Glenample Air Pty Ltd v Corangamite SC [2011] VCAT 1361

1. Application P121/2011 is dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Application P132/2011 is dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

Mr Peter Lithgow of counsel, instructed by Maitland Lawyers

1. These two proceedings involve:
   • An application under section 89 of the Planning and Environment Act 1987[1] to amend planning permit No 1194 (the permit). This permit was issued by the former Shire of Heytesbury on 23 September 1993 for the "construction of aircraft hanger and use of airport for commercial purposes". A recent decision by Senior Member Byard in Corangamite SC v Cumming & Anor (No 2)[2] held that the permit allowed the take off and landing of helicopters for commercial purposes. Glenample Air, which is a rival operator of helicopters at Princetown, close to the Twelve Apostles, seeks to amend the permit to include conditions restricting the use of the land so as to exclude use of the subject land for the take off, landing, or storage of helicopters.
   • An application for declaration under section 149A of the Planning and Environment Act 1987[3] for the following declarations:
     1. There are no existing use rights relevant to the conduct of a heliport on the land.
     2. The use of the land for heliport purposes goes beyond the limited purpose of the preserved existing use right and adversely affects the amenity of the area.
2. The purpose of this practice day hearing was to consider:
   • Whether the proceedings raised new issues not already dealt with in application P3259/2009 (the proceeding determined by Senior Member Byard).
   • The standing of the applicant to make the section 89 application in P121/2011.
3. Glenample Air says that the primary proceeding before the Tribunal is its application to amend the permit. It said at the hearing that it seeks to amend the permit so it includes similar conditions to other planning permits for heliports, such as its own permit, so as all helicopter operators are operating on a level playing field. It says that there was a material mistake in relation to the grant of the permit in terms of the assumption on which the permit was granted. It says that when the Shire of Heytesbury considered the initial permit application, it thought the permit only allowed fixed wing aircraft to use the land and that the permit was not intended to allow helicopter flights. There was a material mistake in relation to the grant of the permit because the decision of the council was made without consideration of the fact that the land may be used for helicopter flights. It failed to prohibit helicopter flights or to impose the requisite conditions normally imposed on helicopter flights.
4. Therefore, says Glenample Air, these proceedings are not about the meaning of the permit but an application to change the content of the permit. Its application for a declaration about existing use rights is only intended to close off any 'escape route' by the respondent, who may argue in respect of the section 89 application that any amendment to the permit is futile because there are existing use rights to use the land for a heliport. Glenample Air notes that the Tribunal has not previously considered the issue of existing use rights and that Senior Member Byard appeared to invite Glenample Air to make its own application for declaration on this subject.[4]

