no objection to the original permit application when that matter was referred to it prior to the grant of the planning permit by the Council.

6. There has been no material change in the nature or use of the surrounding properties since the grant of the permit.

7. Having regard to the nature and scale of the buildings and works authorised by the permit our client is entitled to a reasonable amount of time to assess the project, arrange financing and other details after taking possession of the property.

8. It is submitted that a reasonable period is required to enable completion of the works authorised by the permit having regard to the use of the overall premises as a hotel and the need to ensure that the works are attended to in a way which does not compromise the ongoing viable operation of the a hotel including residential accommodation, function activities including wedding receptions etc.

9. It is submitted that the existence of a separate application involving the subject land and adjacent properties should not prejudice the consideration of this extension request. Our client is entitled to have a reasonable opportunity to act upon the planning permit following its recent purchase of the property even if the company elects to pursue the evaluation of an alternative development project which involves the property in the context of a larger development.

10. We understand that the Council's records in relation to the details of the planning permit are incomplete. Our client therefore has some difficulty concerning the precise nature of the endorsed plans relevant to the planning permit. A separate application is being made to the Council for the endorsement of plans pursuant to condition 1 of the permit to provide certainty as to the proposed development authorised by the permit. Having regard to this uncertainty, our client should be provided with a reasonable time to enable proper preparation for the development authorised by the planning permit. The purported expiry date set out in the Council's letter is unreasonable having regard to our client's recent purchase and the present uncertainty concerning endorsed plans."

Mr Ian Pitt, Solicitor of the firm of Best Hooper, Solicitors, appeared for the Responsible Authority.

Mr C J Canavan QC and Mr J Gobbo, Barristers, instructed by Deacons Graham & James, Solicitors, appeared for the Applicant First Watusi Pty Ltd.

Oral and written submissions were presented on behalf of each of the parties and various plans and other documents were tendered as attachments to written submissions or as separate items of evidence.

The evidence and submissions presented in written form have been retained on the file of the Tribunal.

1. I am called upon to determine an application for review of the failure of the Responsible Authority to extend the time for the completion of works allowed by Permit S1342 issued by the City of South Melbourne as Responsible Authority on the 19 February 1990. The other proceeding is a subsidiary matter which I will refer to in due course.

2. These cases concern the Victoria Hotel at 123 Beaconsfield Parade, Albert Park. The premises are on the north-west corner of the intersection of Beaconsfield Parade with Kerford Road. Beaconsfield Parade runs east to west along the northern coastline of Port Phillip Bay with the sea on its southern side. Kerford Road runs inland and north from Beaconsfield Parade.

3. The Hotel building is an imposing three storey Victorian edifice fronting Beaconsfield Parade with an outlook to the south over Port Phillip Bay and its foreshore. According to Mr Canavan it was built in 1887-1888 and was opened in September 1888. Although there have been internal changes to the building, the external edifice remains substantially intact and makes a significant contribution to the streetscape in Beaconsfield Parade.

4. Apart from its frontage to Beaconsfield Parade, the building has a side abutment to the western side of Kerford Road. The façade of the building facing that road is in architectural harmony with the rest of the building and the building makes a contribution to the streetscape of that road. Both these roads, particularly Beaconsfield Parade, are significant thoroughfares of ample width substantially lined (except for the seaside of Beaconsfield Parade) with interesting and attractive Victorian buildings.

5. The permit allowed works in the following terms:-

"DEMOLISH BUILIDNG WORKS AND ALTER AND EXTEND THE HOTEL TO COMPRISE 57 ROOMS (INCLUDING MANAGER AND STAFF ACCOMMODATION) AND ALTER AND EXTEND THE RESTAURANT FUNCTIONS AT THE ABOVE ADDRESS."

6. This permission was granted subject to 16 conditions but I will only need to refer to the first and third of them for present purposes.

7. This permit was granted by the Planning Division of the Administrative Appeals Tribunal in its determination of planning appeal 1989/46435. The application for this permit was lodged on 24 August 1989. A Notice of Decision in relation to the application for the permit was dated the 27 November 1989. An objector appealed against the decision of the Responsible Authority to grant a permit but subsequently sought to withdraw that appeal. When no parties objected to the appeal being disposed of in that way (after being given notice) the Tribunal made a formal determination dismissing the appeal and directing the issue of a permit in accordance with the Notice of Decision of the Responsible Authority to grant a permit. It is clear that this was a formal determination made without a consideration of the merits of the matter.

