1. The details set out in the Tribunal's initiating order are confirmed.

The proceeding is listed for a compulsory conference and a hearing as detailed below.

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

VCAT Melbourne, 55 King Street, MELBOURNE VIC 3000

The online details will be provided to the parties prior to the hearing.

Details of the location of the compulsory conference 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

Information to be provided by the responsible authority

1. By 4pm on 3 December 2025, the responsible authority must give to the applicant, the respondents and VCAT, a copy of the email of 27 March 2025 sent to the responsible authority including any material referred to in that email.

1. All parties must attend the compulsory conference either in person or by a representative who has permission to settle the proceeding on their behalf.

(Note: See more information in Appendix A of this order).

1. No later than 10 business days before the compulsory conference the respondent (permit applicant) must give all parties a copy of any amended plans it wants to discuss or rely upon at the compulsory conference.
2. No later than 5 business days before the compulsory conference the responsible authority must give the Tribunal and all parties a copy of draft permit conditions that may be discussed at the compulsory conference. A copy of the conditions must be brought to the compulsory conference in electronic Word format.
3. Any document to be relied on for the compulsory conference that is provided to the Tribunal must be clearly marked "For Compulsory Conference".

1. No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@courts.vic.gov.au
2. All expert evidence must be provided in accordance with the Tribunal's Practice Note PNVCAT2 Expert Evidence.

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. On 23 July 2025, the Warrnambool City Council ('council') issued a Notice of Decision to Grant a Planning Permit ('NOD') in planning permit application number PP2025-0088. The NOD allows the demolition, buildings and works including external and internal additions to the existing dwelling ('development') on land at 260 Merri Crescent, Warrnambool ('land').
2. On 19 August 2025, VCAT received an application for review under s 82 of the Planning and Environment Act 1987 (Vic) ('PE Act') by Phillip Perret ('applicant').
3. On 1 October 2025, VCAT received a statement of grounds on behalf of Campbell McKellar and Ami Thies ('respondents'). This statement of grounds asserts that: [M]atters such as overlooking and overshadowing under Clause 54 (ResCode) are not relevant to this application, as the sole permit trigger is the Heritage Overlay.
4. Also on 1 October 2025, the respondents requested a practice day hearing to consider their application for strike out or summary dismissal of the application for review.
5. The parties filed written submissions addressing the application for summary dismissal. Having read those submissions and having heard from the parties, I refuse to strike out or summarily dismiss the application for review. My reasons follow.

1. Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') provides the legislative basis for the consideration of this application for strike out or summary dismissal. It states:

1. Summary dismissal of unjustified proceedings

(1) 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. > > (2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding. > > (3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by - > > > (a) the Tribunal as constituted for the proceeding; or > > > > (b) a presidential member; or > > > > (c) a member who is an Australian lawyer. > > (4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative. > > (5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

