Rockford Constant Velocity Pty Ltd v Melbourne City Council
[2024] VSC 343
•21 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S CI 2023 04158
| Rockford Constant Velocity Pty Ltd | First Appellant |
| and | |
| RSA Holdings Pty Ltd | Second Appellant |
| v | |
| Melbourne City Council & Ors (according to the attached Schedule of Parties) | Respondents |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 April 2024 |
DATE OF JUDGMENT: | 21 June 2024 |
CASE MAY BE CITED AS: | Rockford Constant Velocity Pty Ltd v Melbourne City Council |
MEDIUM NEUTRAL CITATION: | [2024] VSC 343 |
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JUDICIAL REVIEW — Appeal from the Victorian Civil and Administrative Tribunal — Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 — Defect in procedure before planning panel — Denial of natural justice alleged — Planning and Environment Act 1987 (Vic) s 39 application to Tribunal — Declaration by Tribunal that the application is out of time — Refusal to extend time — Statutory construction — Meaning of ‘substantially or materially affected by a failure’ — Awareness of the failure — Time at which failure is to be ascertained to enliven the Tribunal’s jurisdiction — Leave granted — Appeal dismissed.
EXTENSION OF TIME — Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 126 — Whether reasonable or acceptable reason for failure to lodge application within time — Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 principles considered — No error in the exercise of discretion by Tribunal.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | J. Pizer SC M. Roberts | HWL Ebsworth |
| For the First Respondent | I. Munt | Melbourne City Council (In‑house Counsel) |
| For the Second Respondent | No appearance | Victorian Government Solicitor |
| For the Third Respondent | S. Brennan SC E. Smith | Allens |
HER HONOUR:
INTRODUCTION
The appellants are adjacent owners of land situated in North Melbourne. Rockford Constant Velocity Pty Ltd (‘Rockford’) is the registered proprietor of land at 62–70 Gracie St, North Melbourne (the ‘Rockford land’) and RSA Holdings Pty Ltd (‘RSA’) is the registered proprietor of land at 49 Henderson Street, North Melbourne (the ‘RSA land’) (together, the ‘Subject Lands’).
The Subject Lands fall within the planning jurisdiction of the Melbourne Planning Scheme (‘Scheme’). They are both in the Industrial 3 Zone of the Scheme and are subject to a number of overlays, including the Public Acquisition Overlay – Schedule 9 and the Land Subject to Inundation Overlay – Schedule 1. The Subject Lands are within the Arden Structure Plan 2022.
Melbourne City Council (the ‘Council’) in partnership with Melbourne Water Corporation (‘MW’) prepared Amendment C384 (‘Am C384’) to the Scheme.
Am C384 was exhibited pursuant to Division 1 of Part 3 of the Planning and Environment Act 1987 (Vic) (‘P&E Act’). Am C384 is concerned with the imposition and alteration of controls within the Scheme and proposes a new Land Subject to Inundation Overlay over the Subject Lands.
In its Panel Report,[1] the Panel[2] described the effect of Am C384 as follows:[3]
Amendment C384melb provides contemporary flood risk information for various City of Melbourne catchments by introducing new planning controls into the Melbourne Planning Scheme. Melbourne City Council prepared the Amendment in partnership with Melbourne Water Corporation.
The Amendment applies to land identified as being subject to inundation from riverine flooding in the Moonee Ponds Creek and Lower Yarra River waterways, and drainage flooding in the Arden, Macaulay and Moonee Ponds Creek, Elizabeth Street, Fishermans Bend, Hobsons Road and Southbank catchments. The Amendment proposes to either update the mapped extents of those catchments or introduce the Land Subject to Inundation Overlay and Special Building Overlay through specific schedules to land identified as being prone to riverine and drainage flooding, thereby triggering the requirement for a planning permit assessment for development in flood prone areas.
[1]Planning Panels Victoria, Melbourne Planning Scheme Amendment C384melb Land Subject to Inundation and Special Building Overlays, (Panel Report, 20 December 2022) enclosed in Exhibit ‘ANWG‑1’ to the Affidavit of Alexander Nicholas Wridgway Gelber (filed 14 September 2023 in S ECI 2023 04158, Supreme Court of Victoria), 450.
[2]Defined at [6] below.
[3]Panel Report, 8.
On or about 29 November 2021, the appellants filed submissions to Am C384. On or about 2 August 2022, their submissions were referred by the Council to an independent planning panel pursuant to s 23 of the P&E Act. The Minister for Planning appointed a panel to hear the submissions (the ‘Panel’) and a hearing was conducted in October 2022 (the ‘Panel Hearing’).
The appellants relied on written evidence prepared by Professor Peter Coombes and Mr Christopher Beardshaw who raised a number of technical questions around the strategic basis and underlying modelling relating to the proposed flooding and drainage controls.
On or about 26 October 2022, the Panel requested that MW file responses to questions raised by the appellants’ expert witnesses and on 28 October, the last day of the Panel Hearing, MW filed its written response (the ‘MW Document’).
On 28 October 2022, the appellants orally requested an opportunity to respond to MW’s written response (‘Request’). After standing down the proceeding for a short time to consider the appellants’ submission in this regard, the Panel refused the Request, giving oral reasons for its decision. The appellants requested written reasons for the refusal.
On 20 December 2022, the Panel issued its Panel Report.
On 10 January 2023, the Council provided the Panel Report to the appellants.
The Panel Report recommended that Am C384 be adopted by the Minister subject to changes. It also included the Panel’s written reasons for its refusal of the Request.
On 10 February 2023, the appellants applied to the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) pursuant to s 39 of the P&E Act.
Section 39(1) of the P&E Act provides as follows:
A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.
By s 126(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), the Tribunal has the power to extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.
Following a practice day hearing on 14 April 2023, the Tribunal made orders listing a preliminary hearing for 25 May 2023 to determine matters including the following:
(a) whether the s 39 application was lodged outside of the statutory time period;
(b) if so, any application under s 126 of the VCAT Act; and
(c) in the event an extension of time is granted, any application for summary dismissal pursuant to s 75 of the VCAT Act.
TRIBUNAL’S ORDERS
The Tribunal conducted the preliminary hearing on 25 May 2023 and delivered its orders (‘Orders’) and reasons (‘Tribunal’s Reasons’) on 11 August 2023.[4] The Orders are as follows:
Application lodged outside of time
1.Pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), I declare that VCAT application P187/2023 was lodged outside of the statutory time period required by section 39(1) of the Planning and Environment Act 1987 (Vic).
[4]Rockford Constant Velocity Pty Ltd v Melbourne CC [2023] VCAT 933.
No extension of time to commence
2.The application pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to extend the time within which to commence this proceeding is refused.
3.The application is struck out because it was lodged outside of the statutory time period.
4.The hearing scheduled for 29 August 2023 is vacated. No attendance is required.
On 7 September 2023, the appellants sought leave to appeal against orders 2 and 3 of the Orders.[5] On 20 October 2023, the appellants also sought leave to appeal order 1 of the Orders.[6]
[5]By way of Notice of Appeal (filed 7 September 2023 in S ECI 2023 04158, Supreme Court of Victoria).
