VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P977/2024
Permit application no. P4/2024

Applicant	TLC Melbourne Pty Ltd	

Responsible Authority	Banyule City Council	
Respondents	Chris James	
	Philippa Griffith	
	SaveIvanhoeEast.org.au Incorporated	
	Sylvia Kappadais	
	Gary Marshall & Elizabeth Marshall	
Referral Authority	Head, Transport for Victoria	
SUBJECT LAND	321 Lower Heidelberg Road & 1 Maltravers Road
IVANHOE EAST  VIC  3079	
hearing type	Practice Day Hearing	
date of hearing	1 November 2024	
DATE OF ORDER	21 November 2024	
citation	TLC Melbourne Pty Ltd v Banyule CC [2024] VCAT 1107	
Order
Hearing
1	The details set out in the Tribunal’s initiating order are changed.
2	The compulsory conference listed on 25 November 2024 is vacated. No attendance is required
3	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 	13 December 2024	

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 	30 minutes	
Conduct 	Online platform	

The details of the online platform will be provided to the parties before the hearing.
Preliminary Hearing:	
Date and time	17, 18 and 19 March 2025
10.00am – 4.30pm	

Conduct	In person - 55 King Street, Melbourne	

Major Cases Hearing:	
Date and time	19, 20, 21, 22, 23 & 26 May 2025
10.00am – 4.30pm	

Conduct	In person - 55 King Street, Melbourne	
Framing the question/s of law
4	By 4.00pm on 2 December 2025, the applicant must file with the Tribunal and serve on all parties the question/s of law sought to be determined in this proceeding, and provide reasons, where relevant. 
5	By 4.00pm on 9 December 2025, the other parties must file with the Tribunal and serve on all other parties, submissions as to whether they agree with the question/s of law sought to be determined or whether they consider alternative questions must be determined, and provide reasons, where relevant.
6	The purpose of the practice day hearing is to resolve the questions of law to be determined at the preliminary hearing. 
Providing submissions and associated material before the preliminary hearing and hearing
7	No later than 5 business days before the preliminary hearing and hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, 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 provided in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Hearing fees
9	If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

Tribunal Book
10	No later than 5 business days before the hearing, the applicant must provide an electronic copy of a Tribunal Book to the Tribunal and all parties. The copy for the Tribunal must be 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  

J Perlstein
Member

APPEARANCES:		
For TLC Melbourne Pty Ltd	A Finanzio SC and E Peppler of counsel,  instructed by R Hoffman of Rigby Cooke Lawyers.	
For Banyule City Council	D Vorchheimer, lawyer of Russell Kennedy Pty Ltd.	
For SaveIvanhoeEast.org.au Incorporated	D Robinson of counsel, instructed by J Chiodo of Jackson Lane Legal.	
For Chris James	In person.	
For Gary Marshall & Elizabeth Marshall	Gary Marshall, in person. 	
For Sylvia Kappadais	No appearance.	
For Philippa Griffith	In person.	
For Head, Transport for Victoria	No appearance.	

reasons
1	The purpose of the practice day hearing was:
(a)	To consider the first stated reason on the Notice of Decision to Refuse to Grant a Permit dated 15 July 2024 issued by the Banyule City Council, that the application is in breach of various restrictive covenants affecting the land.
(b)	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.
(c)	To ascertain the nature of any expert evidence to be called by parties, and accordingly to consider any procedural orders required regarding the preparation, filing and giving of expert evidence.
(d)	To consider the future conduct of the proceeding. This may include a consideration of dates, duration, compulsory conference and/or venue.
2	An additional purpose concerning joiner of parties was added prior to the practice day hearing and this has been resolved via orders made on 4 November 2024.
3	This proceeding is an application for review to the Tribunal of the decision of Banyule City Council (‘council’) to refuse to grant a permit for:
Use and development of the land for a child care centre, medical centre, restricted recreation facility (gym, pool and wellness centre), food and drink premises (cafe) and place of assembly (gallery); removal of vegetation under the Vegetation Protection Overlay; removal and creation of easements; display of internally illuminated business identification signage; and alteration of access to a Transport Zone (Schedule 2).
4	The grounds of refusal are set out below:
Covenants
1. 	The proposed use and development of the land is in breach of the restrictive covenants listed below that are registered on the various titles of the subject site and therefore, pursuant to Section 61 (4) of the Planning and Environment Act (1987) the Responsible Authority is barred from being able to issue a permit having due regard to the nature of restrictions contained within the covenants registered on title.
• 	1101301;
• 	1127466;
• 	1350689;
• 	1394247;
• 	1408211; and
• 	1532483.

