Harvey v Mutsaers
[2011] VSC 23
•16 February 2011
| 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 |
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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 | |
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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.
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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 three months had elapsed since the expiry of the permit, the Council had no power to extend the permit under the Planning Act.
The Mutsaers applied to the Victorian Civil and Administrative Tribunal under s 81(1) of the Planning Act to review the Council’s decision not to extend the permit. They referred to the power given to the Tribunal by clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’) to argue that the Tribunal should extend the permit.
Clause 62 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 is in the interests of justice to do so.
The Tribunal relied upon clause 62 to extend the permit. The question before this Court, on appeal from the Tribunal, is whether the Mutsaers’ permit could be extended by the Tribunal upon a request by the Mutsaers made more than three months after its expiry.
Tribunal’s Decision
The Tribunal found that the permit had expired on 26 February 2008. It held, however, that although the Council could not extend the permit, clause 62 enabled the Tribunal to do so, if it were in the interests of justice.
In its reasons, the Tribunal referred to a number of decisions of the Tribunal confirming that it could entertain a request to extend a permit notwithstanding that the request had been made outside of the three month “period of grace”. It referred in particular to Waraglen Developments Pty Ltd v Maroondah City Council.[2] It noted that in the case before it, the Council had determined the application rather than refusing to accept it and expressed the view that this narrowed the jurisdictional challenge under consideration, since either a decision had been made that was capable of being reviewed or s 4(2)(c) of the VCAT Act could be invoked to deem the decision to be capable of review, whether or not that decision was beyond the power of the Council. It followed that a valid application for review had been instituted under s 81(1)(a) of the Planning Act.
[2][2008] VCAT 1608 (31 July 2008) (‘Waraglen’).
The Tribunal, in the interests of comity and regularity, followed the reasoning in Waraglen. It concluded that failure to comply with s 69(1) of the Planning Act was a failure to comply with a planning enactment and that a planning permit does not expire irrevocably after the three month grace period. The Tribunal then considered whether it was in the interests of justice to exercise its discretion to disregard the non‑compliance. The Tribunal found that the Mutsaers could show an acceptable reason for the delay in applying for an extension of the permit, namely a reasonably held belief that plans had been endorsed under the permit. Had this been the case, the permit would have expired on 26 February 2010, which, while outside the three month period referred to in s 69(1) of the Planning Act, represented a much smaller delay. The Tribunal concluded that it was appropriate to grant an extension of time for the completion of the development under the permit and that a two year period would be appropriate, having regard to the planning merits of the development.
Mr and Mrs Harvey now seek leave to appeal from the Tribunal’s orders made on 23 July 2010. They say that if leave is granted, the appeal should be heard instanter, that orders 2, 3 and 4 made by the Tribunal should be set aside and that in lieu of the relevant orders, the Mutsaers’ application for review should be dismissed.
Questions of Law on Appeal
The questions of law identified in the draft Notice of Appeal are as follows:
Question 1:Is an owner or occupier of land to which a planning permit applies entitled, pursuant to s 69(1) of the Planning and Environment Act 1987 to ask a responsible authority for an extension of time with respect to that permit, more than three months after the expiry of that permit?
Question 2:Alternatively, if a request is made in the terms contemplated in question 1 above, is the responsible authority empowered to entertain such a request and to make a decision to either grant that extension or to refuse it?
Question 3:If a request has been made in the terms contemplated in question 1 and the responsible authority has refused to entertain such a request, or has refused to grant the extension sought, is the Tribunal empowered to rely upon cl 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure by the person who made that request to do so within three months after the expiry of that permit (as otherwise required by s 69(1) of the Planning and Environment Act 1987) and proceed to determine any application for review brought before it from such refusal by the responsible authority and grant the extension sought?;
Question 4:Alternatively, if a request has been made in the terms contemplated in question 1 above and the responsible authority has refused to entertain such a request, or has refused to grant the extension sought, is the Tribunal empowered to rely upon cl 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to confer jurisdiction upon itself to proceed to determine any application for review brought before it from such refusal by the responsible authority and grant the extension sought?
