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[2003] VCAT 233
procedural. The applications to dismiss Ritchies’ review and obtain costs or damages were dismissed; the objection was amended and the affect-statement defect disregarded; a five-day merits hearing was set...
The Tribunal decided that Ritchies could continue its review even though its planning consultant had failed to put Ritchies’ name on the objection and had omitted a statement explaining how Ritchies would be affected. The evidence showed that Ritchies was the client and true objector. The Tribunal used its amendment and non-compliance powers to correct the record and allow the review to proceed. It also rejected, at that preliminary stage, the claim that Ritchies’ objection or review should be dismissed because it was primarily motivated by commercial competition. The planning merits were not decided.
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2,238 words · generated 01/10/2026
This was an interlocutory decision in a planning review, not a decision about whether the proposed development was acceptable on its planning merits. i2C Design & Management Pty Ltd sought a permit for a supermarket and two specialty shops at 88–94 Watt Street, Wonthaggi. The land was in a Business 1 Zone. As the Tribunal explained, the planning permission sought was for construction of the buildings and works, not for the retail uses themselves, which the planning scheme already allowed (paras [3]–[4]).
4 cited instruments linked from this judgment.
Stokes Planning Pty Ltd lodged a written objection on 16 April 2002, which Bass Coast Shire Council received the next day. The letter referred to the permit application and site, and said, “we ... wish to lodge an objection”. It was on Stokes’ town-planning letterhead but did not say it was acting for a client or name that client. It also did not state how the objector would be affected, as s 57(2) of the Planning and Environment Act 1987 (Vic) required (paras [12]–[16], [27], [31]).
The responsible authority treated the letter as an objection and later issued a Notice of Decision to grant a permit, dated 15 July 2002 (paras [14], [19]). Ritchies Stores Pty Ltd then applied for review under s 82 on 5 August 2002. The application identified Ritchies as the applicant and gave Stokes’ address as its address for service (para [21]).
At the preliminary hearing on 25 February 2003, i2C argued that Ritchies was not an objector because it was not named on the objection, and therefore could not seek review under s 82. It also argued that the objection’s missing affect statement had deprived the responsible authority of an opportunity to consider rejecting it under s 57(2A) as primarily directed to commercial advantage. i2C sought dismissal and orders for costs and/or damages (paras [18], [33], [41]).
The Tribunal rejected those applications at that stage. It amended the objection to say that it was lodged on behalf of Ritchies and disregarded the failure to include an affect statement. It fixed a later merits hearing and made directions about evidence and amended grounds. It did not decide the planning merits (Orders 1–6; para [76]).
The central factual finding was that Stokes had acted as Ritchies’ agent and Ritchies was the true objector. By the time of the preliminary hearing, evidence before the Tribunal, including an affidavit, confirmed the agency. The review application itself had also identified Ritchies and used Stokes’ address for service. The Tribunal found it reasonable to infer from the original town-planning letterhead that Stokes was acting for a client, and later evidence established which client (paras [16]–[17], [21], [26]).
The Tribunal treated the omission as a careless failure to make the document’s face match the underlying reality, rather than an attempt to substitute a new objector after the event. It considered that correction would be desirable to prevent confusion. Section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) allowed amendment of a document in a proceeding. Although the objection pre-dated the review application, the Tribunal reasoned that planning review proceedings depend on foundational documents created before the review begins, including the permit application, objection, decision notice and permit. It therefore held that the objection became a document in the proceeding once the relevant review was commenced (paras [48]–[53]).
The Tribunal also relied on the broader statutory setting. It referred to powers to disregard failures to comply with enactments under cl 62 of Schedule 1 and to waive procedural requirements under s 126(2)(b) of the VCAT Act. It connected these powers with the obligation to act fairly, decide on the substantial merits and avoid unnecessary formality and technicality (paras [8], [64]–[66]). The Tribunal’s reasoning was not that every omission is harmless. It emphasised the circumstances: the responsible authority had an effective address for service through Stokes, Ritchies’ identity was established, and no significant prejudice to another party had occurred (paras [60], [65]).
The missing affect statement did not, in the Tribunal’s view, automatically invalidate the objection from the beginning. It treated the requirement as directory and the omission as capable of remedy or disregard, following earlier tribunal decisions mentioned in the reasons (para [32]). The Tribunal also considered the practical significance of the omission. The objection included planning grounds concerning matters such as traffic, parking, amenity and strategic planning. In its view, the responsible authority was unlikely to reject an objection that raised planning issues merely because it also disclosed a commercial interest (paras [34]–[38], [46]).
On the commercial-purpose argument, the Tribunal distinguished being a competitor from having commercial advantage as the primary purpose of an objection. It considered that more was needed than the existence of a competing business. At the preliminary stage, i2C’s submission depended on assumptions about Ritchies’ motivation and on excluding the planning grounds, which had not been tested at a merits hearing. The Tribunal therefore found no sufficient basis to dismiss the review or make monetary orders at that point (paras [41], [46]–[47]).
The judgment describes the statutory context rather than announcing a broad change in planning law. Section 57(1) permitted a person who might be affected by a permit to object. Section 57(2) required a written objection stating its reasons and how the objector would be affected. Section 57(2A) gave the responsible authority a discretion to reject an objection it considered primarily made to secure or maintain a direct or indirect commercial advantage. If rejected, s 57(2B) meant the Act applied as if the objection had not been made (paras [26]–[29]).
The decision treated two kinds of defects differently. Drawing on Spurling v Development Underwriters (Vic) Pty Ltd, the Tribunal described minimum requirements for a valid objection, including that it emanate from a legal entity, express opposition to an identifiable permit application, explain why it was opposed, and provide enough information for the authority to notify the objector of its decision (paras [23]–[26]). It then treated the later-added affect-statement requirement as directory rather than mandatory, relying on decisions it identified as having treated its omission as curable (para [32]).
The judgment’s practical clarification is that a client’s omission from an agent-lodged objection need not necessarily destroy the client’s review right if the evidence establishes that the client was the true objector and the defect can be corrected without significant prejudice. It also clarifies the Tribunal’s view that a relevant objection can fall within s 127’s “document in a proceeding” even though it was created before the review application (paras [48]–[53], [65]).
The decision did not remove or narrow the responsible authority’s s 57(2A) discretion. Rather, it discussed the difficulty of applying that provision. The authority was not required to consider rejection, and the Tribunal said it could not conduct a review of the authority’s failure to exercise that discretion within the ordinary review proceeding. The reasons also refer to the potential for a declaration challenge if a decision were legally invalid, but that discussion was not the determination of such a challenge in this case (paras [29]–[30]).
At [48], the Tribunal described the problem as one of “dealing with the surface to make it reflect the underlying reality”. In plain English, it accepted that the objection’s wording did not reveal the true client, but considered that the evidence showed who had actually instructed Stokes.
At [53], the Tribunal said that foundational planning documents, “including objections, become documents in a proceeding once an application for review of the relevant sort has been commenced.” This was the basis for using s 127 to amend an objection that existed before the review proceeding. The reasoning treats the proceeding as including the documents that define and support the review, not just documents filed after the application.
At [65], the Tribunal said it was just that a client should not lose rights because of a careless professional agent’s misdescription, “at any rate in the absence of significant prejudice” to another party. The qualification matters: the decision linked correction to both the agent’s error and the absence of significant prejudice.
At [74], the Tribunal said Ritchies should have its opportunity for the case to be “heard, considered and assessed on its merits”. That explains why the Tribunal did not let the procedural defects end the review before the planning merits were considered.
The Tribunal also stated at [47] that it had no basis at that preliminary stage to dismiss the case or award costs or damages. It regarded the proposed remedies as drastic in circumstances where the case had not been assessed on its merits and the commercial-purpose claim rested on assertions and assumptions.
The decision is most relevant to planning review situations where an objection was lodged by a consultant or other agent, but the client’s identity was omitted or inaccurately recorded. The key factual features here were evidence establishing the agency, an applicant for review whose name and contact arrangements clarified the true client, and a finding that the omission was a careless slip rather than a change in objector (paras [16]–[17], [21], [26], [48]).
It is also relevant where an objection lacks the s 57(2) statement about how the objector would be affected. The Tribunal did not say that such an omission is irrelevant in every case. Its conclusion relied on the statutory and procedural powers available, the other information in the objection, and the absence of significant prejudice in the circumstances before it (paras [31]–[32], [46], [64]–[66]).
