VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference Nos. P1194/2023, P1195/2023, P1197/2023 & P1198/2023
	
CATCHWORDS	
Section 149(1)(a) of the Planning and Environment Act 1987 (Vic); Review of decision of Minister to be satisfied with public consultation and a report summarising feedback of the consultation; Section 148 of the Planning and Environment Act 1987 (Vic); Applicants not specified person; Section 149B of the Planning and Environment Act 1987 (Vic); Application for declaration; Jurisdiction under s 149B(1)(a) of the Planning and Environment Act 1987 (Vic) not invoked;  Applications summarily dismissed as misconceived.	
 
Applicants		

P1194/2023 & P1195/2023	CPG AFM Property 01 Pty Ltd	
P1197/2023 & P1198/2023	South Dandenong Holdings Pty Ltd	
relevant authority	Minister for Planning	

Respondent	Major Transport Infrastructure Authority (for Level Crossing Removal Project)	

SUBJECT LAND		
p11194/2023 & P1195/2023	51-65 Nathan Road and 88-90 Nathan Road
DANDENONG SOUTH VIC 3175	
p11197/2023 & p1198/2023	78-84 Nathan Road
DANDENONG SOUTH VIC 3175	

HEARING TYPE	Preliminary Hearing	

dates of hearing	13 & 14 February 2024
6 March 2024	
DATE OF ORDER	20 May 2024	

CITATION	CPG AFM Property 01 Pty Ltd v Minister for Planning [2024] VCAT 465	

Order
Applications P1194/2023 & P1198/2023 summarily dismissed 
1	Pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), P1194/2023 is summarily dismissed because it is misconceived.
2	 Pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), P1198/2023 is summarily dismissed because it is misconceived.
Application P1195/2023 & P1197/2023 summarily dismissed
3	Pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), P1195/2023 is summarily dismissed because it is misconceived.
4	Pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), P1197/2023 is summarily dismissed because it is misconceived.

Teresa Bisucci
Deputy President	

Appearances
For CPG AFM Property 01 Pty Ltd and South Dandenong Holdings Pty Ltd	Adrian Finanzio, senior counsel (13 & 14 February 2024) with Rupert Watters of counsel, instructed by Jun Yu, lawyer, Best Hooper Lawyers	
For Minister for Planning	Juliet Forsyth senior counsel, instructed by Allison Tansley lawyer, Harwood Andrews	
For Major Transport Infrastructure Authority	Barnaby Chessell, senior counsel, with Emma Peppler of counsel (13 February 2024), instructed by Samantha Megenis, lawyer, Clayton Utz	

Information
Nature of proceeding	Application 
P1194/2023 – Application under section 149(1)(a) of the Planning and Environment Act 1987 (Vic) by CPG AFM Property 01 Pty Ltd seeking a review of the decision of the Minister for Planning to be satisfied that adequate consultation occurred under clause 52.03-4 of the Greater Dandenong Planning Scheme.
P1195/2023 – Application under section 149B of the Planning and Environment Act 1987 (Vic) by CPG AFM Property 01 Pty Ltd seeking a declaration that the decision of the Minister for Planning to be satisfied with public consultation and approve a consultation report was affected by jurisdictional error and is contrary to law.
P1198/2023 – Application under section 149(1)(a) of the Planning and Environment Act 1987 (Vic) by South Dandenong Holdings Pty Ltd seeking a review of the decision of the Minister for Planning to be satisfied that adequate consultation occurred under clause 52.03-4 of the Greater Dandenong Planning Scheme.
P1197/2023 – Application under section 149B of the Planning and Environment Act 1987 (Vic) by South Dandenong Holdings Pty Ltd seeking a declaration that the decision of the Minister for Planning to be satisfied with public consultation and approve a consultation report was affected by jurisdictional error and is contrary to law.	
Planning scheme	Greater Dandenong Planning Scheme	
Land description	51 – 65 Nathan Road, Dandenong South
72 – 84 Nathan Road, Dandenong South	

