1. Pursuant to those orders, Dr Kirkham lodged written submissions dated 1 November 2023 ("primary submissions") supporting his application dated 19 October 2023 ("application"). Dr Kirkham also took the opportunity to lodge written reply submissions dated 8 November 2023. Written submissions were also provided by the applicant ("GFM submissions") and the Responsible Authority ("Stonnington submissions"). The objectors Dianna Box, Anja Wiersing, Rebecca Jones and Charles Williams did not provide submissions, but their solicitors Gadens Lawyers wrote stating that their clients wished to "put their objection to the Reconstitution Application on the record".

1. I am satisfied that Senior Member Code is clearly qualified to constitute the Tribunal for the purposes of continuing to hear and determine this proceeding. There are also other factors that weigh heavily against ordering a reconstitution of the Tribunal as proposed by Dr Kirkham at this point in the proceeding. The application must therefore be dismissed.
2. GFM has asked to be heard on the question of costs, presumably with a view to arguing that Dr Kirkham should be ordered to pay GFM's costs of and incidental to the application. I will hear the parties on this question. However, it may assist the parties if I briefly state my preliminary view on the question of the costs of the application.
3. Although the application was problematic for the reasons below, I accept that it was well intentioned and was influenced by the fact that proceedings of this kind are commonly heard by a panel of more than one member. Indeed, this proceeding was originally listed before two members, but one of the members allocated became unavailable shortly before the proceeding commenced.
4. Based on the matters presently before me on this application, I do not see a basis for departing from the usual position that there should be no order for costs. If GFM nevertheless wishes to be heard on costs, it should notify my chambers by email by 4.00pm on Thursday, 16 November 2023, copied to the other parties. To keep any further costs to a minimum I will thereafter fix a time for a 30 minute hearing, with each of GFM and Dr Kirkham having a maximum of 15 minutes each to make oral submissions. I will not receive written submissions.

1. In the introduction to his application, Dr Kirkham states:

"This is a question of science and policy that Senior Member Code would be unable to resolve sitting alone. The underlying computational modelling in the permit applicant's case - in so far as exposed - is electronic evidence and carries a special risk. But there is a more fundamental issue, namely that VCAT needs to take a policy decision on the de-facto outsourcing of its function to third-parties that are connected to industry."

1. In expanding on his concerns, Dr Kirkham outlines his argument that the "Green Star" standard is not an appropriate scheme for assessing whether the development satisfies the principles of Environmentally Sustainable Design ("ESD") prescribed under the relevant planning instruments. He submits that a proper examination of the project's compliance with the ESD principles requires an understanding of the science and computer modelling underpinning the tools on which the applicant relies. Only then, he argues, will VCAT be in a position to identify the flaws that he says exist in those tools.
2. Dr Kirkham concludes his application by applying for the Tribunal to be reconstituted and notes that VCAT has scientists who sit on its panel as sessional members and at least one of them should be added to provide this assistance. He adds that, given the public importance of the matter, a three-member panel might be more appropriate.

1. In his primary submissions, Dr Kirkham seeks to reframe the issue for determination in the application by asserting that my directions in the orders above "appear to be a general consideration of the constitution of the Tribunal, rather than the narrower application that I made". He says he has made two proposals. First, to apply for a scientist to be added to the Tribunal panel "who has relevant expertise, at least for determining the sustainability issues". Second, given "the nature of the issue and the contentious political character of it" an extra judicial member should also be added. Dr Kirkham then summarises his position as follows:

"a. The unusual political character of the case, with a backdrop of potential public sector misconduct (involving a deal between Dr Mordini and the developer that he was expressly told not to make by the Department of Education due to it being inappropriate), and now the attempts at greenwashing, means that the Tribunal should be judicially independent.

1. There is an antecedent concern as to the extent of the Tribunals task when considering the sustainability question.
2. Whether the relevant jurisdictional test is met is issue-specific, rather than being binary for the whole planning and environment jurisdiction.
3. There would be no disruption to the case, given the unrealistic proposal it be finished in two extra days and that reconstitution may reduce the prospects of appeal."

