REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

LEGISLATION - interpretation or application of statutory provision

Section 71 Planning and Environment Act 1987 - power of responsible authority to correct a permit following a correction order by the Tribunal

Where a later order under the 'slip rule' corrects an error in an earlier order, the later correcting order speaks from the date of the earlier corrected order so that the earlier order is deemed or treated as having always operated as corrected. A correction order by the Tribunal therefore takes effect from the date of the first order.

Under section 71 of the Planning and Environment Act 1987, a responsible authority may correct a permit issued by the responsible authority (including a permit issued at the direction of the Tribunal) if the permit contains a clerical mistake. If a correction order is made by the Tribunal that deletes a condition, such order speaks from the date of the original order. A permit issued that includes the deleted condition therefore contains a clerical mistake, which a responsible authority may correct. The same applies if a condition is added or amended.

Section 149A Planning and Environment Act 1987 - declaration regarding validity of a permit that is later corrected by the Tribunal under section 119 Victorian Civil & Administrative Tribunal Act 1998 - power of council to correct permit under section 71 Planning and Environment Act 1987

Greater Shepparton CC v Living Street Designs (includes Summary) (Red Dot) [2008] VCAT 1797

1. Pursuant to section 149A(2)(a) of the Planning and Environment Act 1987 I declare that:
   • (a) The correction order made by the Tribunal under section 119 of the Victorian Civil & Administrative Tribunal Act 1998 dated 13 March 2008 takes effect from the date of the Tribunal's order made on 6 March 2008.
   • (b) The permit issued by the responsible authority on 16 March 2008 is a valid permit but it contains a clerical mistake by reason of the inclusion of condition 4.
2. Pursuant to section 149A(2)(b) of the Planning and Environment Act 1987 I direct the responsible authority to correct the permit issued on 16 March 2008 by deleting condition 4. I direct the responsible authority to issue an amended permit which contains this correction.

1. By order dated 6 March 2008, Member Bennett granted a permit regarding the Shepparton Hotel allowing erection of an internally illuminated electronic promotion sign. A permit was directed to issue including the following condition:

[4] The content displayed by the operation of the sign must be limited to the promotion only of the goods, services and activities available from, and to be conducted at, the Shepparton Hotel.

1. On 16 March 2008, the council issued a permit in accordance with this order.
2. On 13 March 2008, the Tribunal made a correction order pursuant to section 119 of the Victorian Civil & Administrative Tribunal Act 1998 in which it deleted condition 4 on the basis that condition 4 had been included by a mistake or error. The council did not receive notice of the correction order until 18 March 2008, which was after the issue of the permit.
3. The council is concerned that having issued the permit in accordance with the order made by the Tribunal on 6 March 2008, it does not have the power to amend the permit.
4. At the suggestion of the Tribunal's Senior Registrar, the council has applied for a declaration under section 149A of the Planning and Environment Act 1987 that the permit issued by council on 16 March 2008 is invalid. This will enable it to issue a new, corrected permit in accordance with the order of 13 March 2008.
5. In my view, it is not necessary to make a declaration that the permit issued pursuant to the order dated 16 March 2008 is invalid before the council issues a permit without condition 4 in accordance with the correction order dated 13 March 2008.
6. The Federal Court, in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd[1], held that where a later order under the 'slip rule' corrects an error in an earlier order, the later correcting order speaks from the date of the earlier corrected order so that the earlier order is deemed or treated as having always operated as corrected. Elyard relied upon and endorsed the view of the High Court on this point in L Shaddock and Associates Pty Ltd v Paramatta City Council[2].
7. The Tribunal's correction order therefore takes effect from the date of its first order on 6 March 2008. To give effect to this order, the council must issue a permit in accordance with the corrected order. The fact that it has issued a permit already, does not prevent the council from issuing a permit in accordance with the corrected order which does not include condition 4.
8. The permit issued on 16 March 2008 contains a mistake. Under section 71 of the Planning and Environment Act 1987, a responsible authority may correct a permit issued by the responsible authority (including a permit issued at the direction of the Tribunal) if the permit contains a clerical mistake. Clearly, if a correction order is made by the Tribunal that deletes a condition, such order speaks from the date of the original order. A permit issued that includes the deleted condition therefore contains a clerical mistake, which a responsible authority may correct. The same applies if a condition is added or amended.
9. It is common practice for councils in such circumstances to issue a permit in the corrected form, which notes when the permit was corrected and that it was done so at the direction of a Tribunal order made pursuant to section 119 of the Victorian Civil & Administrative Tribunal 1998.
10. I am not prepared to make a declaration under section 149A that the permit issued on 16 March 2008 is invalid. It is not invalid. However, it contains a mistake. The mistake is the inclusion of condition 4. The council has power to correct the permit by removing this mistake under section 71 of the Planning and Environment Act 1987.
11. I will make a declaration to this effect and direct the council to issue a corrected permit.
12. In conclusion, I note that an objector at the initial hearing, Mr Rocky D'Agostino, has lodged a statement of grounds stating that he wishes to contest this application. His statement of grounds is misconceived. It seeks to re-agitate the merits of the sign, which were decided by Member Bennett in his original decision. In applications for declarations under section 149A, the parties are confined to specified persons and specified bodies within the meaning of section 148 of the Act. Mr D'Agostino is not such a person. He has therefore no rights to be a party to this application. Furthermore, he has misunderstood the nature of the proceeding. Therefore, I rule that he is not a party and, on this basis, I have not had regard to his views.

[1] (1995) 61 FCR 385

[2] [1982] HCA 59; (1982) 151 CLR 590