8. There is however a discrepancy about this permit. It shows 19 February 1990 as its date of issue yet this is more than a week before the Tribunal's determination of appeal 1989/46435 on 28 February 1990. The determination was an essential prerequisite to the valid issue of the permit so the date of issue of the permit should have been after 28 February 1991.

9. It was not the present Applicant for Review who obtained that permit. First Watusi Pty Ltd only acquired the property in February 1998. The history of this matter from the issue of the permit until that purchase took place occurred whilst the property was under the ownership and control of the previous owner.

10. It can also be noted that the permit was for development, including some demolition work and some new building works. There was no occasion to seek permission to use the land as a hotel as it has been used continuously for that purpose since the 1880's. Consequently it enjoys so-called continuing use rights under the planning legislation having lawfully commenced before the introduction of planning controls and continued since.

11. The use of hotel falls within Section 2 of the relevant Table of Uses in the Planning Scheme provisions applicable to this Residential "C" Zone. As such a permit would be required for the use except for the preservation of existing use rights by Clause 15-2 of the Regional Section of the Planning Scheme. That sub-clause provides that such a use, if lawfully carried out immediately before the approval date of the Planning Scheme may continue provided that any condition or restriction on the use continues to be met and provided that no building is constructed without a permit. It is pursuant to this second requirement, of a planning permit for the construction of a building, that the permit was needed. "Building" for this purpose includes part of a building.

12. The first condition, although a little unusual in terminology, requires plans to be submitted to the Responsible Authority for approval. When approved such plans were to be endorsed as part of the permit.

13. Some plans were eventually approved and endorsed on the 4 September 1990. They were endorsed to permit SM 546 but this was later changed to refer to permit S.1342. I refer to them as the endorsed plans.

(a) the development hereby permitted is not commenced with 12 months of the date hereof; and

(b) not completed within 2 years of the date hereof;

and any extension of those periods the Responsible Authority or its Delegate may allow in writing on an application made before or within three months after such expiry."

There have been a number of extensions under condition 3(b) and this review is of the Responsible Authority's failure to grant a further one.

15. The endorsed plans show a substantial new building to be constructed, mainly in the open area located behind the two wings of the original hotel which wings extend along the Beaconsfield Parade and Kerford Road frontages. This building would be attached to the existing building but with little communication between the old and the new. The new building would be constructed around a central garden court over a basement and ground floor internal carpark with four levels of hotel suites on all sides of the courtyard rising above and looking into it. An internal swimming pool is incorporated at the third level. The new building works extend further north than the existing end of the Kerford Road wing and extend eastward to the outer alignment of that wing to form a northern extension of it. This outer face of the eastern wall of the Kerford Road wing is set back from the property boundary. Kerford Road is not quite at right angles to Beaconsfield Parade, although the eastern face of the Kerford Road wing is. There is a triangular area of land between the wall and the road boundary with these features close together near the intersection but widening as one goes north along Kerford Road. The plans depict a new glass ground floor extension to occupy this triangular area. This area is denoted as a new "restaurant". Thus the new building wraps around both sides and the northern end of the Kerford Road wing. The restaurant appears as something of an "add on" to the original hotel, and there is room for argument as to how well it fits in with the main structure. The floor levels of the proposed new building will not match those of the original and some of the section and façade drawings appear to depict new roof levels above those of the existing building although they are unlikely to be visible from vantage points in proximity to the site.

16. I have referred to the alteration to the endorsement on the endorsed plans where reference to permit S1342 was inserted in place of an original reference to permit SM 546. Permit SM 546 was an earlier permit in relation to the premises applied for on the 28 August 1988 and granted by South Melbourne as Responsible Authority in December 1988 after consideration of a single objection. I do not have a copy of that permit or any plans purporting to be endorsed in relation to it. The Applicant's written submissions indicate that it differed from the subsequent S1342. It is said to have "involved erection of a four storey residential extension and a further storey above the existing hotel" and a new glazed verandah entry on Kerford Road.

