VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1498/2022
Permit Application no. TP-2022-245	

Applicant	Royal Garden Manor Pty Ltd	

Responsible Authority	Melbourne City Council	
Respondents	Australian Destination Managers Pty Ltd	
	Carlton Residents Association Inc	
	David Fuscaldo	
	Elizabeth Mary Hunt	
	Elizabeth R Pearce	
	Giovanni Fuscaldo	
	Ian Bird	
	Jeffrey Watson	
	Joo Kiah Chong	
	Karen Hodgson	
	Lesley Elizabeth Quinn	
	Mark Furlong	
	Mary Healy	
	Phillip George	
	Robyn Gregory	
	Royal Historical Society of Victoria	
	Lynette Cracknell, Warren Green & Others	
referral authority	Head, Transport for Victoria	
SUBJECT LAND	1-23 Rathdowne Street
CARLTON  VIC  3053	
HEARING TYPE	Preliminary Hearing	
DATE OF HEARING	19 April 2023	
DATE OF ORDER	21 April 2023	
CITATION	Royal Garden Manor Pty Ltd v Melbourne CC [2023] VCAT 434	

Order
1	The Tribunal has the jurisdiction to hear and determine this proceeding.
2	The applicant must serve this Order on the Minister for Planning.
3	The details set out in the Tribunal’s initiating order are changed. The hearing dates included in the initiating order are vacated.
The proceeding is listed for hearing on the date and for the time as detailed below. The hearing will be at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you.
Practice Day Hearing:	
Date	16 June 2023	
Start time	For details of the start time, please refer to the Tribunal’s website (www.vcat.vic.gov.au/todays-hearings) after 5.00pm on the day before the hearing	
Duration 	1 hour	
Conduct	Online platform	

Compulsory Conference:	
Date and time	21 July 2023
10.00am – 4.30pm	
Conduct	In person – 55 King Street, Melbourne	

Major Case Hearing:	
Date and time	9, 10, 11, 12, 16, 17, 18, 19, 23, 24, 25, 26, 30 and 31 October 2023 
10.00am – 4.30pm	
Conduct	In person – 55 King Street, Melbourne	
The details of the online platform will be provided to the parties before the hearing.
Parties to proceeding
4	Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following person is joined as a party to the proceeding:
Minister for Planning
Practice Day Hearing 
5	The purpose of the practice day hearing is:
•	To consider a request to amend the permit application including proposed amendments to plans; and
•	to give directions about the future conduct of the proceeding;

6	Parties must attend the practice day hearing with the following information:
•	submissions, including any supporting evidence and documents, relating to the specific purpose of the practice day hearing;
•	if any party is seeking procedural directions, a copy of the directions sought.
Providing submissions and associated material before the hearing
7	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@vcat.vic.gov.au
8	All expert evidence must be filed and served in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Draft Conditions
9	No later than 5 business days before the hearing the responsible authority must give the Tribunal and all parties a draft of the conditions to which the permit should be subject if it is granted.
The draft conditions must be provided to the Tribunal in electronic Word format and must be sent to planningconditions.vcat@courts.vic.gov.au
(Note: this does not apply in applications under section 80 of the Planning and Environment Act 1987 for a review of conditions in a permit.)
Tribunal Book
10	No later than 3 business days before the hearing, the applicant must provide a Tribunal Book to the Tribunal and all parties.  One electronic copy of the Tribunal Book must be provided to the Tribunal and sent to admin@vcat.vic.gov.au
Information on the content and format requirements of the Tribunal Book is available at www.vcat.vic.gov.au

Judith Perlstein
Member	

Appearances
For Royal Garden Manor Pty Ltd	Paul Connor, KC and Jason Kane of Counsel, instructed by Alice Rudaya of Hunt & Hunt Lawyers.	
For Melbourne City Council 	Ann-Maree Drakos, Legal Counsel-Planning of Melbourne City Council.	
For Head, Transport for Victoria	No appearance
	
For respondents	Bee Ho Teow, for Australian Destination Managers Pty Ltd	
	Peter Sanders and Blair Healy for Carlton Residents Association Inc	
	Elizabeth Mary Hunt, in person 	
	Lynette Cracknell for Elizabeth R Pearce	
	Ian Bird, in person	
	Robyn Gregory, in person and for Joo Kiah Chong	
	Lesley Elizabeth Quinn, in person	
	Mark Furlong, in person	
	Blair Healy, for Mary Healy	
	Phillip George, in person	
	Lynette Cracknell and Warren Green for Lynette Cracknell, Warren Green & Others	
No appearance	David Fuscaldo, Giovanni Fuscaldo, Jeffrey Watson, Karen Hodgson, Royal Historical Society of Victoria	

