Matsoukatidou v Yarra Ranges Shire Council
[2013] VSC 299
•7 June 2013
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 01915
| MARIA MATSOUKATIDOU and BETTY MATSOUKATIDOU | Plaintiffs |
| – and – | |
| YARRA RANGES SHIRE COUNCIL | Defendant |
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JUDGE: | MUKHTAR AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2013 | |
DATE OF JUDGMENT: | 11 June 2013 (orders pronounced and unwritten reasons given ex tempore on 7 June 2013) | |
CASE MAY BE CITED AS: | Matsoukatidou v Yarra Ranges Shire Council | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 299 | |
ADMINISTRATIVE LAW ― Natural justice ― Hearing rule ― Victorian Civil and Administrative Tribunal ― Planning matter ― Application for review of administrative decision refusing extension of time on a planning permit ― Limited enquiry ― Final determination of application at a directions hearing ― No objection by applicants ― No adjournment sought ― No denial of procedural fairness ― No substantial injustice ― Leave to appeal refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | In person | |
| For the Defendant | Mr R Appadurai | Russell Kennedy Lawyers |
HIS HONOUR:
The applicants, who are mother and daughter, applied as litigants in person to this Court for leave to appeal from orders made by the Victorian Civil and Administrative Tribunal, as constituted by Senior Member Rickards (in the Planning and Environment List). The orders were made initially on 22 February 2013 at a “Practice Day Hearing”. The orders were corrected subsequently by the Tribunal under its equivalent of the slip rule on 14 March 2013. Nothing should turn on that correction. On the later date, the Tribunal also published written reasons for its decision, expressed to be reflective of the reasons stated at the conclusion of the hearing.
The nature of the review application in the Tribunal was not at all complicated or otherwise remarkable. I shall expose the facts in a little more detail later, but in essence, these were the elements:
(a) the respondent as the responsible authority gave the plaintiffs a planning permit in September 2008 for a typical two lot subdivision of their land in Tecoma;
(b)it was a condition of the permit that the plan of subdivision had to be certified by the council within two years;
(c)the plaintiffs sought and obtained two extensions of the permit to take its currency up to 10 September 2012, that is, four years;
(d)the plan was not certified as required, and the permit expired;
(e)the Council refused another extension; and
(f)the Tribunal affirmed that decision on review.
The applicants complain they were denied procedural fairness. They say it was unfair that the matter came to be determined at a Practice Day hearing which was scheduled to resolve preliminary or procedural issues prior to a final hearing. The applicants were represented by counsel at the Tribunal. Counsel made no objection to the course taken, and engaged in it. An adjournment was not sought.
A denial of procedural fairness is a question of law for the purposes of seeking leave to appeal on a question of law under s 148 of the Victorian Civil and Administrative Tribunal. But, as has become well known since Hulls,[1] it is not enough for an applicant to identify a question of law which is relevant to the grant of relief sought on the appeal. It must show there is a real or significant argument to be put on that question of law at least to the extent of showing there is sufficient doubt about it to justify the grant of leave. “Ultimately what must govern is the justice of the case as is appears to the court from which leave to appeal is sought, and that means justice to all parties not just the applicant”.[2] The respondent contended leave ought be refused because there was no prima facie case on appeal, or, refusal would impose no substantial injustice.[3]
[1]Secretary to the Dept of Premier and Cabinet v Hulls [1999] 3 VR 331.
[2]Hulls at 337, [16].
[3]See Chapter II, r 4.06.
On 7 June 2012 I refused leave to appeal and announced a précis of reasons. What follows is an elaboration of those reasons. I wish to add this at the outset. It has recently been said that it is not the function of Associate Judges on leave applications to in effect adjudicate the appeal.[4] Of course, that must be so. But where, as here, a respondent moves the Court to refuse leave under the rules on the grounds of the unsustainability of the appeal or the absence of injustice in any event, it is all but unavoidable to engage in the similitude of adjudication to a considerable extent. Much will depend, always, on the nature or features of the case and the question of law.
[4]See Neely v Southern Cross Feeds [2013] VSC 238 at [4].
