1. This application is listed for a compulsory conference and a hearing as detailed below.

If there is any change to these details, the Tribunal will notify you.

4 March 2026

2.00 pm - 5.00 pm

VCAT Melbourne, 55 King Street, MELBOURNE VIC 3000

27 & 28 May 2026

10.00 am - 4.00 pm

VCAT Melbourne, 308 LaTrobe Street, MELBOURNE VIC 3000

Details of the location of the compulsory conference and hearing will be published on the Tribunal's website, under 'Upcoming Hearings' on the afternoon of the day prior to the hearing - www.vcat.vic.gov.au/upcoming-hearings

1. By 10 February 2026 the applicants must give the following documents to the responsible authority (where not the applicant):
   • a copy of the amended application and all attachments; and
   • any other material given to the Tribunal.
2. By 10 February 2026 the applicants must give the following documents to the persons who are named in the application as respondents and to the owners and the occupiers of the land (if they are not the applicant or already named as respondents or affected persons):
   • a copy of the amended application and all attachments; and
   • any other material given to the Tribunal; and
   • a copy of this order and attached reasons; and
   • a letter which must:
     • explain that an application for enforcement order has been lodged and the Tribunal requires the documents to be given to any respondents, the owner and the occupier of the land; and
     • explain that if those persons wish to object to the making of the enforcement order, they must lodge a statement of grounds detailing their objection with the Tribunal by 26 February 2026 and if no statement of grounds is received by the Tribunal by that date, the Tribunal may make an enforcement order that adversely affects their interests without hearing from those persons; and
     • include the link to the online 'Statement of Grounds by a Respondent - Enforcement' form on the Tribunal's website (https://www.vcat.vic.gov.au/documents/forms/statement-grounds-respondent-enforcement); and
     • specify the dates and times of the compulsory conference and hearing contained in Order 1.
3. By 10 February 2026 the applicants must give the following documents to the persons who are named in the application as affected persons (if any):
   • a copy of the application and all attachments; and
   • any other material given to the Tribunal; and
   • a copy of this order; and
   • a letter which must:
     • explain that an application for enforcement order has been lodged and the Tribunal requires the documents to be given to any person who may be affected by the alleged contravention or the making of an enforcement order; and
     • explain that if the affected person wishes to be heard or to make a written submission in respect of the application for enforcement order, they must lodge a statement of grounds detailing their submission with the Tribunal by 26 February 2026 and that the Tribunal will consider the nature of their involvement in the proceedings at the practice day hearing; and
     • include the link to the online 'Statement of Grounds by an Affected Person - Enforcement' form on the Tribunal's website (https://www.vcat.vic.gov.au/documents/forms/statement-grounds-affected-person-enforcement); and
     • specify the dates and times of the compulsory conference and hearing contained in Order 1.
4. By 12 February 2026 the applicant must give to the Tribunal:
   • a completed statement of service; and
   • a list of names and addresses of all persons and authorities to whom the documents were given; and
   • a sample of the letter sent with the documents.

If a statement of service is not given to the Tribunal by 12 February 2026, this application may be struck out without further notice. No reminder will be sent.

1. As the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees.

1. By 23 February 2026 the responsible authority must give the information required by the Tribunal's Practice Notice PNPE2 - Information from Decision Makers (PNPE2) to the Tribunal, unless this material has already been given in another related proceeding. The responsible authority must give a copy of the completed table of Practice Note PNPE2 to the applicant. The attachments do not need to be given to the applicant.
2. Where the responsible authority is not the applicant, by 23 February 2026 the responsible authority must complete a Statement of Grounds online at https://www.vcat.vic.gov.au/documents/forms/statement-grounds-respondent-enforcement and give a copy to the applicant, any respondent and any affected person.

What must a respondent, owner or occupier do?

1. If you are a respondent, owner or occupier and you want to object to or state your position on the making of the enforcement order sought by the applicant, you must complete a Statement of Grounds online at https://www.vcat.vic.gov.au/documents/forms/statement-grounds-respondent-enforcement and give a copy to the applicant and the responsible authority by 26 February 2026.

