Mondib Pty Ltd v Coral Rise Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0048

MONDIB GROUP PTY LTD (ACN 623 482 717)	Applicant
v
CORAL RISE PTY LTD (ACN 632 045 704)	First Respondent
MOONEE VALLEY CITY COUNCIL	Second Respondent

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JUDGES:	EMERTON P, BEACH JA and GARDE AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2023
DATE OF JUDGMENT:	3 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 237
JUDGMENT APPEALED FROM:	[2023] VCAT 369 (Justice Quigley P)

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PLANNING LAW – Application for leave to appeal – Appeal – Application for extension of an existing planning permit – Whether the Tribunal erred in finding that the current state of the planning scheme was a mandatory consideration – Height control – Implied mandatory considerations – Whether the Tribunal’s exercise of discretion in making a declaration that a permit extension was invalid and of no effect was legally unreasonable – Whether the Tribunal made an error of law in concluding that the permit had expired and was incapable of amendment – Grant of relief – Appeal allowed in part.

Planning and Environment Act 1987 ss 4, 14, 47, 60, 68, 69, 73, 81(1)(a), 84B(2), 126, 149B; Victorian Civil and Administrative Tribunal Act 1998 ss 4, 119, 130, 148(1)(a), sch 1 cl 62; Supreme Court Act 1986 ss 14A, 14C.

Kantor v Murrindindi Shire Council (1997) 18 AATR 285; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Turner (t/as Echuca Steam Tramway) v Horsfall [2002] VSC 195; The People of the Small Town of Hawkesdale Inc v Minister for Planning (2022) 407 ALR 160; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

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Counsel
Applicant:	Ms S Brennan SC with Ms T Meyrick
First Respondent:	Mr D M Robinson
Second Respondent:	No appearance
Solicitors
Applicant:	Best Hooper
First Respondent:	BSP Lawyers
Second Respondent:	Jackson Lane Legal

EMERTON P
BEACH JA
GARDE AJA:

Introduction

Mondib Group Pty Ltd (ACN 623 482 717) (‘Mondib’) applies for leave to appeal, and if leave is granted, appeals to this Court on a question of law against a decision of the Victorian Civil and Administrative Tribunal (‘Tribunal’) made on 5 April 2023 in Tribunal proceedings P970/2020 and P135/2022.[1]
[1]Mondib Group Pty Ltd v Moonee Valley City Council [2023] VCAT 369 (Justice Quigley P) (‘Tribunal decision’).
Mondib is a property developer and seeks to develop a vacant site at 687 Mount Alexander Road and 4 Homer Street, Moonee Ponds (‘subject land’). On 21 July 2016, the Moonee Valley City Council (‘Council’) granted a permit (‘permit’) for the use and development of the subject land for a multi-storey, mixed use building including retail and dwellings. The height of the building approved by the permit was about 50m. A delegate of the Council extended the permit by two years on 16 November 2016 (‘first extension’) and a further two years on 6 March 2020 (‘second extension’). Under the second extension, the permit expired if the development was not commenced by 21 July 2022 and completed by 21 July 2024.
On 12 October 2017, Amendment C183 to the Moonee Valley Planning Scheme (‘planning scheme’) introduced a mandatory height control of 32m over the subject land (‘the height control change’).
Following the grant of the permit, Mondib decided to pursue changes to the permit in two ways.

Review proceeding

First, by an amendment application made to the Council in about 2019 under s 72 of the Planning and Environment Act 1987 (‘Act’), Mondib sought to amend the permit to modify the uses of the proposed building to remove the dwelling and retail uses, decrease the office uses, increase the residential hotel use and introduce a restaurant use with associated internal alterations and external built form variations (‘the amendment application’). Coral Rise Pty Ltd (ACN 632 045 704) (‘Coral Rise’) is the owner of a hotel on nearby land at 41 Homer Street, Moonee Ponds and objected to the amendment application. The application was refused by the Council on 9 June 2020 (‘amendment refusal’).
Mondib then applied to the Tribunal to review the amendment refusal under s 77 of the Act (‘review proceeding’). On 21 September 2020, the Tribunal struck out the review proceeding on the basis that it was a transformation of what was allowed under the permit, rather than an amendment to the permit. The Tribunal therefore did not have the power to consider the application under s 72 of the Act.[2]
[2]Mondib Group Pty Ltd v Moonee Valley City Council [2020] VCAT 1031, [36].
On 5 November 2021, Niall JA allowed an appeal on a question of law from the Tribunal’s decision on the basis that the ambit of the power to amend a permit, and the obligation of a responsible authority to consider an application to amend a permit under s 72 of the Act, did not depend on the extent of the proposed changes.[3] His Honour remitted the review proceeding to the Tribunal for further hearing. The remitted review proceeding was one of the two proceedings determined in the Tribunal decision.[4]
[3]Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722, [3].
[4]Tribunal proceeding P970/2020.

