1. In application P2372/2014, pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the statement of grounds lodged on behalf of Timothy Wilson, Michelle Wilson, Sandor Szoeke and Irene Szoeke is amended and the following persons are removed as parties:

1. In application P492/2015, pursuant to section 74 of the Victorian Civil and Administrative Tribunal Act 1998, leave is given to the applicants to withdraw the application and the application is withdrawn accordingly.
2. Applications P2187/2014 and P2372/2014 are adjourned for administrative mention on 1 July 2015. By that date the permit applicant must advise the Tribunal in writing:
   • Whether a cultural heritage management plan for the subject land has been prepared and approved;
   • whether the matter is resolved or is proceeding to a hearing,
   • if that party is ready for a hearing,
   • that party's estimate of the duration of the hearing, and
   • whether a further directions hearing or mention is requested.

Mr Andrew Hooper of counsel, by direct brief, and Mr Sandor Szoeke. The following witness was called:

• Jonathan Howell-Meurs of Andrew Long & Associates

1. These proceedings all concern the property at 945 Punt Road, South Yarra and a permit application (TP-2013-872) for construction of a multi level building (residential) and a partial reduction to the parking requirements of clause 52.06. On 14 November 2014, Melbourne City Council, as responsible authority (the council), issued a notice of decision to grant a permit.
2. Application P2187/2014 (the section 82 application) is an application by objectors under section 82 of the Planning and Environment Act 1987 to review the decision of the council to grant a permit. The application was lodged jointly by Timothy Wilson, Michelle Wilson, Sandor Szoeke and Irene Szoeke.
3. Application P2372/2014 (the section 80 application) is an application by the permit applicant, Mark Merunovich, under section 80 of the Planning and Environment Act 1987 to review conditions in the Notice of Decision to Grant a Permit. The following objectors have lodged a statement of grounds and are parties to this proceeding:
   • Timothy Wilson, Michelle Wilson, Sandor Szoeke and Irene Szoeke
   • John Calder
   • Carena Shankar (Elbowup Pty Ltd ATF Kirwan Trial Discretionary Trust)
4. Application P492/2015 (the section 149B application) is an application for declarations under section 149B of the Planning and Environment Act 1987 by the following joint applicants:
   • Timothy and Michelle Wilson
   • Sandor and Irene Szoeke
   • Carena Shankar (Elbowup Pty Ltd ATF Kirwan Trial Discretionary Trust)
   • John Calder
   • Ross and Jenny Elliott
5. The application for declarations under section 149B concerns the validity of the notice of decision (or decision) of the council to grant a permit having regard to the requirement under the Aboriginal Heritage Act 2006 and the Aboriginal Heritage Regulations 2007 to prepare a cultural heritage management plan.
6. Applications P2187/2014 and P2372/2014 were listed for hearing on 26 March 2015 for two days.
7. On 13 February 2015, an application was made by the permit applicant to adjourn the hearing on 26 March 2015 of applications P2187/2014 and P2372/2014 on the following grounds:
   • The closing date for statements of grounds only concluded on 2 February 2015.
   • The Permit Applicant is considering the issues raised by these third parties and has not had sufficient time to prepare amended plans to deal with these mattes.
   • The hearing notice was only received on 11 February 2015, the same date that any amended plans must be filed and served according to VCAT Practice Note -PNPE9 - Amendment of Plans and Applications.
   • The advocate and expert witness retained by the Permit Applicant are listed on other hearings on the same day that the hearing has been scheduled.
   • The permit applicant will be prejudiced in the event the hearing is not adjourned.
8. On 26 February 2015, the solicitors for the permit applicant emailed the Tribunal and other parties to advise that:

... since our initial request for an adjournment, the Applicant has received advice from Andrew Long and Associates that the site and a large part of South Yarra sits within the current mapping of a registered Aboriginal place. ... The effect of this registration is that notwithstanding that advice has been received that the site has been the subject of significant ground disturbance that pursuant to the provisions of the Aboriginal Heritage Act 2006, statutory authorisation, namely a cultural heritage management plan, must be obtained.

Accordingly, on this basis we request the Tribunal schedule this matter for an urgent Practice Day Hearing to consider the future conduct of this proceeding, including an adjournment of the hearing.