Does clause 62 allow the Tribunal to extend the permit?
Although the questions of law on appeal attach to different levels of the decision-making process culminating in the Tribunal’s decision, the fundamental question before the Court is whether the Tribunal has jurisdiction to determine an application for review relating to an application to extend a permit that was made out of time and, if the Tribunal has such jurisdiction, whether it can disregard the fact that the application was made out of time and determine the proceeding on the merits.
The manner in which a responsible authority may extend a permit is set out in the Planning Act. Section 69(1) of the Planning Act provides that before the permit expires or within three months afterwards, the owner or occupier of the land to which it applies may ask the responsible authority for an extension of time. Section 69(2) provides that the responsible authority may extend the time within which the use or development (or any part of it) is to be started or completed. These provisions, construed together, have the effect that the responsible authority may extend a permit upon application by the owner or occupier of the land made before the permit’s expiry or within three months afterwards.
The Mutsaers applied to the Tribunal to review the Council’s decision not to extend the permit. It is trite that the Tribunal’s jurisdiction to carry out a review of a decision made by a responsible authority under the Planning Act is conferred by statute. The basis for the Mutsaers’ application for review was that, by reason of the VCAT Act, the Tribunal could do what the Council could not do, which was to disregard the fact that the Mutsaers had not applied to extend the permit within the timeframe stipulated by s 69(1) of the Planning Act.
The Harveys contend that the Mutsaers’ failure to make application within the timeframe stipulated in s 69(1) of the Planning Act cannot be prospectively remedied by recourse to clause 62. They say that to apply clause 62 to overcome the legal effect of s 69(1) is tantamount to amending s 69(1), in effect, to expand the prescribed three month period of grace to some two years and three months and that the Tribunal is not empowered to circumvent the clear intention of the Parliament in this way. Whatever the characterisation of the Tribunal as a “one stop shop” means, it does not include the power to legislate.
In Rumpf v Mornington Peninsula Shire Council,[3] Balmford J considered the scope of clause 62 by reference to a deemed refusal by the Minister administering the Coastal Management Act 1995 (Vic) to give consent to a surf life-saving club development. Section 61(3) of the Planning Act required the responsible authority to refuse to grant the permit for the development, and s 82AA of the Planning Act prohibited an application to the Tribunal for a review of such refusal. Balmford J held that clause 62 enabled the Tribunal to disregard the failure by the Minister to comply with s 39 of the Coastal Management Act and the deemed refusal to give consent that followed.
[3](2000) 2 VR 69 (‘Rumpf’).
In so doing, her Honour traced the history of clause 62 through s 54 of the Planning Appeals Act 1980 (Vic), which was amended in 1991 to confer jurisdiction on the Tribunal to hear a matter notwithstanding a failure by one of the parties to comply with any Act or regulation.[4]
[4]Victoria, Parliamentary Debates, Legislative Assembly, 19 September 1991, 760.
In response to a submission that it would be contrary to the legislative intention underlying the requirement for the Minister’s consent to coastal development to allow the requirement to be circumvented by the operation of clause 62, Balmford J said:
That submission is undoubtedly correct. Nevertheless, cl 62 exists, and in one form or another has existed for many years, and itself expresses a legislative intention. It is there to be employed, and has been employed over the years by the tribunal and its predecessors to circumvent the intention of Parliament by disregarding, in various circumstances, a failure to comply with an enactment. Parliament has given the tribunal that power, albeit to be exercised only when the tribunal considers it to be in the interests of justice to do so.[5]
[5]Rumpf v Mornington Peninsula Shire Council (2000) 2 VR 69, 89.
