The following expert witnesses were called to provide evidence:

• Professor Peter Coombes, engineer, of Urban Water Cycle Solutions; and
• Mr Christopher Beardshaw, engineer, of Afflux Consulting Pty Ltd.

Mr Ian Munt of counsel instructed by Ms Ann-Maree Drakos, solicitor, of Melbourne City Council.

Ms Marita Foley SC and Ms Tessa Meyrick both of counsel, instructed by Ms Disha Kamal, solicitor, of Allens.

1. Rockford Constant Velocity Pty Ltd is the registered proprietor of the land located at 62‑70 Gracie Street, North Melbourne ('Rockford Land').
2. RSA Holdings Pty Ltd is the registered proprietor of the land located at 49 Henderson Street, North Melbourne ('RSA Land').
3. The Rockford Land and the RSA Land are identifiable through the street numbers in the photograph below.[2] The RSA Land adjoins the south‑eastern boundary of the Rockford Land.

1. The Rockford Land and the RSA Land are both in the Industrial 3 Zone of the Melbourne Planning Scheme ('Scheme') and are subject to the Land Subject to Inundation Overlay - Schedule 1 ('LSIO1'), the Buffer Area Overlay- Schedule 2, the Environmental Audit Overlay, the Public Acquisition Overlay - Schedule 9 ('PAO9') and the Parking Overlay - Schedule 14. Both properties are within the Arden Structure Plan area.
2. The applicants, Rockford Constant Velocity Pty Ltd & RSA Holdings Pty Ltd lodged this application under section 39(1) of the Planning and Environment Act 1987 (Vic) ('Act') with respect to actions of the Planning Panel ('Panel') appointed to deal with Amendment C384melb 'Land Subject to Inundation and Special Building Overlays' ('Amendment') to the Scheme.
3. The Amendment was prepared by the Melbourne City Council ('Council') in partnership with Melbourne Water Corporation ('MW').[3]
4. The Panel issued its report on 20 December 2022[4] ('Panel Report').
5. The application was lodged with the Tribunal on 10 February 2023.
6. The applicants effectively assert the Panel failed to provide the applicants natural justice through the Panel's refusal to allow the applicants to make further submissions or call expert evidence in response to a document filed by Melbourne Water Corporation ('MW Document') on the final day of the Panel hearing.
7. The applicants contend the Panel should be reconvened and the applicants must be provided with an opportunity to present submissions and evidence with respect to the MW Document.
8. The applicants seek orders to the following effect:

1. A practice day hearing was held for this proceeding on 14 April 2023.
2. The purposes of the practice day hearing were to consider:
   • any application under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') to extend the time for lodging the application;
   • the role of the interested persons in the proceeding;
   • a timetable for the filing of evidence and submissions; and
   • future conduct of the proceeding.
3. The 'interested persons' referred to in the purposes of the practice day hearing included MW.
4. Despite the involvement of MW in the preparation of the Amendment, MW is not automatically a party to this proceeding.
5. Section 39(2) of the Act provides who is a party to this type of proceeding, as follows:

(2) In addition to any other party to the proceeding the parties to a proceeding before the Tribunal under this section are -

(a) the person who referred the matter to the Tribunal; and

1. The Council, as planning authority, is a party to this proceeding.
2. At the practice day hearing, leave of the Tribunal was granted for MW to be joined as a party to this proceeding, noting that in the circumstances of the Amendment, all parties agreed that this joinder should occur.
3. In pre-filed written submissions, MW sought summary dismissal of this proceeding.
4. At the request of the applicants, the purposes of the practice day hearing were deferred to a preliminary hearing for consideration.
5. The purposes of the preliminary hearing are contained in the Tribunal's order dated 19 April 2023. These are as follows:
   • whether VCAT Application P187/2023 was lodged outside of the statutory time period;
   • if VCAT Application P187/2023 was lodged outside of the statutory time period, any application under section 126 of the VCAT Act to extend the time for lodging VCAT Application P187/2023;
   • in the event that an extension of time is granted, any application for summary dismissal of VCAT Application P187/2023;
   • in the event that an extension of time is granted and any application for summary dismissal of VCAT Application P187/2023 is refused, a timetable for the filing of evidence and submissions; and
   • future conduct of the proceeding.
6. The key issues for my determination are therefore:
   1. Was VCAT Application P187/2023 lodged outside of the statutory time period?
   2. If VCAT Application P187/2023 was lodged outside of the statutory time period, should an extension of time be granted to commence the proceeding?
   3. Even if an extension of time is granted, should VCAT Application P187/2023 be summarily dismissed?
7. Depending on the answers to these questions, matters of future conduct including the filing of evidence and submissions are to be considered.
8. I deal with each of the key issues in turn. In short, I have found that VCAT Application P187/2023 was lodged outside of the statutory time period and I have refused to extend time for the commencement of the proceeding pursuant to section 126 of the VCAT Act. My reasons follow.
9. However, before turning to the key issues I provide information regarding the following matters that are relevant to my decision:
   1. the MW Document;
   2. the Amendment;
   3. the key legislative provisions; and
   4. the parties' submissions.

WHAT IS THE MW DOCUMENT AND HOW DID THE CURRENT CONTROVERSY ARISE?

1. As I understand there is no transcript of the relevant part of the Panel hearing, I am reliant on the material provided by the parties as to the account of what occurred at the Panel hearing. Such material includes:
   1. the affidavit of Ms Laura Kenny[5], solicitor of HWL Ebsworth, that is relied upon by the applicants; and
   2. the affidavit of Ms Disha Kamal[6], solicitor of Allens, that is relied upon by MW.[7]
2. The MW Document is entitled 'Planning Panels Victoria, In the matter of Amendment C384 to the Melbourne Planning Scheme, Response to questions from the Panel'.
3. The MW Document is a response provided by MW to questions put to MW by the Panel.
4. According to Ms Kamal's affidavit , the impetus for the Panel's questions was a slide presented by Professor Peter Coombes, an engineer who gave expert evidence for the applicants:

1. Annexure 6 of Ms Kamal's affidavit contains the PowerPoint presentation that Professor Coombes spoke to at the Panel hearing.
2. The referenced slide from that PowerPoint presentation is as follows:

1. The MW Document itself extracts the Panel's questions, as follows:[8]

1. The MW Document contains nine pages of answers to the above questions, is undated and no person is identified as the author.

What occurred at the Panel hearing when the MW Document was filed and served?

1. MW submits that the Panel's questions to MW particularly related to why the data used in the flood modelling underpinning the LSIO3 was not calibrated.[9]
2. The affidavits of Ms Kenny and Ms Kamal address the timing of the Panel's request for answers to be provided by MW, the Panel's receipt of the MW Document, and the submissions made by the applicants at the Panel hearing.
3. According to Ms Kenny's affidavit:[10]
   1. on 26 October 2022 the Panel requested that MW respond to certain questions put by the Panel;
   2. on 28 October 2022
      1. at 10.33am, MW via Allens filed the MW Document;
      2. between approximately 1.50pm and 3.30pm, the MW Document was the subject of discussion at the Panel hearing;
      3. at approximately 1.56pm, the applicants (through Mr Molesworth) requested an opportunity to respond to the MW Document;
      4. between approximately 2.30pm and 2.50pm, there was a break in the Panel hearing; and
      5. at approximately 3.00pm, the Panel refused the request.
4. Ms Kamal agrees with Ms Kenny as to the timing of the circulation of the MW Document. Beyond that, there are some disagreements as to the timing of actions that occurred on 28 October 2022.
5. Ms Kamal's evidence is that:[11]
   1. at or around 11.50am, the applicants made submissions to the Panel regarding their concerns with the MW Document;
   2. at or around 2.10pm the applicants sought for the Panel to reconvene the hearing in seven days to allow the expert witnesses to provide a response to the MW Document; and
   3. at or around 2.56pm the Panel made its oral ruling:

...that it would not treat the Melbourne Water Document as a technical document or as evidence; that it had heard evidence and submissions from the parties on calibration and the position taken on calibration by each hydrological expert; and that it did not consider it necessary to allow parties or expert witnesses an opportunity to further respond to it.

1. According to Ms Kenny's affidavit, the applicants responded to the Panel's refusal of their request as follows:[12]

When were the Panel's written reasons provided to the applicants and what were the Panel's reasons?

