MEDIUM NEUTRAL CITATION: [2002] VCAT 1264

Irregularly shaped piece of land with a frontage of 101m to Boronia Road, 1068m to Thaxted Parade with an area of 9825m2.

The failure of the applicant to commence this proceeding within the prescribed time is disregarded pursuant to Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 and the hearing of the merits of this case, fixed to commence at 10.00am on the 18 October 2002 is to proceed accordingly.

Mr Stewart Caldwell of the City of Knox, appeared for the Responsible Authority.

Ms Michelle Quigley, barrister, appeared on the instructions of Dominic Esposito, solicitor for the applicant company.

Mr Graham Weller, Respondent/Objector, appeared in person.

Application under s.80 of the Planning and Environment Act 1987 (PE Act) for review of conditions in a permit.

1. This case arises from an application by the company to the Responsible Authority for a planning permit for a retirement village. It is a substantial proposal to be comprised of 72 units and the cost of development is given as $6.75 million. The application for the permit was apparently lodged with the Responsible Authority on the 2 July 2001.

2. Subsequently notice of the application was given and 16 objections were received. The Responsible Authority considered the application and the objections and determined to grant a permit subject to 25 conditions. Some of these conditions contained parts.

3. Pursuant to that decision the Responsible Authority then issued a Notice of Decision to Grant a Permit dated 5 April 2002 in accordance with the PE Act. The Act requires such notice to be sent to each of the objectors and to the permit applicant.

4. The legislation provides that objectors have 21 days in which they may apply to this Tribunal for a review of such a decision to grant a permit. In this case no objectors made such an application.

5. The permit applicant, on the other hand, has 60 days in which to apply for a review of conditions that the Responsible Authority has determined to impose and set out in the Notice of Decision to Grant a Permit.

6. The legislation provides that, after the 21 days for objectors to apply for a review has expired, the Responsible Authority can issue a permit in accordance with the Notice of Decision and containing the conditions set out therein. In this case, when no objectors applied for a review, the Responsible Authority went about the administrative steps of issuing such a permit. Unfortunately, in doing so, it made a reasonably serious and confusing administrative error. Although the covering letter sent by the Responsible Authority to the applicant at the beginning of May stated that the enclosure was the intended permit, the document in fact enclosed was not a planning permit but a purported second Notice of Decision dated 2 May 2002. This document would have displayed the normal statutory warnings and advice. Standing alone it indicated that the permit applicant had 60 days from the 2 May 2002 (plus two days for carriage through the post) in which to apply to the Tribunal for a review of conditions.

7. The applicant decided that it did wish to have a review of conditions, or at any rate, one part of one condition. That part is sub-condition 1.1.

8. Condition 1 requires the submission and approval of amended plans and

sub-conditions 1.1 to 1.23 inclusive specify the amendments, compared with the application plans, that are required. The first such modification is:-

1.1 Provision of one car space per apartment within the basement carpark of the respective Apartment Building.

9. The applicant apparently considers that the provision of one car space per apartment to be excessive for the proposed retirement village. It wishes to have the requirement amended and reduced.

10. Late in May, it appears on the 28 May 2002, it gave instructions to Mr Esposito to act for it in relation to such review proceedings. It sent brief instructions by fax indicating that it was condition 1.1 in relation to which it sought a review. Apparently it faxed to Mr Esposito a copy of the Notice of Decision, which includes the conditions, but in doing so it sent the one dated 2 May 2002, not the earlier April one.

11. Pursuant to these instructions Mr Esposito lodged the application for review with the Tribunal and paid the filing fee of $1000 on the 25 June 2002. In lodging that document and commencing this proceeding at that time, he was within time with reference to the second (purported) Notice of Decision dated 2 May 2002, but outside the 60 days period applicable to the actual Notice of Decision issued on the 5 April 2002. Apparently nobody appreciated this discrepancy at that stage.

