1. The proceeding is adjourned for administrative mention on 20 August 2021. By that date each party must advise the Tribunal in writing:
   • whether a decision has been issued by the Supreme Court of Victoria in S ECI 2020 03040:
     • if so, what that decision is and how it impacts upon the stay of the Enforcement Order;
     • if not, when the parties expect a decision might be issued; and
   • whether a practice day hearing or further administrative mention is requested.

Mr Miles Tehan of counsel, assisted by Mr James Bell and Ms Angela Nunn of Department of Jobs, Precincts and Regions.

1. In this application the Respondent, Lantrak Developments Pty Ltd ("Lantrak"), seeks a stay of the enforcement order issued by the Tribunal constituted by Senior Member Code on 25 June 2020 (corrected on 9 July 2020) in this VCAT Application ("Enforcement Order").[2]
2. The stay is sought under section 149 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act"), which provides:

(1) The Tribunal, on the application of a party or on its own initiative, may stay the operation of any order it makes pending the determination of any appeal that may be instituted under this Part.

(2) The Tribunal may attach any conditions it considers appropriate to a stay of an order under subsection (1).

1. The subject land has historically been used for sand extraction and the extraction pits are in the process of being backfilled as part of the rehabilitation of the subject land. Planning permit TP76218 ("Permit") applies to the subject land. The Permit allows buildings and works and sand extraction and was issued in 1975.[3]
2. The Enforcement Order was issued in response to an application made by Kingston City Council ("Council") in respect of the contravention of condition 1 of the Permit, which provides:

The use hereby permitted shall be operated at all times in accordance with the approved working plan and the approved working proposal attached to Extractive Industry Licence No. 716 issued under the Extractive Industries Act 1966.

1. The contravention was alleged to be the storing of spoil above the designated final contour heights, being the 'backfill surface levels' in the Rehabilitation Plan. The Rehabilitation Plan is defined to comprise certain documents dated November 2011 that are included in Work Authority 383 that applies to the subject land. WA383 was issued under the Extractive Industries Development Act 1995 in 1999 (varied in 2000).
2. SM Code found that the Council had proven the alleged contravention of condition 1 of the Permit and that the "size, scope and effect of the contravention is significant".[4] The Enforcement Order issued effectively requires Lantrak to reduce the heights of the stockpiles. This is to be done in accordance with a Land Restoration Plan that is to be prepared by Lantrak and is to detail the progressive restoration of the subject land to the condition, including final landform, specified in the Rehabilitation Plan (order 2). The Land Restoration Plan must be prepared to the satisfaction of the Council by no later than 24 December 2020. The Land Restoration Plan must include stages for the restoration, the works to be carried out in each stage, the sequence in which the works in each stage will be carried out and the date by which the works in each stage will be commenced and completed.
3. Order 3 of the Enforcement Order provides that Lantrak must then start and complete the works in each stage of the Land Restoration Plan by the date specified in the document, to the satisfaction of the Council. Order 4 provides that all works in all stages must be completed by 25 June 2025.
4. Pursuant to section 148 of the VCAT Act, on 22 July 2020 Lantrak filed a Notice of Appeal of the Tribunal's decision with the Supreme Court of Victoria. I am informed that the appeal alleges the Tribunal erred in law in holding that condition 1 of the Permit required that the use operate in accordance with the Rehabilitation Plan. The application for leave to appeal and, if leave is granted, the appeal itself is listed for hearing on 17 August 2021 for up to two days. Therefore, as at the date of this application to stay, no leave to appeal has been granted.
5. Lantrak seeks a stay of the operation of the Enforcement Order on the basis that if the appeal is upheld, the finding of a breach will necessarily be set aside and the basis for the Enforcement Order will fall away.
6. The Council opposes the stay that is sought. It does so on the basis that, among other things, the Council and its community are entitled to the benefit of the Enforcement Order that was made including the certainty of how and when the subject land will be rehabilitated.
7. Although present at this practice day hearing, the Department of Jobs, Precinct and Regions took a neutral position regarding the stay application.

What are the relevant factors to be considered?

1. The VCAT Act does not specify any test to be applied in determining an application for a stay brought under section 149.
2. The parties relied on various cases. The Supreme Court of Victoria has held that the relevant factors include:

...the prospects that the appeal will be successful, the balance of convenience, and any prejudice that will flow to either party from granting or refusing the stay. As a general proposition, the respondent should not lightly be denied the 'fruits' of his success before the Tribunal. It is clear that the onus rests upon the party seeking the stay.[5]

1. Given the context of the above quote, I take the reference to 'respondent' in that case to be analogous to the role of the Council in this stay application - i.e. the successful party before the Tribunal and the party that is then the respondent to the appeal of that Tribunal decision to the Court.
2. Further discussion from the Court is as follows:

Prima facie, a successful party is entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified.

