Victorian Civil and Administrative Tribunal|2018-11-07

For the reasons set out above, I will direct that the decision of the Responsible Authority be varied and that a permit be issued to include the changes to the conditions and the detail of what the permit allows.

[1] The submissions and evidence 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] [2008] VCAT 2494, at [16-19].

[4] Council written submissions, at paragraph 78.

[5] The council's original number of 46 people was based on 14 car spaces assessed at a rate of 0.3 car spaces per person. However, although not included in her written evidence, Ms Dunstan in oral evidence explained that the parking credits available to the site due to the previous office use allow a maximum of 53 people. In addition, she observed that although the number of spaces attributed to the site is 14, there are actually 15 spaces available when having regard to the line marking on site. When 15 spaces are assessed at a ratio of 0.3 per person, it also results in an allowance for 53 people.

[6] Although I accept that there are 15 car spaces physically available on site, there is a legal entitlement to 14 spaces and I will use that number when referring to the spaces available on site.

Environment Act 1987

Civil and Administrative Act 1988

Bread of Life Church (Melbourne) Inc. v Whitehorse CC [2018] VCAT 1751 (7 November 2018)

The Tribunal has power under section 127 of the Victorian Civil and Administrative Act 1988 (VCAT Act) to amend an application. The additional submissions from the applicant included reference to amending the detail of what the permit allows (the preamble) and amending condition 5 (as well as different wording for conditions 3 and 6). I consider, however, that these amendments can be facilitated through the current application for review rather than requiring an amendment to the application.
The Tribunal decision of Gallco Pty Ltd v Moonee Valley CC [2011] VCAT 2320 concerned an application for review of a car parking condition. It appears that during that application, a request was made to the Tribunal to amend the permit preamble to refer to a three storey rather than a two storey building. The Tribunal determined that it was unable to amend the preamble as there appeared to be no correlation with the condition under review and the preamble, and for that reason a separate application under section 87A was required.
In this case, although the preamble was not included in the initial application for review, it is directly relevant to the conditions being challenged and the considerations of the Tribunal. So too, amendment or deletions of the other conditions under review requires consideration of the implications to the hours of operation included in condition 5.
I note the comments of the Tribunal on this point in CMA Corporation Pty Ltd v Maroondah CC[2]
1. Typically, a conditions review is in relation to one or more specified conditions. The scope of the review is limited to those particular conditions and it does not throw open for consideration other conditions not specified. Furthermore, it does not create the opportunity for the introduction of new conditions not even mentioned or contemplated in the decision of the responsible authority.
2. The only scope for a new condition would be if it arose as an incident, result or ramification of the removal of or alteration to a condition under challenge.
In this case, the introduction of any 'new' condition or amendment of the wording to the preamble arises directly as a result of the removal or alteration of the conditions under review. As such, I find that I can direct that these changes, and others related to these matters, be made as part of the current application for review.

Bread of Life Church (Melbourne) Inc. v Whitehorse CC [2018] VCAT 1751

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Judgment (7 paragraphs)

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Legislation Cited (2)

Cases Cited (2)

Bread of Life Church (Melbourne) Inc. v Whitehorse CC [2018] VCAT 1751 (7 November 2018)