Sweetvale PL v Minister for Planning [2001] VCAT 1426

Sweetvale PL v Minister for Planning [2001] VCAT 1426 - VCAT 2001 case summary — Zoe

[25]

"The fact that the applicant and the responsible authority have agreed for reasons of practicality that they will not object to any evidence on the grounds that it relates to a matter beyond VCAT's jurisdiction, cannot alter the fact that any evidence which does relate to matters which are beyond VCAT's jurisdiction is not relevant to the ultimate determination of the issues properly arising in this case, Thus the Tribunal will hear evidence without objection as to relevance, relating to all issues, but if it decides that the above provisions ousting appeal rights do indeed have that effect, and the Heritage obligations have been excluded, then a component of that evidence will not be relevant to its determination.

The responsible authority's primary contention is that of all the land use and development issues arising in this case, only one - demolition - can clearly be said to be within the Tribunal's jurisdiction.

It is submitted the Tribunal should proceed in this case by making a determination on the question of the extent of its jurisdiction, and deciding on the merits of those issues which it determines are properly within the scope of this application. Next, in accordance with the procedure agreed at the direction hearing, it should proceed to form a view on the merits of the other issues which it concludes are beyond its jurisdiction. This would be on the basis of practicality; if any part of the determination in relation to jurisdiction was found to be wrong on appeal, there would be no need to remit the matter back to VCAT for re-consideration.

The Tribunal does have the power to join other parties to the proceeding (Section 59(1) of the VCAT Act). It would not be appropriate to exercise that power here, however, because that would entirely negate the clear and specific provisions ousting the Tribunal's jurisdiction in regard to issues other than demolition. Besides, the objectors are already parties to the appeal, albeit with limited rights to participate on those issues only."

[26]

Mr Wright immediately objected to this submission as being in breach of the agreement recorded in Direction No 3 of Senior Member Walker's order. After discussions, which included the issue of costs, Mr Smithers obtained instructions to withdraw any contention that the Tribunal has no jurisdiction to consider any aspect of the matter or that the Applicant for review is excluded from making his application for review in respect of the planning controls which are subject to the exemption provisions. He stated the Responsible Authority regarded the development as a significant development and that it was a matter of great importance that the merits be dealt with as expeditiously as possible.

Both Mr Gobbo for the Respondent/Permit Applicant and Mr Townsend for the Melbourne City Council supported this submission and indicated that they would not be contending in any way that the exemption provisions applied to exclude Mr Wright from raising any argument on behalf of his client.

Mr Wright for the Applicant for Review stated that the issuer was now on the table and could not be ignored by the Tribunal, that by reason of Mr Smithers making the contention, the Tribunal is now seized of the point of the application of the exemption provisions and that no withdrawal or concession of any parties can take the issue off the table.

He submitted that jurisdiction cannot be conferred by agreement, which is quite a different matter to that of parties agreeing to proceed on the basis that there is jurisdiction and not to raise the point, and that a most unsatisfactory dilemma is created for his client in that he is not able to argue the point today, research being needed to prepare for argument, and also that as the point has been raised his client is at a high risk of being deprived of a merits review of the decision to grant the permit.

Mr Gobbo considered the matter should proceed, that Mr Smithers had withdrawn the contention and that he, the Responsible Authority and the Council will not be arguing the issue and the Tribunal has not indicated any concern at considering the merits. He submitted it is not correct to say that once a point has been raised it cannot be withdrawn, and that Mr Wright has already raised the point in the proceedings before Senior Member Walker before the agreement was reached, although he conceded that the Directions Hearing was not a full argument of the application of the exemption provisions but rather convened to consider whether a preliminary hearing should be called to consider the matter.

Both Mr Smithers and Mr Townsend submitted it was open to the Tribunal to hear the whole matter on the merits and then hear legal argument at the conclusion of the proceedings on the application of the exemption provisions.

On these submissions the Tribunal made the following rulings:

[35]

He contended the car parking is not ancillary but the excess of car spaces over the Planning Scheme requirements indicates that carparking is intended as a separate use, notwithstanding the reduction in the number of apartments recently proposed.

He undertook an examination of the planning controls mentioned above, and conceded that his case did not involve any consideration of Clauses 3 to 6 of Schedule 1 of Clause 37.04 of the Capital City Zone provisions.

