Permit Holders/Owners & Occupiers Srecko & Maria Saric

Permit No. P99.049 issued by the Requestor as Responsible Authority under the Hobsons Bay Planning Scheme and dated 14 December 1999 is amended so as to add the following sub-paragraph at the end of Condition 1:

(c) the deletion of the third level of the building.

For the Requestor: Mr Terry Montebello of Maddock Lonie and Chisholm

Owners and Occupiers: Mr Jason Pizer of Counsel, instructed by Minter Ellison

For the Objectors: Mr Scott and Ms Radovini appeared in person

1. This proceeding is an eloquent example of the power of time and chance in human affairs and even in the planning system (cf. Ecclesiastes Chapter 9 Verse 11)

2. On 1 February 1999 Kneeler Design Pty Ltd acting on behalf of Mr & Mrs Saric lodged an application for a planning permit to demolish an existing house at 2A John Street Williamstown, and to erect a "two storey house and attic". The Hobsons Bay City Council as Responsible Authority under the Hobsons Bay Planning Scheme issued a Notice of Decision to Grant a Permit subject to a number of conditions, one of which required "the deletion of the third level of the building". Mr & Mrs Saric applied to this Tribunal for a review of the conditions which the Council had determined to impose, in particular the condition which required the deletion of the third level of the building. On 1 September the Council issued a permit in accordance with its Notice of Decision.

3. The review application lodged by the Sarics came on 19 November 1999 before Mr Terrill. On 14 December 1999 the Tribunal's determination was published. Mr Terrill varied the Council's determination by deleting a number of conditions including the condition requiring the deletion of the third level of the building. The decision was published on 14 December and reached the Responsible Authority on 15 December 1999. On 22 December Council as Responsible Authority issued an amended permit dated 14 December 1999 (the date apparently chosen so as to correspond with the date of the Tribunal's determination) which conformed to Mr Terrill's determination and deleted the requirement for the removal of the third level.

4. Meanwhile, on 13 December 1999 in a special edition of the Victorian Government Gazette (No. S179) the Minister for Planning gave notice that he had approved Amendment L21 to the Hobsons Bay Planning Scheme. According to the Gazette notice "the Amendment comes into operation on the date this notice is published in the Government Gazette". The effect of the Amendment was to set "a maximum height of two storeys" for development on land marked "DD4" in the Planning Scheme. This Design and Development Overlay covers the land area adjacent to Hobsons Bay. The Minister published on the same day a Notice of Approval of an amendment to the Port Phillip Planning Scheme with similar effect, relating to "the land known as the HMAS Lonsdale (south), Esplanade East Port Melbourne". According to the explanatory note accompanying the Amendment, the Minister saw the strategic and policy justification of the Amendment as being the need "to support the introduction of strategically based height controls along the foreshore of Hobsons Bay, pending approval of the new format Hobsons Bay Planning Scheme". The Amendment was said to help "facilitate Council's coastal and foreshore objectives as set out in the Municipal Strategic Statement and the new format Planning Scheme". The Minister apparently approved the Amendment at the request of the Council. The height limit is now to be found in Clause 159-6.2 of the Hobsons Bay Planning Scheme being part of the Local Section which states "A permit may not be granted to construct a building or to construct or carry out works exceeding a height of two storeys" within the relevant area.

5. On 5 May 2000 the Council as Responsible Authority filed a request in the Tribunal pursuant to Section 87 of the Planning and Environment Act 1987 seeking to have Permit No. P99.049 amended "to reinstate Condition 1(a) of Planning Permit P99.049 issued on 1 September 1999". The effect of granting this relief would be to require, once again, the deletion of the third level of the building. It is common ground that Mr Terrill was unaware of the existence of Amendment L21 when he prepared his determination and he remained unaware of it until after the day the determination was despatched to the parties by the Registry on 14 December 1999.

6. At the time the permit application was lodged the site was zoned Residential C and was situated in an Urban Conservation Area No. 1. It was only on the basis of that latter control that a permit was required to demolish the existing building and construct a new dwelling. Those developments would otherwise have been "as of right".

7. The Sarics have begun construction of their house but have not yet proceeded to the addition of the third level. That portion of the project will be deferred pending the outcome of this and a related proceeding.

