Harvey & Anor v Mutsaers & Ors [2012] VSCA 69

1 This is an appeal from a judgment given in the Common Law Division. The judge dismissed the appellants' ('the Harveys') application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal ('VCAT'). VCAT had reversed a decision of the second respondent ('Manningham CC') to refuse an application for extension of a planning permit under s 69(1) of the Planning and Environment Act 1987 ('the P & E Act'). In effect, the judge upheld VCAT's decision.

2 The question of law to which this appeal is directed is whether, on an application to VCAT for review of a decision of a relevant authority to refuse an extension of a planning permit under s 69(1) of the P & E Act, VCAT is empowered by cl 62 of Schedule 1 to the Victorian Civil and Administrative Appeals Tribunal Act 1998 ('the VCAT Act') to extend the permit notwithstanding that the time in which the appellant was permitted to apply to the relevant authority for extension of the permit expired before the application for extension was made.

3 In brief, the facts are that in 2004 the first respondents ('the Mutsaers') applied to Manningham CC as the relevant authority for a planning permit for the construction of a dwelling at 10 Fulford Road, Wonga Park.

4 On 16 June 2005, Manningham CC issued planning permit PLO4/015420 ('the planning permit') which allowed the construction of the new dwelling. Construction began in 2006 and a certificate of occupancy was issued early in 2007.

5 On 26 February 2007, Manningham CC amended the planning permit to allow for the construction of a swimming pool and a tennis court behind the new dwelling in accordance with amended plans to be submitted to Manningham CC pursuant to condition 1 of the planning permit.

6 Condition 22 of the planning permit as so amended provided that the planning permit would expire in the event of either:

a) failure to submit the amended plans required by condition 1 to the Council within 12 months of the date of issue of the planning permit, as amended; or

b) failure to complete the development within two years from the approval date of the plans referred to in condition 1 of the planning permit.

7 The Mutsaers failed to submit the amended plans required by condition 1 within 12 months of the date of issue of the planning permit as amended and, consequently, the permit expired on 26 February 2008.

8 On 6 June 2010, the Mutsaers applied to Manningham CC for an extension of the permit pursuant to s 69(1) of the Planning and Environment Act 1987 ('the P & E Act'). At relevant times s 69(1) of the P & E Act provided that:

Before the permit expires or within three months afterwards, the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time.

9 On 15 June 2010, Manningham refused to grant the extension on the basis that, because more than three months had elapsed since the expiry of the planning permit, Manningham CC did not have power to grant an extension.

10 The Mutsaers applied to VCAT pursuant to s 81(1) of the P & E Act for a review of Manningham CC's decision to refuse to extend the permit and, as part of their submissions, requested VCAT to exercise VCAT's power under cl 62 of Schedule 1 to the VCAT Act to disregard their failure to comply with s 69 of the P & E Act. At relevant times, cl 62 of Schedule 1 to the VCAT Act provided that:

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.

The decision in Rumpf v Mornington Peninsula Shire Council

11 The effect cl 62 of Schedule 1 to the VCAT Act first fell for consideration in Rumpf v Mornington Peninsula Shire Council[1] although it had previously been considered at the Tribunal.[2] In Rumpf a life saving club applied to the local council for a permit to develop and use certain Crown land. The council gave a copy of the application to the Department of Natural Resources and the Environment. It operated as an application for the Minister's consent under s 37 of the Coastal Management Act 1995. On 2 March 1999, the Minister's delegate purportedly gave consent to the development under s 40 of the Coastal Management Act and the council issued a notice of decision to grant the permit. Numerous objectors applied to VCAT under s 82 of the P & E Act for review of that decision. They argued that, because the Minister's consent was not given until more than 28 days after the Department received some additional information which had to be provided, the time in which the Minister could consent expired and that resulted in a deemed refusal of consent under s 40(3) of the Coastal Management Act. VCAT and, on appeal, Balmford J, held that, although there had been a deemed refusal of consent, cl 62 of Schedule 1 to the VCAT Act empowered VCAT to disregard the failure of the Minister to comply with s 39 of the Coastal Management Act. Balmford J reasoned thus:

Mr Hooper submitted further that there was in fact no 'failure to comply with ... any ... enactment'. However, the style of s 39(3) of the Coastal Management Act requires compliance, by providing that 'the Minister must decide the application within 28 days'. In the present case, the minister did not decide the application within 28 days and thus failed to comply with the enactment constituted by s 39: see s 7 of the Interpretation of Legislation Act 1984.