For commercial-purpose arguments, the fact pattern involved an objector that operated a business similar to the proposed supermarket, but whose objection also raised planning matters. The Tribunal considered that commercial competition alone did not establish a primary commercial purpose, and that the evidence and notice available at the preliminary hearing were inadequate to justify dismissal or financial orders (paras [33]–[38], [41], [46]–[47]).
The decision should therefore be read as a fact-sensitive procedural ruling, not as a blanket rule that errors in objections must always be excused. The Tribunal repeatedly considered the identity evidence, the agent’s role, the opportunity for service, prejudice, and the interests of justice.
The reasons do not report any later judicial treatment of this particular decision. They do, however, explain the earlier authorities that Senior Member Byard considered relevant as at 21 March 2003.
On minimum requirements for an objection, the Tribunal approved the analysis in Spurling v Development Underwriters (Vic) Pty Ltd and treated those requirements as continuing to apply under s 57 (paras [23]–[26]). On the missing affect statement, it relied on Guinness Mahon Pty Ltd v Moonee Valley CC & SJB Planning Pty Ltd, East Melbourne Group Inc v Melbourne CC & Omiros Pty Ltd and STY Building Supplies (Shepparton) Pty Ltd v Greater Shepparton CC & Peps Plans Pty Ltd, describing the omission as irregular or directory and capable of being cured or disregarded (para [32]).
The Tribunal discussed No. 2 Pitt Street Pty Ltd v Wodonga Rural CC in explaining the procedural burdens that may accompany a decision to reject an objection under s 57(2A), including fairness to the objector (para [35]). It also referred to Collins v Shire of Nillumbik & Hak and Ram v Whitehorse City Council and Harrison when explaining why commercial competition, or suspicion of a commercial motive, does not itself establish that commercial advantage was the primary purpose (paras [43]–[46]).
The judgment gives two different volume references for the STY Building Supplies decision: [1995? No: 2000] 5 VPR 246 at [32], and [2000] 5 VPR 460 at [54]. The supplied text does not reconcile those references. The decision also summarises the similar misdescription and affect-statement issues considered in STY (paras [54]–[65]). No claim about how courts treated the present decision after its date can be drawn from this judgment alone.
The Tribunal did not decide the merits of the proposed supermarket and specialty shops. Whether the development should receive a permit, and whether any planning grounds could justify refusal or conditions, remained for the later hearing (paras [76], [78]–[80]).
The decision also did not decide whether Ritchies’ objection or review was, in fact, primarily motivated by commercial advantage after a full evidentiary hearing. It held only that there was no adequate basis to grant the requested dismissal, costs or damages at the preliminary stage. The Tribunal noted that it could not exclude the planning grounds on the material before it (paras [41], [46]–[47]).
Nor did the Tribunal need to decide whether Ritchies should rely on s 82B leave or be joined under s 60 of the VCAT Act. It discussed those routes as possible alternatives, but considered its amendment and non-compliance powers sufficient for the orders made (paras [67], [75]). The judgment therefore leaves open how those alternatives would apply in a case where amendment or disregard was unavailable.
Finally, the decision’s treatment of the objection as a “document in a proceeding” rests on its account of the role of foundational planning documents in review proceedings. It does not provide a general ruling about every document created before tribunal proceedings begin. Its express reasoning concerns the listed documents in planning reviews, including objections (para [53]).
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PLANNING AND ENVIRONMENT LIST Tribunal No. P002019/2002
Planning; Planning and Environment List; procedures; s. 57 Planning and Environment Act 1987; objections; requirements of objections; affect statement; rejection of objection for lack of it affect statement; town planner lodged objection on behalf of client without affect statement; town planner lodged objection on behalf of client without naming client; whether objection "made primarily to secure or maintain a direct or indirect commercial advantage for the objector"; meaning and application of that expression; responsible authority's power to reject such objection; difficulties and constraints in relation to the exercise of such power; whether applicant for review lacks "standing" because its name did not appear on objection; misnomer or "non-nomer"; whether proceedings competent; if not can defect be "mended"?; powers of amendment; Clause 64 of Schedule 1 Victorian Civil and Administrative Tribunal Act 1998; s. 127; "document in the proceeding"; document in the proceeding can include objection though it predates application for review; can include other pre-application for review documents; Clause 62 of Schedule 1 VCAT Act; power to disregard failures to comply with enactments; s. 126(2)(b) VCAT Act; power to waive compliance with procedural requirements; s. 82 and 82B Planning and Environment Act 1987; s. 60 VCAT Act; power to join parties.
APPLICANTS FOR REVIEW: Leonora Group (Wonthaggi) Pty Ltd (application originally made by The Planning Group (Vic) Pty Ltd) and Ritchies Stores Pty Ltd
RESPONSIBLE AUTHORITY: Bass Coast Shire Council
RESPONDENT/PERMIT APPLICANT: i2C Design & Management Pty Ltd
MEDIUM NEUTRAL CITATION: [2003] VCAT 233
1. Applications that the application for review of Ritchies Stores Pty Ltd should be dismissed at this stage with orders for costs and/or orders for damages are themselves dismissed.
2. The objection to the grant of a permit dated 16 April 2002, set out on the letterhead of Stokes Planning Pty Ltd and lodged by that company on behalf of Ritchies Stores Pty Ltd is amended pursuant to s 127 of the Victorian Civil and Administrative Tribunal Act 1998 to include, at the beginning a sentence reading:-
"This objection is lodged on behalf of Ritchies Stores Pty Ltd."
and any failure to comply with s 57 of the Planning and Environment Act 1987 in relation to the inclusion of a statement of how the objector is or will be affected by the grant of a permit is disregarded pursuant to the Tribunal's powers in that respect.
3. This case is fixed for hearing to commence at 10.00am on Monday, 28 April 2003 when five (5) days have been allocated for the hearing.
4. Any party proposing to call witnesses at that hearing is required to file with the Tribunal and serve on each other party a copy of a written statement of the evidence of such witness, or, in the case of an expert witness, a written report of such witness containing such evidence by the 11 April 2003.
5. Ritchies Stores Pty Ltd has leave to further amend its grounds of its application for review in accordance with the reasons given hereafter but only on the basis that it will not be relying upon economic evidence or the evidence of expert witnesses qualified in the field of economics, such revised grounds to be provided in writing to the Registrar with copies to each of the other parties not less than 10 days after the date of this document. This leave involves the deletion of grounds 1, 4, 5 and 7 that appear in this party's statement of grounds dated 28 November 2002, the amendment of grounds 2, 3 and 6 in accordance with the reason attached and consequent renumbering.
6. The costs of the respondent/permit applicant i2c Design & Management Pty Ltd in relation to the hearing on the 25 February 2003, but limited to preparation work for that hearing in relation to the question of the relevance of evidence in the field of economics in this case are reserved.
Ms Tania Heber, solicitor of the firm of Maddocks, solicitors, appeared for the Responsible Authority.
Mr Michael Wright QC, barrister, appeared with Mr Phil Bissett, solicitor of Minter Ellison, solicitors for i2C Design & Management Pty Ltd, the permit applicant.
Mr Colin Taylor, solicitor of the firm of Russell Kennedy, solicitors, appeared for Ritchies Stores Pty Ltd, one of the applicants for review.
Mr Graeme Peake, barrister, appeared on the instructions of his clients for Leonora Group (Wonthaggi) Pty Ltd and The Planning Group (Vic) Pty Ltd).
Application under s.82 of the Planning and Environment Act 1987 (PE Act) for review of a decision to grant a permit.
Business 1 Zone under the Bass Coast Planning Scheme.
1. The purpose of the hearing on the 25 February 2002 was not to hear and determine the merits of this case. Rather, it was to deal with preliminary and procedural matters with a view to facilitating such a hearing at a later date. It was not the first preliminary hearing in relation to the case. I conducted an earlier preliminary hearing on the 18 October 2002 and, on the 11 November 2002, published a document containing orders and directions and some reasons in relation to the situation at that stage. One of the matters dealt with at that hearing concerned the correct naming of parties and the need to resolve apparent discrepancies between the names given on the applications for review as applicants compared with names on the objections to the grant of a permit enabling such applications for review to be made. The applications for review here are under s 82 PE Act which enables an objector to apply for a review of a decision of the Responsible Authority to grant a permit. Section 82 grants that right to an objector rather than others who were not objectors. Section 82 gives an objector a right to make an application for review. Others do not have that ability as of right. Someone who is not an objector might nevertheless gain the ability to apply for a review of a decision to grant a permit. Section 82B PE Act provides that such a person can apply for and obtain leave to commence such proceedings. In the absence of such leave being granted by the Tribunal, such a person cannot apply to the Tribunal for review of such a decision.
2. Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) enables a person to be joined as a party to a proceeding. The Tribunal can do that if it considers that the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding, or if it considers that the person's interests are affected by the proceeding, or if for any other reason it is desirable that the person be joined as a party. The Tribunal can do this of its own initiative, or on the application of any person. If the Tribunal considered that it was in the interests of justice that a person should be joined it could join a person under that section. However, there would have to be a proceeding to which the person could be joined. Section 60 does not create the opportunity for such a person to start a proceeding where none already exists.
3. In this case the permit applicant, i2C Design & Management Pty Ltd (i2C) seeks planning permission that would enable it to establish a supermarket and two specialty shops on the review site. For this purpose it does not need planning permission to use the land for such purposes. The right to use the land in that way is already given by the planning scheme. The planning permission that is needed is for the construction of the new buildings and works that are proposed to house and accommodate the proposed new retail facilities.
4. These circumstances limit the scope of relevant issues, as compared with some other planning cases of this general sort. A limitation on the relevant issues also implies limitations on the scope of evidence that will be relevant, as compared with other cases where more issues are involved. Some evidence proposed to be called was of doubtful or debateable relevance, and this question too received some attention on the 18 October 2002. There was also a matter of refixing a hearing that had been set down, but within sufficient time allocated for the hearing of the case.
5. Various orders and directions were given including the vacating of a hearing that had been fixed for November 2002. The applicants for review were both given leave to serve and file amended statements of their grounds and other directions were given.
6. It will become apparent that Mr Peake's client has become an inactive party in these proceedings. It will therefore be appropriate to concentrate attention on Mr Taylor's client namely Ritchies Stores Pty Ltd (Ritchies). However, by the 18 October 2002 there was a somewhat complicated situation in relation to identifying the correct name of the correct company or companies in "The Leonora Group of Companies" that should be the applicant for review. There was reference to s 127 VCAT Act which empowers the Tribunal, at any time, to order that any document in a proceeding be amended and to do so, either on its own initiative, or on the application for a party. After inquiry it appeared that Leonora Group (Wonthaggi) Pty Ltd might be the appropriate company.
7. On the 18 October 2002 Mr Andrew Sherman, solicitor of Mr Taylor's firm, appeared for Ritchies. The position of Ritchies appeared to be less complicated, but there was an issue of misnomer, or perhaps non-nomer, in relation to it. Misnomer means misnaming, or a mistake in relation to the naming of a party. Such mistakes are commonly corrected by amendment in both civil and criminal proceedings. Such mistakes are not normally allowed to defeat proceedings or to defeat the purposes of justice or to prevent justice being done. It is entirely appropriate, in any system of justice worthy of the name, that its purposes should not be defeated by such slip-ups or technical defects.
8. In relation to this Tribunal there are powers of amendment such as s 127 and Clause 64 of Schedule 1 of the VCAT Act that empower the Tribunal to make amendments that might be necessary for such purposes. Clause 62 of Schedule 1 and s 126(2)(b) of that Act also empower the Tribunal to disregard failures to comply with statutory or procedural requirements when it considers it in the interest of justice to do so. The purposes of these and other provisions is to enable matters to be determined, rather than avoided, and determined on their real and substantial merits, not on the basis of technical points or slip-ups. That would be an appropriate attitude for the Tribunal to bring to its work in any event, but lest there be doubt, it is enjoined on the Tribunal by ss 97 and 98 VCAT Act. Section 97 reads:-
97. The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
Section 98 provides that the Tribunal is bound by the rules of natural justice, except to the extent that legislation authorises departures from the rules of natural justice. Section 98 contains various other provisions including:-
(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much as speed as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
I must bear in mind these instructions, including those in relation to substantial merits and technicality, in dealing with this and other cases.
9. In the reasons attached to the document issued subsequent to the hearing of the 18 October 2002 the following two paragraphs appear:-
14 Mr Sherman appeared for Ritchies Stores Pty Ltd. It is the applicant for review in the second such application, also under s 82 PE Act. His client faces a similar problem. Ritchies Stores Pty Ltd was not an objector either. Stokes Planning Pty Ltd lodged an objection with the Responsible Authority dated 16 April 2002, but it did not purport to be on behalf of any other person or corporation. This situation also calls for some consideration.
15. I said at the hearing that it may be that there is no competent application for review by an applicant that has standing to bring such a proceeding and that the current purported proceedings appear to be liable to be dismissed. However, I did not seriously mean that this case should really be disposed of so expeditiously as that, or on such a basis as that.
10. The comment made during the hearing and referred to in paragraph 15 quoted above was not intended to be taken seriously. It was a light-hearted way of recording that there was something here that needed to be fixed up. It was meant to be implied that it could, in all probability, be fixed up, and that it would require consideration and attention at a later time. It was not meant to be an invitation to i2C to seriously attempt to defeat the proceedings on such a basis. In retrospect, it is fortunate that I included the last sentence of paragraph 15 about whether this point should be seriously advanced as a means of avoiding the whole case.
11. Of course, if a point is a good point it must be upheld, whether or not it might be described as a "technical point". On the other hand, a "bad" point should not be upheld, again whether or not it is technical. If there has been a technical
slip-up such as a careless misnaming, the various remedial provisions mentioned above or elsewhere available to the Tribunal, should be employed to enable the real case to be dealt with on its substantial merits. However, i2C in this case has sought to have Ritchies review struck out, not on the basis of its true substantial merits, but on the basis of such points without the merits being heard and determined.
12. In or about March 2002 i2C applied for its permit. Notice of the application was given pursuant to s 52 PE Act. On the 17 April 2002 the Responsible Authority received a letter, dated the previous day, on the letterhead of Stokes Planning Pty Ltd purporting to be signed by Anthony Stukus on behalf of that company. The letterhead includes a logo featuring the word "S". It includes the name of the company, its ACN number and the words "TOWN PLANNERS". It is significant, in my view, that this document proclaimed itself to emanate from town planners. The letterhead also includes the address of the company being Suite 5, 532 Hampton Street, Hampton, Victoria 3188.
13. This letter refers to the permit application number and to the review address. It also refers to the purposes for which permission is sought in the same terms as they appear in the permit application and it says, in the first paragraph "we ...wish to lodge an objection to council approving the application".
14. This letter has been treated by the Responsible Authority as an objection to the application. Without discussing the matter further at this stage, I consider that it was appropriate for the Responsible Authority to treat the document as an objection. There were other objections, including one from or on behalf of Mr Peake's clients.
15. The Stokes' objection contains some statements as to the basis of the objections and also said that there had been insufficient time to review all documents. It foreshadowed "we will submit a detailed submission once these documents come to hand". No further submission, by way of objection, has been drawn to my attention. However, that left to standing the grounds of objection mentioned in the Stokes' objection of the 16 April 2002.
16. Unfortunately the Stokes' objection did not make it clear as to the person or company on whose behalf it was being lodged. Of course one interpretation of the face of the document was that it was being lodged on behalf of Stokes Planning Pty Ltd itself. In spite of its address being in Hampton, it could conceivably have an interest of its own in this proposed development in the main shopping area of the township of Wonthaggi. That is possible, but my immediate reaction was to think that Stokes, in lodging this document, was acting on behalf of a client in the course of its practice as town planners. I believe this assessment of the probabilities to be entirely reasonable, and one that anyone with familiarity with the practice of planning in Victoria, and perhaps those without that familiarity, would be likely to make. The preponderance of probabilities is that Stokes was acting as agent on behalf of a principal and that it had carelessly failed to specifically say (although it was readily to be inferred) in its document and it had failed to name its client.
17. Subsequent evidence has made it perfectly clear, in my view, that it was acting as agent for a client, that that client was Ritchies, that the objection was lodged on behalf of Ritchies and that Ritchies was the true, though undisclosed, objector. On all the evidence, and I will mention some of it later, I have no hesitation in finding that Ritchies was the true objector, indeed the objector, and that the failure by Stokes to say so was a careless slip or error on its part.