8. Mr Montebello of Maddock Lonie and Chisholm appeared for the Council. He submitted on the basis of Section 118(1) of the Victorian Civil and Administrative Tribunal Act 1998 that the Tribunal's determination came into effect on the date which it bore, namely 14 December 2000, the date upon which the written determination was despatched to the parties. In light of Amendment L21 and Clause 159-6.2 of the Scheme, a grant of a permit for a three level building on the site was illegal as at 14 December. He said that Section 87 of the Planning and Environment Act 1987 authorised the grant of the relief sought because it had been demonstrated that "there had been a material mistake in relation to the grant of the permit" (see Section 87(1)(c)). He said that since Mr Terrill was unaware of Amendment L21 "the Tribunal made a mistake (through its ignorance of a relevant provision) in relation to the grant of a permit because the Scheme was amended by that time [that is 14 December] and the Tribunal was bound to give effect to the Scheme as it existed on the date the determination was made." He referred to a decision of the Full Supreme Court of Victorian in Ungar v City of Malvern [1979] VicRp 26; [1979] VR 268. He also submitted that "in issuing an amended permit (backdated to 14 December 1999) purportedly giving effect to the Tribunal's determination, Council made a mistake to the extent that it was not permitted to issue an amended permit that allowed a three storey building at that time". He submitted that the mistakes were material; that Council had made its request as soon as practicable. He referred to Section 89(3) of the Planning and Environment Act. He submitted that Section 87(6) specifically authorised the grant of the relief sought even although the amended permit issued as a result of a Tribunal determination. Sub-sections (6) and (7) of Section 87 state:

"(6) Without limiting the powers of the Tribunal, the Tribunal may cancel or amend a permit if it is issued following an application for review.

(7) The Tribunal must not cancel or amend a permit on a ground mentioned in sub-section (1)(a), (c) or (f) unless there has been no application under Division 2 on that ground for review of that decision to grant the permit or of a condition of the permit."

9. It will be recalled that Council's request is based upon Section 87(1)(c). That is, upon the contention that there is a material mistake in relation to the grant of the permit. Mr Montebello submitted that a material mistake related to Amendment L21. Mr Terrill considered and rejected submissions relative to the general amenity of the neighbourhood and a non-mandatory height policy propounded by the Responsible Authority. Being unaware of Amendment L21 and the Amendment not being in force at the time the proceeding was argued before him, it could not be said that there had been a review application "on that ground for review of the decision to grant the permit or of a condition of the permit". Therefore, in Mr Montebello's submission - Section 87(7) constituted no bar to amending the Tribunal in accordance with Council's request.

10. He said that it was no objection to the request that the error made was an error of law. He referred to Shire of Marong v Bendigo Junior Moto-Cross Club (1983) 22 APAD 539 (a decision of the Planning Appeals Board S. Morris, A. Kinder and B.S. Elms).

11. Mr Montebello conceded that the Tribunal's powers under Section 87 were discretionary. He submitted nevertheless that a proper exercise of discretion would lead to the request being acceded to. If the relative interests of the party were balanced, he submitted that the public interest in height controls in the foreshore area would outweigh the private interest of the permit holder. He observed that the Minister for Planning had regarded this issue as being of such importance that he had departed from the usual practice by introducing the amendment forthwith and without advertising.

12. Mr Montebello submitted that it was no objection to the grant of Council's request that it may have been able to obtain relief by way of an appeal to the Supreme Court against Mr Terrill's decision pursuant to Section 148 of the Victorian Civil and Administrative Tribunal Act 1998. There was nothing in that section to prohibit the granting of this request and the specific terms of Section 87(6) and (7) of the Planning and Environment Act showed that the Tribunal can in these circumstances consider whether one of its own decisions has been attended by a material mistake. He also referred to Section 52 of the Victorian Civil and Administrative Tribunal Act which provides inter alia that the Supreme Court

"does not have jurisdiction to hear, or continue to hear, or determine any proceeding in which a person bringing the proceeding brings in issue the matter of the exercise of, or the failure to exercise a power under a planning enactment if the Tribunal has jurisdiction to review the matter of the exercise of, or the failure to exercise that power and the matter has not been the subject of a proceeding in the Tribunal."

