1 Pursuant to section 119 of the Victorian Civil and Administrative Tribunal Act I correct the order made by an Acting Deputy President on 17 March 2004 by altering that order as follows:

AA. There being at least one, if not two, objectors to the grant of the permit.

The permit applicants and the objectors must be advised of the decision of the responsible authority that a permit be issued and be directed that if they wish to contest a presidential member of the tribunal making a direction pursuant to section 84 of the Planning and Environment Act that a permit in accordance with the responsible authority's decision be issued, they must file a document contesting such a direction with the tribunal and serve the document on the responsible authority, the permit applicants and the objectors, as the case may be, by 4:00pm on 21 April 2004.

2 The hearing is adjourned to the practice day on 23 April 2004 in order to consider the responses to the previous order (if any) and, if the application for review is proceeding, to make directions in relation to it.

3 An application having been made pursuant to section 149B of the Planning and Environment Act for a declaration concerning a permit issued under the Corangamite Planning Scheme in consequence of the said order by an Acting Deputy President, I waive compliance with all procedural requirements in relation to such application and the application is to be heard forthwith.

4 I declare that Permit No P2003/078 pursuant to the Corangamite Planning Scheme is invalid.

(given orally at the hearing and subsequently revised)

1 In this case the tribunal has made an error and it has fallen on my shoulders to decide what is the appropriate course forward. It is useful if I first give a brief outline of the facts.

2 In May 2003 a permit application was made on behalf of Andrew and Anthea Mitchell to construct additions to a dwelling to be used for two bed and breakfast rooms.

3 The land the subject of the application is in Parkers Access Track at Moonlight Head and is opposite the site of a proposed hotel which was the subject of highly contentious proceedings in this tribunal and in the Supreme Court of Victoria last year. The proponent of the hotel was a company called Moonlight Head Hotel Pty Ltd and the owner of that land was Mark Banning-Taylor.

4 For some reason the council took a great deal of time to consider the application made by Mr and Mrs Mitchell.

5 In August 2003 the application was advertised and as a result of that advertising an objection was lodged on behalf of Mr Banning-Taylor. This objection was professionally prepared by Hansen Partnership, consulting town planners, and contained extensive criticism of numerous aspects of the proposed development and use. A submission was also made by another landowner, Mr B A Conway, which simply stated in respect of the application that "the usual tree planting for screening of the roadway to maintain the rustic character should be done". After the lodging of the objection on behalf of Mr Banning-Taylor and the submission (to use a neutral word) by Mr Conway, little happened. I have not investigated why this is so but can only comment that such delays in the planning process are highly undesirable.

6 On 28 January 2004 Mr and Mrs Mitchell lodged an application with the tribunal to review the failure of the responsible authority to grant a permit within the prescribed time under the Planning and Environment Act.

7 On 24 February 2004 the council considered the application and resolved to issue a notice of decision to grant a permit subject to detailed conditions. By letter dated 4 March 2004 the responsible authority informed the senior registrar of the tribunal of this decision. When this matter came before the tribunal, it was initially referred to Member Hadjigeorgiou, who noted that the matter needed to be considered by a presidential member of the tribunal pursuant to section 84 of the Planning and Environment Act 1987. The matter was then referred to an Acting Deputy President for consideration.

8 On 17 March 2004 the Acting Deputy President made an order in which he cited the letter of the responsible authority dated 4 March 2004, referred to section 84 of the Planning and Environment Act and then ordered that the principal registrar must advise the responsible authority that a permit in accordance with the responsible authority's decision may be issued. Apparently, since that date, the responsible authority has issued the permit. When this became public knowledge the tribunal was contacted by Minter Ellison on behalf of Moonlight Head Hotel Pty Ltd and a request was made pursuant to section 119 of the Victorian Civil and Administrative Tribunal Act ("the VCAT Act") for the order to be corrected. This request came before the Acting Deputy President and he directed that the matter be listed before me to be resolved.

