Law governing agency and relationship between principals and their agents - principle of apparent (or ostensible) authority in the context of applications for planning permits

LEGISLATION - interpretation or application of statutory provision

Interpretation of section 50(3)(c) Planning and Environment Act 1987 and application for planning permit form

PRACTICE OR PROCEDURE - consideration of individual instance or systemic issues

Practice of councils in treating consultants who apply for a planning permit on behalf of their client as the applicant for permit and the confusion this causes

CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable

Recommendation to DPCD to revise application for planning permit form to include separate sections for recording:

• The name and details of the applicant for permit;
• The name and details of the applicant's representative (if any);
• The name and details of the owner of the subject land.

This case concerns the confusion that can arise when it is unclear from the application for planning permit who is the applicant for permit; who is the applicant's representative that the council should communicate with about the application; and who is the owner.

Criticisms are made about the confusing nature of the current application for planning permit form with recommendations for its improvement, which properly reflect the distinctions between applicant, applicant's representative and owner.

Section 79 Planning and Environment Act 1987 - Section 50(3)(c) Planning and Environment Act - representative acting as agent for a client - representative is not the applicant - design of application for permit form.

T.W. & G.J. Tarrant, Jacqueline Stackpole, Simon Kotanko, Kelley Dixon, David Locke

Nguy v Whitehorse CC (includes Summary) (Red Dot) [2009] VCAT 75

1. Pursuant to clause 62 of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, I determine to disregard any failure of the applicant for review to comply with section 50(3)(c) of the Planning and Environment Act 1987 in the event that Michael Nguy is not the owner.
2. I find that this application for review was not lodged prematurely and that it should proceed to hearing and determination on its merits.
3. This matter is listed for hearing on Wednesday 29 April 2009 at 10.00am for a half day.
4. Within 14 days of the date of this order, the applicant must file with the Tribunal a title search for the subject land that is not more than 14 days old.
5. If the applicant is not the registered proprietor of the subject land, the applicant must serve a copy of the application for review on the registered proprietor within 21 days from the date of this order and in accordance with the attached directions (as relevant) and must advise the registered proprietor that the application for review is listed for hearing at the Victorian Civil & Administrative Tribunal, 55 King Street, Melbourne on 29 April 2009.

Section 79 Planning and Environment Act 1987

1. The purpose of the Practice Day Hearing was to consider whether the application to review the failure by the council to grant a permit was lodged prematurely before the 60 prescribed days had elapsed[1]. The applicant says that 78 days has elapsed: the council says that only 25 days has elapsed.
2. The issue in dispute is when the permit applicant agreed to an amendment of the permit application under section 50 of the Planning and Environment Act 1987. Ascertaining the relevant date is important because the time for calculating the prescribed period of 60 days, which must elapse before a section 79 application can be lodged, is calculated from the day that the request for an amendment of the application is received by the responsible authority[2].
3. The critical document is a letter dated 7 August 2008 (received by the council on 8 August 2008) from the architect, Tim Adams of F2 Design, which states:

On behalf of our client, Michael Nguy, we submit the following as requested by your letter dated 10 June 2008: ...

1. The letter included amended plans. According to the applicant, this letter constitutes a request to amend the permit application within the meaning of section 50 of the Act. However, the council says that this letter did not satisfy the requirements of section 50(3)(c), which provides that a request under this section must -

(c) if the applicant is not the owner of the land to which the application applies, be signed by the owner or include a declaration by the applicant, that the applicant has notified the owner about the request.

1. The council requested the architect to supply a declaration under section 50(3)(c). After some toing and froing, by letter dated 30 September 2008, the architect wrote to the council as follows:

We write to confirm that the amended elements of the design (sd -a3-02a-12a inclusive, dated 24.4.08) included with the submission of further information dated 7th August 2008 were prepared at the direction of the Applicant, Michael Nguy.

1. According to the council, the date this letter was received (1 October 2008) is the date from which the 60 day period must be calculated[3].
2. The council contends that although the architect was acting on behalf of the owner, Michael Nguy, the application was made by the architect and he cannot be considered to be the agent of the owner or to effectively stand in the shoes of the owner as his agent. The council submitted that provisions such as section 50(3)(c)[4] were introduced because consultants were not communicating with their clients about amendments to permit applications and this provision was a means of addressing that problem. The important issue is to ensure that owners know about permit applications and any amendments made to them. Although the letter of 7 August 2008 states that the architect is acting on behalf of the owner, it does not say that the owner knows about the amended plans, whereas the letter of 30 September 2008 clearly states that they were prepared at the direction of the owner.