One question which may be asked is whether the tribunal is empowered by cl 62 to disregard not only the failure to comply, but also the result which the Act decrees shall follow from that failure to comply, that is, the deemed refusal. It is clearly the intention of Parliament that the default situation, as it were, is constituted by refusal. The Coastal Management Act is intended to ensure co-ordinated development of coastal Crown land, and the need for the consent of the minister to any proposed development is paramount. Nevertheless, cl 62 exists and its meaning is plain; and if the failure to comply is disregarded, it seems to me to follow that the deemed refusal, being the statutory result of that failure to comply, must automatically be disregarded along with the failure which gave rise to it. The point of requiring compliance with the 28 day time limit is to ensure that the minister's consent to a proposed use or development cannot be lightly obtained.

Mr Hooper submitted that, as by virtue of s 61(3) of the P & E Act the tribunal did not have jurisdiction to consider the application for review, it could not confer jurisdiction upon itself by a determination under cl 62. Before the amendment of s 54 of the Planning Act in 1991, there was authority that if the decision under review by the tribunal was, as here, invalid because of a failure to comply with a statutory requirement, s 54 could not be used to empower the tribunal to disregard that failure. In the second reading speech on the Administrative Appeals Tribunal (Planning) Bill (No 2), which introduced the substituted s 54 set out in [45] above, the minister said:

The Planning Appeals Act provides that where there has been a failure to comply with certain statutory requirements, the [Administrative Appeals Tribunal] may disregard the failure and amend the document or deal with it as it sees fit. However, the Supreme Court has held in one decision that where a responsible authority has not complied with a mandatory requirement of the Planning and Environment Act the authority's decision to grant or refuse a permit is invalid the permit is void and the tribunal has no jurisdiction to hear the matter. This conflicts with another Supreme Court decision on this question.

The Bill addresses this problem by giving the tribunal clear jurisdiction to hear a matter notwithstanding a failure to comply with any Act or regulation.

As I have said ... above, the amended s 54 of the Planning Act substituted on the passing of that Bill is almost identical in substance with cl 62. I am satisfied on the face of cl 62 that the intention of the amendment, as described in that extract from Hansard, was achieved. I note that there are recent decisions of the tribunal to that effect. See for example, as to the amended s 54, the decision of Deputy President Byard and Ms Monk in B I K Pty Ltd v City of Greater Bendigo; and as to cl 62, the decision of Deputy President Macnamara in Castik Investments Pty Ltd v Stonnington City Council.

Taking all of these matters into account, I am 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.[3]

12 In this case, the judge followed the decision in Rumpf. Her Honour said that:

Clause 62 confers on the Tribunal 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, to disregard that failure. It confers jurisdiction to 'determine' and to 'disregard' in broad terms. It is not expressed to be limited to overcoming technical or procedural non-compliances or non-compliances that could be remedied prospectively, and there is no reason to construe it as being subject to such implied limitations.

In my view, the context in which the precursor to cl 62 was enacted ... is insufficient to provide such a basis. I do not accept the submission referred to above ... that it is 'clear' from Traill that the amendments made in 1991 to the Planning Appeals Act and the terms of cll 62 and 55 of Sch 1 of the Planning Act do not alter the position that the Tribunal cannot overcome the legal effect of failure to comply with legislation unless that failure could otherwise be prospectively remedied. The clearest indication of what cl 62 permits is contained in the language of cl 62 itself, and the legislative history proffered ... does not explain why cl 62 should be limited in the manner suggested. In particular, the amended notice requirements in s 54(2)-(4) of the Planning Appeals Act and cl 55 of Sch 1 of the VCAT Act appear to do no more than to provide that the tribunal may order notice to be given of the proceeding in which a failure to comply with an enactment has been identified.

In oral submissions, counsel for the [appellants] also referred to the impermissibility of treating the Tribunal as if it were 'armed' with 'retrospective legislative power' by reference to the decision in R v Momcilovic, in which the Court of Appeal stated, in the context of the interpretative obligation imposed on the courts by s 32 of the Charter of Human Rights and Responsibilities 2006 (Vic), that the line between interpretation and legislation must not be crossed. Here the question is not how the Tribunal should engage in the task of statutory interpretation, but what it is empowered to do by a particular legislative provision. That provision, on its face, permits it to hear and determine a proceeding under a planning enactment, despite a failure to comply with that or any other enactment, and to disregard that failure in determining the proceeding. Nothing the Court of Appeal said in Momcilovic requires that provision to be read down or limited in the manner suggested by the [the appellant].

The terms of cl 62 give the Tribunal not only the jurisdiction 'to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment' but also the power, 'in doing so' (that is, in determining the proceeding), 'to disregard that failure if the Tribunal considers it in the interests of justice to do so'. While it could be argued that the first limb applies only to the Tribunal's jurisdiction to entertain an application for review, the second limb explicitly permits the Tribunal to disregard the failure to comply with an enactment not only for the purpose of being seized of the matter, but also in order to determine the substantive issues in the proceeding.

It follows that I do not accept that the dichotomy proposed by the Harveys bears on the construction of cl 62 and the obligations of the Tribunal when carrying out a review of the decision of the Council. Once the Tribunal has jurisdiction to 'hear' the application for review, it may proceed to determine the review on its merits.[4]

13 Counsel for the applicant contended that Rumpf was wrong and, therefore, this case was wrongly decided. He submitted it was clear from the decision in Traill,[5] to which her Honour referred, and hence from the context in which the 1991 amendments to s 54 of the P & E Act were enacted, that neither s 54 as amended or now cl 62 of Schedule 1 to the VCAT Act altered the position which previously obtained, whereby the Administrative Appeals Tribunal could not overcome the legal effect of a failure to comply with a legislative requirement.

14 As has been seen, the judge rejected that argument. So do we. In our view, Traill and the attendant context of enactment of the 1991 amendments reinforce the conclusion which flows from the plain and ordinary meaning of the terms of the amendments that they were calculated to ensure that the Administrative Appeals Tribunal had jurisdiction to review a determination even where it was invalid because of failure to comply with a provision of the P & E Act.

15 In Traill, a relevant authority purported to issue a planning permit without giving notice to affected persons in accordance with s 52(1) of the P & E Act. An objector sought a declaration under s 14(1) of the Planning Appeals Act 1980 that the permit was invalid and, therefore, that the Tribunal had no jurisdiction to review it. Tribunal President, Judge Jones refused the declaration. He accepted that strict compliance with s 52(1) of the P & E Act was mandatory and consequently that the relevant authority's decision to grant the permit was invalid. He held, however, that, because the Tribunal stood in the shoes of the relevant authority for the purpose of the review, and because (unlike the relevant authority) the Tribunal could give notice to affected persons under s 33 of the Planning Appeals Act, the Tribunal could put itself in the position in effect in which the relevant authority would have been if the relevant authority had given notice in accordance with s 52(1) of the P & E Act. Thus, the Tribunal could set aside the responsible authority's invalid decision and substitute its own valid decision to grant a permit.

