Horsfall v Campaspe SC [2001] VCAT 1910 (28 August 2001)

Planning List; Request for Declaration that Responsible Authority's Extension of Time for Commencement of Development Under Permit is Invalid; Responsible Authority's Failure to consider Change in Planning Controls Since Grant of Initial Permit; Proof of what Matters Responsible Authority Considered; Whether any Discretionary Consideration Point Against Granting Declaration Sought

Medium Neutral Citation [2001] VCAT 1910

The Tribunal declares that the Responsible Authority's resolution carried 14 November 2000 extending "the time of Planning Permit 82/95-063 until 18 December 2002 for which the construction and operation of a two foot gauge tourist steam tramway may be commenced pursuant to Section 69(2) of the Planning and Environment Act 1987" is void and of no effect.

For the Applicant: Mr Warwick Horsfall, Town Planner

For the Responsible Authority : Mr John Brennan, Town Planner

1. Echuca is on the southern or Victorian bank of the Murray River. It is the closest major town on the Murray to Melbourne. In years gone by when poker machines were legal in New South Wales but illegal in Victoria, it was a popular tourist destination for Melburnians who wanted to "play the pokies" in Echuca's twin town on the northern or New South Wales' bank, Moama. Historically Echuca was a river port in the paddlesteamer era and more recently extensive tourist development of the town (which is now its major industry) are centred on the paddlesteamer era heritage.

2. In 1995 Mr W.A. Turner lodged a permit application with the Responsible Authority, the Shire of Campaspe for a permit to construct a two foot gauge tourist steam tramway approximately 2.8km long from Paddlewheel Park to the junction of the Murray and Campaspe Rivers and through Victoria Park. For a substantial portion of its length the tramway was proposed to run along a levy bank between Watson Street and the Murray River. At Crofton Street it is proposed to descend to floodplain level and run through Victoria Park to the junction of the Murray River and the Campaspe River. The tramway was to contain passing loops at each end to allow the engine to move to the front of the carriages for each journey. Storage facilities were to be provided in a logging yard at the eastern end of the line. An earlier proposal had been refused in 1994.

3. The Shire refused to grant the permit and Mr Turner commenced proceeding No. 1996/19546 in the Administrative Appeals Tribunal appealing against the refusal under Section 77 of the Planning and Environment Act 1987. The Tribunal constituted by Mr H.W. Terrill directed that a permit for the proposed development should issue subject to some 23 conditions. Permit 82/95/063 was issued on 18 December 1996.

4. The permit holder Mr Turner made written application to the Shire on 11 November 1998 seeking an extension of the period of two years in Condition 22(a). The condition stated:

a) the use or development is not commenced within a period of two years from the date hereof;"

5. Under delegated authority the Shire extended the permit until 18 December 2000. Mr Turner made a similar request by letter dated 3 October 2000 and the Shire at its Council meeting on 14 November 2000 resolved that the permit be extended until 18 December 2002. In his letter Mr Turner stated he "planned to commence track construction after Easter 2001". Meanwhile, Mr Turner had commenced proceeding No. 2000/063968 in this Tribunal requesting an amendment to the original permit pursuant to Section 87 of the Planning and Environment Act 1987. He contended that there had been in terms of Section 87(1)(d) of the Planning and Environment Act "a material change of circumstances ... since the grant of the permit". The material change in circumstances was said to be a change in plan and policy by the Shire of Campaspe which led to its having alternate plans for the "logging yard" which constituted the eastern terminus of the proposed tramway. The effect was to shorten the tramway so that it did not run into the logging yard which was freehold land previously owned by Mr Turner or interests associated with him and sold to the Shire. Terminus and storage facilities and the turning loop were to be relocated. Mr Terrill published a determination on 9 January 2001 in substance acceding to Mr Turner's application. The determination was subject to two corrections pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 which were published on 19 and 24 January 2001. An amended permit in accordance with the Tribunal determination was issued by the Shire on the 2nd of February 2001.

6. The present applicants commenced proceeding 2001/5444 seeking relief under Section 149 of the Planning and Environment Act 1987 with respect to the Council's second decision to extend the permit. Following a directions hearing the present applicants withdrew their application under Section 149, apparently because it was perceived as being an inappropriate form of application. Thereafter they filed an application under Section 149B on 5 April 2001. The relief sought was a declaration that the second extension of time granted by the Shire was "invalid". The grounds for the application were stated as follows:

"1. Prior to the said extension of the permit, the applicant has had four years to produce the information necessary for works to commence and none has been forthcoming;

2. Since the original issue of the permit there has been a substantial shift in planing policy resulting in the proposal now being a prohibited use in the relevant zone; and

3. Having regard to the above, it is considered that no Responsible Authority could have reasonably come to the decision that the Campaspe Shire Council did in granting a further extension of the subject permit."

