Victorian Civil and Administrative Tribunal|2004-03-19|Before: Stuart Morris J

Urban Tide PL v Monash CC [2004] VCAT 540 (19 March 2004)

The application for review is summarily dismissed as being an abuse of process.

2 As the land is contained in the Residential 1 Zone, the provisions of clause 55 of the Monash Planning Scheme were applicable to the permit application. In particular, clause 55.01 of the scheme provides:

3 The nature of a neighbourhood and site description is described in clause 55.01-1 of the scheme; and the nature of a design response is described in clause 55.01-2 of the scheme. The content of a neighbourhood and site description (and, for that matter, a design response) is flexible and depends upon the circumstances. In particular, there will be no failure to comply with the requirement that an application be accompanied by a neighbourhood and site description if it does not contain information which is not relevant to the evaluation of the application.

4 Clause 55.01-1 also provides that the responsible authority must inform the applicant in writing, before notice of the application is given (or if it is not to be given, before deciding the application) that the neighbourhood and site description meets the requirements of the scheme and is satisfactory. If the responsible authority believes that the neighbourhood and site description does not meet the requirements of the scheme and is not satisfactory, it may require more information from the applicant under section 54 of the Act. Clause 55.01-1 then provides:

The responsible authority must not require notice of an applicant [sic] to be given or decide an application until it is satisfied that the neighbourhood and site description meets the requirements of clause 55.01-1 and is satisfactory.

This does not apply if the responsible authority refuses an application under section 52(1A) of the Act.

The word "applicant" is obviously a misdescription; and it should be read as if it said "application". Section 52(1A) of the Act enables the responsible authority to refuse an application without requiring notification.

5 The permit application was lodged on 30 June 2003. The application materials consisted of the standard form, the fee, some basic plans and title details

6 On 2 July 2003 the application was allocated to one of the council's planning officers. After a preliminary assessment the officer wrote to the permit applicant, on 15 July 2003, requesting further information pursuant to section 54 of the Planning and Environment Act. The required information included a neighbourhood and site description and a design response. The council also requested a number of other matters in its request.

7 On 19 August 2003 the council advised the permit applicant that it had not received a response to its request.

8 On 1 December 2003 the permit applicant orally informed a council officer that the outstanding information would be submitted the next day. It was not.

9 On 9 December 2003 the council received a request from the permit applicant that there be an additional 14 days to submit the outstanding information.

10 On 15 December 2003 the council reminded the permit applicant of its obligation and required that the information be submitted by 16 December 2003. It was not submitted on that day, although a further promise was made.

11 Then, on 17 December 2003 the council decided to refuse the permit. The application was refused on a single ground, namely:

Inadequate information has been provided resulting in council not being able to adequately determine the application, as required by clause 55.01 of the Monash Planning Scheme.

12 Subsequently the permit applicant lodged an application to review the council's decision to refuse the permit.

13 Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 gives the tribunal the power to make an order summarily dismissing a proceeding that, in its opinion, is an abuse of process. The concept of "abuse of process" is not defined in the Act, but is a flexible concept designed to ensure that the processes of the tribunal are used in good faith.

14 In the present context the legislative scheme is that a planning application for two or more dwellings in a Residential 1 Zone be first considered (or, at least, be able to be considered) by the responsible authority; and not by the tribunal. Moreover the intention of the planning scheme is that before the matter is notified to other persons (if applicable) - and before it is decided by the responsible authority - the application must be supported by a neighbourhood and site description and a design response. Moreover the provisions of clause 55.01 envisage a process in which things are done in a particular order. A failure to follow the strict order does not necessarily mean that there has been some abuse of process, but it may mean that in some circumstances.

15 In my opinion, this is a case where the application for review is an abuse of process. The permit applicant's conduct has effectively denied the responsible authority any opportunity to consider the application on its true merits. Indeed, persons living in the vicinity of the land may also have been denied an opportunity to participate in the making of the decision by the responsible authority. This is not a case where a neighbourhood and site description has been lodged and there is some argument about its content. Rather it is a case where no such document was lodged at all.

16 In these circumstances one possible order would be to set aside the decision of the responsible authority and remit the matter to it. This would enable the neighbourhood and site description, and design response, to be prepared and submitted to the authority and for the matter to then proceed in accord with the envisaged process. This was the course followed by the tribunal in Roche Street Pty Ltd v Boroondara City Council (2003) 15 VPR 57; and, if I may say so, sensibly followed in that case. However the circumstances of this case are quite different. The permit applicant has had ample opportunity to submit the required information. It has failed to do so. A more appropriate course would be to (effectively) require the permit applicant to start the process again.

17 Mr Montebello, who appeared for the council, thought it necessary to query the decision of the tribunal in the Roche Street case. In particular he criticised a comment by Acting Deputy President Byard to the effect that any harm to the responsible authority, if a permit application was held in abeyance while the applicant prepared further information, would be very minor and probably trifling.

18 Mr Montebello claimed that studies conducted at the Monash Council had demonstrated a clear relationship between poor quality applications and the amount of staff time devoted to the application. I was given extracts of this study. [1] Its authors claimed that when council acted as a "coach", as opposed to an "umpire", it imposed a significant additional workload on planning staff. It was said that the total number of days taken to process applications where further information was sought was longer than where information was not sought, even after disregarding the time taken by the permit applicant to prepare the required information.

19 I have no doubt that there is an element of truth in this analysis. But there are other relevant considerations which bear upon the issue. First, the provision of guidance to a permit applicant is a legitimate role for a council to play and will often result in better quality developments. Second, if applications are routinely rejected on the basis of inadequate information, this will often result in either an application to the tribunal or a second permit application to the responsible authority. These further applications will require the expenditure of officer and official time, not just by the tribunal, but more relevantly by the responsible authority. Any "time and motion" study of the type I was referred to would need to evaluate these matters.

[1] City of Monash Statutory Planning - Process Review Report, December 2002, by Supply Chain Diagnostics.

Urban Tide PL v Monash CC [2004] VCAT 540

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Judgment (27 paragraphs)

Urban Tide PL v Monash CC [2004] VCAT 540 (19 March 2004)

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