Mr Daniel Croker and Ms Carmela Tornatore, town planners, of Darebin City Council.

1. This order follows on from the Tribunal's interim order dated 7 August 2025 arising from the practice day hearing held on 1 August 2025.
2. The Tribunal's interim order included the following Remarks:
   1. This application for enforcement order was lodged by Lambros Notis ('applicant') against Christina Louise Liberatore ('first respondent') and Nickolas Di Sisto ('second respondent') with respect to a bathroom window on their dwelling at 2A Hamilton Street, Alphington ('Land').
   2. The dwelling on the Land was constructed pursuant to planning permit D/965/2004 issued by the Darebin City Council ('Council') on 12 October 2006 ('Permit').
   3. Condition 1(k) of the Permit stated:

All first floor bathroom windows to be fixed and obscure [sic] to a height of 1.7m above the finished floor level.

1. For reasons explained at the practice day hearing, on 7 May 2025 the Council amended the Permit, resulting in D/965/2004/B ('Amended Permit') and did so without giving notice to the applicant. Through the Amended Permit, condition 1(k) of the Permit was amended to be as follows:

All first floor bathroom windows to be fixed and obscure [sic] to a height of 1.7m above the finished floor level. The requirement of this condition for first floor bathroom windows to be fixed does not apply to 2A Hamilton Street, Alphington, where the first floor bathroom window may be fitted with a window restrictor that opens outwards to 12.5 centimetres only from the bottom of the glazing.

1. At the practice day hearing, the Council stated that it understands the bathroom window is fitted with a window restrictor that opens outwards to 10 centimetres only from the bottom of the glazing. Accordingly, the Council is of the view that the bathroom window the subject of this application complies with the Amended Permit.
2. The purpose of this practice day hearing was:
   • To consider the matter raised in question 27 of the application for enforcement order form and whether that arises in this proceeding;
   • To identify the alleged contravention;
   • To consider the status of any person who has filed a statement of grounds in the proceeding;
   • To consider whether to grant the application for enforcement order, if no statement of grounds has been lodged with the Tribunal by 17 July 2025 objecting to the application; and
   • To give directions about the future conduct of the proceeding, including the appropriate venue and whether virtual hearings are suitable or preferred.
3. In accordance with the Tribunal's orders, the parties pre-filed submissions addressing the purposes of the practice day hearing. I also heard the parties' oral submissions provided on the day.
4. It appears that one of the applicant's key concerns was how the Amended Permit was processed and issued by the Council. As explained at the practice day hearing, if the applicant is concerned that the issue of the Amended Permit did not comply with the requirements of the Planning and Environment Act 1987 (Vic), that is something that the applicant will need to pursue outside of this particular application. That is, any alleged defects in the manner in which the Amended Permit was issued will not be determined through this application for enforcement order.
5. Amongst the submissions from the first respondent and the second respondent was:

(c) a request that this application for enforcement order be summarily dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'); and

(d) a request that the Tribunal grant leave for an order to be made under the Vexatious Proceedings Act 2014 (Vic) ('VP Act') for the issue of a limited litigation restraint order against the applicant.