1. In addition, on 25 February 2015, Tim Wilson made application pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998:

... for summary dismissal of an unjustified proceeding concerning the permit applicant's Application to Review conditions (VCAT Ref: P2372/2014) and the Request by the Permit Applicant for Consent for an Adjournment (served by Best Hooper on 13 February 2015) on the basis that separately and cumulatively they are frivolous, vexatious, misconceived, lacking in substance and/or an abuse of process.

1. By order dated 27 February 2015, the two proceedings under section 82 and section 80 were listed for a practice day hearing on 6 March 2015, the purpose of which was:
   • To consider the future conduct of the proceeding. This may include a consideration of dates, duration; mediation and/or venue.
   • To consider the application to adjourn the hearing on 26 March 2015.

• To consider the matters raised in the letter from Tim Wilson dated 29 January 2015.
  • To consider the matters raised in the Practice Day request by Best Hooper dated 13 February 2015.

• To consider the matters raised in the email from Best Hooper dated 26 February 2015.

1. At the practice day hearing on 6 March 2015 there were two main issues to be dealt with:
   • Whether to adjourn the hearing on 26 March 2015 because of the need for a cultural heritage management plan; and
   • The request by Timothy Wilson and Others to summarily dismiss the section 80 application and the permit applicant's adjournment request.
2. At the practice day hearing, the solicitor for the permit applicant presented submissions and written advice dated 5 March 2015 from Jonathan Howell-Meurs, executive director of Andrew Long and Associates about the discovery of the need for a mandatory cultural heritage management plan.
3. Under the Aboriginal Heritage Act 2006, if a cultural heritage management plan is required, a plan must be prepared before a statutory authorisation is given. Specifically, section 52(1) provides:
   1. Plan must be prepared before authorisation given

(1) The decision maker must not grant a statutory authorisation for the activity unless a cultural heritage management plan is approved under this Part in respect of the activity.

This section does not prevent a sponsor from lodging an application for a statutory authorisation before a cultural heritage management plan is approved.

1. A statutory authorisation includes a permit under the Planning and Environment Act 1987 to use or develop land for all or part of an activity.[1]
2. The Aboriginal Heritage Regulations 2007 set out when a cultural heritage management plan is required. It is common ground that the proposed use and development is a high impact activity under the regulations. The question that determines whether a cultural heritage management plan is required is whether part or all of the activity area for the activity is an area of cultural heritage sensitivity.[2] Various places are specified in the regulations as being areas of cultural heritage sensitivity.
3. According to the advice provided by Andrew Long and Associates on behalf of the permit applicant, the subject land was initially investigated because the property is situated within 200 metres of the Yarra River and is thus nominally within an area of cultural heritage sensitivity. Mr Howell-Meurs' initial findings were that the land had been subject to significant ground disturbance and therefore a mandatory cultural heritage management plan was not required.
4. However, further investigation revealed that the subject land, along with a substantial portion of the suburb of South Yarra, is actually located within the registered extent of an Aboriginal place. The registered extent of the place essentially extends from the Yarra River in the north to Toorak Road in the south and from Domain Street in the west to Darling Street in the east. Regulation 22 of the Aboriginal Heritage Regulations 2007 states:
   1. Registered cultural heritage places

(1) A registered cultural heritage place is an area of cultural heritage sensitivity.

(2) Subject to subregulation (3), land within 50 metres of a registered cultural heritage place is an area of cultural heritage sensitivity.

(3) If part of the land within 50 metres of a registered cultural heritage place has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity.

1. The implications of this regulation are that a registered cultural heritage place remains an area of cultural heritage sensitivity regardless of the occurrence of significant ground disturbance. The permit applicant therefore conceded that as the subject land is within the registered extant of an Aboriginal place, notwithstanding the land has been subject to significant ground disturbance, it is an area of cultural heritage sensitivity and thus a cultural heritage management plan is required to be approved before the council or the Tribunal can grant a statutory authorisation for the proposed activity.
2. The factual basis for this conclusion and the conclusion itself were not disputed by the objectors. However, Mr Hooper, on behalf of the objectors, opposed the Tribunal vacating the hearing and adjourning the proceeding. He submitted that the Tribunal had no jurisdiction to consider these applications for review because the decision of the council to grant a permit on 14 November 2014 was void ab initio. He submitted that the Tribunal should not adjourn the proceedings but should consider the objectors' application for summary dismissal first.
3. At the practice day hearing there was insufficient time to consider the objectors' submissions for summary dismissal in detail. I took the view that:
   • The applications for review were validly made pursuant to section 4(2) of the Victorian Civil and Administrative Tribunal Act 1998, which provides:
     1. When does a person make a decision?