16 As appears from Hansard, there were some concerns about whether the decision in Traill was consistent with decisions of Phillips J[6] in Dunkley v Shire of Charlton[7] and J P Mannix Nominees Pty Ltd v The Mayor Councillors and Citizens of the City of Wangaratta and Warmilford Pty Ltd.[8] In Dunkley, Phillips J held that the powers conferred on the Planning Appeals Board by s 53 of the Planning Appeals Board Act 1980 did not extend to rectifying a permit which a relevant authority had issued in excess of jurisdiction. In Traill's case, Judge Jones distinguished Dunkley on the basis that it was concerned with the Town and Country Planning Act and the Planning Appeals Board, whereas Dunkley was concerned with the P & E Act and the Administrative Appeals Tribunal. Judge Jones does not appear to have been referred to J P Mannix Nominees, even though it was handed down before Traill and concerned the P & E Act and the Administrative Appeals Tribunal. In that case Phillips J held that, because an applicant had substantially failed to comply with s 55(2) of the P & E Act, which required the applicant to give a copy of the relevant application to the Liquor Licensing Commission, the relevant authority failed to comply with a mandatory condition precedent to the exercise of its jurisdiction (namely, to have before it the Liquor Licensing Commission's response to the application); that, consequently, the decision of the relevant authority was void; and, hence, that the Tribunal lacked jurisdiction.

17 It is clear from Phillips J's judgments in Dunkley and Mannix that there was good reason to doubt the rectitude of Judge Jones decision in Traill. It is equally clear that the 1991 amendments to s 54 were intended to ensure that s 54 achieved the result which Judge Jones considered it did.

18 It follows, in our view, there can be no doubt that Rumpf was rightly decided.

19 Counsel next submitted that, if Rumpf were correctly decided, the decision in this case was nevertheless wrong because there was not here any 'failure to comply with the planning enactment or any other enactment'. Unlike Rumpf, counsel said, where the Minister was under a statutory obligation to make a decision within a prescribed period of time, and it was the failure of the Minister to comply with that requirement which resulted in the deemed decision which VCAT was asked to review,[9] in this case the Act gave the applicant a choice as to whether to apply for an extension of permit within the prescribed time, or not to apply, and the fact that the applicant did not make an application within time was thus to be seen as an exercise of choice under a provision of the P & E Act rather than a failure to comply with one of the Act's provisions.

20 Arguably, that submission has a little more to commend it. At one level, there is a difference between a provision like s 39(3) of the Coastal Management Act, which stipulates that something must be done within a prescribed period of time, and a provision like s 69(1) of the P & E Act, which provides that an applicant may apply for an extension within a specified period of time. The applicants contend that the fact that a party does not take a step which an enactment allows, but does not compel the party to take, does not constitute a failure by that party to comply with the enactment.

21 So to reason, however, leaves out of account that, although s 69(1) is expressed in purely permissive terms, it is in effect permissive in one respect and mandatory in another.[10] It is permissive in that it provides that an application may be made and it is mandatory in that it stipulates the time in which the step must be taken, assuming it is to be taken at all. Statutory provisions of that kind are common enough and, where the step for which they provide is not taken within the stipulated time, it is equally common for courts to speak of there having been a failure to comply with the stipulation.[11]

22 Finally, counsel argued that there is a distinction between cases like Traill or Rumpf where, if the relevant authority had given notice or obtained the necessary ministerial approval, it would have had jurisdiction to grant the permit in question, and a case like this where, because the application for extension of time was not filed within the statutorily stipulated time period, the relevant authority did not have jurisdiction and could not have acquired it no matter what it did. In counsel's submissions, the 1991 amendments were directed to ensuring that the Tribunal had jurisdiction in the former class of case but there is nothing to suggest it was contemplated still less intended that the Tribunal should have jurisdiction in the latter class of case.

23 There is more force in that submission. Plainly, there is a distinction of the kind identified by counsel, and to some extent it resonates with Judge Jones' reasoning process in Traill that, because the Tribunal stood in the shoes of the relevant authority and could give notice to affected persons under s 33 of the Planning Appeals Act, it could act 'as a responsible authority that has given or required notification in accordance with s 52'.[12] Here by comparison, no matter what notice VCAT may give, and no matter what else it might do, it cannot put itself in the position of a relevant authority having jurisdiction to grant the extension of permit. Parliament has provided that a relevant authority has no jurisdiction to grant an extension of permit unless the application for extension is made within the stipulated time.