18. Mr Wright has submitted, on basis of this slip, that Ritchies was not an objector and therefore has no legal right to lodge or maintain an application for review under s 82 PE Act of the decision of the Responsible Authority to grant a permit. He submits that Ritchies' application for review should now be dismissed or struck out. I will need to deal with various aspects of this matter, but I note that, amongst other points, Mr Wright has argued that Ritchies has not dealt with this matter or sought to mend it in a timely way and that it is now too late for anything to be done. This leads me to notice that the true situation in relation to the Stokes/Ritchie objection has been know for a long time and that no timely action was taken on behalf of Mr Wright's client to clarify, rectify or resolve the situation.
19. Of course any doubt about the Ritchie objection could have been promptly clarified at the time it was lodged if the Responsible Authority, or anyone else, had thought it important to do so. I dare say that the Responsible Authority was more interested in looking at the grounds of objection, rather than technicalities about it, to ascertain whether those grounds raised any important considerations in relation to the planning merits of the proposal that it would want to take into consideration. Such considerations might lead to a refusal of a permit, or, if a permit was to be granted, to the imposition of conditions, possibly including conditions requiring amended plans. In due course the Responsible Authority considered the application and the objections that it had received and determined to grant a permit. The inference from this is that it did not find the grounds mentioned in the Ritchie objection, or those in the other objection it had received, sufficient to warrant refusal of a permit. Indeed the Responsible Authority determined to grant a permit and issued a Notice of Decision to that effect dated 15 July 2002. The Notice of Decision refers to allowing the development subject to a number of stated conditions. If the Responsible Authority was seeking to make the right or best decision available on the planning merits of the proposal, it was entirely reasonable for it to pay attention to the grounds of objection. If it finds none of them to be sustained it may not trouble itself with a meticulous examination of technical requirements of an objection document.
20. It needs to be remembered that the planning laws are public laws in which the public, as well as particular parties in relation to a particular application, has a public interest. The Responsible Authority, like this Tribunal on review, is seeking the right or best decision in the public interest. In pursuing that it should consider all relevant matters some of which might arise from investigation or consideration by its officers or by local knowledge of its officers or councillors, as well as the enlightenment that might flow from a consideration of documents lodged in support of the application or the grounds included in objections. I would suppose that a Responsible Authority would consider a matter, if it was relevant and important, even if it was raised in an invalid objection that did not afford the would be objector the rights and status of being an objector. Be that as it may, in this case, the Responsible Authority did not uphold any of the grounds in the Ritchie objection to the extent of refusing to grant a permit.
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.
22. In all the circumstances, I consider that it would be just and appropriate, if the power is available, to rectify the situation in a way that would allow Ritchies' review to proceed to a hearing on the merits. That is not to approve Stokes' carelessness in omitting to clearly state that it was acting on behalf of a client in lodging the objection and stating the name of the client on whose behalf the objection was lodged. Possibilities for rectifying the situation include the Tribunal's powers of amendment and disregarding failure to comply with procedural and statutory requirements mentioned above, or by joining Ritchies as a party. Mr Wright has arguments as to why each of these things cannot or should not be done. Before getting to them, Mr Wright had more complaints about the objection.
23. There are various requirements in relation to an objection under s 57 PE Act to an application for a planing permit. Some of those requirements are set out in that section and can be regarded therefore as statutory requirements. However, in his decision in Spurling v Development Underwriters (Vic) Pty Ltd Sir Ninian Stephen (then a Justice of the Supreme Court of Victoria) considered the minimum requirements for validity of an objection to a planning permit application under the then current Town and Country Planning Act 1961 (TCP Act). His discussion starts at line 43 on page 14. These minimum requirements were, by no means, all spelled out specifically as statutory requirements in the TCP Act. There was a requirement in the Act that the objection should be in writing, but His Honour inferred other requirements, which were implicit in the statutory provisions, but not specifically stated therein. Their absence from the words of the Act may well have been that they were necessary implications and obviously so. Nevertheless they were, as His Honour said, minimum requirements. In other words they were necessary for the objection to be valid and effective. They were that the objection must emanate from a legal entity and be capable of consideration by the Responsible Authority. To be capable of consideration there must be an expression of opposition to the proposed permit, sufficient identification of the permit application being opposed and sufficient information about the objector to enable the Responsible Authority to give the objector notice in writing of its determination of the application. The expression of opposition needs to say why the application is opposed so that the reasons can be assessed.
24. I respectfully agree with what was said in Spurling's case in this connection. Those minimum requirements of a valid objection remain minimum requirements for an objection under s 57 PE Act as it now stands. They are only statutory in the sense that they arise by necessary implication from the statutory provisions. It is obvious that Parliament was content for this to be so, no doubt regarding the requirements is obvious. Insofar as they are procedural requirements, pertaining to the procedure necessary in relation to planning permit applications, objections and reviews, then they are procedural requirements implicit in the legislation. In my opinion they are no less procedural requirements for that. They are just as much procedural requirements if each of them was recited in words in s 57.
25. Similarly they can be regarded as statutory requirements and that failure to comply with them can be regarded as failure to comply with the requirements of an enabling enactment within the meaning of the expression enabling enactment in the VCAT Act.
26. Section 57(1) provides that any person who may be affected by the grant of a permit may object to the grant of the permit. A person includes individual human beings, but also legal persons or legal entities, like corporations, that are recognised by the law as having that status. Whether the Ritchie objection is to be regarded as emanating from Stokes or Ritchies, it clearly emanates from a legal entity, in terms of the requirements formulated by Stephen J. Also, each of them is a "person" within the meaning of s 57(1). I have found that the person in this instance was Ritchies acting through Stokes as its agent. The affidavit filed on behalf of Ritchies in relation to the hearing on the 25 February 2003 merely confirms what was obvious from the Ritchie application for review, its participation in the hearing of the 18 October 2002 through its legal representative (Mr Sherman) and no doubt other things that I do not find it necessary to refer to now, the circumstances being so obvious.
27. Section 57(2) PE Act, like the provisions considered by Stephen J, require an objection to be made to the Responsible Authority in writing, but there is a further statutory requirement by the addition of the words "stating the reasons for the objection and stating how the objector would be affected by the grant of the permit". Stating the reasons falls in with the minimum requirements found in Spurling's case. The requirement of a statement of how the objector would be affected by the grant of the permit is an innovation dating from the Planning and Environment (Amendment) Act 1993 being Act 128 of that year and commencing from its assent on the 14 December 1993.
28. This new requirement was introduced together with other amendments to s 57. Section 57(2A) provides that the Responsible Authority may reject an application if it considers it to have been made primarily to secure or maintain a direct or indirect commercial advantage for the objector. It might be supposed that the requirement of stating how the objector would be affected provides relevant information to enable the Responsible Authority to form a view, if it chooses to consider the matter, as to whether it will reject a particular objection on the basis that it considers it to have been made primarily to secure or maintain a direct or indirect commercial advantage. Section 57(2B) provides that, if an objection is rejected under these provisions, the Planning and Environment Act 1987 applies as if the objection had not been made.
29. A Responsible Authority is not required to reject an objection which it considers to have been made primarily to secure or maintain a direct or indirect commercial advantage. It is not even required to consider the matter. It appears that s 57(2A) gives it a full discretion in the matter. There is no provision in the PE Act for anyone to apply for a review of a decision of the Responsible Authority under s 57(2A) or to review any failure of the Responsible Authority to make such a decision. The Tribunal has held that the discretion under s 57(2A) is one for the Responsible Authority, and not for the Tribunal. If the Responsible Authority has chosen not to reject an objection under that sub-section, or has neglected to reject it, it is too late to raise the matter under the sub-section before the Tribunal.
30. It appears that the only remedy for someone to satisfy in relation to the exercise or non-exercise of this power of objection would be to apply to the Tribunal (suitably constituted) for a declaration that the decision of the Responsible Authority was legally invalid. No doubt such a decision could be declared to be invalid if it involved the Responsible Authority having exceeded its powers or if the Responsible Authority took into account irrelevant considerations or failed to take into account relevant considerations or if it came to a decision that was so unreasonable in all the circumstances that, a Responsible Authority, properly instructing itself, could not have come to that view. This latter category is sometimes said to cover a situation where a decision is unreasonable to that degree because something irrelevant has been taken into account or something relevant has been omitted, even if it is not possible to identify the specific error.
31. The problem about the Ritchie objection is that it does not contain an affect statement as now required by s 57(2).
32. Although such a statement is a statutory requirement, it has been held to be directory rather than mandatory, and that the deficiency can be remedied or disregarded. Although some deficiencies, like the minimum ones identified by Stephen J, would have the affect of rendering the intended objection invalid, the omission of an affect statement does not render the purported objection for ab inito, that is to say invalid and ineffective from its very beginning. I dealt with this question came to that view in Guiness Mahon Pty Ltd v Moonee Valley CC & SJB Planning Pty Ltd [1995] 15 AATR 176 for reasons given in that case and since followed by Deputy President Bruce in East Melbourne Group Inc v Melbourne CC & Omiros Pty Ltd [1999] 2 VPR 188. She followed the East Melbourne Group case in STY Building Supplies (Shepparton) Pty Ltd v Greater Shepparton CC & Peps Plans Pty Ltd [2000] 5 VPR 246 at 257-8. I said that such an objection was irregular rather than void ab inito. Mrs Bruce said that it was directory rather than mandatory and was curable. Mr Wright appeared in the case before Mrs Bruce. He readily agreed with the above propositions but said that no action should be taken to remedy any defect in this case because, he said, it would unfairly prejudice his client.
33. He claimed that there was "significant prejudice" in the omission of the affect statement, although upon consideration, I find the suggested prejudice was found to be fairly confined. His argument, in this respect, depends upon recognising that Ritchies has a business of a similar sort to the supermarket intended to be accommodated in the proposed development. As such he contends that Ritchies faces the prospect of a commercial competitor if the permit is granted. If the objection had included an affect statement, and if that statement had said that the affect would be the adverse commercial implications of a new competitor, then the Responsible Authority might have exercised its power under s 57(2A) to reject the objection. The effect of that, pursuant to s 57(2B), would be that the Act would apply as if the objection had never been made. That would obliterate the objection and thus the basis for the Ritchie application for review. Even if that was so that might not necessarily mean that Ritchies' case against this proposal would be defeated, so far as a hearing before the Tribunal is concerned. There would still be the possibilities of leave under s 82B PE Act or joinder under s 60 VCAT Act.
34. Of course, it is highly unlikely, to say the least of it, that an affect statement would include commercial competition as a sole affect. The actual Ritchie objection refers to other planning considerations such as traffic, car parking, amenity and strategic planning. Whilst these matters were included, it was highly unlikely that the Responsible Authority would reject the objection.
35. There are several reasons for this. The first, and more than sufficient in itself, is that it is simpler not to reject it, but rather to consider it and come to a conclusion on the merits of the application. In this case the Responsible Authority did not uphold the objection, but determined to grant a permit and issued a Notice of Decision. Why do more? Especially, why do more when consideration is given to all the difficulties and complications that would be involved. In No. 2 Pitt Street Pty Ltd v Wodonga Rural CC [1999] 3 VR 439, [1999] VSC 319, [1999] 3 VPR 328 Balmford J in the Supreme Court held that a responsible authority, in deciding whether to reject an objection under this sub-section, must act fairly towards the objector and give the objector an opportunity to be heard, and that this is so notwithstanding that the objector might have other means to apply to the Tribunal for a hearing. It was also noted that it was not the intention of Parliament, by means of sub-section (2A), to shut out absolutely objections based on commercial considerations. Furthermore, a Responsible Authority in deciding whether to reject an objection under this sub-section is a tribunal for the purposes of the Administrative Law Act 1987. Apart from other possible remedies, this might involve the council in proceedings under that Act. In an editorial note in relation to the Pitt Street case at page 328 of Volume 3 of the Victorian Planning Reports it is speculated that the decision to reject an application under sub-section (2A) is likely now to become a rare event, as a result of the Pitt Street decision, and that it is likely to be exercised only in the clearest of cases and then only with a full opportunity to contest the rejection having been provided. Apart from other considerations, unless the affect statement gives commercial competition as a sole reason, the case is likely to be anything but clear. I will say more of this shortly.
36. Of course, apart from an affect statement, if the objection had identified Ritchies as the objector, that might have alerted the Responsible Authority and/or its officers to the possibility of there being a question of commercial competition involved. That might have started a chain of thought that could conceivably have led to a rejection under s 57(2A). However, having regard to all the other disincentives, the possibility of rejection would still have been improbable.
37. Mr Wright, after discussion, agreed that his point could be put no higher than the following. He says "significant prejudice" exists, because of the disguised nature of the objection, whether that was deliberate or by carelessness. The permit applicant was prejudiced by the Responsible Authority not even having an opportunity to consider whether there should be a rejection under s 57(2A) on the basis of it considering that the objection had been made primarily to secure or maintain a direct or indirect commercial advantage for the objector. To even consider the matter it would need to realise that there was a potential for commercial competition. Though it may or may not have exercised that power, it would not exercise the power, if it did not realise that. The statutory provision requires a statement that might alert the Responsible Authority to the question.
38. This does sound rather good. It sounds better than it is. I have already mentioned the No. 2 Pitt Street disincentive, the "why bother" consideration in that the responsible authority gets all the assistance available in relation to the merits in any event, and there is no incentive to incur further trouble. However the last disincentive is the difficulty of coming to the necessary conclusion required by sub-section (2A), except in the clearest of cases where the objector admits that the sole or primary purpose is commercial advantage.
39. The critical expression "primarily to secure or maintain a direct or indirect commercial advantage" was introduced, as I have said, in 1993. Section 57(2A) is not the only place where it was inserted in the PE Act at that time. Section 150(4) is another example. Mr Wright also referred to this provision. It originally provided remedies in relation to frivolous and vexatious proceedings. It empowered the Tribunal, where another person had suffered loss or damage as a result of such proceedings, to make orders for damages and costs in favour of the person who had so suffered. The categories of cases where this remedy could apply was expanded by the 1993 Act. Now, in addition to frivolous and vexatious proceedings, the remedies are also available if the Tribunal is satisfied that the proceedings have been brought "primarily to secure or maintain a direct or indirect commercial advantage" for the person who brought the proceedings.
40. The expression also now appears in Clause 63(1) of Schedule 1 of the VCAT Act. Section 109 of the VCAT Act provides the general power of the Tribunal to make orders for costs. Clause 63(1) provides an addition to the considerations set out in s 109(3). It provides that, in determining whether or not to make an order for costs in proceedings under the PE Act, the Tribunal may have regard to whether the proceeding was brought primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceeding. I see that the provision says "may". Of course the enactment of the whole VCAT Act postdates the 1993 amendments to the PE Act.
41. Mr Wright invited me to invoke the remedies that can flow to his client from a finding that Ritchies' objection and proceeding have been brought primarily to secure or maintain a direct or indirect commercial advantage. He invited me to dismiss the proceedings and make orders for costs in reliance on these provisions and s 75 VCAT Act which empowers the Tribunal to summarily dismiss or strike out all or part of a proceeding that, in its opinion, is frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process. All this was based on an assumption that it was sufficient, to satisfy the foundation requirement, that the objector should be a commercial competitor. When the expression has been examined it has been found to require far more than that. I do not take it to be satisfied merely by the existence of scope for commercial competition.
42. I might say that Mr Taylor complained, with some justification in my opinion, that this line was being brought forward without proper notice having been given.
43. I had occasion to give consideration to the expression about proceedings brought primarily to secure or maintain a direct or indirect commercial advantage reasonably early in the life of the expression in the PE Act. This was in Collins v Shire of Nillumbik & Hak, an unreported decision of the Administrative Appeals Tribunal being No. 1995/23263. That case involved a proposal for a take-away food premises in the shopping area of Eltham. There was an objection from the proprietor of another take-away food premises about 80m away, although it was in a somewhat different location, and perhaps dependant on a different catchment in the Eltham shopping centre as compared with passing trade and night trade derived from Main Road Eltham. Although this case is unreported, extensive quotations of relevant passages are to be found in the reasons given in Ram v Whitehorse City Council and Harrison [1997] 19 AATR 281.
44. At page 9 of the reasons in Collins (p. 294 of Ram) I observed that it was desirable that a party making a claim under s 150(4) should give the party against whom the claim is made proper notice including, where appropriate, a statement of the amount claimed in particulars of how it is assessed and made up. I also observed that, in a contested case, I thought that a claimant would normally be expected to call evidence. I then referred to aspects of that particular case that I had been invited to accept or presume without evidence.
