O'Toole v Yarra Ranges Council
[2020] VSC 407
•23 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 00421
| ALEXANDER O’TOOLE (formerly known as Stephen Boyd-Squires) | Plaintiff |
| v | |
| YARRA RANGES COUNCIL | Defendant |
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JUDGE: | Keith JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 May 2020 |
DATE OF RULING: | 23 June 2020 |
CASE MAY BE CITED AS: | O’Toole v Yarra Ranges Council |
MEDIUM NEUTRAL CITATION: | [2020] VSC 407 |
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PRACTICE AND PROCEDURE - Leave to appeal decision of VCAT - Application six months out of time - Application granted only where there is a real prospect of success – Applicants submissions regarding health issues, being a self-represented litigant and the lodging of a judicial complaint explain delay in lodging application, but do not justify it - Decision of tribunal not shown to involve error or a question of law granting leave to appeal - Applicant asserts his fee simple interest in his land is immune to attack by refusal of building permission - Applicant asserts tribunal contravened the Town and Country Planning Act 1958 and the Subdivision Act 1998 - Applicant assert he had retrospective permission to building on his property, based on correspondence from 2006 – Applicant asserts decision of Tribunal contravenes International Human Rights Charter - Applicant placed reliance on Terramatrix report - Applicant asserted Country Fire Authority findings as to distances from bushland incorrect – No question of law arises from any of these points - Applicant wrongly relies on academic article in Melbourne University Law Review - Appeal has no real prospect of success - Any extension of time futile – Leave to appeal should be refused - Proceedings dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the Respondent | Mr R Appurdurai | Russell Kennedy |
JUDICIAL REGISTRAR
The applicant Mr O’Toole made an application in 2018 to the respondent Council for the grant of a planning permit. The application was refused by the respondent as the responsible authority for the relevant statutory scheme. The subject land is 1854 Warburton-Woods Point Road, McMahons Creek 3799.
Mr O’Toole applied to VCAT for a review of that decision and on 31 May 2019 the decision of the Council was affirmed. The decision of the Tribunal is cited as [2019] VCAT 810.
In this proceeding, Mr O’Toole seeks leave to appeal from the decision of the Tribunal. The appeal is regulated by s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). By order of this Court dated 17 March 2020, the hearing and determination of an extension of time application and the question of leave to appeal have been referred to me for hearing and determination.
Mr O’Toole requires an extension of time as the proceeding in this Court was not commenced until January 2020. Section 148(2) requires an application for leave to appeal be made within twenty-eight days of the order of the Tribunal. The application was made approximately six months after the expiration of that time limit.
The application seeks leave to appeal and s 148 (2A) provides the Court may grant an application for leave to appeal only if satisfied the appeal has a real prospect of success.
Procedural History
The record in this Court shows the applicant commenced this proceeding on 2 January 2020. The effect of r 28A.04 is such that although documents may not have been accepted for filing by the Court, the first lodgement date is given to the proceedings once procedural irregularities have been resolved. In this case the document filed as a ‘Notice of Appeal’ is dated 28 January 2020 and an application for fee waiver was granted by the Court on 29 January 2020. The effect of the Rules is the commencement date is nevertheless taken to be the earlier date of 2 January 2020. This is because the ‘a document uploaded into RedCrest is taken to have been filed in RedCrest at the time it is uploaded.’[1] I proceed on that basis for the purposes of the application for an extension of time.
[1] Supreme Court (General Civil Procedure) Rules 2015 (Vic) s 28A.05.
