Mr Ray Rooke, lawyer, represented Ms Townshend, a respondent objector.

1. This was an application under Section 79 of the Planning and Environment Act 1987 (P & E Act) to review the failure of the Responsible Authority to grant a permit (in Permit Application No. PE 99/1774) within the prescribed time to use the land at 1529 Burwood Highway, Tecoma to sell or consume liquor where a license is required under the Liquor Control Reform Act 1998.

2. The application for permit was lodged with the Responsible Authority on 28th of October 1999. The application for permit describes the existing use of the land as a shop although the submissions put to the Tribunal by Mr Parthenides and Ms Wolfers suggest that light refreshments are also for sale from the premises.

3. The permit application was accompanied by a short one page letter explaining the need for a liquor licence "to complement our food and also for our special occasions such as CD launches, art exhibitions, fashion shows, poetry nights and light entertainment". A hand drawn sketch plan indicating the dimensions of the premises also accompanied the application. The permit application indicated that the proposal was for "licensed café/restaurant, 20-60 seats, gallery with live entertainment (poetry nights, fashion (small) parade, musical experiences (operating until 1.00 pm))."

4. The application was directed to be advertised and nine objections were received.

5. On 12th of April 2000 the subject application for review against failure to determine the application within the prescribed 60 day time period was lodged with this Tribunal.

6. In correspondence dated 14 April, 5 May, 11 May and 17 May the Customer Services Section of the Tribunal sought confirmation that the applicant had responded to the requirement to give notice of the application for review. This notice was finally given with the statement of service filed on 25th May 2000. In response to this notice eight objectors sought to be made respondents to the application by forwarding grounds for contesting the application.

7. On 24 August 2000 the Responsible Authority considered the application for permit, as provided for under Section 84 of the P &E Act. It determined to refuse a permit on the following grounds:

1. The information submitted with the application is inadequate in order to enable a proper assessment of the proposal.

2. Inadequate car parking has been provided and any reduction has not been justified.

3. The proposed development would prejudice the proper and orderly planning of the area.

4. The proposed development may result in detriment to the amenity of surrounding residential area, as a result of noise/disturbance from patrons, vehicle and entertainment proposed on site.

5. Late night trading and liquor licensing of the premises is inappropriate for the area.

8. The matter was listed for hearing on 5 September 2000. At the commencement of the hearing Ms Wolfers for the Responsible Authority, submitted that an adjournment was appropriate in order to enable the permit applicant to provide further information to support his application. She stated that she had advised the permit applicant approximately one week prior to the hearing that she would be submitting that the application was insufficiently detailed to enable a decision to be made by the Tribunal.

9. In the course of the discussion which followed Ms Wolfers' submission I satisfied myself that there was indeed insufficient material available to enable a proper consideration of the application. It was clear also that Mr Parthenides was not in a position to provide any further information on that day.

10. Mr Rooke, for Ms Townshend, submitted that an adjournment should not be allowed but rather that the application should be dismissed outright as there was insufficient material for the Tribunal to be in a position to make a decision about the application. He contended that it was inappropriate for the Tribunal to attempt to construct a case for either the Responsible Authority or the applicant and that the appropriate course was for a fresh application for permit, properly supported by relevant material, to be lodged with the Council.

11. In view of the fact that the application was to review a failure by the Responsible Authority to make a decision within the prescribed time, I determined that it would be unfair in the circumstances to not allow the permit applicant an opportunity to better prepare his case. I determined that there was insufficient material on which to base a hearing that day and that natural justice demanded that the other parties would need proper notice of any further material prepared in support of the application.

12. After some discussion I determined upon a list of material that would need to be prepared and gave directions for the preparation and circulation of that material including the giving of notice of the application for review with the permit application amended by the addition of such further material.

13. My directions were given orally but were committed to writing the following day. Clause 3 of the written directions stated as follows:

"3. The above material is to be prepared within one month of the date of these directions unless extended by the Tribunal upon written application being made to the Tribunal before the expiry of that period. In the event of substantial delay a directions hearing may be called to consider whether or not the application should be dismissed." (emphasis added)

14. By 18 October 2000 no material had been forthcoming from the permit applicant and no written application to extend the period for submission of that material had been made. Following a number of phone calls from VCAT's Customer Services Department, on 18, 19, 20 and 23 October 2000, Mr Parthenides forwarded a facsimile requesting adjournment of the hearing set for 9 November 2000. The reasons given for the adjournment were stated to be:

"Due to the amount of organising and set backs I have received, I need more time to finalise all matters and points concerned with this application.

In my current position it would be virtually impossible to have all the necessary materials by the current hearing date ..."

15. By letter dated 1 November 2000 all parties were advised of the request for adjournment and the fact that in the circumstances the hearing had been adjourned and a directions hearing had been listed in its place.

16. At the commencement of the directions hearing I asked Mr Parthenides to produce what material he had so far been able to prepare. He produced a floor plan of the building which he stated had been commissioned from an acquaintance some two to three weeks before. He said that so far he had been unable to create a site plan showing any car park associated with his premises and that while he had taken some photographs of occupancy rates in the car park he was unable to produce these. He suggested also that he was having difficulties in obtaining attenuation advice in relation to noise emissions. He was unable to provide details in relation to any of the other information that he had been directed to prepare.

17. Pursuant to Section 78 of the VCAT Act, if the Tribunal believes a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party by conduct such as failing to comply with directions without reasonable excuse, including asking for adjournments as a result of such failures, the Tribunal may order that the proceeding be dismissed if the party causing the disadvantage is the applicant.

18. Having regard to Clause 3 of my written directions dated 6 September 2000 and the requirement for this material to be produced within one month unless written application was made before the expiry of that period, I asked Mr Parthenides why the application should not be dismissed. Mr Parthenides referred to the nature of his business and his inability to engage paid advisers.

19. Ms Wolfers submitted that the Responsible Authority would have no objection to a further one month adjournment as in her opinion the time set aside to prepare the additional material had been relatively short. She contended however that any additional failure to prepare the material should result in dismissal.

20. Mr Rooke on the other hand sought once again to have the application dismissed. He argued that the Tribunal had already gone out of its way to keep this proceeding alive and that even after two months very little if anything appeared to have been prepared in response to the Tribunal's directions. He contended that it was simply unfair to his clients if the Tribunal persisted with any further attempts to make a case for the permit applicant.

21. Having considered these various submissions I advised the parties that I was not prepared to grant any further adjournments and that in view of the applicant's failure to comply with my directions of 6 September 2000 that it was appropriate to dismiss the proceeding on the basis that to allow any more latitude to the permit applicant would constitute a disadvantage for the other parties.

22. I think it is only fair and just in the circumstances to make this order. This is an application against failure to determine within the prescribed period. Whilst it was fair and reasonable in the first instance to allow the permit applicant an opportunity to amplify his proposal, given the Council's tardiness in its consideration of the application, I now find that the applicant's own tardiness is justification for the matter being dismissed.

23. If the applicant for review wishes to persist with his proposal he may of course pursue a further application with the Responsible Authority supported this time by an appropriate level of accompanying material.