1. According to Ms Kenny's affidavit:[13]
   1. the Panel Report was provided to HWL Ebsworth on 10 February 2023; and
   2. the Panel's written reasons for refusing the applicants' request were provided in the Panel Report and were not provided in any separate document.
2. In terms of when the applicants received the Panel Report, I observe that in the application form, the applicants refer to 10 January 2023 as the relevant date:

1. This is consistent with the applicants' submissions to the practice day hearing, where the applicants state:[14]

1. However, in the applicants' statement of facts and grounds accompanying the application, the applicants state that 'On 10 February 2023, Council provided Rockford and RSA with the Panel Report...',[15] which is consistent with what is stated in Ms Kenny's affidavit.
2. Given the application was lodged with the Tribunal on 10 February 2023, for the purposes of the applicants' assertion that the application was lodged within time based on when it received the Panel Report, it matters not whether the Panel Report was received by the applicants on 10 January 2023 or 10 February 2023 because 10 February 2023 is within one month of both of these dates.
3. In the Panel Report, the Panel addresses the applicants' request to make submissions on, and call expert evidence in relation to, the MW Document and its reasons for refusal of the request.
4. The Panel Report states that the MW Document is not a technical document; rather, the MW Document responds to the Panel's questions. Further, the Panel Report states that the Panel understands each party's position, the evidence of each hydrological expert and that no further submissions or evidence were required by the Panel.
5. This is shown by the following extract from the Panel Report.

1. In short, notwithstanding the discrepancies between Ms Kenny and Ms Kamal regarding the timing and order of actions, based on the material before me I understand that:
   1. during the Panel hearing on 26 October 2022, the Panel asked MW to answer certain questions;
   2. MW answered these questions in a written document, being the MW Document, filed with the Panel and served on the parties to the Panel at 10.33am on 28 October 2022;
   3. on 28 October 2022, the applicants requested an opportunity to make further submissions and file evidence in response to the MW Document;
   4. on 28 October 2022, the Panel refused the applicants' request in an oral ruling; and
   5. the Panel provided written reasons for its refusal of the applicants' request in the Panel Report.

1. According to the Explanatory Report for the Amendment:

1. The Amendment was prepared in order to change the extents of the LSIO and the Special Building Overlay ('SBO') in certain catchments in the Scheme, as stated by the Explanatory Report for the Amendment:

1. The Rockford Land and the RSA Land are both in the Moonee Ponds Creek catchment.
2. In terms of the proposed new LSIO3, the Amendment will result in the following mapping changes to the Scheme:

1. The following extract is from Map 4LSIO from the Amendment and shows the Rockford Land and the RSA Land proposed to be included in the LSIO3.

1. The following further information in the Explanatory Report is provided:

1. The Amendment was exhibited in accordance with the Act for a period of time in 2021.[16]
2. The Panel hearing occurred on 17-19 October and 24-28 October 2022.
3. The applicants were jointly represented at the Panel hearing and called expert evidence.
4. The Council and MW were represented at the Panel hearing and also called evidence.
5. In the Executive Summary of the Panel Report, the Panel stated the following conclusions (as relevant to the flooding subject matter of this proceeding):[17]

1. In terms of the flood modelling, the Panel made the following comments, extracted below, as to the accuracy of the modelling and its alleged conservatism. The Panel ultimately concluded that the modelling adequately identifies the 1% Annual Exceedance Probability flood event for translation into the proposed overlay schedules. Notably, the Amendment does not set flood levels for any parcel of land; rather, this is to be assessed by MW when a planning permit is sought under one of the proposed overlays.[18]

1. In terms of the nature of what will change as a consequence of the Amendment, MW submits that:[19]

1. The applicants disagree with MW's description of what will change as a consequence of the Amendment, contending that:[20]
   1. the Panel Report will lead to the imposition of permanent flood/drainage controls under the Scheme with the potential to affect the developable capacity of the applicants' land;
   2. the LSIO1 that currently burdens the applicants' land does not contain the same detail as the LSIO3;[21] and
   3. the LSIO3 imposes additional burdens in relation to potential planning permit applications relating to the applicants' land, introducing new processes and standards by which the Council and MW must assess an application, having regard to new background documents in clause 72.08 of the Scheme and the underlying flood modelling and data.[22]
2. As such, the applicants contend that the requirements relating to flooding will change as a result of the Amendment.

1. Section 39 'Defects in procedure' of the Act provides the ability for a person to refer a procedural failure of a planning panel to the Tribunal for its review. Whilst the Tribunal is 'reviewing' the conduct of the planning panel, it has been observed that in reality what the Tribunal is doing is conducting a first-instance determination on whether the panel has complied with the relevant provisions of the Act.[23]
2. Section 39 of the Act is contained in Part 3 'Amendment of planning schemes', Division 3 'Adoption and approval of amendment'.
3. Section 39(1) of the Act requires an application lodged under this section to be made 'not later than one month after becoming aware of the failure' that is the subject of the application.
4. Section 39(1) provides:

(1) A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.

1. In order to bring an application under this section, certain jurisdictional facts must exist:
   1. there must be a person who is substantially or materially affected by a failure;
   2. the failure must be by the Minister, a planning authority or a panel;
   3. the failure must be a failure to comply with a specified area of the Act, being Division 1, Division 2, Division 3 or Part 8; and
   4. the amendment the subject of the proceeding must not have been approved.
2. Division 1 'Exhibition and notice of amendment' of Part 3 deals with the requirements of a planning authority regarding the availability and notice of a proposed planning scheme amendment.
3. Division 2 'Public submissions about an amendment' of Part 3 deals with who is entitled to make a submission about a proposed planning scheme amendment, what a planning authority must do with submissions made, referral of a proposed planning scheme amendment to a planning panel and the panel's actions in dealing with the proposed planning scheme amendment. Division 2 also deals with what a planning authority is to do in response to the contents of any panel report.
4. Division 3 'Adoption and approval of amendment' of Part 3 deals with the adoption of an amendment, the lapsing of an amendment, submitting an amendment to the Minister for Planning, more notice being required to be given of the amendment and notice of changes to the amendment. Division 3 also deals with approval of an amendment by the Minister, the publishing of notice of the approval of the amendment in the Government Gazette, the commencement of an amendment and the Parliament's ability to revoke an amendment. Division 3 then concludes with section 39 of the Act.
5. Part 8 'Panels' contains three divisions and deals with the appointment of a planning panel, the appointment of a directions panel and the way in which a panel hearing is conducted.
6. In a proceeding of this nature, section 39(4) and (5) of the Act provides that the Tribunal has the following powers:

(4) The Tribunal may determine a matter referred to it under this section and may do any one or more of the following -

(a) make any declaration that it considers appropriate;

(i) the planning authority must not adopt the amendment or a specified part of the amendment; or

(ii) the Minister must not approve the amendment or a specified part of the amendment -

unless the Minister, planning authority or a panel takes action specified by the Tribunal.

(5) In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.

1. For the purposes of the first key issue, the question is when did the applicants become aware of the alleged failure to comply with the Act: was it at the time that the Panel made an oral ruling refusing the applicants' request, or, when the applicants received the Panel Report?
2. Determining when the applicants become aware of the failure to comply with the Act marks the point at which time begins to run for the purposes of the statutory time period in section 39(1) of the Act.
3. If VCAT Application P187/2023 was lodged outside of the statutory time period, leave is required from the Tribunal to extend time to commence the proceeding, pursuant to section 126 of the VCAT Act.

1. The Tribunal is empowered to extend the time to commence a proceeding pursuant to section 126 of the VCAT Act.
2. Section 126 provides:

126 Extension or abridgment of time and waiver of compliance

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(2) If the rules permit, the Tribunal, on application by a party or on its own initiative, may -

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

(3) The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section.

1. The principles relevant to the Tribunal's exercise of discretion under section 126 of the VCAT Act were summarised by the Federal Court of Australia in Hunter Valley Developments Pty Ltd v Cohen,[24] with those 'Hunter Valley Factors' then being applied in the Tribunal in Katsanis v Wyndham CC[25] and numerous cases thereafter.
2. The Hunter Valley Factors are not a statutory test, nor are they the only matters that might be relevant to consider in any particular case. Rather, they represent a series of what might be called common sense considerations that are likely to be of assistance to a decision-maker in most applications to extend time to commence a proceeding.
3. Broadly speaking and with reference to the particulars of this application, those considerations are:
   1. whether the applicants can show an acceptable explanation for any delay in commencing VCAT Application P187/2023;
   2. whether it is fair and equitable in the circumstances to extend time;
   3. the applicants' actions, including whether they made the Council and MW aware that they contest the finality of this issue that was raised at the Panel hearing;
   4. whether the Council or MW will be prejudiced by the delay, in terms of the Amendment;
   5. if the applicants succeed in obtaining leave to extend time to commence this proceeding, whether that decision will unsettle other people or established practices;
   6. the merits of the substantive application i.e. the merits of the applicants' application under section 39(1) of the Act; and
   7. considerations of fairness as between the applicants and other persons in like positions.

