1. A deal of confusion has been generated in these proceedings due to the way in which the permit applicant has sought to change the plans for the proposed development. The purpose of this order is to set out what has occurred and the way in which the Tribunal proposes to proceed in order that the substantive merits of the proposed changes can be properly addressed.
2. Pierrepoint Planning (acting on behalf of David Harrison) made application for a planning permit for an extension to an existing residence and construction of a detached garage with accommodation above. The land is in a Residential 1 Zone and also affected by the Heritage Overlay and Design and Development Overlay schedule 10.
3. There was one objector, Mr Oliphant. The council issued a Notice of Decision to Grant a Permit. Mr Oliphant did not lodge an application for review under section 82 of the Planning and Environment Act 1987 so a planning permit was issued (PL06/400) on 28 November 2007.
4. On 23 January 2008, Pierrepoint Planning lodged a section 80 application for review against condition 2 of the permit requiring changes to the layout.[1] Mr Oliphant lodged a statement of grounds and is a party to this proceeding.
5. However, Pierrepoint Planning then decided to submit amended plans to substitute for the plans submitted with the planning permit application. This was not a step open to the applicant in the context of a section 80 application. A permit had already issued and therefore attempting to amend the permit application by substituting amended plans was misconceived. The permit application cannot be amended once a permit is granted and issued.
6. Nevertheless, as a result of giving notice to various people about the application to substitute amended plans, objections were received from other people who had not previously been parties to the proceeding.
7. To complicate the matter further, Pierrepoint Planning then lodged an application under section 87[2] of the Planning and Environment Act 1987 to amend the permit by amending what the permit allows, deleting aspects of conditions 1 and 2 and substituting the amended plans.
8. Again, this procedure was inappropriate because the permit was not one that had been issued at the direction of the Tribunal.[3] The correct procedure would have been to lodge an application under section 72 of the Act with the council to amend the permit.
9. In fact, this is what Pierrepoint Planning has now done. It lodged an application to amend planning permit PL06/400.[4] The proposed amendment is the same as that proposed in the section 87 application.[5] I do not know what notice, if any, was given of the application to amend the permit, however, at least one objection was received from the Port Fairy Branch of the National Trust of Australia (Victoria).
10. The Council has issued a Notice of Decision to Amend a Permit on 27 October 2008. No applications for review by objectors have been lodged with the Tribunal in respect of this Notice of Decision. Accordingly, in the normal course of events, the council could proceed to issue an amended permit. What prevents this course of action is the existence of the two applications before the Tribunal.
11. These two applications have been the subject of several Tribunal hearings. The section 80 application (P215/2008) was originally listed for hearing on 8 July 2008 at Warrnambool. This was adjourned to a directions hearing on 16 July 2008 to consider the difficulties associated in dealing with the proposed substitution of amended plans under an application pursuant to section 80 of the Planning and Environment Act 1987.
12. Two days after this directions hearing, the section 87 application (P2172/2008) was lodged. Both proceedings were then listed for hearing in Melbourne on 9 September 2008. At this hearing, the Tribunal was advised of the separate application to amend the permit under section 72 and that the National Trust had lodged an objection. Member O'Leary decided to adjourn the hearing to 12 December 2008 so that the National Trust had an opportunity to apply to be a party to the current proceedings and to enable time for the council to consider the application to amend the permit currently before it. The hearing of applications P215/2008 and P2172/2008 are now scheduled for 12 December 2008.
13. As I indicated, the National Trust has not lodged an application for review under section 82 of the Act in respect of the council's decision to grant an amended permit. However, the Tribunal has received correspondence from the Port Fairy Branch of the National Trust of Australia (Victoria) dated 6 November 2008, which states that:

... the Port Fairy Branch of the National Trust of Australia (Victoria) wishes to object to the intention of Moyne Shire to issue a planning permit for amended plans lodged by the applicant and seeks leave to appear at the scheduled hearing of this issue at 55 King Street on Friday 12th December.

The correspondence includes VCAT reference No P2172/2008, which is the section 87 application. A statement of grounds is included.

