1. The application is struck out as misconceived under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) for the following reasons.
2. The applicants are seeking a declaration pursuant to section 149A of the Planning and Environment Act 1987 (PE Act) in relation to an area known as Meridian Estate in which they are each owners of property within the estate.
3. The estate was created by way of a plan of subdivision pursuant to planning permit PLN07/0439.03 (subdivision permit) issued by Greater Dandenong City Council (the council). The land identified in the estate, the subject of the application, was developed in 2009-2010. At the time the subdivision was undertaken the land was owned by Melbourne Water and the subdivision development was undertaken by Places Victoria (Development Victoria).
4. The application seeks a declaration as to whether the development of the subdivision has complied with clauses and provisions of the Greater Dandenong Planning Scheme that relate specifically to subdivision, namely clauses 56.06-4, 56.06-5, 56.06-7, 56.07-4, 59.02-2 and two conditions contained in the subdivision permit (conditions 23 and 30.1).
5. As submitted by the council:

Clause 56 - Residential Subdivision and provides (objectives and standards) which apply to an application to subdivide land. These are matters which an application is assessed against at the time it is being considered by the responsible authority [the council]. Notably the standards should normally be met, but if the responsible authority is satisfied that an application for an alternative design solution meets the objective, the alternative design solution may be considered.

Clause 59.02 - subdivision of buildings and car parking spaces sets out information requirements and decision guidelines for subdivisions and applies only to subdivisions that are VicSmart eligible. [the subdivision permit was not assessed under VicSmart as this is a more recent consideration within the planning scheme]

Permit condition 23 provides that the plan submitted for certification must be referred to Telstra or other licensed telecommunication carrier, whichever is appropriate in accordance with section 8 of the Subdivision Act.

Permit condition 30.1 provides that before the construction starts, three A1 sized sets of subdivision design drawings be submitted to the responsible authority for approval purposes. Those subdivision design drawings must include civil works according to the City of Greater Dandenong's Subdivision Design Manual.

1. The applicants seek the following remedy/orders:

that if the development has breached the Planning Schemes and Permit than [sic] enforce Council to construct the Public Works in accordance to the Planning Schemes/Permit which include

as per page 75 of the Greater Dandenong's Subdivision Design Manual (Planning Permit s30.1) and Dandenong Road Management page 14 as per clause 56.06-7 & 56.07-4

• Widening the roads to minimum 6.5m with number of dwellings less than 30 which includes removing the narrow sections as well.
• Widening the roads to minimum 7m with number of 30 dwellings or more.
• Appropriate signage for shared zones.
• Construct Footpaths 1.5m wide on both sides.
• Build roll over kerbs on both sides of the roads.
• WSUD assessed, developed and monitored by registered and independent professional.
• Remove the Typical Marked Parking Bay.
• Telstra to be nominated as the main telecommunications carrier.

1. The applicants say that the issues they have highlighted stem from the council granting the permit for the area to be subdivided. The applicants have identified several clauses within the Greater Dandenong Planning Scheme that they say are relevant to the granting of a subdivision permit. They have also referred to two conditions contained within the subdivision permit that was granted by the council.
2. Section 149A of the PE Act provides where relevant that:

(1) A specified person may apply to the Tribunal for the determination of a matter if -

(a) the matter relates to the interpretation of the planning scheme or a permit in relation to land or a particular use or development of land;

(a) the owner, user or developer of the land directly affected by the matter;

1. It is understood the applicants are all owners of land within the Meridian Estate.
2. Section 149A (2) of the PE Act provides:

The Tribunal may determine the matter and may do one or both of the following -

(a) make any declaration that it considers appropriate;

(b) direct a specified body to take, or refrain from taking, action specified by the Tribunal.

1. A 'specified body' is defined as including the responsible authority; or a municipal council.
2. The applicants have submitted that the Tribunal has power to accede to their request for the remedy or order sought in their application. They rely upon section 149A(2)(b) of the PE Act.
3. Under subsection (2), the Tribunal may direct a specified body which could be the council to take or refrain from taking action specified by the Tribunal. Such direction is to a large extent dependent on the declaration made. A declaration under section 149A can only declare the nature of rights and obligations of parties in respect of the dispute in question and does not invoke a general merits review[1].
4. The issues raised under the guise of the section 149A application are the same issues that were raised under previous applications made by the applicants to the Tribunal and on appeal to the Supreme Court. These issues which refer to the provisions of clause 56 of the Greater Dandenong Planning Scheme and more specifically, conditions 23 and 30.1 contained in the subdivision permit have already been determined in the decision of the Supreme Court[2] and on appeal, the decision of the Court of Appeal[3].
5. In both the Supreme Court decision and the Court of Appeal decision, it was determined that the permit granting the subdivision was 'spent' in other words it is no longer in operation. There is therefore no ability to bring proceedings seeking to have the subdivision reconsidered on the basis of failure to comply with clauses in the planning scheme that were considered as part of the granting of a subdivision permit and conditions in the subdivision permit, as the development the subject of the subdivision permit was completed following the issuing of the statement of compliance.
6. In the decision of the Court of Appeal, it was observed that the judge in the Supreme Court concluded that 'pursuant to section 21 of the Subdivision Act 1988, the council having certified the plan of subdivision and issued the statement of compliance, is then conclusive evidence that the requirements under the Subdivision Act 1988 have been met and that the permit is spent and was not intended to survive the registration of the plan of subdivision.'[4]
7. In relation to the provisions in clause 56 referred to by the applicants in the current application, the Court of Appeal held:
   1. The provisions of the planning scheme identify the standards which informed the content of the plan of subdivision. They did not survive, in the sense of imposing ongoing obligations, after the plan of subdivision had been registered.
8. In relation to the two conditions referred to in the current application, namely conditions 23 and 30.1 the Court of Appeal found:
   1. Condition 23 is set out above. It is difficult to determine precisely what is meant by that condition other than an obligation to refer the plans submitted for certification to Telstra or other licensed telecommunications carriers. Even if that had not occurred, once the statement of compliance issued it was not intended that this condition would have ongoing application. The condition could not survive the registration of the plan of subdivision.