(2) For the purposes of this Act or an enabling enactment -

(a) a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;

(b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decisionmaker;

• The Tribunal had jurisdiction to consider whether it did or did not have jurisdiction to determine the merits of the applications for review.
• Pursuant to section 80 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal had power to give directions concerning the future conduct of the proceedings.
• In order to give the objectors a proper opportunity to present their case for a summary dismissal of the proceedings and because it was accepted by the Tribunal that there could be no possibility of a permit being granted until the permit applicant prepared and had approved a cultural heritage management plan, it was appropriate to vacate the hearing scheduled on 26 March 2015.

1. Accordingly, by order dated 10 March 2015, the Tribunal vacated the hearing on 26 March 2015 and listed the proceedings for a further practice day hearing on 20 March 2015. The purpose of the practice day hearing was:
   • To consider the applications by the objectors, Timothy Wilson and Others for summary dismissal of the proceedings.
   • To consider the preliminary question of law raised by the objectors, Timothy Wilson and Others, as to whether the Tribunal has any jurisdiction in these proceedings.
   • To consider the possible future conduct of the proceedings. This may include a consideration of dates, duration, compulsory conference and/or venue.
2. The Tribunal also made directions for the objectors to file and serve an outline of the issues they intended to address at the practice day hearing and an outline of submissions together with a list of any authorities upon which they intended to rely, and provided an opportunity for other parties to file and serve a response.

1. On 16 March 2013, the objectors lodged an application for declarations under section 149B of the Planning and Environment Act 1987. An initiating order was made on 25 March 2015. The Tribunal served a copy of the application on the permit applicant and the council. At the practice day hearing on 20 March 2015, the objectors said they were not ready to deal with this proceeding and required that the matter be listed for a hearing for two days before a presidential member other than myself. Mr Hooper asserted that I had disqualified myself by expressing views about the validity of the council's decision to grant a permit and issue the NOD on 14 November 2014.
2. Prior to the second practice day hearing on 20 March 2015, the objectors issued a summons to appear to Jonathan Howell-Meurs of Andrew Long and Associates requiring him to appear at the practice day hearing to give evidence and to produce "all documents relevant to the matter of Aboriginal cultural Heritage related to the matter of development of 945 Punt Road, South Yarra as per advice given to Best Hooper Lawyers dated 5 March 2015."
3. At the commencement of the hearing, Ms Cincotta, on behalf of the permit applicant, applied to set aside the summons to appear on the basis that the documents or evidence of Mr Howell-Meurs were not relevant; the summons was issued for ulterior purposes; and the summons was an abuse of process.
4. Mr Hooper, on behalf of the objectors, opposed this application and submitted that the evidence of the witness and the documents were relevant in terms that the Tribunal had relied upon the letter of advice written by Mr Howell-Meurs dated 5 March 2015 tendered at the first practice day hearing. The evidence and documents were also relevant in the context of the section 75 application for summary dismissal due to the lateness of the application for adjournment.
5. I ruled that whilst I found it difficult to understand the possible relevance of Mr Howell-Meurs and the documents required to be produced to the issues to be determined in the context of the section 75 application, I could not be definitive about this without giving Mr Hooper an opportunity to question Mr Howell-Meurs and clarify how his evidence and the documents were relevant. I therefore declined to quash the summons.
6. Accordingly, Mr Howell-Meurs was called to give sworn evidence and produce his documents.
7. The documents produced and the evidence of Mr Howell-Meurs confirmed the advice given to the Tribunal on behalf of the permit applicant at the first practice day hearing that Mr Howell-Meurs was given instructions to advise whether a cultural heritage management plan was required on 23 December 2014. He was provided with information about the permit application, the council's Notice of Decision, the officer's report and the objectors application for review. On 5 January 2015, Mr Howell-Meurs provided preliminary advice to Best Hooper that: "On the basis of what I have been able to glean from readily available sources I believe there are very good grounds for arguing convincingly that a full CHMP is not required for this property." On 24 February 2015, Mr Howell-Meurs advised Best Hooper that further investigations had revealed that the property, along with a substantial part of the suburb of South Yarra, is actually located within the registered extent of an Aboriginal place. This advice was essentially the same as the advice contained in the letter dated 5 March 2015 tendered to the Tribunal at the first practice day hearing.
8. After three hours of argument on 20 March 2015, Mr Hooper did not consider that he had had an adequate opportunity to present all his submissions regarding the section 75 application for summary dismissal. I gave leave for the objectors to file and serve further written submissions within 7 days and an opportunity to the other parties to provide responses within a further 7 days.
9. At the conclusion of the hearing, Ms Cincotta, on behalf of the permit applicant, applied for an order directing the objectors to pay the expenses of Mr Howell-Meurs under section 104(4) of the Victorian Civil and Administrative Tribunal Act 1998. A fixed amount of $1800 was requested. The objectors were provided with an opportunity to respond in writing to this application.
10. In making my determination on the matters before me, I have read all the various submissions and considered the matters raised at the practice day hearing, although I do not consider it is necessary to set out every point raised.

