VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P189/2024
Permit Application no. 2020/438	
CATCHWORDS	
Application for review under s.80(1) of the Planning and Environment Act 1987 (Vic); accuracy of letter serving application for review.	

Applicant	Steve Boutros & Daniel Hadjiantonakis	

Responsible Authority	South Gippsland Shire Council	
Respondents	David Stringer & Denise Stringer	
Referral Authority	Head, Transport for Victoria	
SUBJECT LAND	29 & 31 Davis Street
NYORA  VIC  3987	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	3 May 2024	
DATE OF ORDER	3 May 2024	
CITATION	Boutros v South Gippsland SC [2024] VCAT 395   	

Order
Amendment of application of review 
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal 1998 (Vic), the sheet attached to the application for review dated 15 February 2024 is amended by striking out those paragraphs that refer to conditions 24.1 and 24.2. 
Amendment of statement of grounds  
2	By no later than 4:00pm on 8 May 2024, the respondents must file an amended statement of grounds confining their grounds of review to consideration of conditions 1(t), 1(w) and 1(gg) of the notice of decision to grant a permit dated 18 December 2023.
Further involvement of Head, Transport for Victoria in proceeding
3	Head, Transport for Victoria is excused from further active participation in this proceeding but remains a party to this proceeding.
Further notice of application for review
4	By 8 May 2024, the applicant must give the following documents to any referral authority and every person who lodged a written objection to the grant of the permit (objectors) as notified by the responsible authority under order 5 of the Tribunal’s order of 22 February 2024:
•	the application for review, including the applicant’s statement of grounds (other than the attached sheet dated 15 February 2024 that sets out the conditions the subject to the application for review, the attachments do not need to included).
•	a copy of this order; and 
•	a letter which must:
o	explain that an application for review has been lodged and the Tribunal requires the documents to be given to any objectors and any referral authorities; and
o	explain that a statement of grounds may be lodged with the Tribunal and specify 22 May 2024 as the closing date by which a statement of grounds must be given to the Tribunal, the responsible authority and the applicant; and
o	include the link to the online Statement of Grounds form on the Tribunal’s website 
(www.vcat.vic.gov.au/respondplanning )
o	specify the date/s and time of the hearing contained in Order 1 of the Tribunal’s order of 22 February 2024;
o	include a statement that there is no right of review under section 82 of the Planning and Environment Act 1987 (Vic) for the permission sought under the planning application under clause 52.29 of the South Gippsland Planning Scheme.
5	By no later than 4:00pm on 24 May 2024, the applicant must give the Tribunal:
•	a completed statement of service; and 
•	a list of names and addresses of all persons and authorities to whom the documents were given; and
•	sample of the letter sent with the documents.
If a statement of service is not given to the Tribunal by 4:00pm on 24 May 2024, this application may be struck out without further notice. No reminder will be sent.
What objectors and referral authorities must do
6	If you are entitled to become a party to this proceeding and want to take part, you must complete a Statement of Grounds online at www.vcat.vic.gov.au/respondplanning and give a copy to the responsible authority and the applicant by 22 May 2024.
(Note: you must also pay a fee by 4:00pm on 22 May 2024. Information regarding fees is available at www.vcat.vic.gov.au/fees. A fee does not apply to referral authorities.)
Draft conditions under review
7	By no later than 4:00pm on 24 May 2024, the applicant must give to the Tribunal, the parties, and all persons who have made a statement of grounds by 22 May 2024, a copy of the draft conditions that the applicant will rely on at the compulsory conference.
It is the applicant’s obligation to obtain from the Tribunal a list of all persons who have lodged a statement of grounds by 22 May 2024 in order to properly comply with this order. 
Previous orders of the Tribunal
8	The following orders of the Tribunal’s order of 22 February 2024 are confirmed – 
(a)	Order 1 regarding the hearing and compulsory conference details;
(b)	Orders 9 and 10 regarding what all the parties must do;
(c)	Orders 11 to 14 regarding the conduct of the compulsory conference;
(d)	Order 15 regarding the request for procedural orders; and
(e)	Order 16 regarding the preparation of a Tribunal Book by the applicant.

S P Djohan
Senior Member	

Appearances
For applicant	Neil Haydon, town planner, Neil Haydon & Associates.
	
For responsible authority	Sebastian Lorenzo, town planner, South Gippsland Shire Council.

For referral authority	Stuart Frenech, town planner, Department of Transport and Planning.
	
For respondents	David Stringer.
	
