1. The purpose of the practice day hearing was to consider and determine an application by Samuel Dileo & Antonios Kentepozidis ('respondents') that the application by Mirjana Glavinic & Zeljko Glavinic ('applicants') be summarily dismissed.

1. The respondent applied to the Glen Eira City Council ('Council') for planning permission under the Glen Eira Planning Scheme ('planning scheme') to construct two double-storey dwellings on the subject land.
2. The subject land is on the east side of Moylan Street and the applicants occupy a dwelling at 49A Lancaster Street which abuts the subject land to the east, on the other side of the rear boundary of the subject land.
3. The applicants objected to the Council to the grant of planning permission. The Council granted permission. The applicants applied to the Tribunal to review the Council's decision ('review application').
4. The applicants rely on two grounds in their review application, as follows:

We object to this development because we believe that our privacy concerns have not been adequately considered. In addition, we are extremely concerned about the increased risk of flooding to our property that this development may cause.

1. In written submissions filed for the practice day hearing, the applicants opposed the dismissal application and stated they intended to rely on two additional grounds at any hearing of the review application, being a reduction in 'sunlight and daylight to [their] property' and the 'overall scale and bulk of the development'.
2. As a preliminary matter, the applicants told me they wish to amend the review application to add the two grounds. The respondents strongly opposed the amendment and submitted that the applicants had an ulterior purpose of strengthening their opposition to the dismissal application in seeking to add the grounds.
3. I amended the review application to include the additional grounds because:

(a) the applicants' grounds in their objection to the Council included the two additional grounds; and

(b) a party is not restricted at the hearing of the proceeding to any ground previously notified to the Tribunal.[1]

1. In summary, the respondents submit that the review application should be dismissed because it 'discloses no valid or sustainable grounds'.

1. The Tribunal may at any time dismiss all or part of a proceeding that, in the Tribunal's opinion, is 'frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process'.[2]
2. I will not set out the main authorities about dismissal applications. It suffices to state the Tribunal exercises great caution before granting a dismissal application because, if granted, an applicant loses the chance to prove its grounds in a hearing.
3. In general terms, an application must be hopeless, unsustainable in fact or law, the relief cannot be reasonably justified or is bound to fail before it is dismissed.

1. The first ground on which the applicants rely is flood risk.
2. The subject land is in a Special Building Overlay ('SBO') under the planning scheme. Permission is required to construct buildings and works in an SBO. An application for permission under the SBO is exempt from objection and review rights. Clause 44.05-5 of the planning scheme provides:

An application under this overlay is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act.

1. The applicants submit the exemption does not apply because their concerns 'go beyond' the need for permission under the SBO and relate to the 'real and ongoing flood risk experienced in the area'. They submit that the development will alter runoff patterns; that permeability calculations may not reflect actual ground conditions; and existing flooding history has not been properly considered. They rely on flooding plans, photographs and videos and statements from neighbours.
2. Melbourne Water, the relevant drainage authority, did not oppose the grant of permission subject to conditions that the Council included in the planning permission.
3. In their written submissions, the applicants seek an order that:

... the Council put measure [sic] in place for the development to have additional conditions on the planning permit to reduce flooding for example a drainage detention pit or deep drainage on site, or ensure the land is lower to allow flow of water or replace the stormwater pipes to size that is more adequate etc.

1. The applicants cannot request additional conditions if the application is exempt from review rights. Even if they could, conditions that conflict with those sought by the drainage authority and conditions that require drainage authorities to improve infrastructure in the neighbourhood are doomed to fail.
2. The exemption is a complete answer to whether the applicants can rely on flooding grounds in the review application. They cannot. This ground is misconceived.

IS THE APPLICATION OTHERWISE EXEMPT FROM REVIEW RIGHTS?

1. The subject land is in a Neighbourhood Residential Zone ('NRZ') under the planning scheme. Permission is required to construct two dwellings in the NRZ. The objectives and standards for residential development in clause 55 of the planning scheme apply in the NRZ.
2. An application to construct two dwellings is exempt from review rights if 'if all the applicable standards under clauses 55.02, 55.04-1, 55.04-2, 55.04-3, 55.04-4 and 55.05-2 are met'.[3]
3. Standard B2-3 in clause 55.02 relates to side and rear setbacks. The standard is not met, for reasons that I refer to later in these reasons. It therefore follows the application for permission under clause 32.09-7 to construct two dwellings in the NRZ is not exempt from review rights.