Strategic Context
2. 	The development is located outside of an Activity Centre and the accumulation of the non residential uses is at odds with the purpose and objectives of Clause 32.08 – General
Residential Zone of the Banyule Planning Scheme.
3. 	The proposed use and hours of operation of the restricted recreation facility (gym, pool and wellness centre) and food and drink premises (café) will have an adverse impact on residential amenity are not appropriate in the context of the strategies contained within Clause 13.07-1L – Non-residential uses in residential areas policy of the Banyule Planning Scheme.
Residential Amenity
4. 	The intensity and scale of the multiple uses proposed would have a detrimental impact on the amenity of the surrounding residential properties through additional non-residential activity, noise and disturbance, traffic movements, and illuminated signage contrary to Clause 13.07-1L – Non-residential uses in residential areas and Clause 32.08 – General Residential Zone of the Banyule Planning Scheme.
Mass, Scale, Design, Location and Neighbourhood Character
5. 	The mass, scale, design and location of the buildings, specifically the presentation to Lower Heidelberg Road and Maltravers Road, is contrary to the existing and preferred character of the neighbourhood and would have an adverse visual impact on the streetscapes, contrary to Clauses 02.03-4 - Neighbourhood Character, 15.01-1S and 15.01-1R – Urban Design, 15.01-5S and 15.01-5L-01 – Preferred Neighbourhood Character and 13.07-1L – Nonresidential Uses in Residential Areas of the Banyule Planning Scheme.
Loading
6. 	Inadequate space has been provided for loading or unloading vehicles within the development contrary to the decision guidelines of Clause 32.08 – General Residential Zone and Clause 65 of the Banyule Planning Scheme.
Loss of Vegetation
7. 	The loss of street trees to facilitate the development will have a detrimental impact on the amenity of streetscapes adjoining the site, contrary to Clauses 02.03-2 – Environmental and Landscape Values, 02.03-4 - Neighbourhood Character, 15.01-1S and 15.01-1R – Urban Design, 15.01-5S and 15.01-5L-01 – Preferred Neighbourhood Character and 42.02 – Vegetation Protection Overlay (VPO3) of the Banyule Planning Scheme.

5	The parties filed written submissions in advance of the hearing and made oral submissions during the hearing. The first ground of refusal is that the proposal is in breach of the restrictive covenants registered on the titles to the subject land. The primary issue at the practice day hearing was whether the question of if the proposal would, in fact, breach the restrictive covenants, should be determined in a preliminary hearing or considered together with all other issues during the final hearing of this application. 
6	The covenants generally provide that ‘the owner must not erect more than one dwelling house’, with additional constraints. The council explained its general position in written submissions as follows:
Council submits that the correct interpretation of the Contested Covenant is that it seeks to restrict all development on the Subject Land other than one dwelling house and that it further restricts what can be done at the dwelling by explicitly referring to fell monger, butchering, poultry farming or other offensive operations or manufactures, as could be undertake on land in the 1920 and 1930s. As a consequence, it is Council’s contention that the proposed development contravenes the Covenants.
7	The applicant submitted that the application should proceed to final hearing where all matters can be considered by the Tribunal, and the council and objectors submitted that this threshold issue ought to be determined at a preliminary hearing, following which the final hearing will either not proceed, or proceed on a more limited basis.
8	It is noted that the parties all agreed that a compulsory conference would not be of assistance prior to a preliminary hearing, it at all. On that basis, I have vacated the compulsory conference that was listed for 25 November 2024. All parties also agreed that, regardless of the Tribunal decision, orders would need to be made to frame the questions of law prior to the hearing. Orders have been made in that regard.
Submissions of the parties
9	All parties other than the applicant submitted that a preliminary hearing should be listed to consider the ‘covenant question’. There were several reasons provided, including:
(a)	The discrete legal question should be determined separately. This was set out as follows in the written submissions of SaveIvanhoeEast.org.au Incorporated (‘SEI’): 
The Council’s first ground of refusal, and the interpretation of the covenants, is the epitome of a discrete legal question which ought to be separately determined by the Tribunal prior to any merits hearing. It is a pure legal point of interpretation which is easily separable from the merits of the case, and potentially determinative of the entire proceeding with a considerable relative saving of resources. 

