Saric v Hobsons Bay City Council [2000] VSC 476

27. On 13 December 1999, the day before the issue of the decision of the Tribunal on the conditions review, Amendment L21 to the planning scheme, relating to an area which includes the subject property, was gazetted with immediate effect. Clause 159-6.2 of the amendment includes the following sentence:

A permit may not be granted to exceed the maximum building height specified in the table to this schedule.

The table shows the "maximum building height" as "Two Storeys".

32. On or about 22 December 1999 the Council issued an amended permit, backdated to 14 December 1999 and described as number P99.049 (Amended), from which had been deleted the conditions which the Tribunal had on 14 December directed to be deleted, including condition 1(a). Thus at this stage the appellants had a permit for a house on three levels.

35. On 5 May 2000 the Council applied to the Tribunal under section 87 of the Act to amend the amended permit by reinstating condition 1(a) ("the section 87 application"). The hearing of the section 87 application took place before the Deputy President on 9 August 2000 and the Council relied on the ground set out in section 87(1)(c), which reads as follows:

87. What are the grounds for cancellation or amendment of permits?

(1) The Tribunal may cancel or amend any permit if it considers that there has been -

(c) any material mistake in relation to the grant of the permit;

42. On 15 August 2000 the Deputy President delivered a decision in the following terms:

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.

The effect of that decision was to reinstate condition 1(a) to the permit, so that the appellants then had a permit for a house on two levels. It is that decision which is presently under appeal.

48. In his Reasons for Decision the Deputy President noted that it was common ground that at the time of making his decision on the conditions review, the Member was unaware of the existence of Amendment L21 to the planning scheme and that he remained unaware of it until after the decision was sent to the parties on 14 December. The decision of the Member would, in his view, require the Council to issue a permit which was prohibited by the planning scheme as in operation at the date of the making of that decision. That being so, the Deputy President regarded the making of the decision by the Member while unaware of that amendment as a "material mistake in relation to the grant of the permit" in terms of section 87(1)(c) of the Act, and thus as empowering him to amend the permit under that provision, which he did.

51. He said at paragraph 33 (after correction of typographical errors):

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 Act], 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.

60. The principal submission to the Court of Mr Pizer, for the appellants, (who, it will be apparent, had also represented them before the Tribunal) was that, if a material mistake was made by the Member, it could not be said that that mistake had been made "in relation to the grant of the permit". A mistake relating to something which had happened since the permit was granted could not be relevant for the purpose of section 87(1)(c). The original permit was issued on 1 September 1999, and thus the "grant" of that permit was complete on that date. The mistake, if there was a mistake, was not made until 14 December 1999. The issue of the amended permit dated 14 December, in relation to which the mistake was made, could not be described as the "grant" of a permit, Mr Pizer submitted. Accordingly, the Tribunal had had no power to make the decision of 15 August 2000 amending the permit under section 87(1)(c).

63. Mr Pizer submitted that the Act drew a clear distinction between the grant of a permit and the amendment of an existing permit. He referred to section 85, setting out the powers of the Tribunal on an application for review. On a conditions review, the powers of the Tribunal are limited to those in sections 85(1)(e) and (g); the only power of the Tribunal to grant a permit is the power set out in section 85(1)(b), which is not available on a conditions review. Those provisions read as follows:

(1) After hearing an application for review, the Tribunal may -

(b) in the case of an application for review of a refusal or failure to grant or a decision to grant a permit -

(i) grant the permit and direct the responsible authority to issue it; or

(ii) grant the permit, direct that that permit must or must not contain any specified conditions and direct the responsible authority to issue the permit;

(e) direct that a permit must or must not contain any specified condition; or

(i) it upholds an application for review of a condition specified in a permit on the ground that the responsible authority had no power to impose the condition; and

(ii) it considers that the permit should not or would not have been granted without the condition.

78. Thus, Mr Pizer submitted, on the conditions review the Member had had no power to "grant" a permit, and his decision of 14 December 1999 was simply a decision under paragraph 85(1)(e), which he was empowered to make, to amend the original permit by the deletion of certain conditions. The order of the Tribunal was not expressed as granting a permit and directing it to issue under paragraph 85(1)(b), because on a conditions review the Tribunal was not empowered to make such an order.

81. He submitted further (referring to paragraph 33(a) of the Tribunal's reasons for decision, cited in paragraph 11 above) that whether the amendment was "material" or "merely minor" was not relevant. Section 73, to which the Deputy President referred, reads as follows, taken with section 72:

The owner of land, or a person with the consent of the owner, may ask the responsible authority in writing to amend a permit which applies to the land.

The responsible authority may amend the permit if it is satisfied that the amendment -

(a) does not change the effect of any condition required by the Tribunal; and

(aa) does not change the effect of any condition required by a referral authority unless this is acceptable to the relevant referral authority; and

(b) does not adversely affect the interests of a relevant referral authority, or is acceptable to the relevant referral authority; and

(c) will not cause an increase in detriment to any person; and

(d) does not change the use for which the permit was issued other than a minor change to the description of the use.

