1. The hearing scheduled at 10:00am on 12 November 2025 is vacated. No attendance is required.

Daniel Bowden, town planner of Bowden Town Planning Pty Ltd

Tim Hamilton, town planner of Activate Town Planning Consultancy

1. The purposes of the Practice Day hearing as set out in the Tribunal's Orders dated 25 July 2025 are:
   1. to consider the form of the declaration sought;
   2. to consider whether further notice of the application is required to be given to any other person;
   3. to consider a timetable for the exchange of submissions and evidence;
   4. to consider the future conduct of the proceeding including to consider whether the hearing of the matter can be heard 'on the papers'; and
   5. to consider any proposed minute of consent provided to the Tribunal in support of the application.
2. Submissions in respect of each of these purposes are provided below.

1. Mornington Peninsula Shire Council's ('council') application for a declaration was made within the context of another proceeding before the Tribunal, Proceeding P532/2025.
2. Proceeding P532/2025 is an application under section 82(1) of the Planning and Environment Act 1987 (Vic) ('PE Act') for a review of the Council's decision to grant the planning permit P24/1950.
3. In this proceeding, the council has applied under section 149B(1)(b) of the PE Act for the following declaration:

Planning Permit P24/1950 dated 30 April 2025 was not issued in accordance with section 64 of the Planning and Environment Act 1987 (Vic), is void ab initio and has no force or effect.

1. As set out in the Council's application materials, the council submits that it has sought the declaration because the council failed to issue a Notice of Decision to Grant a Permit before it purported to issue Planning Permit P24/1950 on 30 April 2025. More specifically, the Council submits that it issued Permit P24/1950 in error because:
   1. notice of the permit application was given;
   2. on 14 April 2025, the Council had received an objection to the permit application from Mark Elvins; and
   3. section 64 of the Act requires that a responsible authority give a permit applicant and any objector/s notice of its decision to grant a planning permit, and must not issue a planning permit to a permit applicant until the end of the period within which the objector/s are entitled to apply to the Tribunal for a review of Council's decision (in this case, 28 days).
2. In framing the declaration sought, the council has relied upon the case of Indigo SC v Indigo SC [2023] VCAT 997 (29 August 2023) (Indigo) and in particular, the factual similarities between the circumstances in Indigo and the circumstances leading to Council's application.
3. Council submits that relevantly, in Indigo:
   1. the Indigo Shire Council had issued a planning permit instead of a Notice of Decision to Grant a Planning Permit, in error, and it admitted that a mistake had been made (as it has in this case);
   2. there was no question that the objection filed by the objector was a valid objection under section 57 of the Act (as it is in this case, with regard to Mr Elvins' objection).
4. On that basis, the council considers the form of the declaration sought is appropriate.
5. It is also noted that the respondents to this proceeding have agreed to the form and substance of the declaration sought by the council.

1. The council has provided notice of its application in this proceeding to the applicant and respondents in proceeding P532/2025 (Mark Elvins, and Aaron & Lauren Kozio respectively). Both parties have filed statements of grounds are now respondents in this proceeding.
2. The council submits that no further notice of its application, to any other person, is required. This is consistent with the PNPE2 materials filed by the Council on 12 August 2025. The council particularly notes the response to question 8.8 (within PNPE2 Table 8) where the council has noted that there are no other persons whose interests may be affected by the declaration sought.
3. No other party made submissions about notice contrary to the council's submissions.

