1. In relation to the enforcement application by the Responsible Authority (P360/2012 ), I find that the land at 7 Newry Street Richmond was developed in contravention of condition 1(a) of the Planning Permit PL/09/0954 in that the removal of the south, east and west walls was not in accordance with the plans endorsed under the permit and I order, pursuant to section 119B of the Planning and Environment Act 1987 that the walls, which planning permit PL/09/0954 were required to be retained be reinstated to the satisfaction of the Responsible Authority to as near as practicable to the condition prior to such demolition (excluding the reinstatement of any structural defects that may have existed prior to such demolition) using the same bricks that formed part of the original walls, such reinstatement to be achieved on or before 6 August 2012.
2. I order by consent pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 that the respondent companies (to the enforcement application) pay to the Responsible Authority its costs of the application fixed at $5,000 subject to a stay of 7 days.
3. In relation to request proceeding P641/2012, the requester companies Newry Pty Ltd and Kubic Pty Ltd are granted leave to withdraw that request proceeding and it is withdrawn pursuant to such leave.
4. Request proceeding P804/2012 is dismissed.

Mr Adrian Finanzio, Barrister, appeared on the instructions of Best Hooper, Solicitors for Newry Street Pty Ltd and Kubic Pty Ltd.

Mr Justin Foster, Barrister, appeared on the instructions of Maddocks, Solicitors for the Responsible Authority.

Ms Mary-Anne Johnson appeared in person for herself and for Bruce Johnson.

Mr Peter Barber, Town Planner of Urban Edge Consultants Pty Ltd appeared for Martin Rosenburg, Marlene Sharp, Graeme Dickenson and Karen Dickenson.

Each party or representative who appeared made oral submissions and Mr Barber presented a written submission.

Ms Johnson and Mr Williams did not remain through the whole hearing.

P360/2012: Application under section 114 of the Planning and Environment Act 1987 (the Act).

P641/2012: Request under section 87(a) of the Act for amendment of a permit.

P804/2012: Request under section 87 of the Act for cancellation of a permit.

P360/2012: Demolition of existing walls contrary to condition 1 and or condition 2 of the Planning Permit PL09/0954 issued by the Responsible Authority on 3 March 2011 at the direction of this Tribunal in its determination of The Crema Group Pty Ltd and others v Yarra CC [2011] VCAT 199.

P641/2012 - proposed amendment to condition 1(a) of the said permit.

Residential 1 Zone and subject to a Design and Development Overlay Schedule 5 under the Yarra Planning Scheme.

Rectangle land on the north east corner of the intersection of Newry Street with Glass Street having a frontage of 24.69 metres to the north side of Newry Street, the side abutment of 28.04 metres to the east side of Glass Street and an area of 692 square metres.

Lot 1 on Title Plan 120712F being the land in Certificate of Title Volume 09895 Folio 349.

1. The three proceedings discussed in the course of the hearing on 22 March 2012 concern a proposal for the development of land known as 7 Newry Street, Richmond. A planning permit exists for the proposed development. The Planning Permit PPL09/0954 was issued by the Responsible Authority on 3 March 2011 at the direction of this Tribunal in its determination of The Crema Group Pty Ltd v Yarra CC[1]. The permit grants permission for:

Buildings and works to develop land for a four-storey residential development for up to twenty four dwellings (apartments) and a reduction in car parking required under clause 52.06 generally in accordance with endorsed plans.