1. If you are an affected person and you want the Tribunal to consider your position on the application for enforcement order:
   • you must complete a Statement of Grounds online at https://www.vcat.vic.gov.au/documents/forms/statement-grounds-affected-person-enforcement and give a copy to the applicant and the responsible authority by 26 February 2026.
   • if you also want to appear and present a submission at the hearing you must indicate this in your Statement of Grounds form and attend the next scheduled hearing so that the Tribunal can consider your role in the proceeding. (Note: you must also pay a fee. Information regarding fees is available at www.vcat.vic.gov.au/fees.)

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. 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 20 business days before the hearing, the applicant must provide the Tribunal and all parties with:
   • a list of all of the lay and expert witnesses that they intend to call or make available to give evidence at the hearing; and
   • a witness statement from each lay or expert witness that they intend to rely on at the hearing, not yet provided. All expert witness statements must be prepared in accordance with Practice Note - PNVCAT2 Expert Evidence.
2. No later than 15 business days before the hearing, the respondent and any other party must provide the Tribunal and all parties with:
   • a list of all of the lay and expert witnesses that they intend to call or make available to give evidence at the hearing; and
   • a witness statement from each lay or expert witness that they intend to rely on at the hearing, not yet provided. All expert witness statements must be prepared in accordance with Practice Note - PNVCAT2 Expert Evidence.
3. No later than 10 business days before the hearing, the applicant must provide an electronic copy of their submissions and associated material (such as supporting documentation and case law) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@courts.vic.gov.au
4. No later than 5 business days before the hearing, all other parties must provide an electronic copy of their submissions and associated material (such as supporting documentation and case law) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@courts.vic.gov.au

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

1. The applicants reside in two separate apartments in inner Melbourne. They lodged an application for interim enforcement order because of their concerns about an air handling system (or other mechanical equipment) on the rooftop of an adjacent property.
2. They claim to experience impacts on their residential amenity from mechanical noise and are also concerned about the visual impact of the works.
3. They also take issue with the recent change in use of the tenancy at Level 2 of the subject land, which they claim may be a bar (which would require planning permission) and not a restaurant.
4. However, they lodged the application for interim enforcement order and enforcement order against Melbourne City Council ('Council') as sole respondent.
5. The interim enforcement application was listed for a hearing with the following purpose:
   1. to consider the identity of the respondent, including whether it is capable of having an interest in the land sufficient to be a person against whom an enforcement order can be made pursuant to section 114(3) of the Planning and Environment Act 1987 (Vic) (PE Act);
   2. to consider the alleged contraventions and the power of the Tribunal to make orders in relation to them;
   3. if the Tribunal has the power to make orders in relation to the alleged contraventions, to consider whether to grant the application for an interim enforcement order having regard to section 120 of the PE Act; and
   4. to give directions about the future conduct of the proceeding.

1. The land is within the Capital City Zone (Schedule 2) and is covered by a series of overlays, most relevantly the Heritage Overlay (Schedules 1081 and 1290).
2. Council explained that at the current time, it appears that the Level 2 tenancy is operating as a restaurant, not a bar, which would not require separate planning permission. For reference, it is called Jaya Kitchen & Bar.
3. It also has the benefit of a liquor licence and these conditions would need to be adhered to.
4. Beyond this, it would be required to comply with the Environment Protection Regulations 2021, as assessed in accordance with Publication 1826: Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues ('Noise Protocol') and potentially Clause 53.06 of the Melbourne Planning Scheme (if live music was played, as claimed).
5. Council also confirmed there is a current planning permit (No. TP-2012-83/A) that allows the development of rooftop machinery under the Heritage Overlay since this is partly visible from a street (being the trigger for permission under the Heritage Overlay).
6. While plans have been endorsed under this permit in 2013 and 2016, further physical modifications were carried out as recently as November 2025 that would require further changes to the endorsed plans.
7. I note that this process of amending the endorsed plans would not carry review rights for third parties such as the applicants, and the relevant considerations would be limited to heritage impacts.
8. Council is also working to ensure there is compliance with relevant building requirements.
9. Beyond this, the planning permit also contains a condition limiting the emission of mechanical noise to comply with (former) State Environment Protection Policy No. N-1.
10. The current system for noise emissions in Victoria is governed by the Noise Protocol.
11. I make no findings about the effect of the condition requiring compliance with SEPP N-1 as an alternative at this stage.

