Victorian Civil and Administrative Tribunal|2023-01-23

The application plans identify the amendments by reference to clouding the whole of the relevant sheet of the plans.
Item 2 required all proposed amendments to be individually identified by 'clouding' on all sheets of the plans rather than by clouding of the whole sheet.
The applicant did not amend the clouding on the plans. It submits that there are numerous amendments on each sheet of the plans and clouding each would make the plans illegible and the responsible authority and third parties are sufficiently assisted in identifying the relevant changes by reference to the statement of changes.
Although the applicant has not provided this information, this is a circumstance in which the applicant's response to not provide the information can be said to be an adequate response to item 2.
It is not unusual for a whole sheet of amended plans to be clouded if there are numerous amendments on each sheet. Technically, an amendment may be a substitution.[6] Clouding a whole sheet may be characterised as a proposed substitution of a sheet.
I emphasise that, in the case of relatively few amendments to a particular sheet in a set of plans, clouding of the whole sheet is unlikely to be a satisfactory response.
I accept that this finding might be characterised as similar to a decision to set aside a requirement under section 78(b) of the PE Act. To the extent there is that similarity, I would apply the principles of acting according to the substantial merits of the case and with as little technicality as legislative requirements permit in sections 97 & 98 of the Victorian Civil and Administrative Tribunal Act 1998, as contributing to my finding of an adequate response.

The amendment plans include what is described as a 'multi-purpose room' in dwelling 10.
Item 5 required information that clarified whether it was a habitable or non-habitable room and a note to state it does not accommodate parking.
The RFI response stated the space in this dwelling is no longer identified as a garage because it cannot meet clause 52.06 requirements. It stated the room could be used for either habitable or non-habitable purposes or garaging of a small vehicle, motorcycle or motor scooter and therefore the notation was unnecessary.
The applicant has adequately responded to item 5 because, in effect, the response is that the room is intended to be used for habitable or non-habitable purposes. That response is sufficient clarification. The response that the notation is unnecessary is sufficient because that part of the item is not characterised as a 'clarification' but as part of the application and, if not ultimately agreed, can be included as a notation or a condition to amend the plans.

Item 8(b) required an amended sustainable management plan. The RFI response included an amended sustainable management plan.
The responsible authority said in its October extension that the plan was inadequate because it did not reflect the stormwater treatment measures for two of the dwellings and the raingarden, as shown on the plans, and would pose a 'difficulty' in assessing compliance with relevant policies in the planning scheme.
The applicant has adequately responded to item 8(b) because an amended plan was submitted.
A concern about inadequacy and difficulty alone in these circumstances does not amount to non-provisions of required information. It is common practice, if amended plans are approved, to require amendments to submitted reports, such as the plan in this item, before they are approved under the amended permit.

Item 8(d) required a traffic engineering assessment. The RFI response included a traffic engineering assessment report.
The responsible authority said in its October extension that the report was inadequate because it did not assess the office in relation to any car parking reduction required under clause 52.06 of the planning scheme.
The applicant has adequately responded to item 8(b) because an assessment report was submitted. I do not see that inadequacy alone, in the particular part of the assessment report, in these circumstances would be some sort of absolute barrier to assessing the traffic implications that was incapable of requiring amendment of the report before endorsement, if the amended plans were ultimately approved.
As well, the applicant states that it lodged an updated report on a without prejudice basis with the responsible authority in December 2022 that included the specified office assessment. The applicant tendered that updated report and waived any prejudice for the purposes of this practice day hearing.

The applicant lodged the permit amendment application on 6 July 2022.
The August RFI was made within the prescribed period.
The applicant responded to the August RFI before the lapse date of 7 October 2022 and applied to extend time if the responsible authority found all the information had not been provided.
The responsible authority, in the October extension, extended the time to provide specified information that it considered had not been provided.
The applicant did not provide any further information before the lapse date in the October extension.
Before the lapse date in the October extension, the applicant lodged the review application.
The responsible authority submits the prescribed period has not begun to run to lodge the review application, it is premature and has applied for an order that the review application be struck out or dismissed.
The responsible authority must succeed with this application for the order if the applicant did not provide the information as required by the August RFI before the lapse date of 7 October 2022.
In its RFI response, the applicant has provided the information as required, in accordance with the relevant test of adequately responding to the RFI, despite the events following 3 August 2022.
Time began for the prescribed period to lodge the review application on 7 October 2022 and that period passed before the review application was lodged on 14 November 2022.
The review application is not premature. It is not misconceived on that basis.
I will refuse the responsible authority's application to strike out or dismiss the application.
I will confirm the compulsory conference and hearing arrangements.
I heard from the parties on updated estimates of time for submissions and on intended expert witnesses at the hearing. The scheduled duration of three days may be tight but I do not see it as unreasonable. If the proceeding does not settle at the compulsory conference, the duration can be reviewed at that time.

Information for all parties is available at the Tribunal's website www.vcat.vic.gov.au

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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

[2] ML Design Pty Ltd v Boroondara CC [2005] VCAT 2088 [13], Cumming v Minister for Planning [2019] VSC 811, Najarian v Minister for Immigration and Multicultural Affairs [200] FCA 933 [56].

[3] Kairouz Architects v Darebin CC [2017] VCAT 2099 [8]-[9].

[4] Kairouz Architects v Darebin CC [2017] VCAT 2099 [16].

[5] Written submissions on behalf of the responsible authority [34].

Environment Act 1987

Environment Regulations 2015

Civil and Administrative Tribunal Act 1998

Plenty & Dundas Pty Ltd v Yarra CC [2023] VCAT 69 (23 January 2023)

Plenty & Dundas Pty Ltd v Yarra CC [2023] VCAT 69

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)

Plenty & Dundas Pty Ltd v Yarra CC [2023] VCAT 69 (23 January 2023)