If there is any change to these details, the Tribunal will notify you.

9, 10 & 11 September 2025

10:00am - 4:30pm

VCAT Melbourne, 55 King Street, MELBOURNE VIC 3000

Details of the location of the hearing will be published on the Tribunal's website, under 'Upcoming Hearings' on the afternoon of the day prior to the hearing - www.vcat.vic.gov.au/upcoming-hearings

1. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

1. The applicant must file an agreed statement of facts by 4pm on 25 July 2025.

1. The applicant must file agreed questions of law by 4pm on 2 August 2025.

1. By not later than 4pm on 13 August 2025, the applicant must file with the Tribunal and serve on all other parties a copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or a lay witness, on which the applicant intends to rely at the hearing not yet filed and served.
2. By not later than 4pm on 20 August 2025, the respondent and responsible authority must file with the Tribunal and serve on all other parties a copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or a lay witness, on which they intend to rely at the hearing not yet filed and served.

The copy for the Tribunal must be sent to admin@courts.vic.gov.au

All expert evidence must be provided in accordance with the Tribunal's Practice Note PNVCAT2 Expert Evidence.

1. No later than 4pm on 27 August 2025, the applicant must provide an electronic copy of their submissions and associated material (such as supporting documentation, case law and photographs) to the Tribunal and all parties.
2. No later than 4pm on 3 September 2025, the responsible authority and the respondent must provide an electronic copy of their submissions and associated material (such as supporting documentation, case law and photographs) to the Tribunal and all parties.

The copy for the Tribunal must be sent to admin@courts.vic.gov.au

1. No later than 4pm on 3 September 2025, the applicant must provide an electronic copy of a Tribunal Book to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@courts.vic.gov.au

Information on the content and format requirements of the Tribunal Book is available at www.vcat.vic.gov.au

1. Any request for procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.

Matthew Townsend of Counsel instructed by S&K Planning Lawyers

1. Homestead Park Association Inc ('Homestead') has requested the Tribunal to cancel permit P967/2022 ('permit').
2. The Banyule City Council ('Council') issued the permit under the Banyule Planning Scheme ('planning scheme') on 8 December 2022.
3. The permit authorised the variation of restrictive covenant 939046 ('covenant') that burdened the title to the land at 25 Glenard Drive, Eaglemont ('subject land').
4. The authorised variation was to remove that part of the covenant that there may not be erected or suffered to be on the said land more than one building roofed with tiles or slate.
5. On 30 June 2023, the Registrar of Titles registered a plan of variation of restriction AW999658D giving effect to the permit and varying the covenant.
6. Mr Klages and Ms Currie ('respondent') own the subject land and in October 2023 lodged an application with the Council for permission under the planning scheme to develop the subject land with two dwellings. The Council refused permission and the respondent has applied to the Tribunal to review that decision. The Tribunal has not yet heard that application for review.
7. On 1 April 2025, Homestead lodged the application requesting the cancellation of the permit.
8. The grounds on which Homestead relies are material mis-statement of fact,[1] material mistake in relation the grant of the permit[2] and failure to give notice to owners and occupiers of land benefited by the covenant.[3]
9. By orders of the Tribunal dated 8 April 2025, the application was listed for a practice day hearing on 16 May 2025 and for a Fast Track Case hearing for one day on 8 July 2025. The Tribunal specified a lengthy list of purposes of the practice day hearing.[4]

1. Three of the listed purposes of the practice day hearing were:

• whether it is seeking cancellation of the planning permit P967/2022 in its own right; or
• whether it has authority to represent all or certain beneficiaries of the covenant being owners in the Glenard Estate, Eaglemont and if so, to provide evidence of such authority

To consider whether the applicant has standing to bring this application having regard to the requirements of section 89(1) of the Planning and Environment Act 1987 (Vic)

To consider the application submitted to the Tribunal on 5 May 2025 by the applicant requesting joinder of Diane Kraal, Charles Craig and Francesca Calati pursuant to s 60(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to the proceedings

