Pogorzelski v Latrobe City Council
[2020] VSC 718
•10 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2019 02695
| MICHAEL POGORZELSKI | Applicant |
| v | |
| LATROBE CITY COUNCIL | Respondent |
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JUDGE: | Kennedy J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Determined on the papers; further submissions received 22 October 2020, 26 October 2020 and 28 October 2020 |
DATE OF JUDGMENT: | 10 November 2020 |
CASE MAY BE CITED AS: | Pogorzelski v Latrobe City Council |
MEDIUM NEUTRAL CITATION: | [2020] VSC 718 |
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ADMINISTRATIVE LAW – Judicial review – Application to review decision of VCAT not to extend planning permit – Natural justice - Whether applicant was put on notice of issues – Whether Tribunal failed to take account of relevant considerations - No error - Planning and Environment Act1987 (Vic) s 69(2) - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 - SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Self-represented with assistance of Cecile Leibowitz | |
| For the Respondent | Sherwell Harrison Munro Lawyers |
HER HONOUR:
This is an application for leave to appeal on a question of law pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) against orders made by the Victorian Civil and Administrative Tribunal (the Tribunal) on 21 May 2019 which affirmed a decision of the Latrobe City Council (the Council) refusing to extend a planning permit.
Two questions of law have been identified:
(a) Did the Tribunal err in failing to accord the applicant natural justice?
(b) Did the Tribunal err in failing to have regard to relevant considerations?
Background
The applicant is the owner of certain land at 4-6 McClure Court, Traralgon (the Land).
In April 2013, at the direction of the Tribunal, planning permit 2011/297 (the Permit) was granted to allow the construction of 16 dwellings on the Land.
Condition 16 of the Permit provided:
16. This permit will expire if one of the following circumstances applies:
a) The development is not started within two years of the date of this permit; or
b) The development is not completed within four years of the date of this permit.
Plans were endorsed under the Permit in April 2014.
In March 2015, the Permit was extended for a period of 18 months to expire if the development did not commence by October 2016, or was not completed by October 2018. The basis for the extension was the applicant’s ill-health.
In November 2016, the Permit was further extended to expire if the development was not commenced by April 2018, or not completed by April 2020. The basis for the extension was the applicant’s ill-health.
In March 2018, the applicant applied for a further 18 month extension of time within which to commence and complete the development. The basis for the application was again the applicant’s ill-health.
On 7 May 2018, the Council resolved to refuse the applicant’s request for an extension of time. This decision was made contrary to a recommendation contained in an officer’s report that the Permit be extended based on a consideration of the ‘Kantor principles’ as outlined in Kantor v Murrindindi Shire Council (‘Kantor’).[1]
[1](1997) 18 AATR 285 (‘Kantor’).
The materials suggest that the proposed development the subject of the Permit has been the subject of strong feelings in the local community.
In any event, the Council refused the extension on the following grounds:
(a) The application was inconsistent with Planning Scheme Amendment C105 ‘Live Work Latrobe’, and, in particular, the Draft Housing Strategy.
(b) The landowner was ‘warehousing’ the Land (i.e. holding the land with the Permit in order to profit from a future sale), and the total lapse of time since the issue of the Permit was excessive.
Proceedings before the Tribunal
In seeking to review the Tribunal’s decision the applicant relied on a doctor’s certificate dated 11 February 2019 which relevantly provided:
Currently, Michael is being worked up for possible cardiac failure, as well as stress and anxiety. The symptoms he experiences have had a significant impact in his ability to undertake activities and deal with large scale projects.
Since 2013 Michael has required multiple admissions to the Alfred Hospital and has undergone multiple operations, also impacting on his day to day function.
Michael is engaged in care and I expect his symptoms to improve over time.
No other evidentiary material was provided by the applicant.
The applicant was represented by Counsel in proceedings before the Tribunal. In Counsel’s written submissions he highlighted that the applicant had faced health issues which had been ‘the principal reason why he hasn’t yet proceeded to commence the project.’ The submissions set out the Kantor principles at some length, and placed primary reliance on the council officer’s report cited above (which was said to address these principles).
The Council’s written submissions identified two primary issues as follows:
·whether there had been ‘warehousing of the Permit or a failure to act’;
·whether there had been a change in planning policy by reason of Amendment C105 ‘Live Work Latrobe’ (which suggested that the development proposed conflicts with the proposed policy direction for the area).
