Planning List; Application for Review of refusal of Responsible Authority to grant a planning permit; neighbouring objectors lodged statement of grounds giving them status as parties to the Application for Review; Failure of Tribunal to give notice of merits hearing to the neighbouring objectors; Order of the Tribunal directing the Responsible Authority to issue a planning permit in the absence of hearing from the objector parties; Review granted under s.120 in order to determine whether the Tribunal's Order should be varied or revoked; New trial ordered before a different Member.

1. This was an application under section 120(1) of the Victorian Civil and Administrative Tribunal Act 1998 to review an Order made by a Tribunal Member on 9 January 2001 in Application for Review No. 2000/052142 after a hearing on 25 October 2000. The hearing concerned a decision by the City of Port Phillip to refuse to grant a permit (in application No 0491/2000) for the land at 153 Dow Street, Port Melbourne to be developed for the purpose of two double storey town houses. The Member heard Application for Review No. 2000/052142 in the absence of two of the parties, who were neighbouring objectors, and ordered the issue of a planning permit for two double storey town houses.

2. The s.120 applicant, Mr George Christoudias, lives at 155 Dow Street, Port Melbourne, abutting the subject land. Mrs Edgar lives at 157 Dow Street, Port Melbourne, next door to Mr George Christoudias and one away from the subject land.

3. On 1 May 2000 Mr Peter Bogdanis applied for the second time to the Responsible Authority for a planning permit for two double storey town houses on the subject land at 153 Dow Street. The Council had refused his first permit application on 11 February 2000.

4. As the Responsible Authority decided (for the second time) to refuse to grant a permit, it did not require advertising of the proposal pursuant to the Planning and Environment Act 1987, s.52.

5. The permit applicant, Mr Peter Bogdanis, took the decision of the Responsible Authority on Review to this Tribunal. On 18 July 2000 the delegate of the President of the Tribunal required the permit applicant to give written notice of the proposal to neighbours abutting all sides of the subject land, as well as public notice by a sign on the land, pursuant to the Planning and Environment Act 1987, s.83B.

6. The Tribunal sent to Mr Bogdanis' consultant, Bowden Verhoeven, directions about the advertising as well as a copy of the Notice to be posted and to be placed on the land. No Proforma of `Statement of grounds on which I intend to rely at the hearing', for objectors to complete and send back to the Tribunal, was enclosed with the Tribunal correspondence to Mr Bogdanis. There is no legal requirement that such a proforma be enclosed.

7. Mr Peter Bogdanis carried out the advertising in accordance with the President's directions and supplied details of the giving of such notice to the Tribunal, enclosing Declarations of Service dated 24 and 29 August 2000 respectively, and Mail postal receipts. The advertising required all objections to be lodged with the Tribunal no later than 24 August 2000.

7. Some confusion arose as a result of `double notice' being given by the Responsible Authority on 1 August 2000, around this time frame. The Responsible Authority clarified this confusion by writing to all persons to whom the Responsible Authority had itself also given notice, advising them to only take notice of, and respond to, the notice directed from the Tribunal.

8. Mr George Christoudias and Mrs Edgar (`the two neighbours') lodged objections to Mr Bogdanis' proposal upon either receiving written notice by Mr Bogdanis or by the Council or viewing the sign on the land. Mr Christoudias took his and Mrs Edgar's objection to the Responsible Authority, but was advised to lodge them with the Victorian Civil and Administrative Tribunal in accordance with the Delegate's directions. Mr Christoudias did this personally on 18 August 2000, with the Tribunal Registry date and receipt stamp appearing on both his and Mrs Edgar's objection forms containing their statement of grounds, which were placed on the Tribunal file.

9. Lodgement of the objections gave the two neighbours the status of parties to the Review instituted by Mr Bogdanis, pursuant to the Planning and Environment Act 1987, s.83(2) which reads:

(2) In addition to any other party to a proceeding for review under this Act, an objector is a party to a proceeding for review if the objector -

(a) is given notice of the application for review under this Act; and

(b) in accordance with the Victorian Civil and Administrative Tribunal Act 1998, lodges with the Tribunal a statement of the grounds on which the objector intends to rely at the hearing of the proceeding.