13. Mr Pizer of Counsel appeared on behalf of Mr & Mrs Saric. He submitted first, that in these circumstances there is no power under Section 87 of the Planning and Environment Act 1987 for the Tribunal to grant the Council's request. Before relief can be granted under Section 87 he submitted at least one of the grounds referred to in Section 87(1) must be satisfied. He referred to Millar v Port Phillip City Council [1998] VCAT 264 at paragraph 5. Mr Pizer conceded that the "material mistake" referred to in Section 87(1)(c) could be a mistake of law. He referred to Shire of Marong v Bendigo Junior Moto-Cross Club (1983) 22 APAD 539, 547-9; Stockley v City of Croydon (1991) 7 AATR 78, 85; Molan v Olsson (1993) 11 ATR 157, 163. Likewise, Mr Pizer conceded that having regard to the date on which it was published, the Tribunal's decision dated 14 December, entailed an error of law. He agreed that had Mr Terrill become aware of Amendment L21 on 13 December, it would have been his duty to prevent the dispatch of his determination which in the event was forwarded the following day. Mr Pizer observed however, that to make out the ground relied upon, Council had to show that the material mistake related to the grant of the permit. The mistake relied upon cannot be relative to something that occurred after the grant. He referred to a decision of Mrs Bruce, Deputy President, in Glenn v Delatite Shire Council [2000] VCAT 505 at paragraph [197]. He observed that the permit was issued on 1 September 1999 and whatever was to be regarded as embodying when the concept of "the grant" of the permit, its final step must be the issuance. Nothing that happened after 1 September therefore, in Mr Pizer's submission could be relied upon as a material mistake for the purposes of the Council's request because by definition such an event would not relate to the grant of the permit. He submitted that the issuance of an amended permit from 14 December 1999 was an amendment and not the grant of a permit. The Tribunal did not direct the Responsible Authority to grant a permit, merely to amend an existing permit.

14. In any event, according to Mr Pizer "it would be fundamentally inappropriate to allow this Section 87 application to be used as a defacto review of the legality of the VCAT's decision of 14 December 1999. This is precisely what the Council is seeking to do here." He referred to Millar's case at paragraph [6]. He said:

"It cannot have been Parliament's intention to allow Section 87 to be used as an alternative avenue for the review of the Tribunal's own errors of law. Section 87(6) of the Act - which allows the Tribunal to amend a permit that is issued following an application for review - cannot be construed as providing such an avenue."

15. He said that reference to the Minister's second reading speech when the present sub-section (6) was introduced, demonstrated that the purpose of the Section was to allow the then Administrative Appeals Tribunal (Planning Division) and now this Tribunal, to deal under Section 87 equally with permits granted by the Responsible Authority and those which were granted as a result of Tribunal determinations with respect to application to cancel for breach of condition. He referred to the Minister's Second Reading Speech. He observed:

"It was never contemplated that a Section 87 application might be used as an alternative avenue for reviewing the Tribunal's own errors of law."

16. He concluded that the only proper way of correcting an error of law by the Tribunal was by way of an appeal pursuant to Section 148 of the Victorian Civil and Administrative Tribunal Act 1998.

17. If these jurisdictional issues were determined against him, Mr Pizer submitted that the request nevertheless ought not be granted. Section 89(3) provides that the Tribunal may refuse to consider a request under Section 87 "unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request". It was common ground that the circumstances were known to the relevant Council officers prior to Christmas 1999. Whilst there had been correspondence between Council and the permit holder, initiated in February of this year, no step had been taken under Section 87 until 5 May, almost five months after the publication of the Tribunal's determination. He referred to a number of Tribunal determinations where similar delays were sufficient in themselves to defeat Section 87 requests Anderson Creek Cemetery Trust v City of Doncaster (1990) 4 AATR 307n (four month delay too long); Noutso v City of Prahran (1990) 5 AATR 38, 44 (seven months delay too long); Hamann v Mount Alexander Shire Council (997) 18 AATR 111, 119 (two month delay too long).