In relation to the first issue identified, the Council submitted, citing Kantor, that the intention of the applicant to proceed with a development, that is, ‘taking active steps to develop the land in accordance with the Permit,’ could be expected to tend in favour of the grant of an extension. It further submitted that the ‘inaction of the applicant’ over a period of six years did not advance the fair, orderly, economic and sustainable development of the land. Additionally, it highlighted that it was not appropriate to allow an owner of land to obtain a windfall from the ‘warehousing’ of a permit.
The Council submitted that it was incumbent upon the applicant to show that there was merit to the application for an extension of time, and that there was nothing that satisfied the requirements of the tests to show that the Permit ought to be extended.
Tribunal’s reasons
In considering that the Permit should not be extended the Tribunal said (at paragraph [8]):
I have reached this conclusion primarily because I have not been presented with submissions or evidence that demonstrates to my satisfaction that legitimate steps have been taken to develop the land in accordance with the permit. In circumstances where a third extension of the permit is being sought, the failure of the applicant to demonstrate that such steps have been taken is a very relevant consideration.
After setting out the background, the Tribunal recorded that, when deciding whether to extend a permit, the considerations outlined by Ashley J in Kantor were relevant, which were summarised as follows:
·whether there has been a change of planning policy;
·whether the land owner is seeking to warehouse the permit;
·any intervening circumstances which bear upon grant or refusal of the extension request;
·the lapse of time between the permit and the request;
·whether the time limit for the development originally imposed and thereafter extended was adequate in the circumstances;
·the economic burden imposed on the land owner by the permit; and
·the probability of a permit issuing should a fresh application be made.
The Tribunal noted the evidence of the medical practitioner to the effect that the applicant’s health impacted on his ability to undertake activities and deal with large scale projects (at paragraph [13]). Further, that the applicant relied heavily on the council officer’s support for the proposed extension which had concluded that there had not been any change of planning policy because Planning Scheme Amendment C105 was at early stages of preparation; and that the land owner was not warehousing the Permit.
The Tribunal went on to make findings in relation to the two grounds for the Council’s decision.
In relation to the alleged change in planning policy, the Tribunal was unable to conclude that the effect of the adopted Amendment C105 was so significant that it justified a finding that there was a low probability of a permit issuing should a fresh application be made (at paragraph [26]).
Turning to the issue of lapse of time and warehousing, the Tribunal highlighted that Kantor imposed an obligation on the applicant to advance some reason or material in support of the grant of an extension. It noted the Council’s submission that poor health was not of itself enough to meet the obligation to extend the Permit.
The Tribunal’s reasons then relevantly continued as follows:
29The permit has existed for six years and has been the subject of two previous extensions. It is reasonable to expect that the Applicant ought to be able to demonstrate actions undertaken by him or on his behalf over that time aimed at acting on the permit or at least advancing the process to give effect to the permit. This has not occurred or at least I have not been presented with any material that indicates such actions have occurred.
…
31In this case, the lapse of time, the fact that this is the third extension request, combined with the lack of any material indicating that no legitimate actions have been taken to act on the permit, leads me to the conclusion that the Applicant has not established that he is not seeking to warehouse the permit.
32In making this finding I am not in any way casting doubt on the Applicant’s ill-health or that this has contributed in some way to the lapse of time between the grant of the permit and the request to extend it. There are however actions that could have been undertaken by or on behalf of the Applicant to demonstrate a legitimate intent to act on the permit. The preparation of documentation associated with obtaining a building permit comes to mind as an example of such an action. This has not occurred. Apart from the endorsement of plans under the planning permit in 2014 and the three requests to extend the permit, no other action has been taken to act on the permit.
…
34In this case the Applicant’s reliance on the Council officer’s report and support for the granting of an extension has not assisted me to any significant degree. This is because the report does not demonstrate a depth of analysis that I can reasonably rely on to grant the request to extend the permit.
35For the reasons I have discussed above, the Applicant’s ill-health is a contributing and relevant consideration but is not of itself sufficient to establish a reason for the total lapse of time. In the absence of information about other extenuating circumstances impacting on the Applicant’s capacity to act on the permit, the Applicant has not met his obligation to advance some reason or material in support of the grant of an extension. I have not been presented with material that demonstrates the Applicant is not seeking to warehouse the permit.
