Victorian Civil and Administrative Tribunal|2002-06-24|Before: Balmford J

Koutroubas & Ors v Melton SC [2002] VCAT 917 (24 June 2002)

TOWN PLANNING - request to cancel or amend permit - discretion to refuse request notwithstanding material mistake in relation to grant of permit - need for finality -Planning and Environment Act 1987, s.87

PERMIT HOLDERS: John Connell, Oreste Mifsud, Rosie Mifsud

MEDIUM NEUTRAL CITATION: [2002] VCAT 917

1. Request of requestors other than George Ikosidekas for cancellation or amendment of Permit PA 2000/218 issued on 23 May 2001 refused.

2. Further hearing of request of requestor George Ikosidekas adjourned to a date to be fixed.

Requestors: Mr A E Radford instructed by Lewis Holdway

1. This is a request pursuant to s.89 Planning and Environment Act 1987 ("the Act") for cancellation or amendment of permit PA2000/218 issued by the Responsible Authority on 23 May 2001 permitting the development and use of land at 236-262 Paynes Road, Rockbank ("the subject land") as a broiler chicken farm.

2. Insofar as the request raises questions of law, those questions have been determined in accordance with the opinion of the presiding member.

3. Each of the requestors owns land contiguous with the subject land.

4. The permit was issued in compliance with an order of this Tribunal made on 24 April 2001 ("the April 2001 decision") in application 2000/94119. The requestors (other than George Ikosidekas) were parties to that proceeding.

5. Following the April 2001 decision, application was made by the Responsible Authority and the current applicant, Eric Koutroubas, for leave to appeal the April 2001 decision. In accordance with the Rules of the Supreme Court, a proposed notice of appeal was filed particularising errors said to have been made by the Tribunal.

6. The application for leave came before Balmford J on 21 June 2001, the applicants being represented by senior counsel. By that stage the proposed grounds of appeal had been revised.

7. The application for leave was refused. In accordance with what was then the practice of the Court, no reasons for refusal were given. It can be inferred, however, that her Honour was not persuaded that the proposed appeal had any reasonable prospect of success.

8. Although none of the present requestors, other than Mr Koutroubas, was a party to the application for leave to appeal, it is clear from evidence we heard that it was a representative application (in fact if not in law). Following the April 2001 decision there had been a public meeting. Mr Koutroubas was appointed to represent concerned residents (including the requestors) in challenging the decision. A fighting fund was established to which each of the requestors contributed.

9. Following the refusal of leave to appeal, the responsible authority made application to the Tribunal requesting cancellation or amendment of the permit on a number of grounds, but principally in consequence of the introduction of the Victorian Code for Broiler Farms. That proceeding was discontinued shortly before it was due to be heard (probably as a consequence of the decision of this Tribunal in Stoiljkovic v Shire of Cardinia, 14 February 2002).

10. Although the present requestors were not parties to the last-mentioned application, it was made by the responsible authority largely at their insistence and for their benefit. We do not mean to suggest that the responsible authority did not have broader considerations in mind, but it seems clear that the impetus for application came from the group of objectors of whom the present requestors formed part.

11. Following the withdrawal of the responsible authority's request, the present application was issued.

12. Section 87 permits the Tribunal to cancel or amend a permit if (relevantly) there has been "any material mistake in relation to the grant of the permit".

13. The grounds attached to the request list numerous "mistakes" said to have been made by the Tribunal in the April 2001 decision: for example, failing to give sufficient weight to relevant planning controls; failing to give sufficient weight to the impact of the development on the amenity of the area in general and on the requestors' lands in particular.

14. Mr Radford conceded that each of the grounds of request could be categorized as "appellable error" and either was, or could have been, relied upon in the application to the Supreme Court for leave to appeal.

15. Although the request is to "cancel or amend", no points of distinction in this regard were made in the argument addressed to us by Mr Radford.

16. It was agreed that two threshold questions can conveniently be considered by the Tribunal at this point. However, because Mr Ikosidekas was not party to the 2001 review, and by virtue of certain issues of fact arising in his case, it was agreed that the resolution of the preliminary issues would not affect his case at this stage.