18. Even were all these contentions to be rejected, Mr Pizer said, as a matter of discretion, no relief ought to be granted Section 87 states that the Tribunal may cancel or amend a permit. Section 45 of the Interpretation of Legislation Act 1984 makes clear that the word "may" imports a discretionary power, one which the grantee is entitled to exercise or not in his discretion. He observed that the Tribunal is not bound "to amend the permit even if it decides that a permit ought not to have been issued or ought to have been issued with different conditions. This is so even if the permit is invalid: Kantor v Murrindindi Shire Council (1997) 11 AATR 285 at 294. See also Clause 62 of Schedule 1 to the VCAT Act." Moreover since the grant of a request is discretionary the Tribunal would have to be satisfied that it was and fair to exercise the power. He referred to Sky Heights Pty Ltd v City of Port Phillip (1995) 15 AATR 219, 224; Yarra City Council v A.G. Rattray-Wood [1999] VCAT 1935 (13 November 1999) at paragraph [22].

19. In Mr Pizer's submission there were five discretionary reasons. First, he said

"It is manifestly unfair and unjust that the respondent should, through absolutely no fault of their own, be subject of a height limitation set out in the Amendment. Through a cruel twist of circumstances, the VCAT have actually decided the conditions appeal in the Respondents' favour before the amendment came into effect, but for administrative reasons (associated with the VCAT) that decision was not published until one day after that Amendment came into force".

20. By letter dated 29 February 2000 Mr & Mrs Saric sought particulars from Mr Terrill as to the precise timing of his determination. This letter was referred to the Registrar for response. Mr Richard O'Keefe, Senior Registrar stated in a letter of 2nd March 2000:

"Mr Terrill advises that, if it will assist, he in fact made his decision in the first week in December 1999. That decision was typed shortly thereafter and the date of 14 December 1999 which appears on the typed decision was the decision was sent to the parties."

21. Accordingly, in Mr Pizer's submission it was mere happenstance that the decision was not published and dated so as to take effect before the introduction of Amendment L21.

22. Secondly, it was contrary to the rules of natural justice that the Tribunal should act as a court of review of its own decisions. He referred to Etheridge v Alamanis (McKenzie DP 21 January 1999 at page 6); Kiwi Force v City of Frankston (Bruce DP 29 March 2000 at paragraph [64]). Thirdly, no amendment should be granted because of the unexplained and lengthy delay in making the request. Fourthly, orderly planning would not be jeopardised by refusing to amend the permit because even if the building is constructed in accordance with the permit dated 14 December 1999 "its overall height will be 8m and will not exceed the height of a neighbouring building". Fifthly, the height limitation is an interim control only. Mr Pizer said that on 10 August (that is the day after this hearing) proposed permanent height controls will be exhibited and they will provide for exemptions for some sites within the relevant overlay area. The present site is not amongst them.

"This nevertheless means that the homogeneity of the present height limitations to be disturbed. In this context, the Tribunal need not be dissuaded from refusing to amend the permit in the circumstances of this case, because to do so would effectively allow the present site to constitute a further (albeit defacto) exemption to the limitation."

23. Two objectors attended the hearing - Mr Scott of No. 2 John Street, next door neighbour of the site, submitted that even although the development provided for in the 14 December permit does not exceed the height of his house, the attic area is a living area and the corresponding portion of his house is a pitched roof. The three storey height or the provision of the attic, was in his submission, excessive and it would affect the passage of light though a number of leadlight windows which his family had placed in his house. Mr Scot also complained about the noise and the disruption caused by building work, excavations immediately adjacent to the boundary of his property. Ms Sandra Radovini, a slightly more distant neighbour, adopted Mr Scott's submissions.

24. It is unquestionable that as a general rule this Tribunal does not have jurisdiction to review its own decisions. In Schneeberger v Transport Accident Commission (15 March 2000) Judge Davey considered an application, inter alia for a declaration that an impairment assessment under Section 46A of the Transport Accident Act 1986 and embodied in a consent order of the Administrative Appeals Tribunal was invalid. His Honour rejected the application for a declaration observing:

"There is nothing in the VCAT Act or in the enabling legislation that gives VCAT any jurisdiction to review decisions of the former AAT or its own decisions. The declarations being sought necessarily involve VCAT reviewing primary facts which were implicitly accepted by the parties and the AAT in the consent order."