The decision of the Council was thereby affirmed.
Proceedings before this Court
The application for leave to appeal was filed on 18 June 2019 and, in due course, was listed for hearing on 21 October 2020.
On 7 October 2020 the Court received an email from a person described as a ‘friend/ carer’ of Mr Pogorzelski, Ms Cecile Leibowitz. Ms Leibowitz was present at the hearing before the Tribunal where she was described as an ‘honorary business partner’ of the applicant. She appears to hold caveats over the Land based on loans given towards the project. The email attached a medical certificate and requested that the Court postpone the hearing, or alternatively asked whether it was possible for the Court to make a ‘determination on the papers.’
The medical certificate attached was dated 5 October 2020, and relevantly read as follows:
Michael has been suffering from multiple chronic condition which includes hypertension, depression, anxiety and glaucoma. His blood pressure is fluctuating and most of the time it is very high. Michael is also having insomnia due to his anxiety and depression, which is further complicating his high blood pressure.
Michael is also suffering from glaucoma and already had surgery of his both eye (sic) on 8th of September 2020. He is due for another surgery for his both eye (sic) on 8th October 2020. After the surgery Michael will need to take rest and use eye drops at regular interval (sic).
As I have understood Michael is due for a court hearing on 21st October 2020. For your reference Michael will be unfit to participate in his regular activities including attendance to court from 8th October 2020 to 30th November 2020 at which time his ability to resume his activities will be re-evaluated.
After indicating that I would consider making a determination on the papers if there was consent, the parties agreed to this course. They further agreed that the documents to be considered by the Court were those contained in the eAppeal Book (as well as the authorities cited in the eAuthority Book). However, there was a disagreement as to whether the Court should also consider certain other evidence not before the Tribunal.
Given the consent of both parties, I vacated the hearing and commenced to consider the matter. In relation to the disputed material I ordered the applicant to identify the additional material (beyond that contained in the eAppeal Book) sought to be adduced, as well as to provide a short submission in support of the admissibility of the material. I further ordered the Council to provide a short submission in response. I otherwise ordered that the matter could be determined on the papers.
The admissibility of this extra material will therefore be dealt with as a separate matter, below.
Preliminary issue re ‘additional material’
By email dated 22 October 2020 Ms Leibowitz provided a document entitled ‘extra material index.’ The document contained a short submission which read:
Mr Pogorzelski was accused of ‘Warehousing’, but evidence to the contrary was not taken into consideration when the Determination to deny extension of his Planning Permit was made.
The Barrister was not put on notice regarding the absence of this evidence.
This evidence is shown in the links in the Index below.
Mr Pogorzelski was working towards constructing and leasing the complex – interrupted by ill-health.
·Folder 10 (emails to Planning Consultant) shows that the Applicant provided this material to Planning Consultant/Barrister before the VCAT hearing. The ‘extra material’ presented here should therefore have been considered by VCAT.
The consequences of losing the Permit are catastrophic and life-changing for Mr Pogorzelski, through no fault of his own.
The index document showed evidence in 10 categories (the additional material) as follows:
·documents relating to the applicant’s intention to lease the development, including the registration of a private company in 2015, and references to the applicant’s proposal to lease to the Department of Health (though there is nothing to suggest this had progressed beyond a proposal);
·construction drawings dated 2012-2013, endorsed by the Council in April 2014;
·energy reports/ratings for each unit dated April 2014;
·structural engineering plans dated November 2013, and a drainage plan endorsed by the Council in September 2013;
·a fire engineers’ report dated July 2013, a bushfire assessment dated April 2014, and bushfire prone area reports dated September 2013;
·a digging inquiry document dated 2010, and documents showing the Telstra cable plan and Gippsland Water hazards in the area;
·site surveys/landscaping plans dated 2012;
·soil reports dated 2013;
·documents reflecting that from 2014-2015 the applicant had sought quotes for the development from Skyla Homes, TRW Developments and Fairhaven Builders, and including a quote from Fairhaven of August 2015 (no finalised agreement was provided – though Ms Leibowitz indicated in written submissions that Fairhaven was their chosen builder);
·emails to the applicant’s planning consultant in May 2018 and January 2019, indicating that Ms Leibowitz had given (or intended to give) documents (including construction drawings, engineering plans and drainage plans) to the planning consultant in advance of the VCAT hearing.