1. Section 75 'Summary dismissal of unjustified proceedings' of the VCAT Act empowers the Tribunal to summarily dismiss a proceeding at its own initiative or at the request of a party, for specified reasons.
2. Section 75(1) provides:

(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

1. The Tribunal will not lightly summarily dismiss a proceeding; that is, it is a high bar to establish that a proceeding ought be summarily dismissed.
2. Further, the onus is on the person seeking summarily dismissal to establish their case for summarily dismissal.
3. A proceeding should not be summarily dismissed if there are disputed questions of fact that could be established by evidence yet to be adduced or tested; such evidence will often be produced for the main hearing.

1. The applicants contend that this application was made within time because it was lodged with the Tribunal not later than one month after the applicants received the Panel Report, which they submit was the time at which they became aware of the defects in the Panel process.
2. The applicants submit that their request for written reasons was made in the hope that it would enable the Panel to consider its reasons for refusing the applicants' request and possibly reconsider its position.
3. The applicants submit that having asked for written reasons, it would have been offensive to the Panel for the applicants to then lodge an application under section 39(1) of the Act prior to receiving the Panel's written reasons.
4. Further, the applicants submit that it is through the provision of written reasons that the substantial or material effect of the procedural failure of the Panel is discernible: the 'full consequence of the failure was made known to the [a]pplicants'.[26]
5. The applicants contend that they are substantially and materially affected by the Amendment and are substantially and materially affected by the Panel's failure to allow the applicants to respond to the MW Document.[27]
6. The applicants claimed that it was only upon receipt of the Panel Report that the applicants became aware that the Panel relied on the MW Document in forming its views, which materially affected the applicants' interests.[28] Prior to receiving the Panel's written reasons, the applicants say that they were in no position to know whether the procedural flaw would be influential in the Panel's decision making.
7. The applicants queried how they could have known, prior to receiving the Panel Report, whether they would be substantially or materially affected by the procedural failure of the Panel. Rather, they would have been guessing what the outcome of the Panel might be because prior to the Panel Report, it was just a fear that the applicants held as to the decision that might be made by the Panel.
8. The applicants assert that the Panel failed to comply with sections 161(1)(a) and (b) of the Act.
9. Section 161 'General procedure for hearings' is in Part 8 of the Act and deals with how a panel hearing is to be conducted.
10. Section 161(1) of the Act provides:

(a) must act according to equity and good conscience without regard to technicalities or legal forms; and

(c) is not required to conduct the hearing in a formal manner; and

(d) is not bound by the rules or practice as to evidence but may inform itself on any matter -

(ii) without notice to any person who has made a submission.

1. The applicants assert that their inability to access natural justice and to challenge the MW Document has increased the chance that the planning authority will adopt the Amendment.[29]
2. The applicants acknowledge that the Panel Report does not directly determine the rights of the applicants to develop their land but contends that the Panel Report is a condition precedent to the Minister's decision to approve the Amendment, which in turn affects the applicants' rights.[30]
3. The applicants claim that they informed the Panel that the MW Document was critically flawed. The applicants wanted the opportunity to call their expert witnesses to give evidence to the Panel to assist a fair process and explain to the Panel the ways in which the MW Document was capable of misleading the Panel.
4. The applicants submit that whether the applicants are substantially or materially affected by the procedural failure of the Panel is a question of mixed fact and law that is assisted by hearing expert evidence. To this end, the applicants rely on the expert evidence of:
   1. Professor Peter Coombes, engineer, of Urban Water Cycle Solutions; and
   2. Mr Christopher Beardshaw, engineer, of Afflux Consulting Pty Ltd.
5. Both Professor Coombes and Mr Beardshaw were called by the applicants to provide expert evidence to the Tribunal at the preliminary hearing.
6. Professor Coombes:
   1. stated that there are a number of incorrect statements in the MW Document and that, in his view, these influenced the Panel's decision;
   2. explained the ways in which he regarded the MW Document to be erroneous and in giving his evidence, addressed his concerns about the lack of calibration of the modelling, the perceived urgency of a flood response and the role of infrastructure; and
   3. in response to a question from the Tribunal, asserted that approximately 70-80% of the MW Document contained new information about the topics being addressed, although acknowledged that at a high level there was a significant crossover in the issues addressed. Professor Coombes did not identify the alleged new information in the MW Document.
7. Mr Beardshaw:
   1. asserted that there were three main issues with the MW Document: the data; the selection of design flow for existing conditions; and, MW's response to the suggestion of using the rain on grid method of flood modelling; and
   2. in response to a question from the Tribunal, stated that there would be very few properties added to the LSIO that are not already subject to the LSIO (albeit in a different form) but the flood levels for those properties might increase substantially as a consequence of the Amendment.

1. Alternatively, in the event that the application was lodged outside of time, the applicants submit that they ought be granted an extension of time pursuant to section 126 of the VCAT Act.
2. The applicants contend an extension of time should be granted because:
   1. the applicants have explained their reasons for waiting until they did to lodge the application with the Tribunal and therefore can demonstrate an acceptable reason for the delay;
   2. none of the factors that might be placed against an extension of time request prevail in the circumstances; and
   3. any prejudice to MW on the basis that allowing the extension of time will delay the Amendment and risk the safety of the community does not outweigh the prejudice to the applicants if the extension is not allowed because the area has subsisted without this overlay for some time and the safety of new developments is assessed on merit, under the current controls.[31]
3. The applicants rely on the Tribunal's approach to the extension of time application in the proceeding brought under section 39(1) of the Act in Danaher v Whittlesea CC[32] ('Danaher').
4. In Danaher, the applicant alleged defects in the procedures for Amendment C204 to the Whittlesea Planning Scheme, which itself sought to implement a structure plan for the Plenty Valley Town Centre that included the introduction of a single Activity Centre Zone divided across five precincts. The applicant was a significant landowner in one of the precincts and a submitter to the planning panel.
5. In Danaher, the form of the amendment that the council adopted differed from what was publicly exhibited. The applicant alleged that the process through which the changes to the amendment occurred took place other than in accordance with the statutory procedures in the Act. The applicant alleged that he only became aware of the proposed changes to the amendment two working days before the commencement of the panel hearing, after his lawyers had filed planning and expert evidence for the panel hearing. The changes included that most forms of 'Industry' were to be as of right and not requiring a permit rather than being prohibited as was originally proposed.
6. With respect to the request for an extension of time in Danaher, Deputy President Dwyer concluded that given some of the defects upon which Mr Danaher relied arose at the panel hearing and some in the panel report, technically at least part of the application to the Tribunal was out of time. Deputy President Dwyer considered that it was fair and equitable in the circumstances to extend time under section 126 of the VCAT Act. I extract the relevant paragraphs at length due to the reliance placed on that case by the applicants and the contended parallels in arguments advanced in the case before me now.

1. The applicants contend that the production of the MW Document came so late in the process that it spoiled the process. As such, the applicants say that they find themselves in the same position as the applicant in Danaher.
2. The applicants submit that in the circumstances, a refusal of an extension of time is akin to a strike out or summary dismissal of VCAT Application P187/2023, and thus should be approached with caution.
3. The applicants submit that it is a high bar to summarily dismiss an application. The applicants submit that neither MW nor the Council have made out a case for strike out or summary dismissal of VCAT Application P187/2023.
4. In response to a question from the Tribunal, the applicants agreed that effectively their submissions were suggesting that no panel acting reasonably could have reached the decision that the Panel did.

1. The Council submits that for the purposes of section 39(1) of the Act, the relevant date when the statutory time period commenced is 28 October 2022. As such, the application was made outside of time.
2. The Council objects to leave being granted under section 126 of the VCAT Act to extend time for commencement of the proceeding.
3. The Council takes issue with the applicants seemingly being aware of the alleged defect on 28 October 2022 yet contending that they did not know the consequence of this alleged defect until they received the Panel Report.
4. In summary, the Council submits:[33]
   1. that the applicants knew about the alleged defect in procedure of which they complain on 28 October 2022;
   2. it is not clear why the applicants needed to read the Panel Report to know that the Panel would consider the answers contained in the MW Document, given the answers in the MW Document were answers to questions posed by the Panel to MW; and
   3. the applicants' concerns regarding the consequences of the alleged defect in procedure are actually complaints about the substance of the Panel's findings and beyond the Tribunal's jurisdiction to review in this proceeding;
5. The Council observed that at all relevant times the applicants were represented by lawyers experienced in this jurisdiction.
6. Further, it is material that the delay in lodging the proceeding was more than two months after what is required by section 39(1) of the Act.
7. The Council disagrees that the applicants needed to receive the Panel's written reasons to be able to establish that they were substantially and materially affected by the procedural defect of the Panel.
8. Further, the Council asserts that the reasons the applicants claim that they were substantially and materially affected by the Panel's alleged defect in procedure would have applied equally on 28 October 2022 as at 10 February 2023 when the application was lodged.[34]
9. The Council submits that whether the applicants were substantially and materially affected by the procedural defect does not turn on whether the Panel was correct in its decision, or whether the MW Document is correct. This is because the defect in procedure alleged is not that the Panel made the incorrect decision but that there was a defect in affording natural justice to the applicants. Put another way, the Tribunal is tasked with determining whether there has been a defect in the Panel's procedure, not in the Panel's finding.
10. In terms of the balancing act that is required when determining whether to exercise discretion to extend time, the Council submits that the prejudice to the Council, MW and the public by delaying the progress of the Amendment outweighs the private benefit to the applicants of extending time.
11. The Council distinguishes Danaher on its facts,[35] stating that unlike in Danaher where the council sought to change the relevant amendment, in the present case there is no suggestion that the Council or MW changed its position on the Amendment or on the modelling underpinning the Amendment. This is not a case where the applicants were blindsided at the last moment by a change. Rather, the MW Document was prepared in response to matters raised by the applicants.
12. Further, the Council submits that natural justice does not require the applicants to have an opportunity to lead evidence and make submissions on matters that the Council asserts had already been addressed by the applicants at the Panel hearing.[36]
13. The Council presses that the time at which the applicants should have raised this as an issue was within one month of the Panel making its ruling regarding the applicants' request to respond to the MW Document.[37] The Council contends that it was not just and equitable for the applicants to 'wait and see whether they had persuaded the Panel of the merit of their submissions and evidence'.[38]