12. The Tribunal undertook various administrative steps in relation to the registration of the proceeding, the creation of a file and other steps necessary in bringing the case toward a listing of a hearing, the conduct of a hearing and its determination. In fact, the case is listed for hearing to commence at 10.00am on Friday, 18 October 2002.

13. Eventually, in July 2002, the Responsible Authority realised that it had made an error in sending the second (purported) notice of decision in May. By a letter of the 19 July 2002 it acknowledged this error and sent the applicant a planning permit duly issued in accordance with its Notice of Decision to Grant a Permit. In doing this, it backdated the permit to the 2 May 2002 being the date on which it had intended to issue the permit, but when it in fact issued the purported second Notice of Decision by mistake.

14. The difficulty about all this is that, on the basis of the Notice of Decision to Grant a Permit dated 5 April 2002, the application for review was commenced out of time. The 60 days period is prescribed by Regulation 14 of the AAT (Planning Appeals) Regulation 1997. That Regulation reads:-

14. An applicant for a permit may appeal under section 80 of the Act by lodging a notice of appeal with the Registrar within 60 days after -

(b) the Responsible authority gave notice under section 64 of the Act.

15. Section 64 is the provision that requires the Responsible Authority to issue a Notice of Decision, rather than a permit, where there have been objections.

16. In this case the 60 days count from the Notice of Decision, in spite of the fact that a permit was subsequently issued. The 60 days only count from the issue of a permit where there were no objections and thus no Notice of Decision, see earlier decisions of mine in Ellerton Amber Pty Ltd v Shire of Eltham (1991) 7 AATR 281 and Hooper v Mornington Peninsula Shire Council (1997) 21 AATR 83.

17. Upon realisation of this difficulty the applicant applied to the Tribunal pursuant to s. 126 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) for an extension of time for the commencement of the proceedings. Such an application presumes that it is the first Notice of Decision that counts. It is only on that basis that an extension of time for the commencement of the proceedings is needed. Such an application presumes that it is the first Notice of Decision, rather than the purported second Notice of Decision, that is the valid and effective one. I am satisfied that this presumption is not only made, but that it is correct.

18. The applicant sought the consent of the Responsible Authority and objectors to such an extension of time. In spite of the administrative error it had made, and whatever contribution that error might have made to creating the situation in which the applicant found itself, the Responsible Authority refused its consent. It took that view on the basis that the applicant knew or should have known the time it had in which to commence its proceedings and should have complied with that time limitation.

19. I am unimpressed with this as a reason for refusing to give consent. If the applicants always managed to comply with the time limits there would never be an occasion for an application under s. 126 VCAT Act for an extension of time. There would be no need for s. 126, yet it is there. The provision is included in the Act to enable justice to be done. It does not mean that time will automatically be extended, but it does create the possibility of an extension where the Tribunal can be satisfied that such an extension is appropriate and in accordance with the requirements of justice. I made the observation that the Responsible Authority might have taken its position with "a red face", in other words that it should be embarrassed to take such a position having regard to its mistake in the circumstances. Mr Caldwell said that the applicant and its advisers should have recognised their position, in spite of the mistake, and made the application for review within time.

20. Certainly the applicant at least, might well have done so, if it had read with particular care the correspondence of the Responsible Authority dated early May and had noticed a discrepancy that put it on inquiry as to its position. However, if it took the second purported notice of decision at face value and instructed its solicitor as apparently it did, there was a situation where the applicant was all too likely to be entrapped by a late application for review being lodged on its behalf. I don't think that the Responsible Authority is in a position to play the innocent and put all the blame for what has occurred on the applicant. Its mistake is too likely to mislead and/or cause confusion. It might have been more appropriate for it to have taken a position of being prepared to consent to an extension, at any rate if the Tribunal was able to grant an extension.

21. Mr Weller initially declined to consent to an extension, if the possibility is open, although his major concern was that there should not be an adjournment of the hearing fixed for the 18 October 2002. A similar position was taken by Joanna Eassom and John Purdy & Heather Purdy who did not appear but who sent letters to that effect through Mr Weller.