Amendment proceeding

Secondly, Mondib applied directly to the Tribunal for amendment of the permit under s 87A of the Act. The application was supported by the Council subject to conditions but opposed by Coral Rise.
On 8 September 2021, the permit was amended by the Tribunal to allow the development of the subject land for a multi-storey mixed-use building accommodating ground floor retail, dwellings, office and a residential hotel, use of the land for an office, and a reduction in the car parking requirements.[5]
[5]Mondib Group Pty Ltd v Moonee Valley City Council [2021] VCAT 1027 (‘amendment decision’).
On 5 October 2021, in proceeding S ECI 2021 03675, Coral Rise applied to the Trial Division for leave to appeal the amendment decision under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). On 18 May 2023, Richards J concluded in a case management conference that the resolution of this application should await the determination of this proceeding.

Amendment C207

On 28 January 2022, Amendment C207 to the planning scheme was approved and replaced Amendment C183. In lieu of the 50m height limit, Amendment C183 introduced a combination of mandatory and discretionary height and mandatory floor area ratio controls.
On or about 1 July 2022, Mondib commenced work on the subject land under the permit.

Declaration proceeding

On 10 February 2022, Coral Rise applied to the Tribunal under s 149B of the Act for declarations that the first and second extensions were invalid and of no effect (‘declaration proceeding’).[6]
[6]Tribunal proceeding P135/2022.
The remitted review proceeding and the declaration proceeding were heard at the same time by the Tribunal.
In the Tribunal decision, the Tribunal declared in substance that the second permit extension was invalid and of no effect, and dismissed the review proceeding. On 21 June 2023, the Tribunal added to its order a further order refusing the application by Coral Rise for a declaration concerning the first extension.[7]
[7]Acting under VCAT Act s 119.

Leave to appeal

Mondib seeks leave to appeal under s 14A of the Supreme Court Act 1986 (‘Supreme Court Act’) and, if leave is granted, appeals under s 148(1)(a) of the VCAT Act on three grounds. It seeks to have the declarations and orders made by the Tribunal set aside and the review proceeding remitted to the Tribunal.
Under s 14C of the Supreme Court Act, leave to appeal may be granted under s 14A of that Act only if the Court of Appeal is satisfied that the appeal has a real prospect of success.

Relevant statutory provisions

Section 4(1) of the Act sets out the objectives of planning in Victoria. They include:
(a)to provide for the fair, orderly, economic and sustainable use, and development of land;
(b)to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
(c)to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
…
(f)to facilitate development in accordance with the objectives set out in paragraphs (a), (b) (c) …;
…
(g) to balance the present and future interests of all Victorians.
Section 4(2) sets out the objectives of the planning framework established by the Act. They include:
(a)to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;
(b)to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;
…
Parts 2 and 3 of the Act make detailed provision for the approval, operation and amendment of planning schemes in Victoria. Section 14 of the Act sets out the duties of a responsible authority and is found in pt 2. Four of the five duties of responsible authorities found in s 14 are concerned with planning schemes. They are:
(a)to efficiently administer and enforce the planning scheme; and
(aa)to enforce any enforcement order or interim enforcement order relating to land covered by a planning scheme for which it is the responsible authority; and
(b)to implement the objectives of the planning scheme; and
(c)to comply with this Act and the planning scheme; and
…
Section 60(1) of the Act lists mandatory relevant considerations which must be taken into account by a responsible authority in deciding an application for a permit. They include:
(a) the relevant planning scheme; and
(b) the objectives of planning in Victoria; and
…
Section 68 of the Act makes provision for the expiration of permits for the development, or use, or development and use of land. Section 68(3) of the Act provides:
A permit for the development and use of land expires if—
(a)the development or any stage of it does not start within the time specified in the permit; or
(b)the development or any stage of it is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or
(c)the use does not start within the time specified in the permit, or, if no time is specified, within two years after the completion of the development; or
(d)the use is discontinued for a period of two years.
Section 69 of the Act provides for the extension of time of permits in certain circumstances and, at the time of the extension applications, provided:
(1)Before the permit expires or within 6 months afterwards, the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time.
(1A)The owner or occupier of land to which a permit for a development applies may ask the responsible authority for an extension of time to complete the development or a stage of the development if—
(a)the request for an extension of time is made within 12 months after the permit expires; and
(b)the development or stage started lawfully before the permit expired.
(2)The responsible authority may extend the time within which the use or development or any stage of it is to be started or the development of any stage of it is to be completed or within which a plan under the Subdivision Act 1988 is to be certified.
(3)If the time is extended after the permit has expired the extension operates from the day the permit expired.
Section 84B(2) of the Act specifies that in determining an application for review under this Act, the Tribunal:
(a) must take into account any relevant planning scheme;
(b) must have regard to the objectives of planning in Victoria;
…
Section 149B of the Act makes provision for the Tribunal to make declarations in certain circumstances. Section 149B provides:
(1) A person may apply to the Tribunal for a declaration concerning—
(a)any matter which may be the subject of an application to the Tribunal under this Act; or
(b)anything done by a responsible authority under this Act.
(2)On an application under subsection (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.
(3)The Tribunal’s power under this section is exercisable only by a presidential member of the Tribunal.

Grounds of appeal

The grounds of appeal relied on by Mondib are in substance:
(a)      Ground 1
The Tribunal made an error of law in concluding that a change in the planning controls affecting the subject land was a consideration that the Council was bound to take into account in determining whether to extend the time for an existing permit under s 69 of the Act.
(b)      Ground 2
The exercise by the Tribunal of its discretion to make a declaration under s 149B of the Act that the second extension was invalid and of no effect was legally unreasonable.
(c)      Ground 3
The Tribunal made an error of law in concluding that, as a consequence of the invalidity of the second extension, the permit had expired and was incapable of amendment.

