1. Following the practice day hearing and on 21 July 2023, council filed an amended form of declaration.
2. I have made orders granting leave to amend the form of declaration sought to:

Planning Permit PP21-0317 dated 14 September 2022 was not issued in accordance with s 64 of the Planning and Environment Act 1987 (Vic), is ultra vires and void ab initio, and has no force or effect.

1. However, at the hearing, council indicated that it was not opposed to the Tribunal making a declaration in a different form, for instance, by deleting the words 'in accordance with s 64 of the Planning and Environment Act 1987 (Vic)' and / or deleting the words 'ultra vires and'.
2. A further amended form of declaration could read:

Planning Permit PP21-0317 dated 14 September 2022 is void ab initio and has no force or effect.

1. A related proceeding remains on foot in P158/2023. This is an application for review filed by Jennifer May Kardol, an objector to the application for Planning Permit PP21-0317 ('planning permit'), pursuant to s 82 of the PE Act ('application for review proceeding').
2. I am informed by the council that the parties to the application for review proceeding have signed consent orders to resolve that proceeding following a compulsory conference. However, before that proceeding can be finalised, it was agreed that the council would seek a declaration pursuant to s149B(1)(b) of the PE Act from the Tribunal that the planning permit is void.
3. As I made it clear at the hearing, this proceeding is about the application made by the council for the Tribunal to declare the planning permit is void. I have not considered or investigated the details relating to the application for review proceeding which involves private discussions at a compulsory conference. I make no findings about the application for review proceeding because it is not before me.

1. Below is an aerial photo of the subject land:[3]

1. The subject land is included in the General Residential Zone of the Indigo Planning Scheme ('planning scheme'):[4]

1. Under clause 32.08-6 of the planning scheme, a planning permit is required to construct a second dwelling on the subject land.
2. Below is a summary taken from the council's written and oral submissions at the hearing regarding the background facts:[5]

Andrew Kennedy and Steven Trevor Coghill ('permit applicants') lodge an application for planning permit with council for the development of the subject land for a second dwelling, generally in accordance with the endorsed plans ('planning permit application').[6]

The planning permit application is advertised by sending notices to owners and occupiers of adjoining land and interested authorities, and by placing a sign on the subject land.[7]

Council receives one objection dated 3 May 2022 to the planning permit application from Cerry & Jenny Kardol of 8 Soles Street Rutherglen Vic 3685 ('objectors').[8]

The internal council planning application referral report by the Infrastructure Services Division is issued.

North East Water responds to notice pursuant to s 52 of the PE Act stating that it does not object to the council granting a planning permit.

North East Catchment Management Authority responds to notice pursuant to s 52 of the PE Act stating that, amongst other things, it does not object to the granting of a permit.

The delegated planning officer who considered the planning permit application issues a report recommending that a notice of decision to issue [sic] a planning permit be issued for the development of the land for a second dwelling, generally in accordance with the endorsed plans.[9]

Council purportedly issues a planning permit for the planning permit application to the permit applicants.[10]

The objectors request an update from the council regarding the status of the planning permit application.[11]

Council identified that the planning permit has been issued in error.[12]

Council wrote the permit applicants and the objectors and issued a Notice of Decision to Grant a Planning Permit ('NOD') dated 20 January 2023.

One of the objectors (Jenny May Kardol) ('objector') lodges an application for review of the council's decision to issue a NOD (VCAT Proceeding P158/2023) ('application for review proceeding').[13]

The application for review proceeding is listed for a compulsory conference on 25 May 2023 and a hearing on 21 July 2023.

Council filed an application for a declaration pursuant to s149B(1)(b) of the PE Act ('declaration application').

Tribunal issues the initiating order listing the application for a practice day hearing on 14 July 2023 and hearing on 25 August 2023.

Order 3 states closing date for statement of grounds is 12 July 2023 but orders 6 and 7 provide the closing date for statement of grounds is 10 July 2023.

Council files a statement of service attaching the sample letter sent to the permit applicants dated 19 June 2023 and the objector dated 19 June 2023 as required by the Tribunal's initiating order dated 14 July 2023.

The cover letter provides that statement of grounds are due by 12 July 2023.

Objector writes to the Tribunal advising she is confused about the 14 July 2023 practice day hearing because the matter she was involved in was resolved at compulsory conference on 25 May 2023. However, she believes the permit has to be declared void by way of the Tribunal and she thinks this is what the 14 July 2023 hearing in P681/2023 (this proceeding) is about.

Neither the permit applicants nor the objector attend.

The Tribunal issues its post practice day hearing order dated 14 July 2023 requiring:

• the council to provide to the Tribunal, the permit applicants and the objector an amended form of declaration by 21 July 2023; and
• the parties to respond to an administrative mention on 28 July 2023 about whether the matter is resolved or whether a hearing is required.

