Owners Corporation PS 714706C - 35 Spring Street, Melbourne

P937/2019, P938/2019, P940/2019, P941/2019, P945/2019, P948/2019, P949/2019, P950/2019, P951/2019, P952/2019, P953/2019, P954/2019, P959/2019, P960/2019, P961/2019, P963/2019, P964/2019, P966/2019, P967/2019, P968/2019, P969/2019, P971/2019, P974/2019, P977/2019, P978/2019, P979/2019, P980/2019, P981/2019, P983/2019, P985/2019, P987/2019, P988/2019, P993/2019, P994/2019, P997/2019, P1000/2019, P1001/2019, P1004/2019, P1006/2019, 1010/2019, P1011/2019, P1015/2019 & P1016/2019

Payphone cabinets in road reserves adjacent to carriageways within the Hoddle Grid in Melbourne Vic 3000 and in road reserves adjacent to carriageways in Carlton Vic 3053

JCDecaux Australia Pty Ltd v Melbourne CC [2023] VCAT 32

1. The proceeding is listed for hearing on the dates and for the time as detailed below.

If there is any change to these details, the Tribunal will notify you.

7, 8, 9, 10, 14, 15, 17, 18, 21, 22, 23 and 24 August 2023

4, 5, 6, 7, 11, 12, 13, 14, 18, 19, 20 and 21 September 2023

2, 3, 4, 5, 9, 10, 11, 12, 16, 17, 18, 19, 30 and 31 October 2023

1 and 2 November 2023

1. By no later than 14 February 2023 the applicant must provide to the Tribunal and all parties, the further information requested by the responsible authority on 23 November 2022.

1. By no later than 17 May 2023 the responsible authority must advise the Tribunal and all parties of its position in respect of each of the applications.

1. The applications are listed for an administrative mention on 24 May 2023. The purposes of the administrative mention are for:

a) the responsible authority to advise the Tribunal of the outcome of the FMC meeting; > > b) the parties to seek any further directions and or orders arising from the outcome from the FMC meeting; and > > c) the parties to advise and confirm the conduct of the hearing with respect to the grouping of applications and whether the grouping proposed at Attachment A of the applicant's submission dated 8 December 2023 is appropriate.

1. The proceeding is listed for a practice day hearing on the date and for the time as detailed below.

If there is any change to these details, the Tribunal will notify you.

For details of the start time, please refer to the Tribunal's website after 5.00pm on the day before the practice day hearing

The details of the online platform will be provided to the parties before the hearing.

1. The purposes of the practice day hearing are to:
   • consider whether the applications are ready to proceed to hearing;
   • if the applications are ready to procced to hearing, to consider and confirm hearing arrangements including grouping of the applications for hearing and preparation of a Tribunal Book; and
   • if the applications are not ready to proceed to hearing, to consider the future conduct of the applications including remittal to the responsible authority or summary dismissal pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

1. All expert evidence to be relied upon by any party must be given to the Tribunal and all other parties by no later than 28 June 2023.
2. The expert statement must otherwise comply with the Tribunal's Practice Note PNVCAT2 Expert Evidence.
3. If any expert witnesses participate in a conclave, the minutes of that expert conclave meeting must be provided to the Tribunal and all parties by no later than 10 July 2023.

1. No later than 24 July 2023 all the parties must provide an electronic copy of their submissions and associated material (such as supporting documentation, case law and photographs) to the Tribunal and all parties.

1. By no later than 31 July 2023 the responsible authority must provide draft conditions to the Tribunal and all other parties.

1. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

1. These applications have a long history before the Tribunal that is set out in JCDecaux Australia Pty Ltd v Melbourne CC [2022] VCAT 1124. To add to this long history, on 4 November 2022, Amendment VC226 to the Melbourne Planning Scheme (VC226) was gazetted.
2. VC226 made changes to the Victoria Planning Provisions (VPPs) and all planning schemes. With respect to telecommunication, clauses 19.03-4S (Telecommunications) 52.19 (Telecommunications facility), 62.01 (Uses not requiring a permit), 62.02 (Buildings and works not requiring a permit), 72.04 (Incorporated documents) and 73.01 (General terms) of the Melbourne Planning Scheme (scheme) were amended.
3. It is common ground that the effect of VC226 with respect to these applications are that:
   1. a permit is not required to use land for a Telecommunications facility under any provision of the scheme (pursuant to clause 62.01);
   2. a permit is required to construct a building or construct or carry out works for a Telecommunications facility under clause 52.19-1 and all of the relevant zones and overlays that apply to the land upon which the applications are proposed;
   3. many applications are exempt under all relevant provisions of the scheme 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 Planning and Environment Act 1987 (PE Act); and
   4. the exception to c above, is those applications that are proposed on land affected by a Heritage Overlay (HO), where third party rights remain in relation to heritage matters.
4. Notice of the applications was given at the direction of the Tribunal pursuant to section 83B of the PE Act because at the time the direction for notice was given, the applications were subject to the requirements of a Design and Development Overlay or a HO and thus, not exempt from notice requirements. Although, it is noted that the applications were exempt from notice and review rights under clause 52.19-3, the Capital City Zone, Schedules 1 and 2, and where relevant, also under the Commercial 1 Zone.[1]
5. The parties submit that the respondents remain parties to the relevant applications before the Tribunal, regardless of the gazettal of VC226.
6. Having, reviewed the material relied upon by the parties, I confirm that the respondents are parties to the applications, notwithstanding the gazettal of VC226.