1. Homestead now seeks cancellation of the permit jointly with Diane Kraal, Charles Craig and Francesca Calati that it said are owners or occupiers of land benefited by the covenant. Authorities to represent these persons were filed before the practice day hearing.
2. At the practice day hearing, Homestead applied to also join the partners of those three persons as joint applicants who it said were also owners or occupiers of land benefited by the covenant.
3. Homestead filed material that was prima facie evidence that the land the six persons owned or occupied benefited from the covenant.
4. The land owned by Francesca Calati and Enzo Calati benefited from the covenant not by later transfer than the transfer of the respondent's land from the relevant subdivision, but on the basis that the covenant burdening their land was part of a building scheme.
5. Whether the covenant is, as a matter of law, part of a building scheme, may be a question for later resolution by the Tribunal if the respondent or the responsible authority seek to challenge the standing of Francesca Calati and Enzo Calati as joint applicants.
6. The respondent did not oppose the joining of the six persons as joint applicants. The responsible authority hesitated to support joinder for the reasons set out in paragraphs 14 to 17 of its written submissions.
7. I decided to join each of the six persons as joint applicants. They adopted Homestead's statement of grounds and the relief it sought. As they were represented by senior counsel at the practice day hearing, I can presume they are aware of the consequences of joinder, which was one of the responsible authority's concerns.
8. I am not satisfied Homestead is a proper applicant. It says it is a representative body of owners of land in the Glenard Estate ('Estate') and is an agent for the six owners or occupiers. In this proceeding, an agent should not be an applicant. Homestead cannot overcome the threshold test for standing that it was entitled to object to the issue of the permit as an owner or occupier of land benefited by the covenant.[5] I will therefore remove Homestead as a party.
9. The proceeding will therefore continue with the six persons as joint applicants.
10. Consistent with Homestead's submission that it is an agent for the joint applicants, I will direct Homestead to be the joint applicants' representative. If the joint applicants wish to nominate another person as their representative, such as a legal practitioner, I will direct a nomination without delay.
11. I discern that the joint applicants intend to continue with Homestead's grounds as set out in its statement of grounds dated 31 March 2025. Those grounds require editorial amendment to reflect the removal of Homestead as a party. I will direct the filing of amended grounds.

1. Another listed purpose of the practice day hearing was:
   • For the applicant to substantiate its claim that the Executive Director of Heritage Victoria is a party to the proceeding as a referral authority under the Banyule Planning Scheme for permit application P967/2022.
2. Homestead relies on its claims in paragraphs 20 to 23 of its statement of grounds.
3. A copy of Homestead's request has been given to the Executive Director. To date, the Tribunal has not received a statement of grounds from the Executive Director confirming an intention to participate in the proceeding.
4. Homestead has not persuaded me that the Executive Director is a referral authority under the planning scheme. Homestead's reliance on clause 15.03-1S of the planning scheme is misplaced. I will remove the Executive Director as a referral authority. If the Executive Director wishes to participate in the proceeding in some other capacity, that is a matter for the Executive Director.

1. Another listed purpose of the practice day hearing was:
   • For the applicant to clarify the following grounds relied upon in its request to cancel planning permit P967/2022 pursuant to ss 87(1)(a), (1)(c) and 1(e) of the PE Act
2. It suffices to record that the joint applicants rely on those grounds. These are the same grounds relevant to persons in the position of the joint applicants that I have referred to in paragraph 3 of these reasons. Those grounds were repeated and expanded upon in paragraph 7 of Homestead's written submissions filed for the practice day hearing.

1. Another listed purpose of the practice day hearing was:
   • To consider whether any other persons (including all the beneficiaries of the covenant) should be given notice of these proceedings
2. Homestead says it represents all owners of the Estate.
3. It would be premature to require notice to other persons because whether those persons were entitled to notice depends on:

(a) the proper interpretation of the covenant; and

(b) whether 'the land has been used or developed for more than 2 years before the date of the application in a manner which would have been lawful under the Act but for the existence of the restriction'.[6]

1. Those matters are central to the applicant's case that will need to be determined by the Tribunal if the request proceeds to hearing.

1. Another listed purpose of the practice day hearing was:
   • To consider whether the request for cancellation has been made 'as soon as practicable' after the applicant had notice of the facts relied upon in support of the request, given the requirements of section 89(3) of the PE Act.
2. Homestead relies on the claims set out in paragraphs 11 and 12 of its statement of grounds.
3. It says it only became aware of the existence of the permit at a consultation meeting between representatives of the Council and five Estate residents on 30 August 2024 to discuss the respondent's application for permission to construct two dwellings on the land. It said this led to freedom of information requests for documents relating to the permit and those documents being released on 15 November 2024 to the requester and copies given to Homestead.
4. Based on the information available to me at the practice day hearing, I would not refuse to consider the request because of satisfaction that it was not made as soon as practicable after Homestead (or, now, the six persons joined as joint applicants) had notice of the facts relied upon in support of the request.
5. This does not mean the Tribunal at a hearing of the request may not need to finally determine this question.