1. Council submitted that it was not a proper respondent to the proceeding, such that the application for interim enforcement order was misconceived and should be struck out.
2. The applicants sought an enforcement order to require the immediate cessation of the use of the bar, and immediate action to modify the air handling system to being it into compliance with relevant codes.
3. The applicants relied on a report prepared by Mr Tardio of Enfield Acoustics which undertook testing during the night time period and found an exceedence of 8-9dB at the applicants' properties relative to the Noise Protocol.
4. He suggested a few potential avenues to overcome this, including potential limitations on hours of use, relocation/redesign, acoustic attenuation or acoustic screening.

1. Although Council is the responsible authority, being the entity responsible for the planning scheme and its enforcement, it does not have any other interest in this land.
2. More specifically, it is not an owner, occupier or developer of the private land in question and does not have any other identifiable interest.
3. Therefore, there is no capacity to make an enforcement order against this entity, as it does not come within section 114(3) of the Planning and Environment Act 1987 ('PE Act') as required for an application under sections 114 and 120 of that Act.
4. On this basis alone, it would be appropriate to summarily dismiss the application for interim enforcement order as misconceived.
5. However, I would otherwise have refused the application for interim enforcement order because I have concerns about the potential success of this case on its merits.
6. There was therefore no utility in providing the applicants with an opportunity to amend the application for interim enforcement order to include alternative respondents.
7. In these circumstances, I did not need to hear from affected owners/occupiers before making this decision. I note the owners and occupiers do not appear to have been given notice of this hearing by the applicants as required by Order 3 of the Tribunal's Initiating Order dated 23 December 2025.
8. The decision whether to issue an interim enforcement order is at the discretion of the Tribunal.
9. I find that there are two issues 'to be tried' - whether they are 'serious' as outlined in relevant case law is more debatable.
10. The first is whether all relevant permissions have been obtained for the relevant machinery. It seems likely at this stage that amended plans are required for endorsement, to the satisfaction of the Responsible Authority.
11. The second is whether the noise emissions from the machinery exceed applicable standards or are unreasonable. On the written (but untested) evidence of Mr Tardio, it seems there is a potentially viable case for the applicants.
12. However, I would not have been persuaded on the material currently before me that there is a serious question to be tried as to whether the premises on Level 2 is operating as a bar without planning permission, or that any urgent relief is otherwise required.
13. While there appear to be some legitimate issues in respect of the air handling/mechanical system that require resolution, they do not appear to justify urgent action, such as by way of modification or restrictions on use having regard to the current scale of impact.
14. I considered submissions and other material provided by the applicants indicating that they have trouble sleeping if they use a second bedroom, or open windows since the machinery operates continuously. They described this as a constant sound, that also affects their daytime use of outdoor balconies.
15. Although the current design of the system may not have planning approval, this could be pursued in the ordinary course, as could modifications to reduce its visual impact if appropriate.
16. The applicants had also not suitably particularised what urgent relief should be granted if an interim enforcement order were made, other than broadly referring to bringing the air handling system into compliance with relevant codes.
17. The applicants have also not given any undertaking as to damages in the event the Tribunal may ultimately decline to issue an enforcement order on the claims before it.
18. I am required to act fairly and to focus on the substantial merits of this case.
19. In this case, the balance of convenience and the lower risk of injustice favour refusing the application for interim enforcement order.

Further steps - listing a compulsory conference and hearing

1. I find that the substantive issues before me can all be explored and potentially resolved within the context of the application for enforcement order if amended (rather than an interim enforcement order).
2. Proper respondents may be the owners and occupiers of the land in question, as well as the owners corporation if the infrastructure is located on common property. The occupiers may also include those tenancies who use the relevant rooftop machinery.
3. I have provided leave to the applicants to amend their application accordingly.
4. This will require all proper parties to attend a compulsory conference to explore potential settlement options.
5. If this is not fully successful, the matter can proceed to a hearing.

