Harvey v Mutsaers - [2011] VSC 23

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 4531 of 2010

COLIN AND LINDA HARVEY	Plaintiffs
v
S and FH MUTSAERS	First Defendants
and
MANNINGHAM CITY COUNCIL	Second Defendant

---

JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2010
DATE OF JUDGMENT:	16 February 2011
CASE MAY BE CITED AS:	Harvey v Mutsaers
MEDIUM NEUTRAL CITATION:	[2011] VSC 23

---

ADMINISTRATIVE LAW — Planning — Application for leave to appeal from VCAT — Extension of planning permit for construction of a dwelling — Application for extension made out of time — Power of the Tribunal to disregard failure to comply with time limit — Planning and Environment Act 1987 (Vic) s 69(1) — Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 1 cl 62.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Appudurai	Russell Kennedy
For the First Defendants	No appearance
For the Second Defendant	No appearance

HER HONOUR:

Issues and Proceedings

The plaintiffs, Colin and Linda Harvey, live on a substantial block at 12 Fulford Road, Wonga Park. Their neighbours, Simon and Fiona Mutsaers, own two adjoining blocks at 8 and 10 Fulford Road. In 2004, the Mutsaers applied for a planning permit from the Manningham City Council for the construction of a dwelling at 10 Fulford Road. A permit was issued by the Council on 16 June 2005. Construction of the dwelling commenced during 2006 and a certificate of occupancy issued for it in early 2007.

On 26 February 2007, Council issued an amended permit to provide for the construction of a swimming pool and tennis court at the rear of the dwelling, which required the preparation of amended plans. Condition 22 of the amended permit[1] provided that the permit would expire if one of the following circumstances applied:

(a)The amended plans required by Condition 1 were not received within 12 months of the date of issue of the amendment to the permit;
(b)The development was not completed within two years from the approval date of the plans referred to in Condition 1 of the permit.

[1]Hereinafter referred to simply as ‘the permit’.

It appears that the amended plans were neither prepared nor submitted to Council as required. Accordingly, the permit expired on 26 February 2008. However, the expiry of the permit came to the Mutsaers attention only as a result of other proceedings brought by the Harveys in respect of further permits and approvals obtained by the Mutsaers for the development of 8 and 10 Fulford Road.

As a consequence, on 7 June 2010, the Mutsaers applied to the Council for an extension of the permit pursuant to s 69(1) of the Planning & Environment Act 1987 (Vic) (the ‘Planning Act’). Section 69(1) requires such an application to be made before the expiry of the permit or within three months afterwards. On 15 June 2010, the Council refused the application to extend the permit on the basis that, as more than…

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 [2011] VSC 23
Case: [2011] VSC 23
Decision Date: 16 February 2011

CaseChat Overview and Summary

In the case of Harvey v Mutsaers, the matter before the court involved an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (VCAT). The applicants sought an extension of a planning permit to allow for the construction of a dwelling. The application for the extension was made outside the statutory time limit prescribed by the Planning and Environment Act 1987 (Vic). The primary legal issues before the court were whether VCAT had the discretion to disregard the applicants' failure to comply with the time limit and whether the Tribunal's refusal to grant the extension was lawful.

The court examined the statutory framework and relevant case law to determine whether the Tribunal had the authority to waive the time limit. It considered the statutory provisions under the Planning and Environment Act and the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which outline the Tribunal's powers and jurisdiction. The court found that while the statutory time limit was mandatory, the Tribunal had inherent jurisdiction to depart from the strict application of the time limit in exceptional circumstances. The court held that the Tribunal's refusal to grant the extension was not an abuse of process but rather a lawful exercise of its discretion under the relevant statutes.

Ultimately, the court dismissed the application for leave to appeal, affirming VCAT's decision. The court found that the Tribunal's refusal to grant the extension was within its statutory powers and did not constitute an error of law. The applicants' failure to comply with the time limit was not excused, and the Tribunal was justified in upholding the statutory requirements. The court's decision underscored the importance of adhering to statutory time limits in planning applications while recognising the Tribunal's discretion to depart from these limits in limited circumstances.

Orders