1. At the time the case was heard there was a factory building on the land which, I'm informed, was constructed approximately 90 years ago. The permit application that gave rise to that case contemplated the retention of some brick walls of the then existing factory building or their demolition and reconstruction to serve as part of the contemplated new building.
2. The first proceeding before me is an application by the Responsible Authority for an enforcement order. It initially sought an enforcement order, indeed and interim enforcement order, because it was dissatisfied with works that were proceeding pursuant to the permit. These works involved the demolition or partial demolition of those walls. The walls have subsequently been demolished. The evidence indicates that the bricks have been retained for re-use.
3. The parties to the enforcement proceeding are the Responsible Authority and the respondent companies, Newry Street Pty Ltd and Kubic Pty Ltd.
4. The Responsible Authority now seeks an enforcement order requiring the reconstruction of the demolished walls to their condition, as rear as practicable, prior to demolition. I should say that part of the reason given for the demolition is alleged structural defects in the wall such as cracks and insufficient footings. The Responsible Authority seeks restoration, but not of course, the inclusion of structural defects.
5. The companies, at least for the purposes of this proceeding, admit there were contraventions. I can add that it appears to me, prima facie, that there has been such a contravention. Nevertheless the companies seek to reserve some argument, which may be a technical argument for the purpose of possible other proceedings whereby they deny a contravention.
6. Before me a contravention is admitted and the parties to the enforcement proceeding consent to the making of an enforcement order requiring restoration, as near as practicable, to the original condition of those walls and also for an order for costs.
7. Throughout the course of the hearing, there was some discussion as to the most appropriate final form of such orders. I will make such orders, framing them in the light of such discussions.
8. The second proceeding before me is the request by the companies for amendment of the permit. The request is made under section 87A of the Planning and Environment Act 1987 (PE Act).
9. It is quite a limited amendment application. It seeks to reword paragraph (a) of condition 1 of the permit. Condition 1 requires the submission for approval and endorsement of modified plans. The various paragraphs of condition 1, including paragraph (a), specify alterations required to the plans that were before the Tribunal in the previous case before such plans were to be approved and endorsed by the Responsible Authority. The modification sought to paragraph (a), in effect, provides for the restoration of the demolished walls as contemplated by the Responsible Authority in its enforcement order application, and as contemplated in the consent orders in relation to that proceeding.
10. Mr Finanzio, the barrister appearing for the companies, claimed this request was made as a precaution rather than because the companies considered such an amendment to be necessary.
11. Prior to the hearing before me there had been a directions hearing in relation to the first two of the cases that I have now heard. That directions hearing was conducted by another member of the Tribunal. As a result of the directions hearing orders were given that notice of the section 87A request proceedings should be given to objectors who were parties to the original Tribunal case whereby the permit was granted. No doubt that was to ensure that such parties were aware of and were afforded an opportunity to be heard in relation to the proposal in the section 87A request to amend the permit.
12. Shortly prior the hearing before me, the companies, no doubt guided by their legal advisors, concluded that the amendment contemplated in section 87A request is unnecessary. It was decided to seek leave to withdraw that proceeding. Notice of an intention to seek such leave was given to the other parties to the section 87A proceeding, including such objectors to the original Tribunal case as had indicated a wish to be heard.
13. Before me an application was made for leave to withdraw the section 87A request. The parties were heard in relation to that application for leave. Having heard them I concluded that there was no reason why such leave should not be given and I ultimately announced that it would be granted. In this connection I note that some of the objectors were intending to, in effect, reopen the original decision of the Tribunal to grant the permit. They wanted to reargue various issues that had been raised at that original hearing including questions as to the number of storeys, street setbacks and such matters. Those considerations go far beyond the limited scope of the request made by the companies under section 87A. Withdrawal of that request really eliminated the opportunity to make such wider submissions although I also indicated that I would not have permitted argument or submissions on such wider matters, amounted to something like a rehearing of the original appeal. The scope would be limited to the request actually made.
14. The third proceeding before me is the request made by the clients of Mr Barber under section 87 PE Act. That request seeks cancellation of the permit. I regard such a request as being made under section 87 although standing of these objectors to make such a request is only gained by section 89 PE Act. By "standing" I mean the power or legal right to bring a proceeding. Without such "standing" a party cannot bring or maintain a proceeding.
15. In these circumstances, those objectors to the original case have to satisfy the requirements of both section 87 and 89 PE Act. Accordingly, they are subject to section 89(3). That section provides:

(3) The Tribunal may refuse to consider a request under this section or section 87 unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the fact relied upon in support of the request.

1. It is common ground, and admitted in writing on behalf of these requesters (the objectors in the original case) that this section 87 request was not made as soon as practicable after they had notice of the facts relied upon. Quite apart from the admission to that effect, I would have concluded this on the basis of the evidence submitted to me at the hearing.
2. In these circumstances these requestors do not have a "right" to have the Tribunal consider their request. The Tribunal may do so, notwithstanding that the request was not made as soon as practicable. There have been cases where the Tribunal has proceeded to consider a request where it has considered that to be desirable, but otherwise the Tribunal will not consider the request and it must fail accordingly.
3. This section 87 request was made and lodged with the Tribunal more or less at the last minute. I became aware of it late in the afternoon on the day before the hearing. The other parties, and in particular the companies, did not have proper time to consider and prepare, just as the Tribunal did not have time to process or carry out administrative steps in relation to the case beyond registering it and creating a Tribunal file and number.
4. Nevertheless, all parties wished this case, together with the other two, to be determined at the hearing on 22 March 2012, if that was possible.
5. After discussing how these matters might proceed, I determined that I would hear the requesters on the question of whether I should consider their request, notwithstanding their failure to make it as soon as practicable after they had notice of the facts relied upon. Hearing them on this basis enabled their representative to put forward the evidence and submissions they would advance in support of their request, including its merits, and indicating the nature thereof. It enabled me to consider whether I would be warranted in exercising my discretion to consider the request notwithstanding the failure to make it within time.
6. There might potentially be various reasons why such a discretion might be exercised in such a way, but account can be taken of the merits of the proposed cancellation and whether a request for such cancellation has reasonable prospect of success.
7. In the event I determined that I would not exercise the discretion in favour of further considering the request beyond the consideration involved in determining whether the discretion should be exercised. I came to that conclusion after having heard the representatives of those requesters and also the representatives of the companies and the Responsible Authority. I gave oral reasons in the course of the hearing for my decision on that point, namely why I would not exercise the discretion in favour of the requesters. I rely on what I said orally as to reasons. Accordingly, their request is effectively barred by section 89(3) and must fail.

Bruce Johnsen, Mary-Anne Johnsen, Martin Rosenburg, Marlene Sharp, Graeme Dickenson, Karen Dickenson and Michael Williams

Martin Rosenburg, Marlene Sharp, Graeme Dickenson and Karen Dickenson

[1] [2011] VCAT 1919