Cancellation of Permit No. S4947 issued on the 4 August 1995 by the Responsible Authority at the direction of the Administrative Appeals Tribunal in its determination of Planning Appeal 1995/528 which permit allowed the construction and use of the land for 23 attached dwellings on the land being the former Eastern Road South Melbourne Primary School.

Mr James Livingston, Planning Advocate of the City of Port Phillip, appeared for the Responsible Authority.

Ms Amanda Ring, Town Planner of SJB Planning, appeared for the Respondent Carters Electrical Contractors Pty Ltd.

There was no appearance by or on behalf of the Requesters.

1. This was a preliminary hearing conducted at the request of the Responsible Authority to consider arguments that it wished to raise that the Respondent's request could not succeed for several reasons, including that the Requesters lacked legal standing to make the request. To lack standing means to lack the legal power to commence and carry on the proceedings in question.

2. This, in fact, appears to be an insurmountable problem for the Requesters in this case. Section 87(3) does not allow any person to make a request for cancellation of a permit, but only a person as specified in that sub-section. The person making the request must be the Responsible Authority, a referral authority, the owner or occupier of the land or any person under s.89. The only possible category for these Requesters is that they are persons to which s.89 applies. Section 89 restricts itself to people who objected to the issue of the permit or who would have been entitled to object to the issue of the permit. None of the Requesters is such a person.

3. The permit was issued in 1995, almost three years ago. The permit was in fact issued at the direction of the Tribunal in its determination of appeal 1995/528. It has been acted on in stages. Two and three storey attached houses have been constructed. The Requesters, at this belated stage, seek an amendment to the permit to have obscured glass fitted to rear facing third level windows to a height of 1.8m. The Requesters now reside in attached houses constructed pursuant to the same permit. No doubt they claim that their privacy is adversely affected by these other units that have been constructed. However, they were constructed in accordance with the endorsed plans and in accordance with the permit granted by the Tribunal. I am informed that the question of privacy was contested with some vigour at the appeal hearing.

4. None of the Requesters objected as they did not live in the then non-existent units in which they now reside and, so far as is known at that stage had no interest in the matter whatsoever. Although they may now have an interest in the matter they have no standing under s.87(3) to make the request.

5. In any event, the request is misconceived. For the Tribunal to exercise the power to amend a permit it must be satisfied as to one of the grounds specified in s.87(1) PE Act. The ground sought to be relied upon in this instance is that in s.87(1)(c), that is to say a material mistake in relation to the grant of the permit. The request document does not specify any material mistake in relation to the grant of the permit of a sort appropriate to found the jurisdiction to cancel or amend a permit. It is alleged that "planning officers" disregarded the issue of overlooking. How that might be shown to be the case is not apparent, having regard to the elapse of time, but the decision to grant the permit was not made by planning officers but by the Tribunal following a two day hearing in May 1998. The complaint is not really an error in relation to the grant of a permit, but a disagreement with the decision made by the Tribunal to grant the permit on the conditions that the Tribunal in fact imposed. In other words, the requesters now, retrospectively, disagree with the exercise of judgement made by the Tribunal.

6. The Requesters may think the decision to grant the permit in the form granted was a mistake, but their view is no more than a disagreement on the merits of the decision made. They, in effect, want a rehearing of the merits of that appeal three years later, after the permit has been acted upon and the development has been constructed and occupied. The decision of the Tribunal, except on questions of law where there is an appeal to the Supreme Court, is final and without appeal. To attempt to review the 1995 decision of the Tribunal as sought would amount to such an illicit appeal.

7. The Requesters may also have difficulties under s.88 PE Act which places limitations on the power of the Tribunal to cancel or amend a permit relating to the construction of buildings or the carrying out of other works after those operations have been completed. There may be scope for an argument that the situation in this respect could be saved by s.88(c), but it is not necessary to go into that question here.

8. It appears that these Requesters have insoluble problems because they lack standing and cannot make out the ground under s.87(1) that they have relied upon.

9. In these circumstances I think it is appropriate to strike out the request.

10. Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) enables the Tribunal to dismiss or strike out a proceeding that, in its opinion, is frivolous, vexatious, misconceived, lacking in substance or is otherwise an abuse of process. Apart from other considerations I think this request is misconceived and lacks substance. Furthermore, for it to proceed any further it would, in my opinion, be necessary to adjourn the hearing conducted on the 13 July 1998. There was no appearance on behalf of the Requesters on that occasion and the circumstances do rather suggest that the Requesters may have lost interest in their proceedings. In any event, s.78(1) of the VCAT Act enables the Tribunal to strike out a proceeding where the applicant (in this case the Requesters) unnecessarily disadvantages another party to the proceedings by conduct such as, for example, causing an adjournment. As I have said I think there has been unreasonable disadvantaging of the other parties (who did appear) by the failure of the Requesters to appear. I also think that those other parties are unreasonably and unnecessarily disadvantaged by being called upon to answer misconceived proceedings that lack substance and which are brought by parties who lack standing.

11. In terms of the Administrative Appeals Tribunal Act 1984, which was in force when this request was made, I think it would be appropriate to dismiss the request on the basis that the Requesters have unreasonably delayed enabling the application to be heard and, indeed, on the basis that the request is vexatious inasmuch as it is misconceived, lacks substance and has no reasonable prospect of success.

12. For the above reasons the Request will be struck out.