Respondent is contacted advising of an intention to file application for review

Application for review filed by the applicant comprising:

• Section 80 of the PE Act form;
• Contract of sale (identifying their ownership);
• NOD;
• Permit Application form;
• Officer's report;
• Original plans;
• Amended Plans; and
• Power point presentation.

Respondent sends text message seeking copy of the application for review from the applicant

Email from council advising that it had not received any

notice of an application for review from the Tribunal

Email from Fang Studio to respondent arranging meeting on 24 November 2020

Applicant contacts the respondent to discuss the proceeding.

Respondent advises that he has not received any orders and the planning permit has issued.

Applicant contacts Jacob Martin (Mr Martin) at council who advises that it only recently received notification from the Tribunal.

Council advises applicant that the incorrect form was used.

Applicant files correct application for review form with Tribunal.

Respondent receives email from Fang Studio attaching fee proposals for structural engineering and energy rating assessment.

Email from applicant attaching VCAT's initiating order.

Respondent contacts applicant requesting copy of application for review

Email from applicant attaching application for review

Applicant contacts Tribunal to confirm that the correct application for review was received.

Applicant is contacted by the respondent's lawyers.

1. The applicant submits that the key issues for my consideration are:
   1. Was a valid application for review filed with the Tribunal on 25 October 2020? and
   2. If there is a valid application for review, what orders should follow?
2. The respondent says that for there to be a valid application for review before me, I would need to exercise my discretion to amend the first application for review. This is because the applicant does not have standing to bring an application under section 80 of the PE Act and as such the application for review is not valid.

1. The applicant says there is a valid application for review because it complies with both section 67 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) and Rule 8A.03 of the Victorian Civil and Administrative Tribunal Rules 2018 (VCAT Rules). These provide:
   1. How to make an application to the Tribunal

(a) must be in the form, and contain the particulars, required by the rules; and

(b) must be accompanied by any documents or further information required by the rules; and

(c) must be lodged in the manner specified in the rules.

(2) The rules may require an application to be verified by statutory declaration or in any other manner.

(3) Two or more persons entitled to make an application to the Tribunal may make a joint application.

8A.03 Applications to the planning and environment list

An application to the planning and environment list -

(b) must contain the following details with respect to the applicant and the respondent -

(c) must contain a brief description of the issue or matter in dispute; and

(d) must state the remedy being sought from the Tribunal; and

(e) must include an electronic address for service with respect to the applicant.

1. The applicant submits that the first application for review form that was lodged complied with section 67 of the VCAT Act and Rule 8A.03 of the VCAT Rules.
2. The applicant relies upon the decision of the Tribunal in Myers v Glen Eira CC[1] (Myers decision) and specifically paragraph 13 which states:

[13] There is no prescribed form for an application to the Planning and Environment List. The Tribunal has prepared standard forms, which it encourages people to use when making an application to the Planning and Environment List. When properly completed, they contain all the information required by the rules. These forms are available for downloading from the Tribunal's website or a copy will be sent to a person upon request. The Tribunal would not reject an application simply because it was not on the Tribunal's preferred form. Nevertheless, there is certain prescribed information that must be included in an application to the Planning and Environment List. Rule 5.05 of the Victorian Civil & Administrative Tribunal Rules 2008 provides as follows:

5.05 Applications to the planning and environment list

(1) An application to the planning and environment list -

(b) must contain the following details with respect to the applicant and the respondent -

(c) must identify the Act, including the section, or other legislative provision under which it is brought*; and

(d) must contain a brief description of the issue or matter in dispute; and

(e) must state the remedy being sought from the Tribunal.

(2) Rule 4.03 does not apply to an application referred to in subrule (1)*.

1. The VCAT Rules have been amended since the Myers decision so that there is no longer any requirement to specify the Act, section, or legislative provision under which an application is made to the Planning and Environment List. Further, Rule 4.03 of the VCAT Rules now applies which provides that:

(1) An application to the Tribunal must be in the appropriate application form published on the Tribunal's website or available in hard copy from the registry.

