The application is struck out for want of jurisdiction.
[2]
Minister for Planning - Department of Planning & Community Development
[3]
Through an application under s 87A of the Planning and Environment Act1987, the applicant seeks to amend planning permit No. issued by Stonnington City Council for land at 397 Toorak Road, South Yarra.
The land is used as a Veterinary Clinic, and the purpose of the application is to seek to authorise or legitimise the use of an upstairs area at the premises for the boarding of cats.
Upon reviewing the file prior to the hearing, it became apparent that the 1997 permit had been issued at the direction of the former Administrative Appeals Tribunal, rather than by VCAT which did not come into existence until 1998. At the commencement of the hearing, I therefore brought to the parties' attention copy of the decision in Popular Pastimes Pty Ltd v Melbourne City Council (Red Dot) [2008] VCAT 1184. That decision had held, amongst other things, that the Tribunal only had jurisdiction under s 87A of the Planning and Environment Act1987 to consider the amendment of a permit issued at the direction of the Victorian Civil and Administrative Tribunal (ie the current VCAT) rather than its predecessors. It therefore appeared that the Tribunal may lack jurisdiction to consider the case under s 87A.
The matter was stood down to enable the parties to consider this issue, and to consider whether it was possible to amend the application in some way to bring it within the jurisdiction of the Tribunal. When the Tribunal resumed, Ms Wilson on behalf of the applicant indicated that she did not seek to amend the application, and that it should be struck out for want of jurisdiction. She indicated that the applicant would make an application under s 72 of the Planning and Environment Act1987 to amend the permit which might either resolve the matter or create the foundation for the matter to come back before the Tribunal in its review jurisdiction.
Ms Cincotta on behalf of the objectors was keen to have the matter proceed on some or all of the underlying "merits" issues, given that all parties and their representatives were present and otherwise ready to proceed. Ms Cincotta indicated that the Tribunal had wide powers of amendment under the Victorian Civil and Administrative Tribunal Act1998 which could be used to amend the application before the Tribunal.
At least three options were canvassed:
it may have been possible to amend the application to be an application under s 87 of the Planning and Environment Act1987. However, after seeking instructions, Ms Wilson advised that she did not believe the applicant could argue its case within any one of the six limited grounds under that provision;
Ms Cincotta contended that the application could be converted to an application for review, for example under s 79 of the Planning and Environment Act1987. However, this would involve the transfer of the proceedings from the "original" jurisdiction of the Tribunal to its "review" jurisdiction, which would be difficult in the absence of any Council decision on the matter having been sought or made.
Ms Cincotta suggested that the application could be converted to an application under s 149A or s 149B of the Planning and Environment Act1987 to enable a declaration to be made as to whether the use of the land for cat boarding was ancillary to the use of the land as a Veterinary Clinic. This would at least enable a decision to be made on a key "merits" issue that, depending on how it was resolved, might be lead to other applications or proceedings being unnecessary.
The Tribunal indicated that it was willing to consider the third option. The underlying philosophy of the Victorian Civil and Administrative Tribunal Act1998 is to try to get to the substantial or underlying merits of the proceeding without recourse to legal technicalities, assuming of course that the matter falls within the jurisdiction of the Tribunal. However, after the matter was again stood down to enable Ms Wilson to obtain instructions, Ms Wilson returned and advised that she did not make any application to amend the application in this proceeding, and still sought that it be struck out for want of jurisdiction.
The Tribunal would be most reluctant to amend an applicant's application at the behest only of the respondent, and where there is no consent from the applicant to that course of action. Despite the wide powers of the Tribunal, I would be reluctant to force an applicant to make a procedural application it did not wish to make, even if I had the power to do so.
It follows that, given there is no application by the applicant in this proceeding to amend the proceeding to bring it within the jurisdiction of the Tribunal, the application should be struck out for want of jurisdiction. The matter is therefore at an end.
Parties
Applicant/Plaintiff:
Graham
Respondent/Defendant:
Stonnington CC & Ors [2009] VCAT 1897
Cases Cited (2)
Graham v Stonnington CC & Ors [2009] VCAT 1897 (11 September 2009)
Planning and Environment Act1987s 87A; whether reference to "Tribunal" in s 87a includes statutory predecessors to VCAT; decision in Popular Pastimes Pty Ltd v Melbourne City Council (Red Dot) [2008] VCAT 1184 followed; whether appropriate to amend application at respondent's behest to facilitate consideration of underlying merits of application.