In a response dated 26 October 2020, the Council submitted that the additional material is not relevant if no denial of procedural fairness is shown by the applicant. However, it accepted that if a denial of procedural fairness was shown, it would be permissible for the Court to consider the material in determining whether the breach was material to the impugned decision.
The admissibility of evidence on this type of appeal depends on the ground of review.[2] Ordinarily there is no reason for any evidence to be placed before the Court apart from evidence of what was before the decision-maker at the time of the decision, though there may be cases where evidence beyond that may be admissible, depending on the ground.[3] Consistent with the concession of the Council, I will admit the additional material as relevant to the question of materiality if a breach of natural justice is demonstrated. Given however, I have determined that no breach of natural justice has occurred, the evidence has not been dispositive.
[2]Chandra v Webber (2010) 187 FCR 31, 43 [40].
[3]Ibid.
Natural justice (ground 1)
Submissions
Applicant’s submissions
In endeavouring to summarise the submissions I have considered the applicant’s material contained in the eAppeal Book,[4] as well as the submissions filed in October.
[4]This includes two affidavits of Michael Pogorzelski dated 12 July 2019 and 8 October 2019; submissions of Michael Pogorzelski dated 29 March 2020; and submissions of Cecile Leibowitz dated 9 June 2020.
Pursuant to ground 1 of the amended notice of appeal, the applicant alleged that the Tribunal failed to accord natural justice by the following:
(a)by not putting the applicant on notice that he had concerns that ‘no legitimate actions have been taken to act on the Permit’ (at [31]);
(b)by not putting the applicant on notice that the applicant’s ill-health was not a sufficient reason in support of the grant of an extension (at [35]).
It is alleged that both these findings were adverse and ‘not obviously open’ on the known material.
In his affidavit of 8 October 2019 the applicant suggested that the Tribunal did not raise any concerns about the topic of whether legitimate action had been taken to advance the process. This was central to the decision and not obvious, anticipated, or to be reasonably expected.
In his submissions of 29 March 2020 the applicant complained that extra time was granted to the Council to show evidence supporting the ‘planning provisions allegation.’ He also submitted that the Tribunal did not raise concerns or require additional information such that the reasonable conclusion was that the Tribunal accepted that the ill health of the applicant did not allow him to carry out a large scale project.
In the submissions of Ms Leibowitz filed on 9 June 2020 she indicated that she attended the VCAT hearing bringing with her evidence relating to the project (plans, working drawings, builders’ quotes and other documents), but claimed that she had no opportunity to present them. She further stated:
I believed that these documents had been filed to the court in any case, as I had provided them to the Planning Expert, (who provided them to the barrister) when applying for the case to be heard.
She claimed that, although she was present at the hearing with printouts of ‘the evidence’, she had no opportunity to call or present it. She complained that the Senior Member did not question the applicant’s Counsel about proof of preparations for construction and the topic was all but ignored. Thus their specific actions towards construction were not heard.
She reiterated this point in further submissions dated 28 October 2020, claiming that the Tribunal did not put the applicant on notice that actual evidence of actions towards construction had not been provided (in circumstances where the evidence was in the possession of his ‘VCAT team’). Rather, she submitted that the Tribunal appeared to accept the applicant’s ill-health as sufficient, citing the transcript generally.
Council’s submissions
The Council accepted that the issue of natural justice raised a question of law, but submitted that there was no breach of natural justice in this case.
In relation to the allegation that no notice had been given of the suggestion that ‘no legitimate actions’ had been taken, it submitted that this matter was raised in the Tribunal. Thus Mr Sherwell, who appeared for the Council, raised the matter on a number of occasions on transcript.
Similarly the Tribunal’s conclusion that the applicant’s ill-health was not a sufficient reason was obviously open based upon the content of the exchanges at the hearing. Moreover, such a conclusion was clearly open given the question of whether the applicant’s ill-health justified a further extension represented the very raison d’être of the hearing.
The Council thus submitted that both conclusions were clearly open in circumstances where the applicant was represented by Counsel highly experienced in this area of the law.
Analysis
Legal framework
The Victorian Civil and Administrative Tribunal Act 1998 (Vic) makes clear that the Tribunal is bound by the rules of natural justice.[5]
[5]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(a) (‘VCAT Act’).
