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

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

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

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

1. Any request for procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.

Jane Sharp of Counsel, instructed by Claire Baker of Urbankind.

1. The purposes of the preliminary hearing were to consider:
   1. the permit triggers that apply to planning application no 24/0204-1 which concerns an amendment to planning permit no 24/0204;
   2. the impacts of Planning Scheme Amendment VC288 on the assessment of planning application no 24/0204-1;
   3. the extent of VCAT's jurisdiction in application for review P988/2024; and
   4. directions about the future conduct of the proceeding.
2. The parties all filed written submissions in advance of the preliminary hearing and made oral submissions during the hearing.
3. The application before the Tribunal is an application made under section 82 of the Planning and Environment Act 1987 (Vic) by an objector ('applicant') to review the decision of the Surf Coast Shire Council ('council') to amend Permit 24/0204 ('the permit').
4. The permit was issued on 16 May 2025 and corrected on 10 July 2025 and allows the following:
   1. Construction of a building or construction or carrying out of works within the Neighbourhood Character Overlay ('NCO') pursuant to clause 43.05-2 of the Surf Coast Planning Scheme ('Scheme').
   2. Construction or extension of an outbuilding normal to a dwelling within the NCO, Schedule 3 ('NCO3'), pursuant to clause 43.05-2 of the Scheme and clause 3.0 of the NCO3.
   3. Construction of a building or construction or carrying out of works associated with accommodation within the Bushfire Management Overlay ('BMO'), pursuant to clause 44.06-2 of the Scheme.
5. No application for review was filed with respect to the original notice of decision to grant the permit.
6. Plans were endorsed by the council pursuant to condition 2 of the permit on 20 June 2025.
7. On 23 June 2025 an application to amend the permit was lodged with the council. On 16 October 2025, the council issued a notice of decision to amend the permit. In the notice of decision, the amendment is described as follows:
   1. Change to endorsed plan.
   2. Delete condition 4.
   3. New conditions (17, 18, 19).
8. The new conditions include the requirement for amended plans to be prepared, approved and endorsed, which are generally in accordance with the plans lodged on 23 June 2025, but amended to include further required details. They also include the removal of the site office attached to the dwelling following the issue of a certificate of occupancy and a bushfire management plan to be submitted and endorsed. This condition replaces condition 4 which previously required a bushfire management plan.
9. This application to the Tribunal is an application to review the council's notice of decision to amend the permit.
10. It was explained by the council that the proposed amendment to the plans includes the following[2]:
    1. Additional garden sheds in north-west corner of site
    2. Screen to the south of the garden sheds
    3. Extension to pergola and alfresco area
    4. Changes to carport and access arrangements
    5. Relocation of water tanks
    6. Changes to front decking area
    7. Alterations to house including new window and associated screen
    8. Changes to external cladding - elevation E
11. The council explained, and the respondent agreed, that the additional garden sheds and their screening were amendments to account for works already completed (retrospective approval sought) while the other amendments are changes that are sought to the proposal.

1. The purpose of the preliminary hearing concerning the extent of the Tribunal jurisdiction in this application for review is due to the applicant's assertion that the application for review allows the Tribunal to consider the entirety of the permit including elements of the permit that are not amendments. The applicant submits that the Tribunal should take a holistic approach to the assessment of this application and that it should be open to the Tribunal to consider the council processing of the initial application for permit and the decision to grant that permit including the entirety of that permission. The applicant also sought, if required, to extend the time of commencing this application, relying on established principles used to consider extensions of time sought pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1988 (Vic) ('VCAT Act').
2. As I explained during the hearing, this application was made within time so there is no need to apply for an extension of time to make this application. There was no application made to review the council's decision to issue the permit in the form issued on 16 May 2025 and there is no current application under any section of the VCAT Act that seeks to challenge the decision to grant the permit issued on 16 May 2025.
3. This application relates only to the amendments to the permit that were sought via the application for amendment filed with the council on 23 June 2025.
4. As such, the Tribunal's jurisdiction in this application for review is limited to a review of the amendments sought in this application. The Tribunal does not have jurisdiction to review the development approved by the permit issued on 16 May 2025 (as corrected on 10 July 2025).
5. The respondent submitted that the Tribunal and courts have consistently been clear that the scope of an application to review an amendment is limited to the amendments only. The respondent referred to several decisions, which were later filed with the Tribunal and served on parties. Included in those decisions was the decision of JD Bridport Street 1 Pty Ltd v Port Phillip CC (No. 2) [2025] VCAT 930, where the Tribunal stated as follows:
   1. Our scope is confined to the amendments in the application before us.33 In this case, plans have been endorsed by the Council and, as already stated, it is not within our scope to re-visit that fact.
   2. Some submissions seek to reagitate matters that are unchanged from the previous decision. This is also not within our scope.34

[33] Silberscher v Stonnington CC [2015] VCAT 1204, [7] citing Austcom Pty Ltd v Buckerfield Pty Ltd [1999] VSC 23, [26]; Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466, [43].