1. Pierrepoint Planning has now applied for leave to withdraw the section 80 and section 87 applications.[6] If they are withdrawn, then permit PL06/400 will exist in the form issued on 9 January 2008. It would then be open to the council to issue an amended permit in accordance with its Notice of Decision to Amend a Permit dated 27 October 2008.
2. At this stage, I do not consider it would be just or fair to give leave to Pierrepoint Planning to withdraw the two applications P215/2008 and P2172/2008 before the hearing on 12 December 2008 for the following reasons:
   • The Port Fairy Branch of the National Trust has indicated a position opposing the amended plans and amended permit. Even though it has not lodged a section 82 application to review the council's decision to amend the permit, it appears to believe that the appropriate time and place to have its opposition considered on the merits is at the hearing on 12 December 2008.
   • Robert Oliphant, who was an original objector and who has lodged a statement of grounds in the section 80 application (P215/2008) is still a party to the proceeding and has not consented to the withdrawal.[7]
3. Section 97 of the Victorian Civil & Administrative Tribunal Act 1998 provides that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings. Section 98 provides that the Tribunal is bound by the rules of natural justice and must conduct each proceeding with as little formality and technicality as a proper consideration of the matters before it permit.
4. In my view, the hearing on 12 December 2008 should proceed and should deal with the substantive merits of the proposed changes to permit PL06/400, which the applicant wishes to make. This will give everyone who may still have an interest an opportunity to be heard. I do not consider that, in light of the confusion created by the various proceedings and applications made by the applicant, the National Trust should be denied an opportunity to have the heritage merits of the proposed amendments considered because procedurally it may have failed to realise it should have lodged an application under section 82 to review the council's decision to amend the permit. The National Trust submitted its statement of grounds to the Tribunal on 6 November 2008, which was within the 21 day period.
5. One means of dealing with the procedural issues in this matter would be to direct the National Trust to lodge an application for review under section 82 of the Act in respect of the council's decision to amend the permit. Even though it may now be out of time, I consider that the circumstances would justify an extension of time to commence such a proceeding being given under section 126 of the Victorian Civil & Administrative Tribunal Act 1998. However, such a course of action would only further delay resolution of a decision about the amended plans. I do not consider this would be in the interests of justice, especially so far as the applicant is concerned.
6. There is a valid proceeding on foot before the Tribunal by which any necessary amendments to the permit to give effect to the amended plans can be achieved. This is the section 80 application, P215/2008. It is a situation where the Tribunal can and should exercise its discretion under section 127 of the Victorian Civil & Administrative Tribunal Act 1998 to amend the application for review in respect of both conditions 1 and 2 and the detail of what the permit will allow. In the event that any amended plans are approved by the Tribunal hearing the matter, the plans considered and approved should be referred to in condition 2 together with any modifications. I am satisfied that all parties understand and have had adequate notice of the changes and that this is the most expedient way of acting fairly and according to the substantial merits of the case.
7. So far as the council's Notice of Decision to amend the permit is concerned, if an amended permit is directed to be issued by the Tribunal in application P215/2008, it will be superseded by any amended permit issued at the direction of the Tribunal (assuming that the Tribunal considers it is appropriate to do so).
8. It is therefore most important that all parties and persons wishing to be heard in respect of the proposed amendments to permit PL06/400 and the amended plans be present at the hearing on 12 December 2008 so that this matter can be finally resolved.

[2] Application P2172/2008. The application was made under section 87 of the Planning and Environment Act 1987, but the more appropriate provision is section 87A of the Act.

[3] As required by section 87(1) Planning and Environment Act 1987

[4] This application to amend the permit was made under section 72 of the Planning and Environment Act 1987.

[6] Applications P215/2008 and P2172/2008

[7] I note that Bartholomew Gane (on behalf of Anne and Peter Wynne) lodged a statement of grounds in application P215/2008 in response to circulation of the amended plans and applied to be joined as a party. Following direct consultation with Pierrepoint Planning, they withdrew from the proceeding.