RESPONDENTS' APPLICATION FOR STRIKE OUT OR SUMMARY DISMISSAL

1. The respondents say the application for review should be struck out or summarily dismissed because the grounds are misconceived in that they fall outside VCAT's jurisdiction. The statement of grounds is said to be lacking in substance because it relies on bare assertions and is not supported by any expert heritage evidence.
2. The respondents submit the only permit trigger required under the Warrnambool Planning Scheme ('scheme') for the development is under Heritage Overlay, Schedule 303 ('HO303'). Thus, VCAT's jurisdiction is confined to issues relating to the heritage significance identified in HO303.
3. The applicant's reliance on grounds about neighbourhood character, overlooking, overshadowing or visual bulk, visual impact, procedural complaints about the lack of consultation and any alternate design outcomes are beyond VCAT's jurisdiction.
4. Any remaining grounds that relate to heritage are bare assertions, lack substances and carry little or no probative weight.
5. Further, it is said that the application for review does not raise any justiciable question for VCAT to answer because the applicant has relied upon his original objection to council before it made its decision on the application for planning permit. Thus, the respondents submit the applicant simply 'did not like it' and 'preferred something else' and is using the process before VCAT to pursue his personal preferences. This is said to be a course of action devoid of planning merit.
6. To support the application for strike out or summary dismissal the respondents rely upon Axicom Pty Ltd v Melton CC (Axicom)[1] specifically paragraphs 16, 17 and 18 which state:
   1. The power in section 75(1) of the VCAT Act is predicated on the 'opinion' of the tribunal that a proceeding is misconceived or lacking in substance etc. although, having regard to section 75(5), this is also a question of law.
   2. In forming the requisite opinion, the Planning and Environment List at VCAT is uniquely constituted as an expert tribunal, with experienced members well able to determine the occasional matter that is devoid of planning merit and bound to fail.
   3. Moreover, in an era where courts and tribunals are concerned with limited resources and efficient case management, it is appropriate that proceedings that are objectively devoid of planning merit are quickly disposed of - albeit cautiously and by reference to the principles outlined above. There is a public interest in avoiding lengthy hearings for matters that have no prospect of success.
7. The respondents also say the application is not simply weak, but it is incapable of success, obviously hopeless and unsustainable in fact or law. Accordingly, the application for review should be summarily dismissed to avoid further prejudice to the respondents. And that, if the applicant persists with the application for review without providing any 'proper heritage grounds', that conduct would be regarded as 'vexatious' or an abuse of process.
8. The respondents contend that a statement of grounds defines and limits VCAT's jurisdiction and cannot be 'retrospectively' amended to add new heritage allegations, or to recast non heritage matters into heritage grounds. As such the statement of grounds should not be amended as that would deny the respondents procedural fairness and offend the rules of natural justice.
9. It is said that VCAT should not allow any 'particularisation' of the grounds as that only arises when there is a valid application that is within VCAT's jurisdiction. Thus, they say particularisation cannot cure a proceeding that is misconceived and lacking in substance when it is beyond VCAT's jurisdiction.
10. The respondents contend that s 84A of the PE Act does not allow for new grounds to be raised but only provides for an expansion of grounds already raised. To allow new grounds to be raised would be a breach of procedural fairness and denial of natural justice.
11. Further, orders are sought that costs be reserved with liberty for the respondents to seek costs under s 109(2) of the VCAT Act if the proceeding continues without 'proper' heritage grounds.
12. The respondents also say that the applicant has a post graduate degree in planning and thus, is not a 'lay person'.
13. Lastly, the respondents say the application for review is not valid because it does not state the remedy that is being sought as required by Rule 8A.03 of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) ('VCAT Rules').
14. Having regard to the submissions summarised above the respondents submit the application for review should be struck out or summarily dismissed.

COUNCIL'S SUBMISSIONS REGARDING THE APPLICATION FOR STRIKE OUT OR SUMMARY DISMISSAL

1. Council submits that a permit is not required for the development under the General Residential Zone, Schedule 1 ('GRZ1') of the scheme. Further, it submits that a permit is required under HO303:
   • for demolition;
   • to construct a building or construct or carry out works; and
   • to externally alter a building.
2. Council also says the development is not exempt from the notice provisions in cl 43.01-4 of the scheme. Although at the practice day hearing council accepts that any demolition of the outbuilding, external alteration of a building and external painting is exempt from the notice and review rights under the PE Act.
3. Council relies upon Bowman v Boroondara CC[2] (Bowman) and specifically as follows:
   1. The only reason why a permit is required is under the Heritage Overlay. The notice of decision to grant a permit provides that the permit will allow partial demolition and construction of buildings and works to an existing dwelling in a Heritage Overlay in accordance with endorsed plans.
   2. The statement of grounds by the applicant relates solely to the length of the wall on the boundary, negative impacts of overshadowing and loss of outlook, and general loss of amenity. The grounds also include the following:

We request consideration of the impacts of overshadowing and reinstatement of clause 54 (ResCode) in assessing this heritage application. (The reasons for the 2005 Amendment VC33 removing clause 54 do not appear adequate).