(3) A form referred to in subrule (1) or (2) may contain any necessary modification.

1. The applicant submits that I ought to have regard to section 97 of the VCAT Act and amend the application for review to reflect that it is an application under section 82 of the PE Act as that would be fair and in accordance with the substantial merits of the case. To support this proposition, the applicant relies upon the decision of the Tribunal in Sexton v Colac-Otway SC[2] (Sexton decision) at paragraphs 12 and 13 that state:

[12] Section 97 of the Victorian Civil & Administrative Tribunal Act 1998 requires that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings. I believe that the Sextons intended to lodge an application for review under section 82 of the Planning and Environment Act 1987 except they used the wrong form. Their application was made within time; it was accompanied by the correct fee and contained all the appropriate information. In the circumstances, I consider it would be just and fair to amend the application pursuant to section 127 of the Victorian Civil & Administrative Tribunal Act 1998 to an application under section 82. This will enable the use of the land for a commercial swim school to be assessed on its planning merits.

[13] By amending the application in this way, it means that the permit purportedly issued by the council on 21 April 2009 was invalid. I will make a declaration to this effect and list the matter for hearing at Colac.

1. The council submits as follows:
   • the applicant does not have standing to bring an application for review under section 80 of the PE Act, as it is not the permit applicant;
   • the application for review was brought by a lay person and not a person with experience in planning matters;
   • there will be a serious consequence to the permit holder if the application for review is found to be valid; and
   • the concerns raised by the applicant were dealt with the planning officer in the assessment of the planning permit application such that it is unlikely that further changes will be required by the Tribunal. Therefore, the application for review has little prospect of success.

1. The respondent says that there is no valid application for review before me as the applicant does not have standing to bring an application under section 80 of the PE Act. Consequently, it is said that the permit cannot have issued invalidly or unlawfully.
2. Further, it is said that the respondent has acted on the permit by the actions set out above in the chronology of events.
3. The respondent seeks to distinguish the Sexton decision because it based on a different fact scenario namely, in that case the permit holder had not acted on the permit. Instead, I am encouraged to have regard to the decision in Papas v Banyule CC[3] (Papas decision) where the Tribunal refused to amend the application from one brought under section 87 of the PE Act to an application for review under section 82 of the PE Act.[4] At paragraph 7 and 8 the Tribunal stated:

[7] Section 127 of the Victorian Civil and Administrative Tribunal Act 1998 provides the Tribunal with the power to amend documents in a proceeding. However, in this instance I did not consider it just and appropriate to exercise my discretion to use this power to amend the application to one brought under section 82 of the Act. The reasons I declined to amend the application were given orally at the hearing and in summary were:

• The statutory time within which an application for review under section 82 of the Act needed to be make in this instance was 31 July 2020. When there have been objectors to a permit application, section 64 of the Act does not allow a permit to be issued until this statutory timeframe to have passed.
• While the applicants indicated in an email to council on 6 August 2020 that they had made an application to the Tribunal, no copy of the application was provided to council on that date. After allowing further time to pass, council checked the Tribunal's website which indicates when applications for review are made to it for review of its decision under section 82 of the Act. Unsurprisingly, given that the applicants had made a different application, no such application was shown on the website to have been made. Council then proceeded to issue an amended permit on 12 August 2020 (the amended permit).
• On receiving the amended permit, the respondents commenced acting on it. By the date of the practice day hearing before me a substantial amount of the building and works authorised by the amended permit had been commenced.
• If I had decided to correct the mistake of the applicants and change their application under section 87 to one made under section 82 of the Act, this would have meant that the amended permit which had been validly issued and quite reasonably acted upon by the respondents, would become invalid. In my view, this was a serious consequence with significant detriment to the respondents.
• I also considered the merits of the planning issues that the applicants submitted were their concerns about the amended permit. As I explained at the practice day hearing on the 16 October 2020 and as I also explain further below, I found the planning concerns raised by the applicants for review to be without merit.
• When I balanced all of these factors, I concluded that it was not just and appropriate to amend the application.

[8] Given that I had not amended the application, I also declined to make any declaration that the amended permit issued by the responsible authority on 12 August 2020 was invalidly issued.

1. The respondent also relied on what is said to be 'policy reasons' and that this process circumvents the ability to recover costs as might exist with an application under section 87 of the PE Act giving rise to a claim under section 94 of the PE Act.
2. Finally, the respondent submits that for the first application for review to be a valid application I would need to correct the error namely, that it refers to section 80 of the PE Act rather than Section 82 of the PE Act.

1. There is no dispute amongst the parties that an application for review was lodged within 28 days of the issue of the NOD. Thus, if the applicant had used the correct form, the council would have been notified and the planning permit would not have issued.
2. By virtue of Rule 4.03 of the VCAT Rules and the absence of any exclusion of that rule in Rule 8A.03 of the VCAT Rules, the Planning and Environment List now has 'appropriate application forms'.
3. Having regard to that, the enquiry is whether the first application for review filed with the Tribunal was a valid application notwithstanding that, the incorrect application for review form was completed.
4. The first application for review form did not contain details with respect to the permit applicant. Although it identified the responsible authority and the planning application number. Clearly, the council is a respondent to the application. The permit applicant is also a respondent to an application for review by virtue of section 83(4) of the PE Act. The permit applicant was not specifically named as a respondent on the application for review. However, attached to that application for review form was a copy of the notice of an application for a planning permit that does identify the details of the permit applicant.
5. Having reviewed the first application for review in its entirety, including the attachments, it is clear that all the information required by Rule 8A.03 of the VCAT Rules was provided including the name of the respondent (in this case, the permit applicant). Further analysis of the first application for review in its entirety leads to the simple conclusion that the material evinces an intention to file an application for review under section 82 and not section 80 of the PE Act.
6. The respondent has focussed on the incorrect application for review form being filed and the standing of the applicant to bring that type of application for review. However, that submission has not addressed the application for review in its entirety, including the full suite of documents that were attached to the application for review form. The respondent has focussed on form rather than substance. Whilst the amendments to the VCAT Rules now provide for the lodgement of an 'appropriate application form', that cannot be the end of the matter. A literal interpretation of Rule 4.03 of VCAT Rules leads to the conclusion that only the 'appropriate form' comprises the application and ignores the fact that such a form requires additional information to be provided. For example, a copy of the decision in dispute, copy of officer's report or a copy of the objection to the council at first instance.
7. The application for review as lodged on 25 October 2020 attached the material set out in the chronology of events. Whilst it did not provide a copy of the original objection provided to the responsible authority, it is clear from section 26 of the application for review form that the applicant had originally objected to the council.
8. When all the documents lodged on 25 October 2020, are properly reviewed there is little debate that the first application for review was an application under section 82 of the PE Act and is thus a valid application for review. Use of an incorrect 'appropriate application form' alone cannot automatically lead to a conclusion that an invalid application was made.
9. The additional consideration in this matter is the amendment of the VCAT Rules to delete reference to the relevant Act, section or provision under which the appeal is brought. This amendment might lead to an argument that greater weight ought to be placed on use of the correct application form as that provides the information about the relevant Act, section or provision. Conversely, it supports the proposition that because many applications in the Planning and Environment List are lodged by lay persons, strict adherence to technicalities are not mandatory and the Tribunal should concentrate on substance rather than form. Whilst I consider the use of the Tribunal's forms necessary for the efficient administration of justice, section 97 of the VCAT Act requires that I act fairly, and in accordance with the substantial merits of the application.
10. That being the case, coupled with the fact that the applicant has filed a second application for review form, I will exercise my discretion to dispense with compliance of Rule 4.03 of the VCAT Rules[5] and amend the application for review to delete the first application for review form and substitute the application for review form filed on 2 December 2020.[6] Further discussion with respect to the exercise of discretion is set out below.
11. Whilst adherence to the VCAT Rules and completion of the correct application forms are necessary to ensure efficient justice, they cannot be the sole drivers when considering the validity of an application for review. Each case must turn on its own facts and circumstances. In this proceeding, the application for review was lodged within 28 days of the issue of the NOD, it was lodged by an original objector, it clearly articulated the dispute and concerns, and is a valid application.
12. Having found that there is a valid application for review under section 82 of the PE Act, the council could not have issued the planning permit because section 64(3)(b) of the PE Act states:
    1. Grant of permit if there are objectors