Here, the plaintiffs’ materials on the application were disorderly and not easy to comprehend. But allowances have to be made for litigants in person. The court had to go a long way to distil the facts to make its assessment on the leave question. The issue as I see it under the principles of administrative law concerns the hearing rule, and more precisely, the question of prior notice as an aspect of procedural fairness. But integral to that was something in the nature of a merits review. That is, the plaintiffs sought on this application to point to matters that justified an extension of the time for compliance with the conditions of the planning permit. But they were not contending in the alternative that, assuming procedural fairness, there was a question of law in the exercise of a discretion by the Tribunal. To do so has innate difficulties. As I see it, the second ground really amounts to saying “This is what I was handicapped from arguing because my counsel was taken by surprise on the directions day”.
The application came before the Court three times. On the first return date of 9 May 2013, I was not satisfied that the plaintiffs had served the defendant. On the second hearing date on 22 May 2013 much time was spent trying to clarify from the plaintiffs what they contended to be the question of law. For convenience, in the authenticated order made on 22 May 2013 I recited under the heading of “Other Matters” the problems as I saw them, and the basis of the order on that day that the plaintiffs file proper material to enable the court to understand the grounds of the application. On that day I made the following order (now with emphasis) –
By 31 May 2013, the plaintiffs must file and serve and affidavit exhibiting a transcript of proceedings before the Tribunal on 22 February 2013, together with a statement of any other facts or circumstances by which they intend to contend that they were denied procedural fairness by the Tribunal, and, in particular, stating what steps they would have taken or what evidence or facts they would have been able to obtain and put before the Tribunal had the hearing not proceeded that day.
The plaintiffs filed an affidavit sworn on 31 May 2013 which fell well short of meeting that order. The court now has the transcript but the rest of that affidavit was a collection of documents having nothing to do with this case. They all concerned complaints that were made by the plaintiffs’ neighbours to the Council that her land was being used to store articles including pool tables, lounge furniture and spa baths and that there were shipping containers being brought onto the site, all of which was in contravention of the “Green Wedge A” zoning under the Yarra Ranges Planning Scheme. A “store” and “shipping container store” are prohibited land uses. Avoiding details it appears that the council obtained enforcement orders at the Tribunal and also brought charges in the Magistrates Court for offences under the Act. In addition, the council also served a Building Notice and then a Building Order directed to the plaintiffs requiring them to demolish unauthorised building works. The other documents included are suggestive of troubles between the plaintiffs and the local council. I regarded all these materials as irrelevant although they were sought to be justified by the plaintiffs on the ground that they demonstrated hostility by the council against the plaintiffs which, they assert, permeated into the refusal for an extension of the planning permit and will prevail if she applies for a new permit.
The outcome is: there is really no material put forward by Mrs Matsoukatidou about what evidence she was deprived from adducing had the matter proceeded to a proper hearing. I can only go by some objective matters as appear amongst the Tribunal materials and the plaintiffs’ affidavits. An affidavit was filed by the senior planner on behalf of the defendant concerning the hearing before the Tribunal and some circumstantial matters.
In the end, the requirements of natural justice cannot be reduced to fixed rules. Courts come to apply an intuitive standard of fairness according to the statutory framework and the factual circumstances of each case: see generally Aronson and Groves, Judicial Review of Administrative Action.[5] And as was said pithily in Lam “[F]airness is not an abstract concept. It is essentially practical … the concern of the law is to avoid practical injustice.”[6]
The facts
[5](Thomson Reuters, 5th edition 2013) [8.10] ff.
[6](2003) 214 CLR 1 at [13]-[14] per Gleeson CJ.
The plaintiffs are the registered proprietors of land at 132 Belgrave Ferny Creek Road, Tecoma. On 10 September 2008 the respondent issued a planning permit number YR–2007/1652 under the Yarra Ranges planning scheme for a two lots subdivision. It appears to be a routine two lot subdivision.
There were various conditions applicable to the permit. Condition 4 stated –
This permit will expire if one of the following circumstances applies:
(a)The Plan of Subdivision is not started within two (2) years of the date of this permit, as evidenced by the plan of subdivision being certified by the Council within that timeframe; or
(b)The registration of the subdivision is not completed within five (5) years of the date of certification.
The Responsible Authority may extend the two year period if a request is made in writing before the permit expires, or within three (3) months afterwards.