1. It is a well-established principle of planning law, known as the National Trust principle that a discretion cannot be exercised for a purpose other than that for which it is granted. This means that if the sole reason why a permit is required arises under the Heritage Overlay, then the responsible authority (or the Tribunal upon review) may only exercise its discretion whether to grant a permit based on matters arising under the Heritage Overlay.
2. General amenity considerations and ResCode issues relating to overshadowing, overlooking and walls and the length of walls on boundaries are not heritage related matters or matters that arise generally for consideration under the Heritage Overlay. Whilst at one time there was a provision in the planning scheme that applications under the Heritage Overlay were required to meet certain ResCode provisions, this aspect of the planning scheme was amended in 2005 by Amendment VC33, which removed the requirement for a Clause 54 assessment for Heritage Overlay applications in a residential zone. On this issue, the Tribunal must apply the planning controls as they exist at the time of making a decision. The Tribunal has no power to change the provisions or outcome of Amendment VC33 and apply ResCode provisions, whatever the applicant's views are about the reasons for the Amendment. This ground is therefore misconceived and lacking in substance.
3. As discussed at the hearing, there are certain ResCode standards that a single dwelling on a single lot, which does not require a planning permit under the zone controls, must meet under Building Regulations. I was advised that the proposal meets these requirements. However, the issue of a building permit under the Building Regulations is not a matter something that I have any control over and is not relevant in this proceeding.
4. And further at paragraphs 13 and 14:
   1. In the present case, the applicant has raised no grounds relating directly to heritage issues or that are relevant in the context of the Heritage Overlay. The issues she has raised arise as relevant matters under the exercise of discretion under a different planning control, namely the zone provisions. However, no permit is required under these provisions. To attempt to apply these provisions to an entirely different planning control (the Heritage Overlay) would not be appropriate. They are not matters that the council or the Tribunal could take into consideration as being relevant in exercising discretion under the Heritage Overlay, especially having regard to Amendment VC33.
   2. For these reasons, the Tribunal would be falling into error to consider or give weight to the grounds relied upon by the applicant. Accordingly, I find that this application is misconceived, lacking in substance and has no prospect of success. The application is therefore summarily dismissed.
5. Having regard to the above, council says that only heritage matters are 'open for consideration' and as such many of the grounds set out in the applicant's statement cannot be considered.
6. Otherwise, council relies on VCAT's expertise to determine the relevance of the remaining grounds.

APPLICANT'S OPPOSITION TO THE APPLICATION FOR STRIKE OUT OR SUMMARY DISMISSAL

1. The applicant accepts that grounds relating to overlooking, overshadowing and neighbourhood character are not relevant matters under HO303 and seeks to amend the statement of grounds to delete those irrelevant matters.
2. Further the applicant sets out the triggers under HO303 for which a permit is required. These are said to be:
   • to construct a building or construct or carry out works;
   • to demolish a building (not an outbuilding); and
   • externally alter a building.
3. The applicant also says that the following aspects of the development are exempt from notice and review rights:
   • the demolition and removal of part of the garage and the two windows on the southern elevation; and
   • external alterations of the building.
4. Having regard to that analysis the applicant says that he can raise matters pertaining to:
   • demolition of part of the building (not an outbuilding); and
   • buildings and works associated with the extension of the building.
5. On that basis the applicant submits that grounds relating to heritage matters have been properly raised by him. In particular, he says the following with respect to the remaining grounds:
   • the decision guidelines at cl 43.01-8 clearly raise consideration of location, bulk, form, appearance that affect either the significance of the heritage place and or are not in keeping with the character and appearance of adjacent buildings and the heritage place. Thus, grounds that raise the colour scheme, the materials and building outlines, character, appearance and views are relevant to the heritage consideration before VCAT.
6. It is also said that cl 02.03-5 of the Municipal Planning Strategy ('MPS') and cls 15.03-1S and 15.03-1L of the Planning Policy Framework ('PPF') raise bulk, form and appearance of the development in the context of the character of the heritage place.
7. The applicant also relies on Axicom and in particular the general principles set out in paragraph 9 which establish a high bar for applications for summary dismissal. The general principles from Axicom are:
   1. The general principles relating to the operation of section 75 of the VCAT Act are clear. For a proceeding to be summarily dismissed:
      • 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.
      • the respondent to a proceeding bears the persuasive burden of showing 'that the complaint is undoubtedly hopeless'
8. And further, the applicant relies on the following paragraphs from Axicom:
   1. Without in any way undermining the principles set out above, there are perhaps nuances in the way that they are applied in different types of VCAT proceedings - e.g. in civil proceedings where disputed facts are more commonly in issue, as opposed to the review jurisdiction. Different considerations may also be relevant to whether a proceeding is, for example, 'vexatious' or 'lacking in substance'.
   2. Most review proceedings are between an applicant for a decision and the decision-maker. However, the Planning and Environment Act 1987 (PE Act) creates a rare review jurisdiction for third-party objectors at VCAT. Where the objector is the applicant for review at VCAT, the original applicant for the decision (i.e. the permit applicant) is cast in the role of a respondent, alongside the decision-maker. The nature of the interests of the respective parties, and the dynamic between them, is necessarily different. This has implications for summary dismissal.
   3. Objector rights are an important part of the Victorian planning system**. For objector applications seeking to review the grant of a planning permit, most raise arguable differences of opinion about the relevance or balancing of competing policies, objectives and decision guidelines under a planning scheme or the PE Act that influence how a merits-based discretion should be exercised by the decision-maker. In such matters, even though there may be no disputed facts, the nature of the discretion will make it difficult to demonstrate that a review proceeding is bound to fail.*** Objector applications may sometimes be weak, but not hopeless. The opportunity for summary dismissal will therefore still be rare and exceptional.

