SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2011 0028 | |
| COLIN AND LINDA HARVEY | Appellants |
| v | |
| SIMON AND FIONA MUTSAERS | First and Second Respondents |
| and | |
| MANNINGHAM CITY COUNCIL | Third Respondent |
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JUDGES: | NETTLE, REDLICH and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 February 2012 | |
DATE OF JUDGMENT/ORDER: | 19 April 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 69 | |
JUDGMENT APPEALED FROM: | [2011] VSC 23 (Emerton J) | |
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TOWN AND COUNTRY PLANNING – Planning Permit – Extension – Application to relevant authority for extension of permit after expiration of time prescribed by s 69(1) of Planning and Environment Act 1987 – Refusal of application – Administrative Law – Victorian Civil and Administrative Tribunal (VCAT) – Jurisdiction – Whether, on review of decision of relevant authority, VCAT possessed of jurisdiction under cl 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 to extend permit – Rumpf v Mornington Peninsula Shire Council (2000) 2 VR 69, approved – Traill v Rural City of Wodonga (1989) 3 AATR 107, doubted; Dunkley v Shire of Charlton (1988) 1 AATR 180, J P Mannix Nominees Pty Ltd v City of Wangaratta and Warmilford (1989) 3 AATR 353, considered – Planning and Environment Act 1987, s 69(1); Victorian and Civil Administrative Tribunal Act 1998, Schedule 1, cl 62.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr R Appudurai (Solicitor) | Russell Kennedy |
| For the Respondents | Mr B C Chessell | Maddocks |
NETTLE JA
REDLICH JA
HANSEN JA:
This is an appeal from a judgment given in the Common Law Division. The judge dismissed the appellants’ (‘the Harveys’) application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’). VCAT had reversed a decision of the second respondent (‘Manningham CC’) to refuse an application for extension of a planning permit under s 69(1) of the Planning and Environment Act 1987 (‘the P & E Act’). In effect, the judge upheld VCAT’s decision.
Question of law
The question of law to which this appeal is directed is whether, on an application to VCAT for review of a decision of a relevant authority to refuse an extension of a planning permit under s 69(1) of the P & E Act, VCAT is empowered by cl 62 of Schedule 1 to the Victorian Civil and Administrative Appeals Tribunal Act 1998 (‘the VCAT Act’) to extend the permit notwithstanding that the time in which the appellant was permitted to apply to the relevant authority for extension of the permit expired before the application for extension was made.
The facts
In brief, the facts are that in 2004 the first respondents (‘the Mutsaers’) applied to Manningham CC as the relevant authority for a planning permit for the construction of a dwelling at 10 Fulford Road, Wonga Park.
On 16 June 2005, Manningham CC issued planning permit PLO4/015420 (‘the planning permit’) which allowed the construction of the new dwelling. Construction began in 2006 and a certificate of occupancy was issued…
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- AGLC
- Harvey v Mutsaers [2012] VSCA 69
- Case
- [2012] VSCA 69
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the tribunal was whether it possessed the jurisdiction to extend the permit under clause 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. The tribunal had to examine the scope of its powers in reviewing the decision of the relevant authority and determine if it could grant an extension of the permit. This involved a careful analysis of the relevant statutes and precedents, specifically considering cases such as Rumpf v Mornington Peninsula Shire Council and Traill v Rural City of Wodonga, among others.
In its reasoning, the tribunal noted that while the statutory framework seemed to limit its powers to reviewing decisions rather than making new ones, the case of Rumpf v Mornington Peninsula Shire Council suggested that certain exceptions could apply. The tribunal acknowledged the precedent in Traill v Rural City of Wodonga but also highlighted that other cases such as Dunkley v Shire of Charlton and J P Mannix Nominees Pty Ltd v City of Wangaratta indicated a more restrictive interpretation. Ultimately, the tribunal found that it did not have the jurisdiction to extend the permit beyond what was allowed by the statutory framework.
The tribunal's decision was to affirm the denial of the permit extension, and no further orders were made.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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