1. MW contended that the applicants did not lodge their application within the statutory timeframe, submitting that the applicants became aware of the alleged failure on 28 October 2022 when the Panel provided its ruling to the applicants that it would not receive further submissions or evidence regarding the matters contained in the MW Document.
2. Further, MW submits the applicants could have no reasonable expectation that a further hearing would be held or further submissions or evidence sought in relation to the MW Document once the Panel gave its oral ruling.
3. MW asserts that the applicants' submissions regarding waiting for the Panel Report for time to commence is not the way that section 39 operates. Rather, the substantial or material effect of the defect would have crystallised on 28 October 2022 when the Panel ruled that it would not hear anything further from the applicants.
4. MW contends that 'nothing the Panel might say in its reasons for that ruling would alter its effect; it is that effect which is alleged by the Applicants to constitute the defect in respect of which the application under s 39 of the Act is brought'.[39]
5. In any event, MW submits that the Tribunal's jurisdiction under section 39(1) of the Act is not enlivened because the applicants are not substantially or materially affected by alleged defect.[40] In reaching this conclusion, MW considered the scope and purpose of section 39(1) of the Act, including its original drafting.

The applicants have had the opportunity to make submissions to the Panel

1. MW submits that:[41]
   1. Professor Coombes and Mr Beardshaw gave evidence and were cross-examined at the Panel hearing, including that the flood modelling underpinning the Amendment was inadequate and formed an improper basis for flood mapping for the purpose of the LSIO3;
   2. Mr Beardshaw agreed in evidence to the Panel that the LSIO should not be removed from the applicants' land and that the applicants' land should be subject to a flood risk assessment at the planning permit stage;
   3. at the Panel hearing for the Amendment, the applicants repeated their submissions in relation to a previous planning scheme amendment, Amendment C407, that the drainage problem which the acquisition of the applicants' land under PAO9 seeks to address is not justified on the expert evidence; and
   4. effectively, the applicants sought to reagitate their grievances regarding Amendment C407 because modifying the developable capacity of the land will, in the future, be the basis of a fair outcome in the compensation process when the Arden Structure Plan is implemented.
2. MW submits that the imposition of the LSIO3 does not set flood levels for the applicants' land; rather, it identifies the modelling as a background document. MW accepts that there are different decision guidelines imposed through LSIO3.
3. MW contends that the alleged defect in procedure did not result in the Panel failing to hear relevant material, and, further:[42]

1. MW distinguishes Danaher on its facts, including that in this case the Panel Report was incapable of remedying the alleged defect, being the failure to accord procedural fairness to the applicants.
2. MW referred favourably to the Tribunal's comments in Coastal Estates Pty Ltd v Bass Coast Shire Council & Ors[43] ('Coastal Estates'). In that case, Amendment C93 to the Bass Coast Planning Scheme proposed, among other things, to introduce a structure plan for Coronet Bay. The applicant in that case owned a large parcel of land in Coronet Bay.
3. The proposed structure plan for Coronet Bay proposed rezoning of the area in the intermediate term to the Comprehensive Development Zone. At the panel hearing, the applicant sought rezoning of its land in the short term.
4. In the panel report, the panel did not support either the council's proposal or the applicant's. Rather, the panel recommended that the structure plan be modified to completely delete the proposed extension area that included the applicant's land, on the basis that the proposal was inconsistent with the State Planning Policy Framework and the Victorian Coastal Strategy.
5. In Coastal Estates, the applicant claimed that it was substantially and materially affected by a failure by the panel to comply with various provisions of the Act in terms of considering and hearing submissions and then reporting its findings on this issue.
6. In Coastal Estates, Deputy President Dwyer drew a distinction between the allegations of the applicant that raised substantive questions about the panel's findings and reasoning (for instance, contentions that the panel misdirected itself in relation to evidence, made a finding not legally open to it or made a finding that was manifestly unreasonable), and, allegations that the panel denied the applicant a fair hearing or breached the rules of natural justice.
7. Deputy President Dwyer found that the alleged substantive errors are not reviewable under section 39 of the Act, whereas allegations regarding denial of a fair hearing or breaches of the rules of natural justice - that is, procedural defects or non-compliance - are before the Tribunal; substantive errors are reviewable through an administrative law proceeding in the Supreme Court.
8. Deputy President Dwyer stated:
   1. Section 39 is clearly intended to address whether the Minister, planning authority or (as here) a panel has followed the correct procedures in processing a planning scheme amendment. Conferring this jurisdiction on the Tribunal allows for timely intervention before the amendment is approved. If, for example, a planning authority has failed to notify someone about an amendment, or the panel has failed to consider a submission at all, then the Tribunal may direct that these procedural defects be remedied before the amendment is adopted or approved.
   2. But what of the substance of the panel's findings? It is clear that s 39 is not intended to allow for the Tribunal to conduct a merits review of the panel's findings and recommendations. Equally, in my view, s 39 is not intended to facilitate a broader administrative law review of the panel's findings and recommendations. If the panel has failed to take into account relevant considerations, or taken into account irrelevant considerations, or misdirected itself on the application of the law, or reached a seemingly untenable conclusion on the evidence, these are more substantive errors that stem from the panel's reasoning or use of the information before it rather than defects in the procedures followed by the panel in gathering that information or preparing its report. In my view, substantive errors of this nature are not reviewable under s 39.
9. In terms of Coastal Estates, MW relied on the above paragraphs and then submitted (including its emphasis):[44]

1. MW submits that the Panel was aware of the alleged shortcomings of the modelling that underpins the Amendment but supported the Amendment, nonetheless. MW submits (including its emphasis):[45]

1. MW submits that the application to extend time under section 126 of the VCAT Act should be refused, primarily because the Tribunal's jurisdiction to determine this proceeding is not enlivened.
2. In the event that the Tribunal finds it does have jurisdiction, MW contends that time should not be extended because the applicants' case is significantly lacking in merit; there was no procedural defect because the applicants were afforded natural justice, noting that natural justice is not a fixed concept.
3. MW also contends that it and the public will be prejudiced by the delay in the finalisation of the Amendment and that such delay may result in a risk to community safety.

1. MW accepts that the power to summarily dismiss a proceeding should be exercised with care.
2. Notwithstanding, MW asserts that because the applicants are on no view substantially or materially affected by the defect, the jurisdictional requirements of section 39(1) are not met and so the proceeding should be summarily dismissed on the basis that it is misconceived or lacking in substance.
3. MW says this for various reasons. One reason is that the applicants' land is already affected by the LSIO. Another reason is that MW says that the Amendment is incapable of affecting the applicants' interests because the Amendment does not require MW, when acting as a referral authority in a permit application context, to use the modelling underpinning the LSIO3 in determining applicable flood levels for a permit application. As such, MW says that the adoption of the Amendment is incapable of affecting the applicants' interests.
4. MW states that the Panel recommended that the technical reports underpinning the Amendment be listed as background documents, the effect of which is that they do not form part of the Scheme and must not be directly relied on for decision making. As put by MW:[46]

1. MW submits that as the Minister is not bound by the Panel's recommendations, the Panel Report is merely a preliminary decision that does not have, and is incapable of having, any direct effect on the applicants' interests.
2. MW concludes that even if the Tribunal is persuaded to extend time to commence VCAT Application P187/2023, the proceeding should be summarily dismissed.