Reasons
Background 
1	On 11 May 2022, Royal Garden Manor Pty Ltd (applicant) applied to the Melbourne City Council (council) for a planning permit for a mixed use building, including a building with 13 levels, and three levels of basement car parking on the land at 1-23 Rathdowne Street, Carlton.
2	On 9 September 2022, the council issued a notice of refusal to grant a permit for the proposed development, and on 8 November 2022, the applicant lodged an application with the Tribunal for a review of this decision. 
3	However, the application plans are for a building containing a gross floor area of development exceeding 25,000 square metres.
4	While the council is generally the responsible authority for the purposes of administering and enforcing the provisions of the Melbourne Planning Scheme (Scheme), the Scheme includes exceptions to this. One of those exceptions is found at the schedule to clause 72.01 of the Scheme, which provides as follows:
The Minister for Planning is the responsible authority for matters under Divisions 1, 1A, 2, and 3 of Part 4 and Part 4AA of the Act and matters required by a permit or the scheme to be endorsed, approved or done to the satisfaction of the responsible authority in relation to: 
•	development of land as part of a single project or multiple related projects, if it involves: 
-	construction of a new building or buildings containing a total gross floor area of more than 25,000 square metres;
5	Therefore, the Minister For Planning (Minister), and not the council, is the responsible authority for this application.
6	However, this was not recognised at any stage of the process. It was only in preparing for a compulsory conference scheduled by the Tribunal that the council realised the mistake that had been made and brought it to the attention of the Tribunal. 
7	The council concedes that it made a decision on the planning permit application which it ought not to have done as it is not the responsible authority for the planning permit application under the Scheme.
8	This preliminary hearing was listed to consider whether the Tribunal has jurisdiction to hear and determine this application. 
9	An additional relevant factor is that the applicant has indicated that it intends to seek leave to amend the permit application and application plans to construct a building containing a total gross floor area of less than 25,000 square metres. This would change the nature of the application to an application where the council, and not the Minister, would be the responsible authority for the purposes of the permit application.
Purpose of the preliminary hearing
10	This preliminary hearing was listed for the following purpose:
•	to consider the following question of law:
Does the Tribunal have jurisdiction in this proceeding?
•	to consider other questions of law, as necessary, raised by the parties in response to order 6;
•	to consider consequential orders to be made if the Tribunal finds it has jurisdiction in this application or, in the alternative, if the Tribunal finds it does not have jurisdiction, and
•	to consider the future conduct of the proceeding, including a consideration of dates, duration, compulsory conference and/or venue.
11	Order 6 provided the parties with an opportunity to raise additional questions of law and send them to the Tribunal and other parties in advance of submissions being filed for the preliminary hearing.
12	In addition to the council and the applicant, Dr Robyn Gregory and Dr Mark Furlong (Gregory and Furlong) filed submissions in advance of the hearing and raised additional questions of law. All of these parties appeared and made submissions at the preliminary hearing. 
13	The council, and Gregory and Furlong, accepted the Tribunal question of law and each added an additional question, as follows:
Council
In circumstances where the Applicant requests a formal amendment to the application to propose a building with a gross floor area of less than 25,000 square metres: 
a. 	Does the Tribunal have the power to amend the application (including application plans)? 
b. 	Does the Tribunal have jurisdiction to determine the application for review? 
c. 	Is Melbourne City Council the responsible authority for the application? 