10. As the two neighbours were given notice of the Application for Review under s.83B of the Planning and Environment Act 1987 and as they lodged with the Tribunal a statement of the grounds on which they intend to rely at the hearing of the proceeding, s.83(2) accords them the status of parties to the proceeding for review.

11. Hearing notices were sent by the Tribunal to Bowden Verhoeven and the Responsible Authority on 13 September 2000 but the two neighbouring objectors were not invited to the hearing by the Tribunal.

12. The hearing proceeded unwittingly in their absence. The first the objectors discovered this grave omission was in January 2001, after the Member handed down his decision and tenants of the subject land advised their next door neighbour, Mr Christoudias, that the permitholder was going to develop the land.

13. Alarmed, Mr Christoudias immediately lodged with the Tribunal this request for review of the Member's Order, and this hearing was listed.

14. The Member's decision explains how he thought the objectors were not parties to the Application for Review:

This permit application was advertised to adjoining neighbours and one objection was received. Council issued a notice of refusal on the 11th February 1999. An application was lodged for a review of this decision (No. 2000/045436) but then, with the permission of the Tribunal, was withdrawn (presumably because the permit application that is the subject of this review was in train).

Because of the similarity of this proposal and the previous one, and because of the applicant's consent to this action, Council determined to refuse the permit application without advertising. However, because of some confusion in this matter, a form of advertising occurred and two objections were received.

Subsequently, the Tribunal directed that advertising be undertaken by post, including 5 properties in Dow Street and 4 in Bay Street. No responses were received in relation to this advertisement.

The grounds of objection received by Council in relation to the earlier, inappropriate advertising included (and here I have been obliged to rely on Ms Olszewski's summary in her submission):

15. I gave an oral Order at the end of the hearing in terms of the written Order dated 13 February 2001 and I addressed the parties on the availability of s.87 permit cancellation and s.93 stop development orders. Mr Liversidge, who appeared for the permit applicant, requested written reasons which I now deliver.

16. At the commencement of the hearing, Mr Liversidge submitted that there was no power in the Tribunal to permit a review of the Member's Order, as Mr Christoudias was not "a person in respect of whom an order was made", pursuant to the opening words of s.120(1). For purposes of his argument, Mr Liversidge equated the words "in respect of" with "against" and argued that as no order had been made against either Mr Christoudias or Mrs Edgar, there was nothing to review. All that the Tribunal had ordered, he explained, was that the decision of the Responsible Authority not to grant a permit be set aside and direct that a permit issue. It was, if anything, an order against the Responsible Authority but not against the two neighbours. However, Mr Liversidge agreed that both Mr Christoudias and Mrs Edgar were "parties to the proceeding".

17. Mr Liversidge went on to submit, that if I disagreed with him, I ought as a matter of discretion, not permit a review if there is no real prospect of revocation or variation of the Member's Order. He referred me to Whittlesea City Council v Lewis [2000] VCAT 967; Application for Review 1999/71817 per Senior Member Byard at para 13, (unreported).

18. Mr Liversidge also referred me to the heading to s.120, which reads "Re-opening an Order on substantive grounds" and queried whether there were any. In turn, I queried whether the heading formed part of the statute.

19. Pursuant to the Interpretation of Legislation Act 1984, s.36(3):

No marginal note, footnote or endnote in an Act or subordinate instrument and no heading to a provision of an Act or subordinate instrument (not being a heading that forms part of the Act or subordinate instrument by force of sub-section (1), (1A) or (2A) shall be taken to form part of the Act or subordinate instrument.

