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1 cited instrument linked from this judgment.

Why the court decided this way

The decision turned on statutory construction and the allocation of responsibility for communication between an objector and any agent who lodged objections on their behalf. Two statutory provisions were central:

• Section 64(1) requires that "the responsible authority must give the applicant and each objector a notice in the prescribed form of its decision to grant a permit" (Reason [10]).
• Section 89(1)(b)(iii) permits a person who objected to ask the Tribunal to cancel a permit if they believe there was "any material mistake in relation to the grant of the permit" (Reason [5]).

Deputy President Gibson's first critical interpretive finding was that s64(1) imposes an obligation to give notice to each objector as such, not to every formal lodging of an objection. Where an objector's correspondence does not give a postal address, and where another agent (the Body Corporate Manager) had lodged an objection on the objector's behalf and provided contact details, it was reasonable and lawful for the responsible authority to send the statutorily required notice to that agent (Reasons [11]–[12]). The responsible authority had no direct postal address for Revson at the time it prepared the notice; hence sending notice to Revson via the agent who had lodged the objection met the legislative obligation (Reason [12]).

The Tribunal then distinguished between a failure of the responsible authority to comply with the statutory notice obligation (which could produce a material mistake) and a private communication failure between an objector and its agent (which does not make the responsible authority's conduct a "material mistake" under s89). The agent's apparent failure to pass on the notice to Revson led to the applicant missing the review deadline, but that breakdown was characterised as a private matter for resolution between Revson and the agent; it did not alter the fact that the Council had properly discharged its statutory duty by sending the notice to the agent who had lodged the objection (Reason [14]). The closeness of the relationship between Revson and the Body Corporate Manager was immaterial because the responsible authority could not be presumed to know about that relationship (Reason [15]).

On these grounds Deputy President Gibson concluded there had been no material mistake in the grant of the permit attributable to the responsible authority; accordingly Revson lacked standing to pursue cancellation under s89(1)(b) and the s87 request was unsustainable (Reason [17]).

Before and after state of the law

This decision applies established principles of statutory construction and administrative responsibility in the context of planning notice requirements:

Before this decision, the statutory framework under the Planning and Environment Act required notice to objectors under s64(1), and s89 offered relief where a person was adversely affected by certain errors including "any material mistake in relation to the grant of the permit." Revson foregrounded the precise interaction of those provisions: whether an objector who missed the review deadline because notice was not received could show a material mistake where the notice had been sent to an agent.

After the decision, the clear practical takeaway is that where an objector has engaged an agent or another party to lodge an objection and the responsible authority does not have the objector's own postal address, sending the statutory notice to the agent can satisfy s64(1). The Tribunal's reasoning reinforces a boundary: a later communication failure between agent and principal will not, by itself, render the responsible authority's conduct a material mistake for the purpose of s89(1)(b)(iii), provided the authority properly gave notice as required (Reasons [11]–[16]). In short, this decision tightens the connection between the responsible authority's statutory act (sending notice) and the statutory relief (cancellation for material mistake): the focus is on whether the authority itself erred in giving notice, not on private failures in subsequent communication.

Key passages with plain-English translation

• "This provision requires notice be given to each objector, not to each objection." (Reason [11])
  • Plain English: The council must notify every unique objecting party once, not send a notice for every duplicate or repeated objection lodged by the same party.
• "It was therefore obliged to give notice under section 64(1) to Revson Pty Ltd to one of its agents who had lodged the objection on its behalf." (Reason [12])
  • Plain English: If the council did not have an object's own postal address but an agent did lodge an objection for them, sending the council's decision to that agent satisfies the law's requirement to give notice.
• "Clearly there has been a breakdown in communication between the Body Corporate Manager and the Body Corporate owners and/or occupier, however this is an issue that must be sorted out between themselves. It is not a circumstance that necessarily means there has been any material mistake in relation to the grant of the permit." (Reason [14])
  • Plain English: If the agent fails to pass on a notice, that private mishap is not automatically the same as the council making a legal error that would let the objector challenge the permit.
• "I find that this does not constitute a material mistake in relation to the grant of the permit. Notice of the decision was properly given under section 64(1)." (Reason [16])
  • Plain English: The Tribunal held the council did what the law required; therefore the objector cannot use the argument of 'material mistake' to cancel the permit.