25. Section 63 of the now repealed Planning Appeals Act 1980 provided that the decisions of the former Planning Appeals Board and then of the Planning Division of the Administrative Appeals Tribunal were "final and conclusive". There is no corresponding provision in the Victorian Civil and Administrative Tribunal Act 1998. In my view this is not because the decisions of this Tribunal are any less final and conclusive. Section 63 did no more than state what is implicit in the very concept of empowering a court, tribunal or arbitrator to hear and determine a dispute: that is that the hearing and determination subject to established appeal or judicial review provisions is final and conclusive. Another facet of the same fundamental feature of adjudication is that once the adjudicating body has completed its functions it is said to be "functos officio", even the original decision-maker cannot re-open his own determination. These are unquestionably established general rules that apply to this Tribunal as much as they applied to the Administrative Appeals Tribunal, the Planning Appeals Board and the Courts; but these general principles have always been subject to certain exceptions. Superior courts can re-open their orders under what is known as the "slip rule" where accidental errors or misdescriptions may intervene. Tribunals are generally not regarded as being possessed of such jurisdiction and require specific statutory authority. Section 49A was added to the Administrative Appeals Tribunal Act 1984 to give similar powers to the former Administrative Appeals Tribunal. A "slip rule" is embodied in Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 (I note that no reliance has been placed upon this provision in the present or related proceedings). Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 permits this Tribunal to re-open one of its determinations upon substantive grounds upon the application of a party absent at the time of the hearing and determination who is able to show reasonable excuse for his absence.

26. There was no provision equivalent to Section 120 in the Administrative Appeals Tribunal Act, therefore if a party was absent from a hearing and had a proceeding in that Tribunal determined against him, even if his absence derived from a failure on the part of the Registrar to send him a notice of hearing, that party would presumably have had to seek his relief by appeal to the Supreme Court under Section 52 of the Administrative Appeals Tribunal Act (contending an error of law by way of a breach of the rules of natural justice) or perhaps by way of an order in the nature of certiorari under the Administrative Law Act 1978 based upon his being denied a right to be heard. The fact that this problem under a previous regime could only be dealt with by way of appeal or judicial review, does not exclude the possibility that a further statutory exception to the general rule enunciated by Judge Davey may be created if upon the proper construction of the relevant statute, that is what it intends to do.

27. Mr Montebello conceded that Sections 87(6) and (7) were included because the former Administrative Appeals Tribunal could not under the older form of Section 87 give relief by way of permit cancellation based upon failure to comply with conditions in circumstances where the permit had issued at the direction of the Tribunal. Mr Pizer's submission therefore, was that it was only with respect to requests to cancel permits based on that ground that sub-section (6) and (7) could be resorted to. There is nothing in the wording of those sub-sections which contains any such restriction, nor in my view is there any incongruity in permitting the words to operate with the apparent width which they have on the page. The effect of sub-section (7) is to prevent a second Tribunal from "second guessing" the determination of the first Tribunal on the basis of an alleged material mistake arising out of one of the very matters considered by the first Tribunal.

28. I accept Mr Montebello's submission that there was no review application relative to the issue upon this request is based viz. Amendment L21. It did not exist at the time of the hearing before Mr Terrill and Mr Terrill remained in ignorance of it until his decision was put in final form and despatched.

29. I reject Mr Montebello's contention that Section 52 of the Victorian Civil and Administrative Tribunal Act 1998 precludes the Supreme Court from dealing with this matter. The Court's jurisdiction is restricted only in relation to matters in the Tribunal's review jurisdiction. Section 87 is a piece of non-review jurisdiction. See No. 2 Pitt Street Pty Ltd v Wodonga Rural City Council [1999] VSC 133. It was not suggested that this matter could be dealt with under the Tribunal's review jurisdiction.

