1. This proceeding is listed for a hearing in accordance with the details set out in item A above. No further hearing notice will be sent.
2. Any changes to the hearing details will be notified by further order of the Tribunal.
3. Please read the information included in Appendix A and observe any directions included in the Appendix.
4. All hearings will be conducted at 55 King Street, Melbourne.

For Wedderburn Korong Vale RSL Sub-Branch Inc. (Memorial Custodians)

For Loddon Shire Council and Adrian Lowrey, Project Manager Loddon Shire Council

1. The background to this proceeding and the reasons for this practice day hearing are set out in the Tribunal's order dated 5 September 2016. They include the following:
   • To consider the jurisdiction of the Tribunal to the application for review.
   • Whether the application should be struck out.
   • Whether to give leave to Wolfgang Schmidt pursuant to section 82B of the Planning and Environment Act 1987 to apply for review of the decision of the responsible authority to grant a permit.
2. At the practice day hearing, the Tribunal raised the following matters for consideration:
   • The notice of decision dated 29 March 2016 does not include permission for demolition under the Heritage Overlay.
   • There is no reference to removal of the perimeter fence around Jacka Memorial Park included in the Thomkinson Wedderburn Streetscape Roads and Drainage Plans, which were the plans voted on by the Council. The removal only appears as a notation on the Hanson plans. There is a query whether the Hanson plans form part of the permit application.
   • Characterisation of the fence as a fence or as part of a memorial/monument for the purposes of the Heritage Overlay.
   • Referral of the permit application to VicRoads as a determining referral authority for land in a Road Zone Category 1.
   • The status of Wolfgang Schmidt and his application for review.
3. Following the Tribunal's order dated 5 September 2016, the council has submitted its PNPE2 material, which includes information about the application for planning permit and plans, which are said to form part of the permit application. A number of procedural issues arise when this material is carefully examined.
4. An amended statement of grounds has been submitted on behalf of the Wedderburn Korong Vale RSL Sub-Branch Inc. in response to leave given under the Tribunal's order of 5 September 2016. This amended statement of grounds (filed by Robertson Hyetts Solicitors) included a heritage advice dated 11 March 2016 from Michael Taylor, architect and heritage consultant, addressed to Caroline Stevenson, a town planner at Loddon Shire Council. A copy of this heritage advice was not included in the PN2 material filed by the Council, although it was referred to in the Council Officer's report (by Ms Stevenson), which recommended that "based on Heritage Advice, the streetscape plan should be amended to remove reference to removing the Soldiers Memorial Park fence."
5. The conclusions of Michael Taylor in his heritage advice are:
   • The Jacka Park gates, fences, Soldier Memorial and parkland are an integrated piece of urban design.
   • The proposed removal of fences would have a high adverse effect on the integrity, appearance, architectural and historic significance of Jacka Park and is not supported on this basis.

[6] The council says that no planning permit is required for demolition of the fence under the Township Zone. A planning permit is required under the Heritage Overlay, however the exemption from third party notice and review rights under clause 43.01-3 of the Loddon Planning Scheme applies. This means that to the extent that the grounds relied upon by the Wedderburn and Korong Vale RSL Sub-Branch Inc apply to demolition of the fence, it has no right of review and the application should be struck out.

1. At this latest practice day hearing, the council maintained its view that to the extent that the permit application included an application for demolition of the fence around the Soldiers Memorial Park under the Heritage Overlay, it is exempt from third party notice and review rights under clause 43.01-3 of the planning scheme.
2. However, in my opinion this view depends on whether the "fence" is properly characterised as a fence for the purposes of clause 43.01-3.
3. Based on the heritage advice by Michael Taylor and the RSL's amended statement of grounds, I consider that the "fence" is not the type of fence that the second dot point in clause 43.01-3 is intended to refer to. Rather, it is part of a memorial to which the Heritage Overlay applies as a whole.
4. Michael Taylor in his heritage advice describes the existing conditions of the park as follows:

The gates, Soldiers Memorial and fence to the west and south boundaries are [an]ensemble of structures which I understand were built in two phases following the ends of the WWI and WWII. The granite gates are located at the corner and flanked by a low open work fence with heavy square pillars which complement the appearance and style of the main gates. The side fences incorporate secondary gateways into the park. The gates and fence frame and compliment the granite Soldiers Memorial and the ensemble of items provide an orderly boundary and entry route to the park; as well as makgin [sic] a dignified and respectful setting for the Soldiers Memorial. The fence and gate share common compositional forms; whilst the gates and the memorial are both constructed from granite.