Council files a letter in the Tribunal seeking leave to amend the form of declaration sought.

The letter states the permit applicants and the objector have been sent a copy of the letter.

Objector files a letter in the Tribunal attaching a signed version of the proposed minute of consent to the Tribunal making a declaration that the planning permit is void.

The letter explains that this is a matter which did not involve the objector as it was explained to her that this was a council matter and a new permit would be issued later under agreement that was met at the compulsory conference in the application for review proceeding.

Council files a letter in the Tribunal advising that:

• the council wrote to the permit applicants and the objector and to date only the objector has signed the proposed minute of consent; and
• given that the permit applicants have not signed the proposed minute of consent, the matter is not resolved by consent and the hearing is required.

1. Neither the permit applicants nor the objector have filed a statement of grounds in this proceeding despite being given notice of the application. Thus, they are not parties to this proceeding.
2. Only the council has pre-filed a submission in accordance with Tribunal Order 4 dated 14 July 2023.
3. On 24 August 2023, the Tribunal wrote to the council, the permit applicants and the objector to enquire whether they intended to appear at the hearing and that pre-filing of submissions was required.
4. Before the hearing on 25 August 2023, the objector replied to the Tribunal indicating that she was not intending to appear at the hearing because she considered the matter had been resolved in the application for review proceeding and that this proceeding was for the council to initiate and manage.
5. The permit applicants and the objector did not appear at the hearing.
6. At the commencement of the hearing, I asked the council to confirm whether it was appropriate to proceed with the hearing.
7. The council submitted that it was appropriate because notice of the application was given to both the permit applicants and the objector and neither the permit applicants nor the objector have filed a statement of grounds.
8. I am satisfied that notice of the application has been provided to the permit applicants and the objector on multiple occasions.
9. Further, the objector's communication with the Tribunal in this proceeding indicates that she is aware that the application seeks a declaration that the planning permit is void and it is for the council to pursue.
10. Whilst the Tribunal is able to proceed with a hearing if a party does not appear[14], in this case, all parties to the proceeding appeared in person before me. I am satisfied it is appropriate for the hearing to proceed in the absence of the permit applicants and the objector. The permit applicants and the objector are not parties to the proceeding, they were given notice and an opportunity to participate and elected not to do so.

1. The council submits that on 14 September 2022, it purported to issue the planning permit in lieu of the NOD.
2. Council concedes this was contrary to the mandatory provisions of the PE Act, including relevantly, s 64 of the PE Act.
3. Section 64 of the PE requires that a responsible authority give a permit applicant and any objector/s notice of its decision to grant a planning permit, and must not issue a planning permit to a permit applicant until the end of the period within which the objector/s are entitled to apply to the Tribunal for a review of council's decision.
4. The council submits there is no question that the objection filed by the objector was a valid objection under s 57 of the PE Act.
5. Thus, the council submits that the decision to issue the planning permit on 14 September 2022 was ultra vires. A NOD should have been issued.
6. The council relies on previous authorities to support its submissions that the council has acted beyond power in issuing the planning permit.[15]
7. The council urges the Tribunal to exercise its discretion to make the declaration pursuant to s 149B(1)(b) of the PE Act that the planning permit is void because:

a) the council advises that it has not endorsed condition 1 plans and hence the planning permit has not been acted upon; > > b) the matter is not purely hypothetical and there is a dispute in existence which is evidenced by the application for review proceeding whereby the objector has sought to exercise her statutory rights; > > c) it has taken a proactive approach; > > d) there are no other means by which the council can correct its own error thus, the making of the declaration is of practical use; and > > e) it is fair and appropriate to make the declaration so that the Victorian community has confidence in the Victorian planning system.

1. The PE Act contains a regime for the giving of notice to persons who may suffer material detriment from a planning permit application to give those persons a right to object and to furnish to them a right of appeal to VCAT.

1. The letter sent to the council from the objectors to the planning permit application is extracted in part below:

1. Whilst not included in these reasons, a number of photographs (annotated) accompanied the letter.

57 Objections to applications for permits

(1) Any person who may be affected by the grant of the permit may object to the grant of a permit.

...

(2) An objection must be made to the responsible authority in writing stating the reasons for the objection and stating how the objector would be affected by the grant of the permit.

1. Relying on the principles in AMES Australia v Whitehorse CC[16], the council submits that there is no dispute that the objector filed a valid objection in accordance with s 57 of the PE Act.