1. The applicant says the heritage grounds relied upon raise valid matters that are arguable differences of opinion and reasonably form the basis of the application for review.
2. The applicant refutes any claim that the proceeding is vexatious because it has not been made for an improper or collateral purpose.[3] I note that at the practice day hearing, the respondents advised that they do not pursue any claim that the application for review is vexatious.
3. The applicant contends there is no defect in the application for review simply because it relies on the same grounds as those contained in the original objection to council. The heritage grounds are directed to the merits of the application and have not changed simply because council has determined to support the application for permit.
4. The applicant also submits the fact he does not intend to call expert evidence does not mean the application is lacking in substance.
5. The applicant says the application for review clearly raises heritage matters and in any event s 84A of the PE Act provides that a party in a proceeding is not restricted at the hearing to the grounds previously notified.
6. The applicant proposes to amend the grounds in support of his application as follows:
   1. The colour scheme, style and materials of the extension proposed are inconsistent with the existing dwelling and the character and appearance of the heritage precinct.
   2. The proposed development will have an adverse visual impact on the streetscape and adversely affect the significance of the heritage place.
   3. The demolition of part of the contributory building will adversely affect the significance of the heritage place.
   4. The bulk, form and appearance of the proposed building is inconsistent with the character and appearance of adjacent buildings and the heritage place.
7. I have previously noted the respondents oppose any amendment of the statement of grounds, but they also say that the application for review has not previously raised any concern with the demolition proposed. Any amendment to the statement of grounds that would allow demolition to be raised as a ground would be prejudicial to them at this stage of the process.
8. In relation to the applicant's description as a lay person, I am informed that he worked for a brief period as an environment and planning manager and holds an undergraduate degree in science with a post graduate degree in community planning.
9. Lastly, the applicant says that he requires further information including sample images and the like which were provided to council by email on 27 March 2025.

1. I accept the matters set out in Axicom are the general principles that I must consider in this application for strike out or summary dismissal. Thus, I must exercise caution in summarily dismissing or striking out the proceeding because the consequences of such dismissal or strike out are serious, and in this case, the application for review would be at an end in circumstances where the merits of the application have not been ventilated.
2. For me to conclude that the application for review should be struck out or summarily dismissed I must hold the opinion that it is frivolous, vexatious, misconceived, lacking in substance or is otherwise an abuse of process.[4]
3. The respondents say that the application for review is either misconceived or lacking in substance or if it is allowed to proceed on the grounds at present is an abuse of process.
4. I will address the application for strike out or summary dismissal by addressing each of the contentions in turn.

Is the application for review misconceived or lacking in substance?

1. As a general proposition I accept that if a ground relied upon by a party cannot be raised because it is beyond the jurisdiction of VCAT, then the ground would be either misconceived or lacking in substance or both.
2. To consider the statement of grounds, I now extract it below but I have enumerated it for ease of reference in my decision.

(a) The proposed development is inconsistent with the neighbourhood character and the design does not reflect the Council's strategic objectives for neighbourhood character of "Integrating infill development with the existing architectural, historic and landscape character of the neighbourhood".

