Victorian Civil and Administrative Tribunal|2005-05-04

Katsanis v Wyndham CC (Red Dot) [2005] VCAT 824 (4 May 2005)

Sections 126(1) and 126(4) Victorian Civil and Administrative Tribunal Act 1998 - Considerations relevant to extending time for lodging an application for review - Destruction between applications for review lodged by objectors and permit applicants - Need for objectors to adhere strictly to time limits - Mantello Property Group Pty Ltd v Mornington Peninsula Shire Council and Becton Corporation Pty Ltd v Port Phillip City Council applied

Paul Katsanis and First State Constructions Pty Ltd

1 The application for extension of the time limit fixed for the commencement of the proceeding is refused and consequently the application for review is dismissed as being out of time.

Ms Sarah Porritt of Counsel, instructed by Ebsworth & Ebsworth

Mr Adrian Finanzio of Counsel, instructed by Phillips Fox

1 Application P874/2005 is made pursuant to section 82 of the Planning and Environment Act 1987 in respect of the decision by the responsible authority to grant a permit for "the use and development of the land for the purpose of a general medical centre, dental clinic, and ancillary pharmacy/dispensary with associated car parking in accordance with the endorsed plans". The application for review was lodged with the Tribunal one day outside the 21 day time limit within which objectors may apply for a review. Accordingly the purpose of this directions hearing was to consider an application by the applicant for an extension of time under section 126 of the Victorian Civil and Administrative Tribunal Act 1998.

2 An application was also made by Paul Katsanis, who was not an original objector, to be joined as an applicant for review.

3 The application for extension was not opposed by the responsible authority, but was opposed by the permit applicant.

4 The subject land is in a Low Density Residential Zone directly opposite a Business 1 Zone to the north, which is currently being developed by the applicant, First State Constructions, for a shopping centre that will include a medical clinic and pharmacy. Paul Katsanis is a prospective tenant of the proposed pharmacy in the applicant's new shopping centre.

5 An affidavit by Bruce Tilley, a director of First State Constructions, was submitted which outlined the reasons why the application for review was lodged out of time. First State Constructions was the only objector to the permit application. The objection was prepared and submitted by planning consultants, Tract Consultants Pty Ltd, to whom the Council sent the Notice of Decision dated 16 March 2005 (received by Tract Consultants Pty Ltd on 17 March 2005). At this time Mr Tilley was on holidays and not contactable by phone. Tract Consulting contacted Mr Graham Bell, Project Manager for First State Constructions, immediately upon receipt of the Notice of Decision. However Mr Bell failed to fully appreciate the implications of the appeal process and in any event did not hold any instructions to lodge an application for review. When Mr Tilley returned from his holidays and learned of the Notice of Decision he immediately instructed Tract Consultants Pty Ltd to lodge an application for review but it was one day outside the 21 day time limit for objector appeals.

6 It was submitted on behalf of the applicant that the time delay is of the shortest possible period and the detriment to the applicant if an extension of time in which to lodge the application for review is not granted will be considerable. There are various aspects of the planning merits of the permit application which it was submitted should be the subject of consideration by the Tribunal. A legal point was also raised, namely whether the pharmacy use proposed for part of the premises is lawful as the use of land for "retail" is prohibited in the Low Density Residential Zone. Given the proposed size, configuration and number of staff proposed for the pharmacy use, it was submitted that the use cannot be considered as ancillary to the use of the medical centre.

7 On behalf of the applicant Ms Porritt canvassed the considerations that are commonly seen to be relevant in extending time for lodging an application for review at the Victorian Civil and Administrative Tribunal and concluded that none of the responses would preclude an extension of time.

8 By contrast, it was submitted by Mr Finanzio on behalf of the respondent/permit applicant that none of these considerations outweighed the prejudice or detriment that would be suffered by the respondent/permit applicant. The detriment that will be suffered is delay in the issue of a planning permit and the loss of certainty that a permit will be issued once the time for objectors to lodge an application for review has expired. Hoppers Crossing is a newly developing residential area. As Mr Finanzio put it, this case is about who gets the jump on who. The applicant is in the process of developing a shopping centre which will contain its own medical centre and pharmacy that will be in competition with the medical centre and ancillary pharmacy on the subject land. There is a perceived commercial advantage to the medical centre which is first able to open its doors and attract clientele in this rapidly developing area. He submitted that this is an advantage the loss of which cannot be compensated by the means outlined in section 126(4) of the Victorian Civil and Administrative Tribunal Act 1998.