[34] Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466, [43].

1. The following explanation was provided in Silberscher v Stonnington CC [2015] VCAT 1204, cited in the footnote above, arising from an earlier Supreme Court decision:
   1. It is well-established authority that, in an application to amend a permit, a decision-maker must confine its considerations to the proposed amendments to the permit.4 Put another way, the decision-maker must focus only on the proposed differences to the permitted use or development. What has been permitted and is not proposed to be changed is not open for reconsideration.
2. The decision of Callea Property Developments Pty Ltd v Wyndham CC, also referenced in the footnote above, confirms the need to focus on the proposed changes rather than reopening the whole proposal, in applications for amendment of permits:
   1. The approach adopted by Tribunals when considering the amendment of permits, whether under section 87A or section 72, has focussed on the proposed changes, rather than reopening debate about the whole proposal.
3. Consistent with this approach, the jurisdiction of the Tribunal in this application is a review of the council's notice of decision to amend the permit, which comprises changes to the endorsed plans as described, deletion of condition 4 and inclusion of new conditions 17, 18 and 19. It is those matters that can be addressed in submissions at the final hearing of this matter, subject to the BMO exclusions discussed later in this decision. Matters concerning the original consideration by the council of the permit and the issue of the permit by the council, including any elements of the plans not proposed to be amended, are not matters of relevance to the Tribunal in the determination of this application.

1. The land is located in the General Residential Zone, Schedule 1 ('GRZ1'). No permission was initially required for the buildings and works allowed under the permit and no permission is required under the GRZ1 for the additional works sought through the amendment. The land is affected by several overlays, being the NCO3, BMO, Schedule 2 ('BMO2'), Significant Landscape Overlay, Schedule 3, and the Design and Development Overlay, Schedule 19 ('DDO19').
2. The parties agreed that the permissions required for the amendments sought arise from the NCO, the NCO3 and the BMO.
3. Specifically, a planning permit is required to construct a building or construct or carry out works under the NCO.
4. Clause 43.05-2 provides that a permit is not required for construction of an outdoor swimming pool associated with a dwelling or for the construction or extension of an outbuilding normal to a dwelling unless a specific requirement for this matter is specified in a schedule to the overlay.
5. The NCO3, at clause 3.0, provides that a permit is required to construct an outdoor swimming pool associated with a dwelling and to construct or extend an outbuilding normal to a dwelling.
6. Additionally, the BMO provides that a permit is required to construct a building or construct or carry out works associated with accommodation.
7. All parties agreed that these are permit triggers for this application.
8. Where the parties depart from agreement are:
   1. The applicant's submission that they should be able to address matters concerning the BMO in their application for review, including matters within clause 53.02 of the Scheme - Bushfire Planning; and
   2. The applicant's submission that further planning permission is required under the Design and Development Overlay, Schedule 19 ('DDO19') for the fences/screens proposed.

1. It was explained during the hearing that the BMO, at clause 44.06-8, contains the following exemptions from notice and review:

An application is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act, unless a schedule to this overlay specifies otherwise.

A schedule to this overlay may specify that notice be given to any person or body in accordance with section 52(1)(c) of the Act.

1. The BMO2 does not include any provisions for notice to be given.
2. The effect of this exemption has been considered in several recent Tribunal and Court decisions, which have confirmed that where such an exemption exists, those people for whom the exemption applies are unable to make submissions at a Tribunal hearing with respect to matters that are exempt for review. In this application, that means that the permission sought to be obtained to grant a permit under the BMO is not reviewable by an objector, the applicant in this case, and not able to be addressed in submissions or considered by the Tribunal on review. The Tribunal review relates only to the permissions that are not exempt. In this case, they are the permissions under the NCO and the NCO3.
3. This principle is explained in the following decisions.
4. In Clifftop at Hepburn Pty Ltd v Hepburn SC [2024] VCAT 433, the Tribunal referred to a question of law determined in a preliminary hearing in that application, as follows:

18. The question of law was:

What is the extent to which respondents can make submissions about matters relating to the Bushfire Management Overlay and other bushfire related matters having regard to the exemptions from notice, decision requirements and rights of review set out in Clause 44.06-7 of the Hepburn Planning Scheme?

19. The answer given to the question of law was as follows:

Third parties are not entitled to be involved in the Tribunal's consideration of the permit trigger under the BMO through the making of submissions or the cross-examination of any witness dealing with the BMO permission sought.

