25, 26 & 27 November 2025

10:00am - 4:30pm

VCAT Melbourne, 55 King Street, MELBOURNE VIC 3000

Details of the location of the hearing will be published on the Tribunal's website, under 'Upcoming Hearings' on the afternoon of the day prior to the hearing - www.vcat.vic.gov.au/upcoming-hearings

1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended so that the permit triggers are as follows:

Matter for which the permit is triggered[1]

Construct a building or construct or carry out works associated with a use in Section 2 of clause 35.06-1.

Earthworks which change the rate of flow or the discharge point of water across a property boundary.

Construct a building or construct or carry out works.

Construct a building or construct or carry out works.

Construct a building or construct or carry out works.

Construct a building or construct or carry out works.

Earthworks that are more than one metre in height or depth.

Earthworks that cover an area of more than 4000 square metres.

Proceeding under Section 23 of the Subdivision Act 1988 (Vic) to create an easement.

Buildings or works that would be within 4 metres from the trunk of a tree that has a circumference greater than 1.1 metres (0.35 metre diameter) measured at a height of 1.3 metres above the ground.

Buildings or works within 4 metres of the trunk of any substantial tree protected under this planning scheme.

The construction of a building or the carrying out of works within 4 metres of a significant tree defined as having a trunk circumference of more than 1.1 metres (diameter .35 metre) at a height of 1.3 metres above the ground

Leave to amend statement of grounds - James Wright-Smith and Anna Wright-Smith

1. Leave is given to James Wright-Smith and Anna Wright-Smith to amend their statement of grounds dated 18 August 2025 to comprise the nine grounds provided in the email to the Tribunal on 19 September 2025 but these grounds must not be used to address flooding or flood risk.

1. No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@courts.vic.gov.au
2. All expert evidence must be provided in accordance with the Tribunal's Practice Note PNVCAT2 Expert Evidence.

1. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

Mr Geoff Lake of counsel instructed by Mr Chris Bocock, lawyer of Best Hooper Lawyers.

Mr Nick Crawford, solicitor, of TP Legal instructed by Ms Lillian Graystone, solicitor, of Melbourne Water.

1. The purpose of this practice day hearing was:
   • to consider the request of the joint respondents, James Wright-Smith and Anna Wright-Smith ('respondents'), for the leave of the Tribunal to further amend their grounds to be relied upon, dated 19 September 2025;
   • to consider the applicant's advice dated 9 September 2025 that further planning permit triggers arise from the application, and to consider how this should be dealt with; and
   • to give directions about the future conduct of the proceeding.
2. In accordance with the Tribunal's order dated 29 September 2025, the parties pre-filed submissions for the practice day hearing.
3. At the practice day hearing:
   1. I reserved my decision with respect to the first purpose of the practice day hearing; and
   2. I made oral orders with respect to the second purpose of the practice day hearing.
4. These Reasons explain why I have granted leave for the respondents to amend their statement of grounds to comprise the nine grounds provided in the email to the Tribunal on 19 September 2025.
5. This application for review will now proceed to the hearing scheduled to commence on 25 November 2025.

1. With respect to the second purpose, this order gives effect to the oral orders made with respect to the change to the planning permissions sought under the Yarra Ranges Planning Scheme ('Scheme') in permit application YR-2024/358.
2. I made oral orders at the practice day hearing that I would grant leave for Rino De Bortoli ('applicant') to amend the permit application so that the following 12 planning permissions are sought in permit application YR-2024/358:

Matter for which the permit is triggered[3]

Construct a building or construct or carry out works associated with a use in Section 2 of clause 35.06-1.

Earthworks which change the rate of flow or the discharge point of water across a property boundary.

Construct a building or construct or carry out works.

Construct a building or construct or carry out works.

Construct a building or construct or carry out works.

Construct a building or construct or carry out works.

Earthworks that are more than one metre in height or depth.

Earthworks that cover an area of more than 4000 square metres.

Proceeding under Section 23 of the Subdivision Act 1988 (Vic) to create an easement.

Buildings or works that would be within 4 metres from the trunk of a tree that has a circumference greater than 1.1 metres (0.35 metre diameter) measured at a height of 1.3 metres above the ground.

Buildings or works within 4 metres of the trunk of any substantial tree protected under this planning scheme.

The construction of a building or the carrying out of works within 4 metres of a significant tree defined as having a trunk circumference of more than 1.1 metres (diameter 0.35 metre) at a height of 1.3 metres above the ground

1. The respondents seek the leave of the Tribunal to amend their grounds to be the nine proposed grounds set out below that are identified in the document dated 19 September 2025, as follows:[4]

The proposal represents an unacceptable response to the purposes and decision guidelines of the Rural Conservation Zone and will result in unacceptable impacts to surrounding land uses or result in fragmentation of the environment. It is the respondents position that the earthworks did exceed one metre in height or depth at many locations. Further, that the earthworks have changed the rate and direction of flow or discharge point of water across the property boundary.