Gregory and Furlong
What is the intent of the Planning & Environment Act 1987 and the Melbourne Planning Scheme in relegating decision-making authority to the Minister for Planning for a development of this size - and in this location/with this environmental impact? And so, 
a. 	If there is any doubt about the Tribunal’s powers or jurisdiction under the VCAT Act in this proceeding, how should they be exercised with due reference to this intent? and 
b. 	What impact might the Tribunal’s decision have on future planning? 
14	The applicant reframed the Tribunal question of law into two parts and added an additional question:
1.1	 Does the Tribunal have the power to amend the permit application, and the application plans pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”) and/or clause 62 of the VCAT Act; and 
1.2 	Assuming that power is exercised, does the Tribunal have the jurisdiction to determine the application for review? 
2 	Is the floor area of the basement levels on the application plans included as “gross floor area” for the purpose of calculating whether the total gross floor area of the building shown in the application plans is more than 25,000 square metres, and hence the Minister for Planning was the Responsible Authority, for the purposes of the permit application?
15	In its correspondence (referred to as a position paper) dated 31 March 2023, the applicant asked the Tribunal to make the following assumptions for the purposes of the first question of law:
1.1 	First, the total gross floor area as shown on the application plans exceeded 25,000 square metres for the purposes of schedule 1 of clause 72.01 to the Melbourne Planning Scheme, so that the Minister for Planning and not the Melbourne City Council was the responsible authority for the purposes of the permit application; and 
1.2 	Second, the permit applicant will seek leave to amend the permit application, and the application plans, so that the amended permit application and the application plans show a development with a total gross floor area of less [sic] 25,000 square metres for the purposes of schedule 1 of clause 72.01 to the Melbourne Planning Scheme, so that the Melbourne City Council and not the Minister for Planning is the responsible authority for the purposes of the permit application.
16	The applicant in the position paper then concluded that it was not necessary for the Tribunal to determine the second question of law, if the Tribunal determines that it has the jurisdiction to determine the application for review.
17	At the conclusion of the hearing, the applicant invited the Tribunal to not consider or make a finding with respect to question 2, essentially withdrawing the question. I have not, therefore, had regard to that question.
18	With respect to the reframing by the applicant of the initial question of law, I agree with the council’s submissions that the Tribunal must first determine whether it has jurisdiction to determine the application, before considering whether it has the power to amend the application, including the plans. 
19	I will, therefore, consider the initial Tribunal question, followed by the question of whether the Tribunal has the power to amend the plans, and then consider the consequence of the answers to those questions on the future conduct of this application.
20	In terms of the second question posed by Gregory and Furlong, I confirm that the intent of the drafting of the schedule to clause 72.01 is not relevant to the assessment of whether the Tribunal has jurisdiction in this proceeding, and neither is the effect this decision may have on future planning.
21	However, unless and until the application is amended to reduce the total gross floor area to less than 25,000 square metres, the Minister is the correct responsible authority and should be notified of and be made a party to this proceeding. I have made orders to this effect.
Does the Tribunal have jurisdiction in this application?
22	There are several sections of the Planning and Environment Act 1987 (PE Act) and the Victorian Civil & Administrative Tribunal Act 1998 (VCAT Act) that establish the jurisdiction of the Tribunal in a proceeding.
23	Section 42 and 48 of the VCAT Act set out the review jurisdiction of the Tribunal:
42 	What is review jurisdiction?
(1) 	Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker.
48 	How is review jurisdiction invoked?
The review jurisdiction of the Tribunal is invoked—
(a) 	by a person who is entitled to do so by or under an enabling enactment applying to the Tribunal in accordance with section 67 for review of a decision under that enactment; or
(b) 	by a decision-maker referring a decision to the Tribunal under an enabling enactment in accordance with section 69 for review of the decision; or
(c) 	in any other way permitted or provided for by the enabling enactment.
24	The enabling enactment in this case is the PE Act. Section 77 of the PE Act enables an applicant for a permit to apply to the Tribunal for review: 
77 	Applications for review of refusals to grant permits
An applicant for a permit may apply to the Tribunal for review of a decision by a responsible authority to refuse to grant the permit.
25	Section 48 refers to section 67 of the VCAT Act which sets out how to make an application to the Tribunal:
67 	How to make an application to the Tribunal
(1) 	An application to the Tribunal—
(a) 	must be in the form, and contain the particulars, required by the rules; and 
(b) 	must be accompanied by any documents or further information required by the rules; and
(c) 	must be lodged in the manner specified in the rules.
26	The application to the Tribunal was made in accordance with section 67. 
27	Section 77 of the PE Act allows a permit applicant to apply to the Tribunal for review as set out above. In this case, a decision was made by a responsible authority to refuse to grant the permit, but was not made by the entity identified in the Scheme as the responsible authority for this type of application.
28	It would seem logical, therefore, that such a decision would be void and not able to be reviewed by the Tribunal, as submitted by Gregory and Furlong in their written submissions at paragraph 10:
Because the application was not made to the responsible authority in accordance with the regulations, the decision to refuse to grant the Applicant’s permit is void. As a result, the Applicant is not in a position to apply to the Tribunal for a review at this stage, and so the Tribunal does not have jurisdiction to hear this matter. The application must first be lodged with the responsible authority in accordance with the regulations.