1. In this preliminary hearing I am required decide:
   1. whether VCAT Application P187/2023 was lodged within the statutory time period;
   2. if not, whether leave should be granted to extend time for commencement of the proceeding;
   3. if either VCAT Application P187/2023 was lodged within time, or, leave is granted to extend time, whether the VCAT Application P187/2023 should be summarily dismissed.
2. It is asserted that the jurisdictional facts of section 39(1) of the Act are not met. Whether this is the case is relevant to the substantive merits of the proceeding (or lack thereof) for the purposes of the extension of time sought under section 126 of the VCAT Act. It would also go towards whether the proceeding is manifestly hopeless and bound to fail, such as would justify summary dismissal under section 75 of the VCAT Act.
3. As such, whilst this is a preliminary hearing and not the final hearing, there is an overlap of the matters that would be considered at the final hearing with what I need to deal with, in a summary fashion, for this preliminary hearing.
4. Answering these questions involves consideration of what is meant by the language used in section 39(1) of the Act. In turn, this involves consideration of the purpose of section 39(1) of the Act, which should be understood in the context of the entire provision, along with the language and purpose of the procedural provision for which a failure is alleged, as relied upon in any particular case.
5. To this end, I reproduce section 39 in full below.

39 Defects in procedure

(1) A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.

(2) In addition to any other party to the proceeding the parties to a proceeding before the Tribunal under this section are -

(a) the person who referred the matter to the Tribunal; and

(b) the Minister; and

(c) the planning authority.

(3) If a matter referred to the Tribunal under this section involves a failure by a panel to comply with Division 2 or this Division or Part 8 the panel (or a member of the panel authorised by the panel to act on its behalf) is entitled to make a written or oral submission to the Tribunal before the Tribunal completes the hearing of the matter.

(4) The Tribunal may determine a matter referred to it under this section and may do any one or more of the following -

(a) make any declaration that it considers appropriate;

(b) direct that -

(i) the planning authority must not adopt the amendment or a specified part of the amendment; or

(ii) the Minister must not approve the amendment or a specified part of the amendment -

unless the Minister, planning authority or a panel takes action specified by the Tribunal.

(5) In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.

* * * * *

(7) An amendment which has been approved is not made invalid by any failure to comply with Division 1 or 2 or this Division or Part 8.

(8) Except for an application under this section, a person cannot bring an action in respect of a failure to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved.

(9) This section does not apply to a planning scheme prepared by the Suburban Rail Loop Authority that applies to land to which a Suburban Rail Loop planning area declaration applies.

1. The power under section 39 is clearly directed at procedural failures. That is, section 39 is concerned with the process by which, or how, a decision by the Minister, a planning authority or a planning panel is reached, rather than what that decision ultimately is.
2. To this end, the provisions of the Act referenced in section 39(1) deal with:
   1. the requirements of a planning authority regarding the availability and notice of a proposed planning scheme amendment;
   2. what a planning authority must do in terms of public submissions about a planning scheme amendment, along with what a planning authority is to do in response to the contents of any panel report;
   3. the process for the adoption and approval of a planning scheme amendment, including the lapsing of an amendment and the Parliament's ability to revoke an amendment; and
   4. the appointment of a planning panel, the appointment of a directions panel and the way in which a panel hearing is conducted.
3. In this respect, I adopt the following comments of Deputy President Dwyer in Danaher regarding the scope of an application made under section 39(1) of the Act:
   1. Section 39 does not provide general relief in relation to all actions or conduct of the planning authority in its processing of an amendment. There must be failure to comply with Division 1, 2 or 3 of Part 3, or Part 8 of the Act. As will be seen, some of the Council's impugned actions in relation to the processing of Amendment C204 are beyond the scope of these provisions. VCAT can only address a defect in a statutory procedure within the specified provisions - e.g. Danaher's allegation of a failure to comply with s 23 of the P&E Act.

1. By reference to other parts of s 39, and relevant case law, VCAT's powers under s 39 are limited. VCAT is essentially looking at whether there has been a defect in certain specific statutory procedures in relation to an amendment that has not been approved, and the steps that might reasonably be taken to address that defect before the amendment is approved. VCAT is not undertaking a review of the merits of the amendment, nor can it vary or substitute a substantive decision made in relation to an amendment.
2. In relation to the jurisdictional facts of section 39(1), in the present situation:
   1. the applicants claim to be a person who is substantially or materially affected by a procedural failure;
   2. the procedural failure is said to be by the Panel during the Panel hearing for the Amendment;
   3. the failure is claimed to be a failure under Part 8 of the Act; and
   4. the Amendment has not been approved.
3. The applicants claim that the Panel failed to comply with Part 8 of the Act, specifically section 161(1)(a) and (b).
4. The procedural failure asserted was the refusal by the Panel on the final day of the Panel hearing, being 28 October 2022, to agree to the applicants' request for an opportunity to provide further submissions and call further expert evidence, in response to the MW Document.

Was this proceeding lodged outside of the statutory time period?

1. Section 39(1) of the Act provides that the application must be lodged with the Tribunal 'not later than one month after becoming aware of the failure'.
2. The asserted procedural failure in the context of this first question begs three further questions:
   1. what is meant by the reference in section 39(1) of the Act to a person 'becoming aware of the failure' asserted;
   2. when did the applicants become aware of the asserted failure;
   3. was the application lodged 'not later than one month after' the applicants 'becoming aware of the failure'?
3. The alleged failure is the failure to comply with section 161(1)(a) and (b) of the Act.
4. Section 161 of the Act contains the requirements for the general procedure for panel hearings.
5. Section 161(1)(a) and (b) of the Act should also be understood in the context of the entire provision.
6. Section 161 provides:

161 General procedure for hearings

(1) In hearing submissions, a panel -

(a) must act according to equity and good conscience without regard to technicalities or legal forms; and

(b) is bound by the rules of natural justice; and

(c) is not required to conduct the hearing in a formal manner; and

(d) is not bound by the rules or practice as to evidence but may inform itself on any matter -

(i) in any way it thinks fit; and

(ii) without notice to any person who has made a submission.

(2) A panel may require a planning authority or other body or person to produce any documents relating to any matter being considered by the panel under this Act which it reasonably requires .

(3) A panel may prohibit or regulate cross-examination in any hearing.

(4) A panel may hear evidence and submissions from any person whom this Act requires it to hear.

(5) Submissions and evidence may be given to the panel orally or in writing or partly orally and partly in writing.

(6) A panel may require a person or the person's representative to appear and be heard -

(a) at a specified time; and

(b) in a specified manner, being -

(i) in person at a specified location; or

(ii) by audio link or audio visual link.

1. As can be seen, a planning panel has broad powers to regulate its hearings. Included in its powers is that it is not bound by the rules or practice as to evidence but may inform itself on any matter in any way it thinks fit and without notice to any person who has made a submission. This power is tempered by the planning panel being bound by the rules of natural justice and that the panel must act according to equity and good conscience without regard to technicalities or legal forms.
2. The alleged procedural failure was that in refusing the applicants' request to respond to the MW Document in the manner sought by the applicants, the Panel failed to act according to equity and good conscience without regard to technicalities and legal forms and failed to comply with the rules of natural justice.
3. What is meant by the phrase 'becoming aware of the failure'?
4. The words comprising the phrase 'becoming aware of the failure' are not defined in the Act. As such, the ordinary meaning of the words applies. I note that I was not taken to the meaning of these words by the parties.
5. The ordinary meaning of 'becoming' as defined in the Macquarie Dictionary[47] includes:

1. The ordinary meaning of 'aware' as defined in the Macquarie Dictionary[48] includes:

adjective 1. cognisant or conscious: aware of the danger; aware that we were lost.

1. The ordinary meaning of 'failure' as defined in the Macquarie Dictionary[49] is:

noun 1. an act of failing; a proving unsuccessful; lack of success: his effort ended in failure; the campaign was a failure.

2. non-performance of something due or required: a failure to do what one has promised; a failure to appear.