17. The written submissions on behalf of the Applicant for Review go on to recount a history of applications for extensions of time pursuant to condition 3 of the permit. The first is made in an undated letter received by the Council on the 13 March 1992 seeking a two year extension referring to the previous 18 months having been financially difficult and adding:-

"I am however confident that we will be able to start building within the extension period ...".

18. I note that the author of the letter, who wrote on behalf of the management of the hotel, did not think that building had started. The Council's reply of the 20 March 1992 granted an extension for completion until the 19 February 1994. The letter also said that an inspection of the site revealed that works had commenced within the originally specified time. No one can now say what works these were. It was suggested to me that they were minor internal works that did not involve the construction of a new external structure. It occurs to me that they may conceivably have been the demolition of some toilets that apparently one existed in the Kerford Road setback. The endorsed plans indicate the existence of such toilets to be demolished. The plans otherwise do not appear to indicate other internal works to the existing hotel. New works depicted on the plans are shown in colour and I cannot discern internal works depicted in that way.

19. The Council's letter also refers to the endorsed plans having reference to permit SM 546 which, at that stage, was concluded to be incorrect. It appears that it was at this stage that the endorsed plan were amended.

20. There has been a good deal of confusion, then and since, about the plans and the works carried out in relation thereto. The last of the grounds of the application for review (number 10) referred to the Council's records being incomplete and the Applicant having difficulty, at the stage of making the application for review, in discerning "the precise nature of the endorsed plans relevant to the planning permit". When it purchased the property in early 1998 permit S1342 was still current but apparently it was not known what works it permitted. I have wondered if the endorsed plans that are before me, the ones amended from SM 546 to S1342, really were the SM 546 plans and whether a mistake was made in 1992 in amending the endorsement. I will assume that the situation is as it has been put to me, namely that they are really the S1342 plans and that the alteration in 1992 was to correct a mistake made when the plans were originally endorsed.

21. Now that I have referred to the 10th ground relied upon by the Applicant for Review, I make the observation that the uncertainty as to the nature of the endorsed plans and as to the works depicted and authorised by the permit and the uncertainty flowing therefrom are really quite strong reasons why an extension should not be granted in relation to the current permit. If there is uncertainty, then there is uncertainty as to what it is that is being extended. That is undesirable in itself and also complicates greatly the task of making an assessment of a number of the other relevant considerations in assessing whether an extension should be granted.

22. The Applicant for Review, conscious of at least some of the difficulties arising from this uncertainty, has proposed a new set of plans which it seeks to have endorsed pursuant to condition 1 of the permit. In fact these plans are the subject matter of the second proceeding before me namely the referral under what is now s.149 PE Act. The Applicant for Review, having asked the Responsible Authority to approve the plans pursuant to that condition, referred the matter to the Tribunal under what is now s.149 when the Responsible Authority failed to determine that question. The plans so referred are materially different to the endorsed plans which I am invited to take to be the endorsed plans for permit S1342. Although approval of these endorsed plans might clarify the uncertainties referred to in the 10th ground of the application for review, a far more appropriate way of pursuing a development in that form would be for the Applicant for Review to make a new permit application to the Responsible Authority based on those new plans. That would enable a fresh assessment of what is really a new proposal, according to the procedures and protections afforded by the PE Act. It seems to be quite inappropriate to try and graft this new proposal on to the ancient stock of permit S1342. Such a new proposal would be considered and assessed in the light of present circumstances including the physical circumstances of the land and surrounding land, the present planning scheme provisions as they have evolved since 1990 and present planning policies. They have been a number of amendments to the planning scheme and planning policies that are relevant to this property since 1990. Such changes, if relevant to the existing permit, are very powerful considerations against granting a further extension after all this time. Mr Canavan has sought to avoid this adverse result (from the point of view of his client) by suggesting that these various changes, enumerated by Mr Pitt, are not in fact relevant to the permitted proposal. This would be well and good if that proposition was simple and obvious, but it seems to me that I am confronted with a rather difficult, complex and uncertain exercise in trying to distinguish whether any and which aspects of these changes are relevant. These difficulties can be conveniently, and I think suitably, avoided if a new permit was to be applied for. Such an application would be assessed on its merits and on the basis of present circumstances without the need to go back eight years and try and assess a series of changes that have occurred in the meantime.

23. I have mentioned changes that have occurred to planning control provisions and policies since the grant of the permit. I am not sure if I have caught every one, but Mr Pitt referred to the Height Control Area 0818 imposed by Clause 144 of the Planning Scheme on the 23 March 1990 after the permit was issued and the heritage overlay in Clause 140A has been introduced more recently. Mr Pitt also referred to the proposed new Victorian Planning Provisions style planning scheme presently under contemplation which, though not yet in force, might require consideration along with the attendant Municipal Strategic Statement. He also referred to a Housing Strategy of 1997, Neighbourhood Residential Guideline of the 25 February 1998 and a Council supplement to the Good Design Guide and Interim Urban Character Statement of August 1998. Furthermore the new Heritage Act has replaced the Historic Buildings Act and a fresh assessment is required under that legislation. The Responsible Authority has opposed the new plans under this legislation on the basis of their depicting a building it regards as too high. I am not indicating that I have determined the possible relevance of these various considerations, rather I am saying that it is appropriate to avoid that burdensome task. Let these new plans be assessed anew under a new application. There is no bar to such a new application.

24. In my opinion permit S1342 has become stale in several respects. I do not think it should be revived with a further extension.

25. It is stale insofar as there are any uncertainties as to what it allows, stale because such a considerable amount of time has elapsed since it was first granted, stale because of the changes to planning scheme provisions and policies that have occurred since and stale because it is now so long since the application was made and notice of it was given. Eight years is a long time for changes in personnel and changes in attitude that might have occurred in relation to people who should receive notice of a fresh application and who may legitimately object, and if necessary appeal in relation to such a new application. These new plans, submitted for endorsement under the old existing permit, are really a new proposal and the rights of present day potential objectors should not be defeated by this device of, as I have put it, grafting new plans on to such old stock.

26. Apparently nothing was done after the initial extension to the 19 February 1994. On the 25 February 1994 a further application for a further two years was sought. Again financial issues were referred to and again confidence was expressed that prosperous times ahead would enable realisation of the plans in the near future. An extension was granted to the 19 February 1995.

27. On the 31 March 1995 a further extension was sought. Applications had become blasé. No explanation was offered. Nevertheless, a further extension was granted to the 31 March 1996.

28. On the 15 January 1996 another very succinct request for extension, devoid of reasons, was made. When no reply had been received by the 22 April 1996 a reminder was sent to the Responsible Authority and eventually, on the 15 January 1997, an extension was granted to the 22 April 1998.

29. On the 29 January 1998 solicitors acting for the Applicant for Review wrote to the Responsible Authority by facsimile transmission referring to the letter of the 15 January 1997 extending the permit until the 22 April 1998. The letter goes on:-

"I confirm that my client represented by Mr Michael Yates is scheduled to complete the purchase of this property on this coming Monday 2 February 1998."

30. I note that this fax is not only dated but it records the time 5.29pm. In other words it was sent after hours. The 29 January 1998 was a Thursday, so the fax could not receive attention until Friday 30 January 1998, the last working day before settlement of the land purchase on the following Monday. I take it that settlement on the Monday indicates that the Applicant for Review had contracted to purchase the property sometime before, that is to say well before the 30 January 1998. I therefore do not really believe the protestation appearing in the balance of the fax letter which reads:-

"I confirm that I am instructed that my client is relying upon the following letter in determining to proceed with the purchase of the property.

I note your telephone advice today that you would confirm in writing tomorrow that Planning Permit S1342 remains current in accordance with the contents of the following letter."

31. I have no reason to doubt that such instructions might have been given, but I do not accept that the client was really relying on the permit or would have behaved in such an unbusiness like way if it did. If the permit was as important as he implied, the matter would have been looked into before the telephone call on the 29 January 1998 and the contract to purchase the property could be expected to have been conditional on an extension to the permit being obtained.

32. The Responsible Authority obliged with a letter dated the 30 January 1998 referring to a telephone conversation of the 29 January 1998 and saying:-

"I am able to confirm for you that Planning Permit S1342 is valid and will expire on 22 April 1998."

"Please note that any future request for an extension of time to this planning permit will be put before Council for consideration which will take into account any changes in planning policy."