...an applicant for a stay...must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay.

...Adam J recognized that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.

...Young CJ stated that special circumstance would 'exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed'.

The prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate.[6]

In summary, the factors relevant in considering whether to order a stay of the decision below are the prospects of an appeal being rendered nugatory, the balance of prejudice in depriving a party of the fruits of judgment against the risk that an appeal might be rendered nugatory, and the prospects of success of the appeal.[7]

1. I did not understand there to be a dispute between the parties as to the relevant factors to be taken into account; rather, the difference lay in the application of those factors to the facts of this matter.
2. I also observe that whilst some authorities have queried the ability of the Tribunal to utilise section 149 of the VCAT Act where leave to appeal has not yet been granted (as is the case here), no party contended that I did not have jurisdiction to deal with this application for a stay under section 149. I note that the language of section 149 in referring to the Tribunal's ability to stay the operation of any order it makes "pending the determination of any appeal that may be instituted under this Part" does not provide a definitive trigger for the operation of this power, just that it can operate whilst the parties are awaiting a decision on an appeal lodged under Part 5 of the VCAT Act. In this instance, an appeal has been lodged under Part 5 (i.e. under section 148 of the VCAT Act).

1. I asked the parties several questions regarding their contentions and the disbenefit to them if the stay was or was not granted. All information that was not already on the file was provided to me by way of written submissions and supporting documents along with oral submissions from the (virtual) bar table; no person was called to provide evidence in support of contentions.
2. Amongst the submissions put by the parties were the arguments set out as follows. I do not outline all arguments advanced.
3. Lantrak accepted that it was Lantrak's burden to persuade the Tribunal that a stay should be granted.
4. In the appeal, Lantrak contends that "the Tribunal erred in holding that condition 1 of the Permit required that the use operate in accordance with the Rehabilitation Plan".[8]
5. Lantrak contends that the prospects of success of the appeal (assuming leave is granted) are "very good", citing the case The Sisters Wind Farm Pty Ltd v Moyne Shire Council and Ors[9] ("The Sisters Wind Farm") as being on point. Lantrak contends that the appeal identifies a legitimate question of law and a demonstrable error of law but did not seek to pursue that argument in this forum, lest this hearing become an 'appeal of an appeal' by the Tribunal.
6. Lantrak points to the cost and effort that will be thrown away if the company is required to prepare the Land Restoration Plan in the event that its appeal is successful. It contends that those costs are likely to be "considerable" and that Lantrak is likely to have "undertaken considerable works under that plan".[10] No independent substantiation of the likely "considerable" costs was provided.
7. Lantrak conceded that order 2 only requires the preparation of the Land Restoration Plan prior to 17 August 2021 (being the date of the appeal hearing) and that Lantrak could devise the staging so that no works were required to be undertaken before 17 August 2021. However, because the Land Restoration Plan is required to be completed to the Council's satisfaction, there is a possibility that works might be required to be undertaken prior to 17 August 2021, resulting in further cost and time.
8. Lantrak says that there is no material or immediate risk of harm if the preparation of the Land Restoration Plan is deferred until after the determination of the appeal proceeding.
9. Lantrak contends, and the Council agrees, that there is no risk to public safety posed by the subject land that would be addressed by the restoration works under the Land Restoration Plan.
10. The Council contends that the prospects of success of the appeal are low, noting that Lantrak expressly accepted the contention before SM Code that it now claims is an error of law. The Council disputes the analogy drawn between the present appeal and the principles established in The Sisters Wind Farm case.
11. The Council contends that there would be minimal cost in compiling the Land Restoration Plan. No substantiation was provided.
12. The Council explained that the Enforcement Order was of benefit to the community because the subject land is part of a broader network of sites that are in various stages of rehabilitation and conversion to parkland for public use. The Council contends that a stay will result in the subject land continuing to have a detrimental visual amenity impact on the surrounding land and further delay in the rehabilitation of the subject land.
13. The Council acknowledged that, on the face of the Enforcement Order, the only thing required before the appeal is heard is the preparation of the Land Restoration Plan and that no works, as such, were required before that date.
14. The Council submitted that removal of the excess material from the subject land and finding alternative locations for it was a cost negative exercise for Lantrak (i.e. it will cost the company money rather than generate it). I understood the Council to say that the excess material would need to be removed from the subject land and not located on the other side, due to the different material present on different parts of the land.
15. The Council submitted that allowing the stay and a delay in the preparation of the Land Restoration Plan would likely result in a delay in the completion of the rehabilitation of the subject land, potentially jeopardising Lantrak's ability to comply with order 4 of the Enforcement Order that requires restoration of the site to be fully completed by 25 June 2025. I queried how this might be the case, if all that Lantrak was required to do before 17 August 2021 was prepare the Land Restoration Plan. The Council submitted that Lantrak might spend the time between preparing the Land Restoration Plan (by 24 December 2020) and the determination of the appeal to go out to market and enter into contracts with persons willing to accept the excess material that will need to be removed from the subject land in order to comply with the levels in the Rehabilitation Plan.
16. The Council alleged that the underlying motivation for the appeal involves a separate proceeding brought under the Land Acquisition and Compensation Act 1986 filed in the Victorian Supreme Court regarding a compensation claim for the compulsory acquisition by Transport Victoria of part of the subject land.[11] That proceeding is listed for hearing commencing on 20 July 2021 for 10 to 15 days. Lantrak effectively did not comment upon that proceeding in the matter before me other than to contend that Lantrak would be prejudiced if it was required to provide fulsome details to the Tribunal. Other than being provided with a copy of an order setting out procedural requirements[12] and receiving the submissions of the parties, I have no information regarding this other proceeding.

