No 2 Pitt Street Pty Ltd v Wodonga Rural City Council
[1999] VSC 133
•27 April 1999
| SUPREME COURT OF VICTORIA | |
| Send for Reporting | |
| Not Restricted | |
No. 4685 of 1999
| NO 2 PITT STREET PTY LTD (ACN 008 624 771) | Plaintiff |
| v | |
| WODONGA RURAL CITY COUNCIL | First Defendant |
| and | |
| WEATHERALLS WODONGA HOTEL PTY LTD (ACN 004 610 039) | Second Defendant |
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JUDGE: | Balmford, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 1999 | |
DATE OF JUDGMENT: | 27 April 1999 | |
CASE MAY BE CITED AS: | No 2 Pitt Street Pty Ltd v Wodonga Rural City Council | |
MEDIA NEUTRAL CITATION: | [1999] VSC 133 | |
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| PLANNING - JURISDICTION - Proceeding initiated by writ seeking inter alia a declaration that the planning permit granted to the Second Defendant by the First Defendant is void - First Defendant seeks declaration that the Court has no jurisdiction to hear or determine this proceeding - Limitation of Court’s jurisdiction in planning matters in section 52 Victorian Civil and Administrative Tribunal Act 1998 - Original jurisdiction and review jurisdiction of the Victorian Civil and Administrative Tribunal - “Special circumstances”. Victorian Civil and Administrative Tribunal Act 1998 (Vic) El Alam v Council of the City of Northcote [1996] 2 VR 672 |
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr C Canavan QC with Ms S. Brennan | Coadys |
| For the First Defendant | Mr M Dreyfus | Maddock Lonie & Chisholm |
HER HONOUR:
Introduction
The plaintiff initiated this proceeding by writ, arising out of the following circumstances. On 9 October 1998, the second defendant (“Weatheralls”) applied to the first defendant (“the Council”), which is the responsible authority for the Wodonga Rural City Planning Scheme (“the planning scheme”), for a planning permit for a cinema complex on certain defined land in Wodonga. The plaintiff is the owner of other land in Wodonga on which it operates a shopping centre, as to which the Council has granted a planning permit for a cinema development. The plaintiff objected to the application of the second defendant. The Council granted a permit to the second defendant to construct a cinema complex on certain defined land, some of which (“the Council land”) was owned by the Council. The Council has published a notice of intention to sell part of the Council land. What is stated in general terms in this paragraph is not, I believe, in dispute.
The prayer for relief contained in the amended statement of claim reads:
And the Plaintiff Claims:
1.A declaration that Permit 98/158 granted pursuant to the Wodonga Rural City Planning Scheme dated 1 December 1998 is void and of no lawful effect.
2.A declaration that the second defendant must obtain a permit from the Minister for Planning and Local Government before carrying out any use or development on [the Council land] prior to the sale of the said land or any part of the said land by the first defendant.
3.An injunction restraining the second defendant through its officers, agents, employees or howsoever otherwise from doing or performing any act or taking any step to commence use or development of [the land in respect of which the permit was granted] in reliance on the said permit.
4.An injunction restraining the first defendant from proceeding with the sale of [part of the Council land] until the statutory requirements of the Local Government Act 1989 (“the Local Government Act”) have been met.
In the proceeding now before me, the Council seeks a declaration that the Court has no jurisdiction to hear or determine the matters brought into issue by paragraphs 1, 2 and 3 of the prayer for relief, or, alternatively, an order that so much of the Statement of Claim in respect of which this Court has no jurisdiction, by reason of section 52 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”), be struck out.
No issue arises in this present proceeding with respect to paragraph 4 of the prayer for relief. It is common ground that this Court’s jurisdiction to hear and determine that matter is not affected by section 52 of the VCAT Act.