22. I can quite see that there is merit, from everyone's point of view, in the matter proceeding, as fixed, on the 18 October 2002, if that is possible.

23. If it were only s. 126 VCAT Act that I had to consider, I would have little hesitation in granting the extension and allowing the hearing to proceed on that date. The difficulty arises in relation to Clause 65 of Schedule 1 VCAT Act which also applies in relation to extensions of time for the commencement of planning proceedings. It provides that the Tribunal must not extend time for commencing a proceeding under a planning enactment if a permit has been issued to any person on or after the expiration of the time appointed for the lodging of an application for review of a decision to grant that permit. In this case the applicant is caught by that bar. Whether one regards the permit that has been issued as having been issued on the 2 May 2002 or on or about the 19 July 2002, both dates are after the time appointed for the lodging of an application to review the decision to grant that permit. The time appointed for this purpose is 21 days after the Notice of Decision of the 5 April. That time expired before the end of April, so the Clause 65 bar does apply. The Ellerton Amber case referred to above considered a similar, predecessor provision of Clause 65 namely s. 31(2) and (4A) of the Administrative Appeals Tribunal Act.

24. I have rejected the notion that the second, purported Notice of Decision can be relied upon as a valid notice of decision or as starting again the running of the 60 days time limitation. Whatever it looked like, that document was not, in my opinion, a valid Notice of Decision at all. It was an administrative mistake. Nobody ever intended that it should be a Notice of Decision, the valid one having been given in the previous month. It was intended to be a planning permit. It contained serious errors as such, but it was not a Notice of Decision.

25. In my opinion the applicant in this case is barred from an extension of time by Clause 65, and in accordance with Ellerton Amber and Hooper's case.

26. This is a highly inconvenient, unsatisfactory and not particularly fair result.

27. By s. 97 VCAT Act the Tribunal is required to act fairly and in accordance with the substantial merits of the case in all proceedings. It is also bound by the rules of natural justice and must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act, the enabling enactment and a proper consideration of the matters before it permit.

28. In these circumstances I considered whether Clause 62 of Schedule 1 VCAT Act did not provide a remedy in the circumstances of this case. After all, the applicant is not excluded from making a new application and, if necessary, making an application for review of condition 1.1 if it was imposed again. Such a procedure would appear to be something of a futile waste of time, money and effort from the point of view of the applicant, and to a lesser extent, from the point of view of the other parties. Nevertheless, if that was the only course open to the applicant, and it still wished to pursue its proposal, it could take those steps. However it strikes me as much more convenient, expedient and fairer to allow the case to proceed on the 18 October 2002 if that is legally possible.

62. The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interest of justice to do so.

30. After the hearing the parties in relation to this clause I decided that it was in the interests of justice to disregard the failure of the applicant in this case to make its application for review within the prescribed period of 60 days. In coming to this view on the justice of the matter I give considerable weight to the error made by the Responsible Authority and its misleading and/or confusing effect. I said at the hearing that I would not be inclined to take this step if it were not for that error. I do not wish to give the impression that such a course can be normally followed where there has been no intervening special circumstance of that sort caused by the Responsible Authority or at least somebody other than the applicant and its representatives. In an ordinary case, particularly where the filing within time was missed by oversight or carelessness, and where Clause 65 applies above, I would not exercise the discretion in Clause 62 in favour of the applicant.

31. I do so in this case on the basis of these special circumstances and thereby allow the case fixed for the 18 October 2002 to proceed.

32. There was some discussion in the course of the hearing as to whether s. 87 PE Act might have afforded the applicant an alternative remedy. That procedure might have given an opportunity for a consideration of the merits of the question as to whether condition 1.1 should be imposed, although it is chancy to the extent that there are a number of requirements for proceedings of that sort that might not have been able to be satisfied. In the event the need to put that to the test has been avoided.

33. Ms Quigley, on behalf of the applicant, undertook to advise the other parties not present and objectors not present by letter that the case is to proceed on the 18 October 2002.