(b)	An ability to resolve a threshold issue in a shorter hearing duration. Depending on the Tribunal decision, this has the potential to reduce hearing days required for this matter and reduce time and cost for all parties involved in the short term. Submissions were made with respect to the limited resources of the community organisation and with respect to the use of council funds, being public resources. It was submitted that the additional time and cost associated with a full hearing may be avoided if the Tribunal determines that the proposal would breach the covenants.
(c)	Tribunal legal resources are limited, and it would be more efficient for the Tribunal to list a legal member on a preliminary hearing to determine the covenant questions, allowing members with planning and urban design expertise to hear the final hearing on the merits of the proposal.
(d)	An application for review concerning a proposed development for the subject land was filed with the Tribunal in 2019 but was withdrawn by the permit applicant prior to hearing. The Tribunal in that proceeding determined to list a preliminary hearing to consider the same legal question concerning the interpretation of the covenants. The Tribunal, constituted by Deputy President Bisucci, made the following remarks upon making that decision:

The parties submit that this same rationale should apply today.
(e)	The applicant is requesting that the Tribunal determine the merits of the proposal even if it finds that the covenant would be breached, and a permit could not be granted. Section 61(4) of the Planning and Environment Act 1987 (Vic) (‘PE Act’) provides that if the grant of a permit would authorise anything that would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit. It is submitted that it is not the role of the Tribunal to consider and provide advice with respect to the merits of what may be hypothetical applications. 
(f)	While the grounds of refusal are extensive and there are merits of the application to consider, from an efficiency and resourcing perspective the best course is a preliminary hearing.
10	The factors opposing a preliminary hearing, as submitted by the applicant, include the following:
(a)	Given the timing constraints of the Tribunal and advocates, and the applicant view that a preliminary hearing would require two to three days, a preliminary hearing would be required to be listed in March 2025 in place of the current hearing dates and not earlier. Depending on the Tribunal findings, this could cause significant delay to the final hearing and decision of this application. 
(b)	The applicant states it intends to develop the subject land. Therefore, even if the Tribunal determines that the current proposal would breach the covenant, further applications will result, be they applications to the Supreme Court to review the Tribunal decision, applications to the Tribunal or the Supreme Court to vary the covenants, or an application to amend the proposal to ensure it does not breach the covenants. A preliminary hearing which does not consider the planning merits of the proposal may cause a reduction of time and cost in the short term but will likely result in increased time and cost in the longer term.
(c)	If the Tribunal lists the matter for a preliminary hearing before a legal member, and the applicant successfully submits that the proposal does not breach the covenants, the final hearing will likely be listed before different members. Given the applicant’s submission that there are submissions and evidence concerning planning, design and traffic matters that may need to be called in a preliminary hearing, it is likely that there will be an overlap in submissions and evidence for the final hearing, potentially adding additional time and cost.
(d)	With respect to the 2019 Tribunal decision, the applicant submits that the proposal is markedly different and non-residential in nature. The previous proposal involved residential construction, and the covenants relate to construction of dwellings on the subject land. In circumstances where the current proposal does not involve construction of dwellings or residential buildings, the applicant submits that the legal considerations involved in the interpretation of the covenants are different to those in 2019. 

(e)	With respect to the matter of efficiency and whether the legal question should be determined separately, the applicant noted that the council considered the entirety of the application and refused it on several grounds, rather than refusing the application on the basis that it considered that a permit cannot be issued due to section 61(4) of the PE Act. 
It was submitted that significant work had been done to respond to further information requests of the council and of relevant referral authorities, and the proposal in its totality should be considered by the Tribunal. It is in the interests of both the applicant and the broader community to understand whether the covenants form the only barrier to the proposal or whether it is otherwise acceptable on its merits. The applicant referred to the Tribunal decision of Healthscope Ltd v Moreland CC & Ors (‘Healthscope’) where the Tribunal determined that the proposed development would result in a breach of the registered restrictive covenant and that, therefore, the permit application must be refused because of the requirements of section 61(4) of the PE Act. However, the Tribunal, as explained below, recorded its findings on the merits of the application in any case:
11.	The submissions about the restrictive covenant were presented to us at the commencement of the hearing. Senior Member Komesaroff reserved her decision on that matter and we proceeded to hear submissions and evidence about the balance of the issues in dispute in this case. All parties presented comprehensive submissions and the permit applicant called expert evidence from four witnesses. The hearing in total was conducted over four and one half days. Having regard to the fact that the issues in dispute were fully ventilated before us, it is appropriate that we record our findings about those issues, notwithstanding that the interpretation of the covenant prevents us from directing the issue of permit.
The applicant submitted that although section 61(4) is a barrier to granting a permit, it does not prevent the Tribunal from considering the merits of the application, just as the council did in its decision to refuse to grant a permit.
The applicant noted that although the decision in Healthscope was a refusal to grant a permit, a development has now been constructed on that site. The applicant submitted that the remarks of the Tribunal with respect to the proposal that was applied for will have assisted the landowners in altering either the covenant or the development proposal to facilitate what is now constructed on the land. 

(f)	In response to the submission that the Tribunal should not consider a hypothetical proposal, the applicant referred to the Supreme Court decision of Prowse v Johnstone & Ors (‘Prowse’). In Prowse, orders were sought under section 84(1) of the Property Law Act 1958 to modify restrictions imposed by the covenant on the land to facilitate a proposed development. A declaration was also sought, under section 84(2), that a particular restriction arising under the covenant – namely a prohibition against the erection of ‘more than one house’ on each of the two lots comprising the property – would not be breached by the proposed development. There were submissions put to the court about the preliminary nature of the plans the subject of the proposal and whether they should be considered, or whether the question should be deferred until the plans were further resolved. The court made the following remarks, and ultimately determined to consider the substance of the proposal as it was reflected in the existing plans:

(g)	The applicant also submitted that fragmentation of the issues was not ideal in this proceeding. The applicant cited the High Court decision of Tepko Pty Ltd v Water Board (‘Tepko’) which included the following remarks concerning the separation of issues and determination of preliminary issues:

The applicant submitted that separating out one issue and leaving other matters unresolved, and to do so for resourcing purposes, is problematic. They would prefer that all matters are fully ventilated at the same time and consider it is an appropriate and efficient use of the Tribunal time to consider this planning application in its totality.
(h)	The applicant also raised the matter of prejudice to the applicant in further delaying a final decision on this application in circumstances where the council did not refuse the application due to the covenant at first instance, but has required many items of further work to be done by the applicant in providing additional detail about all elements of the proposal. The applicant is seeking a decision with respect to all elements of the application so that it can then consider the totality of its options with respect to appeal, redesign or further applications concerning the covenant, rather than proceeding with respect to the covenant question on its own.