1. Dr Kirkham then identifies the questions informing what he describes as his narrower application, namely, whether the Tribunal as currently constituted (that is, by Senior Member Code):
   • has the qualifications to deal with matters of science; and
   • is judicially independent.
2. In relation to the first of these questions, Dr Kirkham submits:
   • "Evaluating the evidence that was put to the Tribunal by Mr Talacko requires scientific knowledge, and in particular the ability to engage with substantive mathematics and statistics. One needs to be able to do the analysis in Sir David MacKay FRS's work: it is not too complicated but needs a Maths or Physics degree";
   • it is "painfully apparent that Senior Member Code is not able to evaluate this evidence himself", as demonstrated by his "failure to order relevant disclosure" and because of his apparent surprise and lack of insight into certain of Dr Kirkham's submissions;
   • the Tribunal is not tasked with choosing between two competing proposals, but an optimization problem which requires computation and modelling;
   • a lack of expertise in these matters will result in the evaluation of this evidence being undertaken based on impressions, and mean that the Tribunal risks failing to appreciate that the Green Star rating system is based on pseudoscience and is "greenwashing"; and
   • there is a is a special need for accuracy and scientific integrity in establishing the true value of an asserted "sustainability initiative".
3. On the issue of judicial independence, Dr Kirkham advances submissions not foreshadowed in his application. He submits that:
   • the Tribunal will have to deal with the "Foreign Relations issue" and that Senior Member Code is unwilling to investigate this and other related matters as part of the proceedings;
   • despite Dr Kirkham's application for such an order, Senior Member Code has failed to order any disclosure in relation to potential public sector misconduct that needs to be investigated and ruled upon in the proceeding;
   • Senior Member Code has wrongly asserted that matters relating to the impact of construction are irrelevant to deciding what is to be built and has refused to identify the authorities he relies on in forming this view;
   • Senior Member Code has also refused to address wider issues including the "obstinate incompetence of council", and the Tribunal does not want to resolve the "Federal Law issue".
4. Dr Kirkham says that he is "concerned that Senior Member Code's reluctance stems from his personal lack of judicial independence", and that "the general issues in relation to VCAT in this regard are well-canvassed". On this latter assertion, Dr Kirkham cites the passages of the Court of Appeal's judgment in Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30 at [81]- [83] to the effect that appointments of members on the basis of fixed renewable terms is contrary to the independence of a "court of a State". He goes on to identify several recent developments unrelated to these proceedings that he asserts illustrate that "these issues [of lack of independence] have become much worse". He concludes that it follows that the lack of a judicially independent member on the panel is of most serious concern.
5. On the particular questions posed in my orders, Dr Kirkham submits as summarised below:
   1. Is the Tribunal properly constituted? The question whether Senior Member Code is properly constituted is issue specific - Senior Member Code could be qualified to hear alone the vast majority of cases in VCAT's Planning and Environment Division ("PED") but not this specific matter, being a case of "hard environmental science", which requires the Tribunal to do environmental science by undertaking the relevant analyses, not just choosing between competing perspectives. Likewise applying computer science requires genuine expertise.
   2. Are there other relevant factors? This case is similar to the case of St Leonards Property Holdings Pty Ltd v Macedon Ranges SC [2021] VCAT 654 ("St Leonards"), where it was necessary to add an Australian Lawyer to the Tribunal to deal with a question of law and "[t]here is no logical distinction between law and science in that regard". Sustainability has special importance and using an unscientific body to determine such matters would be making a mockery of Australia's international obligations.
   3. What would be the impact on the hearing? The current allowance of two additional days is unrealistic. In any event (emphasis in original):

"I am not proposing replacing Senior Member Code for the entire case or expanding the Tribunal for the whole matter. Rather it is merely about the determination of two discrete issues. The additional scientific member can listen to Mr Talacko's evidence and my argument on the matter. The same point applies for the Judicial Member and Dr Mordini. The rest, if it still arises, can be dealt with by Senior Member Code."

1. Would reconstitution achieve the objective under s98(1)(d) of the VCAT Act? There are overriding concerns that trump the application of s 98(1)(d) in this case:

"The impact of this case is profoundly important.

1. My proposal is a small cost, compared to the risk of getting this $250m building wrong.
2. The results will apply in other cases, given that VCAT perpetuates its own errors in the Planning and Environment jurisdiction out of a misguided understanding of comity.28 My attack is on the whole use of the GreenStar scheme and other private 'building inspection' schemes: it has a wide compass.
3. This one permit will impact thousands of people - if I am correct, then this will be 2 years less disruption, rather than Melbourne High School students having their study heavily disrupted."

