Purchase N & Y v Baw Baw SC & Ors [2000] VCAT 327

Mr David Proctor, appeared for Neville and Yvonne Purchase.

Mrs Lorraine Campbell, appeared in person as did Mr Alan Powell.

Requests under s.87 of the Planning and Environment Act 1987 (PE Act) for cancellation of permits.

The cancellation of respective permits numbered 99186 and 99185 issued by the Responsible Authority.

1. During the first half of 1999 I, sitting with my colleague Dr Sylvia Mainwaring, heard and determined a review of a decision by the Responsible Authority in relation to an application by Mr & Mrs Purchase for a planning permit for broiler poultry sheds on land at Ripplebrook. These current proceedings concern adjoining land of Mrs Campbell and Mr Powell respectively. They were objectors to the Purchase permit application. During the hearing of the Purchase application for review, which was heard on a number of days spread over several months, Mrs Campbell and Mr Powell obtained planning permits from the Responsible Authority in relation to their lands. On the 24 June 1999 there was a hearing in relation to the Purchase application where the result of the case was announced and reasons were given. Subsequently, in July 1999, a written determination with directions to the Responsible Authority in relation to the issue of a permit which we granted to Mr & Mrs Purchase, was published. These current proceedings were commenced between the date of the hearing where the result of the case was given and the publication of the written determination.

2. The document initiating the proceedings in relation to Mr Powell is headed "REQUEST TO CANCEL PERMIT". It is dated 28 June 1999. It is intended to be a request under s.87 of the Planning and Environment Act 1987 (PE Act) for cancellation of Permit 99185. The fee in relation to it was paid on the 12 July 1999. The document does not include a statement of the facts relied upon to establish the ground sought to be relied upon under s.87(1) PE Act as establishing the basis for cancellation of the permit.

3. The initiating document in relation to the permit held by Mrs Campbell is headed "APPLICATION FOR DECLARATION". It refers to s.149B PE Act and purports to seek a declaration that her permit is invalid. Apart from that it follows a similar form to the initiating document in relation to Mr Powell.

4. After the initiating document in relation to Mrs Campbell was lodged a letter dated 12 August 1999 was sent from the Registrar's office to Mr & Mrs Purchase. The relevant text of this letter, omitting formalities, reads as follows:-

"I refer to the above matter and acknowledge receipt of your application dated 28th June 1999.

It is noted that you have made a request under s.87 of the Planning & Environment Act for the cancellation of Mr Powell's permit in relation to Lot 3, 185 Lewis Road, Ripplebrook. This request has been given the reference number 1999/53660 by the Tribunal.

The proceeding in relation to Mrs Campbell's permit relating to Lot 1, 145 Lewis Road, Ripplebrook is not for cancellation but for a declaration. Please advise the Tribunal if this is an error. Is it intended to seek cancellation of Mrs Campbell's permit, and if so, will that be sought instead of or as well as the declaration sought in this application (1999/49775)? You are advised that a declaration application can only be dealt with by a presidential member of the Tribunal.

Please provide a response within 10 days from the date of this letter.

If you have any inquiries, please contact me on 9628-5759.

5. When no reply was received by the 23 August 1999 a further letter was sent from the Registrar's office on that date in the following terms:-

"I refer to the above Application and the Tribunal's letter to you of 12th August 1999, to which we are yet to received (sic) a response.

_Please provide the following (_sic) relevant information, to the Tribunal within 7 days.

If you have any queries, please contact the Customer Services section of the Planning List.

6. On the 1 September 1999 a further similar letter was sent in the following terms:-

"Further to the tribunal's letter dated 23rd August 1999, we are yet to receive a response.

Failure to do so may render this application for review invalid, and may be struck out.

A response is required within seven days, from the date of this letter.

Should you have any queries, please contact the Customer Services section of the Planning List.

7. A reply dated 3 September 1999 and signed by Yvonne Purchase was received. It reads:-

"I refer to your letter dated the 12th August, and apologise for the delay in responding.

The proceeding in relation to Mrs Campbell's permit is for cancellation and not declaration.

8. It is apparent that the initiating document as lodged with the Tribunal is a somewhat confused and confusing one, and that confusion is made more manifest by this letter indicating that no declaration is sought, but cancellation. At the hearing on the 20 January 2000 I amended that document in accordance with the letter of the 3 September 1999 to make it clear that it is a request under s.87 PE Act for cancellation of a permit, and not an application for a declaration. I might add that, at that stage, the initiating document had not been served on Mrs Campbell because of its confused state. It is preferable that respondents be served with an intelligible document that makes clear the nature of the case being bought. Hence clarification was sought before service.

