1. The hearing scheduled at 10:00am on 3 & 4 July 2025 is vacated. No attendance is required.

1. Ms Palliser has filed a request with the Tribunal to cancel planning permit P345/1997 ('permit') issued by Banyule City Council ('Council') under the Banyule Planning Scheme ('planning scheme').
2. The permit allowed the construction of a 'dual occupancy' (ie two dwellings) on land then known as 27 James Street, Heidelberg Heights.
3. Ms Palliser occupies a dwelling on adjoining land at unit 1, 29 James Street.
4. A request to cancel a permit by a person in the position of Ms Palliser is often legally and factually complex and highly contested. This is unsurprising because the cancellation of a permit is a serious matter, with serious consequences if the permit is cancelled.
5. Whether Ms Palliser's request should proceed to a hearing was the subject of this practice day hearing.
6. After considering the written submissions and oral arguments of the parties at the practice day hearing, I have decided that Ms Palliser's request has no prospects of success and must be dismissed.

1. The relevant facts in this proceeding may be summarised as follows.
2. The permit allowed 'a dual occupancy in accordance with the attached endorsed plans' at what was then described as 27 James Street.
3. The plans endorsed by the Council on the date of issue showed, in essence, a new dwelling in the rear of that land and the retention of the existing dwelling, with some modifications, at the front of the land. In other words, what was allowed was a new dwelling in the backyard of an existing dwelling. This is a not uncommon development in suburban Melbourne.
4. Ms Palliser did not lodge an objection to the grant of the permit before it was issued in 1997.
5. Condition 1 of the permit provided:

The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.

1. This gave the Council an ability to grant what is commonly described as a 'secondary consent' to endorse altered or modified endorsed plans.
2. Condition 8 of the permit provided:

This permit will expire if one of the following circumstances applies:

• The development is not commenced within two years of the date of this permit.
• The development is not completed within two years of the date of commencement.

The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.

1. This condition required construction to start by 23 March 1997 and be completed by 23 March 2001.
2. On 17 December 1997, the Council issued a permit that allowed the subdivision of that land into two lots to create a new lot for each dwelling. This subdivision was finalised when it was registered on 11 May 2000.
3. The front lot (lot 1) and the rear lot (lot 2) were then known by the addresses of 27 and 27A James Street, respectively.
4. This proceeding concerns lot 1 ie what is now known as 27 James Street ('subject land').
5. The plan of subdivision contains a restriction that burdens lot 2 and requires that lot 2 must be developed in accordance with the permit ('restriction'). Lot 1 has the benefit of the restriction.
6. The subject land has an area of 381 sqm.
7. When the permit issued, 29 James Street was an unsubdivided lot containing one dwelling. Later, in 2013, 29 James Street was subdivided to create four lots.
8. In 2022, Ms Palliser became the owner of one of the four lots, now known as unit 1, 29 James Street.
9. On 25 July 2023, Kylie Adeniyi and Adeyemi Adeniyi ('Adeniyis'), as the owners of the subject land, applied to the Council for a permit to construct a replacement dwelling on the subject land.
10. At that time, the subject land and Ms Palliser's land were both in a General Residential Zone ('GRZ') under the planning scheme.
11. On 22 September 2023, the planning scheme was amended (by Amendment VC243) the effect to which was to remove the need for a permit to construct one dwelling on a lot with an area between 300 sqm and 500 sqm in GRZ.
12. Before and after this date, it was also a fact that no permit was required under the planning scheme to demolish the existing dwelling on the subject land.
13. On 2 January 2024, the Council granted secondary consent for a replacement dwelling to be constructed on the subject land by endorsing amended plans under condition 1 of the permit ('first secondary consent').
14. On 23 September 2024, the Council granted secondary consent for the replacement dwelling on the subject land by endorsing further amended plans under condition 1 of the permit ('second secondary consent').
15. On 3 March 2025, Ms Palliser filed her request to cancel the permit.
16. On 6 March 2025, the Council issued a report and consent under the Building Act 1993 (Vic) ('Building Act') in respect of certain aspects of the replacement dwelling.
17. On 15 April 2025, a building surveyor issued a building permit under the Building Act to construct the replacement dwelling on the subject land.
18. On 2 May 2025, a building surveyor issued a building permit under the Building Act for the demolition of existing dwelling on the subject land.
19. Based on submissions by the Adeniyis (and not contradicted by the Council or Ms Palliser) the demolition is largely complete and construction of the replacement dwelling will soon start.