93. Mr Pizer referred to the decision of Ashley J in Kantor v Murrindindi Shire Council (1997) 18 AATR 285 at 319, where His Honour said:

In his final submissions Mr Middleton, senior counsel for the plaintiffs did not contend that amendment of a permit may only be granted by a responsible authority if it is "minor" - see the heading to s.72 of [the Act]. The word "minor" forms no part of the verbiage of s.72 and where found in s.73(d) it refers only to the "use" of land.

97. As to "the issue of a new `stand alone' amendment bearing a new date" (as to which see paragraph 33(b) of the Tribunal's reasons for decision cited in paragraph 11 above), the expression "'stand alone' amendment" may have been intended to read "'stand alone' permit" (see paragraph 20 below). In that context, Mr Pizer submitted that the amended permit had been issued by the Council as at the date of the amendment, to replace the original permit, simply for reasons of administrative convenience for all concerned. In support of that proposition, he pointed out that the amended permit bore the same number as the original permit. The decision of the Tribunal on the conditions review was, he submitted, a decision to allow the application for review and to direct, pursuant to section 85(1)(e), that certain conditions be deleted from the original permit; it was not a decision to grant a new permit.

100. Accordingly, Mr Pizer submitted, the Deputy President had had no power to amend the permit, because if there was any mistake in the making of the decision on 14 December 1999, it was not a mistake "in relation to the grant of the permit" in terms of section 87(1)(c) of the Act, and it was not suggested that any of the other grounds contained in that sub-section was available.

103. Having considered the matter, I accept that submission of Mr Pizer. I would say also that, if the process set out in the passage from the reasons for decision of the Deputy President which appears in paragraph 11 above were to be adopted, a difficulty would arise in that the availability of an amendment to a permit in circumstances similar to those in question here would turn, at least in part, on whether the amendment was "material and not merely minor". This is a subjective question, the answer to which will be differently perceived by different people, and by different parties. A responsible authority, an applicant for an amendment, and an objector to that application might all judge the materiality of the amendment on different criteria and reach very different conclusions. (The concept of "a minor change to the description of the use" appearing in section 73(d) does not give rise to that difficulty.)

106. The expression "'stand alone' amendment" appearing in the passage in paragraph 11 above is not entirely clear to me in the context, but is presumably intended to refer to the amended permit. However, the amended permit cannot be described as an "amendment". The phrase "stand alone" does not appear in the Act. The Deputy President seems to have employed it as a means of expressing his view that the amended permit was a new permit, granted by the Tribunal on 14 December.

110. Mr Pizer's next submission was that there was, in fact, no "material mistake" in terms of section 87(1)(c), and that on that ground also, the Tribunal had not had power to make the decision to amend the permit. Amendment L21 to the planning scheme provided that "A permit may not be granted to exceed" two storeys (see paragraph 6 above). It said nothing to prohibit the amendment of an existing permit to allow the construction of a building of more than two storeys. Accordingly, he submitted, the Member had made no mistake in his decision, but had applied the law as it existed at the date of the making of that decision, consistently with Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259.

113. With some regret, I accept that submission also. The intention of Amendment L21 may well be to ensure that no building of more than two stories is constructed in the relevant area. However, the drafting of that amendment does not seem to me to be apt to achieve that intention. Stephen J said in Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 649:

Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no [part] of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St Mellons RDC v Newport Corporation [1952] AC 189 at 191, `If a gap is disclosed, the remedy lies in an amending Act' and not in a `usurpation of the legislative function under the thin disguise of interpretation'.

117. Nevertheless, courts have from time to time found that it is appropriate to read words into a legislative provision in order to avoid what they have regarded as a drafting oversight, and to achieve what they have perceived to be the manifest intention of the legislature. See for example Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 35 ALR 151 where the High Court, by a majority of four to one, read words into section 80C(3) of the Income Tax Assessment Act 1936. However, that course does not appear to me to be appropriate in this case. Considerable redrafting would be necessary to achieve what I have found may be the intention of the amendment. That being so, I cannot even be certain that that is the intention.

120. Accordingly I find that there was not a "material mistake" in terms of section 87(1)(c) in the decision of the Tribunal made on 14 December 1999, and that on that ground also, the Tribunal had no power to make the decision of 15 August 2000 which is here under appeal. Thus on each of the first two grounds on which Mr Pizer relies, I find there to be a "vitiating error of law" in terms of the well-known passage in Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18. Having reached that conclusion, it is not necessary for me to consider his interesting third ground.

123. There will be orders, as sought in the Notice of Appeal, that:

1. The order of the Tribunal in Application for Review No. 2000/034841 be set aside.

2. That the first respondent issue an amended permit No. P99.049 with sub-condition (c) of condition 1 deleted.