1. The parties relied upon written submissions regarding the status of Head, Transport for Victoria (Head, TfV) and the effect of VC226 to that status. Further, following the practice day hearing, the parties filed submissions about the joinder of Head, TfV and the other respondents, in the event, I did not find that they were parties to the applications following the gazettal of VC226.
2. Therefore, I need to consider the following:
   1. Does the status of the respondents change consequent upon the gazettal of VC226?
   2. If the status of the respondents is affected by the gazettal of VC226, should they be joined to the applications?

1. JCDecaux Australia Pty Ltd (JCDecaux) relies upon the decision in Perorad Care Pty Ltd v Frankston CC (Perorad)[2] and specifically the following paragraphs:
   1. However, even if the responsible authority had advertised the application and had received objections, the outcome would be the same. This is because section 83A(2) must operate at the time when notice of the application for review is required to be given. If notice is given or is required to be given at a time when the permit application is not exempt from third party rights, any subsequent change to the application or the planning scheme that makes the application for permit exempt from third party rights does not undo what has already been done or been required to be done.
   2. The same applies in relation to the giving of notice under section 83B of the Act. Although section 83B(5) of the Act provides that the section does not permit the Tribunal to require notice to be given to a person if there are not third party rights (that is, under the planning scheme the person is not entitled to apply to the tribunal under section 82 for a review of a decision to grant a permit), this restriction can only apply at the time the notice is required to be given.
   3. It follows that the persons who have given notice of a wish to be heard in relation to the proceeding are parties to the present proceeding...
2. JCDecaux says that notwithstanding the changes to the scheme, the rights of the respondents who have filed statement of grounds have not been affected by VC226.

1. Melbourne City Council (council) accepts that VC226 sought to remove notice and review rights in respect of all permit applications (except those subject to a HO) but given the respondents have filed statement of grounds pursuant to notice directed by the Tribunal, the better view is that the respondents remain as parties.
2. Council also relies upon Perorad and in addition to the paragraphs cited above, council says that paragraphs 15-17 are relevant. These provide:
   1. In my opinion, the answer is to be found in the provisions of the Planning and Environment Act. Section 83(2) of the Act provides:

(2) In addition to any party to a proceeding for review under this Act, an objector is a party to a proceeding for review if the objector -

(a) is given notice of the application for review under this Act; and

(b) in accordance with the Victorian Civil and Administrative Tribunal Act 1998, lodges with the Tribunal a statement of the grounds on which the objector intends to rely at the hearing of the proceeding.

Prior to the substitution of the Revision B plans various third parties had been given notice of the application for review under the Act (in particular under section 83B of the Act) and some of these persons had lodged with the tribunal a statement of the grounds on which they intended to rely at the hearing of the proceeding and had done so in accordance with the requirements of the Victorian Civil and Administrative Tribunal Act. So there can be no question that at that stage these persons were parties to the proceeding.

(1) A person who objected to the grant of a permit is entitled to notice of an application by the applicant for the permit for review of -

(b) a failure to grant the permit;

(2) Sub-section (1) does not apply to a person if under a planning scheme the person is not entitled to apply to the Tribunal under section 82 for a review of a decision to grant the permit.

Based upon the assumption I have made, section 83A(2) is operative. This is because I have assumed that under the planning scheme the present application is not an application for a building or works within 30 metres of land (not a road) which is a residential zone. The consequence of section 83A(2) being applicable is that section 83A(1) does not apply.