1. Another listed purpose of the practice day hearing was:
   • To consider whether the second remedy sought by the applicant with respect to 'consequential effects' upon any cancellation of planning permit P967/2022 is within the Tribunal's jurisdiction in this proceeding
2. Homestead sought relief in the form not only of cancellation of the permit but also in the form of an order that the Registrar of Titles amend the register to give effect to the cancellation and to reinstate the covenant.
3. Homestead now claims in paragraph 8 of its written submissions that the Tribunal in this proceeding has jurisdiction to order amendment of the register under section 103(1AA) of the Transfer of Land Act 1958 (Vic).
4. The respondents and the responsible authority claim that the Tribunal does not have jurisdiction to order the amendment of the register to re-instate the covenant having regard to the Tribunal's decision in Ingram v McLennan & Associates Pty Ltd.[7] Homestead submits that decision can be distinguished.
5. Whether the Tribunal has the relevant power may be a matter for argument and determination as part of any final hearing.

1. Another of the purposes was:
   • To consider whether the proceeding should be struck out or dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) as misconceived or lacking in substance
2. The responsible authority and the respondents applied for dismissal of the whole of the proceeding.
3. Both claim a covenant variation 'relates to ...development of land' for the purposes of section 88 of the PE Act. Consequently, the Tribunal cannot cancel a permit if the development is 'substantially carried out'.[8]
4. They submit that registration of the covenant variation meets that description. In a related claim, they say the permit is 'spent' and cannot be cancelled.
5. They both claim Supreme Court authority for these propositions in Skabal Pty Ltd v Boroondara City Council.[9]
6. In support of its claims, they also referred to the futility of cancellation if the Tribunal in this proceeding does not have jurisdiction to order amendment of the register to re-instate the covenant.
7. Homestead resists these claims on the three bases. First, they submit that Skabal can be distinguished on its facts and on the outcome of an appeal from that decision to the Court of Appeal. Second, they submit that section 88(c) of the PE Act also applies and this does not include the limits in section 88(b). Third, they contest that the Tribunal does not have jurisdiction to order amendment of the register.
8. The parties drew my attention to many authorities concerning the effect of section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
9. In short, it suffices to state dismissal of the proceeding is a high bar and I am unable to conclude the proceeding is so devoid of merit as to be hopeless such that dismissal is warranted.

1. Other purposes were:
   • To consider whether a preliminary hearing is instead required, and, if so, to articulate the purposes of any preliminary hearing and to provide for a timetable, including to allow the parties to articulate any question(s) of law to be determined.
   • To consider whether a second practice hearing or preliminary hearing is required to consider the original purposes of the practice day hearing contained in Tribunal Order 7 dated 8 April 2025.
   • To consider the future conduct of the proceeding, including whether the proceeding is suitable for the Fast Track List.
2. The proceeding is listed for a 'Fast Track' hearing on 8 July 2025 for one day.
3. The parties are unable to agree as to whether a preliminary hearing is required, particularly to determine questions of law.
4. In my opinion, the more efficient conduct is to not fix a preliminary hearing but to include all disputed questions of fact and law to be determined at a final hearing.
5. The parties did not apply for a second practice day hearing. I will not fix a further practice day hearing. The parties may apply if they consider the need for one subsequently arises.
6. The parties agree that a hearing with a duration of two days, but more likely three days, is required.
7. The hearing on 8 July 2025 will need to be vacated and the proceeding removed from the Fast Track List. I will schedule a hearing of three days and include procedural orders for staggered exchange of evidence and submissions.

Information for all parties is available at the Tribunal's website www.vcat.vic.gov.au

For information about what happens after you make your application, visit

www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

To find out about the Tribunal's support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

[1] Planning and Environment Act 1987 (Vic) ('PE Act') s 89(1)(b)(i).

[4] The purposes have sometimes been edited in these reasons for brevity.

[7] [2014] VCAT 133 [27]-[33].

[9] [2020] VSC 532.