1 The application pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 to extend the time within which to commence this proceeding is refused. The application for review is struck out because it was lodged outside time.

1 This is an application for review under section 64 of the Water Act 1989 of a decision by Southern Rural Water under section 55 of the Act to amend an existing groundwater licence (No 9015945) held by South Gippsland Region Water Authority (South Gippsland Water) to increase the number of bores from which the Authority's water allocation may be drawn. The volume of the water allocation is not changed. The existing licensed bore is a shared bore between South Gippsland Water and AF and MC Condoluci (the owners of the property on which the bore is located). The amendment to the licence authorises a new bore for the exclusive use of South Gippsland Water.

2 The purpose of the hearing was to consider future conduct of the proceeding, including the application by Southern Rural Water, which was supported by South Gippsland Water, to have the application for review dismissed on the following grounds:

•

The application is very hard to understand and is scant in content.

•

The application is outside the 28 day appeal period by some two weeks.

•

The reasons for the appeal discuss applications that have not as yet been determined.

3 In July 2006 South Gippsland Water made two applications to Southern Rural Water: one was for a new bore in connection with the existing groundwater licence allocation of 400ML/annum; and the other was to enlarge this current entitlement by a volume of 1000ML/annum bringing the total allocation to 1400ML/annum. The application to increase the current entitlement has not yet been determined. Southern Rural Water made a decision to approve the application for a new bore on 16 January 2007 and notice of this decision with a statement of reasons was sent to South Gippsland Water on 24 January 2007 and to all objectors, including Mr Norton, on 25 January 2007. The notice of decision to objectors includes advice that a person whose interests are affected by the decision can apply to VCAT for a review of the decision and an application for review must be made in writing within 28 days of the day the decision was made.

4 The application for review by Mr Norton was not received by the Tribunal until 7 March 2007. This is outside the 28 day period specified in section 64(2) of the Act.

5 The first issue to determine is whether I should exercise my power under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 to extend time for commencement of this proceeding. I have decided the time should not be extended for the following reasons.

6 The criteria that the Tribunal commonly considers when deciding whether to extend time for lodging an application for review are[1]:

i

What reasons are given for the delay by the applicant for extension of time in lodging its appeal?

ii

Did the applicant for extension of time take any other action (apart from the lodging of the objection or the late appeal) which continued to make the responsible authority aware that its decision to grant a permit was being contested?

iii

Will the applicant for the permit or the responsible authority suffer any prejudice if the application to extend time is granted?

iv

Will granting of the extension of time result in the unsettling of other people or of established practices?

v

Does the proposed appeal have a real chance of success?

vi

Are any considerations of fairness as between the applicant for extension of time and other persons in a like position which are relevant?

vii

Is there to be an appeal in any event brought by persons who did lodge an appeal in time?

viii

Is there any other reason why it would be fair and equitable in the circumstances for the application for extension of time to be granted?

7 None of these criteria are determinative on their own. The overriding purpose of the power to extend time is to enable justice to be done.[2]

8 I am not satisfied that Mr Norton had any good reason for the delay in lodging his application. He wrote a very confusing letter to the Tribunal, which was received on 13 February 2007, which the Tribunal responded to on 26 February 2007 after unsuccessfully trying to telephone him. The Tribunal interpreted his letter as an apparent request for documents from Southern Rural Water and gave him advice about his right to apply for those documents under the Freedom of Information Act. The Tribunal sent him a copy of the application form for this purpose. It turns out that Mr Norton was really wanting to make an application for review relating to the groundwater licence. He said that he was unable to find links on the Tribunal's website for some reason to the application form, which was the reason why he wrote to the Tribunal for a copy. However, I find that very difficult to accept. Even if he was unable to access the Tribunal's website to download a copy of the application form, there is no reason why he could not have telephoned the Tribunal to request a form to be sent to him. In short, I do not consider that Mr Norton's alleged difficulties in obtaining an application for review form constitute an acceptable explanation for the delay.

