RESPONDENT/PERMIT APPLICANT: 12C Design & Management Pty Ltd

MEDIUM NEUTRAL CITATION: [2002] VCAT 1441

1. The hearing fixed for the 17 and 18 November 2002 at Wonthaggi is vacated.

2. The applicants for review have leave to file and serve on each of the other parties a revised statement of their grounds of review within 14 days of the date of this document.

3. The applicants for review are directed to file with the Tribunal and serve on each other party a copy of a written report containing the proposed evidence in-chief of any expert witness in the field of economics including any evidence sought to be led in relation to market catchments, commercial viability of businesses or shopping centres, fragmentation of shopping centres and the like not less than 10 business days prior to the 17 November 2002.

4. This Directions Hearing is adjourned for administrative mention on the 18 November 2002. The parties are not required to appear on that day, but are required to advise the Tribunal in writing (with copies to each other party) of the position of this case at that date including whether it is ready to be set down for hearing and/or whether any further directions or a further directions hearing or preliminary hearing is required including specification of the matters to be dealt with at any such directions hearing or preliminary hearing and an estimation of the time required for any such directions hearing or preliminary hearing. Such notification is to include any modification to the current estimate that five (5) days will be required for the full hearing of this case.

Mr John Rantino, solicitor of the firm of Maddocks, solicitors, appeared for the Responsible Authority.

Mr Scott Stewart, solicitor, of the firm of Minter Ellison, appeared for the Respondent/Permit Holder.

Ms Susan Brennan, barrister, appeared on the instructions of her client for the first named applicant for review, namely Leonora Group (Wonthaggi) Pty Ltd.

Mr Andrew Sherman, solicitor, of the firm of Russell Kennedy, solicitors, appeared for Ritchies Stores 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. This Directions Hearing was called to consider several aspects of the case with a view to its proper case management. Several difficulties were encountered. Some of them have yet to be resolved.

2. The case is at present fixed for hearing at Wonthaggi on Monday, 18 and Tuesday, 19 November 2002. All parties are agreed that two days are insufficient to hear this case, assuming it proceeds as contemplated at present.

3. The Responsible Authority does not anticipate calling witnesses, but does anticipate that presentation of its case is likely to occupy 2 to 3 hours. Ms Brennan anticipates calling expert witnesses in the fields of traffic and urban design. Mr Sherman anticipates calling expert witnesses in the fields of planning and traffic engineering plus 2 or 3 local traders. Mr Stewart indicated an intention to call an expert planner and an urban designer plus 1 or 2 traffic engineers.

4. From these indications alone, and without taking account of the possibility of expert evidence being called from economists, it is obvious that the two days are insufficient.

5. Furthermore, it is folly, in my view, to start a case that will run for 5 or more days on an occasion when only two days are available. No time is gained by such a procedure. Indeed time is lost. It is more efficient and more expeditious to conduct the whole hearing on consecutive days, rather than have a break of several weeks in the middle. Under present circumstances such a break would be over the Christmas/New Year break. It was the consensus view that the hearing fixed for the 17 and 18 November 2002 should be vacated and that there should be a new fixture when five (5) days would be available. It was appreciated that this would be in the New Year.

6. There was also consensus that the hearing, when it occurs, should not be at Wonthaggi, but at Melbourne. I agree that it is more convenient and appropriate to conduct the hearing in Melbourne, even if it may involve a journey to Wonthaggi in the course of, or after the hearing.

7. There are two applications for review in this case. The first is made in the name of a company called "The Planning Group (Vic) Pty Ltd". However, that company, in so acting, did so on behalf of, and as agent for an undisclosed principal (or principals). Prior to the application for review, an objection to the application was lodged with the Responsible Authority by The Planning Group (Vic) Pty Ltd. This was by means of a document dated 17 April 2002. The first sentence of a document reads:-

We act for the Leonora Group of Companies, owners of land in the Wonthaggi commercial area at Murray Street, Wonthaggi.

8. I am unable to recognise "the Leonora Group of companies" as a legal entity, notwithstanding that each individual "company" in the group might well be a corporation and thus a legal "person" (that is an entity recognised by the law). Although the document of the 17 April 2002 indicates the existence of a group of companies it does not specify a number or names.

9. Subsequently a letter dated 25 September 2002 has been received by the Senior Registrar of the Planning and Environment List of the Tribunal from the Planning Group (Vic) Pty Ltd seeking an amendment to the application for review pursuant to s 127 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). The amendment sought is to substitute Leonora Group (Wonthaggi) Pty Ltd, c/o The Planning Group (Vic) Pty Ltd, Level 3/120 King Street, Melbourne 3000 for the present application for review namely the Planning Group (Vic) Pty Ltd.

10. This amendment would at least establish a legal entity as the true applicant for review. A member of the administrative staff of the Tribunal has obligingly entered this proposed amendment on the computer and other records of the Tribunal in relation to this case. However, I do not think that a member of the administrative staff has the power to make an amendment to a proceeding, under s 127 VCAT Act or otherwise. A member of the Tribunal is needed for the making of such an amendment.

