1. The application for joinder is made under s 60 of the VCAT Act which provides:

(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that - > > > (a) the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or > > > > (b) the person's interests are affected by the proceeding; or > > > > (c) for any other reason it is desirable that the person be joined as a party. > > (2) The Tribunal may make an order under subsection (1) on its own initiative or on the application of any person. > > (3) On the application of a person who is entitled under section 73(4) to be joined as a party the Tribunal must order that the person be joined as a party.

2. There are three bases for the application for joinder by Theo Karseras. These are:
   1. on the proper construction of cl 53.24 of the scheme, the land is not within 800 metres of the RNAC and thus, should have been assessed using the 'usual planning pathway'; (applicability of cl 53.24)
   2. the land is subject to an agreement under s 173 of the PE Act ('s173 agreement') which arises from a consent position involving Theo Karseras and the s173 either prohibits the proposed development or at a minimum is a relevant consideration in the proceeding (s173 agreement); and
   3. the power to join a person to a proceeding arises under the VCAT Act whilst the provisions exempting notice and review rights arises in the scheme. ('residual reason')
3. Consequently, Theo Karseras says that his interests are affected by the proceeding and that it is desirable that he is joined to the proceeding under

s 60(1)(b) and (c) of the VCAT Act respectively. 4. I now summarise each of the submissions below.

1. There is no dispute amongst the parties regarding the applicability of the first two limbs of cl 53.24-1 that is, the development is an 'apartment development' and the design of the apartment development uses a licenced exemplar approved by the Future Homes Project.
2. The issue in dispute arises from the third limb of cl 53.24-1 and that is whether any part of the land is within 800 metres of the RNAC ('proximity threshold'). Specifically, whether, the distance of 800 metres is to be measured having regard to s 43 of the Interpretation of Legislation Act 1984 (Vic) ('IL Act') or as the shortest trafficable distance between the land and the RNAC.
3. Section 43 of the IL Act states:

Measurement of distances

In the measurement of a distance for the purposes of an Act or subordinate instrument, the distance shall, unless the contrary intention appears, be measured in a straight line on a horizontal plane.

('as the crow flies')

1. Theo Karseras says that the construction of a provision of an Act or subordinate legislation including the scheme that promotes its purpose must be preferred to one that does not promote its purpose.[3]
2. To support the submission that a contrary intention exists in cl 53.24 of the scheme, such that s 43 of the IL Act would not apply, the decision in Kabourakis v Medical Practitioners Board of Victoria[4] (Kabourakis) is relied upon, specifically:
   1. "Contrary intention" is not just confined to the particular section which gives the power, but may be found express or implied in the Act as a whole. In Blue Metal Industries Ltd v Dilley, the Privy Council made some observations about the phrase "unless the contrary intention appears" in interpretation Acts. Their Lordships said:

"But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole."

"An intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself."

1. Theo Karseras submits:
   1. the proximity threshold to an activity centre does not appear in isolation but as an alternative to another requirement with respect to proximity namely, 'passenger railway station'. A distinction is drawn between the drafter's choice of the phrase 'passenger railway station' as opposed to 'railway station'. This distinction is said to support an interpretation that when reference is made in cl 53.24-1 to any part of the land... must be within 800 metres... of the RNAC this actually means 'accessible locations' rather than as the crow flies. It is said this is supported by reference to the measurement having regard to the station's platform rather than the boundaries of the station more broadly;
   2. the neighbourhood and site description that is required to accompany an application under cl 53.24-4 refers to 'walking distance'. This provides:

The location of local shops, public transport services and public open spaces within walking distance.

1. the Explanatory Memorandum for VC243 is said to highlight the Minister's intention to facilitate housing growth within a particular distance of 'transport and services'. The Explanatory Memorandum provides:

1. clause 53.24 supports the conclusion that its purpose is directed to 'pedestrian' or at least 'trafficable access' or 'practical access' to RNAC and not 'geographic proximity' (or as the crow flies) because:
   1. it reduces the car parking rate usually required; and
   2. increases the ordinary rate of bicycle parking required.

1. Thus, it is said the phrase '...within 800 metres of a ...RNAC...' means 'within an accessible distance of 800 metres' rather than the literal meaning of the phrase because the literal meaning would 'produce absurd consequences'. Theo Karseras says '[T]here is no locational advantage to be obtained by a site that is located within a prescribed distance of an activity centre unless that activity centre can be accessed.' [5]
2. It is also contended that the literal construction of the phrase '...within 800 metres of a ...RNAC...' does not promote the purpose of cl 53.24 of the scheme because it would include a number of sites that do not have the desired locational attributes in that there is no route capable of walking or otherwise that results in a distance of 800 metres or less from the land to the RNAC.
3. Thus, Theo Karseras says the land does not have the locational attributes that qualify it for consideration under cl 53.24 of the scheme.

1. The land is encumbered by an agreement made under s 173 of the PE Act that was registered on the title on 25 August 2023.[6] The agreement was required by condition 4 of Planning Permit (P1085/2022) ('permit') which allowed the subdivision of the land into two lots and the removal of vegetation.
2. Notably, cl 3 of the s 173 agreement sets out the owners obligations which in part address:
   • the number of dwellings that can be constructed on each lot;
   • that each dwelling to be contained within a building envelope;
   • that a development plan to be approved prior to the commencement of any buildings or works on any lot;
   • the requirement for engineering plans showing information regarding internal drainage and disposal of stormwater, connection to a legal point of discharge nominated by council, flood levels; and
   • tree protection zones for five trees.
3. The s 173 agreement is an agreement between the owner of the land who in this case is the same as the applicant in this proceeding, and the council.
4. Theo Karseras says that the permit has been acted upon because trees have been removed from the land, but the land has not been subdivided as yet. He also submits that the s 173 agreement was a result of a mediated process[7] because of his concern about unreasonable flows of water onto neighbouring land. Of particular concern, is the method of construction of any basement because it might cause offsite damage such as to flows that may back up onto Theo Karseras' property. Further, the size of the land coupled with its natural gradient requires careful management of stormwater discharge to ensure the local network is not overwhelmed and properties are not damaged by water.
5. Theo Karseras says that it is proper for VCAT to have regard to flooding matters notwithstanding, the land is not subject to any overlays controlling flooding because this is contained within the s 173 agreement. Accordingly, issues with respect to drainage and hydrology need to be ventilated and can be done so if Theo Karseras is joined to the proceeding.
6. There is reliance on an email from council to Theo Karseras (and Daniel Redmond) dated 12 February 2025 that states ;

1. Theo Karseras says the application for review is futile but accepts 'that the proceeding is not necessarily to be dismissed...'.[8] However, it is a matter that VCAT is required to have regard to in the application for review. This position was expressly stated in Boroondara City Council v Sixty-Fifth Eternity Ptd Ltd[9] (Boroondara):
   1. The legislative arrangements for planning permits and s 173 agreements intersect in s 180, which provides that a s 173 agreement must not require or allow anything to be done which would breach a planning scheme or a permit. The parties cannot agree that something can be done or must be done that is prohibited by the planning scheme or a planning permit. As Morris P observed in Solid Investments, s 180 reflects the primacy of the planning scheme and any relevant permit over an agreement under s 173 of the Act. However, the Act contains no corresponding provision preventing a permit from authorising something that is prohibited by a s 173 agreement. There is no express prohibition on the grant of a permit authorising something that would result in a breach of a s 173 agreement as there is for a registered restrictive covenant.
   2. Indeed, whether a s 173 agreement is required to be taken into account when making a decision in respect of a permit application will depend on the circumstances. Section 84B(2)(h) provides that the Tribunal must 'where appropriate' have regard to any s 173 agreement. In this case, it was clearly appropriate for the Tribunal to have regard to the s 173 Agreement, and it did so. The weight that it gave to the s 173 Agreement was a matter for the Tribunal.

1. Reliance is also placed on paragraphs 65 and 75 of the decision in Boroondara and I extract these two paragraphs:
   1. I am satisfied that the Tribunal 'really', 'genuinely', 'properly' and 'effectively' considered the s 173 Agreement when deciding whether to grant the new permit. In a section headed 'The 173 Agreement', the Tribunal considered the relevant terms of the s 173 Agreement and the extent to which the development authorised by the permit would conflict with those terms.[10] It went on to consider the weight to be given to the s 173 Agreement, concluding that it was a relevant, but not a determinative, consideration.[11] It evaluated the facts and circumstances of the case before it and determined that it was appropriate to grant a permit notwithstanding the terms of the s 173 Agreement.

1. The ground that Condition 35 is invalid because it imposes a condition precedent to the permit coming into effect is made out. However, the defect can be remedied by altering the form of Condition 35. The proposed revision appears to me to be an appropriate solution to the legal difficulty that has been identified.
2. Theo Karseras also relies upon the VCAT decision of Mildura Rural City Council v Palamara & Ors[12] (Mildura) to contend that a s 173 agreement may provide a legitimate and very important ground for refusal. For completeness, I will now set out the relevant parts of the decision in Mildura:
   1. The second issue is somewhat different to the other three proceedings. The restriction imposed on further subdivision arises under a section 173 agreement, rather than directly under the incorporated document.
   2. The subdivision controls in the rural zones in planning schemes commonly provide a once-only opportunity for 2-lot subdivisions, with a 2-lot subdivision conditional upon the landowner entering into a section 173 agreement that prevents further subdivision. The public policy intent is clear - i.e. to prevent repeated 2-lot subdivisions of the same land over time to circumvent the control. This form of control existed under the Rural Zone, exists under the current Farming Zone in clause 35.07-3 of the Mildura Planning Scheme, and has existed in all versions of the incorporated document - including the February 2010 version now in force.
   3. The regulatory control arising from the zone provision and incorporated document is simply the requirement for a section 173 agreement. The zone provision and incorporated document do not themselves prohibit further subdivision, but require a section 173 agreement to be registered on the title of the land to achieve that outcome. The section 173 agreement is thus a separate regulatory tool that imposes a separate and additional layer of planning control over the land.
   4. There is nothing in the Planning and Environment Act 1987 or the Mildura Planning Scheme that authorises a responsible authority to automatically reject a permit application that would contravene a registered agreement prohibiting further subdivision, notwithstanding that the agreement was required by the planning scheme. The responsible authority must therefore consider the permit application on its planning merits.

1. In summary, Theo Karseras says that he does not need to demonstrate a compelling reason to be joined under s 60 of the VCAT Act, rather it is sufficient for him to demonstrate his interests are affected.
2. Further, he says that cl 53.24 does not abrogate any rights arising from ss 52, 57 or 60(1)(c) of the PE Act. Nor does it prevent VCAT from taking into account the objections that council took into account or was required to be taken into account. Thus, VCAT must consider the objection from Theo Karseras and thus, it is desirable that he is joined to the proceeding.
3. The existence of the s 173 agreement also gives Theo Karseras a special interest that also supports that it is desirable that he is joined to the proceeding.

WHAT DOES COUNCIL SAY ABOUT THE JOINDER OF THEO KARSERAS?

1. Council submits that Theo Karseras is not entitled under the PE Act to participate in the proceeding because the development can be assessed under cl 53.24 and thus, the exemption at cl 53.24-6 of the scheme applies.
2. Further, council says the s 173 agreement would need to be considered if a permit was granted in this proceeding. It also adds that it considered the 173 agreement to be relevant when it considered the application for permit but not determinative of the outcome of the assessment.

