Disposal of proceedings when planning scheme amendment renders need for planning permit unnecessary. Costs not payable by Minister for Planning in capacity as planning authority.

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

LEGISLATION - interpretation or application of statutory provision

Interpretation of section 109 Victorian Civil and Administrative Act 1998 - Tribunal's power to award costs is limited to parties to the proceeding.

PRACTICE OR PROCEDURE - consideration of individual instance or systemic issues

Application for review under section 82 Planning and Environment Act 1987 - planning scheme amended before hearing to authorise use and development without the need for a planning permit - consideration of how to dispose of the proceeding before the Tribunal

The Minister for Planning was the responsible authority for a stretch of land near Narrawong on the south-west coast of Victoria. Between August 2011 and April 2012, the Minister decided to grant planning permits allowing the use, development and/or subdivision of eight different sites in the area, subject to conditions. The Friends of the Surry Inc sought review of each of these decisions under section 82 Planning and Environment Act 1987. Several days before the scheduled hearing the Minister for Planning prepared, adopted and approved an amendment to the planning scheme, which meant that no permit was required for the specific uses, developments and/or subdivision approved by the Minister.

In deciding how to dispose of the proceedings, the Tribunal considered its various obligations under the Victorian Civil and Administrative Act 1998 and the Planning and Environment Act 1987. It decided that in proceedings arising under the Planning and Environment Act 1987 where the decision under review is to grant a permit, the Tribunal needs to consider the nature and status of the decision under review and its obligations under section 85 of the Planning and Environment Act 1987, which include whether or not a permit should be granted. The Tribunal determined that it was not appropriate to strike out the applications under section 75 of the Victorian Civil and Administrative Act 1998. Rather, it should set aside the responsible authority's decision to grant a permit and not grant a permit.

In considering an application for costs against the Minister for Planning, the Tribunal found that it was the conduct of the Minister as planning authority that was unreasonable and that had unnecessarily disadvantaged the applicants for review. The Minister in his capacity as planning authority was not a party to these proceedings. The Minister was a party only in his capacity as responsible authority. Under section 109(2) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal may order that a party pay all or a specified part of the cost of another party in a proceeding. It does not provide the Tribunal with the power to award costs against someone who is not a party. Accordingly, the Tribunal found it had no power to award costs against the Minister in his capacity as planning authority.

As there was no justification for making an award of costs against the Minister in his capacity as responsible authority, the application for costs was refused.

VCAT REFERENCE NOS. P2988/2011, P1121/2012, P1122/2012, P1123/2012, P1124/2012, P1125/2012, P1126/2012 & P1597/2012

Correct procedure to follow in cases where planning permit no longer necessary - costs application - distinction between responsible authority and planning authority - power to award costs limited to award against a party

Lots 5, 7, 8 & 9 Ocean View Drive West NARRAWONG VIC 3285

Gunditj Mirring Traditional Owners Aboriginal Corporation

Friends of The Surry Inc v Minister for Planning (includes Summary) (Red Dot) [2013] VCAT 157

1. In applications P2988/2011, P1121/2012, P1122/2012, P1123/2012, P1124/2012, P1125/2012, P1126/2012 & P1597/2012 the decisions of the responsible authority are set aside.
2. In permit applications 11/008671, P06137, P06097, P10165, P10164, P05221, 11/06557 and P12/000758 no permit is granted.
3. No order as to costs.

