VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1357/2023
Permit Application no. KP-2023/61	

catchwords
Section 89 of the Planning and Environment Act 1987 (Vic); Application to amend permit; Section 82 of the Planning and Environment Act 1987 (Vic); Amendment to application; Application summarily dismissed as misconceived.
Applicants	I & F Taranto Nominees Pty Ltd & Seafarer Australia Pty Ltd	

Responsible Authority	Kingston City Council	
respondent	N J Agius Pty Ltd	
SUBJECT LAND	Harbour Plaza, Shop 16, 16A & 17, 21 Thompson Road
PATTERSON LAKES  VIC  3197	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	15 January 2024	
DATE OF ORDER	19 January 2024	
citation	I & F Taranto Nominees Pty Ltd v Kingston CC [2024] VCAT 62	
Order
Amendment of application refused
1	The request to amend the application for the amendment of Planning Permit KP-2023/61 made under s 89 of the Planning and Environment Act 1987 (Vic) to an application for review under s 82 of the Planning and Environment Act 1987 (Vic) is refused.
Vacate hearing
2	The hearing scheduled at 10.00 am on 6 February 2024 is vacated.  No attendance is required.
Summary Dismissal
3	Proceeding P1357/2023 is summarily dismissed under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) because the application is misconceived.

Teresa Bisucci
Deputy President	

Appearances
For I & F Taranto Nominees Pty Ltd & Seafarer Australia Pty Ltd	James Paterson of counsel, Sharrock Pitman Legal Pty Ltd	
For Kingston City Council	Michael Churilov, town planner	
For N J Agius Pty Ltd	Norman Agius, director	

reasons
context
1	This application is brought under s 89 of the Planning and Environment Act 1987 (Vic) (‘PE Act’) by I & F Taranto Nominees Pty Ltd and Seafarer Australia Pty Ltd (‘applicants’).
2	The application was listed for a practice day hearing to consider the following matters:
•	the jurisdiction of the Tribunal to consider the application made under section 89(1)(b)(iii) of the Planning and Environment Act 1987 (Vic) in circumstances where the application was made to the Tribunal before the relevant permit issued;
•	the future conduct of the proceeding if, the Tribunal determines it has the jurisdiction to consider the application, including whether it should be heard and determined at the same time as P1609/2023; and
•	a timetable for the filing of evidence, submissions and any matters pertaining to the future conduct of the proceeding.
3	The parties were required to submit submissions prior to the practice day hearing.  The applicant and the Kingston City Council (‘council’) provided written submissions.  However, N J Agius Pty Ltd (‘respondent’) did not provide any written submissions and addressed the Tribunal at the practice day hearing.
4	The following is a chronology of events that is relevant to this application:
Date	Event	
12 June 2023	Objections filed with council by applicants	
26 September 2023	Council email to applicants attaching letter from Campbell Corporate Services (of even date) advising of: ‘NO OBJECTION BY OWNERS CORPORATION’	
 1 October 2023	Second objection filed with council by applicants 	
2 October 2023	Issue of Notice of Decision to Grant Planning Permit KP-2023/61 (‘NOD’) for use of the subject land for the sale and consumption of liquor and reduction in the car parking requirements by council 	
4 October 2023 (3.02pm)	Email from applicants to council seeking copy of ‘endorsed plan’ 	
4 October 2023 (3.23pm)	Email from council to applicants advising that it: ‘cannot issue the endorsed plans until the notice period of 28 days is over’	
27 October 2023	Application for cancellation or amendment of permit under s 89 of the PE Act received by Tribunal	
31 October 2023	Tribunal registry sends email to applicants advising that permit has not been issued and seeking clarification from applicants about the nature of application.  The email attached the application for review form for applications under s 82 of the PE Act.	
1 November 2023	Applicants email Tribunal (and copy council) confirming that they did not intend to apply for review of the decision to grant the permit.  The applicants’ confirmed they sought to amend the ‘proposed planning permit’ by exclusion of the owners’ corporation land from the ‘red line plan’ and reducing the number of patrons.	
2 November 2023	Tribunal registry emails council advising that it had not received an application for review under s 82 of the PE Act	
8 November 2023	Council issues Planning Permit KP2023/61 (‘permit’)	
what do the parties say?
Applicants
5	In summary the applicants submit their application made under s 89 of the PE Act should be amended to be an application for review under s 82 of the PE Act.  Further, in response to questions from me at the practice day hearing, the applicants say that a declaration would be required to deal with the permit that is now in existence.
6	The applicants rely upon the affidavit of David Joseph Taranto to support their submissions.  A summary of David Joseph Taranto evidence is now set out:
•	the applicants seek to ‘prevent a permit including the relevant common area’ and to have the permit amended;
•	he did not appreciate the ‘legal nuances’ between the application types;
•	he maintained his belief that the permit should be amended notwithstanding the email from the Tribunal registry seeking clarification about the application that had been made; and
•	in December 2023 he became aware that the original application should have been made under s 82 of the PE Act rather than s 89 of the PE Act.
7	The applicants rely on a number of previous decisions about the power and ambit of s 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) and say in the circumstances, I should exercise discretion to amend the application from one brought under s 89 of the PE Act to one under s 82 of the PE Act.  Consequently, I would also need to address the issue of the permit by way of declaratory relief.
Council
8	Council accepts the Tribunal has the discretion to amend the application as now requested by the applicants but says that I should not exercise that discretion.
9	Council says that an extension of time would be required in the circumstances presumably because the request for the amendment of the application from one under s 89 of the PE Act to one under s 82 of the PE Act occurred more than 28 days after the issue of the NOD.  In support of its submissions that I should not extend time council says, in summary:
•	the applicant’s took steps to advise of their intention to contest the permit and not council’s decision to issue the NOD;
•	it would not be fair to the respondent, and in fact it would be prejudicial to the respondent because it has obtained endorsed plans and has lodged the requisite application with the Victorian Gambling and Casino Control Commission; and
•	the applicants are concerned with the use of the common property and whether consent has been obtained from the owners corporation.  Their grounds do not raise any issues of amenity.

10	Thus, council says there is no compelling reason to extend time to allow the application under s 82 of the PE Act.
11	Council also opines that it was not provided with the affidavit of David Joseph Taranto until the morning of the practice day hearing and thus, it did not have time to properly prepare questions about that evidence. 
12	Lastly, council says that this application was premature because at the time it was filed with the Tribunal there was no permit in existence and thus, there was no permit to cancel or amend.  Council submits the practical outcome given there is a second proceeding brought under s 89 of the PE Act is to strike out this application as misconceived.
Respondent
13	The respondent did not address the specific purposes of the practice day hearing but says there are no adverse amenity impacts to the applicants by the issue of the permit.  Further, the respondent says that it has the requisite consent of the owners corporation to the extent necessary.
14	The respondent also highlights the permit has been issued and the subject land has been leased.  Thus, to allow this application to be amended to one under s 82 of the PE Act would have a real impact on it.
tribunal determination
15	Having considered the submissions of the parties and on the material before me, I am not satisfied the applicants intended to file an application under s 82 of the PE Act and accordingly, I do not consider it appropriate to amend the application in the manner sought.  I come to this finding for the following reasons:
a	the response by the applicants to the Tribunal’s correspondence on 31 October 2023 which confirmed they did not intend to review council’s decision.  I also note the Tribunal’s correspondence attached the correct application for review form. I now provide an extract of that correspondence:

b	the NOD sent to the applicants with a covering letter on 2 October 2023 that stated:

c	council’s correspondence to the applicants on 4 October 2023 which highlights that it cannot issue endorsed plans until the permit issues;
d	the application and the accompanying material do not evince an intention that the applicants sought a review of council’s decision.  The applicants’ material clearly sought to amend the permit by way of the endorsed plans and the number of patrons; and
e	the applicants had notice by the Tribunal and council that a permit had not issued and could not issue until the 28 day period elapsed.  Further, the applicants were in possession of sufficient information to understand that an application under s 82 of the PE Act was required.  
16	I accept the evidence of David Joseph Taranto that he became aware that a 
s 82 of the PE Act should have been lodged in December 2023.  That evidence supports my finding that when the application was filed and up until December 2023, the applicants did not intend to file an application under s 82 of the PE Act.
17	The applicants should have been aware from the correspondence of the Tribunal and council that they should have made a different application.  They chose not to pursue that type of application and confirmed that they did not want to review council’s decision.  On that basis, the council legitimately issued the permit.  Since the filing of the application under s 89 of the PE Act, the permit has issued, and the respondent now has both a permit and endorsed plans which allows the use of the subject land for the sale and consumption of liquor and reduction in the car parking requirements. 
18	It is simply unfair to the respondent to amend the application to one under s 82 of the PE Act and further to make a declaration about the issue of the permit given the errors rest solely with the applicants.  I accept that lay people are not necessarily familiar with the planning process.  However, council’s NOD including the last page of that document clearly articulates what is required by an objector intending to challenge council’s decision.  Further, the Tribunal’s website provides sufficient guidance about the process to be followed.  
19	For the avoidance of doubt, I accept I have the power to make such an amendment to the application under s 127 of the VCAT Act, but the facts of this case do not favour the exercise of such discretion in the circumstances.
20	Lastly, I note there is a second proceeding that has been brought under s 89 of the PE Act seeking to amend the permit.  The applicants can pursue that request through the second proceeding.
21	For the avoidance of doubt, I do not accept council’s submission that if I had decided to amend the application for review to one under s 82 of the PE Act that I would need to extend time for the bringing of that application.  If, I had found that the applicants intended to file an application under s82 of the PE Act at the time they filed the application under s89 of the PE Act (which I have not), that application was made within the 28 day period and thus, would not have required an extension of time.
22	Having regard to the above findings, at the time the application to amend the permit under s 89 of the PE Act was filed with the Tribunal, a permit did not exist.  On that basis, the application is misconceived and is summarily dismissed under s 75 of the VCAT Act.

Teresa Bisucci
Deputy President