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

Scott Edwards, lawyer, Planning and Property Partners

1. The practice day was called to consider whether the application under section 149(1)(a) of the Planning and Environment Act 1987 (Vic.) ('PE Act') to consider an application to approve changes to plans endorsed under Permit PP24/0194 should be struck out under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').
2. The basis of the request by the Council was:

The amendment application results in a reduction to the first floor southern boundary setback of 200mm from 3600mm to 3400mm. In Council's view, notice of the amendment is required under section 52(1)[1] of the _Planning and Environment Act 1987 (_Vic.). Therefore the Application for Review is misconceived and ought to be struck out pursuant to section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic.).

1. Section 75(1) of the VCAT Act allows a proceeding to be struck out where the relevant circumstances can be made out, specifically:

At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

1. A number of Tribunal decisions have considered the operation of this section in the context of applications under the PE Act. The applicant relied upon Axicom Pty Ltd v Melton CC[2]

• the proceeding must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail.
• the power to order summary dismissal should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Indeed, it must be 'very clear' that the proceeding is 'absolutely hopeless'.
• the power should not be invoked where all that is shown is that, on the material currently before VCAT, the applicant may fail to adduce evidence substantiating an essential element of the complaint.
• a proceeding should not be summarily dismissed if the ultimate fate of the proceeding depends upon disputed questions of fact that could be established by evidence yet to be adduced or tested.

1. The Council's application to strike out the proceeding traversed two matters although it was expressed as one issue. The Council says:

1. the application to amend the plans ought to have been made under section 72 of the PE Act because the Council considers that the application ought to have been advertised under section 52(1) of the PE Act because the southern neighbour will or may suffer material detriment; and/or

1. The application will cause detriment to the southern neighbour and is of such a magnitude that it does not meet the third Westpoint criteria.[3]
2. As to the first argument, the application was made, accepted, and the relevant fee paid and there is no dispute that the time has passed such that the applicant for review is entitled to make an application to the Tribunal for review of the Council's failure to make a decision.
3. The most relevant correspondence is reproduced in the submissions made by the applicant to the practice day. The Council officer wrote on 4 December 2025 saying, in part, as set out in the applicant's submission:

1. On 16 December 2025 it wrote saying, in part, as set out in the applicant's submission:

1. While this correspondence urges the applicant to make a different application, this does not mean that the application for secondary consent does not remain a valid application. There is no attempt to impugn it on any other ground and no application to declare the application itself invalid.
2. It follows that the application remains valid and must be considered by the Tribunal.
3. The Council has expressed the view that it would or may prefer the applicant to make a different application which would or may attract the need for advertising. I do not consider this a sufficient basis to strike out this application. The application the subject of this proceeding does not attract third party notice requirements, and I do not consider the Council's expressed preference for a different application to be made to be a sufficient basis to strike out this application. I do not consider it to be misconceived.
4. The second element of the Council's submission as I have understood it is that it would fail the third limb of the test expressed in Westpoint Corporation Pty Ltd v Moreland CC[4] as the proposed change is not 'of no consequence having regard to the purpose of the planning control under which the permit was granted'. The applicant disputes this proposition, in part on the basis of the views formed by the Council's heritage expert. It also contends that this is not the correct formulation of the test for consideration by the Tribunal.
5. I do not consider that the applicant's arguments are so lacking in substance as to require the application to be stuck out. I have not formed a view on what the outcome of the application should be but I have not been persuaded that the Council has presented an argument which meets the necessary threshold for the application to be struck out under section 75(1) of the VCAT Act.
6. It will be a matter for the Tribunal which hears the merits of the matter to determine whether the application should fail or succeed. Both parties say they are ready to have the matter considered on the day on which it is listed to be heard. Neither party will call evidence but both wish to address the physical context of the matter, relevant cases and considerations in some detail.
7. I have confirmed the date for the hearing of this matter.
8. Both parties are required to pre-file submissions in this matter five business days prior to the hearing on 2 March 2026. The Council must set out clearly in its submissions its position on this application; whether it opposes the proposed amendment and on what basis it supports or opposes it, so that both the applicant and the Tribunal are able to understand the Council's case and to fully prepare for the hearing of this matter.

[1] As corrected in the Council's submissions.

[2] (Red Dot) [2020] VCAT 190, [9], which in turn relied upon Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1683.

1. [3] Which derives from the Tribunal's decision in Westpoint Corporation Pty Ltd v Moreland CC (Red Dot) [2005] VCAT 1049 at [38] and refers to a requested change being of '...of no consequence having regard to the purpose of the planning control under which the permit was granted'. This has been the subject of significant commentary in cases including Oz Property Group (Flemington) Pty Ltd v Moonee Valley CC (Red Dot) [2014] VCAT 397.

[4] (Red Dot) [2005] VCAT 1049 at [38].