Harvey & Anor v Mutsaers & Ors [2011] VSCA 101

2 The order made by the Tribunal, against the opposition of the applicants, was to disregard the failure of Mr and Mrs Mutsaers to comply with s 69(1) of the Planning and Environment Act 1987 by not applying for an extension of their planning permit (Permit No PLO4/015420.01) before the permit had expired on 26 February 2008 or within three months afterwards.

3 The Tribunal held that, despite the non-compliance, it nevertheless had jurisdiction to determine the application by the Mutsaers for review of the decision by the responsible authority, the Manningham City Council ('the Council'), to refuse an extension of time in which to apply for an extension of the permit. Mr and Mrs Mutsaers are named as the first and second respondents to this application. The Council is the third respondent. None of the respondents took part in this proceeding, save for an appearance by the Council following a request to be heard on the question of costs. A letter was received by the Court from Mr and Mrs Mutsaers dated 6 April 2011 which indicated that they will abide by any order of the Court on the basis that no order is sought against them, including no order for costs.

4 The Tribunal set aside the decision of the Council. It declared that the time within which the development described in Permit No PL04/015420.01 is to be completed is 23 July 2012. In making its orders, the Tribunal relied on cl 62 of sch 1 of the Victorian Civil and Administrative Tribunal Act, which provides:

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

5 The statutory predecessor to cl 62 was s 54 of the Planning Appeals Act 1980, which was drafted in somewhat similar terms. The principal Supreme Court authority on the scope and force of cl 62 is a judgment of Balmford J in Rumpf v Mornington Peninsula Shire Council[1] in which her Honour held that cl 62 empowered the Tribunal to set aside a decision of the Council, as the responsible authority, refusing to grant a permit for the development of the surf lifesaving club, where the Minister, by failing to give consent to the application within the required time (28 days) under s 39(3) of the Coastal Management Act 1995, had been deemed to refuse the application. Section 61(3) of the Planning and Environment Act provided that the responsible authority must refuse to grant the permit if there has been a deemed refusal by the Minister administering the Coastal Management Act.

6 Balmford J, after considering the legislative history of cl 62, held that she was[2]

satisfied that the tribunal had power, by virtue of cl 62, to disregard the failure of the minister to comply with s 39(3) of the Coastal Management Act.

7 More generally, her Honour said of cl 62:[3]

It is there to be employed, and has been employed over the years by the tribunal and its predecessors to circumvent the intention of Parliament by disregarding, in various circumstances, a failure to comply with an enactment. Parliament has given the Tribunal that power, albeit to be exercised only when the Tribunal considers it to be in the interests of justice to do so.

8 The decision in Rumpf is far-reaching. It has been relied upon in many decisions of the Tribunal as authority for the proposition that cl 62 enables the Tribunal 'to cure various failures, defects in procedure, expiration of time limits, prematurity or the like, which might otherwise deprive the Tribunal of jurisdiction to hear and determine a proceeding on its merits.'[4] More specifically, Rumpf was relied upon by Gibson DP in Waraglen Developments v Maroondah City Council[5] to support the finding that the Tribunal could entertain a request to extend a permit notwithstanding that the request was made outside the three-month period after the permit's expiry, provided for under s 69 of the Planning and Environment Act.[6]

9 Furthermore, Gibson DP held that the Tribunal could grant an extension to an expired permit if it considered that it was in the interests of justice to do so.[7] This was so despite it being recognised that the express power the Tribunal has to grant extensions of time under section 126 of the Victorian Civil and Administrative Tribunal Act does not allow for extensions of time to be granted in relation to requests to be made in accordance with s 69 of the Planning and Environment Act because the time limit does not concern an act taken in a proceeding before the Tribunal with which s 126 is concerned.[8]

10 Despite the repeated reliance on Rumpf by the Tribunal, questions have remained about the scope of cl 62. In particular, Macnamara DP, in Gulline v Hallam[9] has queried whether there must be some implied limitation on the scope or operation of cl 62 with the effect that it could not, or should not, be used to cure some forms of non-compliance with statutory requirements. He said:[10]

The Tribunal has power to disregard non-compliances (Cl 62 Schedule 1 Victorian Civil and Administrative Tribunal Act 1998); but that power should only be used to clear obstacles created by technical defaults or perhaps non-compliances with substantive requirements which have wholly or substantially been cured by the time the matter reached the Tribunal.