11. Furthermore, there is another complication. The application for review is under s 82 PE Act. It is only an objector who has standing (the legal ability) to initiate and maintain review proceedings under s 82 PE Act. Leonora Group (Wonthaggi) Pty Ltd does not appear to have been an objector. As things stand at present, there does not appear to be a competent applicant for review.

12. Two days after the last mentioned letter, a further letter dated 27 September 2002 was received from the Planning Group (Vic) Pty Ltd. It seeks another amendment to the application for review to supersede that sought on the 25 September 2002. It seeks to amend the application to replace Leonora Group (Wonthaggi) Pty Ltd with the following:-

The Leonora Group is the umbrella group name for the legal owners of 22-40 Murray Street, and 2-10 Korumburra Road, Wonthaggi, who are respectively:

13. Such an amendment would appear to create more problems than it would solve. Ms Brennan did not pursue the matter of an amendment at the directions hearing. Clearly this is something requiring further consideration, and action.

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. Stocks 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.

16. There was consideration of the scope of issues relevant to these applications for review, including the question of whether the evidence of expert witnesses in the field of economics would be relevant. In anticipation of the hearing, now vacated by the originally fixed for the 17 November 2002, the parties have been obliged to attend to the question of the expert evidence they propose to call. This includes a need to be in a position to file with the Tribunal, and serve on other parties, copies of the reports of expert witnesses, including any experts in the field of economics, 10 business days before the 17 November 2002. Mr Sherman said that, so far as his client was concerned, these matters were in hand. I assume that the same would be so in relation to Ms Brennan and her client. I said that they should press ahead with such preparations and in fact file and exchange such written reports on or before the day they would have been due if the commencement on the 17 November 2002 had remained in place. (This was said in the hearing and is not dependent on the publication of this document. In particular, any delay in the preparation and issue of this document has nothing to do with the direction given in this regard and cannot constitute an excuse for failure to comply with such direction within the time specified). By this means other parties would have an opportunity of seeing what economic evidence (if any) was being sought to be led. Mr Stewart, in particular, is concerned about the question of whether such evidence is intended, and whether it is relevant to the issues in this case. I also am concerned on this point.

17. Mr Sherman and Ms Brennan seem to favour the idea that they should be allowed to call such evidence, whether or not it might ultimately prove to be relevant. I do not favour that course. I think it is far more satisfactory that the hearing should not be encumbered with such evidence if it is not relevant to the two issues raised in the case. Furthermore, Mr Stewart wishes to be in a position to assess whether he needs to consult experts in the field and to have counter witnesses on hand as part of his case.

18. The evidence of such witnesses is generally, in my experience, lengthy. Three such witnesses, with their reports, evidence in-chief, cross-examination and so on could well add two days, perhaps more, to the duration of the hearing. That is not time well spent if the evidence, or a substantial portion of it, is not relevant. It should not be the objective of any party to cause delay or to unnecessarily protract the hearing. It is appropriate for the Tribunal to prevent such abuse, or at least to seek to prevent it.

19. The scope of inquiry relevant to this case has its limitations. It is only matters that are relevant to whether the planning permissions sought should be granted, and if so on what conditions, that is relevant. Some planning reviews have wider scope than others. In this case I am informed that the land is in a Business 1 Zone and that the shops proposed, including the supermarket, are "as of right" uses in that zone. In other words, no planning permit is required to use land for the purpose of a shop (or shops). Only two planning permissions are required, as I was informed by the representatives of the parties. One is a permit for the development involved in constructing the proposed new buildings and works to accommodate and facilitate the proposed shops. The other permission required is for a reduction of the standard car parking requirement that would, in the absence of such planning permission, be applicable.

20. It is not unknown for opponents of a proposal, in the enthusiasm of their opposition, to seek to introduce evidence and arguments beyond the legitimate scope of inquiry. There is no question here about granting permission to use the land for the shops proposed. Clearly questions as to the scale and style of buildings and works might be relevant but it is not obvious, without closer scrutiny, how the evidence of economists is likely to be relevant.

21. It may be that objectors consider that the area in central Wonthaggi that is zoned Business 1 is too extensive and that this extent opens the opportunity for an undesirable fragmentation or dispersion of shops detrimental to the commercial functioning of the central business area of the town. If they think that, their remedy would be to seek an amendment to the planning scheme to rezone some of the Business 1 Zone land. It is not for the Tribunal, or the parties to these proceedings, to seek to achieve such a result by ulterior means. The Tribunal and the parties must accept the planning scheme, including its zonings, as they stand.

22. All this will be more capable of proper appraisal when any reports of the proposed experts in economics engaged by the applicants for review are to hand.

23. Mr Stewart has not really raised this matter because the issue has been squarely and clearly raised in the grounds of review given by the applicants for review. It is rather that that he has become suspicious about the intentions of the applicants for review, having regard to the grounds and particulars they have given.

24. Neither he nor the Responsible Authority nor the Tribunal should have to resort to such guesswork and surmises. If the applicants for review intend to rely upon a ground they should state it clearly.

