David De Giovanni of David De Giovanni Town Planning

1. The purpose of the practice day hearing in this application was to consider its future conduct.
2. The following background and context are relevant considerations in this application.
3. On 8 October 2020, the Whitehorse City Council (council) issued a Notice of Decision to Grant a Planning Permit (NOD) for land at 52 Rostrevor Parade, Mont Albert North (site) for the development of three dwellings, the removal of protected trees, and buildings and works within 4 metres of protected trees (development).
4. On 2 November 2020, the Tribunal received an application under section 89 of the Planning and Environment Act 1987 (PE Act) seeking cancellation of Planning Permit WH/2020/109 (planning permit)[1] and amendment of the planning permit[2]. The application to the Tribunal comprised the following documents:
   1. application form;
   2. planning property report;
   3. copy of the applicants' original objection to council;
   4. copy of the delegate report; and
   5. copy of the application for planning permit form AND application plans.
5. The application for cancellation of the planning permit relies upon a material mistake in the grant of the planning permit. The facts supporting the application are directed towards the appropriateness of the front setback and compliance with Standard B6 of the Whitehorse Planning Scheme (planning scheme).
6. On 9 November 2020, the council issued the planning permit.
7. At the practice day hearing the applicants originally submitted that they wished to pursue the application for cancellation of the planning permit and arrangements for that to occur were discussed. However, midway through these discussions the applicants sought leave to amend the application from one under section 89 of the PE Act to an application for review under section 82 of the PE Act.
8. The applicants submit that they are lay persons who do not fully understand the process and it has become obvious to them that they have completed the wrong form. In support of this amendment I heard from Ms Albert who said that she was confused with respect to the form that needed to be completed. No direct enquiries were made to the Tribunal regarding the correct application form.
9. Further, Mr Albert submits that there is a real issue in dispute regarding the front setback. However, Mr Albert told me that if I did not amend the application he would not pursue the application for cancellation of the planning permit.
10. The respondent opposes the amendment of the application from one under section 89 of the PE Act to an application for review under section 82 of the PE Act. The respondent says that to allow the amendment to the application causes uncertainty in the planning system such that the system could become unworkable. The respondent criticises the applicants for not making enquiries of the Tribunal in circumstances where they were confused about the correct form to complete.
11. Futher, the respondent submits that it has acted on the planing permit by seeking plans to be prepared to satisfy the conditions of the NOD.
12. The council says that it sympathises with the applicants but there is simply insufficent reason to allow any amendment of the application having regard to the facts they rely upon, when balanced against the uncertainty that is created and the prejudice to the respondents.

1. The application under section 89 of the PE Act was lodged with the Tribunal on 2 November 2020, which is within the 28 days set out in Regulation 35 of the Planning and Environment Regulations 2015 (PE Regulations) for an application under section 82 of the PE Act. However, given the application lodged with Tribunal was one pursuant to section 89 of the PE Act, the Tribunal did not contact the council to prevent the planning permit from issuing. Accordingly, on 9 November 2020, the council appropriately issued the planning permit.
2. Having heard the submissions of the parties, I must decide if there is sufficient material before me to find that the applicants intended to lodge an application for review under section 82 of the PE Act rather than the application that was in fact lodged.
3. The applicants submitted at the practice day that it was their intention to lodge an application under section 82 of the PE Act for a review of the council's decision to issue a NOD. However, that submission was made to me after discussion regarding the nature of procedural orders that would be made to progress the application under section 89 of the PE Act.
4. I now turn to the application itself as it was lodged with the Tribunal. Earlier in this decision I have set out the documents that accompanied the application form. Other than a copy of the applicants' original objection, there is no document that discloses the applicants' intention to lodge an application under section 82 of the PE Act.
5. The application form completed by the applicants' seeks the planning permit be both amended and cancelled but there is no material that evinces an intention that the applicants sought a review of council's decision. Further, the applicants rely on 'any material mistake in the grant of the permit' as the ground supporting their application.[3]
6. The applicants do not provide a copy of the NOD (or planning permit) as part of the application. According to the application,[4] the applicants understand that a planning permit has issued.
7. The applicants received the NOD from the council, the last page provides information for persons involved in the planning process including for the applicant for planning permit and any objectors. The first part of the material set out in the information states:

The Responsible Authority has decided to grant a permit. The permit has not been issued.

This notice sets out what the permit will allow and what conditions the permit will be subject to if issued.