9 Section 126(1) of the Act enables the Tribunal to extend any time limit fixed for the commencement of the proceeding, but subsection 4 provides as follows:

126.

Extension or abridgment of time and waiver of compliance

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

10 Mr Finanzio also drew the attention of the Tribunal to several recent cases decided by the President of the Tribunal, Justice Morris, in Mantello Property Group Pty Ltd v Mornington Peninsula Shire Council (2003) 15 VPR 255 and Becton Corporation Pty Ltd v Port Phillip City Council [2004] VCAT 1897. Both these cases involved applications for review by objectors: Each was lodged one day out of time and in each an extension of time pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act was being sought. In each case, Justice Morris refused the application to extend time.

CONSIDERATIONS RELEVANT TO EXTENDING TIME FOR LODGING AN APPLICATION FOR REVIEW

11 For many years the criteria that the Tribunal has considered when deciding whether to extend time for lodging an application for review have been:[1]

(i) What reasons are given for the delay by the applicant for extension of time in lodging its appeal?

(ii)

Did the applicant for extension of time take any other action (apart from the lodging of the objection or the late appeal) which continued to make the responsible authority aware that its decision to grant a permit was being contested?

(iii)

Will the applicant for the permit or the responsible authority suffer any prejudice if the application to extend time is granted?

(iv)

Will granting of the extension of time result in the unsettling of other people or of established practices?

(v)

Does the proposed appeal have a real change of success?

(vi)

Are any considerations of fairness as between the applicant for extension of time and other persons in a like position which are relevant?

(vii)

Is there to be an appeal in any event brought by persons who did lodge an appeal in time?

(viii)

Is there any other reason why it would be fair and equitable in the circumstances for the application for extension of time to be granted?

12 These may all be relevant considerations depending on the circumstances but it is inappropriate to place too much weight on any particular criterion or to assume that a satisfactory response to them all will guarantee an extension of time. As Deputy President Byard said in Dingley Village Neighbourhood Centre Inc v Kingston City Council[2] :

... the overriding purpose of the power granted to extend time is to enable justice to be done. Time limits are expected to be observed. They facilitate the timely conduct of the business of the court or tribunal. A party obtaining benefit from the failure of another to observe a time limit is able to retain that benefit unless the discretion to extend is exercised in favour of the defaulter. The grant of an extension is not automatic. It is generally relevant to consider the history of the case, but none of these things establish any hard and fast rule, and each case must be judged on its own merits with various considerations being given appropriate weight in the circumstances of the case. Finally however, it is a matter of doing justice, or enabling justice to be done.

13 In the recent cases of Mantello Property Group Pty Ltd v Mornington Peninsula Shire Council and Becton Corporation Pty Ltd v Port Phillip City Council the Tribunal has taken a particularly stringent view about the need for objectors in particular to adhere strictly to the time limits allowed for lodging applications for review. In commenting on the operation of section 126(4), Justice Morris said in Mantello's case:[3]

[6] The question then arises as to whether I should extend the time. The power to extend the time is given by section 126 of the Victorian Civil and Administrative Tribunal Act. That power is conditioned by a provision that prevents the extension of time if it would cause any prejudice or detriment to a party or potential party that could not be remedied by an appropriate order for costs or damages. There has been some controversy as to whether or not that requirement includes prejudice by reason of the fact that an appeal will now be brought, whereas if the extension is not granted it would not be brought. As interesting as that legal question is, I do not feel it need be resolved in this case. Regardless of whether prejudice is a mandatory factor, it is certainly a discretionary factor.

14 In exercising his discretion in Mantello's case, Justice Morris commented on the apparent harshness of a time limit that operates so as to shut out a person if they miss it by one or two days, however he went on to say:[4]

[9] ... But harsh though it is, the law requires objector appeals to be in by the day that the regulations require and that if the appeal is not in on time, the applicant for the permit has every right to think that they have a permit and not merely a decision of the council in their favour.