1. Ms Palliser's request is to cancel the permit and the second secondary consent.
2. Ms Palliser attached a 10-page document to her request. Ms Palliser is not legally trained and the document reveals a lack of familiarity with planning law. Her stated grounds are difficult to understand but I discern they are:
   1. Failure to give her notice of the application for permit.[1]
   2. Adverse affect by material mis-statement, failure to comply with permit conditions, and material mistake.[2]
   3. Failure to give her notice of the second secondary consent.
   4. Breach of the restriction in the grant of the secondary consent.[3]
   5. Failure to comply with requirements of clause 54 of the planning scheme in the grant of the secondary consent.
   6. Breach of the conflict of interest requirements in section 61A of the PE Act in the grant of the secondary consent.
3. In a subsequent one-page better and further particulars and subsequent four-page correspondence to the Adeniyis, Ms Palliser added the following grounds:
   1. The second secondary consent is invalid because the permit has expired, particularly having regard to recent amendments to section 68 of the PE Act.
   2. The material mistake made in relation to the grant of the second secondary consent was to authorise a large dwelling on the smaller lot 1 that the permit authorised for the larger lot 2.
   3. Adverse possession.
4. Ms Palliser did not seek a stop development order in the request.

1. The purposes of the practice day hearing were:[4]

For the applicant to clarify whether she seeks the cancellation of the permit or to contest the second secondary consent.

To consider whether, in this proceeding, the Tribunal has the power to:

• cancel the permit given the limits specified in s 88 of the PE Act; or alternatively
• review the grant of the second secondary consent.

To consider whether the matter should be struck out or dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) on the grounds that it is misconceived or lacking in substance, having regard to the requirements of section 89(1) of the PE Act.

If the applicant seeks cancellation of the permit, for the applicant to clarify:

• whether she objected, or would have been entitled to object, to the issue of the permit, and therefore has standing under section 89(1) of the PE Act;
• which grounds are relied upon under sections 89(1)(a), 89(1)(b)(i), 89(1)(b)(ii) and 89(1)(b)(iii) of the PE Act and the bases for those grounds.

If the applicant seeks cancellation of the permit, 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 s 89(3) of the PE Act.

For the applicant to clarify the subject land in this proceeding.

For the applicant to clarify the relevance of any restrictive covenant affecting the title of the subject land in this proceeding;

For the applicant to clarify the relevance of providing an unsigned contract of sale and vendor statement document with respect to the land.

For the applicant to clarify the relevance of any allegations of conflict of interest of a council officer with respect to the grant of the permit or the second secondary consent.

To consider the future conduct of the proceeding, including whether a preliminary hearing or required and / or a timetable for the filing of evidence and submissions.

1. The parties filed written submissions about these purposes before the practice day hearing and made oral submissions at the hearing.

1. The focus of Ms Palliser's request is the grant of the second secondary consent.
2. A request to cancel the permit is not the correct vehicle to challenge the grant of the second secondary consent.[5]
3. Ms Palliser was not entitled to receive notice of the secondary consent because the notice requirements in section 52 of the PE Act do not apply to a secondary consent.
4. Ms Palliser has failed to understand that the grant of a secondary consent is not the grant of a permit.
5. Ms Palliser fails at the first hurdle to cancel the permit because she does not have standing to make the request. In other words, the law does not allow her request cancellation.
6. To be able to file a request, Ms Palliser must have objected or be entitled to object to the issue of the permit.[6]
7. Ms Palliser neither objected to the issue of permit nor was entitled to object to the permit.
8. I agree with the Tribunal's reasoning in cases such as Paull v Melbourne CC[7] that, to be entitled to object, a person must have owned land entitled to notice of a permit application under section 52 of the PE Act at the time of the application, in this case in 1997.
9. While 29 James Street adjoins the land in the permit application (ie the original 27 James Street), Ms Palliser was not an owner of any part of 29 James Street because the subdivision of 29 James did not take place until at least 2013 and Ms James did not become the owner of that part until 2022.
10. As no notice must be given of a secondary consent request, the PE Act does not provide for third party review of a secondary consent. The PE Act only provides for review of a secondary consent decision by the 'owner, user or developer' of the land directly affected by the secondary consent.[8]
11. The more appropriate vehicle to challenge the grant of a secondary consent is an application for declaration under section 149B of the PE Act.
12. If a person makes the wrong application or a person does not have standing to make an application, the application has no merit because it cannot succeed. No evidence that Ms Palliser could adduce at a hearing can overcome this difficulty. It is therefore properly characterised as misconceived for the purposes of section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). A proceeding that is misconceived may be summarily dismissed under that section.
13. I will therefore wholly dismiss the request.