Ground 1 – Was the Tribunal bound to take into account the change to the planning controls effected by Amendment C183?

Tribunal reasons

The Tribunal summarised its decision as to the validity of the second extension in these terms:
However, in respect of the second extension request I have concluded that there was a fundamental error in the grant of that request, in that no consideration was given to Amendment C183 to the [planning scheme] which introduced a mandatory height control over the subject land. In arriving at this conclusion I have taken into account the principles in [Kantor],[8] and the Peko Wallsend relevant consideration principles. Fundamentally, what is key here is consideration of the legislative context and in particular the principle that it is the planning scheme in place at the time the decision was made provides part of the relevant legislative context. Therefore, the fact that no consideration was given to the effect of Amendment C183 in this regard is a matter of fundamental significance in the context of the factors that must be considered for a valid decision to amend a permit by way of a time extension.
Consequently, I am prepared to make the declaration that the second extension decision is invalid and ought be set aside.[9]
[8]Kantor v Murrindindi Shire Council (1997) 18 AATR 285 (Ashley J) (‘Kantor’).
[9]Tribunal decision [21]–[22] referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (‘Peko-Wallsend’).
After dealing with other issues, the Tribunal gave reasons why the Council would err if it did not consider the state of the current planning scheme. The reasons were:
The additional matter raised in respect of the Second Extension request was based on a Peko-Wallsend submission.
Coral Rise submitted that it was established by the Supreme Court in Turner v Horsfall that a new planning control which would prohibit the issue of fresh permit is a factor which a Council exercising its discretion to extend time under section 69 is bound to take into account in the Peko-Wallsend sense. That is to say, if the Council fails to take into account that factor it falls into jurisdictional error and does not make a valid decision.
It is clear that the current state of a planning scheme at the time an assessment is made of the planning merits, including at the time a Council considers an extension of time under s 69, is a highly relevant consideration.
…
I am satisfied that if the Council did not consider the state of the current planning scheme at the time the Second Extension decision was made they should be deemed to have fallen into error. However, it is necessary to look at the facts surrounding the decision made on 6 March 2020.[10]
[10]Tribunal decision [152]–[155] referring to Peko-Wallsend (1986) 162 CLR 24 and Turner (t/as Echuca Steam Tramway) v Horsfall [2002] VSC 195 (Ashley J) (‘Turner’).
The Tribunal then reviewed the facts and held that the Council had not taken into account Amendment C183 to the planning scheme when it granted the second extension:
Amendment C183 to the [planning scheme] was gazetted on 12 October 2017 which was between the dates of the First and Second Extension decisions. The operation of the mandatory height controls introduced by Amendment C183 was extended by Amendments C220 and C223, through to the gazettal of Amendment C207 on 28 January 2022 which replaced them with a combination of mandatory and discretionary height and mandatory floor area ration (FAR) controls. Amendment C183 introduced the mandatory height control of 32 m over the subject land.
The Second Extension application was supported by written submission prepared by Mondib’s planning consultant which purported to address each of the Kantor factors.
…
The eighth Kantor[11] factor, being the probability that a fresh permit application would be granted, was not mentioned at all in the consultant’s submission.
In the reasons for the Second Extension decision provided in the Council delegate’s report dated 6 March 2020, Amendment C183 and the introduction of mandatory height controls were not mentioned. Further, the report stated that “the site is located within an Activity Centre Zone and no significant changes have occurred to design requirements since the original permit was issued”.
…
I agree with the submissions of Coral Rise that it could not be more obvious that the Council did not have regard to the intervening change to the planning controls effected by Amendment C183. Given that Amendment C183 introduced mandatory height controls (notwithstanding they were ultimately temporary controls) is a significant if not fundamental omission in the consideration of the relevant matters that the Council ought to have taken into account.
It is fundamental that the Council take into account the planning scheme as it stands at the date on which a decision is made. This is a long-standing principle of planning law.
Where a decision-maker is bound to have regard to some factor or thing, it would be open on review to establish whether that factor has been considered by inference from the absence or mention of it in the reasons for decision. It may also be open to infer what was taken into account by contrasting what was included, where those included matters appear to be of less consequential consideration. I accept here that an inference from absence is certainly available. The omission to mention at all any reference to Amendment C183 of itself is as revealing as is the delegate’s own identification of what she considered material to her assessment.
Further, I am of the view that the delegate made it clear that she did not take into account Amendment C183 by saying expressly that there were no significant changes which have occurred to the zone requirements since the original permit was issued. By this comment, in my view, the delegate makes it clear that she was not conscious of the intervening changes to the zone requirements, which were significant in the context of the approval of a development height of 50m where the height control was 32m in relation to the subject land at the relevant date.
The fact that the consultant for Mondib did not refer to the height control in the submission in support of the application for amendment is also material in the context of the process.[12]
[11]Kantor (1997) 18 AATR 285, 313–314.
[12]Tribunal decision [156]–[164] (citations omitted).
The Tribunal then held that the Council was bound to consider the change to the planning scheme which introduced a mandatory height control over the property for the following reasons:
Whether the change to the planning control was a matter which the decision maker was bound to take into account must be assessed in accordance with the principles set out by Mason J in Peko-Wallsend.[13] What is a necessary consideration may appear not only from the express provisions of the statute granting a discretion, but also implicitly from the subject matter and the legislative context.
I am satisfied that the change in the planning scheme which introduced a mandatory height control over the land was a consideration which the delegate was bound to apply in the Peko-Wallsend sense.
…
Further, whilst the legislation does not require that the delegate to take into account the eighth Kantor factor, the delegate was required to take into account the legislative context, including the relevant planning scheme in place at the relevant date. It is clear on the material before me that in that respect Amendment C183 and in particular the mandatory height controls were ignored in the consideration.[14]

Mondib’s submissions

[13]Peko-Wallsend (1986) 162 CLR 24, 39–40.