1. Further, in the conduct of the proceeding to date, the Tribunal has "done as little as possible to accommodate self-represented litigants" and has been "favouring Counsel", including by denying Dr Kirkham the opportunity to be heard on particular applications. There should be the ordering of a three member Tribunal chaired by a Judge. A (non-judicial) member sitting alone "risks poor decision making, not least due to the lack of discussion and the complexity of the matter, as well as the wider problems with politics and a lack of expertise. Allowing this to happen would be a great disservice to the people of Forrest Hill and the weighty social issues this case raises".

1. GFM submits that Senior Member Code is a "member who has sound knowledge of, and experience in, planning or environmental practice in Victoria" within the meaning of cl 52(1)(a) of Schedule 1 of the VCAT Act (see further Attorney-General (Vic) v The Warehouse Group (Aust) Pty Ltd [2002] VSCA 76 ("Warehouse Group")), and goes on to summarise Senior Member Code's relevant qualifications and experience as a practising planner, a lawyer and a member of VCAT.
2. I agree and I note that this question does not appear to be in dispute. The substance of Dr Kirkham's submissions is that in the particular circumstances of this case, satisfying the requirements of cl 52(1)(a) of Schedule 1 of the VCAT Act as applied in Warehouse Group is not enough.
3. On the second question, GFM submits that no logical basis has been articulated for the making of a reconstitution order in the form sought and the application should be dismissed on that basis. It argues that:

"The proceedings before the Tribunal are not novel, unique, or of uncommon character. They involve matters made relevant by the Stonnington Planning Scheme and PE Act, as considered by Victorian planning and environmental practitioners as a matter of course, and as have been considered by the Tribunal (including as presently constituted for the hearing of the Proceedings) in many cases. They do not raise novel, unique or uncommon issues as may justify the exercise of the rarely-exercised s 108 power."

1. GFM further submits in effect that:
   • There is no reasonable basis to suggest reconstitution is necessary to ensure compliance with the rules of natural justice; all parties have been afforded and will continue to be afforded the opportunity to be heard on matters relevant to their interests;
   • the rules of natural justice do not require the Tribunal to entertain arguments which are irrelevant to its functions and powers, and do not require the Tribunal to be constituted in any way beyond the terms of the statute creating it for the purposes of discharging those functions and powers;
   • each of the six days of hearing included evidence and submissions addressing matters relevant to principles of ESD and the proposed use and development's response to them and any reconstitution order made in the form sought may require a substantial part, if not all, of these submissions and evidence to be reheard;
   • all Victorian planning schemes refer to, and in various ways require proposals to respond to principles of, ESD;
   • decision making by members of the Tribunal appointed on the basis of their sound knowledge of, and experience in, planning or environmental practice in Victoria has demonstrated the ability of the members of the Tribunal to engage with evidence in respect of ESD;
   • Senior Member Code is eminently qualified to hear and determine any argument by Dr Kirkham or any other party that the evidence before the Tribunal in respect of ESD is somehow flawed, lacking, or insufficient to conclude that the use and development for which GFM seeks permission would realise ESD outcomes consistent with the requirements of the Planning Scheme; and
   • reconstitution of the Tribunal as sought by Dr Kirkham is unnecessary, inconsistent with the Tribunal's obligation under s 98(1)(d) of the VCAT Act and not fair to any party.

1. Stonnington likewise submits that it is unnecessary for the Tribunal to be reconstituted as the Tribunal has the requisite knowledge and experience to deal with the matter, including the specific issue raised by Dr Kirkham in relation to ESD issues. It says that Senior Member Code is a person who has many years of involvement in hearing and determining planning appeals. Senior Member Code has sat on the Tribunal since 2010. He is a senior member and has extensive experience in statutory planning in Victoria.
2. Stonnington notes that the Dr Kirkham's application was made after:
   • 6 days of hearing;
   • Council's submissions have already been made;
   • the opening submissions of the applicant have been made;
   • a majority of the expert witnesses to be called by the applicant in this proceeding have already given evidence in chief and been cross examined by the parties to the proceeding;
   • the submissions of objectors to the proceeding have all been heard.
3. It submits on this basis that reconstituting the Tribunal at this late stage is likely to result in additional hearing days, and may require (at least in part) submissions and evidence having to be heard again.