9. On the 5 October 1999 the Registrar's office again wrote to Mr & Mrs Purchase in relation to both proceedings in the following terms:-

"I refer to the above applications lodged with the Tribunal.

In reference to application for review no. 1999/49775 please find enclosed a copy of your application that you submitted to the Tribunal on the 30th June 1999 and blank forms for making the appropriate request.

The document submitted purports to seek a declaration that is likely to cause confusion. It is suggested that a new form be submitted using the blank form enclosed, however a further fee will not be required.

Furthermore the present form does not contain a statement of the facts relied upon as establishing the grounds for the request under Section 87 of the Planning and Environment Act. This should be included in the new form.

In reference to application for review no. 1999.53660 it has been noticed that the request form submitted does not include a statement of the facts relied upon as establishing the grounds for the request under Section 87 of the Planning and Environment Act. I believe that such statement should be submitted and served on the other parties.

I refer to the Tribunal's letter dated 12th August 1999 where you were directed to serve the other parties with the document (sic). I advise that no reply or statement of service has been received. The matter cannot proceed until that is attended to.

Please advise the Tribunal within 14 days from the date of this letter as to the present situation in relation to service.

If you have any queries please contact me on 9628 9756.

10. On the 26 October 1999 the Tribunal again wrote to Mr & Mrs Purchase in the following terms:-

"I refer to the Tribunal's letter dated 5 October 1999 and note that no reply has been received.

Please forward a response to the Tribunal within 14 days from the date of this letter.

If you have any queries please contact me on 9628 9756.

11. No reply was received. That lead to the hearing of 20 January 2000.

12. At the hearing on that day I went through, and read out, the course of correspondence. I said that, on the basis of the correspondence, it appeared that these proceedings were not being prosecuted, and that they should be dismissed. I referred to the powers of the Tribunal in sections 75 and 76 of the Victorian Civil and Administrative Tribunal Act 1998 ((VCAT Act) to summarily dismiss unjustified proceedings or proceedings where there was a want of prosecution. The hearing on that day was called to consider the question as to whether these proceedings should be dismissed and if no to give directions in relation to their future conduct. The hearing was occasioned by the circumstances where it appeared futile to continue writing to Mr & Mrs Purchase as no responses were forthcoming from them. No initiating documents in suitable form were available for service on the Respondents. A hearing was appropriate and it was necessary that the Respondents should be given notice of it and afforded an opportunity to be heard. The essential purpose of the hearing was to determine whether the proceedings should be summarily dismissed and to give Mr & Mrs Purchase an opportunity to be heard in relation to that question.

13. On the day before the hearing a letter was sent to the Tribunal by facsimile transmission by Mr Proctor. It said that Mr & Mrs Purchase had been unable to contact their legal representatives since receiving notice of the hearing (which was sent on the 22 December 1999) and that they had contacted him to represent them and to seek an adjournment. Mr Proctor had sought consent of the other parties to such an adjournment, but such consent was not forthcoming from Mrs Campbell and hence he appeared for Mr & Mrs Purchase at the hearing.

14. In the course of the hearing all parties were given an opportunity to make submissions in relation to the question as to whether these proceedings should be dismissed. Ultimately Mr Proctor did not proceed with an application for adjournment, and conceded that the appropriate course was that these proceedings should be dismissed. He observed that they are now obsolete or redundant. There was some reference to other permit applications having been made since these current proceedings were initiated, but I have no knowledge of them. Mr Powell noted that his permit would expire after one year from the date of issue (which was in May 1999). He indicated that he did not intend to renew or re-apply, and I understood him to convey that he had no intention of acting on the current permit. As far as he was concerned, the permit would expire in several months and that would be an end of it. I further understood that a similar situation applied in relation to Mrs Campbell. Her permit is for the construction of a house which would be unacceptably close to the broiler sheds that have now been permitted and constructed.

15. Mr Proctor having conceded that the appropriate course was to dismiss these proceedings, and the other parties having submitted that they should be dismissed or indicated an acquiescence in such dismissal, I announced that I would dismiss them from want of prosecution.

16. Mrs Campbell asked me what the position in relation to costs. I referred her to s.109 of the Victorian Civil and Administrative Act 1998. I also contrasted the position before this Tribunal, where the ordinary rule is that parties must bear their own costs, with the situation at court where the normal rule is that successful parties can expect to obtain an order for costs. However, I did point out that the Tribunal does have power to make orders for costs where it considers that to be justified. Mrs Campbell then asked as to the appropriate occasion for making an application for costs and if the appropriate occasion would be then, in the course of the hearing on 20 January 2000. I indicated that the appropriate time would be then, during that hearing. No such application was made by any party.