29	Had the mistake been identified at any point before the issue of the notice of decision to refuse to grant a permit, the council would have stopped processing the application and referred it to the Minister. However, a decision was made by the council, and was then appealed to the Tribunal for review. Both the council and the applicant submitted that the Tribunal has jurisdiction to consider and determine this application for review on the basis of section 4(2)(b) of the VCAT Act. 
30	Section 4 of the VCAT Act considers the matter of when a decision is made, and covers several circumstances. I have included the relevant parts of section 4 below:
4 	When does a person make a decision?
(1) 	For the purposes of this Act or an enabling enactment, a person makes a decision if the person—
(a) 	makes, suspends, revokes or refuses to make a decision, order, determination or assessment (including a decision not to make a decision, order, determination or assessment);
(b) 	gives, suspends, revokes or refuses to give a certificate, direction, approval, consent or permission;
(2) 	For the purposes of this Act or an enabling enactment—
(a) 	a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;
(b) 	a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision maker;
31	According to section 4(1), the council made a decision and issued a notice of refusal to grant a planning permit. According to section 4(2)(b), that decision, even if it was beyond the power of the council, is deemed to be a decision made under the PE Act. This provision allows that decision to, therefore, be the subject of an application for review by the Tribunal.
32	The council and the applicant referred to several Tribunal and one Court of Appeal decision considering the application of section 4(2)(b) of the VCAT Act.
33	In only one of those decisions, Phan v Maribyrnong CC [2009] VCAT 68 (Phan), did the Tribunal consider that section 4(2)(b) was not broad enough to encompass a decision made by the incorrect responsible authority. The council helpfully summarised the relevant elements of this decision, which was made following a practice day hearing: 

31. 	The application for review in Phan concerned a proposal to develop land in the Footscray Renewal Project Area for the purpose of student accommodation. In the Footscray Renewal Project Area, the Minister for Planning was at the time the responsible authority under the Maribyrnong Planning Scheme (not the Council). However, as it occurred, the application was made and determined by the Council.
32. 	An application was brought under s 82 to review the decision of the Council. 
33. 	Akin to the facts before the Tribunal in this proceeding, the matter of the proper responsible authority was not identified until which time the review application was brought before the Tribunal.
34. 	In reluctantly striking out the application for review under s 75 of the VCAT Act, former Deputy President Gibson determined the situation before her did not enable her to draw on the powers at section 4(2)(b) stating as follows: 
At the hearing, I indicated I would make a procedural order to amend the permit application and the application for review to include the Minister for Planning as the joint responsible authority. However, upon further consideration, I do not believe I have power to do this. The permit application and the decision by the council were void from the outset. It was not a situation (as I initially believed) where the council was a joint responsible authority. It was not a responsible authority at all. I do not believe that the very wide powers in the Victorian Civil and Administrative Tribunal Act 1998 to cure defects in documents or procedures would enable me to breathe life into a decision made by a completely wrong body, which lacks any power to make a decision about the matter in question under the enabling enactment. This is not a situation falling within the ambit of section 4(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 where the decision was beyond the power of the decision maker. Rather, the council was simply not a decision maker at all under the enabling enactment (the planning scheme) for this type of permit application.
[emphasis added]
34	The council went on to explain why it considered that this approach ought not be preferred:

35. 	While there are two differing approaches taken by the same former Deputy President of the Tribunal, in our submission, the Tribunal’s consideration in MCC v Minister for Planning is to be preferred because it gives proper and full effect to s 4(2)(b).
36. 	It is also of some note in MCC v Minister for Planning:
i. 	The Tribunal had the benefit of a full hearing to consider and determine the jurisdictional issue;
ii. 	The Tribunal had the benefit of highly experienced legal advocates before it who the tribunal records did not contest the issue.
37. 	In our submission, there is nothing on a plain reading of the words in s 4(2)(b) that limits the operation of 4(2)(b) in the way the Tribunal determined in Phan.
35	The other Tribunal decisions referred to by the parties include Melbourne City Council v Minister for Planning [2015] VCAT 370 (MCC v Minister for Planning); Lawar Pty Ltd v Monash CC [2021] VCAT 598 (Lawar); and Castik Investments Pty Ltd v Stonnington CC (1999) 3 VPR 46 (Castik).
36	The applicant referred to and relied on a Court of Appeal decision as follows:
41	If the Council’s original decision was invalid, this does not mean that it cannot be the subject of an application for review. Council’s decision to refuse to grant a permit is deemed to be a decision for the purposes of the VCAT Act even if it was beyond power. The phrase ‘beyond power’ captures the factual scenario where a purported decision maker has no jurisdiction at all. In considering an appeal from the Tribunal concerning a decision of the Legal Services Board, the Court of Appeal stated that:
Whatever the general position of decisions made without jurisdiction, VCAT’s power to review a decision of the Board made without jurisdiction is put beyond doubt by s 4(2) of the VCAT Act, Which relevantly provides:
For the purposes of this Act or an enabling enactment—
(a) ….
(b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decisionmaker
…
37	In Castik, the Tribunal constituted by Deputy President Macnamara (as his Honour then was) considered the information required to accompany a planning permit application and whether the absence of this information meant that the application was not validly made to the council.  
38	The Tribunal considered the historical context of the Tribunal and made the following comments about merits, as opposed to judicial, review:
[26]	…
This proceeding is in the Administrative Division of the Tribunal. Its immediate predecessor was the Administrative Appeals Tribunal of Victoria established under the Administrative Appeals Tribunal Act 1984. That Tribunal was modelled on the Commonwealth Tribunal …The Commonwealth Tribunal axiomatically exercises administrative and not judicial power… Its proceedings are by way of merits review. That is, the Tribunal reviews the original decision in light of the evidence placed before the Tribunal not before the original decision-maker reaches the correct or preferable decision in light of that evidence. What is reviewed is the merits of the decision, not the legal adequacy of the decision making. This form of review stands in contrast to judicial review…
[27] 	An important issue for a body engaged in merits review of the type described is what powers it has to review a decision or purported decision which upon proper legal analysis is a nullity. Sir Gerard Brennan the inaugural President of the Commonwealth Tribunal considered this issue in Brian Lawlor Automotives Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 and concluded that the Tribunal could review something which operated as a decision in fact despite it being legally a nullity…
39	When ultimately considering the question put to the Tribunal in that case as to whether clause 62 of Schedule 1 of the VCAT Act (which empowers the Tribunal to disregard failures to comply) has no application unless there has been a valid, as distinct from a null, permit application, Deputy President Macnamara had regard to section 4(2)(b) as follows: 
[34] 	… When the Council failed to make a determination within the prescribed period, there was a deemed decision which could be reviewed under the Victorian Civil and Administrative Tribunal Act. See Section 4(2)(d). By virtue of Section 4(2)(b) if it be the fact that Council had no power to deal with or consider the permit application, Council's lack of power did not deprive its deemed decision of the character of a reviewable decision. See section 4(2)b of the Victorian Civil and Administrative Tribunal Act which provides that a decision purporting to be made under an enabling enactment "is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision-maker". Accordingly, even if there was no valid application before Council, that does not mean that there is not a valid application before the Tribunal.
40	In Lawar, the Tribunal, constituted by Deputy President Bisucci, endorsed the Castik decision as follows:
51	Further, I agree with the Tribunal in the Castik decision that simply because an application before an original decision-making body may be invalid, that does not mean the application before the Tribunal is also invalid.
52	Therefore, even if I had not exercised my discretion to disregard the failure to comply with section 72 of the PE Act and the amendment application was not validly made to the council, the Tribunal still has jurisdiction to consider both applications for review pursuant to section 4(2)(b) of the VCAT Act.
41	In MCC v Minister for Planning, as in Phan, the Tribunal was constituted by Deputy President Gibson. As explained by the applicant at paragraph 44 of their written submissions, in that proceeding ‘the Tribunal had before it a ‘mirror’ of the factual scenario that is now before it. In that case, an error was made by the Minister for Planning in relation to the same planning control. There, the Minister purported to make a decision as the responsible authority in relation to two projects, each with a gross floor area of less than 25,000 square metres. The Tribunal found that the responsible authority was the Council and that the Minister’s Notice of Decision to grant a permit was void’. 
42	In making the declarations sought in that proceeding, the Tribunal accepted the jurisdiction of the Tribunal to consider the application despite the decision being made by the wrong entity, and explained why, in those circumstances, the Tribunal considered it appropriate to set aside the decision and remit the application to the council: 
74	There was no debate at the hearing about the consequences of a finding that the Minister was not the responsible authority.  The fact that the Minister lacked jurisdiction to make a decision does not deprive the Tribunal of jurisdiction to consider an application for review having regard to the provisions of section 4(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998.  However, it would not be appropriate to continue with hearing the merits of the application for review in application P1684/2014 in the absence of its consideration by the proper responsible authority, namely the Melbourne City Council.
75	The difficulty with striking out the application for review on the basis that it is misconceived is that the application is made by objectors under section 82 of the Planning and Environment Act 1987.  To strike out their applications for review would still leave the NOD unresolved albeit there would be a declaration about its validity and no permit could issue.
76	In my view, the most appropriate course of action would be to make an order to set aside the decision under review in application P1684/2014 and remit it to the correct decision-maker pursuant to section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.
43	Having considered the wording of section 4(2)(b), the cases referred to above and the submissions of the parties, I agree with the submissions of the council (set out at paragraph 41 above) as to why the Tribunal’s approach in MCC v Minister for Planning is to be preferred to that of Phan. I find that section 4(2)(b) of the VCAT Act, considered together with the other sections of the VCAT Act and PE Act reproduced earlier in this decision, provides the Tribunal with the jurisdiction to consider the decision made by the council to refuse to grant a permit for the proposed development of 1-23 Rathdowne Street, Carlton, even though the council was not the responsible authority tasked with considering and determining the planning permit application under the Scheme. 
44	As identified by Deputy President Macnamara, the Tribunal is then tasked with reviewing the merits of the decision, not the legal adequacy of the decision making.
Should the Tribunal proceed with this application for review?
45	While I have found that the Tribunal has jurisdiction, it may not be appropriate to continue to consider the merits of this application for review in circumstances where the correct responsible authority has not considered the application and is not a party to this proceeding. It may be more appropriate to follow the approach of the Tribunal in MCC v Minister for Planning,
46	However, the distinguishing factor in this matter, as alluded to at the outset, is that the applicant has indicated that it intends to seek leave to amend the permit application and application plans to seek approval to construct a building with a total gross floor area of less than 25,000 square metres. This would change the nature of the application to an application where the council, and not the Minister, was the responsible authority for the planning permit application under the Scheme. 
47	Given that the council has considered the planning permit application from the outset and is already a party to the application for review before the Tribunal, the applicant submits that this proceeding should continue to a final hearing on the understanding that the council will, ultimately, be the responsible authority. The applicant made the following submissions, at paragraph 58, when outlining why it would be ‘in the interests of justice’ for the Tribunal to disregard any failure to comply with the PE Act:

f) 	No party would be prejudiced if the Tribunal determines to disregard any failure to comply with the Planning Act. There is no benefit to the administration of justice in refusing to disregard any failure to comply with the Planning Act. In circumstances where the affidavit material demonstrates that the Applicant is committed to progressing a proposal for a project that is less than 25,000m2, the relevant and correct ‘responsible authority’ is a party to this proceeding and has had the practical benefit of considering in detail the first iteration of the proposal. This situation is clearly distinguishable from the Melbourne CC v Minister for Planning case.
g) 	In what could only be described as a bizarre irony, if this case were to be disposed of without a hearing on the merits, and any failure to comply with the Planning Act were not disregarded, the Applicant would be required to re-submit another planning permit application - to the correct responsible authority – and given its commitment expressed through affidavit - this would be the Council. In effect, this would be an original application for the same proposal as that which is proposed to be contained in the amended plans. This would be an extraordinarily inefficient and ineffective use of Council’s resources; the objectors’ time; the referral authority’s time; and ultimately the Tribunal’s time (assuming the proposal is returned to the Tribunal). Sections 97 and 98 of the VCAT Act are apposite.
h) 	The Minister has been informed of this matter, has not participated to date, and would not be prejudiced, particularly given the Applicant’s commitment to progress a proposal where the correct responsible authority is, or without doubt would have been, the Council (and not the Minister).
48	All of these submissions are predicated on the substitution of the application plans in this proceeding to plans which will reduce the area of the building so that the council is the correct responsible authority under the Scheme.
49	This leads to the next question of whether the Tribunal has the power to amend the application and then to a consideration as to future conduct of the proceeding.

Does the Tribunal have the power to amend the application and the application plans?
50	It follows that if the Tribunal has jurisdiction to consider and determine this application, it also has the ability to amend the proposal, including plans the subject of the application.
51	Both section 127, and Clause 64 of Schedule 1 of the VCAT Act provide the Tribunal with the power to amend documents:
127 	Power to amend documents
(1) 	At any time, the Tribunal may order that any document in a proceeding be amended.
(2) 	An order under subsection (1) may be made on the application of a party or on the Tribunal's own initiative.
64 	Amendment of application
(1) 	This clause applies to the following proceedings—
(a) 	a proceeding for review of a decision under the Planning and Environment Act 1987 of a responsible authority in respect of an application for a permit or the failure of a responsible authority to grant a permit;
…
(2) 	At any time in a proceeding to which this clause applies the Tribunal may make any amendment it thinks fit to the application for the permit, works approval or licence the subject of the proceeding.
(3) 	Without limiting the generality of subclause (2), the Tribunal may make an amendment to an application for a permit under the Planning and Environment Act 1987—
(a) 	as to a use or development different from the use or development mentioned in the application;
(b) 	as to the land to the use or development of which the application relates.
(4) 	This clause is in addition to, and does not limit or affect section 127.
52	The application plans are a document in a proceeding before the Tribunal. The Tribunal has the power to order that the plans be amended.