[6]By way of Amended Notice of Appeal (filed 20 October 2023 in S ECI 2023 04158, Supreme Court of Victoria). Keith JR made orders on 18 October 2023 granting leave to the appellants to file and serve the Amended Notice of Appeal.
PRELIMINARY MATTERS
Leave to file Further Amended Notice of Appeal
At the commencement of the hearing on 23 April 2024, the appellants sought leave to file a Further Amended Notice of Appeal[7] to add a further question (Question 4) in relation to the exercise of discretion by the Tribunal in refusing to grant an extension of time.
[7]Further Amended Notice of Appeal (filed 23 April 2024 in S ECI 2023 04158, Supreme Court of Victoria).
Having sought the views of the respondents on the question of leave (there being no objection) and being satisfied that the additional question raised was of sufficient importance and merit, I was satisfied that leave to appeal should be granted on each of the four questions in the Further Amended Notice of Appeal. I also allowed the respondents an opportunity to file further written submissions on Question 4 and for the appellants to file short written submissions in reply.
Second respondent
The second respondent, the Minister for Planning (the ‘Minister’), did not participate in the appeal, filing via the Victorian Government Solicitor’s Office a letter dated 9 January 2024 indicating that the Minister would abide the decision of the Court in accordance with the principles in R v Australian Broadcasting Corporation; ex parte Hardiman (‘Hardiman’).[8] The letter noted that s 39(2) of the P&E Act provides that the Minister is automatically a party to a proceeding commenced under s 39(1) before the Tribunal.
[8](1980) 144 CLR 13.
THE ISSUES IN THE APPEAL
The primary issue in this appeal is the construction of s 39(1) of the P&E Act. In particular, what the expression ‘the failure’ means in the phrase ‘not later than one month after becoming aware of the failure’. Two constructions were proffered by the appellants, the distinction between them being the identification of the ‘substantially or materially affected’ consideration which qualifies the standing of a party to bring the s 39 application and thus, the point at which time begins to run.
After the Panel Report was made available to them on 10 January 2023, the appellants lodged an application to the Tribunal on 10 February 2023. This would be inside the statutory one month timeframe if the correct construction of s 39(1) is that there was no awareness of the relevant failure for the purposes of s 39(1) until the Panel Report had been delivered.
However, if the correct interpretation is that the appellants had awareness of the relevant failure for the purposes of s 39(1) at the time the Panel refused their Request on 28 October 2023, they were out of time.
The second key issue is, depending on the answer to the construction question, whether the Tribunal’s discretion miscarried when it refused an extension of time to bring the application.
THE LEGISLATION
Section 39 provides as follows:
39Defects in procedure
(1)A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.
(2)In addition to any other party to the proceeding the parties to a proceeding before the Tribunal under this section are—
(a) the person who referred the matter to the Tribunal; and
(b) the Minister; and
(c) the planning authority.
(3)If a matter referred to the Tribunal under this section involves a failure by a panel to comply with Division 2 or this Division or Part 8 the panel (or a member of the panel authorised by the panel to act on its behalf) is entitled to make a written or oral submission to the Tribunal before the Tribunal completes the hearing of the matter.
(4) The Tribunal may determine a matter referred to it under this section and may do any one or more of the following—
(a) make any declaration that it considers appropriate;
(b) direct that—
(i) the planning authority must not adopt the amendment or a specified part of the amendment; or
(ii) the Minister must not approve the amendment or a specified part of the amendment—
unless the Minister, planning authority or a panel takes action specified by the Tribunal.
(5)In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.
* * * * *
(7) An amendment which has been approved is not made invalid by any failure to comply with Division 1 or 2 or this Division or Part 8.
(8) Except for an application under this section, a person cannot bring an action in respect of a failure to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved.
(9) This section does not apply to a planning scheme prepared by the Suburban Rail Loop Authority that applies to land to which a Suburban Rail Loop planning area declaration applies.
Section 126(1) of the VCAT Act provides as follows:
126 Extension or abridgment of time and waiver of compliance
(1)The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.
TRIBUNAL’S REASONS
The Tribunal’s Reasons were structured in accordance with the following three questions:[9]
[9]Tribunal’s Reasons, [154].
(a) whether the application was lodged outside of the statutory period in s 39(1) of the P&E Act;
(b) if yes, whether leave should be granted to extend the time for the commencement of the proceeding under s 126(1) of the VCAT Act; and
(c) if the application was lodged within time, or if leave is granted to extend time, whether the application should be summarily dismissed.
Whether the proceeding was lodged outside of the statutory period
The first step of the Tribunal was to identify the alleged ‘failure’ for the purposes of s 39(1), which it described as:[10]
The alleged procedural failure was that in refusing the applicants’ request to respond to the MW Document in the manner sought by the applicants, the Panel failed to act according to equity and good conscience without regard to technicalities and legal forms and failed to comply with the rules of natural justice.
[10]Tribunal’s Reasons, [172].
The Tribunal then determined when the appellants became aware of the failure it had identified, finding that:[11]
[11]Tribunal’s Reasons, [179].
(a) during the Panel Hearing on 26 October 2022, the Panel asked MW to answer certain questions;
(b) the MW Document provided written answers to these questions and was filed with the Panel and served on the parties to the Panel at 10:33am on 28 October 2022;
(c) between approximately 10:50am and 3:30pm, the MW Document was the subject of discussion at the Panel Hearing, during which time the appellants made their Request for an opportunity to make further submissions and file evidence in response to the MW Document;
(d) within that time period, the Panel adjourned for approximately 20 minutes;
(e) between approximately 2:56pm and 3:00pm, the Panel orally delivered its ruling, refusing the appellants’ Request; and
(f) the Panel provided written reasons for its refusal of the appellants’ Request in the Panel Report.
The Tribunal found that it followed that:[12]
the applicants’ awareness changed such that they were cognisant or conscious of the Panel’s alleged non‑performance of the requirements to [act] in accordance with ‘the rules of natural justice’ at the time when the Panel allegedly failed to act in accordance with [that requirement]. That occurred at the time when the Panel refused the applicants’ request, which occurred on the afternoon of 28 October 2022 at the Panel hearing. This is because it was at that time that the applicants were informed by the Panel that it was refusing the applicants’ request to respond to the MW Document in the manner sought by the applicants.
[12]Tribunal’s Reasons, [180].
The Tribunal rejected the appellants’ assertion that they became aware of the alleged defects in the Panel process when they received the Panel Report, stating:[13]
This is because if the refusal by the Panel to allow the applicants’ request regarding the MW Document constituted a failure by the Panel to comply with the Panel hearing requirements in section 161 of the Act, this failure occurred when the Panel made its procedural decision and communicated this to the parties at the Panel hearing … on 28 October 2022 …
[13]Tribunal’s Reasons, [183].
The Tribunal also rejected the appellants’ assertion that they needed to receive the Panel’s written reasons for the substantial or material effect of the alleged procedural failure to be discernible and that, as a consequence, the statutory time period did not start until they received the Panel Report.[14]
[14]Tribunal’s Reasons, [191].