Section 52 of the VCAT Act reads, so far as relevant:
52.Limitation of courts’ jurisdiction in planning matters
(1)The Supreme Court . . . does not have jurisdiction to hear, or continue to hear, or determine any proceeding in which a person bringing the proceeding brings in issue the matter of the exercise of, or the failure to exercise, a power under a planning enactment if—
(a)the [Victorian Civil and Administrative] Tribunal has jurisdiction to review the matter of the exercise of, or the failure to exercise, that power; and
(b)the matter—
(i)has not been the subject of a proceeding in the Tribunal;
(ii)if it has been the subject of a proceeding in the Tribunal, has not been determined by the Tribunal;
.. .
(2)If the Supreme Court . . . is of the opinion that there are special circumstances that justify the hearing by the Court of a proceeding to which sub-section (1) applies, the Court may direct that sub-section (1) does not apply to that proceeding.
.. .
(4)In this section—
“planning enactment” means—
.. .
(f)Planning and Environment Act 1987 . . ;
This provision replaced section 66A of the Planning Appeals Act 1980 (“the Appeals Act”) which was in similar terms and was repealed with effect from 1 July 1998, the date of coming into operation of the VCAT Act.
Counsel were in agreement that this matter was properly characterised as a pleading summons and therefore should be considered on the basis that each of the allegations made in the statement of claim was well founded. Accordingly, argument proceeded on the basis that:
(i) the Council wrongly and in breach of the rules of natural justice rejected and refused to consider the whole of the plaintiff’s objection to the grant of a permit without giving the plaintiff a right to be heard;
(ii) the Council in breach of section 64 of the Planning and Environment Act 1987 (“the P & E Act”), when there were valid objections before it, granted a permit instead of a notice of determination to grant a permit;
(iii) the Council imposed an unlawful condition;
(iv) the Council unlawfully took into account irrelevant circumstances;
(v) clause 2-4 of the planning scheme is ultra vires the P & E Act, and in particular section 6(2)(ka)of that Act; and
(vi) the Council has unlawfully and in breach of section 189 of the Local Government Act purported to sell part of the land which appears to be the subject matter of the planning permit application.
Mr Dreyfus, for the Council, submitted:
1.That in the substantive proceeding the plaintiff, in terms of section 52(1) of the VCAT Act, “brings in issue the matter of the exercise of” several powers under the P & E Act, which is a “planning enactment” for the purposes of that provision. The powers in question include the power in section 61(1)(a) to decide to grant a permit, and the power in section 57(2A) to reject an objection.
2.That the Victorian Civil and Administrative Tribunal (“the Tribunal”) has, as required by section 52(1)(a) of the VCAT Act, “jurisdiction to review the matter of the exercise of, or the failure to exercise”, each of those powers by virtue of section 149B of the P & E Act, enabling an application to the Tribunal for a declaration.
3.That there are no “special circumstances” in terms of section 52(2) of the VCAT Act which would justify the hearing of this proceeding by the Court.
4.That there is a clear legislative intention that the Tribunal should deal with all planning matters, and the Court should be slow to give a direction under section 52(2).
Mr Canavan, for the plaintiff, conceded that all of the causes of action the subject matter of the proceeding, save for those arising under the Local Government Act and the issue relating to clause 2-4 of the planning scheme, could properly be brought to the Tribunal under section 149B. However, he submitted in response to Mr Dreyfus:
Firstly, that section 52(1)(a) of the VCAT Act related only to matters which could be considered by the Tribunal in its review jurisdiction, as opposed to its original jurisdiction, and section 149B of the P & E Act did not confer review jurisdiction upon the Tribunal;
Secondly, that there were a number of “special circumstances” of the kind required by section 52(2), on the basis of which the Court should direct that section 52(1) did not apply to the proceeding.
Finally, that by consenting to certain procedural orders, the Council had put itself in a position where it was not open to it to challenge the jurisdiction of the Court.
The relevant provisions of the P & E Act read, so far as relevant:
6.What can a planning scheme provide for?
(2). . . a planning scheme may—
.. .
(ka)set out classes of land, use or development exempted from section 96(1) or (2);
57.Objections to applications for permits
(1)Any person who may be affected by the grant of the permit may object to the grant of a permit.