Reasons
proceedings
1	These proceedings concern four applications brought by two applicants as follow:
•	P1194/2023 – is an application under section 149(1)(a) of the Planning and Environment Act 1987 (Vic) (‘PE Act’) brought by CPG AFM Property 01 (‘CPG’) seeking a review of the decision of the Minister for Planning (‘Minister’) to be satisfied that adequate consultation occurred under cl 52.03-4 of the Greater Dandenong Planning Scheme (‘scheme’);
•	P1195/2023 – is an application under section 149B of the PE Act brought by CPG seeking a declaration that the decision of the Minister to be satisfied with public consultation and approve a consultation report was affected by jurisdictional error and is contrary to law;
•	P1198/2023 – is an application under section 149(1)(a) of the PE Act brought by South Dandenong Holdings Pty Ltd (‘SDH’) seeking a review of the decision of the Minister to be satisfied that adequate consultation occurred under cl 52.03-4 of the scheme; and
•	P1197/2023 – is an application under section 149B of the PE Act by SDH seeking a declaration that the decision of the Minister to be satisfied with public consultation and approve a consultation report was affected by jurisdictional error and is contrary to law.
2	Thus, in summary there are two applications for review of the decision of the Minister with respect to consultation under cl 52.03-4 of the scheme (‘review proceedings’) and two applications seeking declarations about the decision of the Minister to approve the consultation report (‘declaration proceedings’).
3	On 2 November 2023, the Minister filed applications under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) seeking the summary dismissal of each of the proceedings.  
4	One of the purposes of this preliminary hearing is to consider the applications for summary dismissal.  A second purpose of the preliminary hearing is to consider applications for the extension of time to commence proceedings P1194/2023 and P1198/2023.  The preliminary hearing occurred on 13, 14 February 2024 and 6 March 2024.
5	The Major Transport Infrastructure Authority (for Level Crossing Removal Project) (‘Authority’) was joined by order dated 13 November 2023.  The Authority supports the applications made by the Minister for the summary dismissal of the applications.
6	CPG and SDH (‘applicants’) oppose the summary dismissal of the applications.
7	Having regard to the submissions and evidence before me, all applications are summarily dismissed.  My reasons follow.
background, context and chronology of events
8	CPG owns land at 51-65 Nathan Road and 88-90 Nathan Road, Dandenong South.
9	SDH owns land at 72-84 Nathan Road, Dandenong South.
10	The project is the removal of the level crossing at Progress Street, Dandenong South (‘Project’) by the Authority.  The land designated to be within the Project area was declared by the Minister on 8 March 2023 and does not include the land owned by the applicants.
11	The following table provides a summary of the events and timeline relevant to the applications for summary dismissal before me.
Event/Document	Date	
Project announced by State government	29 July 2021	
Declaration of Major Transport Project by Premier of Victoria under the Major Transport Projects Facilitation Act 2009 (Vic) (‘MTPF Act’)	16 November 2021 (decision)
25 November 2021 (published in Government Gazette)	
Notice under s 15 of the MTPF Act of appointment to the Secretary to the Department of Transport as the project proponent for the Project	13 December 2021 (decision)
16 December 2021 (published in Government Gazette)	
Requests for information under the Freedom of Information Act XXXXX (FOI Requests)		
Letter from Authority to owners of land	September 2022 (date on document)
3 October 2022 (date sent)	
Project Fact Sheet
(response due 30 October 2022)	October 2022 (date on document)
11 October 2022 (dated sent)	
Survey response from CPG	26 October 2022	
Progress Street Local Business Survey 
(response due 30 October 2022)	27 October 2022	
Second response from CPG with direct question regarding permanent closure of Progress Street	7 December 2022	
Confirmation of receipt of response from CPG	9 December 2022	
CPG engages Gadens	13 December 2022	
Request for response to local business survey about from local business and including how they operate	20 December 2022	
Letter containing detailed response to Project from CPG (through Gadens)	21 December 2022	
Completion of consultation report	25 January 2023	
Request for information under the Freedom of Information Act 1982 (Vic) (‘FOI Act’)	1 February 2023	
Consultation report submitted to Minister	2 February 2023	
Letter of clarification from CPG regarding request under FOI Act	23 February 2023	
Designation by the Minister of the Project area under s 95(2)(a) of the MTPF Act	8 March 2023 (date of designation)
10 March 2023 (published in Government Gazette)	
Further letter of clarification from CPG regarding request under FOI Act	14 March 2023	
Stakeholder presentation	16 March 2023	
Letter from CPG to Authority 	20 March 2023	
Letter from CPG to Member for Dandenong and Authority	4 April 2023	
Minister approves consultation report	7 April 2023	
Authority issued an election notice accepting
proposal	10 May 2023	
Release of information received	15 June 2023	
Online stakeholder workshop	22 June 2023	
SDH approaches Corrs Chambers Westgarth	23 June 2023	
Email from Roy Sussman Authority	24 June 2023	
Email from CPG (through Best Hooper Lawyers) 	26 June 2023	
Letter from Corrs Chambers Westgarth on behalf of SDH seeking confirmation about consultation, consultation report and Minister’s reasons	10 July 2023	
Letter from Best Hooper on behalf of CPG indicating scope of works not yet finalised	19 July 2023	
Letter to Dandenong City Council (‘council’) from SDH	25 July 2023	
Letter from Gadens on behalf of CPG seeking copy of material	26 July 2023	
Response from council to SHD	28 July 2023	
Further email from SDH to council	2 August 2023	
		