1. Based on the ordinary meaning of the words, this phrase asks when the applicants' awareness changed such that they were cognisant or conscious of the Panel's alleged non-performance of the requirements of section 161(1)(a) and (b) of the Act through its refusal of the applicants' request.
2. In terms of the timeline, according to the affidavits of Ms Kenny and Ms Kamal:
   1. during the Panel hearing on 26 October 2022, the Panel asked MW to answer certain questions;
   2. the MW Document provided written answers to these questions and was filed with the Panel and served on the parties to the Panel at 10.33am on 28 October 2022;
   3. between approximately 11.50am and 3.30pm the MW Document was the subject of discussion at the Panel hearing, during which time the applicants requested an opportunity to make further submissions and file evidence in response to the MW Document;
   4. within that time period, the Panel adjourned for approximately 20 minutes;
   5. between approximately 2.56pm and 3.00pm the Panel orally delivered its ruling, refusing the applicants' request; and
   6. the Panel provided written reasons for its refusal of the applicants' request in the Panel Report.
3. It follows from the above that the applicants' awareness changed such that they were cognisant or conscious of the Panel's alleged non-performance of the requirements to 'act according to equity and good conscience without regard to technicalities or legal forms' and in accordance with 'the rules of natural justice' at the time when the Panel allegedly failed to act in accordance with these requirements. That occurred at the time when the Panel refused the applicants' request, which occurred on the afternoon of 28 October 2022 at the Panel hearing. This is because it was at that time that the applicants were informed by the Panel that it was refusing the applicants' request to respond to the MW Document in the manner sought by the applicants.
4. I do not agree with the applicants' assertion that they became aware of the alleged defects in the Panel process when they received the Panel Report, whether that be on 10 January 2023 or on 10 February 2023.
5. I accept that the Panel Report is the document in which the applicants received the written reasons for the Panel's refusal of their request.
6. However, I do not agree that this is when they became aware of the alleged failure for the purposes of section 39(1) of the Act. This is because if the refusal by the Panel to allow the applicants' request regarding the MW Document constituted a failure by the Panel to comply with the Panel hearing requirements in section 161 of the Act, this failure occurred when the Panel made its procedural decision and communicated this to the parties at the Panel hearing. In the circumstances, it must be that the procedural decision was made during the Panel hearing on 28 October 2022. Were it otherwise, the Panel would have reserved its ruling on that matter and informed the parties that it would provide its ruling and reasons in writing. The Panel did not do this.
7. I accept that the applicants suggested various ways forward, including the reconvening of the hearing in seven days to enable the applicants' expert witnesses to review the MW Document and provide expert evidence to the Panel.
8. The affidavits of Ms Kenny and Ms Kamal differ as to when the applicants suggested to the Panel that an option would be to reconvene in seven days. According to Ms Kenny, this suggestion was made following the Panel's ruling. According to Ms Kamal, this suggestion was made prior to the Panel adjourning and then returning to make its ruling.
9. However, irrespective of when this suggestion was made by the applicants, I do not understand from either affidavit, or from any submission from any party, that the Panel stated that it had changed its mind on its oral ruling and instead would reserve on that matter and return to the parties in writing.
10. As such, there should have been no doubt in the applicants' mind that notwithstanding their suggested way forward, the Panel had made its decision and the applicants were not going to be given the opportunity to present further submissions or call further expert evidence in relation to the MW Document.
11. I accept that the applicants requested written reasons for the Panel's decision after the Panel had orally delivered its procedural decision.
12. Certainly, the applicants might have hoped that the Panel might change its mind regarding its procedural ruling. However, such a hope does not mean that the applicants had not been made aware of the Panel's decision on their request.
13. I accept that the desire to not cause offense to the Panel through not waiting for the provision of written reasons for the Panel's procedural decision might have been one of the reasons why the applicants did not lodge this proceeding until receiving the Panel Report. However, I do not accept that the possible causing of offense to the Panel has any bearing on the question of when the applicants became aware of the alleged procedural failure of the Panel. Rather, this might be a matter that goes to the applicants' request for leave under section 126 of the VCAT Act, which I deal with below.
14. I do not accept the applicants' assertion that they needed to receive the Panel's written reasons for the substantial or material effect of the alleged procedural failure of the Panel to be discernible and that, therefore, the statutory time period did not commence until they received the Panel Report.
15. I accept that a jurisdictional fact of section 39(1) of the Act is that the person making the application must be 'substantially or materially affected' by the alleged procedural defect.
16. The words comprising the phrase 'substantially or materially affected' are not defined in the Act. As such, the ordinary meaning of the words applies. I note that I was not taken to the meaning of these words by the parties.
17. 'Substantially' is the adverb of 'substantial'. The ordinary meaning of 'substantial' as defined in the Macquarie Dictionary[50] includes:

adjective 1. of a corporeal or material nature; real or actual.

2. of ample or considerable amount, quantity, size, etc.: a substantial sum of money.

1. The ordinary meaning of 'materially' as defined in the Macquarie Dictionary[51] includes:

adverb 1. to an important degree; considerably.

1. The ordinary meaning of 'affected' as defined in the Macquarie Dictionary[52] includes:

adjective 1. acted upon; influenced: the affected group.

2. influenced injuriously; impaired; attacked, as by climate, disease or pollution, etc.: *It only takes a small quantity of oil to create a mammoth pollution problem and the affected area is extremely difficult to clean up. -COMMUNITY EXPRESS, 1987.

1. Based on the ordinary meaning of the words, section 39(1) is directed at providing relief to a person who is influenced injuriously to an important or considerable degree by the alleged procedural failure of the Panel. Logically, this must be in contrast to the impact of the alleged procedural failure on the person being to a minimal or trifling degree.
2. In Danaher, Deputy President Dwyer found that Mr Danaher was a person substantially or materially affected by the alleged failure because he was a significant landowner in the affected area and a submitter in relation to the relevant amendment.
3. Similarly, the applicants are landowners of land affected by the Amendment and were submitters to the Panel hearing.
4. As such, being owners of land affected by the Amendment and submitters to the Panel hearing, if the alleged procedural failure of the Panel is established, it is arguable that this failure will injuriously influence the applicants to an important or considerable degree, as opposed to a minimal or trifling degree.
5. That is not to say that this is the only way in which a person can establish that they are substantially or materially affected by an alleged procedural failure.
6. However, what it means to be 'substantially or materially affected' in the context of the procedural failures alleged in this case cannot logically be dependent upon the Panel's final decision on the merits of the Amendment.
7. This would be akin to saying that the applicants are only substantially or materially affected by a failure of the Panel to accord them natural justice or act according to equity and good conscience without regard to technicalities or legal forms if the Panel does not accept their case in the final decision on the Amendment. This cannot be correct.
8. It must be the case that a person can be substantially or materially affected by a failure of a panel to accord them natural justice or act according to equity and good conscience without regard to technicalities or legal forms irrespective of whether that person ultimately wins or loses on the relevant point or on the proposed amendment.
9. This is because what section 39 is concerned with is the process by which the decision is made, not the decision itself.
10. In theory, a person could be substantially and materially affected by a planning panel not giving them any opportunity to address a topic or question a witness and still ultimately 'win' if the panel, irrespective of denying them these opportunities, made the decision that was sought by that person; just because the decision ultimately falls in their favour does not mean that the panel accorded them natural justice or treated them equitably in reaching that decision.
11. Looking at this another way, when section 39 is considered as a whole, its function is to enable the Tribunal to correct procedural failures that occur in the planning scheme amendment process while the process is still occurring and prior to any amendment being approved: to correct the course of conduct of the process.
12. Where the procedural failure occurs during a panel hearing, as is alleged to have occurred here, the intention must be that the alleged failure is referred to the Tribunal effectively while the panel hearing process is still occurring, or not long thereafter, to enable the panel to correct the course of its conduct, in the event that the allegation is proven.
13. In this respect, the requirement that the application under section 39(1) occur within one month of an applicant becoming aware of the failure aligns with the minimum amount of time within which a planning panel must issue its report following a panel hearing.[53] This is important because adherence to the statutory time frame should result in a proceeding being lodged with the Tribunal prior to the planning panel expending time and public resources finalising its panel report, meaning that the process can be halted and the course corrected, if need be, prior to the panel making its recommendations on the amendment.
14. If it was the case that in the circumstances of an alleged procedural failure of the nature before me, a panel report needed to be obtained, and the panel's recommendation known, before a person could establish that they had been substantially and materially affected by an alleged procedural defect, this might result in the panel report needing to be set aside and the panel needing to be reconvened. This is both inefficient and unlikely to have been intended.
15. However, that is not to say that it will never be the case that the receipt of a panel report will disclose a procedural failure of a planning panel warranting the commencement of an application under section 39(1) of the Act; whether and when an alleged procedural failure occurs will vary depending on the circumstances of each case.
16. To the extent that the Panel's decision constituted a failure to comply with the requirements of section 161(1)(a) and (b) of the Act, I find that the applicants became aware of this failure on the final day of the Panel hearing. This is when the applicants were informed of the Panel's ruling; this is when the applicants' awareness changed such that they were cognisant or conscious of the Panel's alleged non-performance of the requirements of section 161(1)(a) and (b) of the Act.
17. As such, I agree with MW and the Council that for the purposes of section 39(1) of the Act, the applicants became aware of the alleged procedural failure on 28 October 2022.
18. Given the statutory time period for lodging of one month, I find that VCAT Application P187/2023 was lodged with the Tribunal outside of the statutory time period.

Should an extension of time be granted to extend the time for the commencement of the proceeding?

1. Given my finding, above, for this proceeding to continue the applicants will need to be granted leave under section 126 of the VCAT Act to extend time for the commencement of the proceeding.
2. Earlier in these reasons I extracted section 126 of the VCAT Act and addressed the Hunter Valley factors, as they apply to this proceeding. I will now address these in turn, reiterating that these are neither a statutory test nor an exhaustive list of things that might be relevant to my decision. A decision is reached by balancing the answers to the relevant matters.
3. I observe that it is for the applicants to persuade me that time should be extended to commence this proceeding.
4. I also observe that if I do not extend time to commence this proceeding, the outcome is akin to summary dismissal of the proceeding, as the proceeding will come to an end.
5. Ultimately, the process of examining the various matters set out below is to determine which approach will enable justice to be done.