Reasons
Nature of proceeding
9	On 18 December 2023, South Gippsland Council (‘Council’) issued a notice of decision granting a permit for the development of land situated at 29 and 31 Davis Street, Nyora (‘subject land’) for a supermarket and associated shops, alteration of access to a road in a Transport Zone 2 with a reduction in car parking spaces (‘proposed development’). 
10	The notice of decision included a copy of the proposed permit complete with permit conditions.	
11	This proceeding has been commenced by the permit applicant under s.80 of the Planning and Environment Act 1987 (Vic) (‘P&E Act’) against certain conditions on the proposed permit.
12	The referral authority is a determining authority for the permit application under the South Gippsland Planning Scheme and has directed Council to include certain conditions on any permit that issues for the proposed development. The application for review as lodged with the Tribunal challenges two of the conditions required to be imposed by the referral authority.
13	The respondents -
(a)	are owners of 5 Mitchell Street, Nyora which is included in the Commercial 1 Zone of the planning scheme;
(b)	are persons who lodged an objection with Council against the proposed development;
(c)	have filed a statement of grounds in this proceeding with the Tribunal within the time required under the Tribunal’s order of 22 February 2024.
14	A compulsory conference is scheduled to take place in the proceeding on 29 May 2024 and the final hearing is scheduled for two days commencing on 24 July 2024.
purpose of the practice day hearing
15	The Tribunal’s order of 8 April 2024 set this proceeding down for a practice day hearing for the following purposes –
•	to give directions about the future conduct of the proceeding.
•	to consider service of the application on other persons.
•	to consider whether review rights are limited as set out in the following extract from Mr Haydon’s letter of service dated 8 March 2024
Exemption from Review Rights
Commercial 1 Zone – Buildings and Works
Pursuant to Clause 34.01-7 of the South Gippsland Planning Scheme, third party objectors do not have any review rights at VCAT in relation to buildings and works.
This exemption does not apply to land within 30 metres of land (not a road) which is in a residential zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired or a hospital or an education centre.
Based on our assessment, the only persons who have review rights within the scope of this provision would be the owners/occupiers of 34 Davis Street, Nyora 3987.
planning scheme provisions
16	The subject land is included in the Commercial 1 Zone under the planning scheme.
17	The term ‘shop’ includes ‘supermarket’ under the Table to clause 73.03 of the planning scheme.
18	The use of land for the purposes of a shop (including a supermarket) is a section 1 use under the table to clause 34.01-1 of the planning scheme and therefore use of the subject land for a supermarket or a shop does not require a planning permit to be obtained under clause 34.01-1 of the planning scheme.
19	Clause 34.01-4 provides that a planning permit is required to construct a building or to construct or carry out works. Therefore, the buildings and works for the development of the subject land for a supermarket and associated shops requires a permit under clause 34.01-4.
20	Clause 34.01-7 applying to land within the Commercial 1 Zone states – 

21	The subject land is affected by clause 43.02 – Design and Development Overlay and Schedule 12 to that clause. Clause 43.02-2 provides that a permit is required to construct a building or carry out works unless a schedule to Claus 43.02 specifically states that a permit is not required. Schedule 12 does not specifically state that a permit is not required under clause 43.02, therefore the proposed development requires a permit under clause 43.02-2 of the planning scheme.
22	Clause 43.02-2 also provides – 

23	Schedule 12 does not specify that an application is exempt from the requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the P&E Act.
24	Davis Street is included in the Transport Zone 2. The proposed development involves the creation of access from Davis Street and an existing laneway off Davis Street.
25	Clause 52.29-2 of the planning scheme states that a permit is required to create or alter access to a road in a Transport Zone 2. A permit is therefore required under clause 52.29-2 of the planning scheme.
26	Clause 52.29-5 of the planning scheme states –