(a) The colour scheme, materials and building outlines of the extension proposed are in sharp contrast with the existing dwelling and unsympathetic with the surrounding buildings. The application design response does not address the requirements of clause 54.01-2 to include "correctly proportioned street elevations or photographs showing the development in the context of adjacent buildings". > > (b) The proposed development has not addressed the views to the site where the development will be clearly visible in jarring contrast to the surrounding buildings, (highlighted below). This includes views from Merri Cresent at the front of the property, from Merri Crescent between numbers 254 and the property on the corner of Merri Crescent and Ryot Street, as well as off Ryot Street the laneway. > > (c) There has been no heritage assessment of the proposed development provided with the advertised documents by a suitably qualified individual. and the proposed location, style, size, colour and materials that are outlined are inconsistent with the heritage precinct. There was no consultation nor engagement undertaken with the objectors by Council. The proposed development is out of keeping with the bulk, form and appearance of the proposed building is and NOT in keeping with the character and appearance of adjacent buildings and the heritage place, as evident from advertised Plan TP11. > > (d) There is sufficient space on the block to allow a single storey development avoiding the issues within this proposal.

(a) The overlooking (proponents schematic Fig 4) is projected from only one window on the south side of proposed extension and the existing tree claimed as screening is deciduous and pruned at a lower level providing no screening value to the adjacent private areas. There are two other windows which would overlook (marked with red arcs below and in the circled aerial), where there is no screening provided. > > (b) The issues of screening and impact to the objectors would not be a problem with a single storey extension which would be more in keeping with the existing heritage building.

3. The parties all agree that the development only requires a permit under HO303 of the scheme and because of that sole permit trigger, matters pertaining to overlooking and overshadowing cannot be considered. I agree with the parties that matters of amenity are not relevant to the range of matters that can be considered under the Heritage Overlay being the only permit trigger for the development.
4. On that basis grounds 3(a) and (b) are misconceived or lacking in substance and should be deleted from the statement of grounds. To that end, the respondents are correct in raising issue with the statement of grounds as they pertain to overlooking and overshadowing.
5. Further, the second sentence of ground 2(a) is also misconceived and or lacking in substance because it refers to cl 54.01-2 of the scheme which is not an assessment tool for this development as a permit is not required under the GRZ1.
6. I also find that the first sentence of ground 2(c) is not a ground at all but rather an account of the applicant's understanding of the process which occurred before council. It does not bare on the merits of the development and as such is misconceived and lacking in substance.
7. For completeness, I also consider the manner in which ground 1 is pleaded is directed to neighbourhood character more broadly as distinct from heritage and as such is misconceived and or lacking in substance.
8. However, I agree with the applicant that the first sentence of ground 2(a), all of grounds 2(b) and (d) and the second sentence of ground 2(c) directly raise heritage matters ('heritage grounds'). Moreover, the language used in those grounds is referable to the decision guidelines at cl 43.01-8 of the scheme. These decision guidelines include:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
• Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy.
• Any applicable heritage design guideline specified in the schedule to this overlay.
• Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
• Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
• Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.
• Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
• ...

1. The statement of grounds raises concern with the unsympathetic nature of the bulk, form, appearance, colour and materials of the proposed development from a heritage perspective including to surrounding buildings. These matters are all required to be considered by the decision guidelines at any final hearing on the merits.
2. For completeness, the Statement of Significance for HO303 states (as relevant):

What is significant?

The precinct contains a series of intact dwellings from the initial 1890s subdivision, along with a mix of Federation era through to interwar period dwellings - most set in established gardens.

Dwellings are consistently single storey in scale, with pitched (typically 25-30 degree) hipped or gable corrugated galvanised iron or tile clad roofs. Walls are typically masonry, or clad in weatherboard or conite finished.

...

Demolition

Demolition of a contributory place is not typically supported within the precinct. Demolition of the whole of a building which is a Contributory Element generally has an adverse effect on the significance of a Heritage Place.

Demolition of parts of a Contributory Place visible from the public domain has the potential to adversely affect the significance of the precinct.

Demolition of parts of a place which do not contribute to the significance or the setting of a place may be considered, if removal does not adversely affect the fabric and significant views (setting) of the affected Contributory place within a precinct.