1. I am also satisfied that the 3 May 2022 letter was an 'objection' that was validly made within the meaning of section 57 for the following reasons.
2. First, Cerry and Jenny Kardol are 'persons' in terms of being legal entities.
3. Second, Cerry and Jenny Kardol are persons who may be affected by the grant of the planning permit. They are neighbouring landowners to the subject land and I find that the permit application has the potential to affect them.
4. Third, the 3 May 2022 letter was clearly made in writing to the responsible authority. The version filed in the Tribunal bears the council's stamp as received on 9 May 2022. The letter was also made and received within the advertising period.
5. Fourth, the letter clearly sets out how Cerry and Jenny Kardol would be affected by the grant of the planning permit, particularly with respect to their drainage and stormwater concerns.
6. Finally, whilst an objection can be inferred from the whole of what is written, and it is possible to infer a positive statement of opposition to the grant of the permit to be made in the written objection[17], this is not necessary on the facts before me. This is because here there are express and unequivocal statements in the letter to that effect that it is appropriately characterised as an 'objection' as a question of fact.
7. For example:
   1. Cover page: 'OBJECTION, Application for Planning & Objection, Planning Application: PP21-0317 - Dwelling Unit 22 Eyre Street Rutherglen Vic 3785 from CJ & JM Kardol 8 Soles Street Rutherglen Vic 3685';
   2. Paragraph 1: 'We are objecting to the permit...'
   3. Paragraph 14: - 'Application for dwelling we totally object on grounds of poor drainage in the area which is proven fact of the event on 30th January 2022 that major flooding occurred in many premises in the vicinity of this proposed building...'.
8. Thus, I find that Jenny Kardol is an objector to the planning permit application because she lodged a valid objection pursuant to section 57 of the PE Act.

1. Section 64 of the PE Act deals with the grant of planning permits where objections have been lodged.
2. The provision provides that:

64 Grant of permit if there are objectors

(1) The responsible authority must give the applicant and each person who objected under section 57 a notice in the prescribed form of its decision to grant a permit.

(2) The notice must set out any conditions to which the permit will be subject.

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

(a) Until the end of the period within which a person who objected under section 57 may apply to the Tribunal for review of the decision to grant the permit; or

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

(4) A planning scheme may set out classes of applications the decisions on which are exempted from the requirements of (1), (2) and (3).

(5) If a planning scheme exempts a decision on an application from the requirements of subsections (1), (2) and (3), the responsible authority must give a copy of the decision to each person who objected under section 57.

1. Appeals by objectors against the grant of permits are dealt with in section 82 of the PE Act which is headed 'Applications for review where objectors'. The relevant sub-section provides:

(1) An objector may apply to the Tribunal for review of a decision of the responsible authority to grant a permit.

(2) A planning scheme may set out classes of applications for permits the decision on which are exempted from subsection (1).

(3) If a planning scheme exempts a decision of an application for a permit from subsection (1), an application for review cannot be made under that subsection in respect of that decision.

1. It is relevant that the General Residential Zone does not provide that the planning permit application is a class of application which is exempted from the requirements of notice or decision under s 64 of the PE Act or review under s 82 of the PE Act.
2. The prescribed form for the Notice of Decision to Grant a Permit is set out in Form 5 of the Planning and Environment Regulations 2015 (Vic) (PE Regs).
3. It states that:

[If an objection was received to the application include the following paragraph - ]

For an objector -

• An objector may apply for review of the decision of the responsible authority to grant a permit. The application for review must be lodged within 28 days after the date of this notice.
• If there is no application for review, a permit will be issued after 28 days after the date of this notice.

1. The PE Regs states (regulation 35):

An application under section 82(1) of the Act for review of a decision by the responsible authority must be made within 28 days after the date of notice of that decision.

Consequences of non-compliance with s 64 PE Act

1. The council admits that it made a mistake in purporting to issue the planning permit on 14 September 2022.
2. The council submits that it should have issued a NOD because a valid objection was made against the grant of the planning permit by Cerry and Jenny Kardol.
3. In Cook, the Tribunal held that the provisions of section 64 and the regulations prescribing the contents of the NOD are to be regarded as mandatory.[18]
4. I agree that the language of the relevant provisions, which includes references to the word 'must' in s 64 of the PE Act, are mandatory and the evident objective of the statute would be subverted unless they were accorded a mandatory construction.
5. In this case, the council was prohibited from issuing the planning permit until 28 days after the giving of the NOD in accordance with s 64 of the PE Act.
6. Instead, the council did not issue the NOD before it purported to issue the planning permit on 14 September 2022.
7. Thus, I find that the council acted beyond power. The planning permit should not have been issued should be regarded as void from the beginning and has no force or effect.

1. The final issue is whether it is appropriate to make a declaration that the planning permit is void.
2. The council's application relies on the declaratory power under section 149B(1)(b) of the PE Act:

149B General application for declaration

(1) **A person may apply to the Tribunal for a declaration concerning - **

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act.