1. It is unnecessary to make findings about any other of the grounds on which Ms Palliser relies.
2. I will nonetheless make some observations on some other practice day purposes or on other grounds on which Ms Palliser relies which may assist the parties.
3. Ms Palliser incorrectly considers the relevant land in the second secondary consent request is the whole of the land originally known as 27 James St ie what is now lots 1 and 2 or what is now known as 27 and 27A James Street.
4. The second secondary consent request was made only in relation to the subject land ie what is now known as 27 James Street. A request to amend endorsed plans can apply to part of the land subject to plans previously endorsed. The Council properly considered it as affecting only the subject land. The second secondary consent did not affect lot 2 or what is now known as 27A James Street.
5. I discern that Ms Palliser's misapprehension has led her to rely on the restriction and the contract of sale. As the restriction does not burden lot 1 (ie the subject land), they are irrelevant.
6. Any adverse effect that Ms Palliser alleges is a result of the second secondary consent due to material mis-statement in the secondary consent request or to material mistake in the grant of the secondary consent is not a relevant adverse effect. That is because a mis-statement must be in the 1997 permit application and a mistake must be in relation to the 1997 grant of the permit. By law, they cannot be by the grant of a secondary consent.
7. It is unnecessary to make a finding whether the permit had expired or was spent by the date of the grant of the second secondary consent and thus whether the second secondary consent could not be made.
8. However, there appears to be merit in the analysis that:
   1. the development allowed by the permit was started and completed within the periods in condition 8 and had not therefore expired.
   2. The permit was not spent because of the continuing effect of condition 1.
9. Nonetheless, there could also be merit in a claim that the permit had expired on the date of the first or second secondary consent. That is because when those consents were granted, the permit allowed a replacement dwelling that could not comply with the condition 8 dates for starting or completing the construction of the replacement dwelling.
10. To overcome this problem, owners in a similar position often simultaneously request an extension of time to either start or complete the development. The Adeniyis did not make such a request.
11. Ms Palliser's claim that the permit had expired by the date of the second secondary consent having regard to the default times in section 68 of the PE Act as amended by section 140 of the Consumer and Planning Legislation Amendment (Housing Statement Reform) Act 2025 (Vic) has no merit.
12. This is because the permit may have expired on the date of the first secondary consent and, more fundamentally, the amendments to section 68 have not yet commenced and the current default provisions in section 68 do not apply because of condition 8.
13. If Ms Palliser had been able to overcome the first hurdle in relation to standing, she would have faced a number of other obstacles in the requirements of the PE Act.
14. One of these is that the Tribunal cannot cancel or amend a permit if the permit authorised construction of a building and 'those operations have been completed'.[9] The evidence before me is that the 'dual occupancy' was completed in 2000.
15. The allegations of conflict under section 61A of the PE Act in the grant of the second secondary consent do not appear relevant. The existence of a potential conflict is not a basis for cancellation of a permit under the PE Act.
16. First, those allegations must be pursued in a different forum with a different application. Second, on the evidence before me, there is doubt the officer that Ms Palliser alleges was conflicted was an officer with power to decide the second secondary consent.
17. Finally, I refer back to the fact that on 22 September 2023, the planning scheme was amended (by Amendment VC243) and removed the need for a permit to construct one dwelling on a lot with an area between 300 sqm and 500 sqm in GRZ. The subject land meets that description.
18. Accordingly, if the permit expired on 2 January 2024 (being the date of the first secondary consent), the Adeniyis could take advantage of the provisions introduced by Amendment VC243 and proceed to obtain a building permit to construct the replacement dwelling without first having to obtain a permit under the planning scheme.
19. There may well also be merit in applying the reasoning of the Supreme Court in Benedetti v Moonee Valley City Council.[10]
20. The effect of the reasoning in that decision is that condition 1 of the permit would no longer apply if an owner intended to demolish the dwelling and thereby cease to take advantage of the benefit of the permit. That would allow an owner to use or develop the land in accordance with the planning scheme, rather than the permit. The provisions introduced by Amendment VC243 would then take effect and allow the Adeniyis to demolish the existing dwelling and construct the replacement dwelling without first obtaining a planning permit.
21. Ms Palliser might also consider that even if a declaration were to be made under section 149B of the PE Act that the second secondary consent was invalid (or perhaps, more correctly, that both the first and second secondary consents were invalid), this would have the effect of bringing back the permit into force and effect.
22. If the permit were to be back in force, then the demolition and construction of the replacement dwelling (in accordance with the building permits) could proceed under the current provisions of the planning scheme in accordance with the reasoning in Benedetti.

1. For the above reasons, I will dismiss the proceeding because it is misconceived.

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

[3] Ms Palliser attached an unsigned contract of sale and vendor statement document with respect to the subject land. I discern the primary purpose of attaching this document was to prove the restriction.

[4] I have made minor editorial changes to these purposes.

[5] Having said that, I acknowledge that if the permit were to be cancelled it could have the effect of cancelling any secondary consent granted under the permit.

[7] [2015] VCAT 1664 [11]-[12].

[10] [2005] VSC 434 [31] ('Benedetti').