Bangholme Investments Pty Ltd v Greater Dandenong CC [2025] VCAT 290

Bangholme Investments Pty Ltd v Greater Dandenong CC [2025] VCAT 290 | Case summary | Zoe

This observation applies equally in this case and is to be contrasted with relying on AI results which in this case provided information which was plainly in error.
In this case, the hearing of the case will be longer if Alan Hood is joined (by an hour on his estimate), however, his proposed grounds address some matters which are clearly within the scope of relevant consideration in this case. (The applicant has indicated that it wishes to request further and better particulars of some of Alan Hood's proposed grounds as set out in his statement of grounds, but did not oppose him being joined to the proceeding nor suggest that his grounds were not, at least in part, directed to relevant planning considerations.)
It is also relevant that this matter comes to the Tribunal as an application under section 79 of the PE Act, against the failure of the Council to make a decision and that there is already one objector party participating in the hearing. The application for review will need to be considered whether or not Alan Hood is a party, and his participation will not materially delay resolution of the matter.
Drawing these matters together I have exercised my discretion to join Alan Hood because:
1. he has presented an adequate explanation of his reasons for delay in lodging the application which demonstrates that he intended to participate from the time of receipt of the application despite his delay in conveying this intention;
2. the fact that the hearing will be required in any case;
3. the relatively short period of 1 hour which he estimates his case will require;
4. the proximity of his premises to the site;
5. the fact that it is possible that the use has been undertaken without planning permission for a considerable time and that he is in a position to assist the Tribunal with an understanding of the impacts of the current/previous or future use;
6. the fact that the matters he proposed to raise include appropriate matters to be agitated at the hearing.
As noted at the hearing, Alan Hood is fortunate that there is already a proceeding on foot and that this is an application for review of the failure of the responsible authority to decide an application. If this had been an application under section 82 of the PE Act for a review of a notice of decision to grant a permit the considerations would have been different. It is likely that a permit would have issued before Alan Hood had lodged his application. Even if it had not issued, it is likely that the Tribunal would have required further persuasion to look past the lateness of his engagement with the process where the applicant would otherwise have an expectation that it would be granted a permit but for a late application. That is, however, not this case.
I find myself in the same position as the Tribunal in Salarzadeh:

[9]

It is uncontroversial that the answer to the second question is dictated by the answer to the first question.
The parties agree that if the use is properly characterised as a 'contractors depot,' then a CHMP is not required under the Aboriginal Heritage Regulations 2018 (Vic) ('AH Regulations').
If the use is properly characterised as a 'store or a vehicle store" a CHMP is required under the AH Regulations.The requirement arises from regulation 46(1) of the AH Regulations because the use would result in significant ground disturbance and is for or associated with the use of the Subject land for a Warehouse[3].
Where a CHMP is required for an activity, a permit cannot be granted unless a CHMP is approved for the relevant activity. Relevantly to this application, pursuant to 52(4) of the Aboriginal Heritage Act 2006 (Vic), if a decision maker is required to grant a statutory authorisation such as a planning permit within a certain period that period does not commence until the decision maker received a copy of the CHMP.
It follows that if a CHMP is required the Tribunal would have no jurisdiction to approve the application.
No CHMP has been issued, so it follows that the outcome of this preliminary hearing will determine whether the Tribunal has jurisdiction to decide this matter unless there is some other basis to conclude that a CHMP is not required[4].
The applicant has foreshadowed that it intends to file amended material in accordance with the Tribunal's Practice Note - PNPE9 - Amendment of plans and applications. It is appropriate that resolution of that matter awaits this material being circulated.
It is matter for the applicant as to the level of detail at which any additional material or changes are described. As a general proposition the more clear and consistent material the Tribunal has before it in completing a characterisation assessment the easier it will be for all parties to understand the basis of the characterisation sought.
The future course of the proceeding will be determined after the provision of the foreshadowed further material, noting that this may result in agreement as to the characterisation of the use or a situation in which the matter can be determined without the need for a further hearing.
I have vacated the compulsory conference scheduled for 7 April 2025 as there appeared to be little utility in that proceeding in advance of the filing of any further material sought to be relied upon by the applicant. The parties agreed to that course.

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Judgment (11 paragraphs)

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Legislation Cited (4)

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Bangholme Investments Pty Ltd v Greater Dandenong CC [2025] VCAT 290 (3 April 2025)