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

VCAT Melbourne, 55 King Street, MELBOURNE VIC 3000

Details of the location of the compulsory conference 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

14 & 15 August 2025

10.00 am - 4.30 pm

VCAT Melbourne, 55 King Street, MELBOURNE VIC 3000

The online details will be provided to the parties prior to the hearing.

1. For the avoidance of doubt, the orders dated 24 March 2025 remain in effect.

Mr Mark Lovell, town planner, of Moorabool Shire Council.

1. This application for review is brought under section 82 of the Planning and Environment Act 1987 (Vic) ('Act').
2. The Land is in the Rural Conservation Zone - Schedule 2 ('RCZ2') of the Moorabool Planning Scheme ('Scheme') and is subject to the Design and Development Overlay - Schedule 14, Design and Development Overlay - Schedule 2 ('DDO2'), the Bushfire Management Overlay - Schedule 1 ('BMO1') and the Environment Significance Overlay (as to part).
3. Sharon Ticehurst ('applicant') submits that the following questions of law arise in the context of this proceeding:[2]

1. The purpose of this practice day hearing was:
   1. to consider how to address the questions of law filed with the VCAT application, including;
      1. to consider whether a preliminary hearing is required to determine any questions of fact or law, and if so, to frame any questions of fact or law to be determined;
      2. to consider the future conduct of the proceeding. This may include a consideration of dates, duration, compulsory conference and/or venue; and
   2. to consider the relevance of the matters raised in council's PNPE2 material, including that notice of the application under section 52 of the Planning and Environment Act 1987 (Vic) has not been undertaken.
2. The applicant and the Moorabool Shire Council ('Council') pre-filed submissions for the practice day hearing. Catherine Pope ('respondent') did not pre-file submissions but the other parties were prepared to proceed with the practice day hearing notwithstanding this omission.
3. Having heard from the parties and having considered the material on the file, it is apparent that planning permit application PA2023106 was lodged by the applicant following conversations that the applicant had with the Council regarding earthworks that had already been undertaken on the land at 283 Camerons Road, Coimadai ('Land'), along with earthworks that the applicant wishes to undertake on the Land.
4. The Council determined that the applicable planning permit trigger for what has been, and is to be, done on the Land is permission under the RCZ2 for 'earthworks which change the rate of flow or the discharge point of water across a property boundary'.
5. The Council did not notify the planning permit application to adjoining and surrounding landowners, stating that 'the exact details of the proposed earthworks does not provide a case to notify adjoining owners and occupiers'[3] because the Council assessed that 'there was no detriment to any adjoining owners or occupiers'.[4] The Council's written submissions expand upon, and give reasons in support of, this statement.[5]
6. The planning permit application received two objections as a result of the landowners reviewing the Council's Planning Permit Registry.
7. Given that the applicant has lodged this application for review, the acceptability of the Council's decision to issue the Notice of Decision to Grant a Permit dated 19 February 2025 ('NOD') in respect of the planning permit application is now before the Tribunal for assessment.
8. Given the nature of this application for review, I disagree that the 'questions of law' arise in this proceeding. This is because through this proceeding, the Tribunal is tasked with assessing whether planning permission for the subject earthworks should be granted under the RCZ2 because that is the permission that is the subject of the NOD that is the subject of this review proceeding.
9. If the respondent also requires planning permission under other provisions of the Scheme, including the DDO2 and the BMO1, this is a matter for the respondent and a failure to obtain any such permission might leave the respondent open to other action being taken against them. However, that is not before the Tribunal in this review proceeding.
10. In any event, I note that question of law 1(b) addresses a planning permit trigger under the BMO1 for which there are no third party rights of review, meaning that even if permission had been sought under the BMO1, this could not have formed part of the NOD or have been reviewable in a proceeding brought under section 82 of the Act. The related question of law 2, dealing with referral of a permission under the BMO1 to the Country Fire Authority, is similarly misconceived to the extent that it seeks to deal with this referral through the vehicle of this proceeding lodged under section 82 of the Act.
11. With respect to question of law 3, given this proceeding is on foot and brought by the applicant, I do not consider it necessary to entertain through this proceeding whether notice should have been given by the Council: this application is before the Tribunal, meaning that the permission the subject of the NOD will now be reviewed by the Tribunal in this review proceeding.
12. It follows from the above that I will not list a preliminary hearing or an 'on the papers' hearing to deal with the questions of law posed by the applicant because I am of the view that these questions do not arise for determination and do not need be determined in this proceeding brought under section 82 of the Act.
13. For the above reasons, no further orders are required in response to the purpose of the practice day hearing. This application will now proceed to the compulsory conference scheduled for 11 June 2025.

[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] Questions of law on behalf of the applicant.

[3] Submission on behalf of the Responsible Authority, [22].

[4] PNPE2 - Table 1 response, section 1.8.