1. In response to the GFM submissions, Dr Kirkham relevantly argues that:
   • the written submissions do not provide any indication that Senior Member Code has a scientific background - in practice, his career has been a legal one, rather than a planning one;
   • the suggestion that the proceedings are not novel overlooks that Dr Kirkham is "adopting the position of a whole-sale attack of the Green Star system" and ignores the unusual matter of evidence of public sector misconduct;
   • this is a class of case that is normally heard by at least two members, simply due to its scale;
   • the suggestion that reconstitution would require submissions and evidence to be reheard is misconceived because the additional members would only need to deal with specific issues and can hear the submissions and evidence on tape or read transcript, as in St Leonards;
   • Contrary to what GFM submits, the ESD questions in this case present a considerable challenge;
   • GFM ignores the judicial independence problem; and
   • the VCAT Act makes clear that that proper consideration should never be sacrificed on the altar of alacrity and convenience.
2. Dr Kirkham's reply to the Stonnington submissions do not materially advance the arguments made in his primary submissions.

1. The hearing on 10 November 2023 was by Zoom. Both Dr Kirkham and counsel for GFM Mr Wright made oral submissions. Other parties were present or represented, but none sought to make any submissions beyond the positions adopted in their written material. The hearing ran for a little over the two hours allocated, but added little of substance to what was in the written submissions.
2. Dr Kirkham relevantly added to his written submission as follows:
   • in order to undertake the analysis that Dr Kirkham submits is required to determine whether the proposal realizes the principles of ESD, the proposed additional member would need to be able to "do" science, which would include writing some basic computer code and running statistics and computer modelling;
   • the tasks involved would probably be manageable by someone with a maths or physics degree - a computer science degree may be sufficient, although most modern computer science qualifications were unlikely to provide the necessary skills;
   • the need for this level of analysis arises because of the particular size and location of the proposed development - it is on a scale unlike those commonly before VCAT and would ordinarily warrant a hearing before a panel of two or more;
   • the judicial independence issue arises because of the political issues that needed to be considered and determined in connection with the proposal - and notably the role and conduct of Dr Mordini;
   • the factors discussed in Meringnage and referred to in Dr Kirkham's written submissions meant that Senio Member Code could not be relied on to bring a sufficiently independent mind to these issues;
   • it would be possible to deal with the scientific issues and political issues as discrete matters, with the science-qualified member and the judicial member (respectively) participating in or determining those matters, leaving Senior Member Code to deal with the remaining issues;
   • it is not unprecedented for a judge coming late into a case to get on top of the issues by listening to evidence or reading transcript and submissions (for example, where a judge in a part heard case becomes unwell or dies) - that is a course that is open here;
   • the conduct by Senior Member Code of the proceeding to date (as discussed in the primary submissions at [52] to [54]) had gone up to the line of demonstrating apprehended bias, but had not yet crossed that line; and
   • without the support of a judicial member there was a risk that Senior Member Code would cross that line - the appointment of a judicial member was an exercise in risk management.
3. In its oral submissions, GFM sought to emphasise the true nature of the task for the Senior Member hearing the proceeding. This did not involve the type of cost-benefit analysis and computer modelling as asserted by Dr Kirkham. Rather it was determining whether the proposed development satisfied what the planning instrument requires. GFM went on to identify the specific provisions of the planning scheme that go to ESD (expanding marginally on those discussed in GFM's submissions at [8] and fn21).
4. Other matters raised by GFM included:
   • Dr Kirkham's assertion that the development was unusually large or unique in any other way, was misconceived. The PED deals with hundreds of developments on this scale - and larger - every year, and thousands of matters involving ESD assessments.
   • Similarly, political issues are a common feature of planning cases and there is no basis for questioning Senior Member Code's capacity to bring an independent mind to the question of whether the issue is relevant and how (if at all) it impacts on the application.
   • The decision in St Leonards is not analogous - it involved a question of law, and the need to reconstitute arose because s 107 of the VCAT Act was engaged.
   • Dr Kirkham's suggestion for the appointment of a judicial member to deal with a discrete issue was untenable. If a judicial member was added to the Tribunal for this proceeding, they would become the Presiding Member. They would therefore need to be across all issues and make their own assessment of the evidence and submissions. In particular, they were likely to have questions of the expert Mr Talacko. It follows that adding a judicial member would require most or all of the proceeding to be run again.
   • Any suggestion of apprehended bias was new and without substance. The concept of Senior Member Code getting close to the line on apprehended bias but not crossing it, was entirely speculative.