7. The application came on for hearing before me. The Shire of Campaspe was represented by its Planning Officer, Mr Brennan; Mr and Mrs Horsfall were represented by their son who is apparently the principal of a planning consultancy, Habitat Planning. Mr Turner represented himself.

8. The land proposed to be traversed by the tramway is, now that the logging yard is excluded, all Crown land of which the Shire of Campaspe is the statutory manager. Since the initial permit was issued at the direction of the Administrative Appeals Tribunal, the new Campaspe Planning Scheme was gazetted on 1 October 1998 and adopts the Victorian Planning Provisions format. The western portion consisting largely of Victoria Park in being at floodplain level is zoned Public Park and Recreation. The eastern portion including the area through which the tramway is proposed to run on the top of the levy bank adjacent to Watson Street is zoned Public Conservation and Resource. The land is subject to a Heritage Overlay and a Land Subject to Inundation Overlay.

9. Mr and Mrs Horsfall live in their house in Watson Street. The proposed tramway would run on top of the levy bank immediately across the road from their house. This raises amenity concerns for them. Moreover, they have wider conservation concerns based upon the affects on what they contend is a relatively pristine area of floodplain constituting Victoria Park. They have been long term opponents of this proposal and have appeared or were represented at the Tribunal proceedings already described.

10. As to the first of the grounds relied upon by the Horsfalls, namely that four years have passed and work on the development had not commenced and the information required by the conditions has still not been provided, Mr Brennan referred to the officer's report which was before Council when it made its decision. It referred to the letter of application from Mr Turner which referred to a host of issues which needed to be resolved before the development could be commenced, including:

* the amendment with respect to the elimination of the log yard from the area of the proposed development and relocation of facilities;

* preparation for the construction of reproduction rolling stock etc.

11. The officer's report also drew attention to the uncertainty and delay entailed in the further Tribunal hearing. Implicitly Council was persuaded that the permit holder had legitimate grounds for his delay.

12. Mr Brennan conceded that under the present Planning Scheme for the area designated Public Conservation and Resource, the use would be prohibited. He contended nevertheless "it is considered that the use has existing use right under Clause 63.01 due to the fact that a permit for the use had been granted before the approval date of the current scheme and the permit through an extension of time is still alive". As to the land zoned Public Conservation and Resource use, he submitted that the development would most properly be described as entailing use as "tramway". This is not a prohibited use. "The proposal would appear to be buildings and works associated with that use."

13. Mr Brennan concluded by submitting that in light of the circumstances described the Shire had acted reasonably in making its determination and no declaration of invalidity should be made.

14. Mr Horsfall on behalf of his parents noted that despite 1,695 days having passed since the grant of the initial permit no work on the development had yet been commenced. Indeed he observed that some six preliminary items required to be completed before commencement had not only not been completed but had not been commenced. Those items were:

* geo-technical assessment of the Watson Street levy bank (Condition 3);

* method of construction including design, materials, earth and ramps, bridges and culverts in Victoria Park, alterations to roads and entrance to Paddlewheel Park and relocation of bus and car parking bays in Watson Street (Condition 4);

* Section 173 agreement for a $30,000 bond for plant rehabilitation (Clause 22).

15. He submitted that the use would not only be prohibited under the new Scheme in the Public Conservation and Resource Zone (as is conceded by the Shire) but also in the Public Park and Recreation Zone. One of the prohibited uses for the zone he said was "transport terminal". This expression was as designed in Clause 74 of the Scheme as follows:

"Land used to assemble and distribute goods or passengers. It includes facilities to park and manoeuvre vehicles."

16. He said "the parking of trains within the shed would appear to meet this definition". Accordingly, the use is prohibited in this zone. He continued that even if that contention were incorrect, since it was not conducted on behalf of a public land manager or Melbourne Parks and Waterways, it was a prohibited use.

17. He referred to the heritage provisions of the Shire's Municipal Strategic Statement and submitted "that the introduction of a railway line featuring trains that have no association with Echuca whatsoever (particularly north of the port) would be significantly detrimental to the assets of Echuca and the Shire in general". He referred to the evidence given by the Shire's Heritage Consultant Mr Ward to the Administrative Appeals Tribunal in 1996 where according to the Tribunal's determination Mr Ward said that the proposal "fails to interpret the cultural values of the place because it is historically unrelated to them".