[14]Tribunal decision [165]–[172].

Mondib in substance submitted that the Council delegate was not bound to take into account the height control changes when she decided to approve the second extension application for the following reasons:
(a)there is no basis in the scope, subject matter or purpose in the Act to conclude that all changes or any changes to the planning controls must be taken into account in the Peko-Wallsend sense;
(b)in Kantor, Ashley J distilled eight factors which may be relevant to the exercise of the discretion to extend the time in s 69(2) of the Act. They were not exhaustive or mandatory;
(c)to the extent that Turner stands for the proposition that a change to planning controls that would prohibit the issue of a fresh permit is a mandatory consideration under s 69, it is not consistent with the decision of the Court of Appeal in Hawkesdale;[15]
(d)where the Act requires that the responsible authority must take particular matters into consideration, that obligation has been clearly set out as in s 60 (application for a permit) and s 73(1) (application to amend a permit);
(e)it is difficult to define the scope of the purported mandatory consideration, and whether it applies to the current planning regime, changes in the planning scheme or planning policy or only to significant changes or to new planning controls which would prohibit the issue of a fresh permit; and
(f)the ‘fair’ and ‘orderly’ planning objective in s 4(1)(a) of the Act can be achieved without requiring the responsible authority to embark on a detailed analysis of the permit’s conformity with every aspect of the planning controls which may have changed in the period since the permit was initially granted. The decision whether to extend a permit should not be turned into a de facto planning application.

Coral Rise’s submissions

[15]The People of the Small Town of Hawkesdale Inc v Minister for Planning (2022) 407 ALR 160 (‘Hawkesdale’).

Coral Rise submitted that:
(a)in considering the extension application the Tribunal was bound to take into account the current planning regime;
(b)the Tribunal did not say that an application under s 69 of the Act should be treated in the same way as a permit application;
(c)the purpose of time limits on permits together with the discretion to extend them is to enable the permission to be reviewed in the light of any changes to those circumstances over time;
(d)the planning scheme is always a necessary reference point because of its role under the Act as the repository of the planning objectives and policies on which the grant of the permit was based, and upon which the permit’s continuing alignment (or not) with the current objectives of the planning scheme can be identified;
(e)it is a core requirement of the statutory task in considering an application for an extension of time that it be based on up to date material; and
(f)the imposition of a height control by Amendment C183 was a significant change to the planning scheme since the permit was granted.