The applicant has filed the following affidavits and exhibits, which include submissions in addition to evidence and documents relied on for the application and the appeal:
(a) on 4 February 2020, the applicant filed an affidavit, apparently dated 18 December 2019, comprising three pages, together with a bundle of exhibits marked 2A to 2H and some additional documents comprising twenty-nine pages. The same documents (both affidavit and exhibits) were also filed on 11 February 2020 (‘first affidavit’);
(b) on 5 February 2020, the applicant filed an affidavit, apparently dated 5 February 2020, comprising four pages, together with a bundle of exhibits marked 1A, 1B and 1C, comprising sixteen pages (‘second affidavit’);
(c) on 14 February 2020, the applicant filed an affidavit, apparently dated 14 February 2020, although the Justice of the Peace has not dated the document at the time of taking the affidavit. The applicant also filed exhibits to the affidavit. Exhibit 3A is a report by Terramatrix as to bushfire compliance issues. Exhibit 3B is an academic article published in 1974 in the Melbourne University Law Review (‘third affidavit’); and
(d) on 2 April 2020 the applicant filed an affidavit dated 31 March 2020, but apparently taken on 1 April 2020 (the affidavit does not say whether it was sworn or affirmed, but rather shows ‘Sworn or affirmed’). The document contains submissions directed to the extension of time application (‘fourth affidavit’).
On 18 March 2020, the Court made orders on the papers with the consent of the parties. The orders listed the extension of time application for hearing and determination. On 17 March the Court ordered the hearing and determination of that application be referred to me pursuant to r 84. I received the written submissions of the parties and heard oral submissions by a remote Court hearing via Zoom and telephone on 8 May 2020.
The consent orders included leave for the applicant to file and serve an amended Notice of Appeal, with the addition of the Country Fire Authority (‘CFA’) as a respondent. No amended Notice of Appeal has in fact been filed. There is an email from the applicant indicating it had been filed but it is not part of the Court file. The CFA did not appear before me at the hearing on 8 May 2020. The presence of the CFA was not necessary for the hearing of the application for an extension of time. No submission was made to me that the hearing could not proceed in the absence of the CFA.
Extension Of Time
The principles to be considered for an application for an extension of time may be found in decisions of the Court of Appeal such as Trkulja v Dobrijevic & Ors[2] and Gippsreal Ltd v Kenny.[3] Primarily, the guiding principle in such matters is the discretion to extend time is given to enable to court to do justice between the parties. The Court of Appeal has identified the following considerations:
[2] [2015] VSCA 281.
[3] [2016] VSCA 65.
(a) the applicant to the extension of time should explain the delay and this explanation must be justifiable in the circumstances;
(b) the history of the proceedings, and the conduct of the parties;
(c) whether, the successful party (at first instance) has a legitimate interest in the finality of the original decision in their favour being maintained; and
(d) the prospects of success for an appeal, bearing in mind the parties (at that point in time) would not be in a position to make a full statement of the argument, nor would the court be able to make a detailed assessment.
The principles have been stated in many cases, including by Brennan CJ and McHugh J in Jackamarra v Krakouer,[4] where the criteria to be considered included:
[4] [1998] HCA 27, [4].
(a) the length of the delay;
(b) the reasons for the delay; and
(c) whether any prejudice would be suffered by the respondent, or the administration of the court, if the extension was granted.
Derham AsJ in Advaland Pty Ltd v Bitcon and Anor[5] summarised the common principles surrounding the granting of an extension of time. His Honour outlined criteria to be considered in the exercise of an extension of time, being:
(a) the length of the delay;
(b) the reasons for the delay;
(c)whether there is an arguable case for the grant of leave to appeal if an extension of time is granted;
(d)the weighing of the extent of prejudice to the applicant if no extension is granted and to the respondent if time is extended; and
(e)the importance of the subject matter.
[5] [2015] VSC 235, [39].
In considering an application for an extension of time, the court should bear in mind the nature and purpose of the statutory timeframe prescribed in which to commence a proceeding or take a step in a proceeding. The discretion of the court to allow an extension of time for an application made outside the prescribed time should not automatically override the statutory prescribed deadline simply because there is an arguable basis for such an extension. As McHugh J in Brisbane South Regional Health Authority v Taylor[6] observed:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.[7]
[6] [1996] HCA 25
[7]Ibid, [7].