The proposed creation of the easement over the Melbourne Water land does not respond to the decision guidelines of clause 52.02.

Should an amendment to clause 52.02 be granted, this will establish a precedent for future easements over Melbourne Water infrastructure / land.

The proposal otherwise does not include sufficient information which has enabled the respondents to determine the application.

The proposal does not adequately meet the decision guidelines of Clause 35.06 Rural Conservation and the Environmental Protection and Biodiversity Conservation Act 1999, in particular the proposal does not prove that there will be no adverse impacts on surrounding land uses or lead to the fragmentation of the environment.

The respondents have not had sufficient information to determine whether there is a permit trigger under the Significant Landscape Overlay - Schedules 2 and 6, with regards to works that are within 4 metres from the trunk of a tree that has a circumference of greater that 1.1 metres measured at a height of 1.3 metres above ground.

The proposed development poses a juxtaposition in the landscape that is not in keeping with the guidelines of the Yarra Valley and Dandenong Ranges Destination Management Plan.

The proposed development is not in keeping with the purpose of the Green Wedge zone which aims to "protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non-urban landscapes."

The proposed development is unable to be determined due to insufficient information the applicant fails to provide an Arboricultural Assessment.

The proposed development is unable to demonstrate that it will not have an adverse effect on faunal movement within habitat corridors.

1. In the document dated 19 September 2025, the respondents state that they have renumbered their existing grounds 5, 6 and 7 to grounds 1, 2 and 3 and that they have then added grounds 4 to 9.
2. The respondents submit that:
   1. as agreed at the practice day hearing held on 29 August 2025, they withdrew any grounds related to flooding or flood risk, understanding that they have no standing to purse those grounds but that those matters will be dealt with by the Yarra Ranges Shire Council ('Council') and Melbourne Water;
   2. the grounds that they seek to pursue are not related to flooding or flood risk but address the change to the rate of flow of water across their property boundary from the subject land in any rain event due to the changes made to the subject land, including the filling in of the culverts/drains on the subject land;
   3. at the end of the compulsory conference, they did not understand they could seek leave to amend their grounds but they then reviewed the Tribunal's Remarks in its order dated 29 August 2025 and realised that they could seek to do so; and
   4. these proposed grounds are not new, but rather, are a more succinct version of the proposed grounds in the document dated 27 August 2025 and are issues that they have previously raised with the Council in their objections to the Council.
3. The Council does not oppose the respondents' requested change to their grounds, submitting that, broadly speaking, the grounds relate to the permissions sought. In saying that, the Council queries the relevance of the following proposed grounds:
   1. Ground 2 on the basis that this is a property law matter; and
   2. Ground 6 on the basis that whilst the Yarra Valley and Dandenong Ranges Destination Management Plan is a document that has been approved by the Council, it does not form part of the Scheme and its consideration is not called up by any of the permissions triggered.
4. Melbourne Water objects to the respondents' pre-filed submissions to the practice day hearing regarding ground 2 because these refer to discussions between the parties that occurred at the practice day hearing.
5. Melbourne Water says that at the hearing it will address matters that are relevant to its role as a referral authority for this permit application.
6. The applicant objects to the proposed new grounds on the basis that:
   1. it is too late for the respondents to change their grounds as this would be unfair and prejudicial to the applicant, relying on the approach of the Tribunal in Bills-Thompson v Mornington Peninsula SC[5] in disallowing a proposed change to grounds, although the applicant acknowledges the differences in the facts of the two cases;
   2. many of the new grounds relate to flooding, which the respondents cannot address;
   3. the client has briefed two expert witnesses in flooding and arboriculture, so whilst the new grounds that address arboricultural issues are not resisted as strongly by the applicant, the new grounds that address landscaping and wildlife movement will not be able to be addressed by the expert witnesses briefed to date;
   4. ground 2 deals with property law matters that involve Melbourne Water but not the respondents; and
   5. ground 3 lacks particulars for the applicant to understand to what it relates.
7. The applicant agrees that many of the proposed new grounds are substantially the same as those that were in the respondents' document dated 27 August 2025.