Analysis

In the seminal decision of Peko-Wallsend, Mason J said:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … [16]
[16]Peko-Wallsend (1986) 162 CLR 24, 39–40 (Gibbs CJ and Dawson J agreeing) (citations omitted).
It is not correct to say as a matter of construction that because there are enumerated mandatory factors to be found in some provisions of the Act it follows that no mandatory factors are to be imported by implication into a provision like s 69(2) where no mandatory factors are to be found. Rather the position is that each head of power must be construed in its own right in accordance with the principles stated in Peko-Wallsend to determine whether there are implied mandatory considerations that arise from the subject matter, scope and purpose of the Act that the decision-maker is bound to take into account.
We now turn to consider this issue in relation to s 69 of the Act.
Section 14 of the Act sets out the duties of a responsible authority under the Act. The duties apply generally to the functions to be performed, and the powers to be exercised, by a responsible authority under the Act including the exercise or possible exercise of the power to extend a permit under s 69 of the Act. The duties require the efficient administration and enforcement of the planning scheme and the implementation of the objectives of the planning scheme. They also require compliance with the Act and the planning scheme.
The provisions of the relevant planning scheme are of pivotal importance in statutory planning. In deciding on an application for a permit under pt 4 of the Act, s 60(1)(a) and (b) of the Act require a responsible authority to consider the relevant planning scheme and the objectives of planning in Victoria. Likewise, in determining an application for review, s 84B(2)(a) and (b) require the Tribunal to take into account any relevant planning scheme and have regard to the objectives of planning in Victoria.
The objectives of planning in Victoria provide, among other things, for the fair, orderly, economic and sustainable use and development of land, and the facilitation of development in accordance with the objectives of planning.[17]
[17]Act s 4(1)(a), (f).
The objectives of the planning framework include:
(b)to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;[18]
[18]Act s 4(2)(b).
Planning schemes are the underlying foundation of permits issued under the Act. They are the repository of planning objectives and policies, zoning provisions and overlay controls. They contain provisions relating to the use, development, protection and conservation of land. A permit for use or development of land must be obtained if required by a planning scheme.[19] Planning schemes are statutory instruments and have the force of law. It is an offence to fail to comply with a planning scheme.[20]
[19]Act s 47.
[20]Act s 126(1).
In our view, it follows by necessary implication from the Act and the provisions that we have mentioned that if a responsible authority is to comply with its duties under the Act, it must have regard to the current form of the planning scheme when considering an application for a permit extension under s 69.
This is not normally a difficult or lengthy process. In most instances, the provisions of the planning scheme at the time when an application for a permit extension is considered will be in the same or a similar form to the provisions of the planning scheme as they were when the permit was granted or last extended. In these circumstances, there may not be any doubt as to the continuing consistency of the proposal with the relevant provisions of the planning scheme.
In some cases, such as the present case, a review of the provisions of the planning scheme as they are when the application for a permit extension is considered will identify changes which are relevant to the permit extension under consideration. The changes to the planning scheme may be of major significance to the use or development authorised by the permit or have little or no significance. The application and significance of changes to a planning scheme made between the date when a permit was granted and the date when a decision is made as to whether an extension should be granted will ordinarily be a planning matter to be assessed by the responsible authority or its delegate when deciding whether the extension should be granted.
This is not to say that an application for a permit extension is treated in the same manner as a fresh permit application. It is likely that the planning considerations relating to a proposed use or development of land will have been assessed (and sometimes very fully assessed) at the time when a permit is first granted. Subsequent changes to the planning scheme or changes to circumstances generally stand to be considered by the responsible authority when deciding whether an extension should be granted. Even if a permit could not be granted on a fresh application for the same proposal when an extension application is considered, this does not mean that the extension cannot be granted by the responsible authority. Rather it is a relevant circumstance to be considered and given weight as seen to be appropriate by the responsible authority or delegate at the time when the extension application is determined.
In Kantor, Ashley J distilled eight factors which might properly be considered by a responsible authority in considering whether an application for a permit extension should be granted. His Honour did not suggest that each of the factors would be material in every case, or that the list of factors was exhaustive.[21] The list includes economic factors pertinent to the landowner as well as planning considerations.[22]
[21]See Mildura Rural City Council v VABDS Developments Pty Ltd (2012) 192 LGERA 185, 196 [42] (Kyrou J).
[22]Kantor (1997) 18 AATR 285, 313.
The factors were, in summary, whether:
(a)the applicant has advanced some reason or material in support of the grant of an extension;
(b)there had been a change in planning policy (including relevant legislation and the planning scheme);
(c)the landowner was seeking to ‘warehouse’ the permit to obtain a windfall by selling the land after the extension;
(d)there were intervening circumstances which bore upon the grant or refusal of an extension;
(e)the lapse of time was such as to stultify nearby development or was contrary to the fair, orderly, economic or sustainable development of land;
(f)the time limit for the use or development originally imposed or extended was adequate in all the circumstances;
(g)the magnitude of the economic burden cast by the permit on the landowner was such as to cause delay; and
(h)the likelihood that if the request to extend time was refused and a fresh application made, it would be granted by the responsible authority.[23]
[23]Kantor (1997) 18 AATR 285, 313–314.
The purpose of provisions like s 68 of the Act which provide for the expiration of permits was identified by Ashley J in Kantor. His Honour considered that development would not be facilitated by a permit in respect of which no time for expiry was fixed, and which lay dormant for a protracted period. The use or development of neighbouring properties might be impeded. The grant of a permit without any period within which action to implement it need be taken would run counter to the notion of orderly development. The grant of a permit for use and development which had no expiry date would unnecessarily open up the prospect of delayed use and development at odds with changed planning policy.[24]
[24]Kantor (1997) 18 AATR 285, 313.
Since Kantor was decided over twenty-five years ago, it has been followed or applied on many occasions in this Court[25] and on innumerable occasions by the Tribunal.
[25]Hawkesdale (2022) 407 ALR 160, 178 [81] (Emerton P, Niall and Kennedy JJA); Pogorzelski v Latrobe City Council [2020] VSC 718 (Kennedy J); Saric v Hobsons Bay City Council (2000) 111 LGERA 173 (Balmford J); D‘Agostino v Greater Shepparton City Council [2015] VSC 332 (Zammit J); No 2 Pitt Street Pty Ltd v Wodonga Rural City Council (1999) 104 LGERA 239 (Balmford J); Mildura Rural City Council v VABDS Developments Pty Ltd (2012) 192 LGERA 185 (Kyrou J); Matsoukatidou v Yarra Ranges Shire Council [2013] VSC 299 (Mukhtar AsJ).
Turner was an appeal brought under s 148 of the VCAT Act against a decision of the Council on an extension application. Ashley J applied the analysis of Mason J in the Peko-Wallsend decision and held that the Council had been bound to take a rezoning into account which made the proposal a prohibited use in the relevant zone. His Honour held that the subject matter, scope and purpose of the Act justified the Tribunal’s conclusion.[26]
[26]Turner [2002] VSC 195, [23]–[24].
Ashley J also held that it did not follow that a change in the planning scheme would necessarily be determinative of an extension application. A wide range of factors may be pertinent to the exercise of the discretion in a particular case. A factor that a decision-maker was bound to consider might prove to be so insignificant that failure to take it into account could not have affected the decision.[27]
[27]Turner [2002] VSC 195, [25]–[26]; Peko-Wallsend (1986) 162 CLR 24, 40.
Mondib submitted that the decision in Turner was inconsistent with the decision of the Court of Appeal in Hawkesdale. We disagree. The Court of Appeal in Hawkesdale did not consider the decision in Turner which is not referred to in its reasons. In the passage relied on by Mondib, the Court was concerned with whether the decision-maker in an extension application was required to consider the direct interests of objectors. In observing that the statutory scheme did not include a role for third parties in the extension of permits, the Court noted that the consideration of changes to planning policy in an extension application will incidentally show concern for persons who do not think that the development should be permitted. The Court did not consider or decide whether it was mandatory for a decision-maker on an extension application to consider changes to the planning scheme that might have occurred since the permit was first granted.[28]
[28]Hawkesdale (2022) 407 ALR 160, 178 [82].
In Turner, Ashley J said that the use of language by the Tribunal in that decision was not always precise. The Tribunal had referred to both ‘the present state of the planning scheme’ and ‘the planning controls in force at the time of the extension’ whilst his Honour referred to the ‘current planning regime’ and a ‘change in the planning scheme’.[29]
[29]Turner [2002] VSC 195, [22]–[25].
In our view, the mandatory consideration which arises by implication under the Peko-Wallsend principles from a consideration of the subject-matter, scope and purpose of the Act, in the context of the discretion in s 69, is the current state of the relevant planning scheme at the time when the extension application is determined. This is consistent with s 60(1)(a) and (b) of the Act which provide for the relevant planning scheme and the objectives of planning in Victoria to be mandatory considerations when applications for a permit are considered. By contrast, strategic plans, policy statements, codes or guidelines adopted by a Minister, government department, public authority or municipal council are only relevant considerations.[30] We can see no reason why the mandatory considerations in extension applications made under s 69 should extend to strategic plans, policy statements, codes or guidelines not found in the planning scheme.
[30]Act s 60 (1A)(g).
For these reasons, we conclude that the Tribunal was correct when it followed Turner and held that in determining the extension application made by Mondib, it was bound to consider the current state of the planning scheme at the time when the extension application was considered including the height control change effected by Amendment C183.
Ground 1 fails.