Balmford J emphasised the width of the powers conferred on the Tribunal by the VCAT Act. Section 52 of the VCAT Act limits the jurisdiction of the courts in planning matters. Section 85 of the Planning Act gives extensive powers to the Tribunal in determining an application for review under that Act, in addition to the powers under s 51 of the VCAT Act. The original jurisdiction of the Tribunal to grant injunctions and make declarations, conferred by ss 123 and 124 of the VCAT Act, is expanded by the power to make enforcement orders, conferred by s 114 of the Planning Act, the wider declaration powers conferred by ss 149A and 149B of the Planning Act, and the power to cancel or amend planning permits conferred by s 87 of the Planning Act.[6] Her Honour then said:
Thus, cl 62 is consistent with the general legislative approach of giving the tribunal the extensive powers which are necessary to enable it to resolve planning issues which arise in the community, and to resolve them according to the merits of the case. Its powers are in many respects wider than the powers of the responsible authorities whose decisions it reviews.[7]
[6]Ibid 89–90.
[7]Ibid 90.
The Harveys argue that Rumpf was incorrectly decided because the Court effectively sanctioned the Tribunal’s retrospective reversal of the legal effect of the Minister’s deemed refusal which was mandated by ss 61(3) and 82AA of the Planning Act. They contend that the only disposition available to the Tribunal in Rumpf was to uphold the objectors’ application and set aside the responsible authority’s invalid decision, consistently with the limited ambit of the Tribunal’s review jurisdiction.
In written submissions filed some time after the hearing of this application, the Harveys sought to clarify their argument by elucidating the reasons for the amendment of s 54 of the Planning Appeals Act and the mischief sought to be remedied by the amended s 54 and, by implication, clause 62. This enabled them to postulate that there was a clear dichotomy in the legislation between –
(a) on the one hand, the jurisdiction of the Tribunal to hear (or entertain) an application for review; and
(b) on the other, the jurisdiction of the Tribunal to dispose of, or determine, that application in a substantive way other than to dismiss the application.
The Harveys submit that the mischief sought to be remedied by the amendment to s 54 of the Planning Appeals Act and its successors, clauses 62 and 55 of schedule 1 of the VCAT Act, was to put beyond doubt the first limb of the dichotomy, that is, that notwithstanding any perceived (or other) invalidity which is said to have attended a decision of a responsible authority, the Tribunal had, and would have, jurisdiction to hear (or entertain) any application for review. However, they contend that does not mean that the Tribunal has jurisdiction to dispose of, or determine, that application in a substantive way other than to dismiss the application.
The Harveys’ supplementary submissions refer to a number of cases[8] decided prior to the amendment of s 54 in which the Supreme Court concluded that the tribunal lacked jurisdiction to hear a particular application because of a defect at an earlier point in the decision‑making process. At the relevant times there was no provision in the Administrative Appeals Tribunal Act 1984 (Vic) or in the Planning Appeals Act which relevantly corresponded to s 4(2)(a), (b) or (c) of the VCAT Act. The Harveys say that this was a significant factor in the Court holding in those cases that the tribunal had no appeal before it and lacked jurisdiction to consider the application.
[8]BJ Dunkley v Shire of Charlton (1988) 1 AATR 180 and JP Mannix Nominees Pty Ltd v City of Wangaratta (1989) 3 AATR 353.
However, as the Harveys point out, in Traill v Rural City of Wodonga,[9] Judge Jones, the then President of the Administrative Appeals Tribunal, decided that an invalid determination by the responsible authority did not deprive the tribunal of jurisdiction to hear the application. That case involved a challenge to the grant of a permit for a tavern because there had been a failure to give notice of the proposed development to residents of nearby Housing Commission premises. Relying on the decisions of Brennan J in Re Brian Lawlor Automotive Pty Ltd & Collector of Customs [10] and the Full Federal Court on appeal,[11] Judge Jones held that even if the decision of the responsible authority was beyond power and the tribunal therefore had no power to make a decision in substitution, the tribunal could, nonetheless, set aside the decision and remit the matter with directions to the decision‑maker.[12] Having arrived at the conclusion that it had jurisdiction to consider the ‘decision’ sought to be reviewed, the tribunal could proceed to consider “the question of what power it would have in such proceedings to make the decision”.[13] His Honour canvassed the provisions of ss 33, 53, 53A and 54 of the Planning Appeals Act and concluded that the terms of s 33 of that Act permitted the tribunal to cure the defect by directing necessary notices to be given to the persons affected, following which the tribunal would have power to determine the application on its merits.
