26 Whilst to date the Commonwealth has indicated a steadfast disinclination to participate in the proceeding or be involved with the permit application, nevertheless I find that the Commonwealth's interests as a named acquisition authority in the schedule to the Public Acquisition Overlay, as a referral authority and as a nearby landowner are affected by this proceeding. Simply on this basis, the Commonwealth should be a party to this proceeding so that it has the opportunity to make submissions on any matters affecting its interests. Whether it takes advantage of this opportunity is entirely a matter for the Commonwealth.
27 There is no bar to the Commonwealth being a party in a proceeding before the Tribunal. Thus far it has not indicated a desire to participate and was excused from participation in the compulsory conference directed by Member Rickards on 31 March 2006. What reasons the Commonwealth now has for seeking to extricate itself as a party, other than as a matter of principle, Ms De Ferrari declined to reveal.
28 In my view, being a party in this proceeding does no more than provide the Commonwealth with an opportunity to be heard regarding its interests.[10] Whether or not it has obligations to pay compensation under Part 5 of the Planning and Environment Act 1987 or any other obligations will not be determined by this proceeding, which is but the first step in the process of the applicant seeking compensation. Nor does inclusion of the Commonwealth as a party preclude it from taking any action elsewhere that it considers appropriate in respect of the validity or constitutionality of the Hume Planning Scheme.
29 A further reason for rejecting the Commonwealth's application in this directions hearing is that I am not persuaded that the matter of principle relied upon by Ms De Ferrari, that the Commonwealth cannot be bound by a State Act (namely the Planning and Environment Act 1987), is as straightforward in this particular case as she alleges.
30 Whilst Ms De Ferrari relied upon the case of Ventana in support of her submission that the Commonwealth could not be a referral authority under a planning scheme because the Planning and Environment Act 1987 and the planning scheme could not bind the Crown in right of the Commonwealth, the facts in Ventana were quite different to the facts in the present case. Ventana was concerned with Commonwealth owned land (the Moorabbin Airport). It was held that a planning permit was not required to use or develop Commonwealth land under the provisions of the planning scheme. In the present case, the subject land is private land. There is no question that the Hume Planning Scheme and the Planning and Environment Act 1987 apply to the subject land. The Public Acquisition Overlay does not affect Commonwealth land. The referral provisions in the Act operate to ensure that referral authorities are given notice of certain permit applications that potentially affect their interests. They provide referral authorities with powers to object to applications or to impose conditions and for those objections or conditions to be given effect to in decisions making by responsible authorities. Effectively, the Planning and Environment Act 1987 confers powers on referral authorities that they would not otherwise have. These powers are arguably different to an obligation to obtain a planning permit to use or develop land.
31 In my view, the issues inherent in the matter of principle raised and the orders sought by the Commonwealth are complex and would require more detailed analysis and argument to support them than was put before me at this directions hearing. However, I am not persuaded there is a need to pursue these matters at this point.
32 A hearing on the substantive merits of this application for review is due to commence on 25 February 2007. The Commonwealth has been aware of the proceeding since it was lodged in April 2005. It has been named as a party from the outset because of its referral authority status. Whilst it has not sought to actively participate, it is not unusual in the Planning and Environment List for referral authorities to be named as parties but to take no active part in the proceeding. They retain a right to do so if they wish. In the present case, nothing has been put to me, other than a statement of principle, that would explain why the Commonwealth now, at the eleventh hour, finds it so important to be extricated as a party.
33 In conclusion and for the reasons I have given, I am not prepared to make the orders sought by the Commonwealth to remove the Commonwealth as a party and to correct the Tribunal's record on the basis that the Commonwealth is not and never has been a party. Quite apart from the operation of section 83(1) of the Planning and Environment Act 1987, which I consider I am bound by, I consider it is desirable to retain an opportunity for the Commonwealth to participate in this proceeding, if it so wishes, in light of the fact that the issues which are central to the case affect the Commonwealth's interests in the way outlined.
34 No specific order has been made under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 joining the Commonwealth although I consider that strong grounds exist for making such an order, irrespective of the Commonwealth's status as an acquisition authority under the Public Acquisition Overlay and as a referral authority under the Planning and Environment Act 1987. Because of the view I have taken about the operation of section 83(1) of the Planning and Environment Act 1987, I do not consider I need make an order under section 60. However, I note that it would be open to the Tribunal either on its own volition or at the request of a party to make such an order, if that was necessary or desirable.