9 Looking at the other criteria, I do no consider it would be fair and equitable in the circumstances to extend time for a number of reasons. The amended licence approving the new bore has been issued to South Gippsland Water. Clause 65 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides as follows:

(1) The Tribunal must not extend the time for commencing a proceeding under a planning enactment if -

(b) a permit, licence or works approval has been issued to any person on or after the expiration of the time appointed for lodging an application for review of the decision to grant that permit, licence or approval.

10 In fact, the amended licence was issued on 17 January 2007, which was the day after the actual decision was made. The Water Act 1989 does not have the same detailed provisions about not issuing permits until after the expiration of time for lodging applications for review as does the Planning and Environment Act 1987 for example. Thus the fact that the amended licence was issued before the expiration of the time appointed for lodging an application for review would not preclude such an application for review being lodged within the 28 day period. It is arguable whether clause 65 of schedule 1 prohibits an extension of time in the present circumstances given that the licence has not been issued "on or after the expiration of time appointed for lodging application for review". Indeed, it was issued before. However, I do not finally need to determine this point because I do not consider it is fair or equitable to extend time for other reasons. Nevertheless I consider that the intent of clause 65 of schedule 1 lends weight to these reasons, the intent being that once appeal times have expired and permits or licences have been issued they should not then be open to challenge.

11 When the 28 day appeal period expired, South Gippsland Water acquired a vested right to its licence and that right should not be lightly disturbed. This is a right to an amended licence allowing a new bore free from the possibility of an appeal. South Gippsland Water is a public authority. We are in a time of severe drought when water authorities such as South Gippsland Water are having a difficult time in managing resources and maintaining supply to consumers. Mr Norton would need to show a significant detriment to his interests that would outweigh the public interest in not disturbing the amendment to the licence which has been granted. Mr Norton was unable to do this. Indeed, neither his application for review nor his responses at the hearing reveal how his interests are affected by the decision at all. It is a pre-requisite for review of a decision under section 64 of the Water Act 1989 that a person's interests are affected by the decision.

12 Mr Norton's concerns appear to relate to the way in which the water allocation is being managed under this licence and how groundwater resources are being managed in general. Most of his concerns appear to relate to the application by South Gippsland Water to increase its water allocation. This application has not yet been decided though and is not relevant to the present proceeding.

13 The difficulty that Southern Rural Water has had in understanding the application for review is shared by the Tribunal. This understanding was not illuminated by Mr Norton at the hearing. In my view, it is not the role of the Tribunal to try and work out what an applicant's case is. Rather, it is for the applicant to make this clear and Mr Norton has not done so. I consider that his application is lacking in substance and stands no real chance of success if it were to go to a hearing. In these circumstances, there is little point in extending time to commence the proceeding. As Justice Morris said in Becton Corporation Pty Ltd v Port Phillip CC[3]:

[6] ... Time limits are necessary to make the operation of the law and the planning system effective. Without time limits, the whole system would degenerate in to one lacking in certainty; and would become highly dependent upon discretion.

[7] Thus I must seriously consider whether the onus, which is clearly upon the applicant, of demonstrating that the time limit should be extended has been discharged. To use the analogy of a set of scales, the onus is not discharged if the arguments on each side result in the scales being horizontal. It is necessary for the scales to be tilted, and significantly tilted, in favour of the person seeking the extension of time.

14 My conclusion is that there is nothing to tilt the scales in Mr Norton's favour, let alone to tilt them significantly. For all these reasons, I conclude that, time should not be extended under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 within which to commence this proceeding. Accordingly, it will be struck out.

[1] These considerations were based on a decision of the Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305 and were enumerated in Reynolds v Macedon Ranges Shire Council (1999/33825) noted at (1997) 19 AATR 9.

[2] See Dingley Village Neighbourhood Centre Inc v Kingston CC (1997) AATR 227 at 285

[3] [2004] VCAT 1897: