VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1076/2023
Permit no. D/965/2004	
catchwords
Application for enforcement order; s 114 of the Planning and Environment Act 1987 (Vic); s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); no breach of condition on permit; application summarily dismissed.

Applicant	Lambro Notis	

Responsible Authority	Darebin City Council	
Respondents	Christina Louise Liberatore	
	Nickolas Di Sisto	
SUBJECT LAND	2A Hamilton Street
ALPHINGTON  VIC  3078	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	20 October 2023	
DATE OF ORDER	30 October 2023	
citation	Notis v Darebin CC [2023] VCAT 1211	
Order
Vacate hearing
1	The compulsory conference scheduled to commence at 10:00am on 30 January 2024 is vacated.  No attendance is required.  
2	The hearing scheduled to commence at 10:00am on 4 April 2024 is vacated.  No attendance is required.
Summary Dismissal
3	The application is summarily dismissed under section 75(1) Victorian Civil and Administrative Tribunal Act 1998 (Vic) because it is misconceived and lacking in substance.

Teresa Bisucci
Deputy President	

Appearances
For Lambros Notis	Konstantine Notis	
For Darebin City Council	Mark Bernhardt, team leader	
For Christina Louise Liberatore	Christina Louise Liberatore, in person	
For Nickolas Di Sisto	Nickolas Di Sisto, in person	