These principles were the subject of examination in the High Court decision of SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[6] which also approved the decision of the full Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd. [7]
[6](2006) 228 CLR 152 (‘SZBEL’).
[7](1994) 49 FCR 576 (‘Alphaone’).
In the light of these cases, the natural justice obligation may be considered in accordance with the following principles:
·the content of the requirement of natural justice varies according to the circumstances as well as the statutory framework authorising the decision;[8]
[8]SZBEL (n 6) 160-1 [26].
·what is required is ‘a fair hearing, not a fair outcome’;[9]
·the relevant question is about the Tribunal’s processes, not its actual decision;[10]
·the fundamental principle is that the party liable to be directly affected by the decision is to be given the ‘opportunity of being heard’;[11]
·a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests;[12]
·it ordinarily requires the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material;[13]
·it further extends to the right to rebut, qualify, and comment upon adverse material from other sources which is put before the decision-maker;[14]
·it also requires the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made;[15]
·the decision-maker is required to advise of any adverse conclusion which has been arrived at which would not ‘obviously be open on the known material’;[16]
·otherwise, a decision-maker is not generally obliged to expose his or her mental processes or provisional views to comment before making the decision in question.[17]
[9]Ibid 160 [25].
[10]Ibid.
[11]Ibid 162 [32], citing Alphaone (n 7) 590-1.
[12]Alphaone (n 7) 591-2, cited in SZBEL (n 6) 161 [29].
[13]SZBEL (n 6) 162 [32], citing Alphaone (n 7) 590-1.
[14]Alphaone (n 7) 591-2, cited in SZBEL (n 6) 162 [29].
[15]Alphaone (n 7) 591-2, cited in SZBEL (n 6) 162 [29].
[16]Alphaone (n 7) 591-2, cited in SZBEL (n 6) 162 [29].
[17]Alphaone (n 7) 591-2, cited in SZBEL (n 6) 162 [29].
In terms of the statutory framework, sub-ss 69(1) and 69(1A) of the Planning and Environment Act 1987 (Vic) make provision for the owner of land to which a permit applies to ask the responsible authority for an extension of time. Sub-section 69(2) then provides that the responsible authority ‘may extend’ the time within which the use or development is to be started, or the development of it is to be completed.
As observed by Ashley J in Kantor, the discretion is in terms unfettered,[18] and is thereby unconfined except insofar as there may be some implied limitation found in the subject-matter, scope and purpose of the Act.[19] It is in this context that his Honour thereby derived factors which might be considered (albeit that they are not exhaustive).[20] They are summarised above, although two further matters are worth highlighting:
·that the responsible authority should treat the applicant as being obliged to advance some reason or material in support of the grant of an extension;[21]
·that in citing ‘intervening circumstances’ his Honour also stated that ‘for example, an owner’s indication of intention to proceed with development, a fortiori his taking steps to develop land in accordance with the permit, could be expected to tend in favour of grant of an extension.’[22]
[18]Kantor (n 1) 308.
[19]Ibid 309, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24, 39-42.
[20]Kantor (n 1) 313-4.
[21]Ibid 313.
[22]Ibid.
In exercising its review jurisdiction the Tribunal thereby had the same functions as the Council under s 69(2),[23] as guided by the considerations identified in Kantor.
Application – Ground 1(a): Failure to put applicant on notice re ‘no legitimate actions’
[23]VCAT Act (n 5) s 51(1).
The nature of the decision and statute, read in the light of Kantor, meant that the applicant was/should have been on notice that a relevant issue was whether action had been taken on the Permit. Thus, as highlighted above, the Kantor decision makes reference to ‘intervening circumstances,’ as a relevant matter, and expressly cites ‘taking steps to develop land in accordance with the permit’ as an example.
Notice was also more expressly stated given the course of the decision-making process in this case.
Thus, a ground directly relied upon by the Council in making its decision was that the landowner was ‘warehousing’ the land. Any action taken to advance the development might be capable of addressing such an allegation.
The issue of ‘inaction’ was then raised in the Council’s submissions before the Tribunal, as was the allegation of ‘warehousing.’