The need to consider the interests of the parties to a dispute may also be seen in the observation of Emerton J in Brandwill Holdings Pty Ltd v Jonson & Ors.[8] His Honour observed that compliance with time stipulations satisfies the ‘general need for finality in litigation’ and provides the parties to a dispute a measure of certainty. Such comments are directed to ensure there is no ‘untoward delay in achieving some finality in litigation’[9] and that any question of law is quickly identified for the purposes of the appeal (see Brandwill Holdings Pty Ltd, [33]). For these reasons it is necessary for an extension of time to not merely be arguable, but justifiable, in the circumstances.
[8] [2014] VSC 356.
[9] Trkulja v Dobrijevic & Ors [2015] VSCA 281, [60].
The Court of Appeal in Fernandez v EJ Industries[10] recently summarised the relevant principles by noting ‘an extension of time will not be granted if the appeal ‘is so devoid of merit that it would be futile to extend time.’[11]
[10][2020] VSCA 139.
[11]Ibid, [10]; Jackamarra v Krakouer (1998) 195 CLR 516, 521 (Brennan CJ and McHugh J). See also Gippsreal Ltd v Kenny [2016] VSCA 65, [21] (Kyrou JA); Kambouris v Kiatos [2016] VSCA 266, [23] (McLeish JA and Riordan AJA).
The applicant has relied on the fact he lodged a formal complaint to the Judicial Commission on 18 June 2019, shortly after the Tribunal decision became available.[12] The applicant relies on the fact the decision was made on 2 December 2019 and no action was to be taken against the Tribunal member.
[12]The fourth affidavit at paragraph 1, in the nature of submissions. This ground is also addressed in exhibit 2G filed with the first affidavit [page 28 of the exhibits].
I do not accept the making of a complaint to the Judicial Commission provides any support to the application for an extension of time. The complaint would have no consequence on the decision. It was always necessary to make an appeal if there was to be a challenge to the decision. The legislature has stipulated an appeal should be commenced within twenty-eight days. There is no basis for an application for leave to appeal to be put on hold, or deferred, by reason of a complaint to the Commission.
The applicant has informed the Court that contact was made with the ‘self-represented litigant section’[13] of the Court.[14] The applicant says the email from the Court was on 9 December, but the Court is not told when the first contact was made. There is no suggestion contact was made within twenty-eight days from the decision of the Tribunal. In fact, an inference is open that no contact was made until after the decision of the Judicial Commission.
[13]The fourth affidavit at paragraphs 2.
[14] Ibid, paragraphs 2 and 6.
I do not take into account any time after 2 January 2020, when the applicant was apparently making efforts to file documents, but needed assistance from the Court to ensure the documents could be filed. The applicant says ‘many affidavits’ were rejected and the assistance of the self-represented section of the Court was required.[15] The evidence indicates all of this occurred no earlier than December 2019, and probably into January 2020. Making due allowance for the applicant being a self‑represented litigant, this issue provides no explanation for the period of delay from June to December 2020 and the failure to take steps to institute the appeal.
[15] Ibid, paragraph 6.
The applicant has provided evidence he receives medical treatment for rheumatoid arthritis[16] and the submissions describe the impact suffered as a result of the condition.[17] The reports of Dr Mack, the rheumatologist, do not go so far as to describe any loss of function or inability to attend to daily affairs. The reports describe medication and treatment, but do not record any loss of function such as would justify a delay in the conduct of this appeal.
[16] Exhibits 2E filed with the first affidavit are medical reports from August 2018 and June 2019.
[17] The fourth affidavit at paragraphs 3 and 4 and exhibit 2G filed with the first affidavit.
From the information provided by the applicant, he was able to attend to the complaint to the Judicial Commission and, in December 2019, contact the Court. There is, with respect, no sufficient evidence of symptoms that would prevent the commencement of the appeal. I accept the applicant suffers ill health and there may be inconvenience and intrusion to his daily life. However, there is insufficient evidence to say such health issues caused a delay of some six months.
The applicant also provides information about his application to the Department of Veterans Affairs.[18] Although it is described as an ‘ongoing’ application, there is no supporting material and no indication of the times at which the application was under consideration. There is nothing to indicate how it is relevant to the application for an extension of time.
[18] The fourth affidavit at paragraph 5.
