1. Section 127 application and Ms Francis submission is if VCAT convert the 89 application into a 82 application via s.127 then the 28 July 2021 can go ahead without prejudice as there is plenty of time to prepare and despite there being endorsed plans and a permit there has been no demolition nor building onsite.
2. As can be seen, at the first practice day hearing an application was made to amend this proceeding to an application lodged under section 82 of the Act.
3. The time allocated to deal with this matter was not sufficient to provide the Respondent with adequate time to make its submissions. I made orders providing the Respondent with the opportunity to file written submissions by 4 June 2021. Although counsel then acting for the Applicant specifically waived the right to a reply to the Respondent's submission, I indicated at that practice day hearing that depending on the content of the Respondent's submission, I might call the parties back for a further practice day hearing.
4. I received the Respondent's written submission along with an affidavit from Mr Christopher Wilson. I then listed this matter for a further practice day hearing on 9 July 2021 and included the following remarks:

Having reviewed the submissions from the Respondent filed in accordance with the Tribunal's order dated 1 June 2021 and having received the email from the Applicant dated 7 June 2021, I consider that it is appropriate to list this matter for a further practice day hearing. The parties will recall that, in any event, this possibility was foreshadowed at the previous practice day hearing.

I also note that at the previous practice day hearing the Applicant indicated that, if successful, she thought that the hearing that is presently scheduled for one day on 28 July 2021 would need to be extended to three or four days on the basis that she intended calling up to six witnesses.

Having regard to the estimations provided by the parties as to time for submissions, and the potential number of witnesses, I regard it as unlikely that this matter could be heard in one day, in the event that the Applicant succeeds in her application to convert the proceeding.

The Tribunal's schedule cannot accommodate an increase in the duration of the hearing during the week in which the hearing is presently listed, i.e. the week commencing 26 July 2021. I also note that the Applicant has requested a compulsory conference, again, in the event that the Applicant succeeds in converting the proceeding to one lodged under section 82 of the Planning and Environment Act 1987.

Accordingly, I do not regard the date of the listing of this further practice day hearing as compromising the parties' ability to prepare for final hearing, in the event that the Applicant succeeds in her application to convert the proceeding. Alternatively, if the Applicant does not succeed and the application is summarily dismissed, this proceeding will be at an end.

1. The purpose of the further practice day hearing was expressed as:

1. to consider the Applicant's application to convert the application lodged under sections 87(3)(b) and 89 of the Planning and Environment Act 1987 ("Act") to an application under section 82 of the Act; 2. to consider the Respondent's application to summarily dismiss the application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act"); and

1. to give directions about the future conduct of the proceeding.

