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austlii:vic/VICCAT/1997/670
appellant. Permit TP4619 cancelled. The Responsible Authority directed to cancel the permit on the ground of material mistake in relation to the grant of such permit, the mistake having arisen from the act or...
A man named Mr Harris got a permit from South Gippsland Council to run a 'pet cemetery' on his land. He told the Council he wanted to give pets a dignified burial instead of dumping them at the tip. However, what he actually did was bury hundreds of frozen dog and cat carcasses (600-900 per month from vets and the RSPCA) in mass trenches and burn the plastic bags, causing smoke complaints from neighbours. The Council had thought 'pet cemetery' meant individual burials like a human cemetery, not mass disposal. The Tribunal cancelled the permit because Mr Harris had made a material misstatement about what he was actually going to do. The Tribunal said that if the Council had known the truth—that this was large-scale mass burial—they would have needed to consult the Environment Protection Authority and would have processed the application very differently. The Tribunal adopted a test that a misstatement is 'material' if it's information the decision-maker would have wanted to know when making their decision.
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The application for a planning permit described the proposal as "To establish a pet cemetery - see letter". Both the Macquarie Dictionary (2nd Edition) and the Shorter Oxford Dictionary described `pets' as domesticated or tamed animals and `cemetery' as a burial ground or place usually set apart for the burial of the dead but do not indicate that a cemetery is or is not usually regarded as being a place where individual bodies are buried.
2 cited instruments linked from this judgment.
The Tribunal is of the view however that the common usage of the word "cemetery" usually infers the separate burial of each body (whether animal or human). Further, the use in the accompanying letter of the following words "I have always felt if an animal has given you ten to fifteen years of pleasure, surely it is entitled to a better place than a tip to be buried in. I am now in a financial position where I can afford to buy a property to bury these animals...." indicated that the proposed use involved the interment of individual animals in separate graves rather than the mass burial in trenches of many hundreds of carcasses at a time.
2. The Tribunal concludes that there has been a material mis-statement of fact in relation to the permit application. In relation to this material misstatement I adopt the following passage from a determination of Deputy President Byard in Appeal No 1996/40863 - Shire of Alexander v G Ariss and the Department of Natural Resources:
"I am not here saying that minor or quite minor or very minor things are necessarily material. I have been misquoted and misrepresented to that effect in the past. Dictionary definitions, particularly concise ones, referring to material as something of great weight or importance, are too broad for this purpose. The question must be considered in the context in which the word is used and in the circumstances to which it relates. My rule of thumb then is to say that a mis-statement is material for the purposes of s.87(1)(a) if a true statement of that which was mis-stated was relevant and of such importance that the person or body making a decision on the application needed to know it or would have wished to know it for the purpose of taking it into consideration in making such decision on the application. Such true statement need not necessarily be decisive. In other words, it need not be of such importance or weight that it would necessarily tip the balance and result in a different decision. Rather it needs to be relevant and of sufficient weight that it should be considered and balanced, if necessary with other considerations, and against other considerations, in making the decision."
3. That whilst further investigations or inquiries it made by the Council may have disclosed the real purpose of the permit application, the description of the use of the land in the permit application as "a pet cemetery" does amount to a material misstatement fact. Whilst the officer empowered by delegation to approve the grant of the permit, Mr Moles, states that "in hindsight" he would have made further enquiries, I accept his evidence that there was no indication in the letter accompanying the permit application that the animals would not be individually buried nor was there any indication that hundreds of carcasses would be disposed of in long trenches each week. It would be easy, also in hindsight, to be critical of the manner on which the application was processed, however the evidence and the facts in this appeal did not indicate that such a criticism would be justified or warranted.
4. The Tribunal concludes that the requestor has been substantially disadvantaged by the failure of the permit applicant to properly disclose the true nature of the permit application and that it would be just and fair in the circumstances to cancel this permit.
5. The permit applicant may, if he so wishes, re-apply to the Responsible Authority for a new permit for the proposed use setting out full details of the proposal and detailed plans indicating the number and th manner in which the animal carcasses are to be disposed of and apply to the Environment Protection Authority for a works approval and a licence to lawfully dispose of the animal carcasses on the appeal site and if necessary vary or amend the proposal to enable planning permission and a works approval and EPA license to be obtained.
1. The Responsible Authority is directed to cancel Permit No TP 4619 issued by it on 5 March 1997.
2. The Responsible Authority must give notice in writing of the cancellation in accordance with Section 92 of the Act and
3. The ground on which the Responsible Authority is directed to cancel the permit is on the ground of a material mistake in relation to the grant of such permit and that the Tribunal considers that the mistake arose from the act or omission of the applicant for the permit.
Shire of South Gippsland
South Gippsland SC
Permit TP4619 cancelled. The Responsible Authority directed to cancel the permit on the ground of material mistake in relation to the grant of such permit, the mistake having arisen from the act or omission of the applicant.