Mr R Watters of counsel, instructed by Environment Defenders Office

Ms Sarah Porritt and Mr Daniel Robinson of counsel, instructed by Clayton Utz

Mr Matthew Townsend of counsel, instructed by Stratmann & Co

Mr Richard Umbers, town planner, of Peninsula Planning Consultants Pty Ltd

1. The purpose of this hearing was to:
   • Make final or other orders in these proceedings.
   • Consider any applications for costs.
2. The circumstances leading to this hearing can be summarised as follows.
3. In April 2011, Amendment C60 made the Minister for Planning (Minister) the responsible authority for a stretch of land near Narrawong on the south-west coast of Victoria.
4. Between August 2011 and April 2012, the Minister decided to grant planning permits allowing the use, development and/or subdivision of eight different sites in the area, subject to conditions.
5. Between September 2011 and April 2012, the Friends of the Surry Inc (FOS) sought review of each of these decisions (the review applications).
6. A directions hearing was held on 6 July 2012 and a hearing was set down for five days commencing Monday 8 October 2012.
7. On Wednesday, 3 October 2012, the Department of Planning and Community Development provided a letter to FOS's solicitors, the Environment Defenders' Office, stating that:
   • The Minister had prepared Amendment C93 (the Amendment) to the Glenelg Planning Scheme (Scheme);
   • He had decided to exempt himself from the notice requirements of the Planning and Environment Act 1987 under section 20(4) of the Act; and
   • He had decided to adopt and approve the Amendment to the Scheme.
8. On Thursday, 4 October 2012, the Amendment was gazetted and came into force.
9. The effect of the Amendment was to provide that no permit was required for the specific uses, developments and/or subdivision approved by the Minister. In substance, it rendered the review applications moot as, even if the review applications were successful, the relevant activities would no longer require a permit under the Scheme.
10. As no permit is now required, the Tribunal needs to make final orders to dispose of the proceedings. At the hearing, FOS requested the Tribunal to defer disposal of the proceedings pending its decision whether to seek judicial review of the Minister's decisions to prepare, adopt and approve the amendment and to exempt himself from notice under section 20(4) of the Act. Because leave was given to parties to make additional submissions on the question of costs, a decision about disposal of the proceedings was deferred. The Tribunal has subsequently been informed that FOS has not appealed to the Supreme Court.
11. At the hearing, FOS made an application for costs on an indemnity basis against the Minister. I gave leave to the Minister to file and serve a response to the costs application and to FOS to file and serve a reply. Those further submissions have now been received.
12. In making my decision about the final disposal of these proceedings and the costs application, I have considered all written submissions and the oral submissions made by parties at both the hearings on 8 and 22 October 2012, although I have not set out in detail all that was said in those submissions.

1. A decision is required about how to dispose of these proceedings in order to conclude the proceedings on the Tribunal's register and to resolve the status of the notices of decision issued by the Minister in his capacity as responsible authority. Given there has been no judicial review of the Amendment, a decision can now be made about the disposal of the proceedings.
2. The issue, in circumstances where a notice of decision to grant a permit has been issued, but the planning scheme has been changed so that no permit is now required, is whether:
   • the Tribunal should set aside the decision of the responsible authority so that no permit is granted; or
   • pursuant to section 124 of the Victorian Civil & Administrative Tribunal Act 1998, declare that following Amendment C93 to the Glenelg Planning Scheme, the notices of decision are of no force and effect and that the proceedings are struck out as being misconceived pursuant to section 75 of the Victorian Civil & Administrative Tribunal Act 1998.
3. Several of the permit applicants opposed the submission by FOS that the decision of the Minister to grant permits be set aside because they felt that this would mean FOS had "won".
4. Such a perception is not a valid reason for refusing to make such an order. So far as the proceedings before the Tribunal are concerned, there have been no "winners" or "losers" because there has been no determination of the review applications on their merits. The opportunity to consider the review applications on their merits has been removed by Amendment C93. Whatever the permit applicants may feel about the actions of FOS in lodging these applications for review, Victoria's planning system provides legitimate opportunities for third party objectors, be they individuals or incorporated bodies or associations, to object to permit applications on conservation and environmental grounds and to lodge applications for review. FOS fall into this category. They were entitled to lodge the review applications on the grounds that they did.
5. In circumstances where a proceeding is no longer required to be heard and determined on its merits, the procedural order the Tribunal makes to dispose of the matter must be made in accordance with law having regard to the outcome that should flow from the order. What, then, is the law that governs how the Tribunal may dispose of an application, and what is the appropriate outcome with respect to the decisions made by the responsible authority, which are under review?
6. The Tribunal's jurisdiction to consider an application does not hang upon the validity of the decision by the original decision-maker (see section 4(2) Victorian Civil and Administrative Tribunal Act 1998).[1] In the case of its review jurisdiction, the Tribunal's jurisdiction rests on the making of a valid application for review. Section 92 (1) of the Planning and Environment Act 1987 confers review jurisdiction on the Tribunal where there are objectors to a permit application. In these proceedings, I find that the review applications are valid applications for review under this section.
7. There are two sets of statutory provisions that the Tribunal must follow in respect of an application for review in the Planning and Environment List. Under the Victorian Civil and Administrative Tribunal Act 1998, it must determine the status of the decision under review. Section 51(2) of this Act provides that :