The applicant’s submissions in the Tribunal also placed heavy reliance on the council officer’s report which cited the Kantor principles. It also included a full extract of Ashley J’s enunciation of ‘intervening circumstances’, which included the ‘taking of steps’ example.
I have also read the transcript of the hearing before the Tribunal. This discloses that inaction on the Permit was directly raised by the Council’s solicitor. For example he stated:
·‘there’s no indication of anything happening, or about to happen, in relation to this permit’;[24]
·‘it’s considered that the inaction of the application over a period of six years does not advance the fair orderly, economic and sustainable development of the land’.[25]
[24]Transcript of VCAT proceeding P1319 of 2019, 19 February 2019, 7.14-5.
[25]Ibid 10.32-4.
He also emphasized that the onus was on the applicant.[26]
[26]Ibid, see eg, 6.12-20.
Critically, Counsel for the applicant also stated the following:[27]
Another one that came up was at 39 – intervening circumstances as bearing upon the ground of a refusal of an extension. And so, again, the council in its – in its submission, paragraph 19, in Kantor – it submitted that in Kantor, “ ..... intention to proceed with development. That he’s taking active steps to develop land because of it, could be expected to tend in favour of grant of an extension”. That’s right but it’s an example. So if you look at paragraph – page 39. It’s saying intervening circumstances bearing on the ground of a refusal of extension. For example, that intention. But that’s in another example. For example, the ill health of the applicant is an intervening circumstance. So it’s not a test or it’s not exhaustive but the judge was referring to intervening circumstances bearing upon the ground of refusal of the extension, in my submission, the ill health of my client ..... clearly falls into that category.
[27]Ibid 23.1-12.
Seen in context, Counsel can be understood as relying solely on ill health and placing no reliance on the taking of ‘active steps.’ This is tantamount to a concession that the applicant had chosen not to demonstrate that active steps had been taken.
Given the Council’s decision, the written submissions, the course of the hearing before the Tribunal, and the concession of the applicant’ s own Counsel, I consider that the applicant was on express notice that one of the critical issues in the case concerned whether ‘legitimate actions had been taken to act on the Permit.’
I further consider that the finding that ‘no legitimate actions have been taken to act on the Permit’ should have been considered to have been ‘obviously open‘ in circumstances where the applicant did not adduce any evidence of actions taken. This is not the case of a decision made on ‘adverse’ information obtained from another source. Rather, it concerns a failure to adduce material within the control of the applicant. I am fortified in this approach given the Kantor principles impose the general obligation on the applicant to advance material in support of the grant of an extension.
The suggestion in Ms Leibowitz’s submissions is that the material was in fact provided to the planning consultant and/or the barrister. A forensic decision may therefore have been made to withhold the additional material. However, regardless of the reason for withholding such material, I am unable to be satisfied that the Tribunal has failed to accord natural justice as alleged at paragraph 1(a) of the amended notice of appeal.
It is unnecessary to consider the materiality of any error given no breach has been identified. I will therefore record my views in a summary way only.
The Council submitted that most of the additional material preceded the first and second applications for extensions of time (ie the plans and service enquiries were dated from 2010-2014), and much was ‘in the nature of wishes or dreams’ rather than constituting active steps towards the progression of the development.
Ms Leibowitz submitted in response that, though some of the documents did pre-date the Permit and the earlier extensions, the majority of the additional material is specific to obtaining a building permit and to actually building the complex. She submitted that the Tribunal would have reached a different conclusion had it seen the additional material.
There is much force in the respondent’s submission as to the probative value of the additional material, which may explain the apparent decision taken to withhold it. Nevertheless, I would be unable to be satisfied that the additional material could not have made a difference in this case.[28] However, for reasons given already, this is of no consequence absent any breach.
Application – Ground 1(b): Failure to put applicant on notice that ill health insufficient
[28]Bahonko v Moorfields Community (2008) 28 VAR 167, 176 [30].
I am also unable to be satisfied that any breach of natural justice is demonstrated because the Tribunal did not put the applicant on notice ‘that the applicant’s ill-health was not a sufficient reason in support of the grant of an extension.’
The suggestion that some extra opportunity was proffered to the Council (to provide an update about the progress of a planning amendment) does not advance the applicant’s case that there was a breach of natural justice towards him. More significantly, as the applicant’s Counsel was clearly aware, the decision involved the exercise of a discretion where a number of factors were relevant. It should have been obvious in such a case that ill health of itself may not have been sufficient.