1. I find that it is not necessary to make any findings about whether the hearing listed on 26 March 2015 would have been adjourned on the basis of the grounds set out in the permit applicant's adjournment request dated 13 February 2015. Those grounds were, for all practical purposes, superseded by the grounds set out in the permit applicant's adjournment request dated 26 February 2015, namely that a cultural heritage management plan was required.
2. I am satisfied that the permit applicant advised the Tribunal and other parties as soon as practicable of the need for a cultural heritage management plan. Mr Howell-Meurs alerted the permit applicant's solicitors to this need by email on 24 February 2015 and the Tribunal and other parties were advised on 26 February 2015.
3. I reject the objectors' contention that:

The Council and/or the Permit Applicant failed to give notice and/or provide a cultural heritage management plan until immediately prior to the final hearing of this matter at VCAT which has caused unnecessary proceedings and unfairly disadvantaged other parties and has also caused costs to be incurred.

1. The permit applicant was not aware of the need for a cultural heritage management plan until the time when he advised the Tribunal and other parties. I am satisfied that the permit applicant acted promptly and properly in drawing this matter to the attention of the Tribunal at the earliest convenience. In circumstances where the Tribunal has no power to grant a permit until a cultural heritage management plan is approved by reason of section 55 of the Aboriginal Heritage Act 2006, it was appropriate for the Tribunal to vacate the hearing and provide the permit applicant with an opportunity to prepare such a plan and have it approved.
2. From time to time, the need for a cultural heritage management plan is not discovered or recognised until the time of hearing a proceeding. In those circumstances, it has been the Tribunal's practice to adjourn the proceeding and not to make a final determination until a cultural heritage management plan is approved.
3. The provisions of section 52 of the Aboriginal Heritage Act 2006 prevent the grant of a planning permit. They do not prevent a decision being made or actions being undertaken that are preliminary to the grant of the statutory authorisation.[3]
4. Under the Planning and Environment Act 1987, if objections are lodged with the responsible authority to a permit application, the responsible authority may decide to grant a permit; or to grant a permit subject to conditions; or to refuse to grant a permit on any ground it thinks fit.[4]
5. If the responsible authority decides to refuse to grant a permit, then its decision to do so does not contravene section 52 of the Aboriginal Heritage Act 2006. A decision to refuse to grant a permit cannot be construed to be the grant of a statutory authorisation.
6. If the responsible authority decides to grant a permit, it must give notice of its decision to the applicant and objectors. A decision to grant a permit does not constitute the grant of a permit.[5] The responsible authority must not issue the permit until the end of the period within which an objector may apply to the Tribunal for a review of the decision to grant the permit; or if an application for review is made within that period, until the application is determined by the Tribunal or withdrawn.[6] Thus in the case of a notice of decision to grant a permit, there is no grant of a statutory authorisation until the permit is issued.
7. In the present case, where there is an application for review by objectors of the decision to grant the permit, no decision will be made by the Tribunal to potentially grant a permit until a cultural heritage management plan has been prepared and approved.
8. The situation does not arise in the present case of a permit having been issued before the preparation and approval of a cultural heritage management plan where one is required. Those circumstances may give rise to an application under section 87 of the Planning and Environment Act 1987 to cancel such a permit on the grounds that there has been a material mistake in relation to the grant of the permit. However, that is not a matter before me at present on which I need to rule.
9. Nor is this a situation where the decision of the Tribunal in Stanley Pastoral Pty Ltd v Indigo SC & Ors[7] applies. In that case, the application for review was made under section 79 of the Planning and Environment Act 1987 against the council's failure to grant a permit. The Tribunal found that a failure appeal could not be lodged at the Tribunal where a cultural heritage management plan is required but not approved given the provisions of section 52(4) of the Aboriginal Heritage Act 2006. This provision sets out that the statutory clock does not commence to run until a cultural heritage management plan is approved and hence an application to review the council's failure to determine a planning permit could not be lodged because the prescribed number of days had not elapsed. In fact, they had even commenced to run.
10. The purpose of the first practice day hearing on 6 March 2015 was to consider whether to adjourn the hearing on 26 March 2015. At this hearing, I accepted the advice by the permit applicant's solicitor, supported by the letter dated 5 March 2015 from Jonathan Howell-Meurs of Andrew Long and Associates, that there was a need for a cultural heritage management plan to be prepared because the subject land was within a registered Aboriginal heritage place and that the issue of whether the land was also within an area of cultural heritage sensitivity given its proximity to the Yarra River and whether there had been any significant ground disturbance was irrelevant. For the reasons set out earlier in the context of the first practice day hearing, I made a decision to vacate the hearing. I find that I had jurisdiction to make such a direction. I further find that the Tribunal has jurisdiction to hear and determine the section 82 application and the section 80 application after a cultural heritage management plan has been prepared and approved.
11. Accordingly, I find that there are no grounds for the summary dismissal of either proceeding on the grounds that the Tribunal lacks jurisdiction or that there was an improper application for adjournment.