That condition is consonant with s 68 of the Planning and Environment Act which says where relevant –
“(1) A permit for the development of land expires if-
…
(aa)the development requires the certification of a plan of subdivision or consolidation under the Subdivision Act 1988 and the plan is not certified within two years of the issue of the permit, unless the permit contains a different provision;
As for an extension of time, s 69 of the Act states:
(1)Before the permit expires or within three months afterwards, the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time.
…
(3)If the time is extended after the permit has lapsed the extension operates on the day that the permit expired.
The permit was due to expire on 10 September 2010. The respondent granted an extension of the permit for another year, that is, until 10 September 2011. On 8 September 2011, the council granted a second extension to 10 September 2012. Thus, all up, the plaintiffs were given four years to obtain a certified plan of subdivision for what was a basic two lot subdivision.
An important supervening factor occurred. In November 2011 a Bushfire Management Overlay (“the BMO”) became applicable to the planning scheme affecting the plaintiffs’ land. That was a change from the Wildfire Management Overlay that previously applied. The BMO introduced specific bushfire protection measures for subdivision and building works, such as defendable space requirements and associated vegetation removal. But, as the plaintiffs’ permit predated the BMO, they were still subject to the previous Wildfire Management Overlay. But their land would be subject to the BMO if the permit lapsed and was not extended, and they had to apply for a new permit.
On 26 August 2012 a fire occurred at the premises. A fire does not prevent the plan of subdivision being prepared or being certified. There is no suggestion it somehow prevented the necessary works (surveying etc) from being done.
On 10 September 2012, that is, the day upon which the permit was due to expire, the second plaintiff requested an extension of the permit. In a hand-written note (and disregarding the imperfections of expression) her grounds were “Due the existing house which was burned by an unknown investigated by the Lilidale Police station. We need to clear the arrear from the fire and the asbestos.”
By letter dated 13 November 2012 the plaintiffs were advised that their application extension had been refused. The letter from the planning officer said –
The application is refused on the following grounds:
(1)The applicant has had sufficient time to commence and complete the approved subdivision.
(2)the applicant has provided insufficient justification to reasonably entertain a further extension of time request.
(3)the Wildfire Management Overlay has since changed to a Bushfire Management Overlay, which may result in extensive defendable space requirements, and associated vegetation removal.
On 16 November 2012, the plaintiffs lodged an application in the Tribunal. Paragraph 7 of the application which required them to set out the short statement of the facts in support of the application said this –
On 25 My house was burned by unknow? investigation by Lilydale Police Special unit …
I have on the 10/9/12 request and pay the fees For extension due to debri of the house, and the old sheds to be removed condition of the subdivision to comply with was not Possible because we have to install the gates around the property Council’s request: the removal of sheds and burned house need to be together”.
The reference to sheds requires a reference back to the planning permit. Condition 3 of the planning permit said –
Prior to a Statement of Compliance being issued the sheds on the proposed Lot 1 must be removed from sight to the satisfaction of the Responsible Authority.
A Statement of Compliance is not a prerequisite to the certification of a plan of subdivision. It comes after certification and is something for the subsequent process of registration at the Tiles Office and the issuing of new titles.
The reference to gates leads to an agreement made between the parties under s 173 of the Planning and Environment Act which of itself is not significant for anything it says, although it contains this clause concerning vehicle access in clause 4.3 –
The Owner covenants and agrees that access to the land by any vehicle must only be via the gate as shown on the Endorsed Plan unless prior written consent has been obtained by the Council to allow for an alternate access point to the land.
This covenant or its observance is not a prerequisite to the certification of a plan of subdivision.
What happened at the Tribunal?
The documents show that after the lodgement of the application in the Tribunal, a Practice Day Direction was fixed for 22 February 2013. A notice of practice day hearing was sent to the parties. The notice said “the special purpose(s) of the hearing is or are: to consider service of the application on other persons, in particular the CFA.” The notice also went on to say “it is important that you are aware that if you do not appear or are not represented at the hearing the Tribunal may make orders, including final orders, which may affect your interests.”