Does Senior Member Code lack judicial independence?_**

1. It is appropriate that I deal first with the serious matter of Dr Kirkham's submission that Senior Member Code lacks judicial independence and has "gone up to the line" on apprehended bias. Until this was raised in Dr Kirkham's written submissions, it seemed that this was not the typical case of a party seeking reconstitution based on allegations of apprehended bias or lack of impartiality. However, Dr Kirkham's written and oral submissions appear to raise that issue.
2. As noted above, Dr Kirkham does not dispute that Senior Member Code is a "member who has sound knowledge of, and experience in, planning or environmental practice in Victoria" within the meaning of cl 52(1)(a) of Schedule 1 of the VCAT Act. Rather he submits that, in the particular circumstances of this case, knowledge and experience in planning and environment practice in Victoria alone is not enough. It follows, therefore, that Dr Kirkham does not object to Senior Member Code remaining a member of the reconstituted Tribunal.
3. It is difficult to reconcile this position with Dr Kirkham's written submissions that Senior Member Code lacks judicial independence. Dr Kirkham did not resile from this position in oral submissions and, indeed, went further, by raising the spectre of apprehended bias as noted above. On the other hand, Dr Kirkham was quick to eschew any suggestion that the proceeding should be reheard before an entirely reconstituted Tribunal.
4. Perhaps Dr Kirkham recognises that the undeniable disruption and delay that would be caused if Senior Member Code were to be replaced as a Tribunal member in this proceeding, would present a substantial obstacle was a bridge too far both for his application or the proceeding more generally.
5. In any event, if there were any substance to Dr Kirkham's assertions on that matter, clearly Senior Member Code could not remain a member of the Tribunal in this proceeding in any capacity, let alone the member who (as Dr Kirkham would have it) would alone be deciding all but the two discrete issues identified by Dr Kirkham. It is self-evident that adding a judicial member would not inoculate the Tribunal from any real risk of lack of independence or apprehended bias infecting another of its members.
6. Fortunately, I am satisfied that there is no substance to Dr Kirkham's submissions in this regard. Essentially these submissions distil to two propositions. First, Senior Member Code's lack of independence or potential for apprehended bias has been demonstrated by his failure to accede to, or understand, various applications or arguments Dr Kirkham has advanced. In particular, the Senior Member has determined that matters Dr Kirkham has raised can be disregarded as irrelevant when they were clearly anything but. Second, it is notorious that members of administrative tribunals on fixed term appointments lack judicial independence.
7. As to the first proposition, it is trite that, subject to the principles articulated by ss 97 and 98 of the VCAT Act, VCAT members have a wide discretion as to how they regulate proceedings before them. This includes determining what is and what is not relevant to the issues they are called upon to determine and whether they will be assisted by particular evidence that might be made the subject of an order for disclosure.
8. Further, while ultimately a member can be called upon to give reasons for any substantive finding or decision in a proceeding, it is impracticable for them to give what is in effect a running commentary on their thought process and relevant authority for every determination on matters of relevance and evidentiary weight.
9. I agree with GFM that none of the matters relied on by Dr Kirkham provide reasonable basis to suggest reconstitution is necessary to ensure compliance with the rules of natural justice. Nor do they provide any basis for a finding that Senior Member Code's conduct of the proceeding to date demonstrates a lack of judicial independence or risks apprehended bias.
10. The difficulty with Dr Kirkham's submission on this issue and, indeed, his submissions more generally, is that they proceed on the assumption that every proposition he advances is self-evidently correct. It follows that a failure to recognise that reality can only be explained by ignorance born of a lack of training, skill or comprehension, or something potentially more nefarious.
11. In fact, the reality is that minds can differ on many of the matters raised by Dr Kirkham. I am satisfied that it is well within the skill and experience of Senior Member Code to properly assess questions of relevance and, more particularly, bring an independent mind to any questions of the relevance of what Dr Kirkham has asserted are the political issues in the proceeding, and (if required) asses the reliability of any evidence that might be said to be infected by those issues.
12. Further, nothing in the conduct of the proceeding to date is indicative of anything more than the usual sifting of the procedural and evidentiary wheat from the chaff that goes on daily in proceedings in the Tribunal. I agree with GFM that there is no basis for asserting that the Senior Member's management of the proceeding to date (including his responses to applications by Dr Kirkham) is indicative of a lack of judicial independence or borderline apprehended bias.
13. As to the second proposition, the Court of Appeal in Meringnage was doing no more than recognising that fixed-term appointments for members has the potential to impinge in the independence of members from the executive, in a manner that disqualified VCAT from status as a "court of a State" within the meaning of Ch III of the Commonwealth Constitution.
14. I reject the suggestion that these findings can be treated as supporting a conclusion that non-judicial members must be presumed to lack independence in responding to any political issues that may be said to arise in proceedings before them. I agree with GFM that VCAT members in the PED (and, indeed, other divisions) are regularly called on to assess the relevance and impact of so-called political considerations, and can be presumed (absent indications to the contrary, not present here) to do so with an independent and unbiased mind.