• An objector may apply for review of the decision of the Responsible Authority to grant a permit. The application for review must be lodged within 28 days of the issuing of this notice.
• If there is no application for review, a permit will be issued after 28 days of the issuing of this notice.

• An application for review is lodged with the Victorian Civil and Administrative Tribunal.
• An application for review must be made on the relevant form which can be obtained from the Victorian Civil and Administrative Tribunal, and be accompanied by the applicable fee.
• An application for review must state the grounds upon which it is based.
• ...
• Details about applications for review and the fees payable can be obtained from the Victorian Civil and Administrative Tribunal. The address of the Victorian Civil & Administrative Tribunal is 55 King Street, Melbourne. The telephone number is (03) 9628 9777.

1. The application was lodged with the Tribunal using its online system which is accessed on the Tribunal's website. Notwithstanding the information contained in the NOD the applicants did not choose to 'review a decision on a permit application...' rather they chose 'cancel or amend a permit'.
2. Ms Albert submitted that she was confused by the information on the Tribunal's website, but she did not contact the Tribunal or the council to seek clarification about the correct form to be completed.
3. Recently, I considered what could be argued to be a similar situation in Bridger v Yarra CC[5] (Bridger decision). In that case the applicant filed an application for review under section 80 of the PE Act rather than section 82 of the PE Act and I used my discretion to amend the application to reflect the correct provision. However, in the Bridger decision I was satisfied that the application for review including its attachments clearly indicated that the applicant was lodging an application under section 82 of the PE Act. I then exercised my discretion to dispense with the Rule 1.06 of the Victorian Civil and Administrative Tribunal Rules 2018 (VCAT Rules) and amended the application for review.
4. In this application, I am not satisfied that I should exercise my discretion because:
   1. the application including the attachments do not lead to a natural conclusion that an application for review under section 82 was intended to be filed;
   2. the applicants did not seek any clarity with respect to the application form notwithstanding the submission to me that Ms Albert was confused when completing the form; and
   3. at the commencement of the practice day hearing, Mr Albert wanted to pursue the amendment/cancellation application and not an application for review.
5. Further, distinction between this application and the Bridger decision is that in this case an application under section 89 of the PE Act is one made to the Tribunal's original jurisdiction and not its review jurisdiction. In the Bridger decision the original application was made under section 80 of the PE Act and is still an application to the Tribunal's review jurisdiction.
6. I accept that there may be prejudice to the applicants by this decision however, that prejudice is not outweighed by the overall uncertainty created in the planning system by allowing such an amendment to be made to the application particularly when the planning permit has issued. In this case, the council and the respondent have acted appropriately and in good faith.
7. Section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides the power to amend documents in a proceeding and states:

(1) At any time, the Tribunal may order than any document in a proceeding be amended.

1. Whilst section 127 of the VCAT Act does not provide any qualification to the exercise of the power to amend a document, section 97 of the VCAT Act requires me to act fairly and according to the substantial merits of the case in all proceedings. In order to act fairly, I must have regard to the prejudice caused to all parties including to the respondent, the council and the overall administration of the planning system.
2. The use of correct application forms serves many important functions including:
   1. providing information required to comply with the VCAT Act and the VCAT Rules;
   2. in the case of applications under section 82 of the PE Act, contact is made with the relevant council to prevent the issue of a planning permit;
   3. the proper and orderly administration of applications; and
   4. fairness to all parties.
3. Councils and planning permit holders are entitled to rely upon the systems that have been created which includes use of the correct form or at the very least sufficient information to adduce the nature of the application that has been filed. A Council must issue a planning permit in the absence of any application for review under section 82 of the PE Act and a permit holder is entitled to rely upon a planning permit, once one has issued.
4. In this case, I cannot conclude from the application material before me, and the conduct of the applicants at the practice day hearing that they intended to lodge an application for review under section 82 of the PE Act. Whilst lay people may find navigation of the Tribunal's website more difficult than others, there is always the ability to contact the Tribunal or even the relevant Council to seek assistance.

1. Having regard to the above circumstances, I do not consider that it is fair or just for me to allow the amendment of the application. Accordingly, the application is summarily dismissed under section 75 of the VCAT Act.

[1] See section 20 of the Application form.

[2] See section 1 of the Application form.

[3] See section 24 and 26 of the Application form.

[4] See section 13 of the Application form.

[5] [2021] VCAT 98.