The court has a six page transcript of what occurred on that day. The plaintiffs were represented by counsel acting, he said, on instructions from a solicitor. The respondents were represented by a senior planning officer. In response to enquiries from the Tribunal, the planning officer stated that the permit had expired because there was no “heavy weight” plan submitted for certification. This is a reference to the requirement for plans to be on an A3 sized document on paper of a weight and texture similar to cardboard as required by the Titles office and as well-known to professional surveyors. He informed the Tribunal that the matter simply could not have proceeded until there was lodgement of a heavyweight plan, and there seemed to be some issue between the plaintiffs’ surveyor about payment of the surveyor’s fees. An affidavit sworn by that senior planning officer, Mark Raymond Sheehan, shows prima facie that as at September 2011, the plaintiffs’ surveyor told the Council by e-mail that the “Job is dead! …and still owes us money! Do whatever you have with it!”
I shall not reproduce the contents of the transcript. But a number of things are clear.
First, the question whether the application ought to be served on some other persons (which was the special purpose of the hearing) seems to have fallen away.
Secondly, the matter proceeded, with the participation of the plaintiffs’ counsel, in effect as the hearing of the application. The Tribunal by design does not stand on formalities or regimented procedure and as I see it from the transcript, the Senior Member started enquiring into the essential facts to see what the case involved. The reference to joining the Country Fire Authority shows the Tribunal was already seized of the issue concerning the BMO. The matter simply proceeded without resistance by anybody.
I am bound to say I see no sign of the Tribunal “railroading the parties or exerting any undue pressure. The Senior Member sought clarification of the facts of the matter concerning the history of the permit and attention then turned to the significance of the house having been burned down, and the significance of the BMO. There was no complaint by counsel that they were being taken by surprise or had not come to the Tribunal equipped to deal with a substantive application. There was no application for an adjournment. There was simply nothing said. The matter was allowed to proceed in the way that it did. In the end, the critical decisive facts were the prolonged passage of time since the permit was issued in the first place, and the significance of the BMO.
Although the Member gave very brief reasons on the day, the subsequent published short written reasons I think are explicative of the essence of what she was saying. The reasons stated-
(8)Based on the principles outlined in Kantor v Muirrindindi Shire Council:[7]
[7](1997) 18 AATR 285.
Where a request to extend time is made a responsible authority:
·Should treat the applicant as being obliged to advance some reason or material in support of the grant of an extension
·may rightly consider:
oWhether there has been a change of planning policy
oWhether the landowner is seeking to “warehouse” the permit
oIntervening circumstances as bearing upon the grant or refusal
oThe total elapse of time
oWhether the time limit originally imposed was adequate
oThe economic burden imposed on the landowner by the permit
oThe probability of a permit issuing should a fresh application be made.
(9)In the circumstances of this application there has been a significant change in planning provisions in relation to the application of the Bushfire Management Overlay. As stated in the refusal by the Responsible Authority the site comprises heavy remnant vegetation ad it is likely that a large area of defendable space vegetation clearance would be required which would need reassessment under the new provisions.
(10)The Responsible Authority formed the view that as the permit had not been acted upon since it was originally issued in 2008 that the owner could be said to be “warehousing” the permit.
(11)The owner submitted there had been a fire on the land in August 2012 but this is not considered to be an intervening circumstance bearing upon the grant or refusal of the extension request. The permit is for a two lot subdivision and the consequences of the fire do not have a relationship to the certification of a plan of subdivision.
(12)There has been a considerable lapse of time since the original granting of the permit in 2008 and it is noted that the owner has been given two previous extensions of time in order to comply with the provisions of the permit.
(13)In relation to the period of time it is considered that the original time limit imposed in the permit was sufficient and with the two additional years there has been ample time to comply with the permit.
(14)The fire may have placed some form of economic burden on the land owner but this has not been specified in terms of impact on complying with the permit to subdivide the land.
(15)It is considered that a new permit would not be automatically issued given the change in relation to the overlay provisions affecting the land and the consequential loss of the dwelling due to the fire. It is expected that in any new permit application the proposed subdivision would need to be rigorously assessed under the new overlay provisions particularly, as stated by the Responsible Authority, the land contains significant remnant vegetation.
(16)The owner has had sufficient time to commence the subdivision and the reasons given for the extension do not justify an extension being granted.