Does Senior Member Code have the qualifications necessary to determine the issues in this proceeding?

1. This question is intended to encompass the first and second question posed for the parties in paragraph 2 of my orders of 26 October 2023, as well as Dr Kirkham's reframing of those questions in section B of his primary submissions.
2. As GFM has submitted, Senior Member Code:
   • holds tertiary qualifications in planning and law;
   • as a practising planner, was involved in the introduction of the Planning and Environment Act 1987, and subsequent amendments, amongst other professional engagements;
   • was appointed as a Member of the Tribunal in 2010 and, since that time, has sat on and presided over very many cases concerning planning and environmental matters; and
   • is a long-standing (and continuing) contributor to the Planning and Environment Victoria service.
3. Dealing first with the question posed in my orders, there can be no doubt based on the summary above that Senior Member Code is a "member who has sound knowledge of, and experience in, planning or environmental practice in Victoria" within the meaning of cl52(1)(a) of Schedule 1 of the VCAT Act. As I have said, this issue is not in dispute. Further, I have found for the reasons above that there is no basis to question Senior Member Code's suitability on grounds of lack of independence or apprehended bias.
4. Thus the only question is whether I should exercise my discretion to reconstitute the Tribunal by adding a member possessing scientific qualifications and a judicial member. I note that Dr Kirkham put this forward as the ideal, but seemed to accept that at least adding a member with scientific qualifications would be a marked improvement on the current arrangement. In substance, Dr Kirkham says this is because Senior Member Code is incapable on his own to continue to hear and determine this proceeding.
5. In my view, Dr Kirkham's arguments in support of this contention are misconceived because:
   • he has mischaracterized the task that the Senior Member has in determining this proceeding; and
   • Senior Member Code is eminently qualified and experienced to undertake the actual task he is called on to perform.
6. Expanding on these reasons, I agree with GFM that the Senior Member's task is to determine whether the proposed development (GFM submissions at fn 24):

" '[R]ealise[s] the principles of Environmentally Sustainable Development (ESD) and Water Sensitive Urban Design (WSUD)', per Schedule 1 to clause 37.08, and whether the proposal 'achieve[s] best practice in environmentally sustainable development from the design stage through to construction and operation" and "adopts best practice" in ESD, per clause 15.02-1L-02' ".

1. In oral submissions, GFM also identified additional provisions of the planning scheme that go to matters of ESD. I accept Dr Kirkham's observation that the task of assessing the application of these principles to a particular proposal can be a considerable challenge, but I do not accept that it is one that is beyond Senior Member Code. On the contrary, it is a task that members of the PED a routinely undertake, and do so with demonstrable skill and deep understanding of the relevant planning schemes and the applicable law.
2. Similarly, I reject Dr Kirkham's submission that this "vastly understates the true task of the Tribunal". Dr Kirkham may wish to use this particular proceeding as a vehicle to embark on a "wholesale attack of the Green Star system" and promote the acceptance of alternative schemes. But wishing something does not make it so.
3. In broad terms, all that the Senior Member is required to do in this context is:
   • receive and assimilate the factual and expert evidence on the extent to which the proposal realises the principles of ESD stated in the planning scheme;
   • assess the weight and reliability of that evidence, including by critically examining any tools or models (such as the Green Star Scheme) on which the expert evidence relies;
   • receive relevant submissions on the reliability of the evidence; and
   • make the determination referred to above and provide reasons.
4. It is not incumbent on the Senior Member to reach beyond the evidence adduced in the proceeding by, for example, undertaking his own qualitative and quantitative assessment of whether the proposal realises the principles of ESD identified in the planning scheme.
5. That is not to say that a member is precluded from bringing their own particular expertise to bear in determining issues that engage that expertise, providing they do so in way that is transparent and accords procedural fairness. Members with planning expertise are appointed to the PED for that very purpose. However, they are not obliged to do so and are entitled to rely on the expert evidence and submissions, particularly in relation to issues that may be outside their expertise.
6. Indeed, judges of all courts and tribunals do this routinely in respect of almost every area of medicine, engineering, accounting and other disciplines imaginable. I accept that tribunals like VCAT were established to facilitate the involvement of experts in particular disciplines as tribunal members, but it does not follow that the absence of such a member in a particular case means the Tribunal is unqualified (except where legislatively mandated).
7. To the extent that Senior Member Code is called upon to deal with issues concerning the role of Dr Mordini and any alleged public sector misconduct, he is likewise well qualified and experienced to:
   • determine the relevance of the issue to the case before him;
   • weigh the reliability of any relevant evidence about the issue; and
   • appropriately factor that evidence into the process of reasoning he must undertake.