Strike out/summary dismissal under section 75

1. The objectors also apply under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 to have the section 80 application for review against conditions struck out or summarily dismissed on the grounds that it is an unjustified proceeding. This is because it is said the grounds in the section 80 application are "ambiguous, vague, and/or oppressive, and not only fail to disclose any or any proper planning grounds for the review of the conditions referred to therein, but are unfair in that the other parties are unable to properly respond, prepare for hearing or understand the case they have to meet."
2. The substance of the submission on behalf of the objectors is that the grounds relied upon by the permit applicant in his application for review are inadequate.
3. The conditions in the NOD that the permit applicant seeks to review relate to a requirement to remove the third storey (top level) and make further changes to the plans to provide more articulation and visual interest, require setbacks to balconies and screening to certain windows. The grounds set out in the application for review are as follows:

Conditions 1(a), (c) and (e) are unreasonable, unnecessary and not justified on planning grounds.

The proposed development is acceptable without these conditions.

1. I find that whilst these grounds are succinct, they are not entirely lacking in detail or without planning merits. In other words, I do not consider they are untenable in a planning sense or incomprehensible.
2. The purpose of a statement of grounds is to identify the issues that will be relied upon and amplified at the hearing. It is not necessary to spell out in every detail all of the arguments that will be put or the evidence that will be called.
3. If the objectors found they were unable to understand the grounds sufficiently to enable them to lodge a statement of grounds themselves, the correct approach should have been to request further and better particulars of those grounds. Instead, all the objectors who lodged statements of grounds addressed the issues of height, setback of balconies and the size and screening of windows in detail. There is no evidence they have been unable to respond to the permit applicant's grounds in their own grounds or to understand the case they have to meet. Therefore, I do not find they have been disadvantaged by the succinctness of the permit applicant's grounds.
4. Even if I was persuaded that the grounds were inadequate, I do not consider it would be appropriate to strike out or summarily dismiss this proceeding on the grounds that it was an abuse of process or that it was frivolous, vexatious, misconceived or lacking in substance. As a general principal, the Tribunal will require a high degree of satisfaction as to the various grounds set out in section 75 before a proceeding will be summarily dismissed or struck out under that section. The Tribunal is usually very reluctant to deprive a person from exercising their right of review and the opportunity to present their case fully at a final hearing.
5. In the present case, I do not accept that the permit applicant's grounds for opposing the conditions under review are defective or unarguable. It will be up to the Tribunal considering the merits of the proceeding to determine what weight to be placed on the grounds in light of the submissions and evidence produced at the hearing.
6. With respect to other alleged technical failures on the part of the permit applicant to comply with Tribunal directions regarding the service of the application and other matters, I find that they do not justify a strike out or summary dismissal of the proceeding. Any such deficiencies were capable of correction by further direction of the Tribunal, but the passage of time has rendered this unnecessary and the alleged deficiencies are therefore not relevant.
7. In making this decision to refuse to strike out or summarily dismiss the section 80 application pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, I express no concluded view about the merits of the grounds which the permit applicant relies upon. Whilst I find that the grounds are tenable, it is not my role to make a finding about their merits.
8. Therefore, the objectors' application to strike out or summarily dismiss the section 80 application based on the inadequacy of the grounds set out in the application is refused.