[9](1989) 3 AATR 107 (‘Traill’).
[10](1978) 1 ALD 167.
[11]Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.
[12]Traill [93].
[13]Ibid [94].
Following the decision in Traill, s 54 of the Planning Appeals Act was amended.[14] Section 54(1) (as amended) was in substantially the same terms as clause 62. New sub-sections 54(2)–(4) provided for the giving of “notice or further notice of the appeal” at the direction of the tribunal, made necessary “by reason of a failure” referred to in s 54(1) and for steps consequential upon the giving of such notice.
[14]Administrative Appeals Tribunal (Planning) Act 1991 (Vic) s 28.
The Harveys submit that the inclusion of sub‑sections 54(2)–(4) in the Planning Appeals Act was a clear indication that “the remedial nature of the new s 54(1) was not to arm the tribunal with retrospective legislative power; the prospective steps sanctioned by those sub-sections were, in any event, not limited by strict time limits. Such steps must be contrasted with situations in which, by reason of a prescribed time limit, an outcome mandated by the legislation (eg. ss 61(3) and 82AA of the Planning Act) cannot, retrospectively, be undone.” They further submit that the mischief sought to be remedied by the amendment of s 54 of the Planning Appeals Act has also been addressed by the inclusion of s 4(2) in the VCAT Act. They submit that clauses 62 and 55 in schedule 1 to the VCAT Act “duplicate” the effect of s 4(2) of the VCAT Act and s 83B of the Planning Act.
The Harveys say that “it is clear from Traill that the tribunal was not then at large such that it was empowered to ‘confer jurisdiction on itself’.” They contend that the amendments made to the Planning Appeals Act in 1991 did not fundamentally alter that position, with the consequence that if the tribunal were to find that the decision of the responsible authority was made beyond power and the tribunal in turn had no power to make a decision in substitution, the tribunal could not, retrospectively, overcome the legal effect of any failure to comply with the applicable legislation in circumstances where that failure could not otherwise be prospectively remedied.
Having regard to this analysis, the Harveys urge this Court not to apply the reasoning in Rumpf. They say that the “mandated legal effect” of s 69(1), which allows for applications for extension of permits to be made only up to three months following expiry, cannot be undone by the Tribunal in reliance upon clause 62. They submit that clause 62 does not fundamentally alter the position that where the decision of the responsible authority was made beyond power, the Tribunal cannot, retrospectively, overcome the legal effect of a failure to comply with the applicable legislation if that failure cannot otherwise be prospectively remedied.
The Harveys submit that this case involves ‘substantive’ non-compliance because no action can now be taken to bring the permit application within the legal requirement in s 69(1) that the application be made within the three month period of grace. That requirement, they say, is an essential component of the right to bring an application. By way of contrast, they say that clause 62 could be used to disregard non-compliance with a requirement to provide documentation in connection with an application or to give notice to certain people, where the act of subsequently providing the documentation or giving the required notice would bring that application back within the legal requirements.
Finally, the Harveys submit that their analysis is supported by observations of Deputy President Macnamara in Castik Investments Pty Ltd v City of Stonnington,[15] that it was not the purpose of clause 62 “to change the substantive law against which rights were to be determined”, and that it did not permit the Tribunal, at least in declaration proceedings, “to disregard the substantive law”. Similarly, in Gulline v Yarriambiack Shire Council,[16] Deputy President Macnamara stated, relevantly, that clause 62 “should only be used to clear obstacles created by technical defaults or perhaps non-compliances with substantive requirements which have wholly or substantially been cured by the time the matter reaches the Tribunal”.
[15]Unreported, Victorian Civil and Administrative Tribunal, No. 1998/73255, 6 May 1999.
[16][2001] VCAT 2148 (1 November 2001) [11].