1. Having heard from the parties and having considered the material before me, I have decided to grant the respondents leave to amend their grounds to be in the form of the document dated 19 September 2025 but that these grounds must not be used to address flooding or flood risk. I note that the respondents assert that none of their proposed nine grounds address flooding or flood risk issues.
2. I have made this decision for the following reasons.
3. First, the respondents' proposed grounds dated 27 August 2025, whilst not formally substituted by the Tribunal as the respondents' grounds, raised substantially similar issues as are now contained in the 19 September 2025 document. As such, it cannot be said that these issues have all arisen for the first time in the 19 September 2025 document.
4. Further, I observe that at the previous practice day hearing held on 29 August 2025, the Tribunal's Remarks note that the respondents specifically reserved their position to seek orders for leave to amend their current statement of grounds if the matter did not settle at the compulsory conference, and that this might have resulted in a further practice day hearing[6] if their request was contested. As such, the current course of action was a possibility from that time onwards.
5. Second, the Council refused the permit application on nine refusal grounds, where these refusal grounds overlap with some of the issues that are raised in the respondents' proposed nine grounds. The Council refused the permit application for the following reasons:
   1. The proposed does not uphold the objectives of Clause 13.03-1S Floodplains of the Yarra Ranges Planning Scheme (the Scheme), as it does not assist in the protection of life and property from riverine flooding; and impacts the flood storage function of floodplains and waterways.
   2. The proposed development does not meet the purpose or decision guidelines of Clause 44.04 Land Subject to Inundation Overlay of the Scheme; specifically - the development does not minimise the potential flood risk to life, health and safety, does not respond to the flood hazard and local drainage conditions which may potentially impact flood flow resulting in higher flood level and longer flood duration; incompatible with flood hazard conditions.
   3. The proposed development does not comply with the Guidelines for Development in Flood Affected Areas (DELWP, 2019), specifically the objectives relating to flood impacts.
   4. The proposed development is contrary to the decision guidelines of Clause 65.01 Approval of an application or plan of the Scheme with reference to the effect the environment may have on the development, the flood hazard associated with the location and the management of the land to minimise such hazard, and the orderly planning of the area.
   5. The proposal does not adequately meet the decision guidelines of Clause 35.06 Rural Conversation, in particular the proposal does not prove that there will be no adverse impacts on surrounding land uses or lead to the fragmentation of the environment.
   6. The proposal is contrary to the decision guidelines of Clause 52.02, Easement, Restrictions and Reserve as Melbourne Water have not consented to the variation of the easement in which they are the responsible authority and an affected party.
   7. The proposal does not satisfactorily demonstrate that there would be no increase in potential flood risk to life, health and safety associated with works, contrary to the purpose of Clause 13.03 Floodplain and Clause 44.04 Land Subject to Inundation Overlay.
   8. The proposal is unable to be determined due to insufficient information, the application failed to provide the following; an Arboricultural Assessment, adequate amenity impact assessment, Melbourne Water land owner consent and flood impact assessment modelling.
   9. The proposal does not meet the decision guidelines of 65.01 of the Yarra Ranges Planning Scheme.
6. Whilst it is apparent that the focus of many of these refusal grounds is flooding and flood risk, they do not only deal with flooding and flood risk. For instance:
   1. refusal ground 5 deals with the permissions sought under the Rural Conservation Zone - Schedule 1 ('RCZ1') and the associated decision guidelines, which given the purpose of the RCZ1 and the range of matters addressed by the decision guidelines, cover a number of topics;
   2. refusal ground 8 deals with the Council's concern at having insufficient information to assess arboricultural issues and to undertake an adequate amenity impact assessment, where 'amenity' can cover several things; and
   3. refusal ground 9 deals with the proposal not meeting the decision guidelines of clause 65.01 of the Scheme, where these decision guidelines will need to be assessed through the permissions sought but given the number and breadth of permissions sought, this could, conceivably, cover a range of topics.
7. With respect to the permissions sought, these permissions are under the:
   1. RCZ1;
   2. Public Use Zone - Schedule 1;
   3. Public Parks and Recreation Zone;
   4. Heritage Overlay - Schedule 214;
   5. Land Subject to Inundation Overlay ('LSIO');
   6. Significant Landscape Overlay - Schedule 2 ('SLO2');
   7. Significant Landscape Overlay - Schedule 6 ('SLO6');
   8. Environmental Significance Landscape - Schedule 1;
   9. Clause 51.03-3 of the Scheme; and
   10. Clause 52.02 of the Scheme.
8. Accordingly, some of the respondents' proposed grounds may have arisen through consideration of the Council's refusal grounds in concert with the permissions required under the Scheme.
9. Third, through this application for review lodged under section 77 of the Planning and Environment Act 1987 (Vic) ('PE Act'), the Tribunal is able to inform itself on any matter and is not confined to the Council's grounds of refusal or to what has been raised in any statements of grounds. As such, given the permissions that are before the Tribunal for determination, it is possible that the Tribunal might have, itself, raised, some of the issues of concern to the respondents. For instance, the landscape impact of the buildings and works in light of the purposes and decision guidelines of the permissions being sought by the applicant.
10. Fourth, section 84A of the PE Act specifically provides that parties are not restricted to the grounds contained in their statement of grounds:

1. What is sought by the applicant, in effect, runs counter to what is permitted by section 84A in the PE Act, notwithstanding that the proposed grounds are not being raised for the first time at the final hearing; rather, they are being addressed earlier than that, at this practice day hearing, and they have been 'on the table' for some time now, albeit not in a formal capacity.
2. Contrary to the applicant's submission, I do not agree that section 84A is confined to when the Tribunal raises an issue, thereby enabling a party to respond to the Tribunal's query. Rather, this provision has the scope that it says it does. In saying this, there is the matter of procedural fairness that needs to be taken into account in determining how this situation should be managed when it arises. However, this is something that needs to be determined by the Tribunal presiding at the final hearing.
3. Fifth, some of the respondents' proposed grounds deal with issues that are now being addressed by the applicant. For example:
   1. arboricultural issues, noting that the applicant is calling expert evidence in this field; and
   2. queries regarding whether permission is required under the SLO2 or the SLO6, in circumstances where the applicant has now confirmed that those permissions are required.
4. In circumstances where these matters have already been addressed or are being addressed by the applicant, there is less impact to the applicant in allowing the respondents to address these issues in their amended grounds.
5. Finally, the applicant contends that many of the proposed grounds relate to flooding, whereas the respondents assert that those grounds relate to the change to the rate of flow of water across their property boundary.
6. It is clear that the respondents cannot make submissions with respect to the permission sought under the LSIO, given the exemption from notice and review contained in clause 44.04-6 of the LSIO and for the reasons explained in cases such as Clifftop at Hepburn Pty Ltd v Hepburn SC.[7]
7. However, given that permission is sought under the RCZ1 for earthworks which change the rate of flow or the discharge point of water across a property boundary, it is conceivable that the respondents' concerns relate to this permission rather than the buildings and works permission sought under the LSIO. As stated at the practice day hearing, I distinguish between the drainage of land and flooding issues; whilst they both involve the movement of water, and conceivably overlap, they each have a different focus. In any event, it is for the respondents to establish this connection and persuade the Tribunal hearing the application that their concerns pertain to this (or another) permission in respect of which they are able to make submissions.
8. Overall, having reviewed the nine proposed grounds along with the permissions sought by the applicant and having heard from the respondents, I agree with the Council that, broadly speaking, it appears that the proposed grounds can or may relate to the permissions sought. It is for the respondents to explain how these nine grounds relate to those of the permissions sought for which they can make submissions.
9. In saying the foregoing, I also have queries regarding the respondents' grounds 2 and 6. With respect to grounds 2 and 6, the respondents also need to explain clearly the connection between the issues raised in these two grounds and the permissions that are before the Tribunal in respect of which the respondents are able to make submissions. This will include the respondents explaining:
   1. how the Yarra Valley and Dandenong Ranges Destination Management Plan is relevant to the permissions before the Tribunal, noting that this document has been adopted by the Council and, as such, could be considered under section 60(1A)(g) of the PE Act if it is relevant to the permissions before the Tribunal; and
   2. in what way the creation of the easement over the Melbourne Water land does not respond to the decision guidelines of clause 52.02 of the Scheme, namely why the respondents say they are 'affected people' and if so, how their interests are impacted. In relation to this ground, the respondents are reminded of the objection by Melbourne Water to the disclosure of information provided at the compulsory conference and what would have been explained to the parties by the Tribunal member at the compulsory conference about disclosing matters discussed at the compulsory conference at the final hearing.[8]
10. Having regard to the above, the respondents' pre-filed submissions for the hearing need to address the connection between each of their amended grounds and the planning permissions that are before the Tribunal and which they can address.
11. In the facts and circumstances before me, I do not regard granting this leave to be unfair or prejudicial to the applicant. I say this having regard to how the proposed nine grounds have come to the attention of the parties, the overlap between these grounds and matters that will already be before the Tribunal, the matters that could be raised by the Tribunal in light of the range of permissions sought, and the time remaining until the final hearing.
12. For all of the above reasons, I am granting leave to the respondents to amend their grounds to be in the form of the document dated 19 September 2025 but these grounds must not be used to address flooding or flood risk. This is in circumstances where the respondents:
    1. have already withdrawn grounds relating to flooding and flood risk at the practice day hearing held on 29 August 2025; and
    2. have specifically stated that these grounds do not deal with flooding or flood risk.

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[1] Note that for the purposes of this order, I have modified the title of this second column from what is contained in Form 5 of the Planning and Environment Regulations 2015 (Vic) given this is not a situation where a Notice of Decision to Grant a Permit has been issued.

[2] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Note that I have modified the title of this second column from what is contained in Form 5 of the Planning and Environment Regulations 2015 (Vic) given this is not a situation where a Notice of Decision to Grant a Permit has been issued.

[4] I have reformatted the content of the respondents' document dated 19 September 2025 into this table for ease of reference.

[5] [2024] VCAT 658.

[7] [2023] VCAT 201.

[8] Noting that I have not discussed this matter with SM Glynn who heard the compulsory conference.