1. Council submits when interpreting subordinate legislation such as the scheme, various sections of the IL Act are relevant. These include:
   • a construction that promotes the purpose or object of the provision must be preferred to one that would not promote that purpose or object (s 35(a) of the IL Act);
   • consideration may be given to any matter or document that is relevant (s 35(b) of the IL Act); and
   • in the measurement of a distance for the purposes of an Act or subordinate instrument, the distance shall, unless the contrary intention appears, be measured in a straight line on a horizontal plane (s 43 of the IL Act).
2. Council says the references to distance in cl 53.24 of the scheme goes to 'general accessibility' to public transport and activity centres. Using a measurement consistent with s 43 of the IL Act is consistent with the principle of general accessibility without having to revert to any additional investigation about walking distance or trafficable distance and possible 'shortcuts'.
3. Further, council highlights that using the measurement in s 43 of the IL Act ensures the provision is very clear in respect to distances when compared to using walking distance of trafficable distance which would make the provision subject to dispute in each and every application under cl 53.24 of the scheme.
4. Council notes that the scheme does use the phrase 'walking distance' when an exact distance is being contemplated for example at cl 56.04 which states:

1. Thus, council says there is no contrary intention in cl 53.24 of the scheme and s 43 of the IL Act applies, which means the development can be assessed under cl 53.4 of the scheme and it has benefit of the exemption from third party participation.

1. Council considers that the s 173 agreement is a matter that can be considered by VCAT, and that this agreement was considered by council when assessing the development.
2. However, it does not consider the s 173 agreement to be a determinative issue in the assessment of the development and accordingly, did not refuse the development on such a ground.

WHAT DOES THE APPLICANT SAY ABOUT THE JOINDER OF THEO KARSERAS?

1. The applicant opposes the joinder of Theo Karseras and says that there is no proper basis for any such joinder.

1. The applicant submits that s 43 of the IL Act applies in this proceeding and thus, the development can be assessed under cl 53.24 of the scheme and in turn this means that Theo Karseras should not be joined to the proceeding.
2. The applicant says the ordinary and literal meaning of 'within 800 metres' is consistent with the purpose of cl 53.24 of the scheme. Further, it is submitted that there is nothing in cl 53.24 that evinces a contrary intention.
3. The applicant also highlights other provisions of the scheme that refer to 'walking distance' including cl 56.04-1 (extracted earlier) and cl 56.03-1 and 56.05-2 which state:

1. Thus, the applicant says that the application for joinder should be refused.

1. The applicant says that the s 173 agreement is not a proper basis for the joinder of Theo Karseras because the only parties to the agreement are the council and the applicant. The applicant says it is difficult to understand how a person who is not a party to an agreement can use the agreement as a proper basis for joinder to the proceeding in a process where third parties are otherwise excluded from participation.
2. Moreover, the applicant accepts the s 173 agreement is a relevant matter that VCAT must have regard to in this proceeding. It notes that council considered the s 173 agreement and chose not to include it as a ground of refusal.
3. The applicant is aware that it will have to make a separate application to council to end the s 173 agreement.

1. I will now address each of the bases for the application for joinder.

1. Having considered the submissions of the parties, I disagree with Theo Karseras' interpretation of cl 53.24 and that a literal meaning of the phrase 'Any part of the land: - Must be within 800 metres of ...the RNAC' leads to absurd outcomes.
2. The principles of statutory interpretation are not in dispute, and whilst reference has been made to Project Blue Sky Inc v Australian Broadcasting Authority[13], I refer to the decision of the Supreme Court of Victoria, Court of Appeal ('COA') in Mason v Head, Transport for Victoria[14] (Mason) where the relevant principles of statutory construction were summarised through the leading cases. There is no debate with respect to the principles of statutory construction which relying on Mason can be summarised as:
   • the task of statutory construction must begin with the text itself;
   • historical considerations and extrinsic materials cannot be used to displace the clear meaning of the text;
   • the meaning of the text may require some consideration of the context, including the general purpose and policy of a provision, particularly the mischief it is seeking to remedy;
   • considerations of context and purpose recognise that another meaning may be suggested from its ordinary meaning, and if so, the ordinary meaning must be rejected; and
   • the primary object is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
3. Further, for completeness, a planning scheme is subordinate legislation to which the IL Act applies.
4. I approach the task of the interpretation of cl 53.24 with Mason in mind as follows:
   • What does the text of cl 53.24-1 of the scheme mean and is it necessary to reject the literal or ordinary meaning of cl 53.24-1?
   • What is the purpose of cl 53.24?
   • Does cl 53.24-1 contain a 'contrary intention' so as to displace the meaning of measurement contained in s 43 of the IL Act?
5. I address the second and third matters together below.