45. However, as to the question of what the commercial advantage expression required I think I cannot improve on what I said in Collins and was quoted in Ram. Starting at page 289 of Ram the following appears:-
F Collins v Shire of Nillumbik was an appeal against a decision to grant a permit for a take-away food premises and sign in the Eltham town centre. In that appeal Deputy President Byard said:
"The Respondent/Applicant sought the permit to enable him to carry on a take-away food shop in existing shop premises situated amongst other shops in the Eltham Town Centre area. He had experience in the take-away food trade and conducted an existing business of that sort in
The Appellant/Objector is also a business man carrying a take-away food shop in Main Road, Eltham. His shop is close to the appeal site. Mr Radford estimated the distance at only 80m. However, his shop is in a somewhat different location, although it is in the Eltham Shopping Centre area and in the same zone as the appeal site. He claims that his shop depends mainly on the passing trade on Main Road and night time trade. The appeal site is amongst shops grouped around and facing parking areas a short distance to the east of Main Road. There are a number of existing take-away food premises in the locality, particularly in Main Road.
It is obviously true that the Appellant and the Respondent are both in business as sellers of take-away food. As both premises are relatively close to each other, they may be commercial competitors. The degree to which this is so depends on circumstances, including to some extent the degree to which the lines they offer overlap and whether, in spite of their proximity to each other, they are appealing to the same or different pools of potential customers. However, because an Appellant/Objector is or may be a commercial competitor, it does not necessarily follow that his appeal is wholly, or even primarily, motivated by considerations of commercial competition. In some cases such appellants make their motivation clear by stating commercial competition as their ground of appeal. In other instances Appellant/Objectors raise other grounds of appeal based on planning merits. Sometimes such grounds are found to be meritorious and are sustained by the Responsible Authority or, on appeal, by this Tribunal. Some such appeals are allowed, and in other instances they are allowed in part in that new or different conditions are imposed compared with those proposed by the Responsible Authority. In such cases it is not always easy to determine whether the Appellant has not raised planning grounds because they are relevant, in preference to commercial grounds, which may be the real motivation, but which are likely to be ruled to be irrelevant. A commercial competitor can have conscientious and bona fide concerns about the planning merits of a proposal. The Appellant/Objector in this case claims to be a public spirited person who has objected to several other proposals in the locality because of a concern and interest in its welfare. Apart from carrying on business in the locality, he lives there with his family and claims to have an interest in the welfare of the community where he, his wife and children live and shop.
Even an objection to a business of a similar type does not necessarily indicate selfish, or only selfish commercial interests. A distortion of the facilities available in a particular local shopping centre by a preponderance of one type of business could be detrimental to people carrying on other lines of business and to the strength and viability of the centre as a whole. At this level a proposal to increase the number of businesses of that sort could be seen to raise genuine planning issues. A stationer or clothing shop proprietor might be concerned about a shopping centre being taken over by too many take-away food shops, even though they do not offer direct commercial competition. I mention this because it becomes relevant in this case.
The grounds of appeal relied on by the Appellant/Objector, and set out above, do not look very promising from the Appellant's point of view, at least on a first reading."
Mr. Byard went on to discuss the grounds of appeal and with respect to the first two which concerned parking and traffic congestion, he said:
"Although relevant, the first two grounds are of such slight weight in the circumstances of this particular case, that they could not justify a refusal."
Mr. Byard said that the third ground of appeal did not appear to be a planning ground at all. The fourth ground read:
"Decision is contrary to the Shires stated intention to attract "other businesses" and create a more Town Centre."
"The fourth ground of appeal appears on its surface, and on a first reading to be without substance and to be somewhat vague and waffly. What are these "other businesses" to be attracted, where has the Shire stated such an intention, and what weight should attach to this consideration, having regard to the fact that the Responsible Authority itself has determined to grant a permit? In the course of the hearing Mr Radford provided an answer to this pertinent question. Both these premises are located in the Eltham Town Centre - Core Retailing Zone under the Planning Scheme. Most shops are as-of-right in this zone, that is to say, no planning permission is necessary to use such land as a shop. That was the situation in relation to take-away food shops until 1993. Mr Radford informs me that an amendment was made during that year whereby a permit is now required for a take-away food shop. He further explained that the reason for this is that the Responsible Authority (which was also the Planning Authority) was concerned that the area was becoming distorted by there being too many take-away food premises in the locality. It introduced this amendment requiring such permits to gain some control over the tendency and to eliminate or reduce this perceived planning problem.
This information makes clear what Mr Collins was driving at in his obscure and apparently hopeless fourth ground of appeal. Viewed in this light, the ground raises a valid planning issue. Mr Collins, along with other retailers (whether in the take-away food trade or not) or other citizens could legitimately raise objections and an appeal based on this ground.
As far as I am concerned this disposes of the contention that Mr Collins' appeal was vexatious or frivolous. I am not satisfied, as required by s.150(4), that it was either.
However, since amendments in 1993 the operation of s.150(4) is not limited to cases of vexation and frivolity. Pursuant to that provision, in its amended form, a person who has suffered loss or damage can receive an order for payment of compensation in relation to proceedings brought "primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings". The Respondent/Applicant in this case seeks such an order on that basis.
Under this new provision it is not necessary for a claimant to prove that the securing or maintaining of the commercial advantage is the only purpose for which the proceedings are brought. An appeal brought partly in the public interest, conscientiously and on bona fide planning grounds can still be the subject of an order if the appellant has the additional commercial purpose providing that the commercial purpose is the "primary" one. "Primary" in this context means "of the first rank in a series", "of the first importance, chief", see The Concise Oxford Dictionary, 7th Edition. The Macquarie Dictionary, 2nd Edition gives twenty definitions the first two of which are similar to what I have just quoted and are, in my opinion, appropriate. They read "1. First or highest in rank or important; chief; principal. 2. First in order in any series, sequence, etc.". The provision appears to call upon the Tribunal to look into the mind and motivation of the person who initiated the proceedings to discern, where there is more than one motivation, which of them is the primary, chief or most important of them. I suppose that, if there happens to be two equal motivations, neither would be "primary".
I do not think that any of this means that the Tribunal is to resort to guess work. Some cases will be clear either because of admission of the initiator of the proceedings, or from the surrounding circumstances. An initiator who could be seen from the circumstances to have a clear direct or indirect commercial advantage and who appeals upon grounds of no merit or trifling weight might well attract an order. Nevertheless, the Tribunal is only to make an order if it is "satisfied" that the proceedings were brought primarily to secure or maintain a commercial advantage. A possibility that such was the case, is not sufficient. Even a suspicion that it may be the primary motivation, unless supported by the circumstances and evidence so that the primacy of other motivations is judged to be improbable, is unlikely to amount to satisfaction."
This further quotation from Collins appears on page 293 in Ram:-
"The circumstances in this case are certainly consistent with the securing or maintenance of commercial advantage being the primary motivation, but they are also consistent with it not being so. I may be left with suspicions that commercial considerations played an important part, but that is not at all the same thing as being satisfied that they were the primary motivation. I am not so satisfied in this case. It follows that no order for compensation will be made pursuant to s.150(4)."
A last such quote appears on page 294 of Ram as follows:-
"Even a suspicion that it may be the primary motivation, unless supported by the circumstances and evidence so that the primacy of other motivations is judged to be improbable, is unlikely to amount to satisfaction."
46. Having regard to what is really involved, as exposed in Collins case, the difficulties of satisfying the commercial advantage expression becomes clear, save for an obvious case, for example where an objector or applicant for review admits, not only that the securing or maintenance of a direct or indirect commercial advantage was an objective, but that it was the "primary" purpose of the objection or application. From the point of view of the Responsible Authority, it need not enter upon the inquiry of whether an objection is primarily so motivated and there is no incentive for it to do so. It is a complex and difficult question. It creates opportunities for mistakes and further litigation. Where other grounds are nominated it may prove impossible to come to the view that the commercial one is primary. It is all risk and trouble. It might be thought better to get on and consider the planning merits. In the circumstances of this case, where town planning grounds are included in the objection, the supposed "significant prejudice" argued for in relation to the deficiencies of the objection are, in fact, illusory.