11 These sentiments echo those he had previously expressed in Castik Investments Pty Ltd v Stonnington,[11] with respect to the jurisdiction conferred on the Tribunal under s 149B of the Planning and Environment Act to make declarations concerning any matter which may be the subject of an application to the Tribunal under that Act. Considering whether s 149B carries an implication for the breadth of cl 62, he said: [12]

[P]rovisions such as Section 54 of the Planning Appeals Act and now Clause 62, could never have been intended to permit this Tribunal ... in declaration proceedings, to disregard the substantive law. Even if I were wrong and, as a matter of statutory construction these provisions could be applicable to the declaratory jurisdiction, it is difficult to see how it would ever be in the interests of justice, to deprive a party of a legal right based upon non-compliance with a mandatory requirement of a statute which could be asserted in court merely because the matter was being heard in a tribunal.

12 These observations illustrate the proposition that the breadth and operation of cl 62 has not been fully resolved. Indeed, the Tribunal in this matter, while finding in favour of the Mutsaers, said of the submission that was made that she not follow Waraglen:[13]

Even though the submission ... may have some degree of persuasion, I have no reason to depart from the reasoning and findings expressed by Deputy President Gibson. In saying this, I have also had regard to the interests of comity and regularity and note further that this decision and others applying it have not been the subject of an appeal to the Supreme Court.

13 It was argued before the learned trial judge in this proceeding that Rumpf was wrongly decided. Her Honour refused leave on the ground that the criteria identified in Secretary to Department of Premier and Cabinet v Hulls[14] for a grant of leave under 148 of the Victorian Civil and Administrative Tribunal Act had not been satisfied. Those criteria include the identification of a question of law in relation to which there is a real and significant argument to be put or at least sufficient doubt about it to justify the grant of leave. In addition, their Honours said in Hulls that 'sometimes the general or public importance of the question of law which has been identified may be a consideration on the application for leave.'[15]

14 It is clear that the scope and operation of cl 62 is of considerable importance to the workings of the Tribunal, and the members of the public whose disputes are

heard and determined there, given the potential of cl 62 to cure non-compliance with

a range of statutory requirements, including, but not limited to, the particular time limits of this individual case. Just how far cl 62 does extend to empower the Tribunal to disregard non-compliance lies at the heart of this application.

15 In my opinion, this is a question of general and public importance. I consider that the importance of the questions of law raised by the applicants concerning the scope and operation of cl 62, as set out in their draft notice of appeal, together with the doubts raised about the answers properly to be given to those questions, indicate that there is a sufficient doubt as to whether the trial judge should have here refused leave. I also consider that, if there is error in her Honour's approach, there would be substantial injustice[16] if that error were to be left unreversed, considering not only the circumstances of this case but also the range of cases in which cl 62 may apply. As the issues relate to a question of power, if any error were left to stand, it could affect the validity of a range of decisions made by the Tribunal. I would grant the application for leave to appeal.

16 I also would grant the application for leave to appeal, for the reasons given by her Honour.

1. The applicants have leave to appeal from the orders made by the Trial Division, constituted by the Honourable Justice Emerton, made on 16 February 2011.

2. A Notice of Appeal be filed on or before 15 April 2011 in substantially the form of the draft Notice of Appeal exhibited as 'Exhibit MPH16' to

the affidavit of Marcus Phillip Heath sworn on 9 March 2011.

In the 'Other Matters' section of the order, we will note that there is to be a directions hearing in this matter before the appeal is listed. We will also note that the Registrar of the Court of Appeal be instructed to give notice of the proceedings to the Minister for Planning and the Municipal Association of Victoria and invite their attendance at the directions hearing.

[1] [2000] VSC 311; (2000) 2 VR 69.

[4] Waraglen Developments Pty Ltd v Maroondah City Council [2008] VCAT 1608 [62].

[5] [2008] VCAT 1608.

[7] See also Schneider v Boroondara City Council [2004] VCAT 642 (Morris J).

[8] Waraglen Developments Pty Ltd v Maroondah City Council [2008] VCAT 1608 [33].

[9] [2001] VCAT 2148 (in giving a legal ruling referred to in that case).

[11] (Unreported, Victorian Civil and Administrative Tribunal, 6 May 1999).

[13] [2010] VCAT 1258, [18].

[14] [1999] VSCA 117; [1999] 3 VR 331.

[16] See Mrocki v Mountview Prestige Homes [2011] VSCA 73.