1. Section 104 of the Victorian Civil and Administrative Tribunal Act 1998 provides as follows:

(4) A person who attends in answer to a summons is entitled to be paid the prescribed fees and allowances or, if no fees and allowances are prescribed, the fees and allowances (if any) determined by the Tribunal.

(a) if the person was summoned at the request of a party, by that party; or

(b) if the person was summoned on the initiative of the Tribunal, by the parties in the proportion determined by the Tribunal.

1. In the present case, it was the sole decision of the objectors to seek to issue a witness summons against Jonathan Howell-Meurs to give evidence and to produce documents.
2. Irrespective of the relevance of Mr Howell-Meurs' evidence, he is entitled to be paid the fees and allowances determined by the Tribunal (in the absence of there being any prescribed fees and allowances) and the fees are to be paid by the party who summoned the person.
3. Therefore, the objectors are obliged to pay the fees and allowances of Mr Howell-Meurs if the Tribunal so determines. I accept that the provision confers a discretion on me as to whether to determine what fees and allowances should be paid.
4. The sum of $1800 dollars was requested as representing the professional costs of Mr Howell-Meurs for attending the practice day hearing. The quantum of this amount was not questioned by the objectors. I find that it is a reasonable amount given the time involved on the part of Mr Howell-Meurs.
5. In terms of whether I should exercise my discretion to direct this payment, I consider it is relevant to take into account whether the evidence given by Mr Howell-Meurs was necessary or relevant to the objectors' case being presented at the second practice day hearing.
6. I find that his evidence was not relevant and not necessary. It added nothing to the information presented to the Tribunal at the first practice day hearing about the need for a cultural heritage management plan. There was nothing additional disclosed by the documents he produced, which was not included in his letter dated 5 March 2015 considered at the first practice day hearing. Mr Hooper's questions about the detail of provisions of the Aboriginal Heritage Act 2006 and the Aboriginal Heritage Regulations 2007 did not establish anything that this Tribunal, as an expert Tribunal, was not already aware of or which was not capable of being put by way of submission on behalf of the parties. Issues about whether the land was within an area of cultural heritage sensitivity because of its proximity to the river and the degree of significant land disturbance were quite irrelevant. Mr Howell-Meurs was not an expert giving evidence on behalf of the permit applicant. Rather, he was a consultant asked to investigate the need for a cultural heritage management plan and to provide the permit applicant with this advice. He gave some preliminary advice, but as soon as he became aware that there was a need for a cultural heritage management plan due to the land being included in a registered Aboriginal heritage place, he advised the permit applicant and the permit applicant promptly advised the Tribunal and other parties.
7. In my view, there was no need for the objectors to issue a summons requiring Mr Howell-Meurs to give evidence and produce documents. His testament added nothing to their submissions, was not necessary and gave no support to their application. For these reasons I consider that Mr Howell-Meurs should be paid his fees for attending the practice day hearing and giving evidence at the summons of the objectors.
8. In terms of liability for payment, the fees should certainly not be paid by the permit applicant, as suggested by Mr and Mrs Szoeke.
9. The summons was issued in Application P2187/2014 by "Timothy Wilson & others". This is the section 82 application by the objectors against the council's decision to grant a permit even though it is the section 80 application against conditions that the objectors seek to have struck out or summarily dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
10. I do not consider that anything turns on this. The four joint objectors were acting in concert in each application and should be jointly and severally liable to pay Mr Howell-Meurs' fees for attending the practice day hearing in response to the objectors' summons. Those fees are fixed in the sum of $1800.