1. With respect to the request for an order under the VP Act, I referred to the comments of Deputy President Bisucci in Notis v Darebin CC[2], being a case involving the same parties but a different alleged breach of the Permit. In that case, Deputy President Bisucci summarily dismissed the application for enforcement order that was before the Tribunal in that proceeding without consideration of any application under the VP Act. Deputy President Bisucci observed that if the respondents pursued their application under the VP Act this would have necessitated a further hearing, submissions from the parties and a decision from the Tribunal. This was in contrast to the Tribunal summarily dismissing that application for enforcement order under section 75 of the VCAT Act and the matter coming to an end at that point, which was considered to be the most expeditious manner of dealing with that particular proceeding.[3]
2. At the practice day hearing for the present proceeding, when the respondents stated that they wished to obtain a limited litigation restraint order against the applicant under the VP Act, I informed them that they may wish to obtain professional advice. I reiterate that suggestion now, noting that they might wish to obtain further information regarding the nature and scope of such an order, in the event that it was issued by the Tribunal.
3. In order to provide the respondents with that opportunity, I have delayed the making of my decision on the application for summary dismissal. Whilst not constituting a final decision in this matter, had the respondents not sought to pursue the application under the VP Act, based on the material that was before me as at the time of the practice day hearing, I was inclined to summarily dismiss this application for enforcement order. This would have been on the basis that the application was misconceived or lacking in substance, given that based on the material before me the bathroom window has been constructed in accordance with condition 1(k) of the Amended Permit and in circumstances where it appears a key concern of the applicant is the manner in which the Amended Permit was issued, which cannot be pursued in this type of application.
4. The way in which this application for enforcement order will proceed will vary depending on what the respondents elect to do in response to these orders.
5. In accordance with order 3 of these orders, the respondents are required to advise the Tribunal and all other parties in writing if they intend to proceed with an application under the VP Act and, if so, to provide the reference number of the separate application that they have lodged with the Tribunal under the VP Act.
6. If the respondents elect to proceed with an application under the VP Act, that application will need to be heard and determined before this application for enforcement order. The impact of that VP Act application on this application for enforcement order will depend on the orders made in that VP Act application.
7. If the respondents elect not to proceed with an application under the VP Act and confirm that they are seeking summary dismissal of this application for enforcement order, I will then determine that application for summary dismissal based on the material before me, which includes the oral submissions made at the practice day hearing.
8. In the meantime, as foreshadowed at the practice day hearing I have vacated the compulsory conference for the reasons given at the practice day hearing. At this stage, the final hearing remains listed.
9. The Tribunal's interim order required the first respondent and the second respondent to write to the Tribunal by 4.00pm on 25 August 2025 and either:

(a) confirm that they seek to proceed with an application under the Vexatious Proceedings Act 2014 (Vic) and if so, provide the reference number of the separate application that they have lodged with the Tribunal under the Vexatious Proceedings Act 2014 (Vic); or

(b) confirm that they do not seek to proceed with an application under the Vexatious Proceedings Act 2014 (Vic) and that they seek for the Tribunal to summarily dismiss VCAT Application P533/2025 pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

1. On 21 August 2025, the respondents emailed the Tribunal (copying the parties) stating that they did not wish to proceed with an application under the VP Act and that they seek the Tribunal to summarily dismiss VCAT Application P533/2025 pursuant to section 75 of the VCAT Act.
2. The respondents provided reasons for their election that were expressed to be in addition to those contained in their submissions to the Tribunal dated 16 July 2025.
3. To be clear, as the Tribunal's interim order did not provide leave to the respondents to make additional submissions, the additional 'reasons' provided in the respondents' email dated 21 August 2025 have not been taken into account in making the following decision.
4. Having regard to the pre-filed written submissions made by the parties prior to the practice day hearing held on 1 August 2025 and the oral submissions made at the practice day hearing held on 1 August 2025, in addition to the material on the file, I have determined to summarily dismiss VCAT Application P533/2025 pursuant to section 75 of the VCAT Act on the basis that it is misconceived or lacking in substance.
5. I find that the application for enforcement order is misconceived or lacking in substance because based on the material before me, the bathroom window has been constructed in accordance with condition 1(k) of the Amended Permit such that there is no breach of the Amended Permit.
6. Further, the application for enforcement order is pursued by the applicant in circumstances where it appears a key concern of the applicant is the manner in which the Amended Permit was issued, which cannot be pursued in this type of application.
7. In short, on the facts before me, there is no breach of the Amended Permit that can be addressed through the making of an enforcement order.
8. In addition, the enforcement order sought in Item 23 of the application for enforcement order form seeks an enforcement order be made to ensure compliance with the Permit. In circumstances where the Permit is no longer the current version of the permission, it is inappropriate for the Tribunal to require compliance with a superseded permission.
9. For the foregoing reasons, VCAT Application P533/2025 is summarily dismissed, meaning that the hearing scheduled for 2 December 2025 is vacated and this proceeding is at an end.

[1] The submissions 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] [2023] VCAT 1211.