1. Given the agreement between the parties to this proceeding on the form and substance of the declaration sought by the council, the council submits that it would be appropriate for the Tribunal to determine this matter 'on the papers' or at this practice day hearing. The respondents also support this approach.
2. To assist the Tribunal in this regard, the parties have signed and filed a Proposed Minute of Consent giving effect to the making of the declaration prior to the Practice Day hearing.
3. The council submits that the material filed in support of the application for the declaration is complete, and, subject to the Tribunal's views, the council considers it is not necessary for the Tribunal to receive further evidence or submissions from the parties.
4. The council notes that a timely determination of the declaration on the papers may assist the parties in Proceeding P532/2025. A compulsory conference for that proceeding is set down for 30 September 2025 and the hearing is scheduled on 1 December 2025. The council submits that if it was possible for the Tribunal to issue a determination on the declaration sought before the compulsory conference, that may assist the parties in any agreement to resolve Proceeding P532/2025 at the compulsory conference.
5. At the practice day hearing, the other parties confirmed and indicated that they did not wish to make any submissions, but they have signed consent orders in support of council's application.
6. All the parties also indicated at the practice day hearing that they agree the main hearing (currently scheduled for 12 November 2025) should be vacated if I am minded to make the declaration and resolve this proceeding now.
7. In response to Tribunal questions, no party made submissions indicating that Mark Elvins is unable to lawfully raise his objections at the hearing on the merits in P532/2025, albeit that they may be contested. I was advised by the council this is not a situation where for example, Mark Elvins would be in the category of a person who was not entitled to notice or review under the relevant planning triggers of the planning scheme.

1. Based on the information available to the Tribunal, I consider it is appropriate to make the declaration sought. My reasons follow.

1. Mark Elvin made a valid objection under s 57 of the PE Act. However, due to human error, Mark Elvin's objection was not recorded in council's system.
2. The council admits that it should have issued a Notice of Decision to Grant a Planning Permit and not a planning permit in application P24/1950 in accordance with s 64 of the PE Act.

1. As I said in Indigo, the language in the relevant provisions is mandatory and the evident objective of the statute would be subverted unless they were accorded a mandatory construction.
2. Like in Indigo, the council was prohibited from issuing the planning permit in P24/1950 until after 28 days after the giving of the notice of decision in accordance with s 64 of the PE Act. Thus, I find that the council acted beyond power and a planning permit should not have been issued; it should be regarded as void from the beginning and has no force or effect.

1. Section 149B of the PE Act enables a person to apply to the Tribunal for a declaration concerning anything done by a responsible authority under the PE Act.
2. Whilst I will not repeat them here, Indigo refers to unchain St Kilda Inc v Port Phillip CC & Ors (includes Summary) (Red Dot)[2] and Portland Historic Restoration Committee Inc v Glenelg SC (Red Dot)[3] where the principles which should guide the exercise of the power to make a declaration as set out in Hill v Campaspe SC[4] were restated.

1. Taking all that in account, I am satisfied that the facts in this case favours the making of a declaration of invalidity of the planning permit P24/1950 because:
   1. an objector lodged a valid objection to planning permit application P24/1950 in accordance with s 57 of the PE Act;
   2. the council concedes it made a mistake in issuing the planning permit instead of a Notice of Decision to Grant a Planning Permit;
   3. there is no opposition to the application for a declaration by the permit applicants or the objector; in fact consent orders have been provided;
   4. there is clearly a dispute in existence as evidenced by the objector initiating an application for review in proceeding P532/2025;
   5. the issue is not purely hypothetical; to the contrary the issue is attached to facts that are of practical importance to the council, and the parties to the application for review proceeding which involve the permit applicants and the objector;
   6. the declaration will be of practice use because it will mean the compulsory conference scheduled for 30 September 2025 in P532/2025 can proceed and the hearing scheduled on 1 December 2025 is not displaced;
   7. there are no apparent discretionary considerations which stand against the making of a declaration that the planning permit P24/1950 is void. To the contrary, the discretionary factors point in favour of making the declaration; and
   8. the making of the declaration reinforces and gives confidence to the public in the statutory regime for planning in Victoria.
2. Overall, the PE Act mandates what is to occur when a valid objection is lodged against an application for a planning permit. I am satisfied that the statutory regime was not complied with and council acted beyond power in issuing planning permit P24/1950. There is utility in making the declaration sought by the council and the parties, and I consider it is appropriate to exercise my discretion to make the declaration in the circumstances.

[1] The submissions and evidence 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] [2009] VCAT 833.

[3] [2017] VCAT 519, 130.

[4] [2005] VCAT 1128 at [11].