The Tribunal accepted ‘that a jurisdictional fact of section 39(1) of the Act is that the person making the application must be “substantially or materially affected” by the alleged procedural defect’. Then, having examined the Macquarie Dictionary definitions of the words in that phrase, the Tribunal went on to say:[15]
Based on the ordinary meaning of the words, section 39(1) is directed at providing relief to a person who is influenced injuriously to an important or considerable degree by the alleged procedural failure of the Panel. Logically, this must be in contrast to the impact of the alleged procedural failure on the person being to a minimal or trifling degree.
[15]Tribunal’s Reasons, [197].
The Tribunal then described the position of the appellants in this way:[16]
[B]eing owners of land affected by the Amendment and submitters to the Panel hearing, if the alleged procedural failure of the Panel is established [being the failure identified in paragraph 20 above], it is arguable that this failure will injuriously influence the applicants to an important or considerable degree, as opposed to a minimal or trifling degree.
[16]Tribunal’s Reasons, [200].
From [202]–[206], the Tribunal then explained its reasons for holding that, in this case, the effect of the alleged failure did not depend on the Panel’s final decision (emphasis in original):
202.… what it means to be ‘substantially or materially affected’ in the context of the procedural failures alleged in this case cannot logically be dependent upon the Panel’s final decision on the merits of the Amendment.
203.This would be akin to saying that the applicants are only substantially or materially affected by a failure of the panel to accord them natural justice … if the Panel does not accept their case in the final decision on the Amendment. This cannot be correct.
204.It must be the case that a person can be substantially or materially affected by a failure of a panel to accord them natural justice … irrespective of whether that person ultimately wins or loses on the relevant point or on the proposed amendment.
205.This is because what section 39 is concerned with is the process by which the decision is made, not the decision itself.
206.In theory, a person could be substantially and materially affected by a planning panel not giving them any opportunity to address a topic or question a witness and still ultimately ‘win’ if the panel, irrespective of denying them these opportunities, made the decision that was sought by that person; just because the decision ultimately falls in their favour does not mean that the panel accorded them natural justice or treated them equitably in reaching that decision.
From [208]–[210], the Tribunal then addressed practical considerations as follows:
208.Where the procedural failure occurs during a panel hearing, as is alleged to have occurred here, the intention must be that the alleged failure is referred to the Tribunal effectively while the panel hearing is still occurring, or not long thereafter, to enable the panel to correct the course of its conduct, in the event that the allegation is proven.
209.In this respect, the requirement that the application under section 39(1) occur within one month of an applicant becoming aware of the failure aligns with the minimum time within which a planning panel must issue its report following a panel hearing. This is important because adherence to the statutory time frame should result in a proceeding being lodged with the Tribunal prior to the planning panel expending time and public resources finalising its panel report, meaning that the process can be halted and the course corrected, if need be, prior to the panel making its recommendations on the amendment.
210.If it was the case that in the circumstances of an alleged procedural failure of the nature before me, a panel report needed to be obtained, and the panel’s recommendation known, before a person could establish that they had been substantially and materially affected by an alleged procedural defect, this might result in the panel report needing to be set aside and the panel needing to be reconvened. This is both inefficient and unlikely to be intended.
The Tribunal summarised its key findings (on the question whether the application was lodged out of time) as follows:
(a) to the extent that the Panel’s decision constituted a failure to comply with the requirements of s 161(1)(a) and (b) of the P&E Act, the appellants became aware of this failure on the final day of the Panel Hearing. That is when the appellants were informed of the Panel’s ruling, and that is when the appellants’ awareness changed such that they were cognisant or conscious of the Panel’s alleged non‑performance of the requirements of s 161(1)(a) and (b) of the P&E Act;
(b) the appellants therefore became aware of the alleged procedural failure on 28 October 2022; and
(c) the application was therefore lodged outside of the statutory time period of one month.
Whether an extension should be granted
Given its finding that the application was lodged out of time, the Tribunal considered whether to grant an extension of time under s 126(1) of the VCAT Act by reference to the relevant considerations set out in Hunter Valley Developments Pty Ltd v Cohen (‘Hunter Valley’).[17] It noted that it was for the appellants to persuade it that time should be extended to commence proceedings.
[17](1984) 3 FCR 344.
In summary, the Tribunal considered that:[18]
[18]See Tribunal’s Reasons, [220]–[271].
(a) the appellants had a reason for the delay, that is, the delay was not an oversight. The reasons given for the delay included not wanting to cause offense to the Panel through lodging an application before receiving the written reasons of the Panel, and to see what the Panel had decided. The Tribunal noted this inaction was not without risk to the appellants. The Tribunal did not agree with the reasons given for the delay determining that, in the circumstances and mindful of what was at stake for the appellants, a delay of almost three and a half months before the appellants lodged their application with the Tribunal (which was two and half months after when the proceeding should have been lodged) it was ‘not satisfied that the [appellants’] reasons for delaying commencement of the proceeding are acceptable or reasonable’;[19]
[19]Tribunal’s Reasons, [223].
(b) it was not fair and equitable in the circumstances to allow an extension given the delay being of some months between the event that it found gave rise to the alleged procedural defect and the application being lodged, in which time the Panel made its recommendations and finalised its report, expending time and publicly funded resources in doing so;
(c) it was unclear whether the appellants made the Council or MW aware that they contested the finality of this issue which was raised at the Panel Hearing;
(d) the delay that would result from an extension would be prejudicial to the Council and MW both because it would delay the finalisation of Am C384 which seeks to manage an important matter for the community, being future flooding risk to the public and its impact on development expectations, and because it will result in the Council and MW incurring further cost in dealing with this Tribunal proceeding;
(e) the extension would unsettle other people or established practice because it would send an undesirable message given it would be a derogation from adherence to the statutory time period which ensures that an alleged procedural defect is promptly brought to the attention of the Tribunal;
(f) on the merits of the substantive application, given the MW Document was produced in response to concerns and issues already raised by the appellants, the Panel had already heard from the appellants regarding their concerns and issues on this topic. Further, on the basis of the material before it, although it was not ‘unarguable’, it considered there was a low likelihood that a Tribunal ultimately hearing the application would conclude that the Panel had failed to comply with the requirements of ss 161(1)(a) and (b) of the P&E Act in refusing the appellants’ Request; and
(g) it would not be fair for the appellants to be granted an extension of time when they waited to see what the outcome of the Panel process would be when strict compliance with timeframes is expected from others.[20]
[20]Tribunal’s Reasons, [268].
On the basis of the above considerations, the Tribunal found that the approach that would enable justice to be done was to refuse to extend the time to commence the proceeding, and as such, the application was at an end.
Whether the proceeding should be struck out
Given its findings on the first two questions, the Tribunal found that this question did not arise.
QUESTIONS OF LAW
As discussed at [19]–[20] above, the four questions raised in this appeal are those which appear in the Further Amended Notice of Appeal.
Question 1 is, on the proper construction of s 39(1) of the P&E Act, does the expression ‘the failure’ — in the phrase ‘not later than one month after becoming aware of the failure’ — mean:
(a) the failure to comply with a relevant statutory provision that substantially or materially affected the appellants (the ‘First Construction’); or
(b) the failure to comply with a relevant statutory provision without regard to the effect of that failure on the appellants (the ‘Second Construction’)?