1. Section 83A(1) is concerned with an entitlement to notice of an application for review by the applicant for the review of certain decisions or non-decisions of a responsible authority. But it is not a provision that exhaustively sets out the entitlement of a third party to notice of an application for review. It is focused upon notice to persons who objected to the grant of a permit when the matter was before the responsible authority. It does not cover the situation, such as this case, where the entitlement to notice arose because my delegate exercised a discretion to direct notice of the application for review under section 83B of the Act.
2. Council draws my attention to the decision in Von Hartel & Ors v Macedon Ranges Shire Council & Ors[3] (Von Hartel) where the Supreme Court of Victoria (SCV) was considering an appeal from the Tribunal and in which the following question was to be considered:

In circumstances where the applicants had already lawfully exercised their right to commence an application for review, the Tribunal erred in law by finding that the application for review was misconceived as a consequence of a change to the Planning Scheme which occurred after the application for review was commenced;[4]

1. Ultimately the SCV did not have to determine the question set out above however, it made the following comments:[5]

Although it is unnecessary for the Court to determine whether Ground 1 is made out, were it necessary to decide I would hold that cl 52.06-4 applied in its amended form and that, in the absence of third party rights under other clauses, it removed rights flowing from s 82(1) of the PE Act, including the right to have the application for review heard and determined. Ground 1 would not succeed.

1. Council also says that the comments in the above paragraph were obiter dicta and ultimately directed to rights that arose from persons who objected to a permit application under the PE Act and who had brought an application for review under section 82 of the PE Act. The circumstances in Von Hartel can be contrasted from the circumstances in these applications where notice of the application for review was given under section 83B of the PE Act.
2. Therefore, council says that all persons who have filed statement of grounds remain parties to the proceeding in the relevant applications.

Owners Corporation PS 714706C - 35 Spring Street Melbourne and Paul Helling

1. Owners Corporation PS 714706C - 35 Spring Street Melbourne (OC) and Paul Helling both support and endorse the position of council that they remain parties to the proceeding notwithstanding, the gazettal of VC226.

1. Head, TfV submits that it is presently a party to the proceeding and should remain a party because:
   1. it is a determining referral authority pursuant to clause 66.03 of the scheme in some of the applications either because land is subject to the City Link Overlay or within 60 metres of a freeway or arterial road declared under the Road Management Act 2004; and
   2. in the applications in which it is not a determining referral authority, it has lodged a statement of grounds in all applications and did so pursuant to the Tribunal order directing notice of the application for review.
2. Further, Head, TfV says that the Tribunal is not compelled to remove it as a party because of the gazettal of VC226 and submits:
   1. the VC226 is expressed in broad terms and is intended to generally facilitate telecommunications facilities;
   2. VC226 did not contemplate, nor was it intended to exclude statutory authorities even where a specific application raises substantive issues for determination;
   3. allowing Head, TfV to remain a party to the proceedings does not undermine the broad intent of VC226; and
   4. the Explanatory Report provides that the amendment will not have a significant impact on the transport system the specific circumstances of the proceedings could not have been reasonably contemplated.
3. Head, TfV also relies upon Perorad to support its submission that a person given notice of an application for review under the PE Act and who filed a statement of grounds in accordance with the VCAT Act is a party to the proceeding.

1. It is common ground between the parties that:
   1. notice of the applications for review was given because of a Tribunal order requiring such notice, in circumstances where council had refused the applications for planning permit without giving or directing notice be given; and
   2. at the time notice was directed by the Tribunal the applications were not exempt from the notice provisions, in the same way that the applications are now exempt.

1. Notice of an application for planning permit is generally given or directed to be given by a responsible authority under section 52 of the PE Act. If an objection is received by the responsible authority it must consider that objection or submission because of section 60(1)(c) of the PE Act except if no notice is required to be given of the application for planning permit under sections 52(1) or 57B of the PE Act.
2. A person who objected to the grant of a permit is entitled to notice of an application for review of a decision to refuse to grant the permit because of section 83A(1) of the PE Act except in circumstances where a planning scheme says that a person is not entitled to apply to the Tribunal under section 82 of the PE Act.[6]
3. Section 64 of the PE Act sets out the procedure to be followed by a responsible authority for the giving of notice of its decision on the application for planning permit. Sections 64(4) and (5) state:

(4) A planning scheme may set out classes of applications the decisions on which are exempted from the requirements of subsections (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. The Tribunal's power to require notice is provided for in section 83B of the PE Act which states:

83B Notice if permit application was made without notice

• (1) If the President of the Tribunal is satisfied that notice of an application for a permit was not given or that notice is not adequate, he or she may direct -

(a) an applicant for review of a decision to grant or to refuse to grant, or a failure to grant, the permit - > > > (i) to serve a copy of the application for review on any specified person; or > > > > (ii) ... > > (2) The President may give a direction under subsection (1) whether or not the Tribunal has begun to hear the review. > > (3) If an applicant for review of a decision to refuse to grant, or a failure to grant, a permit fails to comply with a direction under subclause (1)(a) the application for review lapses. > > (4) A notice given or published under this section is to be in the form and contain the matters -

(a) specified by the rules of the Tribunal; or

(b) as directed by the President.