1. In determining whether to order a stay of the Tribunal's decision I have considered:

1. the prospects of the success of the appeal; 2. whether, if a stay of the Enforcement Order is not granted, the appeal would be rendered nugatory; and

1. where the balance of convenience lies - the prejudice in depriving the Council of the fruits of the Enforcement Order balanced against the risk to Lantrak that the appeal might be rendered nugatory if the stay was refused.
2. In considering each of these factors, I have also had regard to the provisions of the Kingston Planning Scheme ("Scheme") and the physical context of the subject land, as relevant to the decision made by SM Code.

1. I understand Lantrak's argument to be that condition 1 of the Permit, properly construed, does not operate in the way interpreted by the Tribunal and that, accordingly, the basis for the finding of the contravention of the Permit was erroneous. This being in error, there is no basis for the making of the Enforcement Order.
2. It is sufficient for these purposes for me to be satisfied that the appeal is arguable, as opposed to it being baseless or doomed to fail.
3. The Council's claim that Lantrak expressly accepted the contention before SM Code that it now complains is an error of law does not, of itself, mean that the appeal is not arguable or has no prospect of success. If an error of law exists it exists, notwithstanding that it might not have been agitated before the Tribunal.
4. On the information before me, I am satisfied that the ground of appeal is arguable. I do not express a view as to whether the appeal will succeed.

1. If I refuse to grant the stay, Lantrak will be required to spend time and money preparing the Land Restoration Plan to the satisfaction of the Council. This is time and money that would not need to be spent if Lantrak's appeal is successful. I do not know how much time and money will be involved and it would be inappropriate for me to speculate. However, it is reasonable to find that some time and money will effectively be thrown away if the appeal succeeds.
2. Will this time and money thrown away render the appeal nugatory? Not entirely, as what is no doubt the larger component of the Enforcement Order - being the restoration of the subject land in accordance with the timeline agreed by the Council - will remain to be completed after the appeal is decided. This will likely be the case even if the Council insisted upon some of the works commencing before the appeal was heard.

What is the prejudice to the Council if the stay is granted?