Ground 2 – Was the exercise by the Tribunal of its discretion to make a declaration under s 149B of the Act that the second extension was invalid and of no effect legally unreasonable?

Tribunal reasons

The Tribunal said of the failure by the Council’s delegate to take Amendment C183 into account when granting the second extension:
I do not accept this is the type of failure that can or should be forgiven pursuant to clause 62 of Schedule 1 of the VCAT Act.
This is a different calibre of failure to the first ground discussed above and goes to the merits of whether an extension ought to be granted and not a failure of a technical nature not associated with the merits of the decision made.
It is also a consideration of orderly and proper planning.
[…]
I am of the view that a declaration that the Second Extension decision was invalid should be made in all the circumstances.
It is not, in my view, relevant that a new application may today be made which may grant a permit for a building in excess of the height control (as long as it meets the FAR). The relevant time for the consideration of the planning context was March 2020 and not March 2023.[31]

Mondib’s submissions

[31]Tribunal decision [179]–[183].

Mondib submitted that the Tribunal’s decision to make a declaration that the second extension was invalid and of no effect was legally unreasonable and plainly unjust because:
(a)while the Tribunal was not satisfied that the requests for extension made to the Council on each occasion were actually made by the owner or occupier as required by s 69 of the Act, the Tribunal was prepared to exercise its discretion under sch 1 cl 62 of the VCAT Act to disregard those failures but not its failure to consider Amendment C183;
(b)by the time that the Tribunal made its decision in April 2023, Amendment C183 was no longer in force and had been replaced by Amendment C207;
(c)an application for a declaration under s 149B is in the nature of an application for judicial review and the same principles that operate to the grant of relief for jurisdictional error should apply; and
(d)the Tribunal granted declaratory relief without considering Mondib’s contentions as to delay, prejudice, and the absence of third party rights which were relevant to the exercise of the discretion.

Coral Rise’s submissions

Coral Rise submitted:
(a)Ground 2 was fundamentally a complaint about the merits of the Tribunal’s decision to make a declaration about the second extension;
(b)the Tribunal addressed matters relevant to the exercise of its discretion as to relief both when considering its powers under sch 1 cl 62 of the VCAT Act and when considering whether a declaration should be made in relation to the second extension;
(c)the Tribunal held that the failure to take the height control change into consideration was a different calibre of failure to the failure that the Tribunal proposed to disregard under sch 1 cl 62;
(d)Mondib has not shown that the exercise of discretion by the Tribunal was manifestly unreasonable or plainly unjust as:
(a)the allegation that Coral Rise waited for two years was unfounded as Coral Rise applied for a declaration immediately on becoming aware of the relevant facts;
(b)Mondib contributed to the Council’s error which went directly to the merits of the decision; and
(c)Mondib did not seek to establish that it could obtain a new permit for development above the height control; and
(e)the weight to be given to public interest factors was a matter for the Tribunal.