30. Mr Montebello submitted it would be wrong to conclude that Council had not made its request as soon as practicable. He said that individual Council officer's even though possessed of knowledge of what had occurred were not in accordance with the rules and practices under which a local council operated empowered to take action. It was necessary for there to be a series of preliminary deliberations and consultations, the obtaining of legal advice which was obtained in February, the submission of material and finally the holding of a meeting. The decision to make the request was apparently taken on 11 April. I am inclined to think that Mr Pizer is correct in his submission that this request was not made "as soon as practicable". Nevertheless, as Mr Pizer conceded, Section 89(3) merely grants the Tribunal a discretion to refuse to consider the request unless it is made as soon as practicable. It does not prohibit the Tribunal from entertaining a request which is not made as soon as practicable. In my view it is important in considering the discretion granted by Section 89(3) to consider what the consequences of delay in making the request are to the permit holder and indeed any other relevant party. It was common ground that this issue was first broached with the permit holder in mid-February, that is, admittedly almost two months after the publication of the Tribunal determination. I must note however that the Christmas-New Year break intervened. More significantly, no particular issue of prejudice was urged upon me by Mr Pizer apart from the general issue of the length of the delay. Accordingly, accepting that this request has not been made as soon as practicable, I do not believe that that in itself ought to lead to its dismissal.

31. In Glenn v Shire of Delatite [2000] VCAT 505 Mrs Bruce considered what the word "grant" meant in Section 89(1)(b)(iii) which grants a right to an objector to seek the cancellation or amendment of a permit in the case of "any material mistake in relation to the grant of a permit". Section 89 is part of the same complex of provisions as Section 87 and there is every reason therefore to conclude that the word "grant" is of the same purport here as in Section 87(1). At paragraph 206 Mrs Bruce after considering extensive submissions said:

"In my view, the word "grant" in Section 89(1)(b)(iii) means what it says; but this also includes the "issue" of the permit following the grant. The mistaken question is intended to be one that goes to the Council's decision on the application. The same expression is also used in Section 87(1)(b) of the Act, which is the power to amend where there has been a material change in circumstances. If it is a matter of choosing between whether "grant" means "issue" or not, then the use of the word "grant" is more appropriate to the decision to grant, than to the administrative action of issuing the permit. But the administrative action of issuing completes the grant; and I do not see any intention in these provisions to distinguish between the decision to grant and implementation of the decision by issuing the permit. Specifically in relation to Section 89(1)(b)(iii), I find that both the decision to grant and the issue of the permit are parts of "the grant of the permit" in relation to which a material mistake may give rise to an order for cancellation or amendment."

32. I respectfully agree. I do not understand Mrs Bruce to be concluding however that the material mistake must in all circumstances be made by Council.

33. The effect of Mrs Bruce's analysis is that the "grant" of a permit is a multi-staged process, the primary element of which is the decision by the Responsible Authority or in certain circumstances this Tribunal, that the permit should be given. The final concluding and perfecting stage is the issue of the permit. I reject Mr Pizer's submission that the permit in question here was "granted" on 1 September 1999. Whatever may be the situation where an amendment is of the "minor" description referred to in Section 73 of the Planning and Environment Act 1987, it would in my view be an abuse of language to suggest that where as here

(a) the amendment is material and not merely minor; and

(b) the process of amendment is effected by the issue of a new "stand alone" amendment bearing a new date.

That the amended permit was "granted" on the date that the original permit was. The permit issued 1 September 1999 was for a simple two level house; the permit bearing the issue date 14 December was for a house with two storeys and an attic. The developments allowed by the two permits are different and the permits and their grant should therefore be regarded as separate subject matters.

34. It is immaterial to determine whether the permit upon which the Sarics now wish to act was "issued" (that being the final step in the process of "grant") on 14 December (being the date of issue which it bears) or 22 December being the date when it appears it was actually printed and signed. In either event the grant took place no later than the material mistake which I will hereafter describe.

35. Mr Montebello submitted that there were two material mistakes, one made by the Tribunal and the other made by the Council. In my view the contention that the Council made a material mistake is unsustainable. I did not hear evidence from any Council officer. Mr Montebello handed me a copy of an advice from the Department of Infrastructure to Hobsons Bay Council, date stamped by Council on 13 December 1999, giving particulars of Amendment L21. Whether in the circumstances the Council and the necessary officers were cognisant of the Amendment on that day, they most certainly were by 22 December. By 22 December, Council was aware both of Amendment L21 which is date stamped at the Council 13 December and of the Tribunal's determination which is date stamped on 15 December. I infer that Council proceeded upon the footing that the Tribunal's determination as an official act was deemed to be valid and effective until set aside by a Court or Tribunal of competent jurisdiction. It has not been demonstrated that this view was in any way mistaken. Indeed, the premise upon which this application is brought is that this was the correct view of the law for the Council to take. The Council therefore made no mistake.