9 It is necessary to first refer to section 84 in order to set this matter in its proper context. Section 84 provides:

An application may be determined after an appeal has been lodged

(1) A responsible authority may decide on an application for a permit at any time after an application is made for review of the failure of the responsible authority to grant the permit.

(2) Except in accordance with the advice of the principal registrar under sub-section (4), the responsible authority must not issue or give a permit, notice of decision or notice of refusal to the applicant, a referral authority or any objector after an application is made to the Tribunal for review of a failure to grant a permit.

(3) The responsible authority must inform the principal registrar if the responsible authority decides to grant a permit with or without conditions after an application is made for the review of its failure to grant the permit.

(4) The principal registrar must refer the decision of the responsible authority to a presidential member of the Tribunal for consideration.

(5) If the presidential member of the Tribunal so directs, the principal registrar must advise the responsible authority that a permit in accordance with the responsible authority's decision may be issued.

(6) The responsible authority must issue the permit within 3 working days after receiving that advice.

10 One difficulty with section 84 is that the reference to sub-section (4) in sub-section (2) does not make sense. It would be more logical if it had been a reference to sub-section (5). But it is proper that I read that reference as if it was a reference to sub-section (5) as this best gives effect to the intention of the Parliament.

11 The way in which section 84 is intended to operate is not entirely clear, particularly in cases where there have been objectors. In order to resolve what would appear to be the Parliament's intention in relation to section 84, I have considered section 34(2) of the Planning Appeals Act 1980, because this would appear to be the predecessor of what is now in section 84. The earlier section is in a different form, but I think it reveals an intention that the tribunal must consider the interests of all parties, including objectors, before it exercises the power in section 84(5) to advise the responsible authority that a permit in accordance with the responsible authority's decision may be issued.

12 The Acting Deputy President has informed me that he believed that when he made his order on 17 March 2004 he thought he was mandating the withdrawal of the objection. One thing is apparent and that is this: the Acting Deputy President did make a mistake in making his order on 17 March 2004. The number of files that a deputy president in charge of the Planning and Environment List must consider is extensive and, from time to time, mistakes will occur. The important thing is not so much to concentrate on the fact that a mistake may have occurred but rather to seek to ensure that any mistake is corrected promptly and fairly.

13 I am satisfied that the order made by the Acting Deputy President on 17 March 2004 contained an error arising from an accidental slip. It has been observed that section 119 of the VCAT Act, which contains a section sometimes known as "the slip rule", is a very wide power. It has been said that the test of whether a mistake or omission was accidental is this: if the matter had been drawn to the tribunal's attention at the time, would the correction been made at once? I think that if the Acting Deputy President had been told on 17 March 2003 that the application for review was by the permit applicant and that there had been objectors to the grant of the permit, he would not have made the order that he did. Rather he would have directed that the council's decision be referred to both the permit applicant and the objectors and sought submissions from each of them as to the appropriate course that should be followed in relation to the application for review.

14 Thus I am satisfied that the power to correct the order pursuant to section 119 exists. Further, I am satisfied that justice requires that the slip be corrected.

15 That, of course, leaves the question of the permit that has been issued. The correction of the order, so as to revoke the direction that the responsible authority may issue a permit, effectively removes the legal foundation for the issuing of the permit. The removal of that foundation means that the permit is a void permit. It is in the public interest that void permits be declared to be void so as to prevent any person being misled by the legal authority of the permit document.

16 Mr King has indicated that his client wished to bring a proceeding pursuant to section 149B of the Planning and Environment Act for a declaration that the permit that has been issued is invalid. The circumstances are such that I am prepared to waive the requirements of the relevant enactments and rules as to the form of such an application. Further, it is appropriate to hear that application immediately. I have heard from Mr Mitchell in relation to it. I am satisfied that the permit that has been issued by the responsible authority was invalidly issued because the order made by the Acting Deputy President was wrongly made and, perhaps more significantly, upon that order being corrected the legal authority of the permit has been removed.

17 I am thus left with the situation that we have an application for review by a permit applicant against the failure of the responsible authority to grant a permit and a decision of the responsible authority that it wishes to grant the permit. In other words it takes us back to the situation we were in before the making of the order.