Demolition of Contributory Place dwellings is not supported, as this would result in a loss of heritage fabric.

Removal of later garages, rear additions or fences not in character with those typical to the era of significance of the place may be considered by Council.

Removal of original timber sash windows or changes in window opening proportions to Contributory places is not supported, where windows can be seen from the streetscape.

...

External Alterations and Additions

Merri Crescent dwellings of significance are a mix of modest and large footprint buildings, but are typically single storey in scale - reflecting the type of dwelling erected for middle income/ professionals during the 1890-1930s period in Warrnambool.

...

Upper floor additions are generally not appropriate, as they will alter the scale of the dwelling - and hence compromise the suburban setting of places within the streetscape. Upper floor additions may only be appropriate if sited to the rear of a property and stepped so that new ridge lines do not dominate streetscape views of existing dwellings.

Any proposed additions should be to the rear of existing dwellings, to minimise adverse visual impact on the streetscape. Additions to the side of dwellings are not encouraged, as additions will alter the original scale (width) of dwellings when viewed from the street. Further, construction of additions on to the side boundary are not appropriate if seen from the street, as this alters the spatial/built form character of the streetscape.

...

Materials, Colours and Finishes

...

Paint colours for timberwork typical to the period include

• Light ochre colours (19th century); crème, pale green and mid ochres (20th century interwar) to walls.
• dark brown, green and Indian red (19th century) and ,lighter crèmes, green or red through to dark brown, red and green (20th century interwar) to timber details.

1. A detailed review of the Statement of Significance for HO303 demonstrates that several matters raised in the applicant's statement of grounds are relevant to the final determination of this proceeding.
2. The fact the statement of grounds is like or identical to the original objection relied upon by the applicant is not evidence of the lack of a 'justiciable question'. Nor do I accept that it is a 'pre-decision objection refiled in a different forum' and that makes it a 'self-evident defect'. The application for review form requires an applicant to attach a copy of their written objection to the council as part of the material that is required to advance the application for review.[5] Thus, it is not surprising that an applicant might chose to rely on the same material to support an application for review under s 82 of the PE Act.
3. Further, I do not agree with the respondents that because the statement of grounds relies on the original objection it is not concerned with the merits of the council's decision. On the contrary, the heritage grounds go directly to the merits of the development and its acceptability in heritage terms.
4. The respondents assert that ground 2(b) is factually incorrect and that the objector owns a two storey dwelling. I reject that assertion because the ground is concerned with the merits of the development. The factual context including the extent of existing built form within the heritage overlay is a relevant matter for the determination of the merits of the development.
5. Further, I agree with the applicant that all heritage grounds relied upon can be described as differences of opinion about the relevance of, or balancing of competing policies, objectives and decision guidelines under the scheme and that these differences in opinion will influence how the merits-based discretion will be exercised at any final hearing.
6. For the purposes of this proceeding, I place little weight on the fact the applicant does not intend to rely on expert heritage evidence. As set out in Axicom, VCAT is uniquely constituted as an expert tribunal, with experienced members who can determine heritage matters.
7. Having regard to the above, I find the application for review and the remaining heritage grounds are not misconceived or lacking in substance.

1. The respondents also contend the application for review is not valid because it does not comply with Rule 8A.03 of the VCAT Rules in that it must contain a brief description of the issue or matter in dispute and must state the remedy being sought from VCAT. For completeness I now set out Rule 8A.03 of the VCAT Rules:

Applications to the planning and environment list

An application to the planning and environment list -

(a) must be in writing; and

(b) must contain the following details with respect to the applicant and the respondent -

(i) full name; and

(ii) address for service; and

(c) must contain a brief description of the issue or matter in dispute; and

(d) must state the remedy being sought from the Tribunal; and

(e) must include an electronic address for service with respect to the applicant.

1. Further, I note that s 67 of the VCAT Act provides the information regarding an application and provides:

(1) An application to the Tribunal - > > > (a) must be in the form, and contain the particulars, required by the rules; and > > > > (b) must be accompanied by any documents or further information required by the rules; and > > > > (c) must be lodged in the manner specified in the rules. > > (2) The rules may require an application to be verified by statutory declaration or in any other manner. > > (3) Two or more persons entitled to make an application to the Tribunal may make a joint application.