What fact patterns trigger this precedent

Several practical fact patterns will bring this decision into play:

• An objector lodges an objection indirectly through an agent (e.g. a body corporate manager) and does not provide a postal address. The responsible authority sends the notice of decision to the agent's address. The agent does not pass the notice to the objector, who misses the statutory review deadline. Under these facts the decision supports a finding that the authority has fulfilled its s64(1) duty and the missed deadline is not a material mistake attributable to the authority (Reasons [11]–[16]).
• Multiple identical objections are lodged on behalf of the same objector by different persons or channels. The authority elects to treat them as a single objector and sends notice to a sensible address, such as the agent who provided contact details. The Tribunal's approach endorses that choice as reasonable (Reason [11]).
• Where an authority truly lacks any means of notifying an objector (no agent and no address), different issues arise; this decision does not directly address that situation, but it clarifies that the authority cannot be penalised for sending notice to a known agent where that was the only practical means.

How later courts have treated it

This judgment does not cite subsequent appellate treatment or indicate it was applied, distinguished or overruled by later decisions within the written reasons. The decision itself is an administrative tribunal determination by Deputy President Gibson and focuses on statutory interpretation of s64(1) and s89(1) in the facts before it (Reasons [10]–[17]). Practitioners should check later authorities and appellate decisions for any refinement or contrary authority when relying on this decision as precedent.

Still-open questions

The decision is clear on the specific fact pattern where an agent lodged an objection and the authority sent notice to that agent. However a number of practical and legal questions remain open or only implicitly addressed by this decision:

• What if an agent who lodged an objection provided incomplete or misleading contact details that misdirect the responsible authority? The decision treats the agent as a reliable conduit, but does not analyse facts where the agent's contact details are wrong or intentionally misleading.
• How should a responsible authority proceed where there are multiple potential agents or multiple objectors with overlapping relationships? The Tribunal found it reasonable to choose the Body Corporate Manager here (Reasons [11]–[12]), but the facts drove that choice. The decision does not set a hierarchical rule for choosing among multiple agents.
• What is the precise threshold for a breakdown in the responsible authority's own process to be a 'material mistake'? The Tribunal emphasised the distinction between private communication failures and the authority's error, but did not provide an exhaustive test for what kinds of authority conduct constitute a material mistake under s89(1)(b)(iii).
• If an objector can show the responsible authority had other practicable means of contacting them (for example, an address available on a property register) but failed to use it, would that amount to a material mistake? The present decision does not engage with whether the authority had constructive knowledge of an objector's address or should have made further inquiries.
• Finally, the decision leaves open whether different fact patterns (for example, where the authority sent notice to an agent but the authority also expressly treated the agent's communications as not representing the objector) would produce a different result.

Practitioners should therefore treat Revson Pty Ltd v Port Phillip CC [2005] VCAT 857 as a clear authority for the proposition that sending notice to an objector's agent satisfies s64(1) where the authority lacks a direct address for the objector, and that private communication failures thereafter do not automatically create a material mistake. However, the decision does not exhaustively cover edge cases about the authority's constructive knowledge, the reliability of agent contact details, or competing reasonable steps the authority might take to notify an objector. In those situations, further authority or careful factual argument will be required.

15 Mr Bock, on behalf of the owner of Unit 1, drew attention to the fact that Mr Arno Caras is the chairman of the Body Corporate and, as director of Revson Pty Ltd, which is the sole occupier of the entire premises at 622 St Kilda Road apart from Unit 1, has a close relationship with Mr Macfarlane as Body Corporate Manager. Given that Revson is the owner and/or occupier of all the apartments except Unit 1, this breakdown in communication is difficult to comprehend. He claimed that it was therefore inexplicable why Mr Macfarlane had not passed on the notice from the Council to Mr Revson.

16 However the closeness or otherwise of the relationship between Revson Pty Ltd and Macfarlane is not relevant to my finding because the responsible authority cannot be presumed to have known this. The Body Corporate Manager was acting as an agent for Revson Pty Ltd. The responsible authority sent the notice required by section 64(1) to the Body Corporate Manager. It had no other postal address for Revson Pty Ltd and the objection by Revson Pty Ltd had been lodged by the Body Corporate Manager on behalf of Revson Pty Ltd. I find that this does not constitute a material mistake in relation to the grant of the permit. Notice of the decision was properly given under section 64(1).

17 Based on my finding that there has been no material mistake in relation to the grant of the permit, the applicant does not have standing to make this application under section 89(1)(b). This also means that the ground relied upon for making the request under section 87(1) is not substantiated either. For these reasons the application should be dismissed.

18 This therefore disposes of the matter and the hearing listed for 24 May 2005 will be cancelled.