25. I expressed concerns about the grounds given by Ms Brennan's client. They are in the following terms:-

1. The proposal does not address how the use and development is consistent with the State Planning Policy Framework and the Local Planning Policy Framework of the Bass Coast Planning Scheme.

2. The proposal fails to provide an adequate economic impact report.

3. The proposal does not provide adequate and appropriate car parking for future customers and does not adequately replace existing public parking.

4. The proposal does not contain an urban design rationale for the proposal.

5. The proposal will cause inappropriate amenity impacts in the immediate neighbourhood.

26. Of those five purported grounds it appears to me that only the third one is a proper one in its present form and that probably the first, second and fourth ought to be struck out.

27. It is not a ground of review that the proposal does not address the things referred to in ground 1 unless the planning scheme requires a proposal to address those things. If the applicant for review considers that there are important parts of the State Policy Framework or the Local Planning Policy Framework would weigh against the proposal or justify its refusal, then that applicant should specify those provisions and, if necessary, state clearly and succinctly how and why it is said that the proposal is contrary to them.

28. Similarly in relation to the second ground there is no requirement, so far as I am aware (and no one pointed to it during the hearing), that the proposal must provide an adequate economic impact report. On the contrary, on the face of it, it is not apparent that such a thing would even be relevant. If there is a ground that the applicant wants to rely upon involving economic impact, it should state it.

29. Likewise again, what provision in the planning scheme indicates that the proposal must contain "an urban design rationale"? Presumably the plans depict what is proposed. If the first applicant for review considers the proposal to be unacceptable from an urban design point of view, let it say so with particulars of how and why.

30. The fifth ground does not suffer from the same defect as 1, 2 and 4. Questions of amenity impacts in the neighbourhood relating to the proposed form and design of the buildings and works (the question of parking having been separately covered in 3) would be relevant. The problem with this ground is that it is so vague and general as to convey nothing. To be of any use to anybody it needs to state how and in what way the proposal would allegedly cause "inappropriate amenity impacts".

31. If and when the applicant formulates a proper ground involving the question of economic impact in a way that is relevant to the planning permissions being sought, consideration can be given to whether the proposed economic evidence, to be disclosed in the expert witness report, is relevant and can be given.

32. I anticipate the need for a further hearing on this point, prior to the full hearing of the application on its merits, if this aspect is persisted with. However, even that will only be occasioned if the issue is properly "pleaded" in the grounds of review.

33. The first applicant for review has leave to file and serve amended grounds within 14 days of the date of this document. In assessing the 14 days, I take into account that the need has been known to the applicant and its representatives since the directions hearing on the 18 October 2002.

34. The grounds given in the application for review Ritchies Stores Pty Ltd are as follows:-

1. The proposal will fragment the retail structure of Wonthaggi.

2. The proposal will have a detrimental impact on parking in the adjacent retail and residential areas.

3. The proposal will have a detrimental impact on the amenity of the area.

35. Again the second ground in relation to parking appears acceptable. The third ground in relation to amenity suffers from the same defect as that in the first application for review. The first ground, as it currently appears, seems to me to be a criticism of the current zoning that allows shops within the current Business 1 Zone rather than a legitimate criticism of the current proposal having regard to the current zoning which allows such shops. There may be more to this. Mr Stewart has sought particulars of these grounds. A response is found in a letter from Mr Sherman dated 25 September 2002. Although marked for a copy to be sent to the Tribunal, and although it may be that such a copy has been sent, I did not notice it and cannot find it on the Tribunal's file. A copy was handed to me at the hearing. I note that, in relation to the first ground, it states:-

In relation to paragraph 1, it is considered that the proposal may fragment the retail structure of Wonthaggi in a physical sense in terms of the location of the site as it relates to the location of other retail premises. It is also considered that the nature and extent of the retail structure at Wonthaggi may not adequately support the proposal, once in operation, in addition to retail facilities existing in Wonthaggi.

36. The second sentence of the above quotation as stated is not obviously a relevant planning consideration in the circumstances. If the permit applicant wishes to risk investment in a development that is acceptable in terms of the planning control, and to take a risk as to whether it can generate sufficient business to support the proposal, that is a private commercial risk the applicant is entitled to take. It is not for the objector to seek to protect the permit applicant from itself. Furthermore, commercial competition, without more, is recognised as a relevant planning consideration.

37. Mr Sherman's client may not consider it necessary to amend or restate its grounds, but I will give it leave to do so within 14 days of the date of this document in case, having regard to what I have said, it wishes to avail itself of that opportunity.

38. Consideration was given as to the appropriate constitution of the Tribunal for the ultimate hearing. A final decision on this is yet to be made. All parties represented considered that an experienced town planner is called for and it was also suggested that a traffic engineer would be appropriate. There was no unanimity on this second point. It was also suggested that a legal member might be required, particularly if questions of the relevance of economic evidence are not determined before hand, but have to be ruled upon in the course of the hearing. This case has not been included in the Commercial List and no application for such inclusion has been made.