1. The second practice day hearing commenced with me hearing from counsel acting for the Respondent and then hearing evidence from Mr Wilson in support of his affidavit. Mr Wilson's evidence included describing the actions that he and his consultants had undertaken in furtherance of the issue of the permit, and the costs that he had, and would, incur in the process of developing the Land.
2. The Council and the Applicant were then to be given the opportunity for reply submissions.
3. At the outset of the Council's reply, Mr Wilkinson of the Council recounted conversations that he had had with Ms Francis after the first practice day hearing and prior to this practice day hearing, when she had contacted the Council to complain about the removal of a tree from the Land. Mr Wilkinson stated that during those conversations, Ms Francis stated that it was always her intention to lodge the application under section 89 of the Act. I then required Mr Wilkinson to provide that information to me as evidence, and Mr Wilkinson swore an oath and I put questions to Mr Wilkinson. Mr Wilkinson was cross-examined by the Applicant.[7]
4. Mr Wilkinson's evidence was that during the telephone conversations he had with Ms Francis on that day, he had told her that she should have lodged her application under section 82 of the Act. He stated that in response, Ms Francis indicated that it was clear to her that section 89 of the Act was the correct mechanism and that she then stated that her then counsel had made the application to amend on his own volition and not on her instructions. When pressed, Mr Wilkinson acknowledged that he couldn't recall the exact words that were used by Ms Francis during the telephone conversations but remembered the implication of what she had said. Mr Wilkinson stated that he had told Ms Francis during those conversations that her application under section 89 was misconceived.
5. Mr Wilkinson stated that Ms Francis had told him during those conversations that she no longer had legal representation. He resisted the proposition that he took it upon himself to give her legal advice, stating that one of his responsibilities in his role at the Council is to give assistance to lay people as to what happens at the Tribunal, and so on, and that providing Ms Francis with his view on section 82 being the correct mechanism was given in this spirit.
6. I then heard further evidence under oath from Ms Francis. During that evidence she stated that it was not her intention to apply to amend the application so that it was made under section 82 of the Act and that this was the submission from her then counsel, who she said had misconstrued why she made her application under section 89 of the Act. She said that she had not wanted to discuss these matters with Mr Wilkinson when she was speaking with him about the tree removal.
7. In cross-examination Ms Francis indicated that she thought section 89 of the Act was the correct provision because it was what she could lodge post the permit being issued. This was because she was lodging the application relatively late (in relation to the 28 day time frame) and she was unable to obtain legal help due to the lockdown. In answer to questions put by the Tribunal, Ms Francis stated that the reason for her application being made under section 89 of the Act was not because she hadn't been given notice of the permit application. Rather, she chose section 89 because she was concerned that the permit may have issued (at the time she was lodging the application). She said she still didn't understand the ramifications of each little box on the form and that this application seemed to be similar (to an application for review) and would enable her to address issues in the permit or to review them. She stated that she was not sure why the application was made under section 127 of the VCAT Act by her then counsel.
8. After hearing the further evidence of Ms Francis and from Mr Wilkinson, I then provided an opportunity for the parties to make further submissions as to the implications of what had been said in evidence. The Respondent's counsel submitted that the evidence heard from Ms Francis at the second practice day hearing was damning of the case put by the Applicant that the application was intended to have been lodged under section 82 of the Act and should be amended under section 127 of the VCAT Act; there was no debate left as to the intention of Ms Francis in lodging her application.
9. The Respondent then reiterated earlier submissions that the application made under section 89 of the Act was misconceived and that there were no grounds to make this application. The Respondent's submissions addressed cases such as Albert v Whitehorse CC [2021] VCAT 188 ("Albert") and Bridger v Yarra CC [2021] VCAT 98 and these cases were discussed during the hearing.
10. I then heard further submissions from the Applicant's counsel. He maintained that Ms Francis was intending to lodge an application for review and that she did so within the 28 day statutory time frame. He stated that in completing the form she ticked the boxes that she thought would enable her to stop the development and the removal of heritage from the Land, and that it was perhaps unsurprising that she sought to 'cancel' the permit because that is what she thought she was doing.
11. The Applicant indicated that despite the application being filed in a timely manner, there was a delay by the Tribunal in processing this application.
12. The Applicant's counsel confirmed that his understanding was that the application lodged with the Tribunal comprised the application form filed on 27 October 2020.
13. In relation to questions of jurisdiction that had been discussed earlier during the hearing, I understood the Applicant's position to be that the application couldn't have been made under section 89 of the Act because the permit was not issued at the time the application was lodged with the Tribunal. Further, I understood the Applicant to submit that if the Tribunal was against them on the application to amend under section 127 of the VCAT Act, the application could remain as an application lodged under section 89 of the Act because there was now a permit that had been issued.
14. As to the reasons for making the application, I was referred to the objections lodged with the Council by the Applicant that dealt with issues such as the heritage value of the building on the Land.
15. Whilst I indicated at the second practice day hearing that I would vacate the hearing listed for 28 July 2021 pending my decision, the Respondent was reluctant to lose that hearing date and requested that it remain listed. I understood the Respondent's submission to be that his client had already been delayed and just wanted this to be dealt with.

Should I amend a document in a proceeding using section 127 of the VCAT Act, converting this application to one made under section 82 of the Act?

1. It is not unprecedented that an application lodged by a lay person is found, after its lodgement, to have been filed under the incorrect section of the Act. To get to that decision, the Tribunal must undertake a careful and considered analysis that takes into account what was lodged including any and all annexures and the nature of the surrounding circumstances. When an order is made to amend a document in a proceeding using the power in section 127 of the VCAT Act in such a situation, this is done to give effect to what the Tribunal concludes was the intention of the person when lodging the application.
2. Sometimes the facts before the Tribunal are clear and indicate that notwithstanding that one particular form was used, given the nature of the grounds expressed in the form, the documents appended to the form and any other relevant information before the Tribunal, it was the person's intention to make quite a different application. In such circumstances, the Tribunal will turn its mind not to just the applicant's case but also that of a respondent. As was stated by DP Bisucci in Albert:

Whilst section 127 of the VCAT Act does not provide any qualification to the exercise of the power to amend a document, section 97 of the VCAT Act requires me to act fairly and according to the substantial merits of the case in all proceedings. In order to act fairly, I must have regard to the prejudice caused to all parties including to the respondent, the council and the overall administration of the planning system.[8]

1. Often the balance is between what was intended by the applicant and what actions were taken by the council and any respondent, often appropriately and in good faith.
2. The situation before me is unusual. I have heard evidence under oath from the Applicant stating that her intention was to lodge the application under section 89 of the Act because she was not sure whether, by the time the application was processed, the permit would have issued. Hence, she assessed that this type of application was the correct type of application to lodge, post the issue of a permit.
3. In the face of having heard that evidence, I cannot infer another intention. In the face of this evidence, there is no justification for the Tribunal looking beyond Ms Francis' words and surmising that Ms Francis intended something else.
4. This is notwithstanding that she might not have been fully versed on the technical difference between different sections of the Act or the meaning of the different heads of claim under section 89(1)(b) of the Act. Ms Francis' answers to questions in cross-examination, in my view, disclosed a clear understanding of what she was seeking to achieve and why; that is, she wanted the permit, in the event that it had issued, to no longer be issued, or rather, to be cancelled.
5. Accordingly, I will not exercise my discretion to amend this application from one lodged under section 89 of the Act to one lodged under section 82 of the Act. This remains an application lodged under section 89 of the Act.