Standing of Glenample Air to make an application under section 89

1. Whilst the ground relied upon to justify amending the permit is a material mistake in relation to the grant of the permit[5], Glenample Air must first establish that it has standing under section 89 to make the application. Section 89 provides that an applicant for cancellation or amendment under section 87 must be a person who objected or would have been entitled to object to the issue of the permit. Glenample Air is not a person who objected to the issue of the permit. The question is whether it would have been entitled to object to the issue of the permit.
2. I was told that Glenample Air Pty Ltd, as a corporate entity, has only been in existence for four years. Therefore, Glenample Air could not have been entitled to object to the issue of the permit in 1993 because it did not exist at that time.
3. Mr Morris, on behalf of Glenample Air, then sought to amend the section 89 application by joining Richard Nesseler as an applicant. Richard Nesseler is involved with the operation of helicopters by Glenample Air. However, it turns out that Richard Nesseler was only 14 in 1993.
4. Mr Morris then sought to join Kurt Nesseler as a joint applicant. Kurt Nesseler is Richard Nesseler's father. It was suggested that Kurt Nessler could be joined on the basis that in 1993 he was a joint owner of a property known as "Glenample" at Princetown, approximately 20 kilometers to the east of the subject land and much closer to the Twelve Apostles. On 20 January 1994, a planning permit was issued by the former Shire of Heytesbury[6] to use the "Glenample" property to operate helicopter scenic flights. The applicant was Bellarine Aviation Pty Ltd. This permit was subject to restrictive conditions about flying helicopters in the vicinity of the Twelve Apostles.
5. I was told that "Glenample" is not the property from which Glenample Air currently operates. Glenample Air operates from another property on the Great Ocean Road under planning permit 1233 issued on 19 January 1995. The applicant for this permit was Helicopter Operators Pty Ltd. This permit allows: "establish and operate helicopter landing and storage facility for the conduct of scenic flights and charter work." It too is subject to restrictive conditions about flying helicopters in the vicinity of the Twelve Apostles.
6. I consider that the connections with other properties and permits are far too tenuous to give either Richard Nessler or his father, Kurt Nessler standing under section 89. I do not consider that either can be characterised as persons who would have been entitled to object to the issue of the permit back in 1993. On the information before me, I am not persuaded that Richard Nessler or Kurt Nessler are persons who could be said to have been affected by the grant of the subject permit at the time when the permit was granted, which is the relevant time when this test must be applied, within the meaning of section 57(1) of the Act and who therefore would have been entitled to object to the issue of the permit as required by section 89(1). I am therefore not prepared to amend the application to join them as applicants.
7. This leaves Glenample Air as the sole applicant. Glenample Air does not deny it is making this application as a commercial competitor of the respondent. The respondent owns the subject land and operates helicopters from it under the subject permit. Glenample Air perceives that the respondent enjoys a commercial advantage in being able to operate his helicopters without the constraints to which Glenample Air is subject under its permit. It says there should be a level playing field for the operators of helicopters around the Twelve Apostles. However, it appears that it wishes to go beyond this and amend the permit to prohibit helicopter flights altogether from the subject land.
8. Sections 57(2A) and (2B) of the Act provide that:

(2A) The responsible authority may reject an objection which it considers has been made primarily to secure or maintain a direct or indirect commercial advantage for the objector

(2B) If an objection has been rejected under subsection (2A) this Act applies as if the objection had not been made.

1. These provisions were included in the Act by the Planning and Environment (Amendment) Act 1993, which was assented to on 14 December 1993. Thus, strictly speaking, these provisions were not in the Act when the subject permit was granted in September 1993. However, the Planning and Environment (Amendment) Act 1993 also amended sections 150(4)(a) and 150(6) of the Planning and Environment Act 1987 so that these sections now read as follows:

(4) If any proceedings are brought before the Tribunal under this Act and the Tribunal is satisfied that -

(a) the proceedings have been brought vexatiously or frivolously or primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings; and

(b) any other person has suffered loss or damage as a result of the proceedings -

the Tribunal may order the person who brought the proceedings to pay to that other person an amount assessed by the Tribunal as compensation for the loss or damage and an amount for costs.

(6) The Tribunal may make an order under subsection (4) whether or not the responsible authority has under section 57 rejected an objection by the person bringing the proceedings on the ground that it was made primarily to secure or maintain a direct or indirect commercial advantage for the objector.

1. In my view, section 150(4)(a) applies to these current proceedings.
2. I regard the section 89 application to prohibit helicopter flights or to introduce similar restrictive conditions to those in the permit that Glenample Air operates under, as an attempt to seek secure an indirect commercial advantage for Glenample Air by removing what it perceives to be a commercial advantage enjoyed by the respondent.
3. I do not consider that Glenample Air has standing to make an application under section 89. But even if I did, I doubt that any Tribunal could be satisfied it would be just and fair in the circumstances to amend the permit under section 91(3)(c).
4. There is a very clear intent expressed in the legislation that the opportunity to make objections to planning permits or to bring proceeding before the Tribunal should not be used for the purpose of securing or maintaining a direct or indirect commercial advantage for the person making the objection or bringing the proceedings.
5. I do not consider that the provisions of Division 3 of Part 4 of the Act were intended to give third parties an opportunity to cancel or amend a permit long after it has been issued because the permit benefits land and the third party wishes to remove that benefit to its own commercial advantage. Planning permits confer valuable rights. They should not be upset or interfered with lightly. Having regard to the strictures in the Act against objections and proceedings based on securing or maintaining a direct or indirect commercial advantage, and the public policy need to uphold and enforce planning permits once they are granted, I consider that this proceeding could be considered to be an abuse of process under section 75(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.
6. Whilst I propose to dismiss the section 89 application on the basis that the Tribunal has no jurisdiction due to the applicant's lack of standing, I also consider that there are strong grounds for regarding the application as an abuse of process.