18 Section 84 of the Planning and Environment Act extends to the situation where there have been objections to the grant of a permit and, before the responsible authority decides on the application, there has been an application to review the council's failure to decide the application. The section makes it clear that, in this case, the responsible authority may decide on the application. However in that instance the power of a presidential member of the tribunal pursuant to section 84(4) and (5) should not be exercised so as to direct the issue of a permit in accordance with the responsible authority's decision unless the views of objectors are first ascertained and considered. In the normal course, if objectors agree with the issue of the permit and the permit applicant does not seek to contest any conditions contained in the responsible authority's decision, the presidential member will direct the issue of the permit. However if either the permit applicant seeks to contest the conditions or objectors seek to contest the decision, then it would usually be inappropriate to direct that a permit be issued. Rather the appropriate course would usually be that the application for review against the failure of the responsible authority to decide the permit application would be set down for hearing and would be the vehicle to hear either the permit applicants' concerns about conditions or the objectors' concerns about the decision of the responsible authority to grant the permit. In a case where there was only one objection, and that objection was plainly vexatious, it would be appropriate to direct that a permit be issued in accordance with the responsible authority's decision. In that case the vexatious objection could be regarded as the equivalent of there being no valid objection.

19 Turning back to the facts of this case it would appear that a permit is required because part of the development is within 20 metres of a road. That part is a carport that is proposed to be built on the side of the extension which will contain accommodation rooms. Mr King, who appears on behalf of Moonlight Head Hotel Pty Ltd, raised another issue, namely that a permit may be needed for the use of land. This argument was premised on the use not falling within the definition of "bed and breakfast" but rather being "group accommodation".

20 As matters presently stand I have been content to refer to Moonlight Head Hotel Pty Ltd as if it was an objector, but in truth the objection was lodged on behalf of Mark Banning-Taylor. But I do not regard the difference to be significant, at least at this stage of proceedings, because it does not go to the critical issue that I must determine today. I further observe that it is the type of misnomer that is commonly corrected in planning appeal matters.

21 What I propose to do is to make an order that will require the objectors to give notice to the tribunal and the other parties of whether they oppose the making of a direction that a permit issue in accordance with the responsible authority's decision. In the event that neither Mr Conway nor Mr Banning-Taylor seek to contest the making of such a direction, such a direction will be made. On the other hand if either of these persons do contest the making of such a direction, it will be necessary for the application for review to proceed and it will effectively become a vehicle for hearing an objectors' appeal against the decision of the council to grant a permit. In that event I propose to consider the matter at the practice day on 23 April 2004 and then make directions as to the procedure that will be followed in the case. In particular I have in mind considering whether directions might be made for an expedited hearing of the matter or the hearing of issues relating to the characterisation of the use separate from, and in advance of, issues relating to the carport.

22 Before departing from this matter I desire to make a couple of other comments.

23 I have no doubt that the proceeding involving the Moonlight Head Hotel Pty Ltd caused much angst, not only on the part of the permit applicants, but also on the part of objectors. As I understand it, from having read the decision and being generally aware of some of the circumstances surrounding the case, it was a bitterly fought proceeding which no doubt caused strong emotional reactions. It is not appropriate for me to make any comment at this stage as to whether the current proceeding is connected with the earlier case. But I will make the observation that it is important that the processes provided for in the Planning and Environment Act and before the tribunal are used in a bona fide manner and are not used for extraneous purposes.

24 There is another practical matter that is worth raising. Fights between neighbours usually cause nothing but grief for both neighbours. Neighbours have to get on. One can understand that, if one neighbour acts in a way that aggravates the other, there might be a desire to keep that in the memory. But it is usually in the interests of the parties to look forward rather than backward. In this case there will be a need for the owners of the Moonlight Head Hotel site and the owners of the subject land to co-exist. I say that because one site is directly opposite the other and both sites are in a relatively isolated part of Victoria. To the extent that I am able to offer advice in performing my function, I would suggest that it is important that the parties try and resolve differences as far as possible rather than seek to ventilate them in a court or a tribunal.