What does the text of cl 53.24-1 of the scheme mean and is it necessary to reject the literal or ordinary meaning of cl 53.24-1?

1. There is nothing in the text of cl 53.24-1 itself that refers to 'walking' or 'trafficable' or 'accessible' or 'practical' distance.
2. In my view the literal meaning of cl 53.24-1 is simple: any part of the land at 125 Mountain View Parade must be within 800 metres of the RNAC.
3. Firstly, not all the land is to be within the 800 metres, but rather any part of the land can be. This supports that a measurement of distance that is not precise or prescriptive.
4. Second, the word 'within' is not defined in the scheme or the PE Act and is to be given its ordinary meaning[15] which is (as relevant):[16]

adverb 1. in or into the interior or inner part, or inside.

2. ...

7. inside; in.

8. in the compass or limits of; not beyond: within view; to live within one's income.

9. at or some point not beyond, as in length or distance; not farther than: within a radius of a kilometre.

10. at or to some amount or degree not exceeding: within two degrees of freezing.

11. ...

12. inside the limits fixed or required by; not transgressing: within the law; within reason.

13. ...

1. Thus, having regard to the ordinary meaning of 'within', any part of the land must be inside a distance of 800 metres of the RNAC land and not beyond that distance because it is a limit that is fixed and cannot be transgressed for cl 53.24-1 to apply.
2. I do not consider that a literal meaning of cl 53.24-1 and a calculation of distance according to s 43 of the IL Act leads to any absurd results. Rather, this mode of measurement provides certainty to the administrators of the scheme as it is practical and logical when compared to a measurement that relies on walkable, trafficable, accessible or practical distance. The later could in fact lead to absurd results where land would not have the benefit of cl 53.24-1 in circumstances where land could physically adjoin the boundary of an activity centre but access to that centre could only occur by some trafficable pathway whose distance is more than 800 metres. Yet, land that is much further away in distance from the activity centre could be assessed under cl 53.24 because the distance was 'trafficable'.
3. The literal meaning of the text of cl 53.24-1 does not lead to absurd outcomes.

Does cl 53.24-1 contain a 'contrary intention' so as to displace the meaning of measurement contained in s 43 of the IL Act?_

1. I now consider the purpose of cl 53.24-1 in its statutory context. I start with the purposes of cl 53.24 which are set out earlier in these reasons. It is noteworthy that all three purposes commence with the phrase 'To facilitate apartment developments ...'
2. These three purposes together indicate a provision that assists or makes simpler the approval of apartment developments if they meet the requirements set out in cl 53.24-1 of the scheme.
3. The literal meaning of cl 53.24-1 does not derogate from the purposes of cl 53.24, in fact, the measurement of distance that applies to s 43 of the IL Act provides discrete parameters, is readily discernible and supports the purposes of the clause '[t]o facilitate apartment developments...'.
4. Theo Karseras also says the reduction in the standard car parking requirements and increased in the standard bicycle requirements allowed under cl 53.24 support a view that the proximity threshold is directed to walking or trafficable distance.
5. I disagree with the submission of Theo Karseras that a decreased dependency on cars supports a view that the proximity threshold is directed to walking distance. It is simply a recognition that the land that benefits from cl 53.24 is close to transport and services. In fact, the increase in the standard requirement for bicycle spaces is contrary to that conclusion that is, the distance need not be 'walkable'.
6. As noted earlier, using 'trafficable distance' as a method for calculating distance can give rise to absurd outcomes. This is in addition to variable outcomes about the proximity threshold with a need for the primary decision maker to undertake detailed assessments about 'walkability' or 'trafficability' or 'practical distance' that do not arise when using the mode of measurement provided for in s 43 of the IL Act. The measurement of distance in this proceeding remains a constant, that is measured as the crow flies from the boundary of the commercial zone (the RNAC in this case).
7. The requirement for a decision maker to undertake detailed assessment about the measurement of distance is contrary to the purposes of cl 53.24 of the scheme.