(5) This section does not permit the Tribunal to require notice to be given to a person if under a planning scheme the person is not entitled to apply to the Tribunal under section 82 for a review of a decision to grant the permit.

1. A person having received notice of the application for review by direction of the President (or his/her delegate) may become a party to the proceeding if that person lodges a statement of grounds in accordance with the Tribunal order.[7] The applications have been subsequently amended and further statement of grounds were received.

1. Head, TfV, has filed a statement of grounds in all applications including those in which it is not a referral authority. The OC has filed a statement of grounds in P941/2019 and Paul Helling has filed a statement of grounds in P961/2019. I also note that in these applications the respondents have filed a statement of grounds in accordance with clause 56, Schedule 1 of the VCAT Act.
2. It follows that Head, TfV, OC and Paul Helling are parties to the proceeding in respective applications.
3. Having regard to the statutory regime, I agree with the analysis in Perorad with respect to the following:[8]

... If notice is given or is required to be given at a time when the permit application is not exempt from third party rights, any subsequent change to the application or the planning scheme that makes the application for permit exempt from third party rights does not undo what has already been done or been required to be done.

1. That is, provided the giving of notice was required by the planning scheme at the time notice was given, the subsequent amendment of the planning scheme, does not automatically remove a party to a proceeding. Something more is required to undo what has already been done. Further, I consider this to be the case regardless of which provision of the PE Act is used to direct notice provided that at the time notice is given, it is required to be given by the planning scheme.
2. This is consistent with section 28(2) of the Interpretation of Legislation Act 1984 (IL Act) which states:

(2) Where a subordinate instrument or a provision of a subordinate instrument -

(a) is repealed or amended; or

(b) expires, lapses or otherwise ceases to have effect -

the repeal, amendment, expiry, lapsing or ceasing to have effect of that subordinate instrument or provision shall not, unless the contrary intention expressly appears -

(c) ...

(d) affect the previous operation of that subordinate instrument or provision or anything duly done or suffered under that subordinate instrument or provision;

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision;

(f) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that subordinate instrument or provision; or

(g) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as is mentioned in paragraphs (e) and (f) -

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that subordinate instrument or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.

1. It does not appear that clause 52.19 of the scheme as amended by VC226, provided any contrary intention to displace section 28(2) of the IL Act.
2. Whilst at first blush this analysis may appear contrary to the comments of the SCV in Von Hartel, this is not the case. Firstly, the Tribunal must perform its task to review a decision on the basis of the planning scheme that exists at the time the applications are heard and determined.[9] Given those applications are brought under section 77 of the PE Act because of council's refusal to issue a planning permit, there is no argument about the jurisdiction of the Tribunal to consider the applications. Secondly, the applications are not brought under section 82 of the PE Act, in which an applicant may have a right to lodge such an application at the time it does so, but in determining such an application, the Tribunal must consider how it will determine that application in light of the removal of third party participation. In Von Hartel, the SCV was considering the impacts on an application for review under section 82 of the PE Act in circumstances where a subsequent amendment to a planning scheme removed all third party participation rights. Thus, the present proceeding can be readily distinguished from the facts in Von Hartel.
3. In determining the purpose of the practice day hearing, I confirm that Head, TfV, OC and Paul Helling continue to be parties to their respective applications, notwithstanding the gazettal of VC226.

1. Having arrived at this conclusion it is unnecessary to consider whether the respondents ought to be joined to the respective applications.

1. Having regard to the above, the applications are now listed for hearing and will be subject to procedural steps suggested by the parties at the practice day hearing. In addition, I have included a further practice day hearing to review the progress of the applications including whether they are ready to proceed to a hearing.

[1] See discussion in Applicant's submission dated 8 December 2022 at [16].

[2] [2004] VCAT 2272.

[3] [2014] VSC 215.

[7] Tribunal order dated 4 May 2022 required a statement of grounds to be provided by 25 May 2022.

[8] [2004] VCAT 2272 at [18].

[9] [2014] VSC 215 at [53].