(3) The responsible authority must not issue the permit to the applicant -

(b) if an application for review is made within that period, until the application is determined by the Tribunal or withdrawn.

1. It follows that the issue of the planning permit was unlawful; that the planning permit is void ab initio; and it does not have any force or effect.
2. Therefore, I declare pursuant to section 124 of the VCAT Act that Planning Permit PLN20/0140 purported to be issued by the Yarra City Council on 27 October 2020, is void ab initio and has no force or effect.

1. Submissions were put to me regarding the steps taken by the respondent to act on the planning permit, the implications of any declaration on the permit holder and the prospects of success of the application for review.
2. These matters relate to the exercise of my discretion to amend the application for review. Given that I have found that the application for review was a valid application under section 82 of the PE Act, and I have already exercised discretion to dispense with compliance of Rule 4.03 of the VCAT Rules, I do not consider it necessary to consider further submissions. However, if I am wrong about that, and I should have considered these submissions, I would have exercised my discretion and amended the application for review for the following reasons:
   1. the application for review clearly evinced an intention to challenge the decision of the council to issue a NOD and was thus an application under section 82 of the PE Act. Hence, I consider it just and appropriate for the application for review to include the correct application form;
   2. it is appropriate to disregard the failure to comply with the Rule 4.03 of the VCAT Rules given the totality of the material comprising the application for review;
   3. the application for review was lodged within the requisite statutory period;
   4. the applicant was an original objector;
   5. the applicant is a lay person faced with selecting from many application forms on the Tribunal's website;
   6. whilst the respondent has taken steps to act on the planning permit, they are preparatory steps, at best; and
   7. the application for review is not manifestly hopeless, weak, untenable or without merit. The officer's report sets out the level of non-compliance with clause 54 that council has deemed acceptable. However, the fact remains that there is non-compliance with relevant standards and variations to those standards are required.
3. Whilst there is prejudice to the respondent by the ultimate delay in the commencement of the development, that is outweighed by the prejudice caused to the applicant by denying him a right to be heard at the Tribunal. This is particularly so, in a system that places great value on the rights of objectors to lodge applications in their own right.
4. I concur with the Tribunal in the Sexton decision that section 97 of the VCAT Act requires me to act fairly and in accordance with the substantial merits of the case. In this proceeding, the substantial merits of the application lead to a conclusion that the applicant intended to lodge an application under section 82 of the PE Act and to the extent the wrong form was used, discretion ought to be exercised to correct that error.
5. The Papas decision relied upon by the respondent can be distinguished for following three reasons:
   1. the application in that case was lodged under section 87 of the PE Act invoking the Tribunal's original jurisdiction;
   2. the Tribunal found the application for review to be without merit; and
   3. a substantial amount of the building and works had been commenced.
6. Lastly, the respondent relied upon policy reasons to support that a declaration as to validity of the planning permit should not be made. Whilst not clearly articulated by the respondent the underlying concern was one of compensation. Whilst that is a legitimate argument, given the fact that the respondent has only taken preparatory steps (at best) to act on the planning permit, I do not consider there to be any policy reasons that would dissuade me from exercising my discretion.
7. For the above reasons, if necessary, I would exercise my discretion to amend the application for review from one brought under section 80 of the PE Act to one brought under section 82 of the PE Act.
8. It follows that I would also make the necessary declaration regarding the invalidity of the planning permit.
9. Given the circumstances of this application, I have also amended the dates for the compulsory conference and hearing to ensure timely resolution of this application.
10. I also note by way of passing, that the form giving notice of the application for planning permit states that Michel Staub is the applicant for the planning permit. Correspondence from Planning & Property Partners names Samantha Wegner as the permit holder. This issue should be resolved at the commencement of the compulsory conference.

A compulsory conference is a private meeting between the parties to the proceeding.

With the assistance of a Tribunal member the parties can explore options to reach an agreement on all or some of the matters in dispute. The parties should come with an open mind and flexibility in considering options that could resolve the case.

Unless all parties agree, evidence of anything said or done in the course of a compulsory conference (including any document provided to the Tribunal for the purpose of the compulsory conference) is not admissible in any hearing before the Tribunal in the proceeding.

More information about compulsory conferences is available on the Tribunal's website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 - Alternative Dispute Resolution (ADR).

If you are a party, you must attend the compulsory conference in person or by a representative who has written permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in an adverse way.

The Tribunal may make any of the following orders under the Victorian Civil and Administrative Tribunal Act 1998:

• If you are the applicant, your application may be dismissed or struck out.
• If you are not the applicant, you may be struck out as a party. This means that you can take no further part in the proceeding, including the hearing.
• The matter may also be settled, approving the proposal with or without changes.
• You may be ordered to pay the costs of the other parties in certain circumstances.

Only parties to the proceeding may attend a compulsory conference.

A person is a 'party' to the proceeding if the person:

• lodged an objection to the planning application
• has given a completed Statement of Grounds form to the Tribunal by the due date and paid the fee
• has indicated in their Statement of Grounds form that they intend to participate in the hearing

The following persons are NOT a party to a proceeding:

• a person who did not lodge an objection to the permit application
• a person who did not give their Statement of Grounds form by the due date and/or did not pay the fee
• a person who has indicated on their Statement of Grounds that they do not intend to participate in the hearing

If you are not a party to the proceeding but wish to be heard, you can attend at the start of the compulsory conference and ask the Tribunal to join you as a party to the proceeding. You will need to explain why you should be joined as a party to the proceeding. Other parties will also be given the opportunity to tell the Tribunal whether they agree or disagree about you being joined as a party. The Tribunal will then make a decision to join you as a party or not.

If you are not joined as party, you cannot take any further part in the compulsory conference and the Tribunal may make a final order or make other orders that may affect you in an adverse way.

A party who is struck out because they do not attend a compulsory conference cannot participate in any further compulsory conference or hearing.

What happens if agreement is reached at the compulsory conference?

If the parties present at a compulsory conference reach agreement, the Tribunal may make a final order to give effect to the agreement without a hearing being required. This can include allowing the proposal with or without changes.

What happens if agreement is not reached at the compulsory conference?

If parties present at the compulsory conference do not reach an agreement, a hearing date/s will be confirmed. An order will be issued by the Tribunal.

What happens if a partial agreement is reached at the compulsory conference?

If the parties reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference.

What should you bring to the compulsory conference?

Parties should be come to the compulsory conference with a summary of their issues and solutions. This could include possible changes that could be made to the proposal in order to address your concerns or the concerns of other parties. The attached 'Summary of Issues and Solutions for a Compulsory Conference' may be used. The applicant for the permit should bring an extra copy of any relevant plans including elevations.

SUMMARY OF ISSUES AND SOLUTIONS FOR A COMPULSORY CONFERENCE**

It is suggested that each party identify key issues and potential solutions before the compulsory conference. This will help to clarify the key issues that the parties consider most important to them and possible solutions.

Most important issues in dispute from your perspective (including any legal matters) Use additional pages if required

What potential solutions would you consider? Use additional pages if required

[1] [2010] VCAT 118.

[2] [2009] VCAT 1163.

[3] [2020] VCAT 1374.

[4] Considered at an earlier practice day hearing.

[6] Pursuant to section 127 of the VCAT Act.