Analysis and Conclusions
The decision under review by the Tribunal was a decision of the Council to refuse an application made out of time by the Mutsaers. That decision was a reviewable decision under the VCAT Act whether or not the Mutsaers had the right to make the extension application in the first place, because a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision-maker (s 4(2)(b) of the VCAT Act). Similarly, a refusal by a decision-maker to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under an enactment to refuse to make the decision (s 4(2)(c) of the VCAT Act). Accordingly, the Tribunal was properly seized of jurisdiction under s 81(1)(a) of the Planning Act to review the decision of the Council not to extend the permit. There is no question of the Tribunal “conferring jurisdiction on itself”.
The question then arises as to whether, as the Harveys contend, in circumstances where the non-compliance cannot be ‘prospectively remedied’ (that is, the Mutsaers cannot now apply for a permit extension within the period stipulated by s 69(1)), the jurisdiction extends only “to hear (or entertain) an application for review”, and does not include the jurisdiction to dispose of, or determine, the application in a substantive way other than to dismiss the application.
Clause 62 confers on the Tribunal 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, to disregard that failure. It confers jurisdiction to “determine” and to “disregard” in broad terms. It is not expressed to be limited to overcoming technical or procedural non-compliances or non-compliances that could be remedied prospectively, and there is no reason to construe it as being subject to such implied limitations.
In my view, the context in which the precursor to clause 62 was enacted (as described by the Harveys) is insufficient to provide such a basis. I do not accept the submission referred to above (at [28]) that it is “clear” from Traill that the amendments made in 1991 to the Planning Appeals Act and the terms of clauses 62 and 55 of schedule 1 of the Planning Act do not alter the position that the Tribunal cannot overcome the legal effect of failure to comply with legislation unless that failure could otherwise be prospectively remedied. The clearest indication of what clause 62 permits is contained in the language of clause 62 itself, and the legislative history proffered by the Harveys does not explain why clause 62 should be limited in the manner suggested. In particular, the amended notice requirements in sub-sections 54(2)–(4) of the Planning Appeals Act and clause 55 of schedule 1 of the VCAT Act appear to do no more than to provide that the tribunal may order notice to be given of the proceeding in which a failure to comply with an enactment has been identified.
In oral submissions, counsel for the Harveys also referred to the impermissibility of treating the Tribunal as if it were “armed” with “retrospective legislative power” by reference to the decision in R v Momcilovic,[17] in which the Court of Appeal stated, in the context of the interpretative obligation imposed on the courts by s 32 of the Charter of Human Rights and Responsibilities 2006 (Vic), that the line between interpretation and legislation must not be crossed.[18] Here the question is not how the Tribunal should engage in the task of statutory interpretation, but what it is empowered to do by a particular legislative provision. That provision, on its face, permits it to hear and determine a proceeding under a planning enactment, despite a failure to comply with that or any other enactment, and to disregard that failure in determining the proceeding. Nothing the Court of Appeal said in Momcilovic requires that provision to be read down or limited in the manner suggested by the Harveys.
[17](2010) 265 ALR 751 (‘Momcilovic’).
[18]Ibid 760, 783.
The terms of clause 62 give the Tribunal not only the jurisdiction ‘to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment’ but also the power, ‘in doing so’ (that is, in determining the proceeding), ‘to disregard that failure if the Tribunal considers it in the interests of justice to do so’. While it could be argued that the first limb applies only to the Tribunal’s jurisdiction to entertain an application for review, the second limb explicitly permits the Tribunal to disregard the failure to comply with an enactment not only for the purpose of being seized of the matter, but also in order to determine the substantive issues in the proceeding.
It follows that I do not accept that the dichotomy proposed by the Harveys bears on the construction of clause 62 and the obligations of the Tribunal when carrying out a review of the decision of the Council. Once the Tribunal has jurisdiction to ‘hear’ the application for review, it may proceed to determine the review on its merits.
So to hold is not to enable the Tribunal to ignore the mandate of the legislature or to engage in legislation itself. Rather, it is to construe clause 62 consistently with the VCAT Act as a whole, and the powers that are conferred on the Tribunal by the Planning Act. That the discretion in clause 62 may be exercised to allow something to occur that could not occur under the Planning Act alone does not make the exercise of discretion under clause 62 an exercise of legislative power.