1. I was referred to that part of cl 53.24-1 that deals with the measurement of distance from a passenger railway station which provides:

For the purposes of this clause, the distance from a passenger railway station must be measured from the closest point to a station platform.

1. My first observation is that this part of the clause is clearly intended to direct the point from which the measurement of distance is to occur for a passenger railway station. The same can be said with the measurement of distance from an activity centre that is:

For the purposes of this clause, the distance from an activity centre must be measured from:

• ...
• if the boundary of the activity centre is not specified, shown, described or otherwise indicated in this planning scheme, the boundary of any .... commercial zone...

1. This is clearly a situation where the drafters of the clause have sought to direct the point from which distance is to be measured but have not indicated how the measurement must occur in the scheme itself.
2. I reject the submissions of Theo Karseras on this point. Rather, a proper reading of cl 53.24-1 supports a conclusion that the measurement of distance is determined by s 43 of the IL Act because the drafters turned their minds to the point from which distance is to be measured but did not include how that distance is to be measured.
3. That indicates that the drafters did not intend any contrary intention in respect of s 43 of the IL Act.
4. I was also referred to the neighbourhood and site description contained in the application requirements at cl 53.24-4 as support for an interpretation that includes 'walkable' distance. Clause 53.24-4 provides as relevant;
   • The location of local shops, public transport services and public open space within walking distance.
5. I do not consider this to be contextual support for the meaning advanced by Theo Karseras regarding the proximity threshold. Clause 53.24-4 and the application requirements are tools to provide the decision maker an overview of various matters including locational attributes of the land in question.
6. The reference to 'local shops' and 'public transport services' is different to reference at cl 53.24-1 to 'passenger railway station' and 'activity centre'. Reference to 'local shops' may include reference to an activity centre but the reverse is not true. That is, not all local shops comprise an activity centre. Further, the reference to 'public transport services' is much broader than reference to a 'passenger railway station'. The former includes buses, the latter does not. And lastly, the reference to 'public open space' which is not otherwise referred to in cl 53.24-1 supports a view and interpretation that the application requirements are not intended to define the mode of travel for the purposes of the measurement of distance in cl 53.24-1 of the scheme.
7. Lastly, I note there are parts of the scheme that refer to walkable distances as noted in the submissions of both council and the applicant. I agree that reference to a walkable distance in the scheme would be an example of a contrary intention such that s 43 of the IL Act would not apply. Clause 56 contains various provisions that refer to 'walkable neighbourhoods' or 'walking distance' or 'easy walking distances to activity centres... and public transport' or 'safe walking distance'. Further, cl 56.05-2 at standard C2 specifically requires an application for subdivision to show 400 metre street walking distance around each existing or proposed bus stop and 800 metres walking distance around each existing or proposed railway station.

1. Whilst my findings above do not require me to have regard to any extrinsic material such as the explanatory reports for the various amendments to cl 53.24, given the submissions before me, I will consider some of this material.
2. A review of the Explanatory Reports for VC243 and VC246 in addition to the Reasons for Decision to exercise the power of intervention do not refer to 'walkable', 'walking' 'trafficable' or 'practical'.
3. Rather, the phrases used in these documents are:
   • 'The Future Homes project responds to Melbourne's continuing population growth .... created to facilitate increased housing in locations close to transport and services... ;[17]
   • 'The amendment provides social benefits by supporting provision of high-quality housing in established areas, close to existing high-quality services and infrastructure...';[18]
   • 'The amendments to expand the Future Homes assessment.... Responds to Melbourne's continuing population growth by facilitating increased housing in suburban locations near to transport and services...';[19]
   • 'The reduction of the minimum car parking rate increases the delivery, sustainability and market-choice of high-quality development in well-serviced locations';[20] and
   • 'The Future Homes provision applies to apartment developments ... located close to a railway station or activity centre.[21]
4. There is nothing in the extrinsic material to support a conclusion that distance should be calculated by reference to walking, trafficable or the like.