What other factors are relevant to the exercise of discretion under s108?

1. This section responds to the third and fourth questions under order 2 of my orders of 26 October 2023.
2. As Stonnington noted in its submissions, Dr Kirkham's application was made after:
   • six days of hearing;
   • Stonnington's submissions have already been made;
   • the opening submissions of the applicant have been made;
   • a majority of the expert witnesses to be called by the applicant in this proceeding have already given evidence in chief and been cross examined by the parties to the proceeding;
   • the submissions of objectors to the proceeding have all been heard.
3. Further, the proceeding is fixed for two further days on 17 and 21 November 2023. I understand the expectation is that the hearing will conclude in those two remaining allocated days. That expectation seems reasonable, particularly given that Senior Member Code has the option of ordering that some or all of the final submissions be made in writing. I appreciate that Dr Kirkham is doubtful that two further days is sufficient, but I have no doubt that Senior Member Code and the parties will be doing their utmost to bring the proceeding to an efficient conclusion, consistently with s 98(1)(d) of the VCAT Act.
4. I agree with GFM and Stonnington that adding one or more members to the Tribunal at this late stage would be highly disruptive and burdensome both for the parties and VCAT, for the following reasons:
   • accepting for the moment that VCAT has a member with at least some of the qualifications identified by Dr Kirkham,[1] it is safe to assume that such a member will not be available to join Senior Member Code for the balance of the hearing scheduled for 17 and 21 November 2023;
   • even if they were available, it would be unreasonable to expect them to get on top of the relevant material and evidence to date to the extent necessary to meaningfully participate in the balance of the hearing in the time available before 17 November;
   • the same can be said of any potential judicial member of the Tribunal;
   • thus it is inevitable that making any order to reconstitute the Tribunal will mean the balance of the hearing will have to be adjourned, probably until the New Year; and
   • while I accept that it is theoretically possible for a member or members joining the Tribunal to bring themselves up to speed by reading or listening to the evidence to date and considering the other evidence adduced, that would be an onerous task and is not justified in the circumstances of this case, including those identified below.
5. I agree with GFM that the decision in St Leonards is not analogous as submitted by Dr Kirkham - it involved a question of law, and the need to reconstitute arose because s 107 of the VCAT Act was engaged.
6. I also agree with GFM that these proceedings are not novel, unique, or of uncommon character. Nor is the development unusually large. I accept GFM's submission that the PED deals with hundreds of developments on this scale - and larger - every year, and thousands of matters involving ESD assessments.
7. Against that background, the extent of the disruption that would inevitably follow from acceding to Dr Kirkham's application as set out above, cannot be justified.
8. In reaching that conclusion, I have also had regard to and endorse the observation in Warehouse Group that the power under s 108 is likely to be rarely exercised. I would go further and say that (putting death or incapacity of a member to one side) it is a power that should be reserved for only the clearest of cases, such as where a failure to exercise the power will give rise to a real risk of actual or perceived denial of procedural fairness or other injustice. This is not such a case.
9. From time to time there will also be cases where reconstitution will further the purpose articulated by s 98(1)(d) of the VCAT Act. For example, where a member in a part heard case becomes unavailable for an extended period or where the addition of a member will assist with the efficient disposal of a proceeding and can be achieved with minimal little or no disruption. Again, this is not such a case.
10. I will order that Dr Kirkham's application is dismissed.

[1] My limited enquiries suggest that, while there are members who hold science and civil engineering qualifications (including, notably, qualifications in environmental science) I have been unable to identify any members with either a maths or physics degree, or otherwise with the skills necessary to write computer code, conduct the statistical analyses or undertake the computer modelling, that Dr Kirkham asserts is required in this case.