18. Mr Horsfall referred to the Municipal Regional Environmental Plan No. 2 which was referred to in Clause 21.07 of the Campaspe Planning Scheme. This enunciated a principle that only developments with an essential relationship with the River Murray should be located within or in land adjacent to the river "other developments should be set well back from the bank of the River Murray". He also referred to the Echuca Moama Riverine Strategy 1994 which discouraged developments on the river plain "unless there is a demonstrated relationship with the River Murray". He referred to Clause 22.04 being the local policy for heritage and submitted that "the introduction of a train that has no relationship with the history of Echuca and train line entering historic area where no train line has ever existed, is clearly inconsistent with Council's current policies for the port and river precinct". Amongst the policies adopted under this clause was one "to maintain but not manipulate heritage areas and features of significance".

19. Mr Horsfall referred to and relied upon a decision of Mr Liston in Lockwood Oaks Pty Ltd v City of Doncaster and Templestowe (1991) 7 AATR 217, 224 where the learned Member stated as one of the rationales for time limits in permits the following:

"For example, the change in circumstances dictates there is an issue which was not an issue at the time of the original application which is now considered relevant and it may be arguable that the extension of time should not be granted and that the provisions should be reconsidered by the use of the normal application process."

20. He also referred to a decision of Mrs Gibson in Fakhra v Shire of Lilydale (1993) 10 AATR 320.

21. He concluded that the proposal was "now indisputably prohibited". The objectors were not notified that Council has requested an extension of the permit for the second time. The applicant had only requested a further year. It was therefore unreasonable to grant a further two year extension.

22. He submitted that the declaration should not be made.

23. Mr Turner said "it now appears that, excepting for this application, all impediments have been resolved and I am pleased to advise the Tribunal that work has now commenced on testing the levy bank (Boler Geotechnical Pty Ltd). Upon a satisfactory outcome the Aboriginal Archaeological Survey will commence, followed by a flora/fauna survey". He advised that the geo-technical survey had commenced on 8 August. The hearing was on the 10th of August. He continued:

"Upon these matters being concluded satisfactorily, a lease will be concluded and the operating company formed."

24. He said that track laying "would commence December 2001/January 2001". In answer to a question from me he said that the construction phase would occupy approximately six months. The projected completion date therefore would be July 2002. He said that he had already invested $165,000 "and we are dedicated to completing the on-ground works at around the same time as the rolling stock is completed so as this important addition to Echuca's tourist and heritage base can commence operations". He said that "a railway line does not just consist of ballast, sleepers and rail on the ground. To create a working operation locomotives, carriages, safe working documentation and support facilities such as storage sheds, watering and fuel [must be provided]." He said the following preliminary issues had been difficult to resolve:

"* Ability to enter into a lease due to native title claim (six months)

* Rental level. This issue required the attention of the Premier, Minister for Tourism and Minister for Local Government (12 months).

* Approval of consultant fees to pursue conditions (four months).

* Insurance capacity and proposed premium levels required significant discussion and research.

* Ability to comply with altered accreditation rules required considerable research."

25. There were difficulties in acquiring rolling stock including an appropriate diesel locomotive to comply with the permit condition which prohibited the use of steam locomotives on total fire ban days. Further he said the change of plan affecting the log yard had required replanning. "Council has renewed the original permit twice, and in doing so taken into account the time required to bring together all the elements involved. The second renewal was immediately part of the amending application and the amending application has a life coinciding with the life of the second extension".

26. He said that he has constructed three other narrow gauge railways for other parties and had a proven record of performance, therefore he submitted his estimates could be treated with confidence.

27. Section 149B of the Planning and Environment Act 1987 authorises the Tribunal to make a declaration concerning "anything done by a responsible authority under this Act". (Section 149B(1)(d)). It has not been suggested that the extension of time now attacked is not something done by a responsible authority under this Act and accordingly, Section 149B appears to bestow jurisdiction to make the declaration sought. Section 68 of the Act provides:

"(1) A permit for the development of land expires if-

(a) the development or any stage of it does not start within the time specified in the permit;"

28. Section 69 authorises the responsible authority to extend the time within which the development of any stage of it is to be started. Section 81 enables a person affected to apply to this Tribunal for review of

"(a) a decision of the responsible authority refusing to extend the time within which any development or use is to be started or any development completed;

(b) the failure of the responsible authority to extend the time within one month after the request for extension is made."

29. It will be seen that the Tribunal has the power to carry out a merits review if the extension is refused but not if it is granted. It is for these reasons no doubt that the present applicants have sought declaratory relief under Section 149B. It seems that there is no ordinary merits review proceeding available to them.

30. An important consequence of the form of this application however is that it is not for me to consider whether it is proper to extend the permit. Rather, the decision I have to make is whether Council's decision so to do was invalid or contrary to law. There are certainly quite a few decisions of the Tribunal in reviews under Section 81 but they necessarily adopt an approach inappropriate to the question I have to consider.