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

1. Under the Planning and Environment Act 1987, section 85 provides, broadly speaking, that the Tribunal may, in respect of an application for a permit:
   • direct that a permit is not granted;
   • grant a permit, with or without conditions, and direct a responsible authority to issue the permit; or
   • direct that a permit must or must not contain any specified condition.
2. In determining an application, the Tribunal is bound to apply the facts and the law as they are at the time of making the determination.[2]
3. At the time when the Minister, as responsible authority, made a decision to grant permits in respect of the relevant permit applications, planning permits were required for the respective activities. The notices of decision were therefore valid at the time they were issued. The fact that following Amendment C93 no permits are now required under the planning scheme for the relevant activities does not affect the validity of the notices of decision. However, it does mean that there is no longer any need for the Tribunal to affirm the decisions of the responsible authority and grant permits. Indeed, the provisions of the planning scheme effectively mean that no permit should be granted.
4. I do not consider it is appropriate to strike out the review applications under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 because none of the grounds for doing so are satisfied. The applications are not misconceived. The Tribunal does not lack jurisdiction for the reasons previously given. There is no basis for making a declaration under section 124 of the Victorian Civil and Administrative Tribunal Act 1998 that the notices of decision are of no force and effect. As I have previously noted, they were valid at the time they were issued and the Amendment has not altered their status. Even if I was minded to strike out the applications under section 75, the outcome that would flow from such an order would be to confirm the status quo as under section 64(3)(b) Planning and Environment Act 1987 permits in accordance with the notices of decision would be required to be issued by the responsible authority.
5. Where something does not require a planning permit, I consider it would create potential confusion and be contrary to good public policy to grant permits that are otiose for such things, especially where the conditions in the notices of decision are different to the conditions in the incorporated documents forming part of the planning scheme.
6. As no permit is now required, I consider that the most appropriate course of action is to set aside the decisions of the Minister as responsible authority and to determine that no permits are granted. This is consistent with the Tribunal's practice in other similar cases, such as Port Phillip Conservation Inc v Mornington Peninsula SC No. 3[3].
7. I note that the Tribunal has not always been consistent in the way it has dealt with the disposal of proceedings in circumstances where no permit is required for the proposed use or development - see, for example, the cases of Neville v Maribyrnong CC[4] and Hollobone v Northern Grampians SC[5]. Each of these cases represented an application for review by an objector under section 82 of the Planning and Environment Act 1987 where the responsible authority had issued a notice of decision to grant a permit. In the case of Neville, the planning scheme had subsequently changed so that no permit was required for a satellite dish. In Hollobone, the Tribunal held that no permit was required for the buildings and works in question. In each case, the Tribunal struck out the application pursuant to section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 because it was misconceived.
8. Having considered the issues carefully in the present case, I consider that the approaches adopted in Neville and Hollobone should not be followed and that the Tribunal in these cases should have set aside the decision of the responsible authority and directed that no permit be granted. I consider that the approach taken by the Tribunal in Port Phillip Conservation Council Inc v Mornington Peninsula SC No.3 is more appropriate in cases such as this in the Planning and Environment List. I am aware that a different approach was taken in ASEAN Education and Training Pty Ltd v Victorian Registration and Qualifications Authority[6], but this was a proceeding in the Occupational and Business Regulation List where the Tribunal's jurisdiction arose under the Education and Training Reform Act 2006. In the circumstances of that case, it may have been entirely appropriate to dismiss the proceeding under section 75 of the Victorian Civil and Administrative Tribunal Act 1998. However, in proceedings arising under the Planning and Environment Act 1987 where the decision under review is to grant a permit, I consider that in disposing of a proceeding, the Tribunal needs to consider the nature and status of the decision under review and its obligations under section 85 of the Planning and Environment Act 1987, which include whether or not a permit should be granted.
9. I conclude that the preferable approach is to deal with the review applications in accordance with the provisions of the Victorian Civil and Administrative Tribunal Act 1998 and the Planning and Environment Act 1987. The use, development and/or subdivision of the various parcels of land for which permit applications were made are now permitted by the planning scheme under conditions set out in incorporated documents, which form part of the Planning Scheme. It is the planning scheme and these conditions that should now govern how the land is used, developed or subdivided, not any permits.