1. Finally, condition 30.1 required that, before construction started, design drawings were to be submitted to the council for approval. In our view, for similar reasons to those given in respect of the other conditions, condition 30.1 was not a condition which survived registration.
2. What underlies the application has already been litigated and determined by the court.
3. Decisions of the Supreme Court and Court of Appeal are binding on the Tribunal, whilst the Tribunal is not legally bound by its own previous decisions. Inferior courts and the Tribunal are bound by previous decisions of the Supreme Court on questions of law where the same question has arisen. In Victorian National Parks Assn Inc[5] the then president of the Tribunal, Justice Morris when discussing the aspect of precedent, said 'I consider that the tribunal, even when constituted by the President, is bound by decisions of the Supreme Court of Victoria'.
4. Having the issues raised by the applicants, albeit under a different section of the PE Act does not mean that the Tribunal would reach any different conclusions to that reached by the Court of Appeal. The application is therefore misconceived as the Tribunal is bound to follow the decision of the Court of Appeal on the same issues that were raised before the Court of Appeal. The result is that there is nothing for the Tribunal to assess in terms of the planning scheme provisions identified and the permit conditions.
5. It is for these reasons that I conclude that the application is misconceived and should be struck out. There is no utility in assessing retrospectively whether the permit conditions have been complied with as the permit is spent and there are no ongoing requirements.
6. As referred to in Hill v Campaspe SC[6] in relation to general principles which govern the making of a declaration:

The jurisdiction is not available if the issue is purely theoretical.

The issue must not only be in existence but must be attached to facts. The dispute must be real, not hypothetical, and must be of practical importance.

The making of the declaration must be of practical use.

1. The subdivision the subject of the application occurred approximately 10 years ago and individual titles to the land have been given. What is sought is in terms of a retrospective assessment of a subdivision, there is no current subdivision application to be considered in terms of clause 56.
2. There has not been any issue of interpretation of the provisions of the planning scheme that would lead to a view that a declaration could be considered. As stated in King v Colac-Otway Shire Council[7] a declaration can only be made where it 'involves genuine ambiguity or dispute as to how a clause in a planning scheme should be interpreted in the context of the particular use or development.'
3. Merely highlighting provisions of the planning scheme in relation to subdivision does not give rise to a retrospective assessment when there is no current subdivision to assess. Nor can the Tribunal give what would amount to an advisory opinion.
4. I agree with the submissions put by Ms Marshall on behalf of the council and Development Victoria that the application is misconceived as it:
   • incorrectly assumes that the Permit and its conditions are still operable, when in fact the Permit has no ongoing relevance to the Land.
   • refers to clauses 56.06, 56.07 and 59.02 which have no ongoing application to the Land;
   • and raises an issue which is purely theoretical and of no utility;
   • is not seeking something which is properly characterised as a matter related to the interpretation of the planning scheme or a permit in relation to land or a particular use of [sic] development of land pursuant to section 149(1) of the Act;
   • requests an inappropriate remedy, being in the nature of an enforcement order rather than a declaration under section 149A of the Act.

1. The council and Development Victoria seek legal costs in the amount of $4,500 based on the application being misconceived and already previously litigated and determined in the superior courts. The amount sought on behalf of both respondents is in the order of $2,250 each.
2. Under section 75(2) of the VCAT Act, if the Tribunal makes an order striking out an application on the basis that it is misconceived, the Tribunal may order the applicants to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
3. The council and Development Victoria submit that they have been put to the expense of engaging a legal representative and for the representative to attend the hearing to request the application be struck out on the basis that the applicants have continued to persist in bringing the same or similar application that has already been determined by the Court of Appeal which found the issues they raise cannot be determined in the way they believe they should be. In other words, they are futile given what they are relying upon in terms of the subdivision permit no longer exists.
4. The applicants strongly rejected the awarding of costs, pressing their view that the issues they have raised on numerous occasions should be rightfully considered by the Tribunal.
5. The issues the applicants have identified in their application as being the remedy or orders sought are what are causing the applicants the most angst. They have brought several applications in relation to these issues, this application is not the first time and each time there has been a decision indicating the Tribunal or the court is not the venue for redress of their concerns. The views they hold regarding the roads and footpaths amongst other things may be genuine, but the current application before the Tribunal is not the vehicle for consideration of those issues. They are all matters that should be raised within a different forum or through different means.
6. Having reached the conclusion that the application should be struck out on the basis that it is misconceived, as the Tribunal is bound to follow the decision of the Court of Appeal on the same issues said to be relied upon in the current application, I consider in such circumstances that it would be reasonable to grant an award of legal costs to both the council and Development Victoria. I have determined that the applicants should pay the amount of $4,500 as requested.

[1] Central Highlands Region Water Authority v Ballarat CC [2007] VCAT 1698

[2] Khan v VCAT [2018] VSC 549

[3] Khan v VCAT [2018] VSCA 351

[5] Victorian National Parks Assn Inc v Southern Grampians SC (2004) 16 VPR 98; [2004] VCAT 20

[6] [2005] VCAT 1128 at [11]

[7] [2004] VCAT 2500