In relation to the Heritage Overlay provisions he submitted Clause 43.01-1 requires a permit for the construction of the buildings and works over the whole site, but that the Heritage Council permit only applies to the existing Mayfair building on the Collins Street frontage, that the exemption provision in Clause 43.01-4 only applies to a number of minor works are not applicable in the present case, and accordingly no exemption provision applies to preclude his client from bringing an application for review under Sub-section 82 in respect of matters under the Heritage Overlay, other than the matters subject to the Heritage Council permit.

He submitted that what is before the Tribunal is a scrambled egg which cannot be unscrambled and for this reason the matter was advertised as a whole, only one permit application was lodged and the Council only issued a single notice of decision for the whole development.

The former practice of making separate applications distinguishing between the exempt and non-exempt controls and of issuing of separate permits or notices of decision for each was not followed.

He submitted that once his client has a right to make an application for review under any provision of the Planning Scheme, Sub-section 82(1) entitles him to obtain a review of "the decision".

He referred to Pearce and Geddes on Statutory Interpretation Chapter 9 at page 222 that this provision was a remedial provision and should be construed beneficially which means (quoting Bull v Attorney General [NSW] [1913] HCA 60; 17 CLR 370):

[37]

He submitted that in the absence of clear words restricting the right to seek a review of the decision, Sub-section 82(1) contains no warrant to restrict the extent of the matters which can be covered, although he did refer to Sub-sections (2) and (3) as referring to the exemption provisions.

He submitted that if the legislation contemplated that there will be situations of partial exemption, the Act should have specified that the ambit of the review of a decision was restricted, and that it is important to divorce the issue of the jurisdiction of the Tribunal from the ambit of the matters which the Tribunal may consider and referred to the National Trust decision to support the proposition that the ambit of the case is defined by the ambit of the planning controls that require a permit.

He argued that the right of review under Sub-section 82(1) is of the whole decision and that his client is entitled to canvass all matters involved in the planning controls, that the right of review should not be limited because some of the planning controls contain an exemption provision, and that the Tribunal does have jurisdiction to hear and determine any issue that arises under those controls.

He referred to Deputy President Julia Bruce's decision in Huczek v Mark Holly and Associates Pty Ltd v Melbourne City Council, which involved the issue as to whether the exemption provisions applied retrospectively to preclude an application for review made before they came into force, where she held that in the absence of clear and unambiguous words, the presumption against retrospectivity should not be displaced and that the Tribunal in that case was able to hear the application for review.

He submitted the same principal applies to the interpretation of Sub-section 82(1) and that once a party is entitled to review the decision he is entitled to ventilate any issue relevant to the decision whether or not an exemption or provision applies to any particular planning control.

He acknowledged that Deputy President Bruce's decision in the Oakford Group v Robert J Carrick & Associates and Melbourne City Council at paragraph 20 was against him and submitted that the decision was wrong.

He referred to the decision of Metro Palace Pty Ltd v Melbourne City Council where the exemption provisions were raised before Ms Moles but the matter was adjourned and subsequently settled.

He also acknowledged that the decision of the Tribunal in TBT (Vic) Pty Ltd v Melbourne City Council and Bourke Hill Holdings Pty Ltd at paragraph 2 determined that the ambit of discretion available to the Tribunal in the context of the application of review was limited to certain matters not subject to exemption provisions. That case also considered the Capital City Zone and Clause 37.04 of the Melbourne Planning Scheme in a way similar to this. However Mr Wright submitted this decision was wrong and that the two members were not legal practitioners.

[44]

At the hearing the Tribunal made the order on the preliminary issue indicated above and gave oral reasons. It now gives the following written reasons.

The Tribunal accepts Mr Smithers' submissions in preference to those of Mr Wright and follows the decisions of Deputy President Bruce in Primavera and the Oakford Group.

The Tribunal considers Sub-section 82(1) is a remedial provision and should be construed beneficially but that the inclusion of Sub-sections 82(2) and (3) together with paragraphs (kc) and (kd) in Sub-section 6(2) are words that limit the operation of Sub-section 82(1) to the effect that the decisions which may be reviewed under Sub-section 82(1) do not include decisions under planning controls which are subject to an exemption provision.

Whilst the notice of decision on its face appears to be a single decision, the Tribunal considers it is not indivisible. It represents the outcome of a number of decisions made by the Responsible Authority under a number of planning controls some of which are subject to exemption provisions and some of which are not. The exemption provisions should be given force and effect in respect of the planning controls to which they apply. It is not relevant to the Tribunal's consideration that the Respondent/Permit Applicant has chosen to make a single permit application to the Responsible Authority or that the Responsible Authority has chosen to issue a single notice of decision. This course of action does not in the Tribunal's view operate to exclude the operation of the exemption provisions.