There is a suggestion the applicant has had to spend time looking for alternative accommodation,[19] but nothing specific was said to that effect to justify any particular period of delay. I do not consider that submission to assist the application for an extension of time. As with other aspects of the submissions, there appear to be some activities to which the applicant is able to attend to, suggesting his health conditions are not overwhelming.
[19] Exhibit 2G filed with the first affidavit, but no supporting documents are provided.
The submissions for the applicant also refer to the need to research property law and Supreme Court procedure[20] and the submission is made that ‘all these obstacles resulted in me being quite late in lodging an appeal. To be realistic twenty-eight days might be ok for an expert lawyer but for me it was impossible considering my medical condition and lack of procedural knowledge.’[21]
[20] The fourth affidavit at paragraph 6.
[21] Ibid, paragraph 7.
Taking into account the several matters advanced by the applicant both individually and together, I am not satisfied there are grounds to justify an extension of time. The health issues, judicial complaint and status as a self-represented litigant explain the delay in one sense, but do not provide a justification for the delay that warrants the exercise of the power of the Court to extend time.
The respondent is entitled to the benefit of the decision of the Tribunal that has upheld the refusal of planning permission. The timetable for an appeal from a decision of the Tribunal and the need for finality of litigation should not be put aside on the basis of the grounds advanced by the applicant.
Any hardship or prejudice to the applicant as a result of the refusal to grant an extension of time must be considered in the light of the prospects for any appeal. For the reasons that follow, I consider the prospects of success are insufficient to allow the Court to say there would be any prejudice to the applicant as a result of a refusal to grant an extension of time.
The issues relied on by the applicant as to the merits of the appeal, and the questions of law said to require leave to appeal from the decision of the Tribunal, are set out in the affidavits[22] and were the subject of the oral submissions made during the hearing before me on 8 May 2020. Documents relied on by the applicant have been filed in the exhibits including: correspondence and title documents;[23] an expert report as to bushfire risk issues by Terramatrix;[24] and an academic law journal article.[25] I have read the materials and considered the oral submissions made by the applicant during the hearing.
[22] The first and second affidavit.
[23] Exhibits 2A to 2H except for E (medical reports) and G (submissions) and Exhibits 1A, 1B and 1C.
[24] Exhibit 3A.
[25]Exhibit 3B citing S Ricketson Legal Controls over Planning the Use of Land in Victoria (1974) 9 Melbourne University Law Review 691.
The submissions for the respondent address the extension of time and the merits and make the submission ‘even if the court were persuaded that other criteria… justified an extension of time, the court’s assessment of the merits of the application for leave to appeal would be determinative of the application for extension of time.’[26]
[26] Respondent’s Outline of Submissions filed 4 May 2020 at [15].
Leave To Appeal
Pursuant to s 148 (2A) of the VCAT Act, the Trial Division of the Supreme Court may grant an application for leave to appeal only if it is satisfied the appeal has a real prospect of success. The determination of the application for leave to appeal has been referred to me for hearing and determination.[27]
[27] Order of Daly AsJ dated 17 March 2020.
Leave to appeal decisions require the exercise of discretion. In Department of Premier and Cabinet v Hulls[28] it was emphasised that the discretion to grant leave is not fettered, and the Court of Appeal said at [9]:
As the leave is sought under s.148, that section must be the starting point for any consideration of what has to shown [sic] by an applicant seeking leave. Because an appeal under s.148 lies only on a question of law it follows that if leave is to be granted the applicant must at least identify a question of law (as distinct from a question of fact) and a question of law which is important to the appeal’s succeeding or failing. Thus, if the would-be applicant seeks to have the order below set aside and reversed, the question of law must bear upon the granting of that relief. The question of law must be such that, if there is shown to be error in respect of the question, the applicant’s claim to relief will thereby be advanced.
[28] [1999] VSCA 117, [8].
The principles to be applied on such an application are not in issue in this matter. The submissions for the respondent properly summarised the principles by reference to relevant case law.[29]
[29]Kennedy v Shire of Campaspe [2015] VSCA 47; Mildura Rural City Council v VABDS Developments Pty Ltd [2012] VSC 542; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.