1. The council provided no supporting evidence or information about the purpose of provision. There is nothing to support the council's contention about the purpose of section 50(3)(c) in the Second Reading Speech for the Planning and Environment (General Amendment) Act 2004, which introduced this and other similar provisions. The provision in section 50(3)(c) reflects a similar requirement in section 48 relating to the initial application for a permit[5].
2. The Act does not require an application for permit to be made by the owner or even with the consent of the owner. It simply requires that the owner be notified.
3. Permit applications are frequently made by consultants such as planning consultants or architects. Often such people characterise themselves as the "applicant" for the permit, rather than describing their client as the applicant with the consultant simply acting as the agent or representative of the client (who may or may not be the owner). The present design of the permit application form encourages this practice. It is a poor practice and one that leads to unnecessary confusion and extra administration.[6] It also leads to the sort of overly bureaucratic interpretation and response evident on the part of the council in this particular case.
4. There is a well established body of law that governs agency and the relationship between principals and their agents. The principle of apparent (or ostensible) authority means that where a person, by words or conduct, represents or permits it to be represented that another person has authority to act on his behalf, he is bound by the acts of that other person with respect to anyone dealing with him as an agent on the faith of any such representation, to the same extent as if such other person had the authority that he was represented to have, even though he had no such actual authority.[7]
5. This principle is seen in play whenever a consultant or lawyer communicates with a council and represents themselves to be acting on behalf of someone. In these circumstances, the council is entitled to rely upon the principle of apparent (or ostensible) authority and accept that the consultant or lawyer is acting on behalf of whom they say are and accept that anything done or said by the agent can be taken to be something done or said by the client. It is not for the council look behind the representation and seek to be independently satisfied that the agent has effectively communicated with his principal (client) and in fact has the authority he says he has.
6. Yet this is effectively what the council is doing in this particular case. It has not accepted the representation made by the architect in the letter of 7 August 2008 that he is acting on behalf of his client, and consequently that the request to amend the permit application is a request by the client, Michael Nguy. The council has regarded the architect and the client as separate and distinct entities rather than being effectively the same entity, which the law of agency would regard them as.
7. In fact, I find it difficult to see a substantive distinction between the representation by the architect in the letter of 7 August 2008 that he is acting on behalf of "our client, Michael Nguy", and his statement in the letter of 30 September 2008 that the amended plans were prepared at the direction of "the applicant, Michael Nguy". In both cases, the architect clearly regards himself simply as an agent and that his client, Michael Nguy, is the permit applicant, not himself. There is further evidence of this because on 30 October 2008, the architect wrote to the Tribunal and said:

I am writing to clarify the name of the owner applicant for this town planning application; currently the application has been entered incorrectly as "F2 Design" were It [sic] should be the property owner Mr Michael Nguy. Please change this accordingly.

1. I do not consider that section 50(3)(c), or indeed section 48(1), was intended to apply to situations where a permit application is made by a consultant on behalf of someone. Rather, it was intended to apply in situations where the person applying for a permit (whether personally or through a consultant/agent) was not the owner of the land, but might be an occupier, a developer, a prospective purchaser or the like. In planning law, the consent of the landowner is not necessary for a permit application to be made or even granted. All that these legislative provisions require is for the owner to be made aware of what is happening.
2. The problem with the design of the current application for planning permit form is that it does not clearly distinguish between the capacity or status of people, or make provision for a situation where the consultant/agent applies for a permit on behalf of a client who is not the owner. In the section headed "Applicants and Owners names and contact details", which requests details of the applicant, there is a box marked: The person you want council to communicate with about the application. There is then another box marked: Owners/Occupiers name (if not applicant). There is no specific box marked: Applicant.
3. The application for a planning permit form must be signed in the section headed "Declaration - complete either A or B plus, the Applicant Declaration". Section A relates to "Owner and Applicant" and states: I declare that I am the applicant and owner of the land and all the information in this application is true and correct. There is then room for a name, signature and date. Section B relates to "Owner" and states: I declare that I am the owner of the land and I have seen this application. It then contains provision for a name, signature and date. Below this is another section headed "Applicant", which states: I declare that I am the applicant and: I have notified the owner about this application; and all the information in this application is true and correct. It is not clear whether the section headed "Applicant" is separate to section B.
4. In the present case, Michael Nguy has signed both sections A and B but not the section headed "Applicant". The application has not been signed by Tim Adams, the architect. On the other hand, Tim Adams has included his details in the first section of the application for planning permit form as: The person you want council to communicate with about the application. Michael Nguy and Annette Hong are included in the section marked Owners/Occupiers name (if not applicant)".
5. It is understandable how confusing it may be to ascertain from this poorly designed form who, in fact, is the applicant; who is be the representative of the applicant (with whom the council should communicate about the application); and who is the owner. At the very least, there should be a section clearly headed "Applicant", one headed "Applicant's Representative" and one headed "Owner".
6. In this particular case, I find that Michael Nguy is the applicant based on the fact that he has signed the permit application form as owner and applicant. I find that the architect is the applicant's agent because he has not signed the form in any capacity and he has simply included his name and contact details in the first section of the form as the person with whom council should communicate about the application.
7. Based on these findings, I further find that the letter dated 7 August 2008 was a request to amend the permit application under section 50 made by the applicant, Michael Nguy.