Reasons
Proceeding
1	On 21 August 2023, Lambros Notis (‘applicant’) filed an application under s 114 of the Planning and Environment Act 1987 (Vic) (‘PE Act’) seeking an order that the land at 2A Hamilton Street, Alphington (‘land’) had been developed in contravention of condition 1(i) on Planning Permit No. D/965/2004 (‘permit’).
2	The history of the permit is relevant to this proceeding, and I now briefly set this out.  On 27 June 2006, the Tribunal issued its order by consent of the parties, granting the permit for the construction of three, two storey units on land then known as 13 Grange Road, Alphington.  The agreement included council, the applicant and the representative of then owner of 13 Grange Road, Alphington.  The permit issued subject to conditions including condition 1(i) which states:
Garage of Unit 1 with a minimum setback of 1 m off the northern site boundary.
3	The land at 13 Grange Road, Alphington has been developed since the issue of the permit and, also appears to have been subdivided so that it is now known as 2A, 2B and 2C Hamilton Street, Alphington.  Christine Liberatore and Nickolas Di Sisto (‘respondents’) are the current owners of the land.
4	The applicant alleges that on 5 March 2023 the current owners of the land ‘built up’ to the northern fence by extending the garage.  Thus, the applicant alleges there is a breach of condition 1(i) of the permit.
5	The applicant contacted the Darebin City Council (‘council’) on several occasions to highlight his concerns that condition 1(i) of the permit had been breached.
6	The respondents oppose the application for enforcement order and request the proceeding be dismissed.  The respondents explain they have built ‘a small enclosure to house their lawnmower and some small tools’ (‘structure’) in between the garage and the northern boundary fence.  They say there is no extension of the garage and no change to the location of the garage wall.  Further, I am told there is no direct access from the garage to this structure that is, by means of a door in the northern wall of the garage.  
7	Council says that a planning permit is not required under the Darebin Planning Scheme (‘scheme’) for the structure because it is less than 10 square metres and does not exceed 3 metres in overall height.  From this, I infer that council is referring to the second exemption from the need for a permit at clause 32.08-5 of the scheme set out below:
No permit is required to:
•	Construct or carry out works normal to a dwelling.
•	Construct or extend an out-building (other than a garage or carport) on a lot provided the gross floor area of the out-building does not exceed 10 square metres and the maximum building height is not more than 3 metres above ground level.
•	Make structural changes to a dwelling provided the size of the dwelling is not increased or the number of dwellings is not increased.
8	I was told by council that a building permit is required because the structure has a roof.  I make no findings or comments about this statement, as I do not have any jurisdiction to consider matters arising under the Building Act 1993 (Vic).
9	On that basis, council also submits the proceeding should be dismissed.
10	The applicant says that ‘structure’ is part of the garage and thus, there is a breach of condition 1(i) of the permit.  He also says that his understanding of condition 1(i) of the permit is that there is to be no structure or building between the garage wall and the northern boundary fence.
11	The applicant relies upon the decision in The King David School v Stonnington CC & Ors (‘King David’) to support his application and says that the permit should not be amended because it emanated from an agreement of the parties.
tribunal determination
Summary dismissal
12	Having regard to the material before me, I consider it appropriate to summarily dismiss the application for enforcement order because it is misconceived and lacking in substance.
13	Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) provides:
75 	Summary dismissal of unjustified proceedings
(1) 	At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion—
(a) 	is frivolous, vexatious, misconceived or lacking in substance; or
(b) 	is otherwise an abuse of process.
…
14	The general principles relating to s 75(1) of the VCAT Act are set out in Axicom Pty Ltd v Melton CC(‘Axicom’) as follows:
[9]	The general principles relating to the operation of section 75 of the VCAT Act are clear. For a proceeding to be summarily dismissed:
•	the proceeding must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail.
•	the power to order summary dismissal should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Indeed, it must be ‘very clear’ that the proceeding is ‘absolutely hopeless’.
•	the power should not be invoked where all that is shown is that, on the material currently before VCAT, the applicant may fail to adduce evidence substantiating an essential element of the complaint.
•	a proceeding should not be summarily dismissed if the ultimate fate of the proceeding depends upon disputed questions of fact that could be established by evidence yet to be adduced or tested.
•	the respondent to a proceeding bears the persuasive burden of showing ‘that the complaint is undoubtedly hopeless’.
15	In this case I adopt these principles as they are relevant to my consideration of the application for summary dismissal. 
16	There is no doubt there is a ‘very high bar’ when a party seeks summary dismissal of a proceeding.  However, in my view that bar has been met in the facts and circumstances of this proceeding for the following reasons.
17	The structure on the respondents’ land is not part of the garage in that it cannot be used as part of the garage.  There is no physical access between the garage wall and the structure.  Therefore, it is difficult to comprehend the applicant’s submission on this issue.  In fact, on the material before me in this proceeding, I expressly reject that submission.
18	Further, whilst the applicant says he understood condition 1(i) of the permit to mean that there would not be any development between the garage and the northern boundary fence, that is not what condition 1(i) of the permit says.  That condition simply requires the garage on the land to have a minimum setback of 1 m from the northern site boundary.  To that end, the garage is setback in accordance with condition 1(i) of the permit.  If the applicant had a different expectation about the outcome of condition 1(i) of the permit, that should have been dealt with at the time by the inclusion of a condition that there would be no construction or development in the 1 m setback between the garage and the northern boundary fence.  That is not the case before me.
19	Thus, the application for enforcement order is unstainable and bound to fail.  In such circumstances, it is appropriate to summarily dismiss the application for enforcement order.
Other matters
20	The respondents have raised concern with the number of unsuccessful applications brought by the applicant that have been dismissed by the Tribunal over a 13-year period.  In written submissions, the respondents also apply for a limited litigation restraint order pursuant to section 12 of the Vexatious Proceedings Act 2014 (Vic) restraining the applicant from making any further applications to the Tribunal because the current proceeding is an abuse of process, and they say was commenced without reasonable grounds.  Further, the respondents claim that the proceeding was brought to harass or annoy them.
21	At the practice day hearing I advised the parties that the consideration of the application would not be necessary as it would delay the ultimate outcome of the application for summary dismissal.  I also told the parties that in some circumstances applications based on the same facts and circumstances could not be brought without leave of the Tribunal.  That statement is correct to the extent an application is subsequently withdrawn but does not apply when an application is summarily dismissed.
22	In any event, even if the respondents pursued their application restraining the applicant from making further applications under the Vexatious Proceedings Act 2014 (Vic), that would have necessitated a further hearing, submissions from the parties and a decision from the Tribunal.
23	Given my decision, the most expeditious manner of dealing with this particular proceeding was to hear the application for summary dismissal.  
24	Thus, in short, the proceeding has been dealt with quickly and efficiently and did not require any consideration of the application under the Vexatious Proceedings Act 2014 (Vic).

Teresa Bisucci
Deputy President