47. So far as dismissal under s 75, or costs under s 109 and Clause 63(1) and/or costs and damages under s 150(4) are concerned, I have no basis for making any such orders. I would be unlikely to have such a basis short of being able to assess the case by having heard it. In any event, proper notice would be required. At the stage of the hearing on the 25 February 2003 I was being asked to grant fairly drastic remedies on the basis of mere assertions and assumptions. They were assertions I could not rely upon and assumptions I am not prepared to make. I refuse to dismiss the Ritchie application or to make orders for damages or costs at this stage. Mr Wright said that the primary commercial objection can be inferred if any other planning consideration can be excluded. I don't have the basis here for such exclusion.
48. I come back now to the mismatch or discrepancy where the Ritchie review under s 82 needs to be brought by an applicant who was an objector. I am satisfied, on the evidence, that Ritchies always was the real objector, even if that was not disclosed on the face of the objection document. On that basis I reject the proposition that Ritchies was not a competent applicant for review. The problem was rather, that the true situation was not clearly disclosed on the objection document, due to carelessness by the town planners engaged by Ritchies to lodge the objection on its behalf. Mr Wright admits that the affidavit filed prior to the hearing on the 25 February 2003 purports to establish that, at the time of lodging the objection and the application for review, Stokes was acting as agent for Ritchie. That is well established in any event. He says that there is nothing in the objection to indicate this agency and "This cannot be altered ex post facto". The real position, as now revealed, does not require alteration. The problem becomes reduced to dealing with the surface to make it reflect the underlying reality so as to remove the apparent discrepancy. The most obvious means of achieving this would be an amendment to correct Stokes' error. This is desirable to put the record right and to avoid further confusion, rather than because it is essential.
49. If Stokes was regarded as the objector, this could be done by amending the application for review to substitute its name on the application in place of Ritchies. The application for review initiates the review proceedings and is unarguably a document in the proceeding able to be amended under s 127 VCAT Act. Although this would create the match between the objection and the application, it would be an unsatisfying mend. I have found that the objector is not Stokes but Ritchie. I would prefer an amendment that reflects the reality rather than otherwise. The misnomer, or as I have said, non-nomer, is really in the objection, rather than the application for review.
50. Clause 64 of Schedule 1 of the VCAT Act provides a power in the Tribunal to make any amendment it thinks fit to an application for a permit at any time in the proceeding. Mr Wright objects to the use of that power on that basis that it is limited to the application for a permit, and does not extend to an objection.
51. An alternative power is s 127 VCAT Act. That empowers the Tribunal, at any time, to order that any document in a proceeding be amended and that it may do this on its own initiative.
52. Mr Wright's objection here is that he says that the objection is not a document in the proceeding. This is on the basis that it is created before the proceeding, that is the application for review, was commenced. That proceeding is commenced by an application at a later date. How can the objection be a document in the proceeding?
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.
54. As Deputy President Bruce said in the case of STY Buildings Supplies (Shepparton) Pty Ltd v Greater Shepparton City Council & Pepes Plans Pty Ltd [2000] 5 VPR 460, the Tribunal regularly amends documents to overcome these sorts of problems. At the foot of page 259 she said:-
This Tribunal regularly amends documents so that parties, especially applicants, do not lose their rights to present their case to the Tribunal because they have misdescribed themselves, identified themselves by trading names instead of as juristic persons, relied on consultants who have used trading names to bring proceedings on their behalf, commenced an Application for Review in their own name when the permit application was brought in the name of a drafting service, or vice versa, and many other circumstances where strictly speaking, there is no proper Applicant before the Tribunal. It would be unfair, in the broad sense, not to overlook a minor misdescription in the name of the relevant company by its solicitors, who have accepted responsibility for the oversight, when an objector is the victim of the mistake.
55. That was a case with substantial similarities to the present one. Solicitors for the objector had lodged an objection on their client's behalf. In doing so they had misnamed their client. They referred to "STY Buildings Supplies Pty Ltd". It later emerged that, although there were some STY companies, the evidence did not disclose the existence of one with that exact name. The actual intended objector was STY Building Supplies (Shepparton) Pty Ltd, and an application for review under s 82 was subsequently commenced using the correct name. The Responsible Authority then sought to have the application for review struck out on the basis of invalidity and lack of jurisdiction. It was said that s 57 PE Act required the objector to be a person and there was no person, legal or actual, named STY Building Supplies Pty Ltd.
56. Senior counsel appearing for the respondent permit applicant supported the submissions on behalf of the Responsible Authority. He added that there was also a failure to include an affect statement in the objection and, although it was admitted that this was curable it was submitted that the discretion to cure should not be exercised in favour of the applicant for review. In any event, he said, the objection, not having been made by a person, could not be cured. He also characterised the situation as being an attempt by a person who was not an objector to commence an application for review under s 82 PE Act.
57. By the time these questions were heard by Mrs Bruce an application had been made under s 82B PE Act on behalf of the true party, that is STY Building Supplies (Shepparton) Pty Ltd, for leave to commence a review of a decision of the Responsible Authority to grant a permit. That application was heard at the same time.
58. Again the element of commercial competition was present. In that case the actual and potential commercial competitors were in the field of hardware retailing.
59. As in the present case, consideration was given to alternative fall back remedies that might be resorted to if necessary. The powers in the Tribunal to disregard failures to comply with the requirements of enactments and procedural requirements in Clause 62 of Schedule 1 and s 126(2)(b) of the VCAT Act were referred to. They were found to be available, and I agree.
60. I note that, while discussing Clause 62, Mrs Bruce observed that there was no possibility of relevant notices required to be served on objectors going astray because the solicitors were acting and were the proper recipient of the correspondence. It will be recalled that the need for such an effective "address for service" was identified amongst the minimum requirements for an objection in Spurling's case. It is satisfied in the present case inasmuch as Stokes were acting, Stokes' address was available and Stokes was the proper recipient. In fact service on and through Stokes was effective.
61. Mrs Bruce also considered the application for leave under s 82B, which was another fallback remedy. She found, again correctly in my respectful view, that this way was open.
I would be willing, if necessary, to grant leave under Section 82B for the Applicant to review the "use" element of the Notice of Decision.
63. She summarised her answers to issues on the same page. She dismissed the objection that "STY Building Supplies Pty Ltd" was not a person, effectively on the basis that it was a misnomer for the company STY Building Supplies (Shepparton) Pty Ltd. Alternatively she disregarded the misdescription pursuant to Clause 62 Schedule 1 of the VCAT Act. She held the objection to be valid in spite of the absence in it of an affect statement required by s 57(2). As to the application for review under s 82, she held part of it to be valid in spite of the alleged objections, and part of it to have been defeated by some exemption provisions that had been put into the PE Act by amendments. This exemption argument has no relevance to my present concerns. Furthermore, she would have granted leave under s 82B.
64. Before me, Mr Wright argued that Clause 62 of Schedule 1 was not available. It provides:-
The Tribunal has 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, may determine to disregard that failure if the tribunal considers it in the interest of justice to do so.
65. As with the STY case, I am satisfied that it is in the interest of justice to disregard the failures to comply. As in that case the misdescription or non-description of the objector was the fault of a careless professional agent and it is just that the client should not lose its rights on that account, at any rate in the absence of significant prejudice having been suffered by another party as a result. In my view no such significant prejudice has occurred. Mr Wright says that there is no failure to comply with an enactment that can be disregarded. Section 57 requires the objection to be from a person. Spurling shows that there needs to be sufficient information about the objector to enable the Responsible Authority to give the objector written notice of the determination. That requirement is satisfied. That may be enough, together with a finding ultimately that the objector was the same person as the applicant for review. If it were argued that it is also implicit that the objector should be named, that implication would have to arise as a requirement implicit in the existing statutory provisions. On that basis a failure to comply could be disregarded under Clause 62. As I have said, I agree with Mrs Bruce that Clause 62 is open.