1. Having decided that Michael Nguy is the permit applicant rather than the architect, Tim Adams, I must now determine whether Michael Nguy is the owner of the land and hence whether section 50(3)(c) applies.
2. Although Michael Nguy has signed the permit application form and declared himself to be the owner (and he has been represented as being the owner both by the architect and Mr Livingston at the hearing), he is not shown as the registered proprietor on the title search that was submitted with the permit application. The registered proprietor is shown as being Wai-Chun Tracey Cheng. This discrepancy was not identified by the council either at the time it received the permit application or during its processing of it, including its handling of the request to amend the permit application, nor was it realised at the hearing.
3. There may well be a simple explanation for this discrepancy and I will require the applicant to provide an explanation. However, in the meantime, I do not consider that this should delay the processing of this application. The discrepancy between the name of the applicant and the name of the registered proprietor for the land was never an issue in the dispute with council over whether a declaration under section 50(3)(c) was required. Indeed, the council does not even appear to have noticed it. The council's position turned on whether the architect was the applicant or the applicant was his client, Michael Nguy. It was always assumed by council, based on the information in the permit application form and representations by the architect, that Michael Nguy was the owner.
4. I consider this is a situation where it is appropriate to pay heed to the general direction set out in section 98(1)(d) of the Victorian Civil & Administrative Tribunal Act 1998 that the Tribunal must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the Act and the enabling enactment and a proper consideration of the matters before it permit. I see no benefit in rejecting this application for review. It has been through a proper public consultation process whereby notice was given, objections were received and some objectors have now lodged statements of grounds with the Tribunal. The nature of the development is understood by everyone and it is now time that the proposal is considered on its merits. If Michael Nguy turns out not to be the owner, then I will direct that a copy of the application for review is served on the registered proprietor. This will ensure that the owner has a proper opportunity to be heard.
5. So far as compliance with section 50(3)(c) is concerned, I propose to exercise my discretion under clause 62 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 to disregard any failure to comply with this section, in the event that Michael Nguy is not the owner and there was a consequential non-compliance with section 50(3)(c).

1. I find that the applicant for the permit was Michael Nguy and that Tim Adams, architect, of F2 Design, was acting as his agent in connection with the permit application. I therefore find that the letter dated 7 August 2008 from Tim Adams must be regarded as a letter from the applicant, Michael Nguy. I find that this letter constitutes a request to amend the planning permit pursuant to section 50 of the Planning and Environment Act 1987. Pursuant to clause 62 schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, I consider it is in the interests of justice to disregard any failure to comply with section 50(3)(c) of the Planning and Environment Act 1987, should it transpire that Michael Nguy was not the owner at the time.
2. Accordingly, the number of prescribed days for lodging an application for review under section 79 in respect must be calculated from the day on which the request for the amendment was received by the council, which was 8 August 2008. On this basis (and taking account of the number of notice days) the number of days elapsed was 77, which exceeds the 60 days prescribed in the regulations.
3. I therefore find that the application for review was not lodged prematurely and is a valid application under section 79 of the Planning and Environment Act 1987.

1. I recommend that the Department of Planning and Community Development revise the standard application for planning permit form to include separate sections for recording:
   • The name and details of the applicant for permit;
   • The name and details of the applicant's representative (if any);
   • The name and details of the owner of the subject land.
2. I also recommend that the declaration and signature section of the form be clarified and better instructions provided for its completion, which properly reflect the distinctions between applicant, applicant's representative and owner.

[1] See Regulation 31 Planning and Environment Regulations 2005

[2] Section 50(7) Planning and Environment Act 1987

[3] In accordance with section 50(7)(b) Planning and Environment Act 1987.

[4] Other similar provisions are found in sections 50A(3) and 57A(3)(c) Planning and Environment Act 1987, as well as section 48(1) which relates to the permit application itself.

[5] Section 48(1) Planning and Environment Act 1987 provides as follows:

_(1) If the applicant is not the owner of the land for which the permit is needed, an application must - _

(b) include a declaration by the applicant that the applicant has notified the owner about the application.

[6] For example, the Tribunal is constantly having to make procedural orders pursuant to section 127 and clause 64 schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 to amend the name of the applicant in the application for permit so that the names of permit applicant and the applicant/respondent in an application for review are the same. This confusion has led the Tribunal to redesign its own application for review forms to clearly distinguish between the name of an applicant and the name of the representative of the applicant.

[7] Bowstead and Reynolds on Agency, 17th Edition, page 307