Question 2 is, if the First Construction is correct, was the substantial or material effect of the failure alleged by the appellants in this case logically dependent upon the Panel’s final decision on the merits of Am C384, such that the appellants did not become aware of the failure until 10 January 2023?
Question 3 is, alternatively, if the Second Construction is correct, was the substantial or material effect of the failure alleged by the appellants in this case logically dependent upon the Panel’s final decision on the merits of Am C384, such that the appellants had an acceptable explanation for their delay in referring the matter to the Tribunal under s 39(1) of the P&E Act?
Question 4 is, alternatively to Questions 1 to 3, if the substantial or material effect of the failure alleged by the appellants in this case was not logically dependent upon the Panel’s final decision on the merits of Am C384, was it open to the Tribunal to find that the appellants did not have an acceptable or reasonable explanation for their delay in referring the matter to Tribunal under s 39(1) in circumstances where:
(a) the appellants requested written reasons for the Panel’s refusal of their Request to have an opportunity to respond to the MW Document and did not receive written reasons until they received the Panel Report;
(b) the appellants did not know whether the Panel was going to rely on the MW Document until they received the Panel Report;
(c) the appellants did not know whether the Panel was going to accept their submissions on Am C384 until they received the Panel Report; and
(d) the appellants did not know whether, if the Panel was going to reject their submissions on Am C384, it would do so for reasons that relied on — or were entirely unrelated to — the MW Document?
QUESTIONS 1 AND 2
Questions 1 and 2 were supported by Grounds 1 to 5 in the Further Amended Notice of Appeal. Both parties made detailed submissions on this point which I will not reproduce here.
In essence, the appellants allege that the correct interpretation of s 39(1) is that ‘failure’ in the phrase ‘not later than one month after becoming aware of that failure’ must be read with regard to the effect of that failure on the appellants (ie. the failure to apply a relevant statutory provision that substantially or materially affected the appellants).
Accordingly, they allege that the Tribunal held that the ‘failure’ referred to a procedural failure without regard to the effect of that failure on the appellants.
The appellants also submit that, in respect of the procedural failure in this case, what it means to be ‘substantially or materially’ affected was logically dependent upon the Panel’s final decision on the merits of the Am C384. In other words, the appellants needed to be aware that the failure ‘substantially or materially’ affected them before the time began to run against them. They submit that in this case, they only became aware of the ‘substantial or material’ effect of the failure once they received the Panel Report.
Accordingly, the appellants submit that the one month time limit began to run on 10 January 2023 when they received the Panel Report, and therefore, their application to the Tribunal on 10 February 2023 was within the one month statutory time limit.
The first and third respondents made submissions affirming the Tribunal’s reasoning. Both submitted that the Tribunal did have regard to the effect of the failure on the appellants, which is evidenced by its comments at [200]:
As such, being owners of land affected by the Amendment and submitters to the Panel hearing, if the alleged procedural failure of the Panel is established, it is arguable that this failure will injuriously influence the applicants to an important or considerable degree, as opposed to a minimal or trifling degree.
The third respondent’s primary submission was that the Court should not read into that phrase the additional requirement contended for by the appellants, ‘after becoming aware of the failure and that the failure substantially or materially affected the appellant[s]’.
However, both the first and third respondent emphasised the procedural nature of the right in question, being that the right to a fair hearing is a right in respect of the decision‑maker’s processes, rather than the outcome.[21] If there was a ‘substantial or material’ effect on the appellants, this occurred at the same time as when the appellants were denied an opportunity to respond to the MW Document. This is because:
[21]Submissions of the Melbourne Water Corporation (filed 8 March 2024 in S ECI 2023 04158, Supreme Court of Victoria), [66] citing Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, [42] (Kiefel, Bell and Keane JJ), citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 160 (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
(a) the appellants were owners of land affected by Am C384 which could affect the development potential of their land;
(b) the appellants wanted a further opportunity to make submissions on the MW Document; and
(c) everyone could have rightly proceeded on the basis that the Panel would consider the content of the MW Document and that it might influence the Panel’s findings and recommendation.
As such, the ‘substantial or material’ effect of the failure to accord procedural fairness to the appellants was known by the appellants at the time at which they were denied an opportunity to make submissions and, as such, was not logically dependent upon them receiving the final Panel Report.
As such, the first and third respondents submitted that both the ‘failure’ and the ‘substantial or material’ effect of that failure occurred on 28 October 2022 when the appellants were denied an opportunity to respond to the MW Document.
QUESTION 3
Question 3 was supported by Grounds 6 to 9 in the Further Amended Notice of Appeal. The appellants submitted that, in light of the Tribunal’s alleged failure to find that the ‘substantial or material’ effect was logically dependent upon the Panel’s final decision, and assuming that the appellants’ application was lodged outside the statutory time period, the Tribunal was consequently wrong to find that it was not satisfied that the appellants’ reasons for delaying the commencement of their proceeding were ‘acceptable or reasonable’. As a result, the Tribunal’s exercise of discretion under s 126 of the VCAT Act miscarried, and orders 2 and 3 of the Orders are contrary to law and of no force or effect.
The first and third respondents’ submissions were to the effect that the Tribunal was correct in finding that the application was lodged out of time. Their submissions emphasised the broad discretion of the Tribunal to grant an extension under s 126 of the VCAT Act and the need for the appellants to establish that the Tribunal made a recognised error in the exercise of its discretion giving rise to a question of law within s 148 of the VCAT Act.
QUESTION 4
Question 4 was supported by Ground 10. This was an additional question added by the appellants by way of the Further Amended Notice of Appeal. As noted at [20] above, I gave leave at the trial for the filing of the Further Amended Notice of Appeal and the respondents were given an opportunity to file further submissions addressing this Ground. The third respondent filed submissions on 30 April 2024 accordingly and the first respondent accepted and adopted these submissions. I also allowed the appellants to file short reply submissions which were filed on 6 May 2024.
On this question, the appellants submitted that if the ‘substantial or material’ effect of the failure alleged by the appellants was not logically dependent upon the Panel’s final decision on the merits of Am C384, it was not open to the Tribunal to find on the evidence that the appellants did not have an acceptable or reasonable explanation for their delay in referring the matter to the Tribunal in circumstances where:
(a) the appellants requested written reasons for the Panel’s refusal to their Request and did not receive written reasons until they received the Panel Report;
(b) the appellants did not know whether the Panel was going to rely on the MW Document until they received the Panel Report;
(c) the appellants did not know whether the Panel was going to accept their submissions on Am C384 until they received the Panel Report; and
(d) the appellants did not know whether, if the Panel was going to reject their submissions on Am C384, it would do so for reasons that relied on or were entirely unrelated to the MW Document.
The third respondent rejected the appellants’ submissions on the basis that it was open to the Tribunal to refuse to accept that the appellants waiting to receive written reasons for the Panel’s refusal of their Request was an acceptable or reasonable explanation in the circumstances. In support of this, the third respondent pointed to the oral reasons provided by the Panel which it says sufficiently explained the reasons for the Panel’s refusal, the fact that the Panel had not reserved its decision (but rather made its final decision to refuse the Request on 28 October 2022), and the fact that appellants could have commenced proceedings in the Tribunal and had them held in abeyance pending the Panel Report being provided, rather than waiting to see what the final outcome would be.
