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Harvey v Mutsaers

Harvey v Mutsaers

Case [2012] VSCA 69 19 April 2012

Jurisdiction

Statutory Interpretation

Administrative Review

Planning & Development Law

Administrative Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harvey v Mutsaers

Details

AGLC: Harvey v Mutsaers [2012] VSCA 69
Case: [2012] VSCA 69
Decision Date: 19 April 2012

CaseChat Overview and Summary

In the matter of Harvey v Mutsaers, the parties were contesting the denial of an extension for a planning permit that had expired. The matter was heard by the Victorian Civil and Administrative Tribunal (VCAT). The applicant, Harvey, sought an extension of the permit as per the provisions outlined in section 69(1) of the Planning and Environment Act 1987. The relevant authority had denied the application, prompting Harvey to seek a review of this decision in VCAT.

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