27	The applicant seeks a reduction in the number of car parking spaces required under clause 52.06-5 of the planning scheme and as a result a permit is required under clause 52.06-3.
28	Clause 52.06-4 of the planning scheme provides – 
Submissions
Applicants
29	The applicants submitted that the interpretation of clause 34.01-7 leads to the conclusion that only land that is within a residential zone and is within 30 metres of the subject land is entitled to notice under s.52 of the P&E Act of the application for a permit under clause 34.01-1. As a result, the content of the letter of service used to serve all relevant persons in accordance with the Tribunal’s order of 22 February 2024 identifies only the owners/occupiers of 34 Davis Street, Nyora as persons who have review rights in respect of Council’s decision to grant a permit under clause 34.01-1.
30	The applicants further submitted that as the respondents’ land is included in the Commercial 1 Zone, they were not entitled to notice of the application for a permit under clause 34.01-1 of the planning scheme. As the respondents were not entitled to notice under s.52 of the P&E Act, they cannot exercise any right of review in respect to Council’s decision to issue a permit under clause 34.01-1.
31	In addition, clause 52.29-5 of the planning scheme exempts any application under clause 52.29 from notice under section 52 and no review rights are conferred under s.82 of the P&E Act.
32	As a consequence, the respondents do not have review rights in respect to Council’s decision to grant a permit under clause 34.01-1 and clause 52.29-2 of the planning scheme.
Council’s submissions
33	Council agrees with the applicants that clause 34.01-7 of the planning scheme provides an exemption from the notice requirements and review rights under the P&E Act but nevertheless has no objection to the respondents being ‘joined’ as a party to this proceeding.
Respondents’ submissions
34	At the practice day hearing, Mr Stringer informed the Tribunal that on review the respondents wished to confine their grounds of review to consideration of conditions 1(t), (1(w) and 1(gg) of the notice of decision.
determination
Is further notice of the application for review required?
35	The Council planning officer’s assessment states that there were 37 letters that were sent to landowners and occupiers, signs were erected on the Davis Street and adjoining laneway frontages and a public notice was placed in the South Gippsland Sentinel Times. The extent of notification under s.52 of the P&E Act was a matter for Council to determine.
36	Order 3 of Tribunal’s order of 22 February 2024 required as follows – 
3	By 14 March 2024 the applicant must give the following documents to any referral authority and every person who lodged a written objection to the grant of the permit (objectors):
•	the application for review, including the applicant’s statement of grounds (the attachments do not need to be included); and
•	a copy of this order; and
•	a letter which must; 
o	explain that an application for review has been lodged and the Tribunal requires the document to be given to any objectors and any referral authorities; and
o	explain that a statement of grounds may be lodged with the Tribunal and specify 4 April 2024 as the closing date by which a statement of grounds must be given to the Tribunal, the responsible authority and the applicant; and
o	include the link to the online Statement of Grounds form on the Tribunal’s website (www.vcat.vic.gov.au/respondplanning )
o	specify the date/s and time/s of the hearing contained in Order 1; and
o	if applicable, include a statement setting out those matters within the permit application for which there is no right of review under section 82 of the Planning and Environment Act 1987.
37	The sample referral notice letter attached to the applicants’ statement of service includes a statement setting out those matters with the permit application for which the applicants’ consultant considered there is no right of review under s.82 of the P&E Act. The relevant part of the sample letter is as follows – 
Exemption from Review Rights
Commercial 1 Zone – Buildings and Works
Pursuant to Clause 34.01-7 of the South Gippsland Planning Scheme, third party objectors do not have any review rights at VCAT in relation to buildings and works.
This exemption does not apply to land within 30 metres of land (not a road) which is in a residential zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre.
Based on our assessment, the only persons who have review rights within the scope of this provision would be the owners/occupiers of 34 Davis Street, Nyora 3987.
Clause 52.29 Land Adjacent to the Principal Road Network
Pursuant to Clause 52.29-5 of the South Gippsland Planning Scheme, third party objectors do not have any review rights at VCAT in relation to any matters associated alteration to the access to Davis Street, which is road within a Transport zone 2.
Available Review Rights
In relation to this proceeding, third party review rights are confined to the applicable provisions of the Design and Development Overlay – Schedule 12 (Nyora Town Centre) at Clause 43.02 of the South Gippsland Planning Scheme.
38	I reject the applicants’ interpretation of clause 34.01-7. 
39	The first sentence of clause 34.01-7 confers an exemption from the notice and decision requirements and third party review rights under the P&E Act on ‘An application to subdivide land or construct a building or construct or carry out works’. 
40	The second sentence begins with ‘This exemption does not apply to land within…’ As the second sentence seeks to remove the application of the exemption, the only reasonable interpretation is the second sentence seeks to ‘turn off’ the exemption conferred under the first sentence. 
41	As the exemption in the first sentence applies to the permit application (for the subject land), the turning off of that exemption likewise can only be for the permit application (for the subject land). The first reference to ‘land’ in the second sentence can only sensibly be a reference to the land the subject of the permit application that is the beneficiary of the exemption in the first sentence.
42	The second reference to ‘land’ in the second sentence is a reference to land that is not the subject land but land within a certain distance of the subject land that meet certain other conditions. 
43	Therefore, where land the subject of the permit application is within 30 metres of land which is in a residential zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre – the exemption in the first sentence is ‘turned off’ and does not apply at all.
44	In the present circumstances, the subject land is within 30 metres of land that is within a residential zone, being 34 Davis Street, Nyora. As a result, the application for a permit under clause 34.01-1 is not exempt from the notice requirements of s.52 of the P&E Act.
45	The content of the sample letter under the heading ‘Commercial 1 Zone – Buildings and Works’ is incorrect and misstates the effect of clause 34.01-7. Objectors who received such a letter would reasonably form the view that if they were not the owner or occupier of 34 Davis Street, Nyora, they were not entitled to submit a statement of grounds in this proceeding based upon the provisions of the Commercial 1 Zone.
46	That part of the sample letter under the heading ‘Clause 52.29 Land Adjacent to the Principal Road Network’ correctly states that under clause 52.29-5 no third party review rights arise. More correctly, however, no third party review rights arise in respect to Council’s decision to issue a permit under clause 52.29-2 of the planning scheme.
47	That part of the sample letter under the heading ‘Available Review Rights’, incorrectly states that third party review rights are confined to the provisions of the Design and Development Overlay- Schedule 12 (Nyora Town Centre). Third party review rights are available under clause 52.06 of the planning scheme. On the facts of this matter the permit application is not only for a permit under clause 52.06-3, therefore clause 52.06-4 does not exempt the permit application from notice under s. 52 of the P&E Act or the review rights under s.82(1) of the P&E Act.
48	The applicants submitted that the Tribunal’s initiating order does not require that an applicant notify persons of the available review rights. That is so, but where a party takes it upon themselves to inform a person what review rights are available to that person, fairness dictates that the information provided is correct and not misleading.
49	In conclusion, the sample letter does not contain an accurate statement setting out those matters within the permit application for which there is no right of review under s.82 of the P&E Act. 
50	In the circumstances, I am satisfied that the applicants are required to undertake further notice of the application for review and include as part of that notice an accurate statement of those matters within the permit application for which there is no right of review under s.82 of the P&E Act. For this purpose, an accurate statement would be confined to the existence of the exemption contained in clause 52.29-5 of the planning scheme.
The respondents’ statement of grounds in the proceeding
51	The application for review that commenced this proceeding is an application for review of conditions on the decision to grant a permit for the proposed development.
52	The conditions sought to be reviewed by the applicant in this proceeding are set out in a separate sheet to the application for review.
53	The respondents lodged their statement of grounds with the Tribunal on 25 March 2024 before the final date of 4 April 2024.
54	The Tribunal’s jurisdiction in this proceeding is limited to review of the conditions the subject of the applicants’ application for review. The Tribunal’s jurisdiction does not extend to considering whether a permit for the proposed development should be issued at all. The determination to be made by the Tribunal is whether the conditions under review should be imposed on the permit allowing the proposed development.
55	At item 11a of the respondents’ statement of grounds, the grounds relied upon are set out as follows –