Future conduct of the proceeding
Circulation of plans
53	The applicant has not yet applied to substitute plans, and has not provided the Tribunal or any parties with a set of plans and all other documents required by Practice Note – PNPE9 Amendment of Planning Permit Applications and Plans (PNPE9), including a statement of changes and supporting material.
54	The applicant has filed an affidavit sworn by its lawyer confirming its intention to make such an application, accompanied by an incomplete set of plans provided to parties on a without prejudice basis prior to the compulsory conference. These plans show a reduction of the height of part of the building by three stories, to ten stories. The affidavit states that the amended plans are proposed to be similar to the without prejudice plans. 
55	PNPE9 provides a procedure required to be followed if a permit applicant wants to change their permit application after an application for review has been lodged with the Tribunal. While the Tribunal may, at its discretion, vary the operation of a practice note, PNPE9 sets out the expectation for permit applicants with respect to this process. Clause 13.1 provides that notice must be given as follows:
Notice given in person or by email: must be delivered or emailed to the recipients at least 30 business days before the first day of the Tribunal hearing. 
Notice given by post: must be put in the post at least 35 business days before the first day of the Tribunal hearing.
56	The Tribunal hearing is listed to commence on 5 June and 14 hearing days have been set aside throughout June and July 2023.
57	The applicant submitted that its intention is to circulate the proposed amended plans by 4pm on Friday 21 April 2023 but seeks the Tribunal’s consent to circulate the plans by 4pm on Monday 24 April 2023.
58	The 21 April date is 30 business days before the first day of the Tribunal hearing. Even if the applicant is able to circulate the plans on 21 April, it cannot meet the 35 day requirement for notice given by post.
59	Clause 14 of PNPE9 clarifies who must be given notice and what documents they must receive. A full set of amendment documents will include a cover letter, PNPE9 Form A, a statement of changes, the amended application/plans and supporting material. The information that must be contained in these documents is set out in table 3 of PNPE9.
60	The PNPE9 Form A must include a date by which a statement of grounds must be lodged with the Tribunal. This date is required to be not less than 19 business days after the day the permit applicant gave the last of the notices required by clause 13. 
61	Table 3 requires the applicant to advise the recipient of the documents that if they are not a party to the Tribunal proceeding but wish to be, or if they are already a party and want to amend their statement of grounds, they must lodge a completed statement of grounds form by the required date.
62	If the applicant is permitted to circulate plans on Monday 24 April 2023, the date by which a statement of grounds must be lodged will be 22 May 2023. If plans are circulated on Friday, that date would be 19 May 2023.
63	That is the same date by which expert reports must be circulated in advance of the hearing (10 business days prior). 
64	There was discussion during the preliminary hearing about whether the Tribunal would consider truncating this time period and require statements of grounds to be filed earlier so that the party list can be finalised prior to the circulation of expert reports. 
Making a decision as to whether plans will be amended
65	PNPE9 not only explains how plans must be circulated but also how and when the Tribunal will consider the request to amend the application and, in this case, substitute the amended plans for the application plans in the proceeding. Below are clauses 22 and 26 of PNPE9 which explain when the Tribunal normally considers such a request and what happens if the Tribunal decides to refuse it:

66	The applicant submitted that this future question is a matter for another day: 
57	A future question for the Tribunal will be whether it should exercise its discretion to substitute (as the plans of the proposal) a scheme which has a gross floor area which is unambiguously less than 25,000m2. This will be a matter for another day. It is sufficient for the Tribunal today to determine that it has jurisdiction to hear this matter.

