1. Under s 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) the application is amended from one commenced under s 184C of the Planning and Environment Act 1987 (Vic) to one commenced under s 82(1) of the Planning and Environment Act 1987 (Vic).

1. Under cl 64 of sch 1 of the Victorian Civil and Administrative Tribunal Act 1998, (Vic) the name of the permit applicant is changed to:

1. The request to join Laura Fernandez and Samuel Weatheritt as joint applicants is refused.

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.

26 February 2025

10.00 am - 1.00 pm

VCAT Melbourne, 55 King Street, MELBOURNE VIC 3000

26 & 27 June 2025

10.0 am - 4:30 PM

VCAT Melbourne, 55 King 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 5 February 2025 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 (without the attachments) to the applicant and the respondent (permit applicant).

What the respondent (permit applicant) must do

1. If you are the respondent (permit applicant), you are a party to the proceeding. By 5 February 2025 you must complete a Statement of Grounds online at www.vcat.vic.gov.au/respondplanning and give a copy to the responsible authority and the applicant.

1. If you are a referral authority and want to take part in this proceeding you must give a completed Statement of Grounds form (available at www.vcat.vic.gov.au/respondplanning) to the Tribunal, the responsible authority and the applicant by 5 February 2025.

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.

Mark Naughton, lawyer, Planning & Property Partners Pty Ltd

1. This proceeding was listed for a practice day hearing to consider the following matters:
   • the applicant's request to amend the application from an application made under s 184C of the Planning and Environment Act 1987 (Vic) to an application made under s 82(1) of the Planning and Environment Act 1987 (Vic);
   • the standing of the applicant Jocelyn Mary Stuart, in circumstances where the copy of the original objection filed with the Tribunal does not include Jocelyn Mary Stuart as an author of the objection;
   • the applicant's request to amend the application to a joint application to include Laura Fernandez and Samuel Weatheritt as joint applicants, including to consider the standing of Laura Fernandez in circumstances where Laura Fernandez is not identified by the Boroondara City Council as an original objector to the permit application;
   • if leave is granted to amend the application to a joint application, to consider whether the applicant seeks to amend the grounds for review; and
   • future conduct of the proceeding.
2. Submissions were provided prior to the practice day hearing.
3. I note the applicant Jocelyn Mary Stuart was an original objector to planning application no. PP24/0212 ('plannign application'). This was made clear at the practice day hearing by Boroondara City Council ('council') advising that the form that accompanied the objection from Timothy Stuart was completed by the applicant. Further, I note the letter of objection attached to the objection form referred to 'we' notwithstanding it was signed by Timothy Stuart.
4. The respondent accepts that the applicant was an original objector and is entitled to bring an application for review of council's decision to issue a Notice of Decision to Grant a Planning Permit ('NOD').
5. No party objected to the amendment of the application from one under s184C of the Planning and Environment Act 1987 (Vic) ('PE Act') to an application made under section 82(1). On that basis, I will amend the application under s 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act').
6. On 5 December 2024, the Tribunal received a request for Laura Fernandez and Samuel Wetheritt to be joined as joint applicants to the proceeding. In support of the request to be made joint applicants, I was told that upon receipt of council's decision to grant the planning permit, they contacted council and were told that they might be interested in speaking with the applicant in this proceeding and Timothy Stuart.
7. After speaking with the applicant, the request to be made joint applicants was made to the Tribunal.
8. The respondent, 9 OShaughnessy Street Developments Pty Ltd ('respondent') opposes the joinder of Laura Fernandez and Samuel Wetheritt because:
   • there needs to be finality to the application process;
   • the matters have all been raised by the applicant; and
   • the applicant would be the spokesperson.
9. I first set out the relevant factual matrix. Samuel Wetheritt was recorded as an original objector to the planning application by council. Having reviewed the original objection, it is clear to me that the objection was made on behalf of both Laura Fernandez and Samuel Wetheritt. Thus, I find that both Laura Fernandez and Samuel Wetheritt were original objectors to the planning application.
10. Having established that fact, I must now consider whether to grant leave for Laura Fernandez and Samuel Wetheritt to be joined as joint applicants to this proceeding.
11. A person may be joined under s 60(1) of the VCAT Act. This section provides:

Joinder of parties

(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -

(a) the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or

(b) the person's interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.