1. As I have stated, the applicants' written submissions express concern that that 'permeability calculations may not reflect actual ground conditions'. For completeness, I will consider whether this is a claim that the residential development objective for permeability and stormwater management is not met.[4]
2. The proposed dwellings in the permit application have a site permeability of 37.7%. The applicants do not dispute this calculation. The standard is a minimum of 20% and is comfortably met. The Council is satisfied that the development includes a management system designed to meet best practice quantitative performance of 100% with all mitigation measures shown on the plans. This is also not disputed by the applicants. This part of the standard is also met.
3. Consequently, the permeability and stormwater management objective is met and decision guidelines cannot be considered. Even though the application is not exempt from review rights, the applicants' grounds in relation to permeability are therefore bound to fail. The ground lacks substance.

1. Standard B4-4 in clause 55.04-4 relates to overlooking of existing secluded private open space and existing habitable room windows. The proposed ground floor east-facing living room windows are a minimum of 11.7 metres from the rear boundary. The proposed first floor east-facing bedroom windows are a minimum of 18.3 metres from the same boundary. The applicants do not dispute these dimensions.
2. The standard does not apply to the first floor windows because those windows are bedroom windows. The standard, if it applied, is therefore comfortably met.
3. The standard does not apply to the ground floor windows because those windows face the rear boundary on which a fence of at least 1.8 metres height is proposed and the floor level of the room is less than 0.8 metres above ground level.[5] The applicants did not dispute these figures.
4. The applicants submit that 'from a practical perspective, [the] windows will create overlooking and loss of privacy' and that 'actual sightlines, screening effectiveness, and real-world impact on [the] use of [our] property' must be considered.
5. The standard is met or does not apply in respect of the proposed east-facing windows. Consequently, the privacy objective is met and decision guidelines cannot be considered. That means the matters that the applicants contend should be considered cannot be considered.
6. Even though the application is not exempt from review rights, the applicants' ground is therefore bound to fail. The ground lacks substance.

1. The applicants' grounds are not developed any further than those in their objection to the Council. That ground was the loss of sunlight to their west facing habitable room windows was unreasonable because the windows are only about one metre from the rear boundary and the proposed rear boundary paling fence is 1.8 metres height with a lattice extension.
2. It is unclear whether the applicants' west-facing windows close to the rear boundary are habitable room windows. However, even if they were, the only standard (B4-2 in clause 55.04-1) applies to existing north-facing windows and would not apply in this case.
3. To the extent the applicants are concerned about daylight to the west-facing windows, the nearest part of the proposed dwellings is 8.77 metres from the rear boundary and the relevant standard (B4-1 in clause 55.04-1) is comfortably met. Again, the applicants do not dispute this figure. If the standard is met, decision guidelines about amenity impact on an existing dwelling are not required to be considered.[6]
4. Even though the application is not exempt from review rights, the applicants' ground is therefore bound to fail. The ground lacks substance.

1. The applicants have 'concerns about the overall scale and bulk of the development'.
2. The first concern that was set out in their objection to the Council was that building height was excessive. The proposed dwellings comply with the standard for building height (B2-2 in clause 55.02-2). If the standard is met, decision guidelines (included those about visual impact from adjoining properties) are not required to be considered.[7]
3. The applicants correctly assert that the side and rear setbacks standard (B2-3 in clause 55.02-3) is not met. They do not assert any non-compliance with the rear boundary setback, which is the setback to which they are directly affected. They submit the side setback standard non-compliance 'directly affects built form and spatial relationships' and the Tribunal needs to be satisfied that the non-compliance is 'acceptable' and this cannot be assumed without a hearing.
4. The Council submits that the garages for both the northern and southern dwellings are set back 9 cm less than the standard of 1.09 m and that the upper floor wall of the southern dwelling is set back one centimetre less than the standard of 1.99 metres. The applicants do not dispute these figures.
5. This means the variations are subject to a merits assessment about which the applicants could make submissions. It means the six decision guidelines must be considered. The first three might be relevant in respect of the applicants ground.
6. The first is consideration of any character objective, policy or statement in the planning scheme. Neither the Council nor the applicants pointed to any such matter.
7. The second is consideration of the design response. It suffices to state the design response seeks very small variations. The garage variations are towards the front of the subject land and are about 32 metres from the common rear boundary with the applicants' property. The upper floor variation is a minimum of 11.8 metres from that boundary.
8. The third is consideration of the amenity of habitable room windows and private open space of existing dwellings.
9. The applicants' land is to the rear and not to either side boundary of the subject land. The variations are very small. The variations are located well away from the applicants' property, including their dwelling's windows and private spaces. The applicants will fail if they contend the variation will result in unreasonable visual bulk or affect the amenity of habitable rooms or private open spaces.
10. Even though the application is not exempt from review rights, the applicants' ground is therefore bound to fail. The ground lacks substance.

1. For the above reasons, the application will be dismissed.

[1] Planning and Environment Act 1987 (Vic) s 84A.

[2] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75(1).