To conclude that once a party is permitted to bring an application for review under a planning control which is not subject to an exemption provision entitles that party to contest decisions made under planning controls which are subject to an exemption provision in the Tribunal's view negates the exemption provisions and is contraty to the purpose, clear meaning and intent of the planning scheme. The intent of the planning scheme is demonstrated by Clause 37.04-4 which in one part exempts buildings and works from applications for review but in the immediately following paragraphs require a permit for demolition without exemption provisions.

The Tribunal considers that the National Trust decision of the Supreme Court supports this conclusion that the Tribunal may only consider matters that are relevant to the planning controls in respect of which an application for review may be brought, that is planning controls to which no exemption provision applies.

In the Capital city Zone it would be most unusual to find a situation where the construction of buildings and works did not involve some demolition requiring a permit. If Mr Wright is correct, then in all cases where demolition is necessary, an objector using his or her right to bring an application for review in respect of the demolition permit decision is also entitled in that application to contest all aspects of the building and works permit decision, notwithstanding however small the demolition required and the differences between the issues of demolition on the one hand and the buildings and works on the other.

However if there was a case where no demolition permit was required, e.g., in the Queen Victoria Hospital site, the exemption provision would exclude an objector's application for review against the building and works permit decision.

The Tribunal does not accept that such an anomalous situation is intended.

[45]

After this oral decision, Mr Wright sought an adjournment to a Directions Hearing on Friday 1 June 2001 at which a new date could be set.

He stated that his clients need time to prepare and reorganise their case. He indicated that he would wish to discuss with his clients whether there should be an appeal to the Supreme Court on the decision on the application of the exemption provisions and that his clients may consider bringing other proceedings whether in the Tribunal or elsewhere such as applications for declarations in respect of the matter and that these matters should all be heard together, but he had no instructions at that point.

In response, Mr Gobbo submitted that he took no issue with Mr Wright's proposition that he wished to contest all issues. He was prepared to tailor his case quickly and would be ready to re-write their submissions in preparation for the hearing continuing on Friday and considered that all parties were capable of doing so in a short period of time. He submitted that the Applicant would not have to call any further evidence and that in the decision on the exemption provisions results in a contraction of the issues before the Tribunal.

As to whether there are alternative means of challenging the Notice of Decision is a matter for Mr Wright's clients and that if that decision is taken his client will meet such proceedings

He submitted the matter should be stood down until Friday morning which will give the parties Thursday to re-cast their submissions and to confer with their witnesses and that it would be of no damage to the proceedings if the witnesses evidence went beyond the scope of the matters that could be considered.

Mr Smithers supported this position and Mr Townsend for the Council made no objection.

The Tribunal refused Mr Wright's application and directed that the merits hearing would proceed on Friday commencing at 10.00am. The order of the proceedings would be the Responsible Authority first, the Melbourne City Council second and then in order to give Mr Wright more time to prepare the Respondent/Permit Applicant go next followed by the Applicant, subject to the Respondent/Permit Applicant having a right of reply to any material Mr Wright presented.

This would give Mr Wright Thursday, some time on Friday and the weekend to regroup and rearrange his evidence on the contracted range of issues.

In respect of the possibility of other proceedings before the Supreme Court or in the Tribunal it is noted that Mr Wright had not received instructions to commence those proceedings. The decision of the Tribunal is that the matter will proceed, but naturally the Tribunal will comply with an order of the Court.

If Mr Wright's clients wish to bring other applications in the Tribunal they are at liberty to do so and they will be considered in due course. However this application was commenced on 8 January 2001 and his clients have had sufficient time to consider the possibility of such proceedings. The Tribunal considers the hearing of this application should not be delayed because of a belated desire to explore those issues.

The Tribunal is conscious that the effect of the exemption provisions issue being raised in this way has resulted in four of the seven days listed for hearing being lost, notwithstanding the willingness of the Respondent/Permit Applicant, the Responsible Authority and the Melbourne City Council to proceed on a consideration of all the merits evidence. If the matter had proceeded in this way then Mr Wright's client would not have been disadvantaged at all except for the possibility of an adverse finding on the application of the exemption provisions.

At the conclusion Mr Wright requested that written reasons be given for the Tribunal's decision on these interim matters and it is pursuant to that request that these reasons are given.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Legislation Cited (1)