Whether the applicants can show an acceptable explanation for the delay

1. I accept that the applicants had a reason for the delay in commencing this proceeding; that is, the delay was not an oversight.
2. The reasons given for the delay included not wanting to cause offense to the Panel through lodging an application before receiving the written reasons requested of the Panel, and, wanting to see what the Panel had decided.
3. However, that is not to say that I agree with the applicants' reasons given for the delay in commencing this proceeding, for the reasons that I have set out in the preceding section. In the circumstances of the alleged procedural failure in this case, the decision to wait until receipt of the Panel Report to commence this proceeding is not without risk to the applicants.
4. Ultimately, the alleged procedural failure occurred almost three and a half months before the applicants lodged this application with the Tribunal, which was two and half months after when the proceeding should have been lodged. In the circumstances, and mindful of what was at stake for the applicants, I am not satisfied that the applicants' reasons for delaying commencement of the proceeding are acceptable or reasonable.
5. For this reason, I regard this issue to weigh against the application under section 126 of the VCAT Act.

Whether it is fair and equitable in the circumstances to extend time

1. Given my earlier comments regarding the purpose and role of section 39 in the planning scheme amendment process, it follows that I regard the proper time for the applicant to have sought the Tribunal's review of the alleged procedural defects under section 161(1)(a) and (b) of the Act was within one month of 28 October 2022.
2. Whilst I appreciate the applicants had their reasons for delaying, I do not regard it as fair and equitable in the circumstances to allow an extension of time to commence this proceeding.
3. There was a delay of some months between the event that I have found gave rise to the alleged procedural defect and the application being lodged.
4. Had the application been lodged within time, and assuming that it proceeded through the Tribunal,[54] there would still be a delay to the finalisation of the Amendment but it would not have been as long. Further, in such a situation it is unlikely that the Panel would have expended the time and publicly funded resources to finalise the Panel Report prior to the commencement of the proceeding.
5. In the present circumstances, the Panel has made its recommendations, has finalised its report, and extending the time to commence this proceeding will result in uncertainty until the Tribunal proceeding is determined.
6. For these reasons, I find that this matter weighs against an extension of time being granted in these circumstances.

1. Based on the material before me, it is unclear whether the applicants made the Council and MW aware that they contested the finality of this issue that was raised at the Panel hearing.
2. I accept that it should have been apparent to the parties as a consequence of the applicants' submissions to the Panel hearing that the applicants were hoping that the Panel might reconsider its position and allow them to make further submissions and call further expert evidence in relation to the MW Document. However, whether that logically leads to an inference that the applicants would be lodging a proceeding under section 39(1) of the Act is not clear.
3. Given the above, I consider that this issue neither weighs in favour or against the application to extend time.

Whether the Council or MW will be prejudiced by the delay, in terms of the Amendment

1. The Panel has recommended adoption of the Amendment, subject to certain specified amendments being made.
2. If an extension of time is granted, this proceeding will need to be heard and determined by the Tribunal.
3. Even if the ultimate decision is to dismiss the application, the time involved in dealing with the proceeding at the Tribunal will delay the further amendment and possible adoption of the Amendment.
4. If the ultimate decision of the Tribunal is in favour of the applicants, this might result in a reconvening of the Panel, which would obviously further delay the finalisation of the Amendment.
5. The Council and MW claim that they, and the general public, will be prejudiced by the delay that will occur if an extension of time is granted. They say this on the basis of the rationale for the Amendment; that is, to identify land within, relevantly, the LSIO that modelling has identified as being highly likely to be subject to inundation in the event of a flood and to apply risk appropriate controls and measures to manage new development in a way that minimises potential flood damage through the planning permit process.
6. The applicants assert that any perceived prejudice to the Council or to MW will be outweighed by the prejudice that they will suffer if the Amendment is adopted as is currently contemplated, noting that the area has subsisted without this overlay for some time and the safety of new developments is assessed on merit, under the current controls.
7. In the circumstances, I find that the delay that would result from an extension of time being granted would be prejudicial to the Council and to MW. I say this not just because it will delay the finalisation of the Amendment, which seeks to manage an important matter for the community, being future flooding risk to the public and its impact on development expectations, but because it will also result in the Council and MW incurring further cost in dealing with this Tribunal proceeding.
8. For these reasons, this matter weighs against the extension of time sought.

If the applicants succeed in obtaining leave to extend time to commence this proceeding, whether that decision will unsettle other people or established practices

1. The Act contains timeframes for a reason.
2. In the instance of section 39, the adherence to the statutory time period ensures that an alleged procedural defect is promptly brought to the attention of the Tribunal to enable the issue to be dealt with and the planning scheme amendment process to continue, either as modified by Tribunal orders, or as was, in the event that the application is unsuccessful.
3. Compliance with statutory timeframes is not lightly overlooked, lest it encourage others to behave the same way. Granting an extension of time in these circumstances might send an undesirable message.
4. As such, this matter weighs against the granting of an extension of time.

1. This involves a high-level consideration of the merits of the application brought under section 39(1) of the Act; as I do not have the entire case before me, I can only base this assessment on the material I do have before me.
2. MW contends that the application does not satisfy the jurisdictional facts. The Council contends that the applicants are seeking to relitigate the substantive matters that were before the Panel, which is not properly before the Tribunal in this proceeding.
3. The applicants submit that they do satisfy the jurisdictional facts. The applicants rely on the expert evidence of Professor Coombes and Mr Beardshaw that was given at the preliminary hearing to support their view that they have been substantially and materially affected by the procedural failure. This was on the basis that the Panel did not have the benefit of hearing the expert evidence that was presented to me regarding the alleged deficiencies of the MW Document.
4. Whether the alleged procedural failures are established in any case brought under section 39(1) of the Act will always turn on the nature of the alleged procedural failure and the facts and circumstances of the particular case.
5. In the context of the present case, whether the Panel failed to accord them natural justice or act according to equity and good conscience without regard to technicalities or legal forms must involve consideration of the extent to which the Panel allowed the applicants to address it on a particular topic and whether a decision of the Panel to not provide further opportunity was unfair in the circumstances.
6. With respect to the case before me, based on the material before me, it appears that:
   1. Professor Coombes and Mr Beardshaw provided expert evidence at the Panel hearing, raising concerns with, among other things, the lack of calibration of the flood modelling that underpins the LSIO3 and the Amendment;
   2. the applicants' case to the Panel included concerns that the modelling was too conservative and that this could impact on any potential future development of the applicants' land;
   3. the Panel sought further information from MW regarding the issues raised by the applicants, including the matters contained in the last slide of Professor Coombes' PowerPoint presentation;
   4. the MW Document provided answers to those questions; and
   5. the MW Document was not proffered as expert evidence.
7. In the circumstances, it appears that the MW Document was produced in response to concerns and issues raised by the applicants. As such, the Panel had already heard from the applicants regarding their concerns and issues on these topics.
8. The applicants claim that they informed the Panel that the MW Document was critically flawed and that they wanted the opportunity to call their expert witnesses to give evidence to the Panel to assist a fair process and explain to the Panel the ways in which the MW Document was capable of misleading the Panel.
9. I accept that this may be why the applicants wanted to address the Panel on the MW Document. I also accept that the applicants and their experts might have had legitimate arguments as to the accuracy of the contents of the MW Document.
10. But neither of these things necessarily means that the Panel in refusing the applicants' request, has not complied with the requirements of section 161(1)(1) and (b) of the Act. Treating a party equitably and in accordance with natural justice in a planning panel hearing does not equate to granting every request or providing never-ending opportunities to address the panel on a particular topic. However, nor does this mean that a party should not be given a chance to address the panel on a particular topic; the correct and fair procedure will vary depending on the circumstances of any particular panel hearing.
11. As stated in the previous section, the focus of the Tribunal in this application is on the Panel's process rather than the Panel's decision.
12. Ultimately, the purpose of hearing from parties in a panel hearing is to provide the planning panel with information, including the perspectives of affected persons, in order to assist the planning panel in making its decision regarding the proposed amendment.
13. As I have observed, the Panel's powers are broad and it is able to regulate its proceedings and inform itself as it sees fit. The Panel is not bound by the rules or practice as to evidence but is able to inform itself on any matter in any way it sees fit and without notice to any person who has made a submission.[55]
14. Given the breadth of the powers of a planning panel and the discretion it holds to conduct its hearings, it would be counterintuitive for it to be Parliament's intention that the Tribunal, through section 39 of the Act, forensically examine how a planning panel has run its hearing. This is especially the case where there is no recording of a panel hearing and no 'official' transcript of events.
15. As was said by the Tribunal in Coastal Estates:
    1. The applicant argued that an intention to circumscribe the rules of natural justice cannot be assumed, nor generated from indirect references, uncertain inferences or equivocal considerations. In my view the provisions I have referred to above are neither indirect, uncertain or equivocal, but clear in their wording and intent. Whilst a panel is, importantly, bound by rules of natural justice because of the importance of the issues before it and the potential consequences of its recommendations for orderly planning in Victoria, it is given some latitude in how it filters and analyses the information laid before it, including the application of its own expertise. But it is not unfettered in that latitude, and must provide a fair hearing in the context of the particular planning scheme amendment before it.
16. In my mind, in these circumstances what this means is that the applicants need to demonstrate that the Panel's refusal of the applicants' request with respect to the MW Document amounted to a failure by the Panel to accord them natural justice or act according to equity and good conscience without regard to technicalities or legal forms.
17. The MW Document was produced in response to concerns and issues raised by the applicants. The Panel had already heard from the applicants regarding their concerns and issues on the topics the subject of the MW Document. Whilst the Panel might not have heard from the applicants or their expert witnesses in relation to the MW Document, based on the material before me it appears that the Panel did hear from the applicants and their experts in relation to much of the substance of the MW Document. I say this mindful of the expert evidence provided to the preliminary hearing that acknowledged that at a high level there was a significant crossover in the issues addressed, although it was estimated that approximately 70-80% of the MW Document contained new information about the topics being addressed. The topics of the expert evidence given by the applicants' witnesses regarding the lack of calibration of the modelling, the perceived urgency of a flood response, the role of infrastructure, the selection of design flow for existing conditions, and, MW's response to the suggestion of using the rain on grid method of flood modelling, were not new, although MW's response to those topics through the MW Document may have been.
18. That is not to say that the applicants' case is manifestly hopeless or unarguable but nor is that the 'test' for an application under section 126 of the VCAT Act. If an application was manifestly hopeless or unarguable then that would weigh heavily against granting an extension of time - what would be the point in extending time to commence the proceeding if the application was bound to fail?
19. On the basis of the material before me, in my view there is a low likelihood that a Tribunal ultimately hearing this application under section 39 of the Act would conclude that the Panel failed to comply with the requirements of section 161(1)(a) and (b) of the Act in refusing the applicants' request in relation to the MW Document. Rather, in the circumstances and based on the facts before me, a Tribunal might conclude that the Panel had met the procedural requirements of section 161(1)(a) and (b) of the Act and no procedural failure was established.
20. However, without hearing the full case it is not appropriate for me to make a finding regarding the merits of the substantive application, beyond stating that the case is not unarguable.
21. Accordingly, this matter weighs in favour of an extension of time being granted but only to a minimal extent.