31. A more appropriate guide in these circumstances is the decision of Ashley J. in Kantor v Murrindindi Shire Council (1997) 18 AATR 285. The Shire had issued a permit for subdivision of land into eight lots in 1989. The plan of subdivision was eventually certified in 1995 and there had been some five extensions of time granted by the Responsible Authority. Mr Kantor and Mr Justice Chernov, the owner of land in the vicinity sought a variety of relief concerning this and related matters including a declaration that the extensions were invalid or that the decisions to extend were such as no reasonable responsible authority could make. His Honour observed that it was understandable why there should be provision for expiry of permits:

"Development would not likely be facilitated by a permit in respect of which no time for expiry was fixed, and which then lay dormant for a protracted period. Indeed, in some instances development - for example, of adjoining property - might be impeded by the existence of such a permit. Moreover, under the Act [that is the Planning and Environment Act] development is to be facilitated in accordance with the objective of fair, orderly, economic and sustainable development of land. Grant of a permit without any period within which action to implement it need be taken would run counter at least to the notion of orderly development. Again, it is apparent that planning policy is not set in stone. Grant of a permit for use or development which had no expiry date would unnecessarily open up the prospect of delayed use or development at odds with the changed planning policy - though see s.87(1)(d) of the Act, which would offer prospect of relief

Returning to the necessary enquiry, what conclusions are to be drawn from the subject-matter, scope and purpose of the Planning Act? I consider that where a request to extend time is made, a responsible authority -

* should treat the applicant as being obliged to advance some reason or material in support of the grant of an extension. An extension should not be granted simply because a request to extend has been made. The Act, after all, contemplates the imposition of an expiry date - whether by the permit or the operation of the legislation itself. True it is that the legislation also contemplates the making of a request to extend. But the exercise of the discretion to extend reverses the outcome which the permit or the legislation would otherwise require.

* as a factor in favour of an exercise of discretion under s.60(2) (if it be the case) that there has been no change in planning policy (in which term I include relevant legislation in the planning scheme). Consideration of that matter shows, indirectly, concern for any person who objected to the grant of the permit at the outset; or who would, if fresh application for a permit was being made, be potential objectors. On the other hand, it does not follow that, absent a change in planning policy, an extension should normally be granted.

* as a factor tending against the grant of an extension, any material which suggests that the owner of land is seeking to "warehouse" a permit. The objectors of the Planning Act do not include giving to an owner of land in respect of which there exists an unused permit for use or development the opportunity - by grant of an extension - of obtaining windfall by selling the land.

* intervening circumstances as bearing upon grant or refusal of an extension. So, for example, an owner's indication of intention to proceed with development, a fortiori has taken steps to develop in accordance with the permit, could be expected to tend in favour of grant of a extension.

* the total elapse (sic) of time when a request to extend is being considered. So, for example, if a permit had been long-held and not acted upon, its extension would be unlikely to facilitate the "fair, orderly, economic and sustainable development" of land. It might do the contrary in a particular case - as stultifying other possible development nearby. Further, the mere elapse of time in a particular case might be of such length that - even absent concern about "warehousing" or about stultifying nearby development, or even in the absence of changes in planning policy - grant of an extension would be inconsistent with the philosophy of the Act that a permit should not be unlimited as to time.

* for the corollary of the previous matter, whether the time limit for use or development originally imposed (and, if it be the case, as thereafter extended) was adequate in all the circumstances. The mere fact that a particular limit was set must no doubt be relevant. But whilst not impugning the limit originally set (and the effect of any extensions) consideration of all the circumstances might persuade a responsible authority that more time ought to be allowed for the owner of land to proceed.

* for the stated objective of the legislation to facilitate development in accordance with, inter alia, the provision of fair, orderly, economic and sustained development of land. In this connection, I consider, the economic burden cast by a permit upon the owner of land could not necessarily be ignored. If the burden appeared to be considerable, it might provide a reason why the owner of land would hasten slowly, whilst always intending to proceed with development. There could be little advantage to the owner or the community in a development commencing promptly but stalling midway for economic reasons.

* the probability, if it be the case, that if a request to extend time was refused and a fresh application for a permit was then made, it would be granted. Such a conclusion might perhaps be reached if planning policy remained unchanged; and if it seemed improbable that - if a fresh application was made - any new considerations would be raised by potential objectors."

(1997) 18 AATR 285, 313-4.

32. Finally on the same page His Honour observed:

"On the other hand, the Tribunal, or for that matter the Court, should not be overready to criticise the reasoning of a responsible authority - to attribute to matters on the periphery of that reasoning a significance which they did not have in fact."