The reasons of the Tribunal set out the relevant legislative scheme for the application of planning permission.[30] It is not necessary for that scheme to be recited here. It is summarised in the outline of the submissions for the respondent. As the submissions point out, the legislative scheme and aspects of it that are relevant to this proceeding have been the subject of decisions of the Court and the Court of Appeal.
[30]The reasons appear as exhibit 2 to the first affidavit and the submissions for the respondent provide a summary at [31] and [32].
It is established that a planning permit cannot be granted unless the criteria with respect to the applicable ‘permit triggers’ are satisfied. Members of the Court of Appeal analysed the legislative scheme for planning regulation in Boroondara City Council v 1045 Bourke Road Pty Ltd.[31]In doing so, the members of the Court referred to and quoted from Rozen v Macedon Ranges Shire Council.[32] There is no basis to doubt the validity of the legislative scheme or to consider the Council in exercising its powers, or the Tribunal in conducting the review, fell into error by the application of the scheme.
[31] [2015] VSCA 27 at [37]-[38] and [153].
[32] [2010] VSC 583, [171].
In relation to this application for a planning permit, the ‘permit triggers’ included consideration of the Green Wedge Zone as part of the Yarra Ranges Planning Scheme and the Bushfire Management Overlay. The Scheme and the BMO were recently considered in Gray v Minister.[33]
[33]Gray v Minister for Energy, Environment and Climate Change [2020] VSCA 121, refusing leave to appeal from Gray v Minister for Energy, Environment and Climate Change [2019] VSC 382.
The reasons for decision provided by the member of the Tribunal set out the ‘key issues’[34] and the member commented ‘the way in which the proposal addresses bushfire risk is a threshold issue in this case’.[35] The reasons then proceeded to review the evidence and make findings on the issues, under descriptive headings: ‘Does the proposal appropriately address bushfire risk?’[36]; ‘Landscape siting and design objective’[37]; ‘defendable space and construction objective’[38]; and ‘Does the proposal otherwise reduce bushfire risk?’.[39] The member found in each consideration the proposal failed to satisfy the objectives.
[34]Exhibits to the first affidavit include the reasons and the key issues are summarised at [9] - [13] - pages 6 - 7 of the VCAT reasons.
[35] Reasons at [12].
[36] Reasons at [14] - [21].
[37] Reasons at [22] - [29].
[38] Reasons at [30] - [53].
[39]Reasons at [54] - [61], although the copy exhibited to the affidavit ends at [51] on page 15 of 16 and page 16 is not included. Nothing in my view turns on that omission.
The submissions for the respondent include a summary of the reasons of the Tribunal and the submission that the Tribunal correctly identified the issues, applied the scheme and made findings on the issues against the applicant. My review of the reasons of the Tribunal and the principles for consideration of leave to appeal show that this submission should be accepted. The decision of the tribunal has not been shown to involve error, or a question of law which could support a grant of leave to appeal.
The submissions for the applicant appear in several of his affidavits and oral submissions were made at the hearing of this matter on 8 May 2020. During the hearing, which was conducted by Zoom as a remote hearing, the applicant made most of his submissions by telephone. This was as a result of the video image for Zoom having limited connectivity, causing the image to freeze and the connection to be lost. The telephone audio, without the video image, allowed for the hearing to proceed without interruption. The applicant presented his submissions and was able to participate in the hearing and respond to the submissions of the respondent.
The applicant by his Notice of Appeal seeks to assert the interest in the land he holds is an interest in fee simple and that his title is immune from attack by a refusal to permit a building to be erected on the land. This appears in question of law 1 and question of law 6. The question of law has no substance and the grounds of appeal based on such questions have no prospect of success.
Question of law 2 asserts the Tribunal has contravened the Town and Country Planning Act 1958 and the Subdivision Act 1998. The question has no substance. The decisions made in accordance with the Planning and Environment Act 1987 cannot be challenged in the manner asserted by the applicant.