Considerations of fairness as between the applicants and other persons in like positions

1. In part this has been covered in previous sections.
2. In short, it would not be fair for the applicants to be granted an extension of time when they waited to see what the outcome of the Panel process would be when strict compliance with timeframes is expected from others.
3. Pragmatically I can understand that one might wish to wait until they know the outcome of a planning panel report - and whether they 'won' - before expending resources lodging a proceeding with the Tribunal. However, as explained above, this is not the purpose of section 39 of the Act. The correct time to lodge a proceeding of this nature is within one month of becoming aware of the procedural defect that gives rise to the application in the first place.
4. Because each case turns on its own facts and circumstances, reliance on, or comparisons with, what a Tribunal decided in another case is not always helpful. To the extent that I need to, I distinguish the facts in Danaher from those before me. I do this because in the present case the topics that were the subject of the applicants' expert evidence and that gave rise to the production of the MW Document were topics that had been canvassed by the applicants in submissions and in their expert evidence, albeit, not specifically what was said in the MW Document. By contrast, in Danaher the experts' evidence was submitted prior to Mr Danaher becoming aware of the change to the amendment sought by the council.
5. Overall, this matter weighs against the extension of time sought.

1. On balance, in light of my answers to these matters, I find that the approach that will enable justice to be done is to refuse to extend the time to commence this proceeding.
2. As such, VCAT Application P187/2023 is at an end.

Should this proceeding be summarily dismissed?

1. In light of my answer to the preceding question, I need not answer this one.
2. As indicated earlier, in the circumstances of this case there is an overlap between consideration of the merits for the purposes of the application under section 126 of the VCAT Act and that under section 75 of the VCAT Act, although the onus is on different parties and the standard is to a different degree.
3. My comments regarding the substantive merit, or lack thereof, of VCAT Application P187/2023, contained in the previous section would also apply in relation to this question.
4. As I concluded that the merits of the substantive application are not unarguable, had I determined to extend time under section 126 of the VCAT Act, I would not have summarily dismissed this proceeding pursuant to section 75 of the VCAT Act. This is because the high bar justifying summary dismissal would not be met.
5. However, an application under section 126 of the VCAT Act is more involved than just assessing the merits of the case and for the reasons set out in the preceding section, I have determined that an extension of time should not be granted.
6. In any event, given my decision to refuse the extension of time sought, this is a moot point.

1. As a consequence of the above, VCAT Application P187/2023 is at an end.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Submissions on be [sic] Melbourne Water for Practice Day Hearing, 5 April 2023, [16].

[4] Melbourne Planning Scheme Amendment C384 [2022] PPV.

[5] Affidavit of Laura Ellen Coburn Kenny affirmed on 2 May 2023.

[6] Affidavit of Disha Kamal affirmed on 17 May 2023.

[7] I note, for completeness, that neither Ms Kenny nor Ms Kamal were called to give evidence in support of their respective affidavits.

[8] Response to questions from the Panel, no identified author, undated.

[9] Submissions on be [sic] Melbourne Water for Practice Day Hearing, 5 April 2023, [26].

[10] Ms Kenny's affidavit, [4]-[9].

[12] Ms Kenny's affidavit, [9]-[10].

[14] Submissions for Practice Day Hearing by Matthew Townsend, 5 April 2023, [5] & [10].

[15] Statement of Facts and Grounds Relied Upon, Application pursuant to s 39 of the Planning and Environment Act 1987, [14].

[16] 14 October 2021 to 29 November 2021.

[19] Submissions on be [sic] Melbourne Water for Practice Day Hearing, 5 April 2023, [17]-[18].

[20] Submission in Response to the Request for Summary Dismissal, 10 May 2023, [42], [52].

[23] Coastal Estates Pty Ltd v Bass Coast Shire Council & Ors (Red Dot) [2010] VCAT 1807, [21].

[25] (Red Dot) [2005] VCAT 824.

[26] Submissions for Practice Day Hearing by Matthew Townsend, 5 April 2023, [10].

[27] Submission in Response to the Request for Summary Dismissal, 10 May 2023, [62]-[63].

[32] [2019] VCAT 552.

[33] Outline of Submissions for Practice Day Hearing on 14 April 2023 by Ian Munt, 5 April 2023, [16]-[17].

[35] Outline of Further Submission, 17 May 2023, [9]-[11].

[39] Submissions on be [sic] Melbourne Water for Preliminary Hearing, 17 May 2023, [17].

[40] Submissions on be [sic] Melbourne Water for Practice Day Hearing, 5 April 2023, [70]-[76].

[41] Submissions on be [sic] Melbourne Water for Practice Day Hearing, 5 April 2023, [22]-[25].

[42] Submissions on be [sic] Melbourne Water for Practice Day Hearing, 5 April 2023, [23]-[24].

[43] (Red Dot) [2010] VCAT 1807.

[44] Submissions on be [sic] Melbourne Water for Practice Day Hearing, 5 April 2023, [48.3].

[45] Submissions on be [sic] Melbourne Water for Practice Day Hearing, 5 April 2023, [32]-[33].

[46] Submissions on be [sic] Melbourne Water for Preliminary Hearing, 17 May 2023, [42].

[47] Macquarie Dictionary, online edition, Macmillan Publishers Australia 2023.

[48] Macquarie Dictionary, online edition, Macmillan Publishers Australia 2023.

[49] Macquarie Dictionary, online edition, Macmillan Publishers Australia 2023.

[50] Macquarie Dictionary, online edition, Macmillan Publishers Australia 2023.

[51] Macquarie Dictionary, online edition, Macmillan Publishers Australia 2023.

[52] Macquarie Dictionary, online edition, Macmillan Publishers Australia 2023.

[53] Being 20 business days for a single member planning panel - Ministerial Direction 15, 18 October 2013, [5(a)].

[54] That is, that the proceeding was not summarily dismissed, noting that in light of the substance of the submissions made to the preliminary hearing, MW and the Council might have still sought to summarily dispose of the application.

[55] Section 161(1)(d) of the Act.