This is not a case in which the Tribunal, in disregarding the Mutsaers’ non-compliance with the timeframe in s 69(1) and determining to extend the permit, subverted the will of the legislature by doing something that the legislature had expressly prohibited. Section 69(1) of the Planning Act clearly contemplates that a permit may be extended after it has expired. It is therefore not ‘mandated’ by the Planning Act that a permit cannot be extended after its expiry. Nor is this a case where the governing legislation provides that there can be no review of a decision to refuse to extend a permit. There is some flexibility in legislative arrangements for the extension of permits, and the practical effect of employing clause 62 to hear and determine a matter that involves non-compliance with the timeframe in s 69(1) is not to override but to extend the effect of those arrangements. In this case, it was open to the Tribunal to treat the application for an extension of the permit as having been made within time by disregarding the Mutsaers’ non-compliance with the timeframe in s 69(1).
As to the nature of the non-compliance that the Tribunal determined to disregard, I see little difference between a failure to comply with a requirement to give notice before something else happens (such as the making of a decision by the responsible authority) and a requirement that an application be made within a particular period of time. Although notices can physically be given after the something else has happened or commenced to happen, the legislature has, in effect, provided that the notices be given within a particular timeframe (expressed otherwise than by reference to days, months or years).
In my view, whether non-compliance with an enactment can be ‘prospectively remedied’ may be relevant to the application of clause 62 insofar as it directs attention to the practical effect of the non-compliance, which bears on whether it is in the interests of justice to disregard it. However, the fact that non-compliance cannot be ‘prospectively remedied’ is not a limit on the jurisdiction of the Tribunal.
The Harveys point out that the Supreme Court could not do what the Tribunal believed itself to be empowered to do: the Supreme Court has no power to treat the application for an extension of the permit as having been made within time. That is correct. The simple answer is that the Tribunal has been invested with wide powers unavailable to the responsible authority and the Supreme Court to enable the resolution of planning disputes in a speedy and efficient manner, having regard to the merits of the proposal rather than technicalities.
I have paid careful attention to the statements of Deputy President Macnamara relied upon by the Harveys. In my view, they are to be understood as expressing some of the principles to be applied in determining whether it is ‘in the interests of justice’ to disregard a failure to comply with an enactment and are relevant to the exercise of the discretion conferred by clause 62. I agree with the learned Deputy President that the discretion to disregard ought to be exercised cautiously.
In my view, therefore, clause 62 enabled the Tribunal to hear and determine the application before it, and in so doing, to disregard the Mutsaers’ failure to apply to extend the permit within the timeframe specified. It remains to be considered whether there was any error in the Tribunal’s exercise of its discretion to extend the permit.
The Tribunal pointed out that the Harveys did not contest that it might be in the interests of justice to disregard the Mutsaers’ failure. It listed a number of salient factors bearing upon the exercise of its discretion, including the fact that a reasonable explanation had been given for the delay, that the request was made to enable the completion rather than the commencement of the development, and that if a fresh application were made, it would be likely that a permit would be granted. The Tribunal did not accept the Harveys’ argument that an extension of time would undermine their position in the two related review proceedings.
I see no error in the manner in which the Tribunal approached this task.
In Secretary to the Department of Premier and Cabinet v Hulls,[19] the Court of Appeal described guidelines for the grant of leave to appeal under s 148 of the VCAT Act, whilst stressing that the decision whether to grant leave “must always depend upon the justice of the case, as it appears to the court from whom leave is sought.”[20] Ordinarily, the applicant must identify a question of law and establish that there is a real or significant argument in favour of the applicant, at least to the extent that there is sufficient doubt about it to justify the grant of leave. Additionally, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice on the applicant.
[19][1999] 3 VR 331, 335–7.
[20]Ibid 335.
In this case, the decision of the Tribunal is not attended by sufficient doubt to justify the grant of leave. The justice of the case requires leave to appeal to be refused.
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