66. In any event, s 126(2)(b) VCAT enables the Tribunal, on its own initiative, to waive compliance with any procedural requirement. It is not limited to statutory procedural requirements or procedural requirements that are enacted. It is a very wide power. I do not believe that it is limited to procedural requirements arising after the proceeding before the Tribunal is commenced. Section 126 as a whole deals with extensions and abridgements of time, including extension of time to commence proceedings, as well as waiver of compliance. As I have already observed, most of the fundamental documents upon which a planning review is based come into existence before the application for review itself. The application for review is normally one of the last. It is as if the "pleadings", as that term is understood in court litigation, necessarily come into existence at a preliminary stage, prior to the commencement of the review proceedings, because they are needed then. Thus I think procedural requirements in s 126(2)(b) should be read as including the procedural requirements in the PE Act in relation to a permit application and to an objection, as well as to a notice of refusal or a notice of decision to grant a permit. It would be an unfortunate and very restrictive limitation on the Tribunal's ability to act fairly and according to the substantial merits of the case in all proceedings, in accordance with s 97 VCAT Act, if I am mistaken in this view.
67. As with the STY case, it is unnecessary, at this stage for reliance to be placed on s 82B or for Rtichies to make an application for leave under that section. If it was necessary, I would grant adjournments to create the opportunity for it to make such an application. On present information it also appears that it would be appropriate to grant such leave, although it is, of course, quite possible that there are other considerations of which I am not, at present, aware. I do not think that Mr Wright is correct in his submissions that this course is not open.
68. Section 82B(1) enables any person who is affected to apply to the Tribunal for leave to apply for review of a decision of the Responsible Authority to grant a permit in any case in which a written objection to the grant of the permit was received by the Responsible Authority. There were several such written objections. It makes no difference that the objector himself or herself or itself has not gone on to apply for a review of the decision of the Responsible Authority. Section 82B(1) only requires that there be a written objection, not that there also be an application to review. The minutes of the Responsible Authority of the 3 July 2002 and the officer's report therein supplied to the Tribunal by the Responsible Authority in accordance with its Practice Directions states that six objections to the proposal were received. That is more than enough.
69. One of these objections was on behalf of Mr Peake's client. At the beginning of the hearing on the 25 February 2003 he sought leave, on behalf of his clients, to withdraw their application for review. This was consented to and I said that I would grant such leave.
70. Mr Wright argued that this put an end to that application for review. Even if it did, it would not alter the fact that Mr Peake's client had objected. The requirement of s. 82B is satisfied. In any event, I believe Mr Wright is mistaken. Once the application for review is lodged it is in the hands of the Tribunal and cannot be terminated except by order or direction of the Tribunal. It cannot be withdrawn without leave, and the final ending of a withdrawn proceeding is when the Tribunal pronounces that end. My practice is to grant leave and then state that it is withdrawn in accordance with that leave. I have not proceeded to that second step in this case, so far as the application of Mr Peake's client is concerned. I do not now propose to proceed to it for the time being, notwithstanding that leave has been given. I suspect that it would be possible to reverse such leave, at least until the proceeding is finally and formally disposed of with a written order. I also believe that the power of the Responsible Authority to issue a permit does not arise, when an application for review under s 82 has been commenced, until it is directed to do so by the Tribunal pursuant to s 85 PE Act. In the circumstances I do not propose to proceed to that step either, at this stage. I think it is in the interests of justice that I should withhold my hand, at this stage, in case Mr Wright's submissions are ultimately found to have more validity than I have attributed to them. I do not wish to precipitously compromise or remove points that Ritchies may wish to rely upon in defence of its right to a hearing on the merits. It will be time enough to finalise these things when the merits have been heard, considered and determined.
71. Apart from the objection of Mr Peake's client, and the other four mentioned in the officer's report, there is the objection lodged by Stokes. I find Stokes to have lodged this on behalf of Ritchie and that Ritchie is the objector. However, if that is wrong, it would apparently still be an objection lodged by Stokes, presumably for Stokes. Mr Wright argues that Ritchies cannot rely on that objection because it is its own, whilst apparently also arguing that it is not. I do not think both lines are open to Mr Wright. On the contrary, only one is, and Ritchies can follow the other.
72. Section 82B(6) provides that section will not apply if the decision on the application for a permit is exempted from s 82(1) or a permit has been issued under s 63 in respect of the application for a permit. Neither of these bars apply in the present case. Insofar as Mr Wright contends that the current situation amounts to the same thing as the second bar, I disagree with him. He says that, with the application for review of Mr Peake's client out of the way, as he contends it should be treated as being because of the leave to withdraw. On the basis of his arguments that Ritchies lacks standing and its application for review is invalid. That is as good as to say that there are not current applications for review and therefore nothing to stop the issue of a permit.
73. I find that there are two current applications for review. One is based on the objection lodged by Stokes. If it is valid, as I hold it to be, it can proceed. If not (because Stokes was the actual objector though agent for another) then I would wish to consider whether the Ritchie application for review should be amended to substitute Stokes as applicant, (though on the basis that the application was for another).
74. In any event, the review of Mr Peake's client is still on foot. No permit has been issued, which is, after all, what s 82B(6)(b) requires for its bar to apply. None can be issued until the Tribunal gives a direction to that effect and, as I have said, I do not intend to enable such a permit to be issued unless and until the Ritchie application for review has been withdrawn by leave or considered on its merits. As I have said more than once, I think it is just, and I also think it is in accordance with the PE Act and the VCAT Act, that Ritchies should have its opportunity for its case to be heard, considered and assessed on its merits, and that this opportunity should not be lost to Ritchies through no fault of its own, but because of procedural slips ups by the town planners acting on its behalf.
75. Finally, as I have previously indicated, I believe there is a further fall back procedure available that was not considered by Mrs Bruce in the STY case. That is the power that the Tribunal has under s 60 VCAT Act to order that a person be joined as a party if it considers it ought to be bound or to have the benefit of an order of the Tribunal in the proceedings or if the person's interests are affected by the proceedings or if, for any other reason, it is desirable the party be joined. It can do this on its own initiative. I think Ritchies' interests are affected, but I think there is another reason why Ritchies should be joined. That reason is, of course, that it is just and fair in the circumstances that this should be done. It was necessary, I would join Ritchies as an applicant for review. I would do so, as a precaution, before taking any action to finally dispose of the application for review of Mr Peake's client.
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.
77. Also, at the end of the hearing on the 25 February 2003 Mr Wright pointed to the date fixed for the hearing and the need to exchange witness statements prior to that date. On this basis he said his client would like to have a decision on the matters dealt with above before the 10 March 2003. I said that, in case that date was not met, his client should proceed on the basis of being able to file and serve written reports or statements of evidence by the 11 April 2003. In the event, the above arguments were put in a way that has required me to devote quite some time to resolving them and preparing these reasons to my satisfaction. The press of other responsibilities have not enabled me to dispose of the matter before now.
78. As a result of the hearing on the 18 October 2002 Ritchies was given leave to file and serve a revised statement of grounds. Such a document dated 27 November 2002, has been filed by its solicitors on its behalf. The grounds are given in 11 numbered paragraphs. At the time these were drafted Ritchies was still intending to rely on economic matters. That intention has now been clearly and specifically disavowed. Any matters in the 11 grounds that rely exclusively on economic considerations can be disregarded. Any that partly rely on economic matters can be disregarded to the extent of that reliance. Mr Wright contended that the first 8 grounds could be disregarded and should be struck out on this basis. Mr Taylor's assessment was not so sweeping. Nevertheless, by consent, grounds 1, 4 and 5 are struck out. Ground 3 is to be amended to substitute the expression "C18" for the expression "C13".
79. Leave is given to amend ground 2 and to file and serve the amended wording within 10 days of the date of this document. That ground refers to the "Wonthaggi Commercial Area Strategy". At present it alleges that the Responsible Authority failed to adequately consider its provisions. The document is not part of the planning scheme and it is not an incorporated document or reference document for that purpose. Ritchies wish to argue that it should nevertheless be considered. The redrafting is to recast its terms to that effect, rather than putting it in terms of failure by the Responsible Authority, and to exclude any suggestion that it relies upon economic considerations.
80. Ground 6 and 7 are to be replaced by a new ground in terms of or similar to a draft prepared in the course of the hearing to the following effect:-
The layout of the site and the proposed buildings and works do not adequately integrate with the commercial centre of Wonthaggi.
Again, this is talking about physical integration, not economic matters.
Leonora Group (Wonthaggi) Pty Ltd & Anor
Bass Coast SC [2003] VCAT 233
The applications to dismiss Ritchies’ review and obtain costs or damages were dismissed; the objection was amended and the affect-statement defect disregarded; a five-day merits hearing was set for 28 April 2003, witness evidence was to be filed and served by 11 April, Ritchies received limited leave to amend its grounds on the stated terms, and specified costs were reserved.