(2) On an application under subsection (1), the Tribunal may make any declaration it thinks appropriate in the circumstances. (3) The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal.

[Tribunal emphasis]

1. Section 149B enables a person to apply to the Tribunal for a declaration concerning anything done by a responsible authority under the PE Act.
2. The principles established about the power conferred under s 149B of the PE were succinctly summarised in unChain St Kilda Inc v Port Phillip CC & Ors (includes Summary) (Red Dot)[19] (footnotes excluded):

• An application for a declaration is in the nature of a judicial review of administrative action. The same principles that operate in relation to judicial review by a court should apply when the Tribunal is exercising a similar power;
• When reviewing administrative action, the Tribunal does not engage in a review of the underlying merits of the decision. It is not standing in the shoes of the decision maker and determining what the 'preferable decision' might be or ought to have been. The Tribunal is considering the legal adequacy and validity of the decision made, by reference to established administrative law criteria.

1. It is also common ground that the jurisdiction to make a declaration should be interpreted broadly, and the power to make a declaration under s149B is discretionary.
2. In Portland Historic Building Restoration Committee Inc v Glenelg SC (Red Dot)[20] the Tribunal restated the principles which should guide the exercise of the power to make a declaration as set out in Hill v Campaspe SC[21] as follows:

[6] The Tribunal has commonly held that the following principles should guide the exercise of the power to make a declaration:

• There must be a dispute in existence.
• The jurisdiction is not available if the issue is purely theoretical.
• The issue must not only be an existence but must be attached to facts.
• The dispute must be real, not hypothetical, and must be of practice importance.
• The making of a declaration must be of practice use.

1. It has been said that the power to make a declaration under this provision about a decision or an action of the responsible authority in circumstances where there may be no other avenue to test the merits of a proposal, either because third party notice or review rights are excluded or for some other reason, is an important safeguard of the integrity of decision-making by responsible authorities. It operates as a safeguard against the type of arbitrary or capricious decision-making or decision-making that abandons common sense, which was referred to by the High Court in Li's case_._[22]
2. Contrary to the council's submissions, I consider that there is an alternative avenue which could be used under ss 87 and 89 of the PE Act to cancel the planning permit. However, the existence of alternative remedies becomes a question of weight to be considered when determining whether to exercise the discretion to make a declaration.[23]
3. I am satisfied in the circumstances that the facts in this case favours the making of a declaration of invalidity of the planning permit because:

a) the council concedes it made a mistake in issuing the planning permit instead of an NOD; > > b) there is no opposition to the application for declaration by the permit applicants (nor indeed from the objectors); > > c) the council has not endorsed any condition 1 plans under the planning permit and so the planning permit has not been acted upon; > > d) there is clearly a dispute in existence as evidenced by the objector initiating the application for review proceeding; > > e) the issue is not purely theoretical; to the contrary the issue is attached to facts that are of practical importance to the council, and the parties to the application for review proceeding which involve the permit applicants and the objector; > > f) the declaration will be of practical use because it is likely to facilitate the possible resolution of the dispute between the council, the permit applicants and the objector by giving effect to terms of settlement in the application for review proceeding;[24] > > g) aside from the question of whether there is an alternative remedy available, there are no apparent discretionary considerations which stand against the making of a declaration that the planning permit is void. In fact, the discretionary factors point in favour of making the declaration; and > > h) the making of the declaration reinforces and gives confidence to the public in the statutory regime for planning in Victoria.

1. The PE Act mandates what is to occur when a valid objection is lodged against an application for a planning permit.
2. I find that:

a) the objector lodged a valid objection against the grant of the planning permit; > > b) the council should have issued a NOD first rather than the planning permit in accordance with the statutory regime under the PE Act; > > c) the result in the council issuing a planning permit is that the council has acted ultra vires; > > d) the planning permit is therefore void from the outset and has no force or effect; and > > e) I am satisfied in the circumstances there is utility and it is appropriate to exercise my discretion to make a declaration.

3. However, I am not prepared to make a declaration in the precise form requested by the council because that wording suggests that the planning permit itself is ultra vires when in fact it was the council's act of issuing the planning permit which is beyond power.
4. I prefer the alternate further wording discussed at the hearing which the council indicated it would not oppose.
5. For the reasons given above, the Tribunal declares the planning permit was not issued in accordance with s 64 of the Planning and Environment Act 1987 (Vic), is void ab inito and has no force or effect.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, 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] Application for Declaration dated 29 May 2023.

[3] Planning application report prepared by P2 Urban Planning and Design, dated March 2022, page 2.

[4] Zoning map dated 23 May 2023 submitted with the application.

[5] I required the council to file additional documents during the course of the hearing to prove the facts relied upon by the council.