33. This letter made it quite clear that the permit would expire on the 22 April 1998 and that it could not be presumed, by any means, that further extensions would be granted. The present Applicant for Review purchased and settled on this basis, well aware that it would be as good as impossible to complete the works by the 22 April 1998, that no extension could be relied upon but rather a critical assessment of any request for extension was to be expected and that the permit was already eight years old. If the Applicant did not know the permit was eight years old, it should have known and has only itself to blame for its ignorance.

34. Both sides in this case have referred me to various previous decisions in relation to permit extensions of the type now sought. In particular I have been referred to the considerations discussed by Ashley J in Kantor v Murrindindi Shire Council & Ors [1997] 18 AATR 285 commencing at page 308. At page 309 His Honour refers to the Tribunal as being "vastly experienced in planning matters and he goes on over succeeding pages up to page 312 to review prominent previous decisions of the Planning Division of the Administrative Appeals Tribunal and its predecessor planning appeals tribunals before summing up some conclusions on pages 313-314 and then applying them to the case he was there considering from page 314 onwards. He lists and discusses a number of considerations. I think it is important to note that he does not regard his decision or the earlier cases he discusses as providing an exhaustive check list. There may be other considerations relevant in some cases and these considerations are of varying weight with the weight of particular considerations varying from case to case. He indicates that there is a need to pay the closest attention to the facts of each particular case. A judgement must be made, if necessary giving appropriate weight to various relevant considerations for the purposes of the particular case.

35. His Honour clearly makes the point, in the middle of page 313, that there is an onus on the applicant for an extension. He said:-

* should treat the applicant as being obliged to advance some reason or material in support of the grant of an extension. An extension should not be granted simply because a request to extend has been made. The Act, after all, contemplates the imposition of an expiry date - whether by the permit or by the operation of the legislation itself. True it is that the legislation also contemplates the making of a request to extend. But the exercise of the discretion to extend reverses the outcome which the permit or the legislation would otherwise require."

36. I might add that I see good planning policy behind the imposition of such limits on the life of permits and also behind the notion that extension should not be automatic. There is some discussion of these notions in His Honour's reasons and I refer, in this context, to his mention of the "warehousing" of permits, windfall benefits on selling land and the blight and restraint on potential development that can be imposed by the long existence of unused permits. I would put it in terms of avoiding the disadvantage that can arise where stale unused permits remain viable and are brought to life long after circumstances have changed so that the use and/or development they allow have ceased to be appropriate. Such changes can be to planning scheme provisions or planning policy or to the development, use or condition of surrounding land. Where such a situation arises a responsible authority and others concerned about good planning may wait apprehensively for the expiry of such as now inappropriate permit and be relieved when the threat of such a now inappropriate use or development is removed. It would be folly, in such circumstances, to renew such a permit. In no circumstances, as His Honour indicates, should a permit be extended carelessly, without consideration, and without justification for the extension being shown.

37. I do not propose to write an exhaustive treatise here on the various considerations discussed in the various cases. However, I will refer to some points.

38. His Honour commenced his discussion at the traditional point, that is to say the decision of Mr F H Lonie, sitting with Mr Read and Mr Vaughan as the Town Planning Appeals Tribunal in the case of Best & Zygier v City of Malvern [1975] 1 VPA 284. The Tribunal in that case also pointed out that it would be undesirable to attempt to define all the criteria that should be taken into account in an application for extension but the Tribunal did mention four matters which it thought should be taken into account in the case then before them.

39. The first of these was whether the time originally limited was, in all the circumstances, reasonable and adequate taking into account the steps that would be necessary before the construction could actually commence. That was a case about commencement rather than completion. However I think this consideration is suitable to an application for extension of time either for commencement or completion. Subsequent cases have added that the assessment of the adequacy of time should include any earlier extensions. In the present case there was sufficient time as originally limited and ample time as subsequently extended.

40. Mr Canavan admits as much, but has argued that the time should not be counted from when the permit was first granted, but only from the time of the last extension, or possibly from when his client subsequently purchased the property. I do not agree with these propositions. The policy considerations behind limitations on the life of permits and on their extension apply equally whether there has been one owner of the period during which the permit was current or several. The changes in circumstances, planning scheme provisions or policies that might render further extension inappropriate may be cumulative over a period . Like further straws on the back of a loaded camel, the breaking point may be reached with a modest further increase.