(2)An objection must be made to the responsible authority in writing stating the reasons for the objection and stating how the objector would be affected by the grant of the permit.
(2A)The responsible authority may reject an objection which it considers has been made primarily to secure or maintain a direct or indirect commercial advantage for the objector.
(2B)If an objection has been rejected under sub-section (2A) this Act applies as if the objection had not been made.
61.Decision on application
(1)the responsible authority may decide—
(a)to grant a permit;
(b)to grant a permit subject to conditions; or
(c)to refuse to grant a permit on any ground it thinks fit.
64.Grant of permit if there are objectors
(1)The responsible authority must give the applicant and each objector a notice in the prescribed form of its decision to grant a permit.
.. .
(3)The responsible authority must not issue the permit to the applicant—
(a)until the end of the period within which an objector may apply to the Tribunal for a review of the decision to grant the permit; or
(b)if an application for review is made within that period, until the application is determined by the Tribunal or withdrawn.
96.Land owned or permit required by responsible authorities
(2)A person other than the responsible authority must obtain the consent of the responsible authority and a permit from the Minister before carrying out any use or development on any land managed (whether as committee of management or otherwise) occupied or owned by the responsible authority for which a permit is required under the planning scheme for which it is the responsible authority unless the planning scheme exempts the land, use or development from this sub-section.
149B. General application for declaration
(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 sub-section (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.
Section 149B of the Act was enacted by Act number 52 of 1998 with effect from 1 July 1998. It replaced a more limited provision, namely section 14 of the Appeals Act, which was repealed with effect from the same day. Sub-section 14(1) read:
(1)A person may make application in the prescribed form to the [Administrative Appeals] Tribunal for a declaration concerning any matter which the person may refer to the Tribunal for determination by the Planning division.
Clause 2-4 of the State Section of the planning scheme reads as follows, so far as relevant:
Applications under Section 96 of the [Planning and Environment] Act
This clause applies to an application for a permit which, except for the provisions of this clause, would be made to the Minister in accordance with Section 96 of the Act
Exemptions from section 96(1) and 96(2) of the Act
In accordance with Section 6(2)(ka) of the Act, the following classes of use and development are exempted from Section 96(1) and 96(2) of the Act:
class 1
Use of land for -
Car park, . . .and service station.Class 2
Development of land for -
A Class 1 use, . . . subdivision.Class 3
Any other use or development.
Section 52(1) of the VCAT Act
Section 52(1) of the VCAT Act applies to a proceeding in which the plaintiff brings in issue the matter of the exercise of, or the failure to exercise, a power under a planning enactment where, as required by paragraph 52(1)(a), the Tribunal “has jurisdiction to review the matter of the exercise of, or the failure to exercise” the power.
In this context, Mr Canavan drew a distinction between the review jurisdiction of the Tribunal and its original jurisdiction. He relied on El Alam v Council of the City of Northcote [1996] 2 VR 672, in which Mandie J was concerned with section 66A of the Appeals Act (the predecessor of section 52) and with an application to the Administrative Appeals Tribunal (“AAT”) (the predecessor of the Tribunal) for an enforcement order under section 114 of the P & E Act. A submission was made as to the applicability of sub-paragraph 66A(1)(b)(ii) (corresponding to section 52(1)(b)(ii)). His Honour said at 677:
I think the submission is misconceived because the tribunal is not reviewing the matter of the exercise of or failure to exercise the enforcement power but simply dealing with an original application to it for an enforcement order. (Emphasis in the original.)