Questions 3 and 4 seek to rely on events from 2006, which the applicant relies on to say he had retrospectively obtained planning approval for a dwelling and outbuildings in 2006. The decision of the tribunal in relation to the application for a planning permit in 2019 cannot be shown to be in error by reason of the correspondence written in 2006. The tribunal has properly dealt with the two-hundred-and-six documents and the reasons show why the arguments for the applicant have no prospects of success.[40]
[40] Reasons at [56] - [57].
Question 5 seeks to invoke the ‘International Human Rights Charter; general assembly 217 1948’ to say the decision of the Tribunal is in contravention of specific articles of that Charter. The decision of the Tribunal is on a review authorised by the legislation of the Victorian Parliament. It is a review of a decision of a Council on a planning application, the procedure for which is established by legislation. There is no occasion for consideration of any charter. The appeal has no prospect of success.
The submissions for the applicant place reliance upon the report of the firm Terramatrix, a bushfire management consultancy firm. That report was considered by the Tribunal. The Tribunal considered the report together with other evidence and concluded the planning proposal did not meet the objectives of the BMO and the Scheme. The copy of the report exhibited to the affidavit of the applicant in this Court contains only every second page of the Terramatrix report. That does not prevent me from concluding the matter as the grounds of appeal must go to a question of law. The Tribunal properly considered the report, weighed its findings with other evidence and upheld the decision of the Council to refuse the planning permission.
The Tribunal noted the CFA and the consultant engaged by the applicant categorised the bushland as posing an extreme bushfire risk.[41] The Tribunal observed the CFA are a determining referral authority for decisions under the BMO and objected to the grant of a permit on the basis of bushfire risk.[42] The applicant sought to argue there were errors of fact in the findings as to distances to bushland. I am not satisfied such errors were made by the Tribunal. Irrespective, they were not shown to involve a question of law as opposed to fact. The material findings of the Tribunal as to the failure to address the requirements of the BMO[43] were fatal to the review and the appeal to this Court must be limited to a question of law. None of the issues complained of by the applicant raise a question of law or have a reasonable prospect of success.
[41] Reasons at [3].
[42] Reasons at [6].
[43] Reasons at [11] and [21] and elsewhere.
The applicant places reliance on an academic article from 1974, in relation to controls on use of land.[44] The applicant appears to rely on the article to support his argument that the refusal to grant planning permission is inconsistent with his title and interest in the property and therefore unauthorised. With respect that is not a view to be found in the journal article. The author says:
The main purpose of this study has been to examine the ways in which the use of private property is regulated and restricted by statutory planning controls. If private property is seen as a bundle of rights, then the sticks in that bundle have been severely reduced in number.[45]
[44] Exhibit 3B to the affidavits, being Ricketson (n 25) 691 – 734.
[45] Ricketson (n 25) 734.
It can be seen the author is not arguing such planning controls are invalid or unenforceable. Nor is the author arguing property rights and title have any supreme power against such controls, as demonstrated from a further passage in which the author says:
In an age where the mass society looms ever closer the days of private property seem numbered; town planning as an attempt to rationalised land use in the public interest, ironically, may prove the one way in which the individuality, formerly associated with the private property ethos, may be preserved. Given the inescapable interdependence of all persons in an urban community and the problems of pollution and population growth, the only logical outcome seems to be ever increasing controls on the use of property if mankind is survive at all.[46]
[46] Ibid.
The irony in 2020 is the article is relied on by the applicant for a contrary argument, notwithstanding the tragedy of the 2019 bushfires and the response to the COVID-19 pandemic in 2020.
The appeal has no prospect of success and cannot be said to have a real prospect of success. Accordingly leave to appeal should be refused. Even if there were grounds for an extension of time it would be futile if the extension were to be granted. The proceedings will be dismissed.
ORDERS
The application for an extension of time to seek leave to appeal is refused.
Proceedings dismissed.
The respondent is to inform the applicant and the Court within 14 days what, if any, order as to costs is sought. The Court will give directions for any further submissions on costs if necessary.
The directions hearing on 24 June 2020 will be vacated.
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