1. On 8 April 2015, Timothy Wilson advised the Tribunal and parties of his decision:

...to withdraw myself (Timothy Wilson) from proceedings under P2187/2014 & P2372/2014. This is the result of a decision to sell my property at 1/943 Punt Road and does not constitute a change in any of my views regarding the development and subsequent proceedings.

1. Michelle Wilson, confirmed on 8 April 2015 that she too was withdrawing from the proceedings.
2. Mr Wilson further advised that:

Sandor and Irene Szoeke have confirmed their intention to continue with the objection. Accordingly the joint applicant name and address for service for the joint parties should be updated as follows: [details for Sandor and Irene Szoeke provided]

1. Based on this advice, I will make orders to withdraw Timothy Wilson and Michelle Wilson as parties to the section 82 and section 80 applications. This will not affect their liability to pay the fees of Mr Howell-Meurs in respect of the witness summons they issued or any other costs that may be claimed in respect of these proceedings prior to their withdrawal.

1. The section 149B application for declarations was lodged in the name of Timothy Wilson and Others on 16 March 2015.
2. On 25 March 2015, the Tribunal issued an initiating order setting out a hearing date for the proceeding of 6 August 2015 and giving directions to the applicants and others requiring service of the application and directing certain other actions to be undertaken by dates set out in the order. The order was sent to the applicants' representative, The Practitioners, at the email address given in the application form. Those orders have not been complied with.
3. Following the second practice day hearing, the Tribunal made a further order dated 31 March 2015 vacating its order dated 25 March 2015 and setting new hearing dates on the 19 and 20 May 2015 and giving similar directions for service etc as set out in the previous order.
4. On 23 March 2015, Sandor and Irene Szoeke wrote to the Tribunal advising that Mr Hooper no longer acts on their behalf and withdrawing from the section 149B application as applicants because they said inclusion of their names in the application as applicants was without their authority and knowledge. [8] By order dated 14 April 2015, the Tribunal amended the section 149B application to remove Sandor and Irene Szoeke as applicants.
5. In his letter to the Tribunal dated 8 April 2015, Timothy Wilson, in addition to withdrawing as a party to the section 82 and 80 proceedings, further advised the Tribunal as follows:

The objectors are in agreement with Deputy President Gibson and the representative for the permit applicant that the desired focus of the proceedings should be on planning concerns and not administrative issues. As a result we withdraw the application under section 149b [sic] associated with these proceedings. This is notwithstanding the legal validity of the points raised in s.149b [sic] and prior submissions.

1. On the basis of this advice, I will withdraw the section 149B application in its entirety.
2. Finally, I note that the representative of the applicants given in the section 149B application form was The Practitioners of 246 Errol Street, North Melbourne Vic 3051. An email address was provided as follows:

1. Unfortunately, the emails containing the Tribunal's orders in this proceeding sent to the applicants C/- of The Practitioners may not have been received because they submitted an incorrect email address.
2. By letter dated 7 April 2015, The Practitioners advised the Tribunal of the correct email address (although even that contained errors). They also enclosed a copy of an amended application for declarations. However, in light of the correspondence received from Timothy Wilson on 8 April 2015 withdrawing the application, it is not necessary to now amend the application.

[1] Section 50 Aboriginal Heritage Act 2006

[2] Regulation 6 Aboriginal Heritage Regulations 2007

[3] For example, see section 52(5) and the note to section 52(1) Aboriginal Heritage Act 2006

[4] Section 61 Planning and Environment Act 1987

[5] See 'Important Information About this Notice' on the back of the prescribed form for a notice of decision to grant a permit - regulation 25 and Form 5 in Schedule 1 Planning and Environment Regulations 2005:

The Responsible Authority has decided to grant a permit. The permit has not been issued.

This notice sets out what the permit will allow and what conditions the permit will be subject to if issued.

[6] Section 64(3) Planning and Environment Act 1987

[7] [2015] VCAT 36

[8] Mr and Mrs Szoeke also made certain submissions regarding other matters considered at the second practice day hearing, which I have considered.