Should I summarily dismiss or strike out this application?

1. The next matter that I need to address is the application brought by the Respondent to summarily dismiss VCAT Application P1921/2020 pursuant to section 75 of the VCAT Act.
2. Section 75 of the VCAT Act provides the Tribunal with the power to summarily dismiss, or strike out, all or part of a proceeding that, in its opinion, is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process.
3. The Respondent points to the Applicant's own written submissions where it is stated that "the Applicant has failed to meet any of the test [sic] at Section 89(1)".[9] The Respondent submits that the application is misconceived and should be struck out.
4. The Council similarly submitted that the application has failed to meet any of the tests at section 89(1) and should be struck out as misconceived.
5. This application does not contain any explanation as to why it is claimed that there has been a material mis-statement or concealment of fact in relation to the application for the permit, or a substantial failure to comply with the conditions of the permit or a material mistake in relation to the grant of the permit. Instead, I was referred to the letters of objection to the Council with the inference that the reasons could or should be ascertained from this material.
6. Section 89(2) of the Act provides that an application brought under this section must be made in accordance with the regulations. Regulation 37 of the Planning and Environment Regulations 2015 provides that among the things that an application must include is "if applicable, reasons why the person believes the person has been adversely affected by a matter in section 89(1)(b) of the Act".[10] Whilst this particular regulation was not put to the parties during the hearing, it is evident from the relevant section of the Act that an application must be made in accordance with the regulations and my questions to the parties sought clarification as to what comprised the application to the Tribunal. Further, I also put it to the Applicant that there was no elucidation in the application form as to why, for instance, there was alleged to be a material mistake in relation to the grant of the permit.
7. Sometimes where an applicant has sought to provide reasons but they are insufficiently clear, upon request the Tribunal will provide them with the opportunity to provide further and better particulars of those reasons/grounds. Such a request was not made here and nor was I prepared to allow further and better particulars to be provided, having regard to the matter set out below.
8. This matter is the more pressing jurisdictional problem for this application. That is, as was conceded by the Applicant, at the time that the application was lodged with the Tribunal, a permit had not issued. Rather, the only thing that was in existence was the NOD. Section 89 of the Act deals with a "permit", not an NOD. As such, at the time that the application was lodged under section 89 of the Act, there was no jurisdiction for the Applicant to lodge that type of application.
9. The Applicant submits that given a permit has now issued, I can allow the application to remain on foot. However, this overlooks the fact that when it was lodged there was no power available to the Applicant to lodge it. It is a matter of jurisdictional fact that at the time the application was lodged there was no permit in existence and a permit having been issued is a requirement of bringing an application under section 89 of the Act.
10. The powers that I hold under section 126 of the VCAT Act to extend or abridge time or to waive compliance do not assist here. Section 126(1) provides:

The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

1. This is not a situation requiring extension of a time limit for the commencement of a proceeding. Rather, it is a situation where a document that needs to be in existence in order to commence a proceeding does not exist.
2. Section 126(2) provides:

If the rules permit, the Tribunal, on application by a party or on its own initiative, may -

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

1. Section 126(2)(a) deals with extending or abridging time limits for the doing of an act in a proceeding; that is, those that arise after the commencement of a proceeding. What I am dealing with here is the actual commencement of the proceeding. Further, again it is not the time limit that is the problem.
2. Section 126(2)(b) applies to procedural requirements in a proceeding. Again, this is procedural requirements that arise after the commencement of a proceeding. Again, this does not assist.
3. For these reasons, I find that I do not have the power to disregard this absence of jurisdictional fact and allow the proceeding to remain on foot.
4. As such, in the circumstances I am summarily dismissing VCAT Application P1921/2020.
5. The Respondent has sought that the costs of both practice day hearings be reserved and has indicated that it will be making an application for costs under the VCAT Act. I have made orders providing a timeframe for this to occur.

[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.

[2] Given under oath while Ms Francis was on the telephone.

[3] Affidavit of Louise Francis at [5].

[7] The Respondent did not have any questions by way of cross-examination for Mr Wilkinson.

[8] Albert v Whitehorse CC [2021] VCAT 188 at [27].

[9] Submission of the Applicant by Daniel Epstein dated 28 May 2021.