20. Pursuant to the Interpretation of Legislation Act 1984, s.36(2A)(a):

(a) sections, clauses, regulations, rules or items into which an Act or subordinate instrument, or a Schedule to an Act or subordinate instrument, is divided; or

form part of the Act or subordinate instrument if -

(c) the Act is passed, or the subordinate instrument is made, on or after 1 January 2001; or

(d) the heading is inserted into an Act passed, or subordinate instrument made, before 1 January 2001 by an Act passed, or subordinate instrument made, on or after that date.

21. As s.120 VCAT Act was passed before 1 January 2001, the heading does not form part of the Act. But even if it did, I find that substantial grounds are made out by Mr Christoudias for the reopening of the Order.

22. Mrs Edgar was concerned with issues of privacy into her backyard from the double storey component of the two dwellings and Mr Christoudias was concerned with the bulk, massing, height and length of a wall 6 metres high running 75 metres along his boundary. Both wanted the opportunity so far denied to them to address their amenity concerns in a review of the Member's Order. The Responsible Authority supported Mr Christoudias' request under s.120.

23. The principal issues for consideration in respect of this application for review are:

(i) whether Mr Christoudias is a person "in respect of whom an order was made" pursuant to s.120(1) of the Victorian Civil and Administrative Tribunal Act (`the Act');

(ii) whether there is any real prospect of revocation or variation of Member Read's Order.

STATUTORY INTERPRETATION - "In Respect Of Whom"

24. Mr Liversidge was unable to provide the Tribunal with any authority supporting his interpretation of the opening words of s.120. Nor did he refer the Tribunal to the Victorian Supreme Court case of The Trustees Executors & Agency Co Ltd v Reilly [1941] VicLawRp 22; (1941) VLR 110 at 111 where Mann, CJ held:

The words `in respect of' are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer.

25. Words and Phrases Legally Defined, Butterworths Third Edition, Supplement 2000 refers to other cases which demonstrate the breadth of the phrase:

Australia `Of the words "in respect of", Brennan, Deane and Gaudron JJ said, admittedly in another context, in Technical Products Pty Ltd v State Government Insurance (Qld) [1989] HCA 24; (1989) 167 CLR 45 at 47; [1989] HCA 24; 85 ALR 173 at 175: "The words `in respect of' have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear. .......

Canada `The phrase "in respect of" was considered by this court in Nowegijick v Canada (1983) 144 DLR (3d) 193 at 200, [1983] 1 SCR 29, [1983] CTC 20:

The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject-matters.

In my view, these comments are equally applicable to the phrase "relating to". The Pocket Oxford Dictionary, 7th edn (1984) defines the word "relation" as follows:

. . . what one person or thing has to do with another, way in which one stands or is related to another, kind of connection or correspondence or contrast or feeling that prevails between persons or things . . .

`So, both the connecting phrases of s.241(3) suggest that a wider rather than narrow view should be taken when considering whether a proposed disclosure is in respect of proceedings relating to the administration or enforcement of the Income Tax Act.' Slattery (Trustee of) v Slattery (1993) 106 DLR (4th) 212 at 226, per Iacobucci J (Can SC)

26. Unlike traditional civil proceedings, where orders are usually made against persons, planning is an administrative exercise where persons with interests in land, land use, or land development, such as proprietor, proponent, neighbour, resident, statutory authority, referral authority, interest group - and where either the municipal council or the Minister for Planning as Responsible Authority - come together to consider a proposal (or a breach of planning controls) which affect each of them in various and different ways. The decision maker, usually the municipal council acting as the appointed Responsible Authority, makes a decision which in turn, affects some or all of the above classes of persons, depending on the facts in each case.

27. This case is a straightforward example of an application by a proprietor of land for planning permission to build two double storey houses on a fairly narrow and small block of land in an inner urban suburb of Melbourne, to which two neighbours have objected on amenity grounds and in respect of which a decision needs to be made. In the facts of this case, the decision was on review to this Tribunal and the Member had to (and did) make a decision which concerned each and every one of the parties to the review before him.