On that basis, Mr Canavan submitted, section 52(1) only affected matters arising in the review jurisdiction of the Tribunal. He referred to sections 39 to 44 of the VCAT Act, differentiating between the review jurisdiction of the Tribunal and its original jurisdiction. Section 42 defines “review jurisdiction” as “jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker”, and section 41 defines “original jurisdiction” as “the jurisdiction of the Tribunal other than its review jurisdiction”. “Enabling enactment” is defined in section 3 of the VCAT Act as “an enactment by or under which jurisdiction is conferred on the Tribunal”, and it is not in issue that the relevant “enabling enactment” is the P & E Act. Mr Dreyfus relied on section 149B of that Act as conferring jurisdiction on the Tribunal in respect of the matters other than those arising under the Local Government Act. But, as Mr Canavan correctly submitted, section 149B does not confer “review jurisdiction” as defined in section 42. Section 52(1), in his submission, applies only to a matter arising in the review jurisdiction of the Tribunal, and accordingly has no application to this proceeding.
Mr Canavan, very properly, conceded that El Alam, as well as Kantor v Murrindindi Shire Council (1997) 18 AATR 285, a decision of Ashley J to which he also referred, had been decided under a previous legislative regime. Prior to the replacement of the AAT by the Tribunal, when the VCAT Act and other complementary legislation was enacted with effect from 1 July 1998, the power of the AAT in other than planning matters was a power to “review” decisions of decision-makers (see section 25 of the Administrative Appeals Tribunal Act 1984); planning matters were governed by the Appeals Act which consistently referred to “appeals”; and the dichotomy between the original and the review jurisdictions of the Tribunal, now appearing in the VCAT Act, had not been created. The expression “jurisdiction to review” had been carried over from the expression “power to review” in section 66A of the Appeals Act.
Nevertheless, the dichotomy is there, carefully set out and described in sections 39 to 44 of the VCAT Act. Mr Dreyfus submitted that the expression “the Tribunal has jurisdiction to review” did not carry the meaning of “in the review jurisdiction of the Tribunal”, and that if Parliament had intended to use the latter expression it could have done so. However, section 52 appears in Division 3 of the VCAT Act, which Division bears the heading Review Jurisdiction, and follows Division 2, which bears the heading Original Jurisdiction. By virtue of section 36(1)(a) of the Interpretation of Legislation Act 1984, headings to Divisions into which an Act is divided form part of the Act. It is clear from the position of section 52 in the VCAT Act, as well as from its wording, that it must have been the intention of Parliament that that provision should apply, as Mr Canavan contends, only to matters arising in the review jurisdiction of the Tribunal.
That being so, I accept the submission of Mr Canavan that this application must fail in respect of any matter for which the jurisdiction of the Tribunal depends on section 149B of the P & E Act. The submission of Mr Dreyfus is that section 149B would support all of the causes of action raised in the statement of claim other than those arising under the Local Government Act. The submission of Mr Canavan is that it would not support the matter concerning clause 2-4 of the planning scheme.
Section 52(2) of the VCAT Act
I now turn to consider whether there are “special circumstances” to justify a direction under sub-section 52(2) that sub-section 52(1) does not apply at all to this proceeding.
The expression “special circumstances” is frequently used in legislation, and its meaning must in each case be considered in the context in which it appears. Many of the reported decisions on the meaning of the expression arise in the context of a power to extend “in special circumstances” the time allowed for some activity. See for example Rule 56.02(3) of the General Rules of Civil Procedure. That is not the context here, but the reported decisions on such provisions are of some assistance.
In In re Norman (1886) 16 QBD 673 at 677, the English Court of Appeal was concerned with a provision to the effect that a bill of costs was not to be taxed when twelve months had elapsed since its delivery, “except under special circumstances”. That expression is effectively the same as the phrase “in special circumstances” which is in question here. Lopes LJ said at 677:
The statute uses the words “special circumstances”. Those are wide, comprehensive, and flexible words, and I think that the legislature intended them to be so, and that no Court can or ought to lay down any exhaustive definition of them. Charges which in one case would be special circumstances, in another would not be such. It is for the discretion of the judge to say what are special circumstances in a particular case. I cannot express my meaning better than by adopting the words of Bowen LJ in In re Boycott (1885) 29 Ch D 571 at 579 when he said:
Special circumstances, I think, are those which appear to the judge so special and exceptional as to justify taxation. I think no Court has a right to limit the discretion of another Court, though it may lay down principles which are useful as a guide in the exercise of its own discretion. It seems to me to be the true view of the statute, that there must be special circumstances making the payment differ from an ordinary payment, and that the judge thereupon has a discretion as to whether they are sufficient to authorise taxation.