1. There is little doubt that Laura Fernandez and Samuel Wetheritt interests are affected by the proceeding. However, that is not sufficient to grant leave to be joined to the proceeding in this case.
2. The planning regime in Victoria provides for third party participation including before the relevant council and at the Tribunal. Section 82 of the PE Act provides the ability for any original objector to make an application for review on planning grounds.
3. It is often the case that objectors come together to file a joint application for review of a council decision.
4. In Wade v Manningham CC[1] (Wade) the Tribunal made the following observations about s 60 of the VCAT Act:
   1. Under section 60 of the Victorian Civil and Administrative Tribunal Act the tribunal may order that a person be joined as a party to a proceeding if the tribunal considers that the person ought be bound by, or have the benefit of, an order of the tribunal in the proceeding, or the person's interests are affected by the proceeding or for any other reason it is desirable that the person be joined as a party. There is no doubt there is power available to the tribunal to join Mr and Mrs Lanza to the proceeding initiated by Ms Wade. However I generally believe that, as a matter of discretion, the tribunal should not join additional objectors to an application for review by an objector. It is open for an objector to appeal against a decision of the council to grant a permit either jointly, whereby usually only one application fee is payable, or separately. If an objector does not participate in a joint or separate appeal lodged within time, and then wishes to participate in the case, usually the correct mechanism for this will be to extend the time within which an appeal may be lodged; and then for the person seeking to be added to lodge an appeal in their own name. If section 60 was extensively used to join additional persons as objector appellants, it could defeat the purpose of the time limit. Moreover it would mean that persons would avoid the obligation to pay a fee on the lodgement of an appeal to the tribunal.
   2. As a matter of discretion I do not join Mr and Mrs Lanza for those reasons.
5. In the proceeding before me, the application for joinder was made on 5 December 2024, that is within the 28-day limit for the lodgement of an application for review.[2]
6. Having considered the information before me, I refuse to join Laura Fernandez and Samuel Wetheritt for the following reasons:
   1. at the time the application for review was lodged it was not intended to be a joint application;
   2. there has not been any adequate explanation or justification for seeking the joinder as opposed to filing a separate application;
   3. whilst the applicant and Laura Fernandez and Samuel Wetheritt both raise concerns with overshadowing, their interests are different and not aligned because their respective properties are located to the east and to the west of the land at 9 O'Shaughnessy Street, Kew ('land') respectively; and
   4. it will prejudice the respondent because it needs to address the concerns of both neighbours in circumstances, where neighbours have not acted upon the rights afforded to them under the PE Act.
7. For the above reasons, the request by Laura Fernandez and Samuel Wetheritt to be joined as joint applicants in this proceeding is refused.

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, 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.

A person is a 'party' to the proceeding if the person:

• lodged an objection to the planning application
• has given a completed Statement of Grounds form to the Tribunal by the due date and paid the fee
• has indicated in their Statement of Grounds form that they intend to participate in the hearing

The following persons are NOT a party to a proceeding:

• a person who did not lodge an objection to the permit application
• a person who did not give their Statement of Grounds form by the due date and/or did not pay the fee
• a person who has indicated on their Statement of Grounds that they do not intend to participate in the hearing

If you are not a party to the proceeding but wish to be heard, you can attend at the start of the compulsory conference and ask the Tribunal to join you as a party to the proceeding. You will need to explain why you should be joined as a party to the proceeding. Other parties will also be given the opportunity to tell the Tribunal whether they agree or disagree about you being joined as a party. The Tribunal will then make a decision to join you as a party or not.

If you are not joined as party, you cannot take any further 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:________________

[1] [2004] VCAT 816.

[2] See Regulation 35 of the Planning and Environment Regulations 2015 (Vic) ('PE Regulations').