1. Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, the application for review is dismissed.

1. This proceeding is an objector's application for review under section 82 of the Planning and Environment Act 1987. The council has issued a notice of decision to grant a permit for development of the subject land for permanent and temporary extensions to an existing concrete batching plant. The purpose of this Practice Day hearing is to consider whether the application for review should be struck out or dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
2. The respondents/permit applicants, which trade under the name of 'Donmix', say that Mr Schinkel is not a person affected by the grant of the permit within the meaning of section 57(1) of the Planning and Environment Act 1987. Further, and in the alternative, they say that the application for review is vexatious and lacking in substance.
3. The subject land contains the remains of the power station and work shops that were a significant part of the former Wonthaggi State Coalmine Centre Precinct. There is an existing concrete batching plant on the subject land which has operated for approximately 40 years.
4. The existing, permanent plant will be upgraded to meet current standards defined by the EPA's publication P628 "Environmental Guidelines for the Concrete Batching Industry". The overall height of the existing silos is 16.7 metres. The overall maximum height of the proposed new silos will be 18.613 metres (an increase in height of 1.913 metres).
5. It is also proposed to establish a temporary concrete batching plant to increase the overall capacity of Donmix to supply concrete to the desalination plant and associated infrastructure whilst it is under construction.

Is Mr Schinkel affected by the grant of the permit?

1. Section 57(1) of the Planning and Environment Act 1987 provides that:

(1) Any person who may be affected by the grant of the permit may object to the grant of a permit.

1. Whilst the rights of third parties to object to the grant of a permit are very broad, they are not open ended.[1] In Guiness Mahon Pty Ltd v City of Moonee Valley[2], Deputy President Byard said:

Whether an objector can convincingly claim to be affected will depend upon the circumstances of the case, it is not just a question of having a house near the appeal site. An application for permission to erect a garage on a backyard residential boundary might be reasonably said to affect only those in the immediate locality. A proposal that will have a dramatic affect on the amenity of the central trading area of a country town, or some principal feature in such a town, might affect all those who live, work or own property in that town. Some proposals have regional or even statewide significance. I do not wish to create a fashion for interstate objections but a proposal that would seriously impair the appearance and integrity of the Sydney Harbour Bridge or the Sydney Opera House or Uluru (Ayers rock) would , I think, legitimately excite the interest of all Australians.

1. In the present case, Mr Schinkel lives in Cowes, approximately 25 kilometres 'as the crow flies' from the subject land and approximately 40 kilometres by road. It is self evident that Mr Schinkel will not be affected by the development in terms of his residential amenity.
2. In addressing how he will be affected, Mr Schinkel says that:

I am a frequent visitor to the land around the subject site and am concerned about ensuring the amenity of the area.

The existing plant is an anomaly in what is an historic mine reserve and recreation area. It perhaps has an existing right, but it seems wrong to increase the size of the plant - especially the temporary plant for the desalination project when the EES recommends that a concrete batching plant would be preferable on site. You feel it would be environmentally preferable, and would cause less traffic congestion and associated problems, especially on West Area Road, to adhere to the EES.

I hope I have established that the land surrounding the subject site is part of my recreation, and thus my interest in the area and how I would be affected by the granting of a permit.

1. In support of this submission, Mr Schinkel submitted a brochure showing walking tracks around the Wonthaggi State Coalmine Historic Reserve Central Area, which he says that he uses as part of his recreation. He provided no information about how frequently he undertook these walks. He also referred to a newspaper article reporting on walking groups utilising the State Coalmine Area.
2. I do not find that Mr Schinkel is a frequent visitor to the land. Mr Schinkel may be an occasional visitor, but I do not consider this fact alone means that he would affected by the grant of a permit. The Wonthaggi State Coalmine Historic Reserve is a specialised area with a mining and industrial history. It is this character that provides the attraction for visitors and the amenity of the area is characterised by its history. If Mr Schinkel does not like the amenity associated with the inherent character of the site, he is under no obligation to visit.
3. I do not consider he has any special interest in the site that constitutes an interest which may be affected by the grant of this permit for an industrial development in an industrial setting. To the contrary, I find that the grant of a permit will have no affect on him either directly or indirectly.
4. I therefore find that Mr Schinkel is not a person affected by the grant of the permit within the meaning of section 57(1) of the Planning and Environment Act 1987.