There was also argument as to whether the Tribunal’s decision in respect of s 126 is properly characterised as a positive finding. The appellants submitted that the Tribunal’s decision is properly understood as a positive finding that the appellants did not have acceptable reasons for delay (a finding which they say was not open to the Tribunal). Whereas the third respondent argued that the Tribunal did not make a positive finding. Rather, the Tribunal stating it was ‘not satisfied’ that the appellants’ reasons for delay were acceptable demonstrates an absence of satisfaction which reflects that the appellants had not satisfied its onus of establishing that the Tribunal should extend time under s 126. In its reply submissions, the appellants reiterated their characterisation of the Tribunal’s decision as a positive finding that the reasons for delay were not acceptable or reasonable.
ANALYSIS
Section 39 enlivens the Tribunal’s jurisdiction to deal with a procedural failure. It is not a substantive right. The structure of the P&E Act provides a detailed and prescriptive process for the amendment of planning schemes.
The Panel’s task is to consider submissions and make recommendations as to the merits of the planning scheme amendment. This is part of a process which has many steps with the ‘decision’ (of an administrative character) to amend a planning scheme made only by the Minister. The role of the Panel is not to make a decision which finalises a person’s rights or responsibilities. The Panel’s assessment is part of a process. The quality of the rights enjoyed by participants in the planning process are governed by the P&E Act. This includes the opportunity to participate in the planning scheme amendment process.
The jurisdiction of the Tribunal under s 39 of the P&E Act is restricted to a limited statutory, supervisory one. The entitlement to bring an application to the Tribunal is one which is limited to a person who can establish standing and requires a failure or procedural defect to be identified. It is not a merits review. This will be discussed further below.
The appeal is in two parts. First, what is the correct construction of s 39(1) in establishing standing to bring an application and, thus, the timing which begins to run from that standing being established.
The second, depending on the outcome of the construction question, is the question of the proper exercise of discretion by the Tribunal on the facts before it to refuse to extend time.
The task of construction involves the consideration of the statutory provision’s text, context and purpose. In my analysis of the text and context, I agree substantially with the analysis set out in the first respondent’s submissions, which are largely mirrored by those made by the third respondent.
It follows that I reject the construction urged the appellants. I am not persuaded that, for the purposes of determining the time limitation, a substantial or material effect of a defect in procedure cannot be ascertained at the time the issue arises in the circumstances as occurred here. There may well be factual circumstances where the ascertainment of a substantial or material effect on a person cannot be known until the Panel reports, but that is not the case here. The Tribunal was correct in its analysis and I find no appealable error in its analysis and findings.
Below, I set out the detailed reasoning for this conclusion, then deal with the question of the Tribunal’s exercise of discretion in refusing an extension of time.
Text, context and purposes of s 39
I observe that on a plain reading of the text that the Tribunal’s jurisdiction is enlivened under s 39 with the satisfaction of three matters:
(a) identification of a relevant ‘failure’ in the procedures set out in the nominated parts of the P&E Act;
(b) satisfaction that the applicant is a person who is ‘substantially or materially affected’ by that failure; and
(c) time begins to run at the point that the person has ‘awareness’ of the failure which has the quality of being substantial or material to the person’s interest.
The reasoning behind the appellants’ construction relies upon of the categorisation of the ‘effect’ as being ‘substantial or material’ only being able to be determined, in this case, after the Panel has reported. This submission means that, unless the Panel finds in favour of the appellants on the merits, there can be no ‘substantial or material‘ effect as a consequence of the alleged failure. I agree with the Tribunal’s reasoning that this cannot be correct.[22] Section 39 is concerned with the process by which a decision is made, not the decision itself.
[22]Tribunals Reasons, [202]–[205].
The construction of s 39 must be seen in its legislative context.
The purpose of the P&E Act is to establish a framework for planning the use, development and protection of land in Victoria in the present and long‑term interests of all Victorians.[23] Broadly, this is achieved through the control of the use and development of land under planning schemes. The Minister is a planning authority, and the Council of a municipal district is the planning authority for any planning scheme in force in its municipal district.[24]
[23]P&E Act s 1.
[24]P&E Act ss 8, 8A.
Within this scheme, Division 1 of Part 3 of the P&E Act establishes and governs the process by which a planning authority must exhibit and give notice of a planning scheme amendment. Division 2 of Part 3 of the P&E Act empowers the public to make a submission about a planning scheme amendment and establishes a process for such submissions to be considered by the relevant planning authority and then by a panel. The panel is then empowered to convene a hearing to hear those submissions and to prepare a report making findings as to such submissions and its recommendations on the merit of the planning scheme amendment before it. Division 3 of Part 3 of the P&E Act confers the power on a planning authority to adopt a planning scheme amendment, and a power on the Minister, ultimately, to approve it.
Section 39(1) can be called in aid where a person who is substantially or materially affected by a relevant failure of the Minister, a planning authority or a panel. It applies to a relevant failure to comply with the process provisions of a planning scheme amendment set out in:
(a) Division 1 of Part 3 of the P&E Act;
(b) Division 2 of Part 3 of the P&E Act;
(c) Division 3 of Part 3 of the P&E Act; and
(d) Part 8 of the P&E Act.[25]
[25]Part 8 of the P&E Act is directed to the appointment and conduct of planning panels.
The heading to the text of s 39 is ‘[d]efects in procedure’. The section confers a right on an applicant to refer an alleged defect in procedure of a panel to the Tribunal. However, this is not the only point in the process which can be referred to the Tribunal where a relevant defect arises. Divisions 1 to 3 of Part 3 of the P&E Act and Part 8 of the P&E Act encompass a broad process that involves many decisions. Panels play a specified, important, but discrete role within that broad process. Panels do not make ‘decisions’, in the sense of determining the substantive legal rights and responsibilities of any person. They hear and consider submissions and make recommendations as to the content of planning scheme amendments. Neither the planning authority, nor the Minister, is required to follow the recommendation of a planning panel. A panel’s function is not analogous to that of the Tribunal or a court.
It follows that s 39 of the P&E Act operates as a form of procedural safeguard, conferring on the Tribunal a type of supervisory jurisdiction to identify and remedy any defect in the procedure adopted by the Minister, a planning authority, or a panel in the course of the exercise of the powers and the discharge of the duties provided for in Divisions 1 to 3 of Part 3 of the P&E Act. This supervisory jurisdiction is not coterminous with this Court’s jurisdiction to supervise the legality of decisions made by lower courts and tribunals.[26] It is expressly conferred by s 39 of the P&E Act, and limited by that provision and by the requirements imposed on the Minister, planning authorities, and panels.
[26]Coastal Estates Pty Ltd v Bass Coast SC (2010) LGERA 390, [38] (‘Coastal Estates’).
Section 39(1) of the P&E Act does not operate to empower the Tribunal to undertake a merits review.[27] It empowers the Tribunal to identify and then to make declaratory orders and provide directions with respect to an alleged defect in procedure.[28] When assessing the effect of such a defect in procedure, attention is not directed to the substantive merits findings of the Minister, a planning authority, or a panel in the exercise of their powers and the discharge of their duties under Divisions 1 to 3 of Part 3 of the P&E Act or Part 8 of the P&E Act, but rather to the actual or potential effect of the loss or curtailment of a procedural right under those provisions.