1. Allowing the stay would mean that the Council would not have an approved Land Restoration Plan by 24 December 2020 and would not have the certainty of a timeline for rehabilitation of the subject land that this would bring.
2. I note that this is in the context of the subject land having been quarried since the 1950s and having been, for some time, undergoing rehabilitation by backfilling. It is also in the context of SM Code finding that the current use of the land was not a contravention of the Scheme[13] but that Lantrak was in contravention of condition 1 of the Permit because "the use has not been conducted in accordance with the approved working plan in the licence which, in turn, requires work to be carried out in the Rehabilitation Plan".[14]
3. The Council also points to the continuing detrimental visual amenity impact of the subject land and how this will impact on the creation and amenity of an overall parkland area.
4. The Land Restoration Plan might or might not require certain works to be undertaken prior to the date of the appeal.
5. If all that is undertaken by Lantrak prior to the date of the appeal is preparation of the Land Restoration Plan, a stay of the operation of the Enforcement Order will not impact upon the contribution to visual amenity impact made by the subject land.
6. Even if the Land Restoration Plan requires some works to be undertaken prior to that time, given the timeframes involved these would likely be limited in their extent. As such, any change discernible from outside the subject land would likely be of limited extent.
7. Lantrak says I have no evidence before me regarding the budget or timeline for rehabilitation of the surrounding land. Putting that aside, even if I was to put the Council's argument at its highest and accept that the surrounding land is or will be in the process of being rehabilitated and converted to parkland, given the above analysis, whether or not the stay is granted by the date of the appeal it is unlikely that there will be significant change to the appearance of the subject land when viewed from surrounding land, including land slated to be converted to parkland, as a consequence of the Enforcement Order. Accordingly, I have given this argument very little weight.
8. Allowing the stay would mean that if the appeal is unsuccessful, Lantrak will have a reduced timeframe within which to comply with the Enforcement Order. It will need to prepare the Land Restoration Plan and have the works completed by 25 June 2025 unless it seeks and obtains an amendment to the Enforcement Order. If I grant the stay sought, will this mean that, in practice, it will undermine Lantrak's ability to comply with the Enforcement Order altogether? If so, this would arguably be another prejudice to the Council as a consequence of granting the stay.
9. Some time during the hearing was spent on this matter. I observe that the enforcement orders initially sought by the Council required remediation within 7 months of the Tribunal's order. I accept that when the application for enforcement order was lodged it might not have been appreciated what was likely to be involved in remediation of this particular land. After hearing from several witnesses, it seems that SM Code formed a view that the originally proposed timeframe was inadequate and instead ordered a staged rehabilitation of the subject land within 5 years.
10. If I allow a stay of the Enforcement Order and the appeal is unsuccessful - either leave is not granted, or, leave is granted but the appeal is ultimately refused - Lantrak will have less time to complete the restoration works. Lantrak wears that risk. The reduced time frame will, at best, be taken from 17 August 2021. This leaves approximately 3 years and 9 months to prepare the Land Restoration Plan and undertake the works. This time frame might be less, depending on the decisions made by the Court, and when.
11. On the basis of the information before me, I am not persuaded on the balance of probabilities that granting a stay of the Enforcement Order will undermine the ability to comply with the Enforcement Order altogether. Even if a refusal occurs after 17 August 2021, in all likelihood Lantrak will still have a few years to prepare the Land Restoration Plan and undertake the works. Lantrak will have been aware of its obligations under the Enforcement Order from the date of its issue and this remains the case notwithstanding the stay application. Lantrak is an experienced operator in this arena and should be able to adjust its practices to meet the deadline.
12. In saying this, however, I do not regard it as likely that Lantrak will go out to the market and enter into contracts for the removal of the fill, prior to the appeal being determined. This is especially so if the fill removal is a cost negative exercise, as contended by the Council. Why would Lantrak expend further time and money preparing such documents before the appeal? I regard it as more likely that an approved Land Restoration Plan would essentially sit in abeyance, pending a decision on the appeal.
13. In undertaking my analysis of the application to stay the Enforcement Order, I have not given any weight to the compensation proceeding. This is partly because I have very limited information before me regarding that proceeding. More importantly, however, even if I was to form the view that Lantrak was pursuing this stay application for an ulterior purpose, that would not obviate the need for me to consider the other matters set out above; the prospects of success of this appeal, whether this appeal would be rendered nugatory and the balance of convenience. Had I further information regarding that proceeding, it would simply be another factor to be weighed in the balance in this case.

1. Having considered these matters, I conclude that the overall balance falls in favour of me granting a stay of the Enforcement Order, pending a decision in the appeal.
2. If I refused the stay, Lantrak would be required to expend time and money preparing a Land Restoration Plan. Even if nothing else is required to be done before 17 August 2021, this will be a cost impost on Lantrak that will be thrown away if the appeal is successful. Essentially, the prejudice to the Council in this not being done is that it will not have a timeline for the restoration works by 24 December 2020. Given that the works are not required to be completed until 25 June 2025, I do not regard the delay as being fatal to Lantrak's the ability to ultimately comply with the Enforcement Order, if the appeal is unsuccessful.
3. For these reasons, I grant a stay of the operation of the Enforcement Order issued in this proceeding pending the determination of S ECI 2020 03040 in the Supreme Court of Victoria.

[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed 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] Kingston CC v Lantrak Developments Pty Ltd (Corrected) [2020] VCAT 622.

[4] Kingston CC v Lantrak Developments Pty Ltd (Corrected) [2020] VCAT 622 at [122].

[5] Medical Practitioners Board of Victoria v Sabi Lal [2008] VSCA 264 at [16].

[6] Hoskin v Victorian Civil and Administrative Tribunal [2015] VSCA 270 at [28], quoting from Maher v Commonwealth Bank of Australia [2008] VSCA 122.

[7] Hoskin at [29], quoting from Gangemi v Osborne [2008] VSCA 221.

[8] Submissions on behalf of Lantrak Developments Pty Ltd by James Lofting dated 4 September 2020 at [4].

[9] [2010] VSC 607.

[10] Submissions on behalf of Lantrak Developments Pty Ltd by James Lofting dated 4 September 2020 at [13].

[12] Issued by Judicial Registrar Keith on 2 June 2020.

[13] Kingston CC v Lantrak Developments Pty Ltd (Corrected) [2020] VCAT 622 at [90].

[14] Kingston CC v Lantrak Developments Pty Ltd (Corrected) [2020] VCAT 622 at [119].