In the application before us the BMO 'covers the field' with respect to bushfire hazard assessment and management, given the location of the Land in an area subject to extreme bushfire behaviour. As such, clause 13.02-1S will only be taken into account in assessing the BMO permission and will not be taken into account in assessing any permit triggers for the proposal other than the BMO. Accordingly, third parties cannot make submissions or cross-examine any witness with respect to any bushfire hazard matters.

The Tribunal will not hear from third parties with respect to bushfire hazard related matters.

1. Arising from this ruling, third parties were not able to make submissions to the Tribunal, or be involved in the cross-examination of witnesses, with respect to bushfire hazard related matters.
2. In Myers v Southern Grampians Shire Council [2023] VSC 658 (footnotes excluded), the Supreme Court, on reviewing a Tribunal decision, confirmed that where an application for review is brought involving exempt and non-exempt permissions, not all of the planning provisions will be open to review:
   1. Where an application for review is brought involving exempt and non‑exempt permissions, not all of the planning provisions will necessarily be open to review by the Tribunal. As identified by Ashley J in Sweetvale, such an outcome is 'plainly dictated by the legislation'.78 It would not be possible to give effect to the clear intention of the legislature to exclude certain classes of permissions from third party review rights if the Tribunal's jurisdiction could be enlivened or overridden by policy aspirations for integrated decision‑making.
   2. In my view, the manner in which the Tribunal proceeded, given the limitation on the jurisdiction to reconsider the decision already made under the DDO‑6, was consistent with the principles of integrated decision-making.
   3. The Tribunal's approach to confining the exercise of its jurisdiction to the RLZ and ESO‑3 was correct, and did not exceed its jurisdiction. Properly understood, the application before it was limited to the review for permissions for which it had jurisdiction, and no more. Insofar as there is any ambiguity in the orders made in the Tribunal's decision, the Reasons and orders must be read as confined to the ambit of the review that was before it. It was clear in the Legal Opinion, and the Reasons in respect of merits, that the review was limited to those provisions. The amendment of the plans must also be confined to the application ambit before it. This conclusion is not contrary to the principle of integrated decision-making when it is acknowledged that under the Planning Act and Planning Scheme, the Tribunal has no jurisdiction to review exempt provisions.
3. In Trickey v Mount Alexander SC [2024] VCAT 863, the Tribunal summarised this as follows:
   1. It is clear having regard to the operation of the Act and the Scheme, and confirmed following the decision of the Supreme Court of Victoria in Myers v Southern Grampians Shire Council ('Myers') that in a proceeding of this kind brought under section 82 of the Act, the Tribunal only has before it for review the permissions that are amenable to third party review.
4. The BMO permission is a permit trigger but not amenable to third party review and therefore not a permission that can be considered by the Tribunal in this proceeding. This includes any assessment of clause 53.02 - Bushfire Planning, as it applies to this application. The purpose of clause 53.02 includes specifying location, design and construction measures for a single dwelling that reduces the bushfire risk to life and property to an acceptable level. Clause 53.02-1 provides that the clause applies to an application under clause 44.06 - the BMO. It does not separately include permit triggers but its content must be considered by the council once a planning permit is required under the BMO. Given its application is directly connected to the permission under the BMO, which is exempt from review, clause 53.02 is also not a matter that can be considered by the Tribunal in this proceeding or form the basis of submissions by the applicant.

1. The proposed amendments include three instances of fencing/screening, including one that has already been erected and for which retrospective approval is sought. They are shown on the plans as follows - noting that these images are screen shots taken from larger plans to zoom in on the proposed fence/screen.

1. The first of these is the largest, providing screening around the garden sheds. The second and third are small and proposed to facilitate some screening of the residence and the carport.
2. None of these are on the boundary, which is delineated by post and wire fencing.
3. The description of the structure around the garden sheds is 'screen wall, 50mm wide timber slats with 10mm gap, 2740mm high to 1800mm high'. It appears that the others two structures are proposed to be constructed with the same material.
4. The council and respondent submit that these structures are buildings and works that require approval under the NCO but should not be considered fences as that term is understood within DDO19.
5. DDO19 applies to Anglesea Residential Areas. At clause 1.0 it includes the following design objectives:

To preserve and enhance the low density non-suburban coastal character of Anglesea and retain the sense of houses in a bush setting.

To ensure lots are of a sufficient size and dimension to maintain adequate area around buildings to support the preservation and re-establishment of vegetation that enhances screening of development from adjoining properties and public areas, and to allow for the creation and management of defendable space for bushfire protection.

To encourage a diversity of dwelling types and sizes within walking distance of the commercial centres.

To retain a sense of openness between properties by encouraging the use of open style fencing and vegetation in preference to solid forms of fencing.

