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

Harvey & Anor v Mutsaers & Ors [2012] VSCA 69 - VSCA 2012 case summary — Zoe

[20]

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]

[22]

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]

[38]

[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.

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