Harvey v Mutsaers

[2011] VSCA 101

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0028
COLIN HARVEY	First Applicant
and
LINDA HARVEY	Second Applicant
v
SIMON MUTSAERS	First Respondent
and
FIONA H MUTSAERS	Second Respondent
and
MANNINGHAM CITY COUNCIL	Third Respondent

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JUDGES:	TATE JA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2011
DATE OF JUDGMENT:	8 April 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 101
JUDGMENT APPEALED FROM:	Harvey v Mutsaers [2011] VSC 23

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APPEAL – Application for leave to appeal – Scope of cl 62 of sch 1 of the Victorian Civil and Administrative Tribunal Act 1998 – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	R Appudurai	Russell Kennedy
For the Respondents	B C Chessell	Maddocks

TATE JA:

1. This proceeding is an application, brought by Mr and Mrs Harvey (‘the applicants’), pursuant to s 17A(3A)(a) of the Supreme Court Act1986, for leave to appeal from a decision of the Honourable Justice Emerton made on 16 February 2011, under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act1998, in which her Honour refused leave to appeal from an order of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) made on 23 July 2010. 

1. The order made by the Tribunal, against the opposition of the applicants, was to disregard the failure of Mr and Mrs Mutsaers to comply with s 69(1) of the Planning and Environment Act 1987 by not applying for an extension of their planning permit (Permit No PLO4/015420.01) before the permit had expired on 26 February 2008 or within three months afterwards. 

1. The Tribunal held that, despite the non-compliance, it nevertheless had jurisdiction to determine the application by the Mutsaers for review of the decision by the responsible authority, the Manningham City Council (‘the Council’), to refuse an extension of time in which to apply for an extension of the permit. Mr and Mrs Mutsaers are named as the first and second respondents to this application.  The Council is the third respondent.  None of the respondents took part in this proceeding, save for an appearance by the Council following a request to be heard on the question of costs.  A letter was received by the Court from Mr and Mrs Mutsaers dated 6 April 2011 which indicated that they will abide by any order of the Court on the basis that no order is sought against them, including no order for costs. 

1. The Tribunal set aside the decision of the Council. It declared that the time within which the development described in Permit No PL04/015420.01 is to be completed is 23 July 2012. In making its orders, the Tribunal relied on cl 62 of sch 1 of the Victorian Civil and Administrative Tribunal Act, which provides:

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests…