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[2001] VCAT 1464
procedural. Leave granted to Mr Trewin to lodge an application for review under s 82B; legal objections about adequacy of land identification and notification withdrawn by objectors; matter entered into...
At a VCAT directions hearing the Tribunal granted leave for a non-original objector to apply for review, dealt with objectors' legal complaints about whether the proposal and public notices were adequately described and notified, and said such legal points should be decided at a preliminary hearing before any merits hearing. The objectors chose not to pursue those legal grounds. The Tribunal recorded a council administrative error in notifying 35 late objectors which was remedied by reissuing a Notice of Decision, and issued case management directions for a four-day commercial-list merits hearing and exchange of expert evidence.
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1,665 words · generated 09/07/2026
This decision records a directions hearing at the Victorian Civil and Administrative Tribunal (VCAT) in respect of a planning permit matter for land at 3 Brickendon Drive, Rosebud. The parties were objectors/applicants for review (including Rob Cartledge, Ray Burnett, Norman McKinlay and others), the Responsible Authority (Mornington Peninsula Shire Council) and the permit applicant (Community Villages Australia Pty Ltd). The hearing before Member Tonia Komesaroff occurred on 28 June 2001.
No linked legislation citations have been extracted yet.
Key procedural events recorded in the Reasons are:
This document is thus a case management/directions record setting the procedural pathway to a merits hearing after some preliminary matters were addressed or withdrawn.
Two primary procedural decisions were made:
Granting leave under s 82B to a non-original objector (Mr Trewin). The Tribunal exercised its statutory discretion where there was no opposition from the permit applicant (Remarks 1). The decision emphasises the Tribunal’s practical power to admit additional applicants for review where appropriate.
Requiring legal questions about adequacy of notification and proposal description to be decided at a Preliminary Hearing before proceeding to a merits hearing. The Member expressly framed this as a matter of logic and case management: legal points about whether correct statutory notification occurred have consequences for who may be a party and whether additional notification is required under Schedule 1, cl. 55 of the VCAT Act. Resolving those questions in a preliminary forum preserves procedural fairness and avoids wasting resources on a full merits hearing if the Tribunal later determines notification was deficient (Remarks 4).
The Tribunal’s approach reflects ordinary administrative law and tribunal practice: resolve jurisdictional or procedural points early (by preliminary hearing) so the merits hearing proceeds only if properly constituted and notified. Where the objectors chose not to pursue the preliminary hearing, the Tribunal recorded their withdrawal and moved to set the merits timetable.
The Tribunal also recorded the facts surrounding the council’s administrative error and remedial step of reissuing the Notice of Decision (Remarks 7–9). That factual finding explains why the procedural positions of some objectors might have been affected and why the Tribunal contemplated further inquiry at a preliminary hearing.
Finally, the Tribunal exercised typical case management powers to ensure an orderly commercial-list hearing (Directions 3–5): certification of amended plans, listing in the Commercial List with specified hearing length and composition, and pre-hearing exchange of expert reports.
Before this direction, the governing statutory provisions were:
The Tribunal applied these provisions in an orthodox manner: s 82B permits leave; s 52 concerns the contents of public notices; and the VCAT Act gives the Tribunal power to control its processes and to order further notification. The decision does not create new law; it applies standard case management principles in the planning-review context. The "before" principle is that jurisdictional and procedural questions should be resolved before merits are heard; the "after" effect is a confirmation of that approach in this proceeding, including a demonstration of the Tribunal's readiness to manage the process by preliminary hearing where there are bona fide legal objections about notification.
Because objectors withdrew their legal points, the case does not set substantive precedent about what specific defects in notice would require further advertising; rather, it affirms procedural sequencing and the Tribunal's readiness to use preliminary hearings.
Quote: "Leave is given to Mr Trewin under s.82B of the Planning and Environment Act 1987 to bring his application for review." (Directions 1)
Quote: "I advised that a further preliminary hearing would need to be listed to investigate and determine the issue prior to any merits hearing being listed." (Remarks 4)
Quote: "By human error at the council, the 35 late objections were put on their old computer system... When the Responsible Authority discovered their error... it sent out a new Notice of Decision dated 1/6/01, giving both the original early objectors and late objectors extra time..." (Remarks 8–9)
Quote: "The Tribunal takes unkindly to these threats, as per its published decisions, and made it clear that planning reviews at the Victorian Civil and Administrative Tribunal were not a forum where costs were awarded..." (Remarks 14)
This directions decision is relevant where:
In short, any planning review where notification or standing/jurisdictional questions are alive should signal that a preliminary hearing may be necessary.
This decision is a VCAT directions record rather than a substantive appellate precedent. It is internally consistent with VCAT and administrative practice: that jurisdictional and procedural issues be resolved early, and that the Tribunal exercise its case-management powers to control hearings. Later decisions habitually follow the same sequencing: preliminary hearings to determine legal or jurisdictional questions where the outcome may affect whether a merits hearing should proceed or who may participate.
Because this document records only case management directions and not novel legal propositions, later tribunals and courts would treat it as an example of procedural practice rather than a binding authority on substantive law. The passages about council remedial notification are factual and would not bind future cases but may be cited as persuasive practice in comparable administrative-error scenarios.
This directions record leaves several substantive questions unaddressed, either because the objectors withdrew them or because they were to be reserved for a preliminary hearing:
What specific deficiencies in a s 52 public notice would be sufficient to require further advertising under Schedule 1, cl. 55? The Tribunal signalled the necessity of resolving that question at a preliminary hearing, but no ruling was made because the objectors withdrew (Remarks 2–4, 11–13).
What evidentiary threshold should a non-original objector satisfy on an application under s 82B to demonstrate a real interest or standing in the review? The grant to Mr Trewin was unopposed and the Tribunal gave leave quickly; the judgment does not set a standard test for contested s 82B applications (Remarks 1).
When a Responsible Authority corrects a notification error by reissuing notices and extending time limits, under what circumstances will the Tribunal nevertheless order further advertising or other relief to protect procedural fairness? The council reissued a Notice of Decision dated 1/6/01 and extended time; the Tribunal did not have to rule on sufficiency of that remedial step in this hearing (Remarks 8–9).
How strictly will the Tribunal police litigant conduct, and what procedural sanctions (if any) will be deployed where conduct undermines proceedings? The Member recorded disapproval of Mr Burnett's conduct and warned about costs threats, but did not impose orders (Remarks 5–6, 14).
These questions would require either a contested preliminary hearing or a merits hearing to be authoritatively resolved. This directions decision sets the procedural map for addressing them but does not itself decide the substantive thresholds.
Rob Cartledge, Ray Burnett, Norman McKinlay and Others
The Tribunal directs pursuant to the Victorian Civil and Administrative Tribunal Act 1998, s. 80:
1. Leave is given to Mr Trewin under s.82B of the Planning and Environment Act 1987 to bring his application for review.
2. The legal objections raised by Messrs Cartledge, Burnett and Trewin concerning adequacy of identification of the land in the permit application and adequacy of statutory notification procedures are not being proceeded with and have been withdrawn by the objectors because of their non-desire to present their arguments at a preliminary hearing.
3. Upon the Permit Applicant certifying in its letter dated 29 June 2001, that there will be no changes after the date of that certificate, to the revised application plans identified by revision date and drawing number in that letter, this matter is entered into the Commercial List pursuant to the Practice List - Commercial List Guidelines.
4. This matter is entered into the Commercial List before a lawyer and an experienced town planning member for a four day hearing between 28 August 2001 to 31 August 2001 inclusive.
5. No later than ten (10) business days prior to the hearing, each party must file with the Tribunal and serve on the other parties, a copy of the report or statement containing the evidence in chief of any expert witness on whose evidence that party intends to rely.
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For the Applicants for Review: Mr Trewin, Mr Burnett, Mr Cartledge, Mr McKinlay in person.
For the Respondents/Permit Applicant: Mr P. Connor of Counsel by direct Brief from Ratio Consultants
1. The purpose of this Directions Hearing was to hear Mr Trewin on his application pursuant to the Planning and Environment Act 1987, s. 82B to lodge an Application for Review, as he was not an original objector. As there were three other reviews listed for the same hearing, and as there was no opposition to this course by the Permit Applicant, leave to review was given to Mr Trewin within the first five minutes of the three hour directions hearing.
2. Messrs Burnett, Trewin and Cartledge's statement of grounds raised legal issues about the adequacy of the description of the `proposal', the validity of the contents of the statutory Public Notices under s.52 of the Planning and Environment Act 1987, and the public processes conducted by council.
3. The Permit Applicant was concerned to have these dealt with, and raised their concerns in their letter dated 7 June 2001, from their consultants, Ratio, to the Registrar. It was intended that the Directions Hearing also consider how to deal with these legal grounds raised by the objectors.
4. As no notice of the determining of these legal points at today's directions hearing was given to the parties, I advised that a further preliminary hearing would need to be listed to investigate and determine the issue prior to any merits hearing being listed. I explained that, as a matter of logic, these sort of arguments have to be heard at a Preliminary Hearing before a merits hearing is listed, in order for a decision to be made whether to require further notification under the VCAT Act, schedule 1 clause 55.
5. Messrs Burnett, Trewin and Cartledge all complained about inadequate notification procedures. Mr Burnett was particularly vocal about what he regarded as improper and inadequate council notification processes. He thumped the table, shouted for at least one hour and interrupted continuously to get his point across. He advised that objectors refused to come to the tribunal because they were afraid they would be sued. However, he could not provide one example of same occurring.
6. Mr Burnett's degree of disrespect for the Tribunal is a matter of regret to all who attended the hearing, not the least to the Tribunal itself.
7. Mr Burnett advised that he lobbied 35 late objections from Allambie Avenue and surrounds and took them to the 23/4/01 council meeting. It was at this meeting that the Notice of Decision to Grant a Permit was passed by council, but council still treated these late objections as valid objections, and gave them notice of the NOD, based on which these objectors could elect to take council's decision on review to the Tribunal.
8. By human error at the council, the 35 late objections were put on their old computer system, whereas letters from Responsible Authority enclosing the Notice of Decision and appeal rights only went to original earlier objectors who had also been placed on the newly changed over computer system.
9. When the Responsible Authority discovered their error that the NOD did not go to the 35 late objectors on the old computer system, it sent out a new Notice of Decision dated 1/6/01, giving both the original early objectors and late objectors extra time for lodging any applications for review. By today's hearing, these extended time limits have expired.
10. Mr Burnett would not be pacified by the Tribunal's advice that a preliminary hearing would be listed prior to the merits hearing to determine whether further advertising should be ordered pursuant to Schedule 1, cl. 55 of the Victorian Civil and Administrative Tribunal Act, 1998.
11. Mr Burnett insisted that he did not want to attend a preliminary hearing, because he could not be bothered and would rather be in Queensland. He only wanted the matter determined at the merits hearing. When it was explained to him, that logic required a preliminary hearing, and he had to elect whether he would continue those arguments at such a hearing, he withdrew his objections of inadequacy of statutory notification, because he did not want the stress, felt intimidated, and under pressure.
12. Mr Trewin also withdrew his objection of inadequacy of statutory procedures.
13. That left Mr Cartledge with his ground of objection that the school principal and parents were away for Christmas holidays, during notification periods. I was about to list a preliminary hearing when Mr Cartledge also withdrew his objection because he was also not bothered to attend a preliminary hearing, and was concerned re costs being claimed against him.
14. I reassured and explained to Mr Cartledge that developers, permit applicants and others do, on occasion, threaten people with costs, but the Tribunal takes unkindly to these threats, as per its published decisions, and made it clear that planning reviews at the Victorian Civil and Administrative Tribunal were not a forum where costs were awarded, especially for bringing points of law that had a reasonably perceived basis. Nevertheless, Mr Cartledge still withdrew those legal arguments.
15. Mr Connor advised that the Permit Applicant wished to amend its plans to add four units and turn the hostel on its axis, reducing the extent of roads leading to it. I awaited certification before directing the commercial list hearing.
16. Mr McKinlay advised he would be calling one witness. Mr Connor advised he would be calling between four to seven expert witnesses, including town planning, traffic, two environmental experts (flora and fauna, soil, water and drainage), possibly more traffic evidence, the architect and someone from the existing retirement village. Hence the four day listing.
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Cartledge R and Others
Mornington Peninsula SC [2001] VCAT 1464
Leave granted to Mr Trewin to lodge an application for review under s 82B; legal objections about adequacy of land identification and notification withdrawn by objectors; matter entered into Commercial List on certification of amended plans for a four-day hearing (28–31 August 2001); parties ordered to exchange expert evidence ten business days before hearing.