15 Mantello's case was followed in Becton Corporation Pty Ltd v Port Phillip City Council where Justice Morris again commented:[5]

[6] However time limits are necessary to make the operation of the law and the planning system effective. Without time limits, the whole system would degenerate in to one lacking in certainty; and would become highly dependent upon discretion.

[7] Thus I must seriously consider whether the onus, which is clearly upon the applicant, of demonstrating that the time limit should be extended has been discharged. To use the analogy of a set of scales, the onus is not discharged if the arguments on each side result in the scales being horizontal. It is necessary for the scales to be tilted, and significantly tilted, in favour of the person seeking the extension of time.

16 In my view, there is a discernable difference between an application for review lodged by an objector against the decision of a responsible authority to grant a permit and an application for review lodged by a permit applicant against conditions or the decision of a responsible authority to refuse a permit. In a situation where the applicant for review is the permit applicant, it is always open to a permit applicant to lodge a fresh application for permit if an extension of time for lodging an application for review is not granted. It may well be in those circumstances that the balance of convenience for all parties lies with an extension of time and an early resolution of the merits of the application than requiring a fresh application for a permit to be lodged with the consequent delays, uncertainty and expense this may entail.

17 This does not mean that an extension of time is automatic in such cases. The considerations outlined above are still relevant. However, in the case of an application for review lodged out of time by an objector there must be a very good reason to extend the time limit that will tilt the scales significantly in favour of the person seeking the extension of time in order to overcome the disadvantage caused to a permit applicant by opening the certainty of a permit to challenge.

18 Third party objectors in Victoria are provided with generous opportunities to participate in the permit decision making process. In most instances a range of informal consultative processes are undertaken as well as third parties having the legal right to lodge an objection which must be taken into consideration by the responsible authority before making a decision. In addition, objectors have an opportunity to lodge an application for review if a decision is made to grant a permit, but it is an opportunity with a time limit. As the Tribunal has often said, the time limit is there for a purpose and needs to be strictly adhered to. If there is a proceeding already on foot, the permit applicant may suffer little harm if time is extended, nevertheless even in these cases a proper discretion must still be exercised to enable justice to be done.

19 In the present case I find there are no compelling reasons to extend time. I do not consider that the applicant had a good reason for its delay. Mr Tilley's holiday, the lack of appreciation by the applicant's project manager of the need to lodge an application for review and the lack of authority to do so are not matters which were outside the control of the applicant. In my view they do not justify an extension of time.

20 The issue of legal significance concerning the ancillary use of the pharmacy is not a matter that can only be addressed by means of this application for review. If any ancillary use ceases to be ancillary and, by degree, becomes a separate use in its own right, the opportunity always exists to seek a declaration.

21 So far as the planning merits are concerned they will not be open to testing but that is a consequence of the applicant failing to lodge its application for review within time. I am not persuaded that the applicant will suffer any major or material detriment by the grant of this permit that, of itself, would demand the planning merits be revisited. The applicant is a commercial competitor. Whilst the Planning and Environment Act seeks (not always successfully) to limit the opportunities of commercial competitors to object to permit applications[6] and there is no reason why a commercial competitor may not raise legitimate planning objections, I consider that the consequences of the delay which the respondent/permit applicant would face if an extension of time was granted in the present circumstances would constitute the type of detriment that section 126(4) is intended to avoid.

22 For these reasons I determine that the application to extend time under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 should be refused. As a result, it is unnecessary to deal with the application by Mr Katsanis to be joined as an applicant.

[1] These considerations were based on a decision of the Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305 and were enumerated in Reynolds v Macedon Ranges Shire Council (1999/33825) noted at (1997) 19 AATR 9.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Katsanis v Wyndham CC

At a glance

Court

Decision date

Source

Judgment (30 paragraphs)

Katsanis v Wyndham CC (Red Dot) [2005] VCAT 824 (4 May 2005)

Parties

Legislation Cited (2)

Cases Cited (1)