1. Having regard to my findings above, the proposed development does have the benefit of assessment under cl 53.24 of the scheme and accordingly, the application by Theo Karseras to be joined as a party to the proceeding under s 60(1)(b) and (c) of the VCAT Act is refused.

1. I do not consider that Theo Karseras' interests are affected by this proceeding because of the existence of the s 173 agreement. Theo Karseras is not a party to the s 173 agreement notwithstanding, I am told this agreement exists because of concerns raised by him.
2. Section 84B of the PE Act sets out the matters VCAT must take into account. It provides, as relevant:

84B Matters for Tribunal to take into account > > (1) In determining an application for review under this Act, the Tribunal must - > > > (a) take account of any matter which the person or body in respect of whose decision the application for review is made - > > > > > (i) properly took account of in making its decision; or > > > > > > (ii) was required to take account of in making its decision; and > > > > (b) have regard to any matter which the person or body in respect of whose decision the application for review is made - > > > > > (i) properly had regard to in making its decision; or > > > > > > (ii) is required to have regard to in making its decision. > > (2) In determining an application for review under this Act, in addition to the matters referred to in subsection (1), the Tribunal -

...

(h) must (where appropriate) have regard to any agreement made pursuant to section 173 affecting the land the subject of the application for review;

...

1. I note that reliance on the decision in Mildura does not advance the application for joinder because that case involved circumstances where the relevant council had refused to even process or consider the application for permit because it was said to contravene a relevant s 173 agreement and the application for permit was said to be prohibited (according to the relevant council). Furthermore, comments in Mildura with respect to the existence of a s 173 agreement providing a legitimate and very important ground for the refusal of a planning application by a council were made having regard to the planning merits of an application and were not predicated on the existence of the s 173 agreement being a threshold issue.
2. I disagree with Theo Karseras that council did not properly consider the existence of the s 173 agreement notwithstanding it has not included the

s 173 agreement as a ground of refusal. 3. The delegate report notes the existence of the s 173 agreement on the first page, in the summary of the grounds of objection and then in two separate sections. The first section is titled 'Non-compliance with S173 Agreement on title' and the second section is titled 'Technical Consideration', 'Restrictions on Title'. On the contrary, council did consider the s 173 agreement and its intersection with the application for permit before it and concluded that: * it did not preclude council from considering the application for permit under cl 53.24; * the development of the land is restricted because of the agreement; * any development could not commence until the s 173 agreement was either ended or amended; and * there was no application before it to end or amend the s 173 agreement. 4. None of these considerations is incorrect or inconsistent with any statutory provision. The s 173 agreement and its relevance is a matter for the ultimate decision maker. 5. The comprehensive process for ending or amending section 173 agreements are set out in Division 2, Part 9 of the PE Act. That process includes notice of any such application in particular circumstances and provides a mechanism for Theo Karseras to raise concerns and participate about the ending or amending of the s 173 agreement. This proceeding should not be used as the vehicle to raise concerns about any amendment or ending of the s 173 agreement when it does not form part of the application presently before VCAT and the PE Act provides a separate and discrete process for any such application. 6. I also do not agree that the outcome of this decision has the capacity to influence any ultimate decision about the ending or amendment of the s 173 agreement. Simply because a permit may be granted in this proceeding does not mean that the s 173 agreement will be ended or amended as a fait accompli. Each decision will be made having regard to the relevant provisions of the PE Act, the relevant scheme and the relevant facts and circumstances. 7. On that basis, I do not consider that Theo Karseras' interests are affected by this proceeding and in the circumstances, I do not consider such joinder is desirable. 8. I also note that Theo Karseras wants to raise issues with respect to flooding and stormwater discharge. Council no longer pursues grounds of refusal with respect to flooding noting there is no overlay affecting the land that controls flooding, inundation or the like. 9. In the absence of a specific overlay that addresses flooding or inundation it is difficult to reconcile how such issues could be raised in this proceeding under the scheme. 10. I understand that Theo Karseras says that issues with respect to flooding and stormwater arise from the s 173 agreement. In relation to matters of stormwater and flooding, cl 3.3 of the s 173 agreement provides that the owner covenants and agrees that:

1. Having regard to cl 3.3 of the s 173 agreement, I do not agree with Theo Karseras that he must be joined to this proceeding because he has a special interest in the proceeding because of the agreement. Rather, issues with respect to stormwater are readily dealt with by council as provided for in the delegate report and in any event raised cls 53.24-7.4 and cl 53.24-7.12 of the scheme.
2. I have already noted above the issue with raising flooding in the absence of a specific control affecting the land. Moreover, the s 173 agreement does not deal with flooding of Theo Karseras' land, it only requires a flood level to be shown on engineering plans. The various obligations may well be connected to the impact on Theo Karseras' land but that is not sufficient in the circumstances to warrant joinder to this proceeding.
3. Under s 84B of the PE Act VCAT must consider the objections that council properly took into account. VCAT comprises members with specialist knowledge of planning who are readily able to consider the relevant matters in the proceeding.
4. Thus, I do not consider that it is desirable to join Theo Karseras to the proceeding.
5. Lastly, I address the relationship between s 60 of the VCAT Act, PE Act and scheme. It must be said that s 60 of the VCAT Act applies to all proceedings before VCAT including in original jurisdiction or matters in which there are no automatic third party participation rights. However, it is also true that third parties could seek joinder to a proceeding under s 60 of the VCAT Act in circumstances where the PE Act and the scheme do not provide for third party participation. In my view that would require a special circumstance or interest. As has been stated in previous VCAT cases including in Ivankovic Enterprises Pty Ltd v Macedon Ranges SC[23] (Ivankovich) as relevant at paragraph 15:

There may be special circumstances which would make it appropriate for third persons to be joined under section 60 of the Victorian Civil and Administrative Tribunal Act 1998, but they have not been demonstrated to exist in this case.

1. Having regard to the submissions before me, I do not consider that Theo Karseras has a special interest in the proceeding such that it is desirable to join him to the proceeding.

1. I agree with the parties that a preliminary hearing to consider questions raised by council is not necessary in this proceeding.

1. The application by Theo Karseras to be joined as a party to this proceeding is refused.

Information for all parties is available at the Tribunal's website www.vcat.vic.gov.au

For information about what happens after you make your application, visit

www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

To find out about the Tribunal's support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

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**

Glaseden Property Pty Ltd ATO SCS Property Investment Trust

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] At [13], [14], [22] and [15 (second one)].

[4] [2005] VSC 493.

[6] See certificate of title and instrument AX192277G.

[9] [2012] VSC 298.

[12] [2010] VCAT 542.

[13] [1998] HCA 28; 194 CLR 355; 72 ALJR 841; 153 ALR 490.

[14] [2021] VSCA 19.

[16] Macquarie, online as at 9 May 2025.

[17] Explanatory Report for VC243 fourth page.

[18] Explanatory Report for VC243 sixth page.

[19] Reasons for Decision to exercise the power of intervention for VC243 third page.

[20] Explanatory Report for VC269 second page.

[21] See Reasons for Decision to exercise the power of intervention for VC269 second page.

[22] See Maddock v Strathbogie SC [2025] VCAT 250; A1 Holdings Vic Pty Ltd v Baw Baw [2025] VCAT 377; Kiyagan v Baw Baw [2025] 206.

[23] [2007] VCAT 1699.