That is entirely in accordance with my view, and expresses what I desire to convey.
That passage from In Re Norman was relied on by FB Adams J in the Supreme Court of New Zealand in Re Hunter, Ex Parte Exclusive English Imports Ltd (in liquidation) [1954] NZLR 746 at 752, considering whether there were “special circumstances” within the meaning of section 100(9) of the Bankruptcy Act 1908 (NZ) to justify delay in lodging a proof of debt. The Court went on to say:
There is also the view expressed by Lord Goddard LCJ in Lines v Hersom ([1951] 1 KB 682, 688; [1951] 2 All ER 650, 653) to the effect that ‘special’ circumstances are those which are not of general application. I respectfully adopt the test suggested by these passages, and do not think it is possible to go further by way of definition. I think it is impossible to regard circumstances as ‘special’ if they are characteristic of the common run of cases. For this reason it will, in general, be impossible to admit proofs under section 100(9) in cases where the failure to prove has arisen from those circumstances, or combinations of circumstances, which commonly lead to and explain a failure to prove in time. There is thus a wide field in which the Court has no discretion.
I would, with respect, although with reservations (as appears from paragraph 24 below) as to the use of the word “exceptional” in the passage from In re Boycott, adopt that view of the correct approach to the expression “in special circumstances” in section 52(2). It is consistent with the view of the Commonwealth Administrative Appeals Tribunal, presided over by Toohey J, then a Judge of the Federal Court, in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, in the context of section 102(1) of the then Social Security Act 1947, which provided that a claim for family allowance must be lodged within 6 months of eligibility arising or “in special circumstances within such longer period as the Director-General allows”. The Tribunal said at 3:
An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
An appeal from that decision (Beadle v Director-General of Social Security (1985) 60 ALR 225) was dismissed by the Full Court of the Federal Court (Bowen CJ, Fisher and Lockhart JJ) who said at 228:
The phrase “special circumstances”, although lacking precision, is sufficiently understood in our view not to require judicial gloss.
I must, with reluctance, disagree with the inclusion of the words “exceptional” and “extraordinary” in the statement by Beach J in Denysenko v Dessau [1996] 1 VR 221 at 224, to which I was referred by counsel, that:
‘Special’ in this connection [i.e. in Rule 56.02(3) of the Rules] must mean something unusual, uncommon, exceptional or extraordinary.
“Exceptional circumstances”, in my view, must be more extreme, further from the ordinary, than “special circumstances”, and “extraordinary circumstances” further again from the ordinary. The expression “exceptional circumstances” is used, for example, in section 109(5)(a) of the Magistrates’ Court Act 1989 in the context of the power to extend time for an appeal. Having said that, I would regard the use of the word “extraordinary” in Denysenko v Dessau as obiter, given the decision which His Honour came to in that case.
There is comparatively little authority on the expression “special circumstances” in section 52(2) or its predecessor section 66A of the Appeals Act. In Grollo v Minister for Planning [1993] 1 VR 627 at 647, Brooking J said, without particularising, and at the end of a lengthy judgment directed to other issues, that he would have been prepared to find that the special circumstances required by section 66A(2) existed in that case.
In Antoniou v Roper (1990) 4 AATR 158 at 189, Murphy J, dealing with section 66A(2) said:
I think there are special circumstances demonstrated in this case. The plaintiffs have alleged mala fides in the legal sense on not insubstantial grounds . . . . Further, the plaintiffs assert that the Minister has acted in a biased manner without hearing them or consulting them as owners, and that there is nothing in the Planning and Environment Act 1987 which in the circumstances entitles him to ride, as it were, roughshod over them.
