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Maribyrnong City Council sought to have one specific legal question decided as a discrete preliminary issue: whether the site was part of a 'strip shopping centre' for the purposes of clause 52.28 of the Maribyrnong Planning Scheme. Clause 52.28 prohibits gaming machines in strip shopping centres. The council submitted that if the Tribunal found the site to be within a strip shopping centre, that would render the EGM component of the permit application prohibited and could make the rest of the hearing redundant, saving time and expense ([2]–[3]).

The applicant opposed a separate or preliminary hearing on that single issue. Separately, there was a distinct review (B18/2009) of a decision by the Victorian Commission for Gambling Regulation to approve the 70 EGMs. The applicant requested that that review be transferred and heard together with the planning review (P1697/2008). All parties supported consolidation of the two matters ([6]).

VCAT made several orders. It refused the Council's application to deal with the strip shopping centre question as a preliminary issue, joined the Victorian Commission for Gambling Regulation as a party to P1697/2008 pursuant to s60 of the VCAT Act, amended the applicant/permit applicant names under s127, vacated a previously scheduled hearing and listed the consolidated proceedings for a three-week hearing from 9–30 June 2009. The Tribunal issued detailed directions governing any amendments to plans and the filing and service of expert evidence in accordance with Practice Note PNPE1 ([Order]; Reasons [4]–[7]).

Why the court decided this way

The Tribunal’s principal reason for refusing a discrete preliminary hearing on whether the site is a strip shopping centre is that the issue is a mixed question of fact and law and that the factual matters relevant to that question overlap with other matters in the major multi-component permit application ([4]–[5]). The Tribunal emphasised that witnesses who would give evidence on the strip shopping centre issue would likely give evidence relevant to other aspects of the proposal. Because of this overlap, any supposed efficiency gains from a separate hearing would be "likely to be illusory" ([5]).

Deputy President Gibson expressly relied on the High Court's caution against conducting trials of issues rather than trials of cases in their totality, citing Tepko Pty Ltd v Water Board ([5]). The Tribunal concluded that even if the strip shopping centre question were determined in the council's favour, that would not necessarily render all other issues academic, given the multi-faceted nature of the development. Moreover, the possibility of an appeal on the single issue could lengthen rather than shorten the time to a final determination ([5]).

Because the parties agreed that the separate VCG review B18/2009 should be heard with the planning review, the Tribunal joined the Victorian Commission for Gambling Regulation as a party (s60) and set directions to hear both matters together. The Tribunal also exercised procedural powers to amend applicant names under s127 and to give detailed timetabling and service directions for any amendments to plans and for expert evidence to ensure orderly preparation for the consolidated hearing (Orders; Reasons [6]–[7]).

Before and after state of the law

Before this decision the legal backdrop was the general procedural principle articulated by the High Court in Tepko that courts and tribunals should be cautious about severing or trying isolated issues where doing so would fragment the fact-finding process and potentially create inefficiencies or injustice. This Tribunal applied Tepko to the specific context of planning permit reviews and the management of multi-component developments.

After this decision, the practical application within VCAT (at least in this instance) is that the Tribunal will refuse to sever a single issue for preliminary determination where:

• the issue is a mixed question of fact and law; and
• there is substantial evidence overlap between that issue and other issues in the proceeding; and
• any anticipated savings in time or expense are unlikely to be realised and may be illusory ([4]–[5]).

The decision therefore reinforces the operational application of Tepko in VCAT case management: where factual overlap exists across issues, comprehensive hearings are preferred to separate, issue-specific mini-trials.

VCAT also affirmed its routine case management tools: joinder under s60 and amendment under s127 of the VCAT Act, and the use of Practice Note PNPE1 to regulate amended plans and expert evidence procedures (Orders; Reasons [5]–[7]).

Key passages with plain-English translation

1. "I do not consider that a separate and preliminary hearing of the strip shopping centre issue would be appropriate." ([3])

   • Plain English: The Tribunal will not decide the strip shopping centre question on its own before dealing with the whole case.

2. "Determination of the strip shopping centre issue is a mixed question of fact and law." ([5])

   • Plain English: Whether the site fits the planning scheme definition will require both legal interpretation and findings about what the place is like in reality.