This ground effectively suggests that a decision-maker needs to give notice that he/she may make an adverse decision. However, there is no obligation on a decision-maker to provide provisional views for comment before making the decision in question.
No error of law is thereby demonstrated by an alleged failure to put the applicant on notice that ill health was not sufficient.
Failure to take into account relevant considerations (ground 2)
Applicant’s submissions
Under ground 2 of his amended notice of appeal the applicant noted the Tribunal’s finding that ‘the applicant has not met his obligation to advance some reason or material in support of the grant of an extension’ (at paragraph [35]). However, he claimed that the Tribunal had before it the following reasons or materials in support of the grant of an extension (the relevant evidence):
(a) the ill-health of the applicant;
(b) correspondence from the applicant’s medical practitioner;
(c) the Tribunal did not in any way cast doubt on the applicant’s ill-health;
(d) the applicant had endorsed plans for the development;
(e) the applicant applied on three occasions for an extension of time;
(f) the council officer’s report.
The applicant also submitted that he had undertaken a range of other actions to advance the process of acting on the Permit, but owing to the denial of natural justice set out under ground 1, had no cause to bring those matters to the attention of the Tribunal. This appeared to be that contained in the ‘additional material.’
Council’s submissions
The Council submitted that, in holding that the applicant had not met his obligation to advance reasons or material in support of the grant of extension, the Tribunal was simply observing that the applicant had not discharged his burden of proof.
It submitted that the Tribunal did not fail to take into account the matters relied upon. Rather, the Tribunal specifically noted that the only actions taken on the Permit were, first, the endorsement of plans and, secondly, that the applicant applied on three occasions for an extension of time. The other matters which the applicant cites do not provide evidence of actual steps taken towards commencing the development.
In any event, the Tribunal did take into account the council officer’s report. It further was well aware that the applicant’s ill health was the principal reason advanced for the extension. Ultimately, whilst the applicant’s ill-health was a relevant consideration, the Tribunal was simply not persuaded that the Permit should be extended a further time.
Analysis
The ground cannot be sustained. First, insofar as there is an attack on paragraph 35, the part criticised must be read in context. Thus, the Tribunal found, as a matter of discretion, that ill health was insufficient notwithstanding that this was the primary basis for the application. It was thereby open for the Tribunal to conclude that the applicant had not met his obligations ‘to advance some reason or material in support of the extension’ in such a context.
Insofar as the relevant evidence is concerned, the ground is misconceived for a number of reasons. First, it misconceives the ground which is concerned with relevant considerations not individual pieces of evidence.[29] Thus, the Tribunal has taken account of the relevant consideration of the applicant’s ill health; the real complaint being a merits style complaint that this should have been determined in favour of the applicant. Secondly, and in any event, the Tribunal clearly considered the applicant’s ill health (at paragraphs [32] and [35]) and cited the correspondence from the medical practitioner (at paragraph [13]). It also noted that the plans were endorsed (at paragraph [32]), and that there had been three applications (at paragraph [32]). It further referred at some length to the council officer’s report (at paragraphs [14]-[17] and [34]).
[29]Chang v Neill [2019] VSCA 151, [71]-[73]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [78].
Insofar as the ground complains of the failure to take into account evidence of the other actions taken (the subject of the additional material), this also cannot be sustained. First, it again misconceives the ground which does not concern whether individual pieces of evidence have been taken into account. Rather, the Tribunal clearly took into account whether the applicant had taken action and/or whether he was warehousing. The gravamen of the complaint is therefore again not a failure to take a relevant consideration into account, but, rather, an attack on the merits of the decision with fresh evidence. Secondly, and in any event, there is no obligation to take this material into account given it was not available at the time of the decision.[30] For reasons given already, this was not attributable to a failure of natural justice.
[30]See Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 45.
Ground 2 is therefore rejected.
Conclusion
Subject to receiving any short submissions on costs, the following orders will be made:
1. The application for leave to appeal is granted in respect of ground 1 of the amended notice of appeal dated 9 August 2019 (the Notice).
2. The application for leave to appeal is refused in respect of ground 2 of the Notice.
3. The appeal is dismissed.
4. The applicant pay the respondent’s costs of the proceeding on a standard basis, to be taxed in default of agreement.
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