28. The effect of the Member's decision was to permit the development on the boundary of one of the parties and one away from the dwelling of the other of the parties. Mann, CJ speaks merely of a "connection or relation between the two subject matters to which the words refer". The two subject matters are person and order made and in my opinion the connection between the Member's Order and the two neighbours is patent. It is clear that the effect of the Order is that a double storey development which did not exist before could now legally be constructed in close proximity to their dwellings and alter the status quo, or the amenity they presently enjoy. Being parties to the proceedings, this was patently something about which they were concerned and wished to be heard. The order was clearly made in respect of them.

EXERCISE OF DISCRETION - "Any Real Prospect Of Variation Or Revocation"

29. The principal reasons influencing me to order a review of the Member's Order are:

1. Mr Christoudias and Mrs Edgar were both `parties to the review' pursuant to the Planning and Environment Act 1987, s.83B.

2. These parties were not invited to the hearing by the Tribunal due to Tribunal oversight.

3. It is obvious that these parties would be directly affected by the proposed development and any ensuing Tribunal order, in view of the close proximity of the proposed development to their own places of residence.

4. These parties feel that consideration of issues that affect them personally, such as overlooking or privacy into backyards (Mrs Edgar) and length, height and massing of walls along the boundary extending 6 metres in height for a length of 75 metres (Mr Christoudias) have not been adequately addressed by the Tribunal or at all, due to their absence from the hearing. The Member thought no responses had been received in relation to the Tribunal's directions to advertise, but that was incorrect. The Member's reliance on a summary of objections to earlier advertising in Ms Olszewski's summary indicates he did not read the objections on the Tribunal file.

5. In view of all the above the Tribunal is of the opinion that there is a real possibility of a variation to the Tribunal's order, and is of the opinion that it is preferable for the Order to be reviewed provided a speedy hearing can be convened, so that Mr Bogdanis is not too prejudiced.

6. It is clear that Mr Bogdanis will also be disadvantaged by me permitting a review of the Order, as to date he has the benefit of a Planning Permit to develop two double storey houses which may or may not now be varied or cancelled. He has had to go through the entire planning process from lodgement with Council on 1 May 2000 to a hearing on review at the Tribunal in October 2000 and await a decision received in January 2001. He has done nothing wrong and has complied with all that was required of him procedurally. He complied with the Tribunal's advertising requirements. He thought he had finally overcome all hurdles, only to find this s.120 spectre confront him.

7. In balancing the interests of the parties, the fairer course is to have the Order reviewed so that the objectors have the opportunity to address the Tribunal and put their case and the other parties have the opportunity to address the concerns

8. In balancing the interests, I also take into account that Mr Bogdanis has neither:

(i) plans endorsed yet under the planning permit issued to him under Order made by the Member on 9 January 2001;

(ii) nor a building permit for demolition of the existing house on the subject land (no planning permission for demolition is required);

(iii) nor a building permit for construction of the two new double storey dwellings permitted under the planning permit.

9. However, the tenants have been given notice and the existing house is presently unrented.

10. Enquiries from Registry have revealed that a speedy hearing could be granted by the Tribunal, commensurate with the need for the parties to have time to prepare for that new hearing.

11. Accordingly, I have ordered a review within seventeen days in the terms set out in my written Order dated 13 February 2001.

30. Mr Liversidge urged upon me that the Tribunal to review the Order should be the same Member as made the Order in the first place. If it were the review of an order under the slip rule, s. 119, not only would I agree unreservedly, I would see no alternative. But this case is different. It is an application under s.120. The Council and both objectors expressed a clear preference for a completely independent Member who had not already pronounced a decision in the matter.

31. In view of the majority of the parties that an independent Member be allocated to hear the review, as there was a discomfort with or perception that the Member might possibly be biased, he having decided against the Council and the written objections mentioned to him by the Council, I ordered that the hearing be reconstituted by the President with a new Member.

32. The Order made on 13 February 2001 reflects this and other matters to compensate the permitholder, such as a Certificate under the Appeals Costs Act 1998.

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