56	As currently drafted, the respondents’ grounds are not responsive to the conditions under challenge in the application for review. 
57	Very early in the practice day hearing, Mr Stringer submitted that on review of the nature of the proceeding he conceded that the respondents’ grounds are confined to consideration of those conditions under review in the proceeding. Mr Stringer stated that the respondents wished to be heard on conditions 1(t), 1(w) and 1(gg).
58	Both Council and the applicants agree that the subject matter of these conditions fall within the ambit of the matters in the planning application for which the respondents would have review rights under s.82(1) of the planning scheme. I agree.
59	The respondent is required to amend its statement of grounds to confine their grounds to consideration of conditions 1(t), 1(w) and (gg) of the notice of decision.
Amendment of the application for review 
60	The application for review challenges conditions 24.1 and 24.2 which are conditions directed to be included in the permit by the Department of Transport and Planning. 
61	Following discussions between the applicants and the Department of Transport and Planning, the applicants apply to amend their application for review to remove any challenge to conditions 24.1 and 24.2. After hearing from the parties, I am satisfied that the application for review should be amended under s.127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to strike out reference to condition 24.1 and 24.2 in sheet attached to the application for review.
62	Accordingly, I am also satisfied that the Department of Transport and Planning should be excused from active participation in this proceeding.

S P Djohan
Senior Member