1. Rather than having a genuine interest in this site as a visitor concerned about its amenity, I consider that Mr Schinkel's interest in the grant of this permit is motivated by his opposition to the Victorian Desalination Plant project at Wonthaggi.
2. Mr Schinkel is a vehement objector to the Victorian Desalination Project. He was a submitter to the panel considering the Environment Effect Statement and has made a number of submissions to various bodies about matters relating to the desalination plant.[3] Mr Schinkel has been a participant in protests against the project, including entering the Donmix site as part of a protest on 26 May 2008. He has made threats to Donmix about it becoming involved in the desalination plant project, such as the following, which were included in a letter to Kevin Donohue of Donmix Quarries dated 27 April 2009:

I strongly advise against any further involvement by your company in any matter relating to the Environment Effects Statement for the Victorian Desalination Project.

You should seek to distance yourself from any matter related to the ESS. You should have no involvement whatsoever in any road construction for the proposed desalination plant.

1. Further, Mr Schinkel advised that the fee for his application for review was paid by the group known as Watershed Victoria, which according to its website is an Anti-Desalination Plant Group.
2. The relevant test for determining whether an application is vexatious was expressed by Roden J in Attorney General (Vic) v Wentworth[4]:

It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing a person against whom they are brought;
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the Court adjudicate on the issues to which they give rise;
3. They are also properly regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable and manifestly groundless as to be utterly hopeless.
4. Applying these tests to the current situation, I find that this proceeding is vexatious because the application for review can be characterised as falling within the first two of these categories.
5. Based on the views expressed by Mr Schinkel in his letter to Donmix and verbal communications with Paul Donohue[5], I consider that he is seeking to annoy Donmix, such that Donmix may abandon its proposal to supply concrete to the desalination plant project.
6. I find that the application has been brought for collateral purposes. I have formed the view that Mr Schinkel is seeking to disrupt construction of the desalination plant and that by making this application for review, it will delay the grant of the permit, which means that Donmix will be delayed in construction of the temporary concrete batching plant and its ability to supply concrete to the desalination plant project.

1. Under section 75 Victorian Civil & Administrative Tribunal Act 1998 an application may be summarily dismissed or struck out because it is lacking in substance.
2. The statement of grounds relied upon by Mr Schinkel in his application for review are as follows:
   • Little assessment of proposal against EPA regulations
   • Adverse visual impact
   • Generation of wastes
   • Deviation from Victorian Desalination Project EES
   • Height
   • Impact on emergency services flight path
3. When I questioned Mr Schinkel at the hearing about the detail of these grounds and asked him to explain, for example, what the adverse visual impact of the development would be or what generation of wastes he was referring to, he was unable to provide any detail. His response was simply that these matters deserved being tested at the hearing. In my view, this response simply confirms the conclusion I have reached that the purpose of this application for review is to delay the grant of the permit and to put pressure on Donmix to abandon its proposal to supply concrete to the desalination plant project. The application is not based on any substantive grounds that would be likely to result in a decision being made to refuse the permit or alter the conditions.
4. Overall, I find that the proceeding is lacking in substance and there is nothing in any of the statement of grounds that would justify a hearing on the merits.

1. For these reasons, I have concluded that the application should be dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the grounds that.
   • It is misconceived because Mr Schinkel is not a person who may be affected by the grant of the permit.
   • The proceeding is vexatious because it is brought for a collateral purpose and for the intention of annoying Donmix.
   • It is lacking in substance.
2. The effect of dismissing the application for review is that the council must now issue the permit on the conditions set out in the Notice of Decision[6].

[1] See Proctor v Melton SC [2003] VCAT 1520; Schadband v Murrindindi SC [2005] VCAT 1039; and Friends of the Wildlife Reserves Inc v Darebin CC [2005] VCAT 137 at [28]

[2] 15 AATR 176 at 181-182

[3] Exhibits to affidavit of Paul Donohue.

[4] (1998) 14 NSW LR 418 at 491

[5] Attested to in the affidavit of Paul Donohue dated 27 November 2009 and not denied by Mr Schinkel. Mr Donohue gave sworn evidence as to the contents of his affidavit. Mr Schinkel did not ask him any questions. However, Mr Schinkel said later in his submission that the person referred to in Mr Donohue's affidavit as accompanying him when he entered the Donmix site on 26 May 2008 was not Andrea Bolsch, but Jessica Harrison. Whether or not Mr Donohue correctly identified the woman accompanying Mr Schinkel when they entered the Donmix site is not relevant in my view. What is relevant is that Mr Schinkel's presence and the substance of his communication with Mr Donohue was not denied by Mr Schinkel.

[6] Section 64(3)(b) of the Planning and Environment Act 1987.