33. As a prelude to his synthesis of the law His Honour considered a series of Tribunal decisions, namely Best v Zygier and City of Malvern (1975) 1 VPA 284; Lockwood Oaks Pty Ltd v City of Doncaster and Templestowe (1991) 7 AATR 217; Hire Tower Pty Ltd v Beaton and the City of Malvern (1993) 11 AATR 298 and Petersan Pty Ltd v Shire of Diamond Valley (1994) 13 AATR 219. All of those decisions which were referred to by His Honour without apparent disapproval stated in one way or another that a change in the Planning Scheme which would render a use or development prohibited is a significant negative. In Petersan's case Ms Moles said:

"It seems to me that in the circumstances where the subject matter of the permit is now prohibited, the applicant is effectively seeking to enjoy "existing use rights' for his permit, albeit they are yet to be realised. The extent to which the applicant should be permitted to trade on those rights needs also to be determined, I believe, according to the extent to which the subject matter of the permit would represent a significant departure from the current planning policy, rather than a departure from the prescriptive element of the Scheme." (1994) 13 AATR 219, 226-7

34. It will be seen therefore that a responsible authority considering an application to extend under Section 69 has a very wide discretion indeed and is entitled to take account of a wide number of matters.

35. It is unnecessary for me to decide whether this proposed use constitutes a transport terminal (other than heliport) as contended by Mr Horsfall. It was conceded by Mr Brennan on behalf of the Shire and not denied by Mr Turner on behalf of the permit holder that the proposed use is, according to the present rules, prohibited in that part of the subject land included in a Public Conservation and Resource Zone. Moreover, the discretionary uses in a Public Park and Recreation Zone to be found in Section 2 do not include any uses other than those which are "associated with the public land use". It has not been suggested that this proposed tramway is associated with the public land use. Accordingly the use according to the present rules seems to be prohibited in this zone as well. In the circumstances however it is sufficient to indicate that the present rules render the proposed use prohibited in one of the relevant zones. Mr Brennan referred to and relied upon Clause 63.01 of the Scheme which states:

"An existing use right is established in relation to use of land under this Scheme if any of the following apply:

* a permit for the use has been granted immediately before the approval date and the use commences before the permit expires."

36. Implicit in Mr Brennan's reliance on this provision is that the permit is not regarded as having expired so long as timely extension is granted with respect to it. I was provided with an extract from Council's minutes, being the portion dealing with the most recent extension of time. The minutes record Council's resolution and they also record the officer's report and a recommendation. That report described the history of the matter and sets out the text of Mr Turner's letter to Council explaining the difficulties which he has encountered. The officer's report recommends the grant of another two year extension of time, noting

"Whilst the applicant has already received a two year extension of time, it is acknowledged that the permit has very onerous conditions that require compliance with before the use and development can commence. The applicant appears to have undertaken a degree of work towards compliance with these conditions. As well, the pending VCAT hearing in December 2000 to resolve the request confirming the amendment of plans has delayed the process."

37. If the minutes represent an exhaustive description of the issues which were considered by Council it appears to have given no consideration at all to the fact that since the permit was granted the Planning Scheme renders the proposed use prohibited on at least part and possibly the whole of the subject land. For present purposes how does one conclude what matters were considered by the Councillors? Is it possible to conclude that in the absence of some express and direct evidence that they considered all relevant factors? Or on the other hand could I conclude that they considered no matters other than those set out in the officer's report? Kantor's case gives me no guidance because all five extensions were granted by individual officers exercising delegated power. Ashley J had the advantage of evidence from those officers as to what they had done and what considerations had moved them. If there was any debate at the time that Council resolved to make its extension, I was given no summary of it. Even if I had been it must be a matter of speculation as to what matters acted upon the minds of the Councillors.

38. In Minister for Aboriginal Affairs v Peko Walsend Limited [1986] HCA 40; (1986) 162 CLR 24 the High Court held the Minister's recommendation to the Governor-General to be void inter alia because the Minister had failed to take into account certain matters which the Court held he was obliged to consider. Gibbs CJ said:

"Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account he will not have formed his satisfaction in accordance with law." [1986] HCA 40; (1986) 162 CLR 24, 30-31

39. The matters which the Minister is required to consider were stated expressly in the relevant legislation in the Peko Walsend case. In the present instance there are no express matters laid down for consideration in Section 69 of the Planning and Environment Act. Mason J (as he then was) said:

"(a) The ground of failure to take into account a relevant consideration can only be made out if the decision maker fails to take into account a consideration which he is bound to take into account in making that decision: [emphasis in the original, references to authorities omitted]. The statement of Lord Greene MR in Associated Provincial Pictures Limited v Redensbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 228 that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of a statute confirming the discretion. If a statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context a judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as they may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard."