41. Mr Canavan effectively asked me to assume that the last extension was appropriate. Even if it was, changes that have gone before it, together with what happens afterwards, might warrant refusal although changes since the last extension may not seem very significant. It may have been near or at the limit at the time of the last change. When I speak of "change" here, I include the sheer passage of time as a "change" relevant to be taken into consideration.

42. In any event, I find that little justification was advanced for the first two extensions in this case, and none at all in relation to the last two extensions that were granted. I think I can presume from the way the case was presented that no justification other than the letters referred to was advanced. In those circumstances the last two extensions would certainly have failed the proposition of Ashley J in the centre of page 313 that justification must be shown. I do not mention this with a view to finding the last two extensions to have been invalid, although they may have been, but rather to show that I have no basis for assuming that the last extension was appropriate or that only the time since it was granted should be taken into consideration.

43. I will now canvas the other grounds relied on by the Applicant for Review. The first ground alleges that the Applicant, as a recent purchaser, should be "entitled" to a reasonable opportunity to complete the works commenced by the former owner. There might be some weight in this proposition in some circumstances. For example if the alternative was to leave a half completed building. That is not the situation here. No one really knows what works were commenced and the Applicant is in doubt as to what completion would involve. At any rate it is clear that whatever was done is discreet from what was not done.

44. This proposition about being entitled to a reasonable opportunity to complete works recurs repeatedly through the grounds. I do not think that this, in itself, justifies an extension. As I have pointed out, the Applicant bought the property with its eyes open near the expiry of the permit without first obtaining or requiring the vendor to obtain an extension and without making the purchase conditional on such an extension. The Applicant bought what it bought. In my opinion, if the circumstances would not justify an extension if the property had remained in the hands of the vendor they do not justify an extension in the hands of such a purchaser. An extension should only be granted if justified.

45. This "reasonable opportunity" proposition appears again in ground 2 which claims reliance was placed on the permit. I have already dealt with that matter.

46. It is not true to say, as claimed in ground 3 that there has been no change to overlay controls and there have been changes in policy. This has already been adequately discussed.

47. The fourth ground says that an application has been made to Heritage Victoria for a permit to enable completion of the property authorised by the permit. My understanding is that the application is for a new plan. I don't think this ground helps the Applicant.

48. The fifth ground is that the former Historic Buildings Council had no objection to the original permit application. That was so long ago that a reconsideration by its replacement in current circumstances would be more to the point.

49. I am not aware of material changes to the nature and use of surrounding properties since the grant of a permit so I have no basis for disagreeing with what is said in ground 6. Such changes may well be an important consideration against an extension rather than their absence being of much significance in relation to this older permit.

50. Ground 7 says that, having regard to the nature and scale of the buildings and works authorised the Applicant is entitled to a reasonable amount of time to assess the project, arrange financing and other details after taking possession of the property. It can have all the time it likes and make a new application when it is ready.

51. Ground 8 is set out above. I do not think it sufficiently relevant to warrant any comment.

52. Ground 9 again repeats the "reasonable opportunity" plea. Apart from that it suggests that the Applicant should not be prejudiced by its putting forward other proposals for the site. I agree with this proposition. I am aware that the Applicant is advancing other more elaborate development proposals, but they may not be approved. If it was otherwise appropriate the current permit should be extended to allow the Applicant to act on it if it wished. For the various reasons discussed in this document it is not otherwise appropriate.

53. To return to Best & Zygier v City of Malvern the second consideration is whether any intervening circumstances rendered it unreasonable that the Appellant should be held to the time originally fixed. In a context of this case that means the time originally fixed as extended and I think the answer is - No. I have said why I don't think the change in ownership is relevant and the period has now been extended over a range of seasons, economic and climatic. I do not think there are other intervening circumstances warranting extension. The other propositions from the Best & Zygier case have been sufficiently discussed.

54. I think that the total elapse of time that has occurred in this case being approximately eight years, is a significant consideration against an extension in this case. The Applicant's written submissions in paragraph 54 suggest that "in land use terms eight years is a relatively short period of time". In land use terms it may be, but in getting started on a proposed land development it is a relatively long period of time.