I would describe what happened before the Tribunal as the Senior Member seizing on the plain and uncontroversial facts and acting as a matter of expedition in a matter which was capable of quick determination. And the Senior Member did having regard to the factors affecting the exercise of the discretion in extension applications as identified by Ashley J of this Court in Kantor. What mattered first, was that the plaintiffs had been given two extensions already. Secondly, and most importantly, there was the intervention of the BDO. This attracted the consideration as stated by Ashley in Kantor that the responsible authority (i.e., the Tribunal on review) may rightly consider[8]
… the probability, if it be the case, that if a request to extend time was refused and a fresh application for a permit was then made, it would be granted. Such a conclusion might perhaps be reached if planning policy remained unchanged …
[8](1997) 18 AATR 285 at 314.
The plaintiffs’ counsel told the Tribunal that a plan of subdivision had actually been lodged with the council. The council informed the Tribunal that there had been no heavyweight plan submitted for certification and that one of the referral authorities, Southeast Water, had not consented to certification. That latter fact was incorrect as explained in an affidavit by Mr Sheehan on this application.[9] But it matters not. The fact was that a heavy weight plan was required as a matter of established manner and form for certification and Torrens registration in due course.
[9]See para 12. The Council had by mistake made the request to the wrong Water Authority.
There was no issue made by the plaintiffs before the Tribunal about the significance of the absence of a heavyweight plan. Rather, her counsel then proceeded to explain the grounds for the request for the extension. He said –
(a)“the request for the extension is largely based on compassionate grounds”. He referred to the illness of Mrs Matsoukatidou’s husband and the burning down of the house on the property.
(b)Mrs Matsoukatidou was experiencing financial stress and had been left homeless as the building was not insured and still had not been completely cleared.
(c)Her husband has not been able to work during this period of time, she has been under financial difficulties and her priority was not to get the plan of subdivision certified but to find a roof over her head shortly after her home burned down.
(d)She is able to get the assistance of some or all of her three sons to allow the certification process to be concluded within a period of six months.
(e) There had been substantial compliance.
On the question of the BMO, the plaintiffs’ counsel said that “my client has not had the opportunity of getting a consultant to do a report on that but she believes that because there was no vegetation on the subdivided portion of the land that it should not be an issue”.
The Tribunal discerned quickly the dispositive question. The fact is that without any objection by the plaintiffs’ counsel, the Tribunal had engaged both representatives on the question of the BMO being the principal question affecting the decision whether or not an extension should be granted. Indeed, the plaintiffs’ counsel posited the possibility of extending the permit on condition that Mrs Matsoukatidou comply with the bushfire management overlay.[10]
[10]See transcript p 5, ln 11-13.
Thus, what was before the Tribunal Member was the fact that a plan of subdivision had been lodged but not in a proper way. But the fact is the permit had expired. The task of the Tribunal, taking a principled approach, was to ask whether there were any intervening circumstances bearing upon a refusal or extension and the probability that if a request for extend time was refused and a fresh application for permit was made, whether it would then be granted. On that question, the BMO was paramount. Combined with the passage of time since the permit was granted, I cannot see a basis on the established principles for impeaching the discretion. As part of the exercise of that discretion the Tribunal took into account the entitlement of the plaintiffs to re-apply for a permit. Thus the refusal is not destructive of the plaintiffs’ rights or entitlements to seek a subdivision. This goes to establish the “no substantial injustice ground” on the leave application.
The hearing rule is flexible and the content of the hearing rule will be determined by what is fair in all the circumstances. In a frequently quoted passage, Tucker LJ in Russell v Duke of Norfolk[11] emphasized the circumstantial nature of the enquiry –
The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.
[11][1949] 1 All ER 109. See also Aronson and Groves, above, at [8.50].
I do not think there is a prima facie basis for saying the plaintiffs were denied the opportunity to present their case. It can be accepted that a Practice Directions Day would not ordinarily be the occasion for a final determination. But there are occasion in Courts as well as Tribunals where the elements of a matter can be dealt with expediently, and I think this was one of them. The plaintiffs by their counsel, was allowed to make his points and he did. The grounds put forward in the VCAT application were incapable of justifying an extension of time. The long passage of time and the intervention of the BMO justified the refusal of the extension. The plaintiffs are not deprived of an opportunity to re-apply for a permit.
It was for those reasons the Court refused leave to appeal and dismissed the proceeding.
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