[27]Coastal Estates, [21].
[28]P&E Act s 39(4).
In such circumstances, it will often be impossible to say what the merits impact of an alleged defect in procedure has been, or would be. The merits impact is not the driving force. The answer to the question of whether an alleged defect in procedure has substantially or materially affected a person depends on the consequences of the loss or curtailment of a procedural, and not a substantive, right on the applicant in question. This inevitably demands attention on the content of the procedural right and its role in the broad process established by Divisions 1 to 3 of Part 3 of the P&E Act and Part 8 of the P&E Act within the context of the planning scheme amendment.
The words ‘substantially or materially affected’ operate as a threshold for the capacity to invoke the Tribunal’s jurisdiction under s 39(1) of the P&E Act. Their presence means that not every person affected by an alleged defect in procedure may refer a matter to the Tribunal. This is a standing requirement that conditions the availability of the right under s 39(1) of the P&E Act to the gravity of the consequences of an alleged defect in procedure on an appellant.
There is a balance struck by the imposition of a one month time limit in s 39(1) of the P&E Act — thereby facilitating the timely continuation of the processes in Divisions 1 to 3 of Part 3 of the P&E Act and Part 8 of the P&E Act — and the conditioning of that time limit on the subjective knowledge of the applicant on the existence of the alleged defect in procedure — thereby offering an applicant a fair chance to exercise the right established by s 39(1) within the context of the broader process for amending planning schemes under Divisions 1 to 3 of Part 3 of the P&E Act and Part 8 of the P&E Act.
I acknowledge the submission made by the appellants that the Tribunal erred in referring to the usual timeframe for the Panel to report being coincident with the s 39 timeframe as not being correct in respect of every amendment process and panel report. However, the more important point to be made is that the expectation inherent in setting a one month timeframe is prompt attention to the procedural defect so that the course can be corrected if necessary, and significant further delay and cost is not incurred.
Standing flows from the effect of an alleged defect in procedure on an applicant. The time limit is tied to knowledge of the alleged defect in procedure by the applicant. Just as an applicant may be substantially or materially affected by an alleged defect in procedure even if they do not know, and cannot know, the impact that such a defect has had or might have on the content of a planning scheme amendment, so might an applicant be substantially or materially affected by an alleged defect in procedure even if they do not know about the alleged defect in procedure yet, or at all. Either way, time runs once the applicant gains the requisite knowledge about the alleged defect in procedure.
I am of the view that Parliament did not intend the Tribunal to exercise any of the powers in Divisions 1 to 3 of Part 3 of the P&E Act or Part 8 of the P&E Act, save for the powers expressly contained in s 39 of the P&E Act by reason of the interrelationship between:
(a) the powers conferred on the Tribunal with respect to an alleged defect in procedure under s 39(4) of the P&E Act;
(b) the limitation on the Tribunal’s power under s 39(5) of the P&E Act; and
(c) the preservation of the legal validity of an approved planning scheme amendment under s 39(7) of the P&E Act.
Section 39 creates a right to bring an application to the Tribunal where:
(a) standing can be established that is a person qualifies if they are ‘substantially or materially’ affected by ‘a failure’ by one of the entities nominated;
(b) the (alleged) ‘failure’ by one those entities being a failure of compliance with the nominated parts of the P&E Act; and
(c) within a nominated time parameter, being not later than one month after ‘becoming aware of the failure’ and where the amendment has not been approved.
Set in this context, s 39 operates as a form of procedural safeguard conferring on the Tribunal a type of statutory supervisory jurisdiction to identify and remedy any defect in the procedure undertaken by the Minister, a planning authority, or a panel in the course of the exercise of the powers and discharge of the duties provided for in Divisions 1 to 3 of Part 3 of the P&E Act and Part 8 of the P&E Act.
This supervisory jurisdiction is not the same as the Supreme Court’s jurisdiction to supervise the legality of decisions made by lower courts and tribunals.
I reiterate that s 39(1) does not empower the Tribunal to undertake a merits review. In undertaking the task of determining the impact of any defect in procedure, ss 39(4) and (5) make it clear that the Tribunal is restricted to making orders which may remedy the defect in procedure. Then, in determining a matter referred to it, the Tribunal may make any declaration it considers appropriate, including directing a planning authority to not adopt the amendment or a specified part of the amendment, or that the Minister must not approve the amendment or specified part of the amendment unless the Minister, planning authority or panel takes the action specified by the Tribunal. The Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.
Thus, the Tribunal’s powers are declaratory and directive. The Tribunal can direct a Minister, planning authority or panel take action but it cannot alter the legal effect of any decision made by any of these entities.
Fragmentation
I disagree with the submission made on behalf of the appellants that to await the outcome of a certain part of the process, such as the delivery of a panel report, before acting in reliance of the alleged defect would be to unnecessarily fragment the planning scheme amendment or Panel process. If action is brought under s 39(1), there will inevitably be an element of fragmentation in the process overall. Depending on the scope of the planning scheme amendment, the level of fragmentation and disruption will self‑evidently vary. I do not consider that this is supportive of the interpretation urged upon the Court by the appellants in consideration of whether the appellants were ‘substantially or materially affected’ for the purposes of the s 39. In all processes and litigation, matters arise which lead to an adjournment of the proceeding. This effect on a panel hearing is not a novel or wrong one.
I do not accept the submission made by the appellants that the Tribunal’s construction would lead to unacceptable fragmentation of the panel process. Rather, I am of the view that the most timely consideration of a procedural defect and the Tribunal’s remedial action, if required, ought take place at the earliest time rather than to permit time and cost being incurred unnecessarily by awaiting the Panel’s report.
As noted by the appellants in their submissions, procedural fairness is concerned with avoiding practical injustice. Timely action, as provided for by the time limit in s 39 upon the ‘awareness’ of the failure, is consistent with this principle.
Effect of the failure
When assessing the effect of a defect in procedure, attention is not directed to the substantive merits findings of the Minister, a planning authority or a panel in the exercise of their powers and discharge of their duties under the P&E Act. Rather, attention is directed to the actual or potential effect of the loss or curtailment of a procedural right under these provisions. Thus, it will be impossible to say what merits effect or outcome an alleged defect in the procedure has been or would be.
Given that the provision is directed towards procedural defects, not substantive ones, the question of whether someone is ‘substantially or materially affected’ depends on the consequences of the loss or containment of a procedural right of the applicant in question. This requires consideration of the content of the procedural right and its role in the broader processes established within the context of the planning scheme amendment. As s 39 provides an opportunity to a person so affected by alleged failures along the process from beginning to the penultimate step, the types of procedural rights, the timing and the circumstances of an individual applicant will inevitably vary. For example, the failure to give notice of an amendment to a person who ought to have been given notice, if that leads to their non‑participation in the process, may enliven the s 39(1) jurisdiction of the Tribunal.
Closer to the circumstances of the facts here, the opportunity for a submitter to call a witness on a matter irrelevant to the subject matter of the planning scheme amendment would unlikely qualify as a procedural defect which substantially and materially affected the person. The request to call evidence on a relevant matter would be a different circumstance and effect.