1. A permit is not required under DDO19 to construct a building or construct or carry out works. A permit is required to construct a fence, unless it meets certain specifications, including being of post and wire construction not more that 1.5 metres in height. The boundary fencing is therefore exempt from requiring a permit under the DDO19. The applicant submits that a permit is required for the three fence/screens proposed by the amendment.
2. In the decision guidelines and throughout the DDO19 there are references to a fence 'located forward of the front building', 'on side and rear boundaries', 'fencing abutting a public open space reserve or walkway'.
3. Fence is not a word defined in the Scheme or the PE Act.
4. The Macquarie Dictionary definition of fence, as relevant, is:

The Macquarie Dictionary definition of screen, as relevant, is:

1. The council provided a photograph of a part of the fence/screen already constructed. It is included below:

1. The image certainly appears to be what would ordinarily be described as a fence, albeit not on the boundary and not fully enclosing anything. While its visual appearance is akin to a fence, its purpose is to screen rather than to enclose or fence in/off an area or a property. It is not disputed that the boundary fencing exists and does not require planning permission under the DDO19.
2. I appreciate the concerns of the applicant in considering the design objectives of the DDO19 and the intention of retaining a sense of openness between properties by encouraging the use of open style fencing and vegetation in preference to solid forms of fencing.
3. However, the sense of openness between properties remains given the post and wire fencing erected along the boundary. It is only around the garden sheds, and in a reduced form in two other locations that these screening works are proposed.
4. According to the dictionary definitions, the proposed works could potentially meet either or both definitions, in that they are 'a barrier... of wood' and also a 'a covered frame or the like, movable or fixed, serving as a... partition' and 'anything that shelters, protects or conceals'. However, the definition of fence is of an enclosure or barrier. The structures proposed do not enclose anything and, arguably, are not a barrier because there is no difficulty in traversing around them. In that sense, their real and substantial purpose is a screen. The largest structure provides a screen between the dwelling and the sheds, and the smaller structures provide screening to other elements of the dwelling.
5. Having regard to the drafting of the DDO19, I consider that the intent of the provisions is to require planning permission for boundary fencing or fencing that fully encloses a dwelling or would otherwise remove the sense of openness between properties. In terms of the overall development, the fence/screens proposed form a minor element within the development. The overall site plan is included below.

1. While the appearance of the constructed fence/screen would generally be described as a fence by the reasonable person viewing it due to the height and building materials, I find that it is not a fence of the type that the DDO19 is seeking to control, given its location within the property providing a screen between the dwelling and the outbuildings as opposed to between neighbouring dwellings, and its limited length when compared with the length of the property overall as well as not fully enclosing any of the spaces. In this sense I find it is not a fence as that term is understood in the DDO19. As noted earlier, it is arguable that it also does not meet the dictionary definition of fence due to the lack of enclosure or barrier. This is true for the smaller structures also.
2. For all of these reasons, I find that the structures do not comprise fencing that requires planning permission under the DDO19.
3. I agree with the council and respondent, however, that they each of the three proposed screening structures do comprise buildings and works that must be assessed and which require permission under the NCO controls.

1. The council made the following submissions with respect to the practice day purpose of considering the impacts of Planning Scheme Amendment VC288 on the assessment of planning application no 24/0204-1:
   1. The order references amendment VC288 which introduces additional VicSmart provisions for the construction of two dwellings on a lot and the subdivision of land into two lots, which do not form part of this application. It is presumed that this is a clerical error, and the intent of the order was to reference VC282 which introduces a new clause 54.
   2. The amendment application was assessed against the version of Clause 54 (with NCO3 modifications) approved by VC282, and found to be generally compliant. The permit is triggered by the Neighbourhood Character Overlay (NCO), which is silent in its wording relating to any transitional arrangements. Therefore, an assessment against the new Clause 54 provisions as implemented under VC282 is required under the NCO regardless of lodgement date.
2. I agree that Planning Scheme Amendment VC282 is the amendment that ought to have been referenced. All parties agreed with the submissions of the council that transitional provisions do not apply with respect to the planning permission sought under the NCO, and an assessment under the new clause 54 provisions is required. I agree that this is the correct understanding.
3. The council also confirmed that when VC282 was amended by VC292 to include the NCO provisions, the NCO3 was also amended to refer to the updated clause 54, which is what the council has used to assess this application.

1. The Tribunal role in this application is to review the decision of the council to grant an amendment to permit 24/0204. In doing so, the review is confined to the amendments to the original permission granted.
2. The permit triggers that are under review in this proceeding arise from the NCO and the NCO3. There is no permission required under the DDO19 and the permission under the BMO is not a matter reviewable by this application.
3. The compulsory conference and hearing dates are confirmed.

[1] The submissions 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.

[2] This was a general explanation in response to Tribunal questions. It may not reflect every detail of the amendments proposed to the plans.