36. It is clear from the narrative given already that the Tribunal completed its determination ignorant of Amendment L21 and ignorant that the ultimate effect of the publication of its determination would be to require the Responsible Authority to issue a permit which the Scheme in its then form prohibited.

37. The necessary ground for the grant of the relief sought by the Council is therefore made out.

38. I turn then to the various discretionary grounds relied upon by Mr Pizer as supporting a refusal of Council's request upon discretionary grounds. As to the first of these grounds, it must be conceded that Mr Pizer's clients are victims of "a cruel twist of circumstances" if this request is granted. Given the timing of events, the Tribunal's determination might just as easily have been despatched on 12 December and so be immune from the attack now mounted upon it. I accept this as a factor pointing away from grant of the request. On the other hand every change of the law leads to the anomalous and to some minds unjust situation that affected individuals whose circumstances are not materially different receive a more or less favourable treatment depending simply upon the point at which their matter is determined, whether before or after the change of rules. Since no legal rules are set in concrete this phenomenon is an inherent aspect of the rule of law. It is easy to focus on potential interpretations of events whereby the fact of the Sarics' development turned upon the speed with which the Presiding Member wrote his determination; the speed with which it was typed; and the speed with which the Registry acted in processing and dispatching it. None of these matters have anything to do with planning merits, nor are they in any way within the control of the Sarics. On the other hand an exhaustive analysis of the fate of this permit or permits and any other will show that the time-line is affected by a multitude of events including the time within which the development proponent himself chooses to act; the speed within which his consultants prepare and submit plans and applications; the diligence with which matters are brought forward in the Responsible Authority's Planing Department and placed on the agenda for determination by full council or a committee; time lines may also be affected by the acts and omissions of vendors of property; building and demolition contractors and so forth. A proponent may lose the opportunity to carry out what for him is a more favourable development because of delays at any of these points for which he may bear a varying degree of responsibility or none at all.

39. As to the second consideration, for reasons already given, I conclude that in these circumstances the Tribunal does have power under Section 87 to revisit its earlier determination. I agree that it would be an unseemly spectacle for one Tribunal Member to "second guess" the decision of another and totally subversive of the rule of law and the concept of final and binding determinations which is inherent in the power to hear and determine disputes. This is however a clear case. I am not asked to take a different view on a point of discretion from the one taken by my predecessor, I am asked merely to give effect to a clear prohibition which now exists in the Planning Scheme which it is accepted on all hands my predecessor was legally bound to give effect to and would unquestionably have given effect to had he been aware of Amendment L21.

40. As to the third consideration, I have already accepted that there was an undue delay in bringing this request. In the absence of any evidence of particular prejudice to the permit holder however, I do not believe that this consideration should bear much weight.

41. As to the fourth consideration, to permit the permit dated 14 December 1999 to stand would entail a flat contravention of the Planning Scheme. The Minister obviously concluded that this prohibition was of such importance that he was justified in bringing it in without advertising or consultation. I cannot therefore accept that the disconformity between the Scheme and the permit was merely a "technical departure from the Scheme" as Mr Pizer suggests it is.

42. As to his fifth and final point of discretion, I am not persuaded that it is a proper approach for the Tribunal in effect to give the green light to a direct breach of the Scheme upon the basis that there will apparently be exceptions made elsewhere in the area to the height limit.

43. The consideration which to my mind points, and points strongly in favour of exceeding to a Council's request is that to do otherwise would allow a permit to stand which is directly prohibited by the Scheme. The circumstances surrounding the making of the amendment and its emphatic terms, demonstrate that the Minister treated this issue as one of high importance. That consideration to my mind outweighs whatever significance might attach to the discretionary factors relied upon by Mr Pizer favouring the rejection of this request.

44. The result is an unhappy one for all concerned. A relatively straight forward matter for the Responsible Authority has become a costly and complex dispute. Mr & Mrs Saric are deprived of the opportunity of completing the development of their choice. The Tribunal Member who heard and determined the initial application with admirable expedition has been placed in the embarrassing situation of having his determination modified in circumstances for reasons wholly beyond his control.

45. For reasons which I have given however, I believe that this result must follow from the unhappy circumstances to which all these people have been subjected.