The term ‘substantially or materially affected’ operates to qualify the standing of the person to invoke the Tribunal’s jurisdiction. The filter effect of the words means that an applicant must be more affected by the alleged defect than in some minimal or minor way before they have standing to bring the alleged defect before the Tribunal. This requirement qualifies the availability of the right under s 39(1) to the consequences of an alleged defect in procedure on an applicant. As the example in the paragraph above demonstrates, not all alleged procedural defects substantially and materially affect an applicant.
Timing
The temporal component of the jurisdiction does not go to the question of standing but like all time limits are imposed to strike a balance between a timely process and a fair process.
The time limit is tied to the affected person’s subjective knowledge of the alleged defect in procedure. It is not tied to the effect of the alleged defect in procedure. An applicant may be substantially or materially affected by an alleged defect in procedure even if they do not know about it and cannot know about the impact of it on them. However, once they are aware of the alleged defect, time begins to run. The words of the section specifically call out knowledge of the ‘failure’ or procedural defect as the trigger.
The words ‘substantially or materially affected’ must have work to do
It was submitted by the appellants that in reading the text of s 39, the words ‘substantially or materially affected’ must have work to do.
I do not consider that the approach taken by the Tribunal did not give the words work to do. It was the characterisation of the loss of opportunity to be heard as the relevant procedural defect which is key in the analysis of the Tribunal. In my view, this analysis and characterisation was correct. I am fortified in this view by the nature of the procedural, supervisory nature of the remedy available under s 39.
Were the appellants ‘substantially or materially affected’ on 28 October 2023?
I agree with the Tribunal that the appellants were substantially or materially affected by the alleged defect in procedure when they were refused the opportunity to respond to the MW Document on 28 October 2023.
They were landowners affected by the proposed amendment. However, being a landowner alone is not the only consideration which would qualify them as having an interest which was affected. They were also actively engaged in the process as submitters. The submissions made by them objecting to the amendment and the evidence called related to drainage and flood modelling. These issues are at the heart of the purpose of Am C384. These were not peripheral or irrelevant issues. The questions raised by the Panel to which MW was directed to respond were matters raised by the appellants’ own witnesses and submissions.
I reject the submission by the appellants that the Tribunal considered the appellants’ interest as landowners alone, as the Tribunal recognised the appellants as submitters to the amendment process and made substantial submissions on the key issue about which the amendment was concerned, being flood modelling.
It is the opportunity to be heard in accordance with the principles of natural justice which is the relevant failure affecting their interest identified in this case. Consequently, the substantial or material detriment to the appellants arose at that point as they were denied the opportunity to respond to matters they identified as critical issues.
Further, oral reasons were given to the appellants on the same day which, in my view, has the effect of consolidating the ‘substantial or material affect’ on that date. They were aware from that point that they had been denied the opportunity to put further material on the point to the Panel.
Awareness
It follows from the preceding paragraph that I am not satisfied that the awareness of the ‘substantial or material’ effect only occurred at the time the appellants had knowledge of the contents of the Panel Report and/or written reasons in the facts of this case.
There will be examples which can be proffered where the identification and awareness of a ‘substantial or material’ effect will not occur until the Panel Report is delivered. For example, if a panel’s recommendation is based on a matter not raised at all in a panel hearing and thus no opportunity was given to address the issue, thereby taking all by surprise. In that kind of situation, the timing of the Panel Report will be coincident with the awareness. However, that is not the situation here.
Materiality
A number of authorities were raised in the course of the hearing, including the recent High Court authority Immigration and Border Protection v WZARH.[29] The concept was raised, as I understood the submission, by analogy rather than as binding authority on the question of statutory interpretation.
[29](2015) 256 CLR. In particular, counsel for the third respondent referred the Court to this decision at [42] (per Kiefel, Bell and Keane JJ) citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 160 [25], and [54] (per Gageler and Gordon JJ) citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 109 [59].
In my view, the construction of the provision being a limited statutory right to bring an application in respect of a procural defect arising from the planning scheme amendment process under the P&E Act derives no assistance from the general administrative law concept of materiality. It is a bespoke provision and is limited by its terms.
Previous Tribunal decisions on s 39
The parties made reference to a number of earlier cases in which s 39 of the P&E Act was engaged.
Danaher v Whittlesea City Council (‘Danaher’),[30] Coastal Estates, Winky Pop Pty Ltd v Hobsons Bay City Council (‘Winky Pop’),[31] Shiel v Melbourne City Council (‘Shiel’)[32] and Freeman v Knox City Council (‘Freeman’)[33] are all examples of matters which have challenged an alleged procedural failure before the Tribunal pursuant to s 39.
[30][2019] VCAT 552.
[31][2008] VCAT 206.
[32][2017] VCAT 744.
[33][2007] VCAT 414.
In Danaher, the Tribunal considered a complaint by the applicant that Whittlesea City Council had failed to comply with ss 23, 24 and 106 of the P&E Act. Much of the Tribunal’s reasons assessed the content of the requirements imposed on Whittlesea City Council, as planning authority, in the context of that case. What is germane for the purpose of the present proceeding is, first, the Tribunal’s finding that the applicant was substantially or materially affected by the alleged defect in procedure:[34]
Danaher is a person substantially or materially affected by that failure. As I have indicated, he is a significant landowner in Precinct 5, and a submitter in relation to Amendment C204. The Council did not make any significant attempt to support a contrary view.
[34]Danaher, [15].
And, second, the Tribunal extended the time for the applicant in that case lest he had commenced the proceeding out of time.[35] This, however, was the result of precisely the defect in procedure denying the applicant in that case a fair opportunity to understand how the planning scheme amendment was proposed to have changed during the amendment process.
[35]Danaher, [30].
Danaher was the central authority relied upon by the appellants at the Tribunal. They have not cited it in their written submission to this Court.
The appellants cited Coastal Estates as authority for the proposition that a proceeding under s 39(1) of the P&E Act lies in the Tribunal’s original jurisdiction. In that case, it was not in issue that the applicant was substantially or materially affected by a panel’s alleged failures.[36] Rather, the applicant principally complained that the panel failed to consider relevant considerations and made findings that were unreasonable in the Wednesbury sense.[37] The Tribunal held that it lacked the power to determine those claims as they fell outside the ambit of the Tribunal’s power in s 39 of the P&E Act.[38] To the extent that the applicant complained that the panel failed to afford the applicant a fair hearing, the applicant only became aware of it from reading the panel’s report.
[36]Coastal Estates, [14].
[37]Being the formulation of the administrative law standard of ‘unreasonableness’ enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
[38]Coastal Estates, [38].
In Winky Pop, the Tribunal considered a complaint that a panel had regard to submissions of which the applicant did not have notice. In that case, the submission was made during a part or parts of the panel hearing which the applicant had not attended, and as such the applicant could not be aware of the alleged defect in procedure until the publication of the panel’s report.[39]
[39]Winky Pop, [12].
