For Minister for Planning - Department of Sustainability & Environment

1. These matters proceeded by way of prompt final hearing on a Practice Day. The originally scheduled hearing for the following Monday had been vacated by me by reason of a Practice Day request by the permit holder, seeking to strike out the application on the basis that the applicant for review had failed to comply with procedural orders requiring further particulars to be provided.
2. As I indicated on the Practice Day, in order to assess whether the matter ought to be struck out, it was necessary to virtually hear the entire short matter. For this reason, the parties had been previously advised to be ready to deal with all issues at the Practice Day hearing. Mr Carey on behalf of the permit holder indicated that he had no objection to this course of action.
3. The facts are relatively straightforward. The responsible authority has granted two permits to the permit holder, each to construct an additional dwelling on land in Jeetho Road, Jeetho. The applicant for review, Mr Wanless, is a neighbouring landowner, who objects to this development proceeding. Mr Wanless has brought his applications under s 87 of the Planning and Environment Act 1987 on the basis that he was not given notice of the applications and had no opportunity to object or bring an application for review in the normal way.
4. As is the case in proceedings of this nature, I must first consider whether there has been a defect in process in the giving of notice. If I am satisfied that there has been such a defect, I must still exercise a discretion as to whether or not the permits in each instance ought to be cancelled. In exercising such a discretion, regard must be had to whether (even if notice had been properly given and objection lodged) the outcome would have been materially different, or whether it is likely that permits would still have issued in similar fashion. This requires some consideration of the planning merits.

1. In relation to the giving of notice, there are two separate issues. For one of the applications, the responsible authority required notice to be given to adjoining owners and occupiers, including Mr Wanless. The permit applicant provided a statutory declaration and, at the hearing before me, gave evidence on oath that notices in the prescribed form had been posted to each of the adjoining owners and occupiers including Mr Wanless. Equally, Mr Wanless produced statutory declarations to the effect that the notice had not been received. In relation to the second permit application, the responsible authority formed a view that the dwelling was to be sited more than a kilometre from Mr Wanless' house and that he was unlikely to suffer material detriment and therefore no notice was required to be given under s 52(1)(a) of the Planning and Environment Act 1987.
2. The first of these matters raises the issue of when notice is "given". Section 52(2) of the Planning and Environment Act 1987 provides that a notice may be given in a number of ways, including by placing a sign on the land, by publishing a notice in a newspaper or by giving the notice personally or sending it by post[1]. In the present case, the evidence of the permit holder is that the notice was given by sending it by post. Although I was faced with evidence by one party that the notice had been posted, and by the other party that the notice had not been received in the post, neither party contested the evidence given by the other and I have no reason to doubt the truthfulness of either party. It may be that this is an instance where the notice has simply been lost in the mail, and I am not called upon in this proceeding to reach a contrary finding.
3. The Act plainly allows for notice to be given by post, and it is the posting of the notice that constitutes the "giving" of notice whether or not that notice is actually received in the ordinary course of mail. Unfortunate though this may be for Mr Wanless, it appears on its face that the permit holder complied with the requirement to give notice and was under no obligation to ensure that that notice was actually received. Although Mr Wanless can rightly claim to be aggrieved by this outcome, there is no failure to give notice for the purposes of s 87 of the Planning and Environment Act 1987, and his first application fails on this preliminary basis.
4. For the second planning application, the responsible authority had reached a view that Mr Wanless would be unlikely to suffer material detriment, and notice was not required to be given to him. Mr Carey on behalf of the permit holder indicated to me that it was not simply open to the Tribunal to form a different view as to whether Mr Wanless should have been notified, but the Tribunal must be satisfied that no responsible authority acting reasonably could have reached such a view. This is a test known as the test of Wednesbury reasonableness[2]. I agree that this is the appropriate test. Whilst it may have been more prudent for the responsible authority to require notice to be given to all adjoining owners and occupiers in the present case, I believe that the responsible authority was acting within the bounds of reasonableness in determining not to require such notice in this instance. For large rural landholdings, it is appropriate for the responsible authority to consider the prospect of material detriment in an objective way, and reach a view that a person is unlikely to suffer material detriment when there is a significant separation distance from the use or development proposed. On the evidence provided to me, I find that it was not unreasonable for the responsible authority to have determined that the second permit application did not require notice to be given to Mr Wanless. Again, it therefore follows that there was no failure to give notice for the purposes of s 87 of the Planning and Environment Act 1987, and the second application also fails on this basis.

1. Given the matters were argued before me, and despite both matters failing on the issue of notice, it is perhaps still appropriate to offer some comments in relation to the planning merits. At the hearing before me, Mr Wanless seemed almost entirely focused on the absence of notice. This was a matter which had been raised at an earlier directions hearing, where Deputy President Gibson had suggested that it was important for Mr Wanless to appreciate that the Tribunal's role in this type of case is not to focus exclusively on process issues, but to arrive at the preferred outcome. This means that Mr Wanless needed to demonstrate how he would be adversely affected, in a planning sense, by reason of the dwellings proposed to be constructed on adjoining land, even if notice had been given and received.
2. Despite being given several opportunities to indicate how he was materially affected, Mr Wanless did not satisfy me that, even if he had been given notice of the applications and the opportunity to object, that the outcome would have been materially different under the Rural Zone then prevailing under the South Gippsland Planning Scheme. At best, Mr Wanless indicated that he thought that two additional dwellings, in combination, were too many for this land holding, and that the area might reach a saturation level through which others (including himself) might be unable to obtain permits for further dwellings on their own land. Mr Wanless did not seek to argue that the dwellings were necessarily inconsistent with the agricultural use of the land under State or Local Planning policy, or other matters within the decision guidelines that pertained to applications of this nature under the former Rural Zone.
3. Mr Strachan on behalf of the responsible authority informed me that the land has, since the permits were issued, been re-zoned from a Rural Zone to a Farming Zone, where there is perhaps a greater policy restriction against the use of smaller rural tenements for additional dwellings. He indicated, quite openly, that Council officers may not have recommended the grant of the permits under this new zoning. However, he also indicated that, even if objections had been received to the original applications under the Rural Zone, then permits would still most likely have been granted on similar terms.
4. I agree with the Council officer assessment. In the circumstances, I would therefore not have been disposed to exercise a discretion to cancel the permits even if I had found that Mr Wanless ought to have received better notice of them. It follows that the applications both fail.
5. Mr Carey on behalf of the permit holder asked that I reserve costs, as did Mr Wanless. I do not encourage a costs application by either party given the events that have transpired, but I have reserved costs as requested.

1. At the hearing, Mr Strachan noted a number of inconsistencies in the permits that had issued, most notably an ambiguity in the land description and the titles requiring consolidation in order to give effect to the permits. He suggested that I might use the s 87 process before me to amend the permits, and provided a draft. Mr Carey indicated that it would be open to the permit holder to use the s 72 process to seek these amendments, and Mr Wanless expressed no view on this issue.
2. I do not believe I should amend the permits 'on the run' in this proceeding. The amendments are at least arguably of some consequence. Given the ambiguity in the two permits, the permit holder will need to seek an amendment under the normal processes. Depending on the process and the extent of amendment sought, it may be that notice of the application for amendment will need to be given to adjoining owners and occupiers.

[1] Section 52(2) relates to notice for the purpose of s 52(1)(d). However, there was no argument before me that suggested a different principle should apply to the giving of notice under s 52(1)(a).

[2] Following the decision in Associated Provincial Picture House v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.