[1986] HCA 40; (1986) 162 CLR 24, 39-40

40. It is implicit in the formulation of Ashley J that the present state of the Planning Scheme is a highly relevant consideration. An absence of change from the date of grant of a permit to the date when extension is considered was described by His Honour as being a significant positive consideration in favour of granting the extension, implicitly the material alteration, such as the proposed use becoming prohibited. It is a very significant negative factor Nowhere is this mentioned in the officer's report. In Leigh and B. Bignall v Banyule City Council (2000) 7 VPR 128 Mrs Bruce, Deputy President, declared invalid a special rate scheme on a number of grounds including a failure by the Councillors to consider the submissions made by interested persons which they were expressly obliged to do under a provision of the Local Government Act. The Councillors had placed before them a summary which the Learned Deputy President considered was inadequate in the same way as the material placed before the Minister in the Peko Walsend case was. Can it be concluded from these authorities that Councillors must be regarded as having not considered any matter which is not referred to in the officer's report and a summary placed before them? There is not a complete identity between the situation which I am here considering and the one considered by Mrs Bruce in Leigh and Bignall or by the High Court in the Peko Walsend case. What was not placed before the decision-maker in those instances was the detail of submissions made by interested parties. The question of the zoning of the subject land here was a matter of public record. It would have been possible for the Councillors to have acquainted themselves at least in theory with what the zoning of the subject land was and whether a permit would be issued at the time when the extension was sought.

41. Where it is alleged that an administrative body has failed to take into account a relevant consideration in the absence of an allegation of fraud the question what the administrative body did or did not take into account would generally be answered within the four corners of its reasons for decision. See Baldwin & Frances Limited v Patents Appeal Tribunal [1959] AC 663, 693 per Lord Denning. Where no reasons are given for a decision and it is simply recorded in a resolution as Council's decisions typically are, the problem is more complicated. As O'Connor J said in Randal v The Council of the Town of Northcote (1910) 11 CLR 100, 113:

"When it was sought to prove that a discretion has been exercised on a ground which is in law deemed to be no ground at all it must be shown that the alleged ground really affected the exercise of the discretion. It is not, in my opinion, necessary that the circumstance should appear on the face of the resolution or other form of expressing their determination which the public body may have adopted. If such a requirement were insisted on in all cases, the power of the Court could seldom be exercised. It is enough if the Court on consideration of the whole of the material before it comes to the conclusion that the public body has acted on a ground which it was not open to consider."

42. So in Chippendale Estates Pty Ltd v Sydney City Council (1960) 6 LGRA 194, 202 Hardie J held that the Council had exercised a discretion bestowed upon it by the County of Cumberland Planning Scheme Ordinance based upon an irrelevant consideration. He said:

"The appellant [that is Chippendale] has tendered in its case the Council's file showing what materials were before the Council when it passed the resolution purporting to prohibit the installation of petrol pumps on the subject land. No evidence has been tendered in the respondent's [the Council's] case on that point. Looking at the documentary evidence in the Council's file, it is quite apparent that the Council did not in any sense address its mind to the question of controlling or regulating the installation of petrol pumps on the subject land. On the material before me the conclusion is inescapable that it considered one matter only, namely, the question as to whether or not it should grant the application for consent to the erection and use on the subject land of a petrol station. It decided to refuse that application for the reasons stated in its decision." (1960) 6 LGRA 194, 202

43. So in Wattleglen Estates Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 40 LGRA 104 Gowans J heard and determined an application for an order to review against the then Town Planning Appeals Tribunal. Because no request had been made, no statutory reasons had been furnished by the Tribunal and only a short form of statement of determination had been provided. In those circumstances His Honour considered the evidence as a whole to determine whether it had been shown that the Tribunal in making its determination had failed to consider one of the grounds urged by the applicant for review. He concluded that it had not been demonstrated that the Tribunal had failed to give consideration to that matter.