In Shiel, the Tribunal found that the applicant was substantially or materially affected by the alleged breach of s 31 of the P&E Act:[40]
I find that there is a significant difference in development potential between the panel recommended version of the Shiel Street controls and the council adopted version. I consider that the failure to provide this information to the Minister is likely to affect the Minister’s ability to properly assess whether this change to the amendment and departure from the panel’s recommendations should be approved. It is also likely to affect the Minister’s ability to decide whether, pursuant to section 33 of the Act, he should give notice of this change to the amendment which the planning authority has made under section 29; and whether, pursuant to section 34, he should allow any person affected by the change to make a submission and obtain a panel report before making a final decisions about this aspect of the amendment.
[40]Shiel, [91].
In Freeman, the Tribunal considered an application that the Council in question had failed to comply with ss 17 and 18 of the P&E Act concerning an explanatory report for a planning scheme amendment. The Tribunal said:[41]
In my opinion, when a proceeding is brought pursuant to section 39 of the Act, the first task is to identify whether there has been a failure to comply with the relevant parts of the Act and the nature of that failure. Having identified a failure to comply, the second task is to consider whether an applicant has been substantially or materially affected by that failure.
In the present case I have concluded that there was a failure on the part of the planning authority to comply with sections 17 and 18 of the Act in relation to the explanatory report. That failure makes it likely that the new municipal strategic statement will be approved in a form that increases the probability that the Norvel Road Reserve will ultimately be developed with housing, rather than be maintained as public open space. The applicant, who lives near to the reserve and uses it as open space, is materially affected by that consequence; and, thus, by that failure to comply with sections 17 and 18 of the Act.
[41]Freeman, [36]–[37].
While this overview is non‑exhaustive, it demonstrates the diversity of circumstances in which an application under s 39 of the P&E Act can arise and, critically, the common nexus between the substance of a planning scheme amendment, its effect on the applicant’s rights and wellbeing, and the alleged defect in procedure, as giving rise to the determination of whether an alleged defect in procedure has substantially or materially affected the applicant.
The questions of construction now before this Court are not dealt with directly in any of those cases. In any event, this Court is not bound by them, as persuasive and well‑reasoned they appear to be.
Extension of time
The Tribunal, having found that standing was established as at 28 October 2023, turned its mind to whether an extension of time ought to be given pursuant to s 126 of the VCAT Act.
The Tribunal dealt with the extension of time application at [215]–[271].
It was uncontroversial that the principles in Hunter Valley applied to the exercise of this discretion by the Tribunal.
The Hunter Valley principles can be summarised as follows:[42]
[42]See Katsanis v Wyndham City Council [2005] VCAT 824, [11].
(a) whether acceptable reasons are given for the delay by the applicant for extension of time in lodging its appeal;
(b) whether the applicant for extension of time takes any other action (apart from the late appeal) which continued to make the responsible authority aware that its decision was being contested;
(c) whether the respondents will suffer any prejudice if the application to extend time is granted;
(d) whether the granting of the extension of time will result in the unsettling of other people or of established practice;
(e) whether the proposed appeal has a real chance of success;
(f) whether there are any considerations of fairness as between the applicant and other persons in a like position which are relevant;
(g) whether there is an appeal in any event brought by persons who did lodge an appeal in time; and
(h) whether there is any other reason why it would be fair and equitable in the circumstances for the application for extension of time to be granted.
The only matter which was relied upon by the appellants in the criteria applied by the Tribunal was the adequacy of the reason for the delay in bringing the application. Primarily, the appellants argued that their inability to know whether they had a case before they received the Panel Report was self‑evidently an acceptable and reasonable explanation for the delay. The exercise of discretion by the Tribunal miscarried, it was submitted, on this basis.
The Tribunal did not consider the reason for the delay, being based on the deliberate choice to await the Panel Report before determining whether there was the requisite detriment, was an acceptable one. The Tribunal considered this inaction in effect to be a forensic risk the appellants were prepared to take. Further, the Tribunal considered the delay of almost three and a half months from the failure event and two and a half months after the expiry date to be unacceptable negative factors.[43]
[43]Tribunal’s Reasons, [220]–[224].
The Tribunal went on to consider each of the other relevant factors and finding, with the exception of the merits of the substantive application (which was considered to be a favourable consideration ‘but only to a minimal extent’[44] and the appellants’ actions (which was an equivocal factor[45]), all weighed against granting an extension of time.
[44]Tribunal’s Reasons, [266].
[45]Tribunal’s Reasons, [233].
In order to successfully challenge the Tribunal’s exercise of discretion to extend time under s 126 of the VCAT Act, the appellants must establish that the Tribunal made a recognised error in the exercise of its discretion giving rise to a question of law under s 148 of the VCAT Act.
I am not satisfied that the Tribunal erred in the exercise of its discretion to extend time. It is not the role of this Court on a review under s 148 to substitute its own view of the merits for that of the Tribunal’s decision. The Tribunal canvassed all of the relevant matters in accordance with the Hunter Valley principles and formed its own view, weighing all considerations relevant to that discretion.
I am unable to discern error in the Tribunal’s approach.
CONCLUSION
There was no error in the Tribunal’s identification of a relevant failure of the calibre which would enliven the Tribunal’s jurisdiction under s 39 of the VCAT Act. Section 39, properly construed, required the appellants to bring their application no later than one month after becoming aware of the relevant failure. I do not accept that the substantial or material affect of the failure could not be identified such that the appellants were not aware of the failure for the purposes of s 39(1) until the Panel produced its Panel Report.
The appellants made an application to call further evidence and were refused that opportunity. As landowners in the affected area and participants at the Panel Hearing on a topic which was germane to their interests, that alleged failure to accord procedural fairness was a failure of procedure of which they were aware on 28 October 2022. The institution of their application under s 39 some two and a half months after the expiry of that statutory one month timeframe and some three and a half months after the awareness of this failure meant that the Tribunal validly declared the application was out of time.
The qualification on a person who can bring an application under s 39 that the person be one who is ‘substantially or materially affected’ by a relevant failure was correctly interpreted and applied by the Tribunal.
The character of failures which fall into the category which have a substantial or material affect on a person will be varied. That this is so arises from the numerous steps which are required under the P&E Act scheme for amendments. Some failures of the Minister, planning authority or panel to comply with Divisions 1, 2 or 3 or Part 8 will create an immediate awareness of a substantial or material affect, such as a failure to be given an opportunity to be heard (as were the facts here). In some factual circumstances, a panel report will be the trigger for the awareness of the substantial or material effect of the failure. That is not the case here.
The purpose of s 39 is to provide a prompt supervisory review of the alleged process failure. The remedy available is remedial directions to the panel (or the Minister as relevant) to bring the planning scheme amendment process procedurally back on track.
There was also no error in the Tribunal’s exercise of discretion to refuse an extension of time under s 126 of the VCAT Act.
ORDERS TO BE MADE
Leave to appeal is granted in accordance with the Further Amended Notice of Appeal.
The appeal is dismissed.
I will provide the parties an opportunity to make submissions as to costs.
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SCHEDULE OF PARTIES
S ECI 2023 04158
BETWEEN:
| Rockford Constant Velocity Pty Ltd | First Appellant |
| and | |
| RSA Holdings Pty Ltd | Second Appellant |
| v | |
| Melbourne City Council | First Respondent |
| and | |
| Minister for Planning | Second Respondent |
| and | |
| Melbourne Water Corporation | Third Respondent |
7
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