1. A further issue was raised at the hearing about the applicant's standing to make an application for declarations under section 149A of the Act. Such an application can only be made by a specified person. Glenample Air is not a specified person within the meaning of section 148 because it is not the owner, user or developer of the land directly affected by the matter.
2. Mr Morris then applied to amend the application to make it an application under Section 149B.
3. Section 149B is broader in its ambit than 149A. It provides:

(1) A person may apply to the Tribunal for a declaration concerning -

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act.

(2) On an application under subsection (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.

1. However, as I noted in Farr v Boroondara CC[7]:

[21] Although section 149B is a broad power, it is not unlimited. It must relate to any matter which may be the subject of an application to the Tribunal under the Planning and Environment Act 1987. It is unclear whether this means an application by anyone at all or an application by the applicants for declaration. This issue was not argued before me and I am therefore not prepared to make a definitive ruling on the point. Nevertheless, the uncertainty of the applicants' standing to seek a declaration under section 149B regarding the respondents' existing use rights raises doubts about the appropriateness of using section 149B as a means of declaring that land, which the applicants have no interest in, does not have existing use rights.

1. The declarations being sought in Farr were akin to the declarations being sought in the present case. In Farr, a third party was seeking a declaration about the existence, or rather non-existence, of existing use rights in respect of the subject land, which was owned by the respondent in that case. As I said in Farr, the Tribunal will only have jurisdiction under section 149B if each of the issues about which the declaration are sought can be the subject of a separate application to the Tribunal.
2. Likewise in the present case, to rely upon section 149B(1)(a) each of the declarations being sought by Glenample Air must be capable of being the subject for separate application to the Tribunal.
3. The concerns, which I expressed in Farr about the standing of the applicant in that case to seek a declaration under section 149B regarding the respondent's existing use rights, also arise in the present case.
4. I am doubtful is whether it is possible for the applicant to seek a declaration about the existing use rights, or rather the lack of existing use rights, in respect of land that it neither owns, occupies or have any other interest in. My doubts arise because the applicant appears to have no rights to make an application concerning such existing rights under any other provisions of the Act.
5. A specified person may apply for a declaration about existing use rights, but Glenample Air is not a specified person and therefore cannot apply for a declaration under section 149(A).
6. Section 97P of the Act enables an applicant for a certificate under section 97N to apply to the Tribunal for a review of a decision by the responsible authority to refuse or fail to issue a certificate. Under section 97N, a person may apply to the responsible authority for a certificate that an existing use or development of land complies with the requirements of the planning scheme. However, the applicant is not the owner, occupier or developer of the subject land and it is not seeking to establish that the existing use and development of the subject land complies with the scheme. Rather, it is seeking to establish that no existing use rights exist under clause 63 of the planning scheme. Therefore, in my view, it is doubtful whether the applicant can look to section 97P as establishing the basis for seeking a declaration under section 149B.
7. I am therefore not persuaded that it is appropriate to use section 149B as a means of declaring that land, which Glenample Air has no interest in, does not have existing use rights for the conduct of a heliport on the land. Consequently, I am not prepared to exercise my discretion under section 127 of the Victorian Civil and Administrative Act 1998 to amend application P132/2011 from an application under section 149A of the Planning and Environment Act 1987 to one under section 149B.

1. I have carefully read the decision by Senior Member Byard in Corangamite SC v Cummings (2)[8]. The specific declaration that the council sought in that case was that the permit does not allow the land, subject of the permit, to be used as 'heliport' for helicopter flights. Senior Member Byard was not prepared to make this declaration. He said:

[53] ... I consider that the permit, and its words granting permission, are in terms that allow the take off and landing of helicopters for commercial purposes and that this would cover the take off and landing of aeroplanes and/or helicopters for the purposes of scenic flights or joy rides.