Analysis

While the Tribunal was not satisfied on the evidence before it that the requests for extension were actually made by the owner or occupier of the subject land, it was satisfied that it was appropriate to exercise its discretion and not to make the declarations sought by Coral Rise on that ground for the following reasons:
(a)the evidence of the association between the actual requestor with each respective owner at the time the request was made;
(b)there was no evidence of the owner opposing the extension requests;
(c)the time elapsed and the adverse consequences for Mondib by the delay in determining the question;
(d)the ability of the Tribunal to exercise its discretion to forgive a procedural omission under sch 1 cl 62 of the VCAT Act; and
(e)the omission was not deliberate and at the time the Council and the requestor were of the view that the requests were respectively made by an agent of the owner.[32]
[32]Tribunal decision [16], [17.1]–[17.4], [18].
By contrast, the Tribunal considered in relation to the Council delegate’s approval of the second extension request:
(a)there was a ‘fundamental error’ in the approval of that request;
(b)the fact that no consideration was given to Amendment C183 by the Council delegate was a matter of ‘fundamental significance’;
(c)the failure to consider Amendment C183 was a different calibre of failure and went to the merits of whether an extension should be granted and not a failure of a technical nature not associated with the merits of the decision made;
(d)there was the consideration of orderly and proper planning; and
(e)the relevant time for the consideration of planning controls was March 2020.[33]
[33]Tribunal decision [21], [180]–[181], [183].
It is obvious that the two failures under consideration by the Tribunal were of an entirely different character. The first was a failure by the owner to provide evidence that the request for an extension was made by the owner or occupier of the subject land in circumstances where no issue arose about this matter at the time when the requests for extension were made. The second is a miscarriage in decision-making because height control changes to the planning scheme were not considered when the merits decision was made by Council’s delegate. The first non-compliance was of a procedural or technical nature and was made by or on behalf of the owner. It had no effect on the Council’s consideration of the merits of the extension applications because the Council understood that the applications were authorised. The second non-compliance very seriously affected the Council’s merits decision because a mandatory consideration which the Tribunal assessed as of fundamental significance was not taken into consideration when the merits decision was made.
Of the reasons given by the Tribunal for the decision to disregard a procedural error, only ‘the time elapsed and the adverse consequences for Mondib by the delay in determining this question’ was relevant to the Tribunal’s exercise of discretion on the second non-compliance. The Tribunal considered that the overriding factor was the calibre of failure, and the important fact that this failure went to the merits of the decision made and not to matters of a procedural or technical nature. The failure was a failure by the Council in its capacity as the responsible authority and decision-maker, and not a failure by the owner to provide formal verification that the application was made by an agent with its consent.
The second reason given by the Tribunal related to orderly and proper planning. One can well understand the Tribunal’s reluctance to see a multi-storey development go forward on a significant site in the Moonee Ponds Major Activity Centre when the merits decision by the responsible authority lacked integrity.
The Tribunal was also correct to hold that the relevant time for consideration of the planning scheme was March 2020, when the second extension request was decided by the Council. It was not appropriate for the Tribunal in the exercise of its discretion as to whether a declaration should be made relating to the second extension in March 2020 to venture into the controversy as to whether or not a permit would be granted under the planning controls in force as at March 2023.
Section 149B is expressed in wide terms and confers jurisdiction on the Tribunal to make a declaration as it thinks appropriate in relation to any matter which may be the subject of an application to the Tribunal under the Act as well as anything done by a responsible authority under the Act. Although there is no third-party involvement in the extension process, Mondib did not contend that the Tribunal did not have jurisdiction to make the declarations that it did.
In Minister for Immigration and Citizenship v Li,[34] the plurality of the High Court held that ‘unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’.[35]
[34](2013) 249 CLR 332.
[35]Ibid 367 [76] (Hayne, Kiefel and Bell JJ).
In our view, the exercise of discretion by the Tribunal to declare the second extension to be invalid and of no effect had both an evident and intelligible justification for the reasons given by the Tribunal.
Ground 2 fails.

Ground 3 – Did the Tribunal make an error of law in concluding that, as a consequence of the invalidity of the second extension, the permit had to expire and was incapable of amendment?

Tribunal reasons

Having decided to make the declaration that the second extension decision was invalid and ought to be set aside, the Tribunal said:
As a result of this conclusion, it is not necessary for the Tribunal to consider the merit of the proposal made in the Review Proceeding. The Permit has expired and therefore to consider any further amendment would be a nugatory endeavour.[36]
[36]Tribunal decision [23].
Later, the Tribunal held:
In these circumstances it is not necessary to consider the merits of the Review Proceeding. The Permit sought to be amended in that proceeding has now expired due to the invalidity of the Second Extension. Even if the First Extension is deemed to have been valid per cl 62 of Schedule 1 of the VCAT Act, under the conditions of that extension the Permit expired when the development was not completed by 21 July 2022.[37]

Mondib’s submissions

[37]Tribunal decision [185].

Mondib submitted that if it failed on Grounds 1 and 2, the appropriate order was to remit the second extension decision to the Council for determination according to law and to stay the review proceeding pending the outcome of the Council’s decision.
In support of its submission, Mondib contended:
(a)the status of the permit was not known until the second extension decision was properly made;
(b)if the permit had expired, it could be re-enlivened by a lawful extension decision and thus be capable of amendment;
(c)it would be an absurd result if the consequence of an invalid decision to extend a permit was that the time on that permit was taken as having continued to run, such that if the invalidity was only discovered after the permit had expired, the permit holder was deprived of its rights entirely;
(d)where a decision is declared invalid, the true effect is that the requirement to make the decision becomes extant, and the decision-maker has a duty to determine the matter again according to law; and
(e)s 69 of the Act expressly contemplates that a valid request for the extension of a permit may be made after the permit has expired.