The Advice notes that The Park Gates and Memorial are listed separately on the Victorian Heritage Database under the Victorian War Heritage Inventory, Hermes Numbers 156783 and 126406.

The Wedderburn Jacka Park Memorial Gateway Hermes Number 156783 is dedicated to the First World War and the memory of Victoria Cross winner, Captain Albert Jacka.

The Jacka Park Soldiers Memorial Hermes Number 126406 is a marble statue of a World War I soldier on a granite pillar and granite base with 4 granite wings on a circular flagstone base. There is a flagpole on the north side. The entrance gates to the Park form part of the Memorial.

The Veterans Description for the Public as part of the Vic. War Heritage Inventory is as follows:

"The Wedderburn Jacka Park Soldiers Memorial was erected to commemorate soldiers of the First World War."

"The memorial is a marble statue of a First World War Digger on a granite pillar and granite base, with four granite wings on a circular flagstone base. The Digger stands easy holding a rifle, faces west and is supported by a representation of a tree trunk. There is a flagpole on the north side. The entrance gates to the park form part of the memorial and are inscribed with "1914-18 Dedicated To the Memory of Cpt. Albert Jacka V.C.M.C. & BAR."

"The pillars are also inscribed with "The Great War 1914 - 1919" with a list of Soldiers' names from the Wedderburn area and the epigraph, "Their Names Shall Live For Ever More." Jacka received the first Victoria Cross to be awarded to the AIF in the First World War."

1. According to further evidence submitted by the RSL, the former Korong Council in 1957 decided to erect a fence and gates at the Memorial Gardens at Wedderburn to perpetuate the memory, firstly of Australia's first Victoria Cross winner (Captain Albert Jacka VC) and to immortalise the victims of WWII.
2. I consider the fence and gate should not be regarded as separate items or as utilitarian items intended to mark a boundary or give access to a property. Rather, their design and purpose is ceremonial. In themselves they act as a memorial and are intended to further complement the memorial statue within the park.
3. Around the world, there are many locations where gates, fences and walls are symbolic memorials of war dead. A famous example is VC Corner Australian Cemetery and Memorial at Fromelles, France. No one would describe the wall there as simply a fence. Its purpose and intent is to be a memorial notwithstanding it takes the form of a wall.
4. Other examples exist where memorials consist of obelisks or statutes surrounded by steps and fences comprising rails or chains of an integrated design, which clearly form part of the memorial in question. From the battlefields of France, examples include the First Australian Division Memorial, Pozieres and the Second Australian Division Memorial, Mont St Quentin.
5. The memorial gates and fence surrounding the Soldiers Memorial Park at Wedderburn are a far more modest manifestation of the same purpose and intent. However, in my view, their simple style does not derogate from their characterisation as together being an integrated ensemble of structures which share a symbolic and common purpose.

17 For these reasons, I find that the fence and gates surrounding the Soldiers Memorial Park at Wedderburn must be characterised together as a memorial, not separately as gates or as a fence. I find that the memorial requires a permit for demolition under the Heritage Overlay.[1] I further find that demolition of this memorial is not exempt from notice and review pursuant to clause 43.01-3.

1. Therefore, the application by the council to strike out the application for review by the RSL should be refused. The application for review of the Council's decision must be considered on its merits.

1. In this proceeding Loddon Shire Council is both the permit applicant and the responsible authority.
2. The permit application is dated 27 November 2015. The proposal is described as follows:

Application is for civil and drainage works 33-80 High Street-underground drainage, pavement, curb and channel, garden beds, paving along footpaths, removal of fence Jacka Park, landscaping, intersection modifications.

1. In its PNPE2 material, the Council says that there were no formal amendments to the planning application under the Planning and Environment Act 1987.
2. The Thomkinson Wedderburn Streetscape Roads and Drainage Plans, which it is not disputed form part of the permit application, have several revision dates the latest being 13 January 2016 - revision D addition of street trees as per landscaping plans. This date is after the permit application was lodged on 27 November 2015. Therefore, I assume that it is the Thomkinson plans revision C dated 26 August 2015, which are the plans that form part of the permit application.
3. The Thomkinson plans do not include removal of the "fence" around Jacka Park. The only place where this is shown is as a notation on landscape plans prepared by Hanson, which contain a notation:

Perimeter iron fence to be removed. This assists in better integration of the park with the streetscape