3. "I therefore consider that any potential savings in time or expense are likely to be illusory." ([5])

   • Plain English: Even though a separate hearing might seem to save work, in reality it probably will not and could make things take longer.

4. "I consider that the caution advocated by the High Court in Tepko ... against trials of issues rather than of cases in their totality is particularly relevant." ([5])

   • Plain English: The Tribunal is following the High Court's warning not to break the case into isolated mini-trials when doing so would be unhelpful.

5. "At the Practice Day Hearing, the applicant requested that application B18/2009 be transferred ... to be heard and determined in conjunction with application P1697/2008." ([6])

   • Plain English: The parties asked that the separate gambling review be moved and heard together with the planning review, which everyone supported.

6. "I cannot make this order myself, but I will arrange for this request under rule 2.05(4) to be dealt with." ([7])

   • Plain English: The Deputy President does not have power to transfer the other proceeding directly, but will take steps under the Rules to have it handled so the matters can be consolidated.

Each of these passages is used by the Tribunal to justify a case-management approach focused on comprehensive hearing, joinder, and detailed directions rather than piecemeal preliminary determinations.

What fact patterns trigger this precedent

This decision is most relevant where:

• A planning permit application is complex and multi-component, such that one disputed factual/legal issue (for example, whether a site is within a particular planning category) is only one of several interrelated issues ([4]); and
• The issue proposed for preliminary determination is a mixed question of fact and law, requiring factual inquiry that will overlap with evidence relevant to other issues ([5]); and
• The parties claim that a discrete determination of that issue will dispose of or substantially reduce the remainder of the hearing, but there is reason to expect overlapping evidence and appellate delay would likely follow ([3]–[5]).

If these elements are present, the Tribunal is likely to refuse to hear the issue separately and instead manage the case as a single, consolidated proceeding with directions and timetabling.

How later courts have treated it

This decision itself is a VCAT case-management ruling and does not purport to create novel legal principle beyond applying the High Court's Tepko authority to the facts before it. The judgment does not discuss any later judicial treatment of the decision. The Tribunal expressly invoked Tepko as the controlling high-court guidance on the risks of trying isolated issues ([5]). Anyone researching subsequent reliance upon or citation of Prizac Investments v Maribyrnong CC will need to consult later VCAT or court decisions to determine whether and how this case has been applied or distinguished; this decision establishes a clear instance of Tepko being applied in the VCAT planning context.

Still-open questions

Several matters remain unresolved or are procedural and thus raise questions for later stages or other proceedings:

1. The substantive question whether the site is a strip shopping centre is not decided here; it will be determined at the consolidated substantive hearing. The Tribunal rejected a preliminary ruling but did not prejudge the merits of that planning question ([4]).

2. The Tribunal recorded that it could not itself order the transfer of the separate gambling review (B18/2009) into the Planning and Environment List, but undertook to arrange for that request to be dealt with under rule 2.05(4). The outcome of that administrative step and any implications for jurisdictional arrangements between lists is not contained in this decision ([7]).

3. The decision leaves open how appeals from a single-issue determination might interact with a consolidated hearing in practice. The Tribunal cited the prospect of appeal as a reason not to fragment proceedings, but did not articulate a detailed appeals-management strategy beyond preferring a single hearing ([5]).

4. The practical boundary between when a preliminary issue is efficient and when it is illusory is fact-sensitive. This decision provides guidance where there is pronounced factual overlap but does not set bright-line rules; future cases will need to apply the Tepko caution in their factual contexts.

5. The interaction between planning scheme prohibitions (such as clause 52.28) and parallel regulatory reviews (for example, gambling regulator decisions) is managed here by joinder and consolidated hearing. How this approach operates in other fact patterns, including where statutory regimes have differing remedial scopes or timetables, remains a question for future cases.

In sum, the judgment is fundamentally a case-management ruling applying Tepko to refuse a piecemeal preliminary hearing where evidence overlaps and to manage related proceedings together, joining relevant parties and setting comprehensive directions to ensure a fair and efficient substantive hearing ([3]–[7]).