24 As the judge concluded, however, the plain and ordinary meaning of the amendments to s 54 and of cl 62 is clear. According to that meaning, cl 62 extends to all forms of failure to comply with statutory requirements, regardless of effect. We agree with the judge that, despite the reasoning in Traill (and the extent to which it may have informed the context in which the amendments were enacted), there is not sufficient reason to depart from that plain and ordinary meaning of the legislation.

25 So to construe cl 62 is not productive of absurd, irrational or capricious results.[13] This is not a case in which the words of the clause are reasonably open to a construction which would limit its operation to an extent that, construed literally, its terms do not convey.[14] Nor, is it possible, if it is any longer necessary,[15] to satisfy the three tests for reading words into a statute which are not there.[16] One cannot say from a consideration of the provisions of the Act read as a whole precisely what was the mischief which was sought to be remedied. It is not clear that the drafter and Parliament by inadvertence overlooked and so omitted to deal with an eventuality which the more limited operation of the clause would achieve. And it is certainly not possible to state with certainty what are the additional words which the drafter would have inserted if his or her attention had been drawn to the omission before the Bill passed into law.

26 It is also to be observed that, although at first it might strike one as odd for Parliament to confer a power of extension on VCAT which the relevant authority does not have, it is not illogical. VCAT is itself an administrative decision maker but with superadded obligations and capacity to act in the interests of justice. In view of the nature of planning applications and relevant authorities, it makes sense that Parliament should have set a finite period in which to apply to the relevant authority for an extension of permit. Equally, however, because of the nature of planning and planning disputes, it is unsurprising that Parliament should have empowered VCAT rather than the relevant authority to allow for cases where the interests of justice warrant some relaxation of the time requirement.

27 Moreover, cl 62 has been consistently applied at the Tribunal in this manner. In Schneider v Boroondara CC[17] Morris J, sitting as the President of the Tribunal, considered the precise question raised on this appeal. Applying Rumpf his Honour held that cl 62 entitled the tribunal to disregard the failure of the permit holder to make the application for an extension of time within three months of the permit expiring. He observed:

[14] Clause 62 of schedule 1 has been considered by the Supreme Court in Rumpf v Mornington Peninsula Shire Council [2000] VSC 311; [2000] 2 VR 69. In that case Balmford J was required to consider whether clause 62 could be used to disregard a failure to comply with section 39(3) of the Coastal Management Act 1995. In her decision in Rumpf Balmford J commented that clause 62 was consistent with the general legislative approach of giving the tribunal extensive powers to enable it to resolve planning issues which arise in the community and to resolve them according to the merits of the case. She commented that, in this regard, the tribunal's powers are, in many respects, wider than the powers of the responsible authorities whose decisions it reviews. In particular she held that clause 62 could be used to confer jurisdiction upon the tribunal in circumstances where the tribunal would not otherwise have jurisdiction.

[15] I hold that the requirement in section 69(1) of the Planning and Environment Act that the owner or occupier seeking to have a permit extended must apply to the responsible authority before the permit expires or within three months afterwards is a provision to which clause 62 of schedule 1 of the VCAT Act may apply. Section 69(1) imposes an obligation upon an owner or occupier to make an application to the responsible authority within a certain time if the owner or occupier seeks to have a permit extended. In my opinion, if an owner or occupier makes an application for an extension of a permit, but does so out of time, this can be characterised as a "failure to comply" with that provision. I further hold that in this case it is in the interests of justice to disregard the failure of the permit holder to apply to the responsible authority for an extension of time within the time specified in section 69(1). That being so I hold that the tribunal has jurisdiction to determine the proceeding before it, namely the proceeding which seeks to review the decision of the responsible authority in which it refused, or at least failed, to approve the extension of time.