1. It is extremely difficult to see the detail of this notation on the plan. It is also impossible from the copy of the plan provided to the Tribunal with the PNPE2 material to identify the date of the plan. Mr Wong, on behalf of the Council, said that the Hanson plan did not form part of the permit application. Rather, it was submitted after the application was lodged in response to a request for further information. However, no details of the further information requested have been provided to the Tribunal. If the Hanson plan with this notation about removing the perimeter fence did not form part of the permit application and there has been no formal amendment of the application, then it is arguable whether this component of the proposed works in fact forms part of the permit application at all.
2. This possibility is reinforced when regard is had to the motion of the Council on 22 March 2016:

That Council resolved to give Notice of Decision to grant a permit for application 5156 in accordance with the plans submitted with the application.

1. If the plans submitted with the application did not include removal of the "fence", then arguably the notice of decision does not include this permission. Under the description "What will the permit allow" it provides:

Buildings and works undertaken as a part of the Wedderburn Streetscape project.

There is no mention of demolition. However, under the Heritage Overlay, a permit is required for both buildings and works and for demolition. Therefore, the Notice of Decision should have included demolition of the "fence" if that is what the council intended.

1. It is possible, using various powers open to the Tribunal under the Victorian Civil and Administrative Tribunal Act 1998 to rectify such errors and to amend the permit application. However, in a circumstance where the council is both the permit applicant and responsible authority, it is most important that the handling of such permit applications is undertaken in a transparent and procedurally correct way. I do not propose to make any changes at this point. If the council wishes to amend the permit application, then it should give proper notice under the Tribunal's Practice Note PNPE9 - Amendment of Plans and Applications, if necessary.

1. High Street, Wedderburn is included in a Road Zone Category 1. In its PNPE2 material and the officer's report, the council has not discussed the extent to which a permit may or may not be required under the Road Zone Category 1. Nor does it appear that the application has been referred to VicRoads formally as a referral authority in this zone, although Mr Wong said that there had been discussions with VicRoads.
2. In my view, VicRoads should be formally given notice of the application and provided with an opportunity to express its views, even though it may informally support the proposed works. At the hearing, the council should address the permissions required, any exemptions under the planning scheme (apart from under the Heritage Overlay in respect of the demolition of the "fence", which I have already ruled requires a permit that is not exempt from third party notice and review rights) and the role of VicRoads as a determining referral authority for applications in the Road Zone Category 1.

1. Mr Schmidt was not an original objector to the council, but he has lodged an application for review and seeks leave under section 82B of the Planning and Environment Act 1987 to review the council's decision to grant a permit.
2. His statement of grounds is difficult to understand. Notwithstanding the Tribunal provided an opportunity in its order dated 5 September 2016 to file and serve an amended statement of grounds setting out the specific aspects of the buildings and works forming part of the permit application that he objected to and any planning reasons why he objected to these works, Mr Schmidt has not done this. He sent a very confused email directly to myself, which was entirely inappropriate. However, even looking at its contents, I cannot discern a good reason why he should be given leave to apply for a review under section 82B. At the practice day hearing he raised a further matter, which has never previously been raised about the possibility of traffic accidents due to the narrowing of the Calder Highway through Wedderburn and a public need to put dangerous traffic somewhere else. This is a late invention and not a matter that I consider should be introduced to complicate this proceeding. Traffic safety issues are best left to Vic Roads to respond to, which is a further reason why VicRoads' response to this permit application should be sought.
3. I am not persuaded that it would be just and fair in the circumstances to grant leave under section 82B.

If you do not appear or are not represented at the hearing, the Tribunal may determine the matter in your absence or make other orders affecting your interests.

Please check the ground floor list or VCAT website for your room number. Proceed directly to that room and sign the appearance sheet. Do not wait for your name to be called.

If you believe the length of hearing time allocated is not sufficient, you should notify VCAT in writing indicating why you believe more time is required within 14 days of the date of this order and send a copy of your communication to the other parties. Unless you send a copy to other parties and provide evidence that you have done so, your request will not be considered.

If a request for more time is made more than 14 days after the date of this order, you must make an application for adjournment following the procedures on VCAT's website 'How to apply for an adjournment'.

You should bring all documents, plans, photographs and other material you wish to rely upon that have not been previously filed. If you are making a written submission, please bring six copies. Guidance about preparing submissions is available on the VCAT website Planning and Environment List Guidelines for Submissions in Hearings, Guidelines for Submissions by Responsible Authorities and Guidelines for Submissions in the Short Cases List.

