Rumpf v Mornington Peninsula Shire Council

(2000) 2 VR 69; [2000] VSC 311

Supreme Court of Victoria

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Interrogate

Catchwords

1. Planning
2. › Permits
3. › Coastal Crown land
4. › Consent of Minister under Coastal Management Act 1995
5. › Deemed refusal where Minister failed to decide within time required
6. › Whether Tribunal could disregard deemed refusal under Clause 62 of Schedule 1 of VCAT Act
7. › Whether exercise of discretion to disregard was erroneous
8. › Coastal Management Act 1995 (Vic), ss 37, 38, 39, 40
9. › Planning and Environment Act 1987 (Vic), ss 61(3), 82AA
1. Administrative Law
2. › Tribunals
3. › Victorian Civil and Administrative Tribunal
4. › Procedural fairness
5. › Post-hearing submissions
6. › Whether Tribunal erred in receiving further submissions after close of hearing without granting opportunity to other parties to be heard
7. › Whether error was vitiating
8. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 98(1)(a), 98(4)
1. Administrative Law
2. › Tribunals
3. › Victorian Civil and Administrative Tribunal
4. › Questions of law
5. › Tribunal constituted without judicial member or legal practitioner
6. › Whether questions of law decided in accordance with s 107 and Clause 66 of Schedule 1
7. › Whether parties consented to presiding member deciding questions of law
8. › Whether silence constitutes consent
9. › Whether failure to comply was vitiating error
10. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 107, Schedule 1 Clauses 62, 66
1. Planning
2. › Appeals from Tribunal
3. › Error of law
4. › Standard of review
5. › Whether vitiating error of law established
6. › Distinction between error in expression and vitiating error

Quick Take

Clause 62 of Schedule 1 of the VCAT Act empowers the Tribunal to disregard a failure to comply with an enactment even where that failure goes to the Tribunal's jurisdiction, including a deemed refusal of Ministerial consent under the Coastal Management Act 1995. However, where the Tribunal is constituted without legally qualified members, questions of law must be determined in strict compliance with s 107 and Clause 66 of Schedule 1, and silence by the parties does not constitute agreement for the presiding member to decide questions of law. Failure to comply with these requirements in respect of a question going to the heart of the Tribunal's decision is a vitiating error.