28 Since Schneider's case, the Tribunal has, on a number of occasions exercised its discretion under cl 62 to disregard the failure of a permit holder to make an application for extension of time of a permit within three months of the permit expiring.[18] The Tribunal has consistently held since Rumpf that a permit does not irrevocably expire without prospect of resuscitation after the expiration of the three month grace period specified in s 69(1). In a similarly large number of cases the Tribunal, whilst recognising that cl 62 gave it the power to do so, has not regarded it as in the interests of justice to disregard such non compliance.[19]

29 Rumpf and Schneider have also been applied in other circumstances of non compliance as well.[20] The many decisions concerning cl 62 are all in conformity with what has been consistently understood to be the legislative intent underlying its enactment. It is not without significance, that during the lengthy period during which cl 62 has been given the same construction, Parliament has not regarded it as necessary to amend the provision or otherwise indicate that cl 62 should be otherwise interpreted.

30 Of course, where an applicant has failed to apply to the relevant authority within time, it will not necessarily be in the interests of justice to extend the permit. As we have noted, this is reflected in the number of reported cases where the Tribunal has refused to disregard such non compliance. But as the present case shows, whether the failure to apply within time should be excused will very much depend on the circumstances of each case. It is a question of fact and degree for VCAT.

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

[2] Deputy President Macnamara in Castik Investments Pty Ltd v Stonnington City Council VCAT No 1998/73255 (unreported, dated 18 May 1999) concluded that cl 62 permitted the non compliance to be disregarded.

[3] Ibid [46]-[50] (citations omitted).

[5] Traill v Rural City of Wodonga (1989) 3 AATR 107.

[6] The Honourable Mr Justice J D Phillips.

[7] (1988) 1 AATR 180.

[8] (1989) 3 AATR 353.

[9] Cf Rumpf v Mornington Shire Council [2000] VSC 311; (2000) 2 VR 69, 87 [46].

[10] Disher v Disher [1965] P 31, 35; Pearce & Geddes, Statutory Interpretation in Australia, 7th Ed, [11.4].

[11] See, for example, Jones v Territory Insurance Office [1988] NTSC 52; (1988) 55 NTR 17, 21; Flannagan v Milne [1919] HCA 49; (1919) 27 CLR 1, 10 (Isaacs and Rich JJ); Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, 300 [35] (McHugh J).

[12] Traill v Rural City of Wodonga (1989) 3 AATR 107, 136 [97].

[13] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 321 (Mason and Wilson JJ).

[14] Cf R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, 687-8 (Spigelman CJ).

[15] See the discussion of that question in Pearce & Geddes, Statutory Interpretation in Australia, 7th Ed, [2.36].

[16] Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, 880; Wentworth Securities Ltd v Jones [1980] AC 74, 105-6;. Inco Europe v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586, 592; .Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 113-116 (McHugh J).

[17] [2004] VCAT 642.

[18] See for example Bala v Hobsons Bay CC [2005] VCAT 2900 [14]; Moffett v Hobsons Bay CC [2005] VCAT 1815; CNC Homes Pty Ltd v Boroondara County Court (Red Dot) [2006] VCAT 420; Central Portland Hotel Pty Ltd v Glenelg SC [2006] VCAT 1205; Burleigh v Frankston CC [2007] VCAT 1414; Waraglen Developments Pty Ltd v Maroondah CC (Red Dot) [2008] VCAT 1608; Thomas Anderson Design Pty Ltd v Frankston CC [2008] VCAT 1435.

[19] Sar Developments v Brimbank CC [2007[ VCAT 2328; Ali v Hobsons Bay CC [2007] VCAT 2348; Lasfam Pty Ltd v Moonee Valley CC [2008] VCAT 1393; Couttie v Boroondara CC [2008] VCAT 1365; Figueroa v Moonee Valley CC [2008] VCAT 1303; Magnano v Boroondara CC [2007] VCAT 2414.

[20] John King & Ors v Colac-Otway SC [2001] VCAT 2009; Department of Natural Resources and the Environment and Rosebud and District Lifesaving Club [2000] 6 VPR 314; Warfe Leonard Ian v Mornington Peninsula SC & Anor [2001] VCAT 1001.