In Kantor v Murrindindi Shire Council at 297 Ashley J said:
There is not, so far as counsel’s researches reveal it, any instance where the [AAT] has assumed a jurisdiction via section 114 of the Planning [and Environment] Act and section 14 of the [Planning] Appeals Act as counsel for the Shire submitted exists; nor any instance where the existence (or otherwise) of such a jurisdiction has been debated. In my opinion, it is appropriate indeed that this Court consider the matter. Perhaps more importantly, I consider that it is appropriate that this Court pass upon the circumstances necessary to be proved in order that a decision to extend time or amend a permit be successfully attacked; and upon the consequences of a successful attack. Quite apart from the issue of the consequences of breach of section 52(1) [of the Planning and Environment Act], those matters, even if I was to conclude the Tribunal has the jurisdiction which counsel for the Shire asserted, would abundantly satisfy me of the existence of special circumstances within section 66A(2) of the Planning [Appeals] Act.
His Honour noted that the passages cited above from Grollo and Antoniou were “equally applicable to the present matter, given always that the particular ‘special circumstances’ will differ.”
Mr Canavan submitted that, proceeding on the basis set out in paragraph 6 above, a number of “special circumstances” for the purposes of section 52(2) were present.
(i)In failing to afford the plaintiff an opportunity to be heard before rejecting its objection, the Council had failed to afford to the plaintiff natural justice and procedural fairness.
I do not consider that to be a claim which takes this matter out of the common run of cases.
(ii)This was the first opportunity for the Court to provide an authoritative ruling on:
(a)the construction and operation of section 57(2A) of the P & E Act and the procedure to be adopted by a council in exercising the discretion conferred by that provision, having regard to the consequences of its exercise;
(b)whether a permit issued in breach of section 64 of the Act was void or voidable; and
(c)the validity of clause 2-4 of the planning scheme and the drafting technique there utilised.
Each of those questions does take the matter out of the common run, and to regard them as “special” is consistent with the approach of Ashley J in Kantor.
(iii)It was undesirable that the plaintiff’s causes of action should be split between different fora, given that it was common ground that the cause of action founded on section 189 of the Local Government Act must be litigated in this Court. That cause of action was linked to the cause of action based upon a discrepancy between the land described in the planning application and the advertising of the application, and the land in respect of which the permit was granted.
This is again a matter which takes this case out of the common run.
(iv)It was universally acknowledged that our Court system should provide a one stop shop.
This is a supporting argument rather than a special circumstance.
Having found there to be special circumstances which justify the hearing by the Court of this proceeding, to the extent that section 52(1) is relevant to it, I have a discretion under section 52(2) to direct that subsection (1) does not apply to the proceeding. Given the nature of the circumstances which I have found to be special, I consider it appropriate that I make that direction.
I have mentioned the final submission of Mr Dreyfus that there is a clear legislative intention that the Tribunal should deal with all planning matters, and that the Court should accordingly be slow to give a direction under section 52(2). In that context I would refer to the following passage from the judgment of Ashley J in Kantor v Murrindindi Shire Council at 297, which, while not entirely on point is not without relevance on that issue:
It is the sine qua non of the jurisdiction of the Tribunal to grant a declaration that the matter is one which the person may refer to the Tribunal for determination by the Planning Division. In that context, the avowed intent of Parliament in 1987 to make the Tribunal a “one stop shop” in planning matters should not be disregarded. But the language of the relevant legislation should not be tortured in an attempt to fit the circumstances within Parliament’s stated intention. Where, as here, the legislation addresses particular matters when prescribing rights of appeal to the Tribunal, and is silent as to other matters, one should at least be hesitant about discerning the existence of much larger rights of access to the Tribunal in language which doubtfully fits the circumstances.
In view of the conclusion I have reached, it is not necessary for me to deal with Mr Canavan’s third submission, relating to the effect of the consent of the Council to the procedural orders, and I do not do so.
For the reasons given, the Council’s summons will be dismissed.
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