Coral Rise’s submissions

Coral Rise submitted:
(a)if a purported decision is affected by jurisdictional error the result may be that the decision can or must be remade on the basis that the duty to make a decision has not been performed;
(b)however, here the statutory scheme does not contemplate the Council remaking an invalid decision with the result that the Council was functus officio after it made its purported decision;
(c)s 4(2)(b) of the VCAT Act provides that for the purpose of the VCAT Act or an enabling enactment 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; and
(d)the Tribunal cannot remit the extension decision to the Council on a declaration application made under s 149B of the Act.

Analysis

In Minister for Immigration and Multicultural Affairs v Bhardwaj,[38] Gaudron and Gummow JJ held:
[38](2002) 209 CLR 597 (‘Bhardwaj’).
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.
The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects, Sopinka J, with whom Dickson CJ and Wilson J concurred, said:
“As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ...
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.”
In the same case, his Lordship cited with approval a statement by McLachlin J that:
“as a matter of logic and on the authorities ... a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision.”
In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.[39]
[39]Ibid 614–616 [51]–[53] (McHugh J concurring; Hayne J and Callinan J to like effect; Kirby J dissenting) referring to Chandler v Alberta Association of Architects [1989] 2 SCR 848, 861.
In our view, there is nothing in s 69 or any other relevant provision of the Act that would preclude the ordinary operation of the Bhardwaj principle in the context of applications to extend permits. To the contrary, it would be most unfair and unjust if a permit-holder were to lose the benefit of a permit because of a jurisdictional error on the part of a responsible authority in considering the extension application. This consideration points strongly to the need in these circumstances for a responsible authority to be able to revisit its decision and make a proper decision according to law. Section 69(3) of the Act expressly contemplates that a decision to extend a permit may be made after the permit has expired.
Coral Rise submitted that s 4(2)(b) of the VACT Act had the effect of rendering the Council functus officio on the making of any purported decision.[40]
[40] Section 4(2) of the VCAT Act provides:
(a)a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;
(b)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.
The submission is misconceived. The purpose of s 4(2)(b) of the VCAT Act is to ensure that the Tribunal has review jurisdiction even though the decision under review was beyond the power of the decision-maker. In the absence of such a provision, the Tribunal’s jurisdiction to review a decision made beyond power might arguably be defeated by the invalidity of the decision under review. Section 4(2)(b) does not stand for the principle that the original decision-maker does not have the power to revisit an invalid decision in accordance with the Bhardwaj principle.
Under s 130(1) of the VCAT Act, the power of the Tribunal to make an order or other decision includes a power to make the order or decision subject to any conditions or further orders that the Tribunal thinks fit. Section 130(2)(e) provides that conditions or further orders may include a condition or order necessary or desirable to give effect to an order or decision. This power extends to the commonplace incidental powers necessary to ensure the efficiency of the Tribunal’s ordinary operations.[41] It also extends to the making of consequential orders such as remission to a decision-maker where the Tribunal has granted principal or declaratory relief under the VCAT Act or an enabling enactment to the effect that the decision must be set aside or was invalid and of no effect.
[41]Varnavides v Victorian Civil and Administrative Tribunal (2005) 12 VR 1, 8 [26].

Conclusion

The effect of the Tribunal’s declaration that the second extension decision was invalid and of no effect was to leave Mondib’s second extension application undetermined by the Council. The second extension application was not rendered nugatory, and now stands to be decided by the Council. If the second extension application is decided by the Council in favour of Mondib, the permit will be re-enlivened. The review proceeding can then be decided by the Tribunal.
If the second extension application is decided by the Council adversely to Mondib, Mondib may apply to the Tribunal for review of that decision under s 81(1)(a) of the Act. It would be open to the Tribunal to consider the review proceeding at that time.
When the Council decides the second extension application, it will need to consider the provisions of the planning scheme as they are when the application for extension is decided, including the effects of Amendments C183 and C207 as well as other relevant provisions and matters.
As to Ground 3, we conclude that the Tribunal erred on a question of law when it decided that, because of the invalidity of the second extension decision, the permit had expired and was incapable of amendment. In fact, the true outcome was that the Council was obliged to consider Mondib’s second extension application again and determine whether it should be granted. The second extension application should be remitted to the Council under s 130(2)(e) of the VCAT Act for determination in accordance with law. The review proceeding should be stayed in the Tribunal while this is done.

Orders

Mondib will have leave to appeal, and the appeal will be allowed in part. There will be an order that paragraph 2 of the Tribunal’s orders made on 5 April 2023 be set aside, and that VCAT proceeding P970/2020 (the review proceeding) be remitted to the Tribunal to be heard and determined again by the same or a differently constituted Tribunal according to law, with the hearing of further evidence by the Tribunal. In addition to the Tribunal’s orders in VCAT proceeding P135/2022 (the declaration proceeding), there will be an order that the second extension application lodged on 26 February 2020 be remitted to the Council to be determined according to law.
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[2023] VSCA 237

3 October 2023