1. In determining the application for costs by FOS against the Minister, I must be guided by section 109 of the Victorian Civil & Administrative Tribunal Act 1998. The Tribunal's power to award costs is limited to parties to the proceeding.
2. The Minister issued the notices of decision, which are the subject of the review applications, and is a party in these proceedings in his capacity as responsible authority under the Glenelg Planning Scheme. The Minister approved Amendment C93 in his capacity as a planning authority under the Planning and Environment Act 1987. In each instance, he is acting in two different capacities.
3. In making an application for costs against the Minister, FOS has not distinguished between the Minister in his capacity as responsible authority and his capacity as planning authority.
4. Having regard to the substantive reasons given by FOS for claiming costs, it is the actions of the Minister as planning authority that FOS is complaining about. FOS say it was unfair of the Minister to leave it so late in the piece - mere days before the hearing - to approve the Amendment. This delay led FOS to incur unnecessary costs in preparing for the hearing.
5. I agree with FOS that the delay in approving the Amendment has disadvantaged FOS. At the directions hearing on 6 July 2012 when the dates for the substantive hearing of these proceedings were set, I asked the Minister's representative whether the Minister was intending to exercise his powers under the Planning and Environment Act 1987 to intervene in this matter. The Minister's representative said that he had no instructions on this. I nevertheless indicated that if the Minister was going to intervene in this matter, it would be better if he did so sooner rather than later.
6. In the intervening period, FOS and the Gunditj Mirring prepared extensive witness material for the hearing. In addition, other parties also prepared material for the hearing and in response to the Tribunal's detailed procedural orders dated 27 July 2012.
7. If the Minister always intended to amend the planning scheme to allow the use and development, which are the subject of these proceedings, to proceed, as the transcript of a radio interview with the Minister for Planning, Matthew Guy, given on 4 October 2012[7] would seem to imply, it is unfortunate that the Minister did not act sooner to avoid unnecessary expenditure by all parties on preparation for the hearing.
8. Nevertheless, I find it is the conduct of the Minister as planning authority that FOS considers unreasonable and that has unnecessarily disadvantaged FOS. The Minister in his capacity as planning authority is not a party to these proceedings. The Minister is a party only in his capacity as responsible authority.
9. Under section 109(2) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal may order that a party pay all or a specified part of the cost of another party in a proceeding. It does not provide the Tribunal with the power to award costs against someone who is not a party.
10. I therefore find that I have no power to award costs against the Minister in his capacity as planning authority. I may only consider an application for costs against the Minister as a party in the proceedings in his capacity as responsible authority.
11. In deciding whether it is fair to make an order for costs under section 109(2), I must have regard to the matters set out in section 109(3). Having regard to these matters I make the following findings:
    • The Minister as responsible authority has not conducted the proceeding in a way that unnecessarily disadvantaged FOS. The Minister has not been guilty of any of the types of conduct set out in subparagraphs (i)-(vi) of section 109(3)(a).
    • The Minister as responsible authority has not been responsible for prolonging unreasonably the time taken to complete the proceedings.
    • It is not relevant to address the relative strengths of the claims made by each of the parties under section 109(3)(c) because there has been no hearing or determination on the merits. Notwithstanding the strength of views held by FOS and the permit applicants about the respective merits of their cases, it is inappropriate to speculate about what findings or conclusions the Tribunal may have reached had it considered the merits.
    • Equally, the nature and complexity of the proceedings are not relevant.
    • Under section 109(3)(d), the Tribunal may have regard to any other matter the Tribunal considers relevant. I have considered the various submissions put forward by FOS on this point, but I am not persuaded that they justify an award of costs. There was no conduct on the part of the Minister in his capacity as a party to the proceeding in his role as responsible authority that would justify an award of costs.
12. I appreciate that the distinction I have drawn between the different capacities in which the Minister was acting may appear to be somewhat technical. However, there is a very clear distinction between the roles of a responsible authority and a planning authority established under the Planning and Environment Act 1987. If the Minister had not also been the responsible authority and had acted to amend a planning scheme as he did, which sometimes has occurred in other situations, there would be no question that a party could not claim costs against the Minister for amending the scheme. Therefore, although FOS has unnecessarily incurred costs, it is not as a result of the conduct of the proceeding by another party to the proceeding.
13. The costs application by FOS is therefore refused.

[1] Castik Investments Pty Ltd v Stonnington City Council [1999] VCAT 190 at [34]

[2] Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259; The Sisters Wind Farm Pty Ltd v Moyne Shire Council [2012] VSC 324

[3] [2001] VCAT 1674

[4] [2008] VCAT 2259

[5] [2011] VCAT 1635

[6] [2009] VCAT 1926

[7] Exhibit NC-2 to Affidavit by Nicholas Croggon dated 18 October 2012