Leonora Group (Wonthaggi) Pty Ltd & Anor v Bass Coast SC [2003] VCAT 233

Leonora Group (Wonthaggi) Pty Ltd & Anor v Bass Coast SC [2003] VCAT 233 - VCAT 2003 case summary — Zoe

[49]

21. Whether or not anyone sought clarification about the Ritchie objection at an earlier stage, or had an interest in doing so, the situation as to who the true objector was became quite clear upon the lodging and service of Ritchies' application for review. That application was received by the Tribunal on the 5 August 2002. It gives the name of the applicant as "Ritchies Stores Pty Ltd and its address as "c/- STOKES PLANNING PTY LTD - Suite 5, 532 Hampton Street, Hampton". It also gives the postcode and business telephone number of Stokes as shown on the Stokes' letterhead. That document was served on the Responsible Authority and i2C shortly afterwards. In my opinion no one concerned could be in any doubt, from that time onwards, that the true situation was that the Stokes' letter of the 16 April 2002 was in fact a Ritchie objection, even if that circumstance had not been inquired into or stated up until then. Ever since then, until the hearing of the 25 February 2003 was in contemplation, I believe it is true to say that no query or complaint as to the identity of Ritchies as the objector was raised on behalf of i2C. I mentioned the matter on the 18 October 2002. As I say no "timely" action was taken before or after that hearing until the hearing of the 25 February 2003 was in contemplation. No such points were taken or foreshadowed on the 18 October 2002. I think it was reasonable for Ritchies to assume, from what I said, that I contemplated the matter being put to right at a later stage. Such later stage might be at a further preliminary hearing or at the beginning of a full hearing of the merits of the case. I do not consider Ritchies to be liable to the blame that Mr Wright sought to heap upon it for not taking or initiating such action before or immediately after the hearing of the 18 October 2002. It was reasonable for Ritchies to take it that, if I had not demanded immediate rectification, but foreshadowed a later amending, and none of the parties represented at that hearing dissented, it was reasonable for Ritchies to assume that it could leave the matter in abeyance for the time being, and deal with it when a convenient opportunity arose.

[101]

53. I do not think this line of argument is correct. At the time the permit application is made a decision by the Responsible Authority can be anticipated and there must be an expectation of the possibility of objection and/or review before the Tribunal. When an objection is lodged, it creates the expectation of a Notice of Decision, and also contemplates the possibility of review. When an application for review is launched the fundamental documents in the review are not only the application itself, but the pre-existing permit application, any objection in the case of a refusal or conditions review under s 77 or s 80, the objection of the applicant for review in the case of a review under s 82, the Notice of Refusal to issue a permit if one was give, the permit if one was issued and the Notice of Decision to Grant a Permit if one of those were issued. I believe that a permit application, able to be amended under Clause 64 of Schedule 1, could also be amended under s 127. I believe there are cases where the Tribunal has purported to do that. Whether there are or not, the maximum of expressio unius personae vel rei, est exclusio ulterius (that is to say the express mention of one person or thing is the exclusion of another) should not be applied here. Clause 64 of Schedule 1 of the VCAT Act is a descendent of an equivalent provision namely s 53 in the pre-existing Planning Appeals Act and s 21A(1) in the earlier Town and Country Planning Act 1961. Section 127 has a quite a different origin and is applicable to all Tribunal proceedings. Clause 64(4) expressly says that it is to be in addition to, and does not limit or affect s 127. Having regard to their fundamental nature in planning review proceedings I consider that the documents I have listed, including objections, become documents in a proceeding once an application for review of the relevant sort has been commenced. I am satisfied that I have the power and that I should amend the objection to include a statement that the objector is Ritchies. Even if I do not have the power to make the amendment, I consider that the finding that the true objector is really Ritchies is sufficient to overcome the problem.

[126]

76. A hearing of the merits of the case has been fixed to commence at 10.00am on Monday, 28 April 2003 when five (5) days have been allocated. I was requested to give a direction that the evidence of witnesses to be called should be filed and served by the 11 April 2003. The hearing on the 25 February 2003 occupied the day. Most of the time was devoted to the issues I have discussed above. There are some other procedural matters dealt with at the beginning of the hearing on that day. It had been anticipated that there may have been argument on that day about the relevance or otherwise of economic evidence that the two applicants for review had indicated on the 18 October 2002 would be sought to be called. I raised some questions about the relevance of such issues on that day and in the subsequent interim determination. At that stage it had been anticipated that there would be a full merits hearing on the 17 and 18 November 2002. That hearing was vacated. At that stage work had been proceeding, I was informed, on having written reports from expert witnesses in the field of economics available to be filed and served 10 business days prior to the 17 November 2002. These foreshadowings of economic evidence were given by the applicants for review. A final decision on the relevance of such evidence was not made at that stage. However, at the hearing, and in the subsequent written determination I said that preparation, filing and exchange of written reports containing such evidence should proceed in accordance with the original timeframe of the full hearing commencing on the 17 November 2002. Mr Sherman, who appeared for Ritchies on the 18 October 2002, later said in correspondence that he did not recall this having been said. No such written reports were filed 10 business days prior to the 17 November 2002, or after that date. The inference from that seemed to me to be that the idea of calling such evidence was abandoned. Ultimately this turned out to be the case. Mr Peake's client has abandoned its whole case, and Mr Taylor indicated, at the beginning of the hearing on the 25 February 2003, that his client would not be relying on any such evidence. It was said by Mr Wright that notice of this abandonment was not given until 4.00pm on the 24 February 2003, although there was some reference to a letter of the 22 January 2003. Mr Wright claimed that, until a late stage, he had expected to have to argue the irrelevance of economic evidence and had been obliged to prepare for such argument prior to the 25 February 2003. Ultimately the issue may not have been finalised until the full hearing, but as things evolved, these other preliminary matters occupied the day and there would have been no time to deal with the relevance of economic evidence. It was fortunate, in the circumstances, that the issue was abandoned. Mr Wright asked me to reserve his client's costs in relation to the hearing on then 25 February 2003, but limited to the costs involved in preparing for the anticipated argument on the economic evidence question on that day. I have reserved such costs.

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Decision date

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Judgment (132 paragraphs)

Leonora Group (Wonthaggi) Pty Ltd & Anor v Bass Coast SC [2003] VCAT 233 (21 March 2003)

Parties

Legislation Cited (4)