17. The first preliminary issue is whether - even assuming that the grounds of the request can be established - the Tribunal would be prepared to exercise its discretion to cancel or amend the permit, particularly having regard to the fact that identical grounds were relied upon, or could have been relied upon, in the application to the Supreme Court for leave to appeal. If the answer is no, the request must be refused and no further argument need be entertained. If the answer is yes, the Tribunal will consider a second preliminary issue, namely whether it is satisfied that the application for cancellation was made "as soon as practicable after the person making it had notice of the facts relied upon in support of the request."

18. We return to the first of these two issues. In Stoiljkovic v Shire of Cardinia the Tribunal said at p.13:

39. The presence in s.87 of the word "may" reserves to the Tribunal a discretion: Interpretation of Legislation Act 1984 s.45(1).

40. Section 91(3) of the Planning and Environment Act 1987 forbids the Tribunal from cancelling or amending a permit on a request under s.89(1) unless the Tribunal is satisfied that "it would be just and fair in the circumstances to do so". Curiously, this requirement is not expressed to apply to the discretion reserved by s.87. It might be said that by the application of the maxim expressio unius exclusio alterius the requirement in s.91(3) should not guide the s.87 discretion. But this would be a very odd result. Moreover, the case presented on behalf of both the Responsible Authority and the Minister proceeded on the footing both that the discretion exists and that its exercise depends on considerations of fairness. Indeed, this Tribunal has hitherto assumed the existence of the discretion: eg. Skye Heights Pty Ltd v. City of Port Phillip & Ors 15 A.A.T.R. 219 at 224.

41. The requirement in s.89(3) that the request be made in a timely way underscores an intention that the process be fair.

42. Mr Smithers, on behalf of the Minister, articulated the discretion as requiring a balance between the unfairness to the permit holders which would result from the cancellation of the permit and the public interest in the cancellation.

43. In this regard, it must be acknowledged that according fairness to the permit holders itself satisfies a public interest. There is a legitimate public interest in the fair operation of the planning laws. There is a legitimate public interest in the preservation of vested rights and the operation of planning provisions in a way which promotes consistency and the ability of persons in the position of the permit holder to know where they stand."

19. We add that the public interest also requires that there be an end to litigation: interest reipublicae ut sit finis litium. This time-honoured legal principle underpins common law rules preventing further litigation of issues which have already been the subject of adjudication between parties. We do not suggest that any of those rules apply squarely to this case: but the spirit of them certainly does. However odious the proposed broiler farm may appear to the requestors to be, the permit holders have rights at law which must be respected. For more than two years now they have been attempting to secure, then to protect, the right to use their land for this particular purpose. They fought, and won, a six day case in this Tribunal more than a year ago (a twenty-eight page decision was published, including six pages of conditions). They successfully opposed an application by the responsible authority and Mr Koutroubas, on behalf of the requestors, for leave to appeal that decision. They successfully opposed an application by the responsible authority, at the urging of the requestors, for cancellation or amendment of the permit. They are now called upon by, in reality, the same interests to ventilate the same issues yet again.

20. The Tribunal does not doubt for a moment the sincerity of the requestors. Their concerns about the introduction of a broiler farm into their community are acknowledged. But there are rights on both sides: and there is a process. Save in the most exceptional circumstances, it would be a matter for alarm if an unsuccessful party to a proceeding before the Tribunal, having exhausted rights of appeal to the Supreme Court, could then require the Tribunal to review its original decision. We will not attempt to define what the exceptional circumstances might be: they are not evident in the grounds relied upon by the requestors.

21. The answer to the first preliminary question must therefore be "no" and the request, so far as it relates to requestors other than Mr Ikosedikis, must be refused.

Environment Act 1987

Legislation Act 1984

Koutroubas & Ors v Melton SC [2002] VCAT 917

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Koutroubas & Ors v Melton SC [2002] VCAT 917 (24 June 2002)

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