67	However, as I noted during the hearing, the Minister is currently the responsible authority under the Scheme with respect to the planning permit application and will remain so unless and until the permit application plans are amended. 
68	If leave to amend the application by substitution of plans is sought only at the commencement of the hearing on 5 June 2023, both the Minister and the council must prepare for the hearing on the basis that either one may ultimately be considered the responsible authority for the purpose of the planning permit application and both will be required to prepare for the hearing on the basis of different sets of plans.
69	This is not an appropriate outcome. It is uncertain and unfair to all parties. It is important that all parties are clear, well prior to the commencement of the hearing, as to the nature of the application that is under review including the identity of the responsible authority.
Timing for decision to amend plans
70	As such, I indicated during the hearing that, if I found that the Tribunal had jurisdiction in this proceeding, I would require a practice day hearing to be listed in advance of the final hearing to consider and determine any application that is made to substitute plans in this proceeding.
71	This must be done after the date by which a statement of grounds must be lodged and well before expert evidence is required to be circulated. In a matter listed for a 14 day hearing there is significant work to be done both in preparing expert evidence and, for other parties, in considering the evidence once it has been circulated, and preparing submissions. All parties need to be well aware of what plans are to be assessed.
72	While it is the case that plans are regularly substituted at the commencement of a Tribunal hearing and there is often no objection from other parties, it cannot be assumed that this will be the case, and the Tribunal has discretion to allow or refuse the request of the applicant. 
73	It is essential, in this matter, that there is certainty about the plans, and, therefore, the relevant responsible authority, well prior to the commencement of the hearing. 
74	Following the preliminary hearing, I considered the timeline and when a practice day hearing could be convened to determine this matter.
75	As already indicated, 19 May 2023 is currently the date by which a statement of grounds must be lodged and the date by which expert evidence must be circulated. I would not truncate the date for circulation of expert evidence date as submissions are required to be provided five business days prior to the hearing and this is already a tight timeline for a hearing of this nature.

76	A practice day hearing would need to be held at least two weeks before the date for circulation of evidence, if not earlier. All experts need certainty about what plans they are considering. Even if the applicant was prepared to take the risk, the council and Minister need to know who the relevant responsible authority for the purpose of the planning application is, and who needs to prepare for the hearing, including engaging advocates and experts of their own, if they so choose.
77	It follows that, in any event, the Minister must be a party to this proceeding and must be served with a full suite of PNPE9 documentation. 
78	A practice day hearing held a minimum of two weeks prior to 19 May would require a significant truncation of the time in which statements of grounds can be lodged. Having regard to the fact that, within the timelines currently sought, those notified by post would already be penalised, this would likely result in recipients not having sufficient time to consider and respond to the documents circulated. 
79	The parties, at various times, referred to the requirements of the Tribunal as set out in sections 97 and 98 of the VCAT Act, including that the Tribunal must act fairly in all proceedings, is bound by the rules of natural justice, and must conduct each proceeding with as little formality and technicality, and determine each proceeding with the as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
Conclusion as to future conduct
80	Whilst I appreciate the desire of the applicant to retain the hearing dates set out in the initiating order for this application, I must consider the matter of fairness to all parties and the requirement for certainty as to the identity of the responsible authority for the planning permit application.
81	But for the intention of the applicant to substitute plans, I would have remitted this application ‘back’ to the Minister to consider. While the Tribunal stands in the shoes of the responsible authority for the purpose of determining an application for review, the Tribunal benefits from the participation of the responsible authority for the planning permit application, and an understanding of its position, in the hearing of the application. Particularly in a matter such as this, which proposes a substantial building in a prominent location, it is important that the responsible authority is a party to and participates in the hearing of the application for review.
82	I accept that the applicant says that it intends to amend plans which will remove the proposal from the application of the schedule to clause 72.01 of the Scheme. As such, it is in the interests of justice and efficiency to proceed with this matter, rather than remit it to the Minister, on the basis that the council is likely to revert to being the responsible authority under the Scheme.
83	If the applicant had attended the preliminary hearing with a full set of amended plans, the matter of seeking leave to apply for substitution of those plans may have been able to have been considered. 
84	However, an application to amend plans has not yet been made. Given the time period, a practice day hearing cannot be listed to consider and determine an application to amend plans before the final hearing without creating a situation that is unfair to other parties (and potential parties) and uncertain for all, including the Tribunal. This would be inconsistent with the obligations of the Tribunal set out in section 97 and 98 of the VCAT Act. 
85	If I determined not to require a practice day hearing and allowed the application for amendment of plans to be made at the commencement of the hearing, the consequences of the Tribunal refusing to amend the application are significant. If leave to amend plans was refused, it would likely lead to an adjournment of the hearing. The consequence of that is 14 hearing days being abandoned in circumstances where the Tribunal is unable to list other matters, where several professional experts and advocates would have set aside that period of time for the hearing, and where respondents, generally lay people, would have taken time off work and caring responsibilities to attend the hearing. It would also mean that both the Minister and the council would have had to prepare for the hearing based on different sets of plans. This scenario, too, would be inconsistent with sections 97 and 98 of the VCAT Act. 
86	Ultimately, the timing will not allow for the hearing dates to be retained.
87	I have, therefore, vacated the hearing dates and listed a practice day hearing for 16 June 2023 to consider an application to substitute plans. This will ensure that plans can be circulated within the time periods provided in PNPE9, without requiring any variation. I have then listed the matter for a compulsory conference and a hearing on the earliest dates available to the Tribunal.

Judith Perlstein
Member