44. What then is the evidence in the present proceeding? The only material as to what was before Council when it made its determination is the extract from its minutes constituting the resolution to extend and the officer's report. Neither of those documents says anything to indicate that the fact that the tramway would be a prohibited use on some or perhaps all of the subject land was considered by the Councillors at all. Section 98 of the Victorian Civil and Administrative Appeals Tribunal Act 1998 authorises me to inform myself as I see fit. I am not bound by the Rules of Evidence but I am bound by the Rules of Natural Justice. I believe it is so notorious that the mode of proceeding adopted by councils is for the councillors to be provided with a set of papers for each meeting including reports from the relevant departments which are affected by the various items of business for consideration at the meeting. These papers in themselves provide a very large bundle of "homework" for councillors who in Victoria are still largely honorary rather than professional. In these circumstances it is, in the absence of evidence of anything more, simply fanciful to consider that one or more of the councillors might, without any suggestion in the officer's report that it was necessary or appropriate, have gone to the zoning maps to establish the zoning of the subject land (which does not appear in the Officer's report) and then considered the text of the Scheme to see whether under the then current planning arrangements it would be possible to grant a permit for the proposed use and development. The obvious inference is that this matter shown to be highly relevant by the Tribunal decisions referred to with apparent approval by Ashley J in Kantor's case and implicitly important in the synthesis which His Honour gave in Kantor's case (though there it seems there was no change in the planning controls over the period when the impugned permit extensions were made) was ignored completely.

45. As Sir Anthony Mason's analysis in the Peko Walsend case shows what is a necessary consideration may appear not only from the express provisions of the statute granting a discretion but also implicitly from the subject matter. The analysis undertaken in the Tribunal authorities referred to by Ashley J and in his own judgment indicates to my mind that the question as to whether the planning controls in force at the time of the extension would have permitted the grant of this permit anew was a vital issue. Council's failure to advert to it at all renders its decision open to attack.

46. Declarations are equitable remedies. As such they are by their very nature discretionary. Having found that the basic requirement for a declaration of invalidity have been made out are there any discretionary considerations which would render it inappropriate for me to make the declaration sought?

47. The first and most obvious possible consideration is that based upon the reasons for decision of Judge Jones as President of the Administrative Appeals Tribunal in the matter of D. & M. Peckelman Pty Ltd v City of Melbourne (1990) 4 AATR 246, 250-1 where His Honour said that proceeding under Section 87 of the Planning and Environment Act 1987 is generally the more appropriate course and relief should be granted under Section 87 rather than under the Tribunal's declaratory powers (then contained in Section 14 of the Planning Appeals Act). His Honour adopted a similar approach in Traill v Rural City of Wodonga (1989) 3 AATR 107. In Cook v City of Melbourne (1998) 1 VPR 41 I considered His Honour's decisions in Peckelman's case and Traill's case and concluded that whilst the availability of relief under Section 87 was an important discretionary consideration, it overstated the situation to suggest that this remedy must invariably be given to the exclusion of declaratory relief. It is unnecessary for me further to prolong these reasons by repeating all that I said in Cook's case on that subject.

48. In any event the premise for the application is the views expressed by Judge Jones in Peckleman's case is that relief under Section 87 was available. In Peckleman's case itself the applicant for relief had not only sought a declaration but also made a request to cancel or vary the permit pursuant to Section 87. Here, there is no request under Section 87 (though the permit holder Mr Turner made his own request for the purposes described above). Moreover, it is not entirely clear what matter would establish the necessary pre-condition for the making of a Section 87 request. The only ground which seems immediately applicable is a contention that there has been a material change in circumstances since the grant of the permit (Section 87(1)(d)). Obviously the change worked by the adoption of the new Scheme in 1998 is such a change. It may be that Council's determination to extend the period for commencement of the development permitted could also be said to be a change in circumstances. Whether or not having regard to the Tribunal's power under Section 89(3) of the Planning and Environment Act 1987 to decline to entertain a request on the ground that it was not made as soon as possible after the requestor had notice of the matters relied upon, a request under Section 87 would have been successful remains unexplored.

49. In the end since the Planning and Environment Act offers persons both declaratory relief and relief by way of request under Section 87, generally the applicant for relief should be at liberty to choose the form of relief which he desires, unfettered by any rigid rule. The authorities to which I referred in Cook's case with respect to the Supreme Court's equitable power to make declarations bear this out.

50. The next question to consider is whether the Tribunal's power to "disregard" "any failure to comply" with a planning enactment (as that expression is defined) in Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 under Clause 62 should be regarded as justifying me in disregarding Council's failure to consider an important relevant factor in the determining to extend time for commencement of the development as laid down in Condition 22 of the permit and deny the Horsfalls the relief that they otherwise seem to be entitled to. In my view it does not for a number of reasons. First, Clause 62 applies to the Tribunal. It bestows no jurisdiction upon the Supreme Court to "disregard" non-compliance. It would have been possible for the Horsfalls to apply for substantially the same relief as they are seeking in the Tribunal under Section 149B of the Planning and Environment Act from the Supreme Court in its general equitable declaratory jurisdiction. See No. 2 Pitt Street Pty Ltd v Wodonga Rural City Council [1999] 3 VR 439, 446-7 per Balmford J. It cannot have been intended that substantially the same application made to the Tribunal on the one hand or to the Supreme Court on the other, with both bodies having jurisdiction to entertain it, should meet a different fate depending upon which venue was chosen. Secondly, for reasons which I explained at greater length in Castik Investments Pty Ltd v Stonnington City Council (1999) 3 VPR 46, 58-9 the purpose of Clause 62 is to facilitate the efficient and speedy operation of the Tribunal's review jurisdiction. Where the Tribunal is exercising a declaratory power and hence declaring or enforcing existing rights, the clause is not intended to authorise the Tribunal "to play fast and loose with the substantive law".