2. I must also set out Rule 4.03 of the VCAT Rules which provides:

Form of application or referral

(1) An application to the Tribunal must be in the appropriate application form published on the Tribunal's website or available in hard copy from the registry.

(2) ...

(3) A form referred to in subrule (1) or (2) may contain any necessary modification.

1. Having regard to the s 67 of the VCAT Act and Rules 4.03 and 8A.03 of the VCAT Rules, the Planning and Environment List at VCAT has 'appropriate application forms'. The applicant completed the appropriate application form. Further, the applicant is an original objector for the purposes of s 82 of the PE Act and the application was filed within the statutory limit provided for in Regulation 35 of the Planning and Environment Regulations 2015 (Vic) ('PE Regulations').
2. I disagree with the respondents' contention that the application for review does not state a remedy. Whilst it is true that the remedy is not explicitly stated, in my view the grounds allude to the remedies that are sought namely:
   1. that no permit is granted having regard to grounds 2(a), 2(b), 2(c); and
   2. that the development be modified to provide for a single storey dwelling having regard to ground 2(d).
3. In such circumstances, the application for review sufficiently complies with Rule 8A.03. I note that to the extent that the application for review may not have complied with the VCAT Rules, Rule 1.6 would allow for a dispensation. This provides:

Dispensing with compliance

The Tribunal may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

1. I have found the application for review to have sufficiently complied with relevant VCAT Rule, and thus, for present purposes I do not need to consider the respondents' contention that the applicant is not a lay person.
2. Having regard to my findings, the application for review is validly brought by the applicant and is not misconceived or lacking in substance.

Should leave be granted to amend the application for review?

1. I have already found that the application for review raises heritage grounds however, I consider that these should be amended to clearly and unambiguously set out such grounds. Paragraph 45 of the applicant's submissions for the practice day hearing contained proposed amended grounds. These proposed amended grounds are:
   1. The colour scheme, style and materials of the extension proposed are inconsistent with the existing dwelling and the character and appearance of the heritage precinct.
   2. The proposed development will have an adverse visual impact on the streetscape and adversely affect the significance of the heritage place.
   3. The demolition of part of the contributory building will adversely affect the significance of the heritage place.
   4. The bulk, form and appearance of the proposed building is inconsistent with the character and appearance of adjacent buildings and the heritage place.
2. The respondents highlight that demolition as set out in proposed ground three above has not been raised previously by the applicant. I agree with the respondents and thus, I must further consider whether proposed ground three should be included in any amended statement of grounds.
3. Section 84A of the PE Act is directed to grounds relied upon and states:

84A Parties not restricted to grounds previously notified

A party in a proceeding for review under this Act is not restricted at the hearing of the proceeding to any grounds previously notified to the other parties (whether in the course of or before the proceeding) or the Tribunal.

1. Section 84A of the PE Act is very broad and it is clear from that provision that a party can amend grounds at any time. Further, there is no statutory limitation or restriction to the amendment of grounds that only permits an amendment or expansion of the grounds previously notified. The question before me in this proceeding is the fairness of allowing ground 3 to be included in the amended statement of grounds in circumstances where the applicant has not previously raised demolition. The element of fairness is the central theme in ss 97 and 98 of the VCAT Act which provide:
   1. Tribunal must act fairly

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

(1) The Tribunal -

(a) is bound by the rules of natural justice;

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

...

1. There is no dispute that the demolition of the existing house requires a permit under HO303 and that such a permit trigger is not exempt from the notice and review rights of the scheme and PE Act. Thus, demolition is a relevant matter to be considered under the decision guidelines. The strength of that ground is a matter for the merits.
2. In determining whether to amend the grounds to include demolition, it is relevant to the exercise of my discretion to consider whether the applicant is a lay person. I agree with the respondents that the applicant is not a typical lay person given his qualifications and employment. However, that does not mean that he should be denied the opportunity to amend or revise grounds, in circumstances where the enabling legislation specifically provides a process.
3. On balance, having regard to s 84A of the PE Act, ss 97 and 98 of the VCAT Act and the fact the proceeding is still in its infancy before VCAT, I do not consider the prejudice to the respondents is outweighed by allowing proposed ground 3. The respondents have ample time and opportunity to address matters of demolition in response to the application for review noting the compulsory conference and hearing are to proceed on 11 December 2025 and 11 February 2026, respectively.
4. It follows that I grant leave under s 127 of the VCAT Act for the statement of grounds comprising part of the application for review be substituted in whole for the grounds contained in paragraph 45 of the applicant's submission dated 17 November 2025.
5. For completeness, I note that I do not need to consider whether the application for review is an abuse of process because I have granted leave to amend it.