55. The last section of the Applicant's written submissions before the conclusions is headed "Probability". Under this heading paragraph 60 commences "It is submitted that this is the most important consideration in the exercise of the Tribunal's discretion." I understand this to be a line of thought emphasised in Lockwood Oakes Pty Ltd v City of Doncaster & Templestowe (1991) 7 AATR 217, endorsed in Fakahr v Shire of Lilydale (1993) 10 ATR 320, questioned in High Tower Pty Ltd v Beaton & Ors & City of Malvern (1993) 11 AATR 298 and further discussed in Petersam Pty Ltd v Shire of Diamond Valley (1994) 13 AATR 219 and by Ashley J in Kantor. Put shortly it is the proposition that it is a consideration in favour of granting an extension if the proposal allowed by the existing permit would be granted if the same application was made today. What, it might be asked, is the point of putting the permit holder to the pain, trouble, expense and delay of applying again if the same permission in the same terms is the inevitable result? It is a good question and an important consideration. However, the Applicant's advocates have here watered down "inevitability" to "likelihood". Commencing in paragraph 60 of their written submissions they say:-

"This factor or test does not require a guarantee or certainty but a likelihood. It does not require the Tribunal to hear this application as if it were a full planning appeal and receive expert evidence in identifying and resolving any significant planning issue."

56. I agree with the second sentence quoted. If there is to be a full appeal hearing it would be better that it be on a new application with all appropriate potential parties, including objectors, able to participate.

"61. It requires the Tribunal to form an educated view as to the legitimacy of the proposal. If can be said that the proposal has reasonable prospects of success, that on the balance of probabilities it is more likely than not to succeed, then the Tribunal ought to lean towards an extension of the permit."

58. I do not agree with this. The test must be much higher than an educated guess that there is a reasonable prospect on the balance of probabilities that it is more likely than not to succeed. If it is clear and obvious that the same permit with the same conditions would be appropriate, well and good, but if it doubtful, then this is a reason against extension. An educated judgement must be made but when in doubt, either as to the grant of a new permit, or as to whether significant changes to conditions would now be warranted, then this consideration ceases to be a factor in favour of extension, and becomes one against that result.

59. Paragraph 62 of the written submission argues:-

"62. There is a sound basis in public policy for avoiding unnecessary duplication or proceedings before the Tribunal. Unless the Tribunal is persuaded by Council that there is a sound and proper basis to suspect that a permit would not be granted, the Tribunal should err in favour of preserving the existing entitlement."

60. I agree that it is sound public policy to avoid unnecessary duplication, and that is why I think a new application should be avoided where it is obvious that the result would be the same. However, if that is not clear, then the "duplication" is no longer "unnecessary". It becomes necessary because it is also an important public policy to ensure sound town planning results. Where there is doubt the Tribunal should err in favour of ensuring a sound planning result by having the matter properly considered anew.

61. In this case I am in doubt. The proposal in the current permit might be still appropriate and might be granted again, but I am dubious. I think careful reconsideration might be warranted for example in relation to the restaurant area, the northern extension of the Kerford Road wing and the roof heights. I speak here of the current endorsed plans, not the proposed new ones. I have already said that I consider that the new plans, if they are to be persisted with, should be the subject of a new permit application. I come to the same view in relation to the existing endorsed plans.

62. Having assessed and weighed what I take to be the relevant considerations in this case I am of the view that this application for review should be dismissed.

63. As to the Referral under what is now s.149 PE Act, its life is really dependant on the permit that I have condemned to death as from the 22 April 1998. I do not think the referral proceeding can have any further relevant life. However, as it has been agreed that it should be deferred pending the outcome of the application for permit extension I will adjourn that matter at this stage. The solicitors for First Watusi Pty Ltd might advise the Registrar in writing within 14 days as to whether they agree that the s.149 Referral should now be dismissed.

B. Referral 1998/23434 is adjourned to a date to be fixed.

First Watusi Pty Ltd v Port Phillip CC [1998] VCAT 509

At a glance

Court

Decision date

Before

Source

Judgment (96 paragraphs)

First Watusi Pty Ltd v Port Phillip CC [1998] VCAT 509 (23 October 1998)

Parties