Tribunal consideration
11	Sections 97 and 98(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provide as follows:
97 	Tribunal must act fairly
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
98 	General procedure
(1) 	The Tribunal—
(a) 	is bound by the rules of natural justice;
(b) 	is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
(c) 	may inform itself on any matter as it sees fit;
(d) 	must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
12	This proceeding is listed for a six day hearing in March 2025. Most of the parties to the proceeding are represented. There was discussion during the hearing of whether a preliminary hearing could be listed prior to March 2025 so that a final hearing, if required, would not be unduly delayed. A    combination of the listing constraints of the Tribunal and parties, procedural matters that would need to occur prior to the hearing, and the end of year break, means that it is not possible to schedule a preliminary hearing prior to the current hearing dates and a decision to schedule a preliminary hearing would mean that it would occur in place of the current hearing dates.
13	The council and respondents are correct in that if a preliminary hearing is held and the Tribunal determines that the proposal would breach the covenants, then a merits hearing of the proposal will not proceed and parties will be saved the additional time and expense attributed to the additional hearing days that would have been required. 
14	However, I accept that the applicant intends to develop the subject site. The form of such development has been considered and refined since at least 2019 and the applicant is clearly seeking to achieve an outcome. If the proceeding is listed for a preliminary hearing, one outcome would be that the Tribunal determines that the proposal does not breach the covenant, and then a merits hearing will need to be listed with different Tribunal members where at least some of the material, and possibly evidence, will be repeated. If the Tribunal determines that the proposal does breach the covenant, outcomes could include an appeal to the Supreme Court, an amendment to the proposal or an application to vary the restriction. 
15	The applicant contends that, absent an assessment on the merits of the proposal, these applications can only reflect the decision on the covenants and further applications will be required to review the merits. 
16	It is important to note, however, that the applicant’s submissions with respect to the Tribunal considering the planning merits of the proposal rely on the Tribunal electing to consider the merits even if it determines that the proposal would breach the covenant. It is possible that if the matter is listed for final hearing, the Tribunal may elect not to consider the merits of the application fully if it determines that the proposal would breach the covenant. Even if it did consider the merits of the proposal, any such consideration would not bind the council or the Tribunal in any future application. Therefore, the benefit of a final hearing on this application without a preliminary hearing is questionable. 
17	With respect to the Tepko decision, SEI submitted that the remarks within that decision relate to a general principle, and have been made in the context of general court litigation, whereas the legal question sought to be answered in this case is entirely separate to the planning merits of the proposal. It is correct in this proceeding that the legal question is entirely severable from the merits of the proposal and can be determined separately. 
18	I am aware of the time and effort expended by the applicant thus far and the desire to obtain a final decision on this application. Of course, if the Tribunal determines that the proposal does not breach the covenant and that the planning merits are acceptable, a planning permit could be issued immediately following the hearing in March 2025. However, if the Tribunal does not list a preliminary hearing in this matter and it is determined that the proposal would breach the covenants, significant resources of the Tribunal, the council and all other parties, as well as the applicant, will have been expended to participate in a merits hearing that cannot lead to the issue of a permit. While I accept that in Healthscope the Tribunal chose to include remarks about the planning merits of the proposal, I cannot assume that a future Tribunal will do the same. As already noted, any remarks made about the planning merits in such circumstances will not, in fact, provide certainty to the applicant in terms of future acceptable development.
19	As such, I am not persuaded that there is benefit in listing this matter for a final hearing without first determining the clear preliminary issue.
20	I also consider that the reasons provided by the Tribunal in 2019 continue to apply, that it is ‘fair, economical, serves utility and is just for all parties and the Tribunal, to require a separate preliminary hearing’. Whilst the proposal in this case is different, the question of whether there is a breach of the covenants remains a question that must be resolved before any planning permission can be granted. 

21	As a result, I have listed this matter for a preliminary hearing on the dates previously set aside for the final hearing and put in place a procedure to determine the precise question/s to be determined in the preliminary hearing. I have also set aside new hearing dates in May 2025 to ensure that a final decision on this proposal is not further delayed if the Tribunal determines that the proposal does not breach the covenant. 
22	With respect to timing, the applicant in written submissions suggested that three days would be required for a preliminary hearing. While this was revised during oral submission, I have listed the preliminary hearing for three days. Depending on the framing of the questions and whether the applicant elects to call evidence, not all of those days may be required.

J Perlstein
Member

Help and support
Information for all parties is available at the Tribunal’s website www.vcat.vic.gov.au

For information about what happens after you make your application, visit
www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

To find out about the Tribunal’s support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support