1. It follows that the application for the striking out or summary dismissal of the application for review is refused.

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

A compulsory conference is a private meeting between the parties to the proceeding.

With the assistance of a Tribunal member the parties can explore options to reach an agreement on all or some of the matters in dispute. The parties should come with an open mind and flexibility in considering options that could resolve the case.

Unless all parties agree, evidence of anything said or done in the course of a compulsory conference (including any document provided to the Tribunal for the purpose of the compulsory conference) is not admissible in any hearing before the Tribunal in the proceeding.

More information about compulsory conferences is available on the Tribunal's website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 - Alternative Dispute Resolution (ADR).

If you are a party, you must attend the compulsory conference in person or by a representative who has written permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in an adverse way.

The Tribunal may make any of the following orders under the Victorian Civil and Administrative Tribunal Act 1998:

• If you are the applicant, your application may be dismissed or struck out.
• If you are not the applicant, you may be struck out as a party. This means that you can take no further part in the proceeding, including the hearing.
• The matter may also be settled, approving the proposal with or without changes.
• You may be ordered to pay the costs of the other parties in certain circumstances.

Only parties to the proceeding may attend a compulsory conference.

A person is a 'party' to the proceeding if the person:

• lodged an objection to the planning application
• has given a completed Statement of Grounds form to the Tribunal by the due date and paid the fee
• has indicated in their Statement of Grounds form that they intend to participate in the hearing

The following persons are NOT a party to a proceeding:

• a person who did not lodge an objection to the permit application
• a person who did not give their Statement of Grounds form by the due date and/or did not pay the fee
• a person who has indicated on their Statement of Grounds that they do not intend to participate in the hearing

If you are not a party to the proceeding but wish to be heard, you can attend at the start of the compulsory conference and ask the Tribunal to join you as a party to the proceeding. You will need to explain why you should be joined as a party to the proceeding. Other parties will also be given the opportunity to tell the Tribunal whether they agree or disagree about you being joined as a party. The Tribunal will then make a decision to join you as a party or not.

If you are not joined as party, you cannot take any further part in the compulsory conference and the Tribunal may make a final order or make other orders that may affect you in an adverse way.

A party who is struck out because they do not attend a compulsory conference cannot participate in any further compulsory conference or hearing.

What happens if agreement is reached at the compulsory conference?

If the parties present at a compulsory conference reach agreement, the Tribunal may make a final order to give effect to the agreement without a hearing being required. This can include allowing the proposal with or without changes.

What happens if agreement is not reached at the compulsory conference?

If parties present at the compulsory conference do not reach an agreement, a hearing date/s will be confirmed. An order will be issued by the Tribunal.

What happens if a partial agreement is reached at the compulsory conference?

If the parties reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference.

What should you bring to the compulsory conference?

Parties should be come to the compulsory conference with a summary of their issues and solutions. This could include possible changes that could be made to the proposal in order to address your concerns or the concerns of other parties. The attached 'Summary of Issues and Solutions for a Compulsory Conference' may be used. The applicant for the permit should bring an extra copy of any relevant plans including elevations.

SUMMARY OF ISSUES AND SOLUTIONS FOR A COMPULSORY CONFERENCE**

It is suggested that each party identify key issues and potential solutions before the compulsory conference. This will help to clarify the key issues that the parties consider most important to them and possible solutions.

Most important issues in dispute from your perspective (including any legal matters) Use additional pages if required

What potential solutions would you consider? Use additional pages if required

[1] (Red Dot) [2020] VCAT 190.

[2] [2016] VCAT 301.

[3] Falconbridge v Yarra CC (costs) (Red Dot) [2005] VCAT 2449.

[5] See Application by an objector for a review of a planning decision form.