(a) Affirms the decision; or

(b) Varies the decision; or

(c) Sets aside the decision and substitutes a new decision for it.

1. If the responsible authority varies the decision or sets it aside and substitutes a new decision, it must specify:

(a) Any new reasons for its decision; and

(b) Any draft conditions upon which it would decide to grant a permit, if relevant.

1. This application for review will then proceed on the basis that it is seeking a review of the new decision.

Applicant invited to lodge amendments to the grounds for review

1. By no later than 4pm on Monday 15 September 2025, the applicant is invited to lodge with the Tribunal and the Responsible Authority any amendments to the grounds for seeking the review of Council's new decision (if one is made).

1. Ms Mooney (the applicant) is seeking a review of Ballarat City Council's (Council) decision to refuse to grant a permit. The grounds of refusal are based on heritage concerns.
2. The applicant sought a planning permit for a two lot subdivision. The application form described the existing conditions as 'two dwellings'. The report submitted with the application also describes the existing conditions as being 'two existing single storey dwellings', and that the property is served by reticulated power, water, sewer, gas and telecommunications. The proposed plan of subdivision includes notations for two existing dwellings (figure 2 in Council's delegate report).
3. Planning permission is required to subdivide the land under the General Residential Zone and the Heritage Overlay.
4. The application report identifies the relevant type/requirement of subdivision requiring planning permission in the General Residential Zone as:
   • 'an application to subdivide land must meet the requirements of Clause 56 unless each lot contains an existing dwelling or car parking space'.
5. Council's delegate report outlines the permit history of the site, including that a permit issued in 1997 for the 'construction of an ancillary building (human habitation)'. The associated planning delegate report stated this building (described as a cottage) would be used as part of an existing bed and breakfast operation and the report notes that the plans showed a single bedroom, shower room with toilet and basin and a 'bar' (no sink). Council has a building permit endorsed plan in the delegate report for this proposed subdivision. It is dated March 1998 and shows the kitchen area in general terms, meaning it is silent as to what is constructed in the 'kitchen' area. Ms Mooney advises she provided this plan to Council.
6. Council's delegate report notes the applicant's advice that both buildings are dwellings including that they have separate gas meters and are billed separately; have separate rate notices; and up until 2015 were used as short-term rentals. During this hearing, Ms Mooney advised she has owned the property for at least 10 years and both buildings have been dwellings during that time as well as during ownership by the previous owner.
7. For this hearing, Ms Mooney provided information including photographs of the cottage to demonstrate the fitout of the kitchen and bathroom, which indicates it meets the definition of a dwelling. Council acknowledges this material demonstrates it has the requirements to be defined as a dwelling. This may mean the cottage has existing use rights for use as a dwelling. Council has not considered this, and Council has not assessed this permit application as it was applied for - being two dwellings.
8. Therefore, I have decided to remit the permit application back to Council for re-consideration. I am using the power under section 51A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) as:
   1. It maintains the applicant's review proceeding with the Tribunal;
   2. It does not affect the priority of the processing of this proceeding as this matter has not yet progressed to being listed for a final merits hearing; and
   3. It enables Council to reconsider the applicant's permit application as it was originally sought.
9. Council foreshadowed that potentially considering the permit application on the basis of two dwellings may change the required processing including whether the giving notice of the application is necessary. Given this, I asked Council to nominate how long it needs to reconsider the application. The time allocated in Order 2 accords with Council's advice.
10. If notice is given and any objections are received by Council, this is a matter that the Tribunal will further consider following receipt of Council's new decision and the reasons for it (which will presumably identify any objections received). If necessary, the Tribunal will consider how to give notice of this application for review to the objectors.
11. Council must advise the Tribunal and the applicant of its new decision in writing. It should not issue a formal notice of any new decision.
12. I have allowed the applicant time after the new decision advice is received to decide whether to amend the grounds of review. The applicant must advise the Tribunal and Council in writing of any amended grounds of review.