Except where otherwise directed by the Tribunal, expert witness reports must be received by VCAT and other parties at least 10 business days before the hearing. Witness statements should be filed in A4 size, stapled not bound and two-hole punched.

Information about the hearing and hearing procedures is available on VCAT's website. All hearings are recorded. Hearings are open to the public and are conducted as informally as possible. The typical procedure for the final hearing of an application is for parties to speak in the following order:

• the responsible authority;
• referral authorities (if any);
• third parties or objectors (if any); and
• the permit applicant

Each party will be given a reasonable opportunity to respond to the case put by the other parties. A right of reply is not an opportunity to simply repeat submissions, which a party has already made; rather it should be confined to matters arising from the submissions of the other party(s), which have not already been addressed by the replying party.

If you are the applicant in this proceeding, you may be required to pay a daily hearing fee if the matter proceeds into a second or subsequent day. This includes accompanied site visits. The daily hearing fee must be paid by the person(s) responsible for its payment by 9.30am on the day of the hearing.

• credit card via an online portal located on the VCAT website if the hearing is listed at a venue other than 55 King Street, Melbourne or 222 Exhibition Street, Melbourne; or
• credit card, EFTPOS or cash payment on the day of hearing

If the hearing is likely to take two or more days and more than one Tribunal Member has been appointed to hear the proceeding, the matter will be deemed complex and higher hearing fees will be applicable.

Practice Note - PNVCAT 6 Hearing Fees sets out the procedures that apply to the charging of daily hearing fees in proceedings before the Tribunal, including who is liable to pay the daily hearing fee. This Practice Note and other information is available on the Tribunal's website at www.vcat.vic.gov.au.For the latest fee information or further information regarding this process, please check the VCAT website or phone (03) 9628 9777.

The Principal Registrar has the power to waive or reduce a daily hearing fee in certain circumstances. A Guideline and Application for Waiver of Fee document and application form is available on the Tribunal's website.

Any application to waive or reduce the daily hearing fee should be made as soon as possible in order to avoid any delay in the hearing.

The member hearing the case may wish to undertake a site inspection. The time allocated for the hearing usually includes an allowance of time for a site inspection, depending on the location of the site. Parties should be prepared to make their properties available for inspection where appropriate at the conclusion of the hearing and on the same day or as otherwise arranged by the member at the hearing.

Any exhibits or material tendered as evidence at the hearing will normally be placed on the file and kept by VCAT. If you want an exhibit to be returned, or in the case of bulky exhibits such as models, you must clearly mark the exhibit with the VCAT reference number and the name, address and phone number of the party tendering the exhibit. All exhibits remain the property of VCAT for 30 days after the date of determination. You may then collect the exhibit from VCAT. VCAT will allow a further 30 days for the collection of exhibits after the determination before they are disposed of.

The approximate waiting time for a written decision is 4-6 weeks.

Please check the ground floor list or VCAT website for your room number. Proceed directly to that room and sign the appearance sheet. Do not wait for your name to be called.

All adjournment requests must be made immediately you become aware of the basis for a request. To request an adjournment, you should follow the procedures on VCAT's website - see Planning and Environment List Adjournment Applications and Practice Note PNVCAT1 - Common Procedures. Adjournment requests will not always necessarily be granted.

If you wish to withdraw an application, follow the procedures on VCAT's website - see Planning and Environment List Withdrawal of Applications and Practice Note PNVCAT1 - Common Procedures. A withdrawal brings a proceeding before VCAT to an end and restores the status quo that existed immediately before the application was lodged.

If parties reach agreement before the hearing or mediation, they may obtain an order from VCAT without the need for a hearing. Follow the instructions on VCAT's website - see Consent orders: Checklist for a consent order and Practice Note PNVCAT1 - Common Procedures

If you have any further enquiries, please contact VCAT on the numbers below. Please quote VCAT's reference number. Guidelines and information about VCAT's procedures are on VCAT's website at www.vcat.vic.gov.au or can be obtained from VCAT on request.

[1] Clause 43.01-1 requires a permit to demolish or remove a building. The definition of building in the Planning and Environment Act 1997 includes:

(a) a structure and part of a building or a structure; and

(b) fences, walls, out-buildings, service installations and other appurtenances of a building; and

(c) a boat or a pontoon which is permanently moored or fixed to land;