1. A second declaration was sought by the council that there were no existing use rights relevant to the conduct of a heliport on the land. Ultimately, in light of the Tribunal's decision about the first declaration, the council withdrew its application for the second declaration. In giving the council leave to otherwise withdraw this aspect of the proceeding, Senior Member Byard commented on Glenample Air's desire to proceed with the second declaration. In this context, he said in Corangamite SC v Cummings[9]:

[8] The responsible authority needs leave to withdraw but I do not think that there is any reason in present circumstances, why that leave should be denied. If Glenample Air Pty Ltd considers that it has a good and viable case for a declaration in present circumstances and thinks that it wants a declaration, it should make a fresh application of it own. It would then have conduct of its own proceeding, and not be dependant on a reluctant applicant with no interest in pursuing the matter. It would also have responsibility for establishing its case in relation to any necessary facts, law or relevant discretionary considerations. It may or may not decide to pursue such a course, but I consider that it would be much less confusing, as well as the appropriate cause procedurally, for it to proceed in that manner. In that event the parties may wish to draw the attention of the Tribunal to the circumstance that I have heard and determined in this current proceeding.

1. Glenample Air has interpreted these comments as encouragement for its current application. However, I do not consider that these comments by Senior Member Byard necessarily mean that an application for a declaration under section 149B is appropriate. Apart from the problems in establishing jurisdiction, which I have outlined above, it is difficult to see what utility there might be in making such a declaration where the application to amend the permit under section 89 cannot proceed due to lack of standing and where Senior Member Byard has, in effect, found that the respondent is not in breach of his permit to use the land for helicopter flights.
2. If indeed it is the applicant's contention that the respondent is in breach of his permit, then the appropriate remedy is to make an application for an enforcement order. Under section 114 of the Act, any person may apply for an enforcement order. This would then directly raise issues about the meaning of the permit and perhaps existing use rights. Existing use rights are commonly called into question when they are relied upon as a defence to an enforcement order application. In that context, Glenample Air may well wish to argue that the respondent has no existing use rights, although such an argument would only arise if Glenample Air could first establish a prima facie breach of the planning scheme or planning permit. However, in light of Senior Member Byard's decision, it is difficult to see how an application for enforcement order might be framed.
3. In any event, in the absence of such a proceeding, I can see no utility in proceeding with an application for a declaration that, in my view, simply seeks to re-agitate issues that were comprehensively canvassed by Senior Member Byard in the earlier decision.
4. I have also had regard to comments, which I made in an order dated 26 March 2010 in the previous proceeding[10] when I determined to join Glenample Air as a party. I said:

[8] There would be nothing to stop Glenample Air from making its own application under section 149(B) as to the interpretation of the planning permit and the existence of any existing use rights regarding the subject land or from making an enforcement order application under s.114 of the Act.

1. Since then I have had the opportunity to reflect further on this course of action. Whilst I consider that it is open to Glenample Air to make an application for an enforcement order, I am not convinced it may make an application under section 149B. It would depend on how such an application was framed. However, as no such application has been made (and I do not consider it is appropriate to convert the present proceeding into such an application), I am not prepared to make a definitive ruling on this point.

1. For all these reasons, I am not prepared to exercise my discretion under section 127 of the Victorian Civil and Administrative Tribunal Act 1998 to amend application P132/2011 from an application under section 149A to one under section 149B of the Planning and Environment Act 1987. I will summarily dismiss this proceeding on the basis that the applicant lacks of standing and consequently the Tribunal has no jurisdiction.
2. I will also dismiss application P121/2011 to amend the permit on the basis that the applicant lacks standing and consequently the Tribunal has no jurisdiction.

[2] [2010] VCAT 1229

[4] Corangamite SC v Cummings (No 3) [2010] VCAT 1911 at [8]

[5] Section 87(1)(c) and section 89(1)(b)(iii) of the Planning and Environment Act 1987

[7] [2011] VCAT 992. In Farr, nothing had been done by the responsible authority in the circumstances of that case, which could trigger the application of section 149B(1)(b). Consequently the applicants needed to rely upon section 149B(1)(a).

[8] [2010] VCAT 1229

[9] [2010] VCAT 1911 Corangamite SC v Cummings