51. A further issue which needs to be considered, either as part of the question whether as a matter of discretion a declaration should be granted or otherwise, is whether in the circumstances the Horsfalls ought to be allowed to rely upon the point of invalidity which I have identified in Council's determination having regard to the way in which their application was framed and the way in which the hearing was conducted.

52. I have set out the form of the Horsfalls' application and summarised the submissions made by their son on their behalf. Both the application and the submissions lay stress upon the significance of the change in the Planning Scheme. Mr Horsfall took me to the various clauses of the Scheme in some detail. He did not however distinctly criticise the procedure adopted by Council using as the basis for its decision, an officer's report which did not canvass these matters at all. I must remind myself however that none of the persons appearing before me was a legal practitioner. The distinction between a merits review of a decision on the one hand and an application for a declaration that an administrative act is void or invalid (something analogous to judicial review) on the other hand is elusive even for experienced lawyers and judges. In my view in raising and stressing the significance of the change in zoning control introduced by the new format Scheme, the Horsfalls in the circumstances should be regarded as having sufficiently raised the issue as to whether Council properly considered that element in the matrix of fact which confronted it when it determined to extend the date for the commencement of the development. For the avoidance of doubt however and to avoid any failure to comply with the Rules of Natural Justice I caused the Registrar to send facsimile transmissions to each of the parties the next business day following the hearing before me, giving them a week and a half to make any written submissions as to:

(a) whether the absence from the officer's report of any reference to the change in planning controls meant that Council had not considered the significance of the change in planning controls; and

(b) whether if this was correct, Council's determination was invalid for that reason.

53. I adopted the course of seeking written submissions because all of the parties are based in Echuca and it would have seemed oppressive to require them to attend a further hearing in Melbourne. Mr Horsfall merely reiterated reliance upon the lapse of time since original grant of the permit. He said what the Councillors knew about the changed planning controls was a matter of speculation. Mr Brennan initially elected to make no submission on behalf of the Shire as to the effect of the contents of the officer's report. Later in a further written submission he suggested the Councillors would have decided to extend the permit even if they were aware of the new planning controls based upon the permit holder's existing use rights. Mr Turner said "Whatever knowledge the officers should have provided with regard to the new zone status of part of the tramway route would Council have come to the same conclusion, ie. to extend the time of the permit. No doubt Council may wish to consider this, particularly, as I understand it, that the previous permit provided pre-emptive rights."

54. None of those submissions takes the matter any further. The change in planning controls is a most significant change of circumstances. Although Council may still elect to extend this permit (see Section 69(3) of the Planning and Environment Act) it is far from inevitable that a properly instructed Council would reach that decision.

55. As part of his submission Mr Turner tabled a schedule of "start up and capital expenditure" as at 8 August 2001 totalling $165,400. Implicitly he submitted that it would be inequitable and unreasonable in the circumstance to invalidate his terms in light of this extensive expenditure and reliance upon the continued validity of the permit. Mr Horsfall observed that this schedule unsupported by any receipts, cheque butts or invoices. Nevertheless Mr Turner did produce a book of photographs indicating that a large volume of items had been acquired. The largest items in the list of expenditures are "sixteen locomotives $78,000", "appeals $38,000", "legal $6,200", "rail $15,500". I can put the "legal" and "appeals" to one side immediately. I take these to be legal costs and consultancy costs associated with the presentation of his case to the Responsible Authority and at the Tribunal hearing. The practice in the Tribunal is that parties must meet their own legal and consultancy costs and in ordinary permit review matters the costs usually lie where they fall. A proponent therefore must take the risk that his consultancy and legal costs will be a dead loss if he does not obtain the permit which he seeks. As to the rest, since Mr Turner said that he had been involved in a construction of three steam tramway or railways in recent years, there is no reason to think that the items acquired represent a dead loss or that they could not be resold or used by Mr Turner himself in some other project.

56. In those circumstances there would be no injustice in making the declaration sought based upon Council's failure to consider the important and relevant matter of the change in planning controls relative to the project.