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

For information about what happens after you make your application, visit

www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9:00am to 4:30pm to request a paper copy.

To find out about the Tribunal's support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

**

A compulsory conference is a private meeting between the parties to the proceeding.

With the assistance of a Tribunal member the parties can explore options to reach an agreement on all or some of the matters in dispute. The parties should come with an open mind and flexibility in considering options that could resolve the case.

Unless all parties agree, evidence of anything said or done in the course of a compulsory conference (including any document provided to the Tribunal for the purpose of the compulsory conference) is not admissible in any hearing before the Tribunal in the proceeding.

More information about compulsory conferences is available on the Tribunal's website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 - Alternative Dispute Resolution (ADR).

If you are a party, you must attend the compulsory conference in person or by a representative who has written permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in an adverse way.

The Tribunal may make any of the following orders under the Victorian Civil and Administrative Tribunal Act 1998 (Vic):

• If you are the applicant, your application may be dismissed or struck out.
• If you are not the applicant, you may be struck out as a party. This means that you can take no further part in the proceeding, including the hearing.
• The matter may also be settled, for example, by approving the proposal with or without changes.
• You may be ordered to pay the costs of the other parties in certain circumstances.

Only parties to the proceeding may attend a compulsory conference.

If you are not joined as party, you cannot take any part in the compulsory conference and the Tribunal may make a final order or make other orders that may affect you in an adverse way.

A party who is struck out because they do not attend a compulsory conference cannot participate in any further compulsory conference or hearing.

What happens if agreement is reached at the compulsory conference?

If the parties present at a compulsory conference reach agreement, the Tribunal may make a final order to give effect to the agreement without a hearing being required. This can include allowing the proposal with or without changes.

What happens if agreement is not reached at the compulsory conference?

If parties present at the compulsory conference do not reach an agreement, a hearing date/s will be confirmed. An order will be issued by the Tribunal.

What happens if a partial agreement is reached at the compulsory conference?

If the parties reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference.

What should you bring to the compulsory conference?

Parties should be come to the compulsory conference with a summary of their issues and solutions. This could include possible changes that could be made to the proposal in order to address your concerns or the concerns of other parties. The attached 'Summary of Issues and Solutions for a Compulsory Conference' may be used. The applicant for the permit should bring an extra copy of any relevant plans including elevations.

SUMMARY OF ISSUES AND SOLUTIONS FOR A COMPULSORY CONFERENCE**

It is suggested that each party identify key issues and potential solutions before the compulsory conference. This will help to clarify the key issues that the parties consider most important to them and possible solutions.

Most important issues in dispute from your perspective (including any legal matters) Use additional pages if required

What potential solutions would you consider? Use additional pages if required

Signature:_______________________________________ Date:________________

I, ....................................................................................(Print full name)

of ...................................................................................(Print name of firm, if relevant)

......................................................................................(Print address)

......................................................................................

STATE to the Victorian Civil and Administrative Tribunal (VCAT) that:

1. On ................................. (date of service) I served a copy of the application and all attachments and other material filed with the Tribunal and a copy of the initiating order on the responsible authority (where not the applicant).

1. On ................................. (date of service) I served the following documents on each of the persons specified below by post*/by email*/in person*. (*delete whichever does not apply)

• a cover letter;
• a copy of the application and all attachments and other material filed with the Tribunal;
• a copy of the VCAT initiating order;
• a blank statement of grounds form, cover letter and all other information required to be provided by VCAT's initiating order.

respondents named in the application for enforcement order

person who may be affected by the application named in the application

list of names and addresses of all persons or authorities served

copy of sample cover letter sent with documents served

I understand that knowingly giving false or misleading information to VCAT may result in imprisonment or fine (section 136 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)).

Signature .....................................................................Date......................................