Letter from Clayton Utz to SDH (through Corrs Chambers Westgarth) disclosing that on 7 April 2023, Minister was satisfied with consultation report	11 August 2023	
Letter from Clayton Utz to CPG (through Gadens)	11 August 2023	
Letter from Clayton Utz to CPG (through Best Hooper)	11 August 2023	
Letter from Minister advising CPG (through Gadens) of the Minister’s decision	24 August 2023	
Applications filed with Tribunal 	21 September 2023	
section 75 of the VCAT Act and relevant principles
12	The summary dismissal power is found at  s 75 of the VCAT Act which 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. 
(2) 	If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding. 
(3) 	The Tribunal's power to make an order under subsection (1) or (2) is exercisable by— 
(a) 	the Tribunal as constituted for the proceeding; or
(b) 	a presidential member; or 
(c) 	a member who is an Australian lawyer. 
(4) 	An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative. 
(5) 	For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.
13	There is no dispute amongst the parties that the correct principles relating to applications for summary dismissal were articulated in Axicom Pty Ltd v Melton SC(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’.
(footnotes omitted)
summary dismissal
Minister 
14	The Minister submits the following four reasons support the summary dismissal of the applications: 
•	neither CPG nor SDH have standing to make the applications under 
s 149(1)(a) of the PE Act;
•	neither CPG nor SDH have standing to make the applications under 
s 149B of the PE Act;
•	no error of law or other ground of review has been identified by either CPG or SDH in the applications under s 149(1)(a) of the PE Act; and
•	no error of law has been identified in either of the applications under s 149B of the PE Act.
15	In essence, there are two issues identified, the lack of standing and the failure to identify any error of law.  I note that if I find the applicants do not have standing to bring the applications, I do not need to deal with any deficiencies in the grounds in support of the applications.
16	The Minister also says the proceedings should be summarily dismissed if I find the Tribunal lacks jurisdiction.  The Minister relies upon the decision in Maddingley Brown Coal Pty Ltd v Moorabool SC (Maddingley) to support the position that the question of standing must be determined as a threshold issue.  The Minister also says there is no contention on the facts with respect to the Project area and the location of the applicants’ land.  At paragraph 50 of Maddingley the Tribunal stated:
50	I agree that it is a serious matter for the Tribunal to deprive a litigant of its day in court, but as standing to bring the application is an essential element of the application it is appropriate to deal with the question of standing as a preliminary matter and that question could be determinative of the application if standing was not made out.
Standing
17	The ability of the Tribunal to determine the declaration proceedings is dependent upon the Tribunal being seized of jurisdiction in the review proceedings, otherwise there is ‘no matter which may be the subject of an application’ within the meaning of s 149B of the PE Act.
18	Further, the jurisdiction of the Tribunal under s 149(1)(a) of the PE Act is only enlivened if CPG and SDH are ‘specified persons’.  Section 149(1) of the PE Act provides:
149 	Application for review 
(1) 	A specified person may apply to the Tribunal for the review of— 
(a) 	a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; or 
(b) 	a decision of a specified body in relation to a matter if an agreement under section 173 provides that the matter must be done to the satisfaction, or must not be done without the consent, of the specified body and makes no provision for settling disputes in relation to the matter; or 
(c) 	a decision of a specified body or of a person or body specified in an enforcement order in relation to a matter if the order requires that the matter must be done to the satisfaction of that person or body; or 
(d) 	if there is no prescribed time for a decision of a kind referred to in paragraph (a), (b) or (c), a failure of a person or body to make that decision within a reasonable time after the matter is referred to it
…
19	Further, s 148 of the PE Act defines ‘specified person’ as:
specified person means in relation to a matter— 
(a) 	the owner, user or developer of the land directly affected by the matter; or 
(b) 	a specified body; or 
(c) 	if the matter affects Crown land, the occupier of the Crown land.
‘Matter’ under s149 of the PE Act
20	The Minister says that the land owned by CPG and SDH is not directly affected by the Project.  First it is said that CPG and SDH incorrectly assert that the ‘matter’ referred to in s 148 of the PE Act is the Project, rather than the Minister’s satisfaction with the consultation and the consultation report.  The Minister submits that the ‘matter’ is the consultation and not the Project.
21	Further, on that basis it follows that there is no ‘land that is directly affected by the matter’.  The subsequent use and development of the land may create direct impacts but the nature of the consultation requirement does not have direct impact on the applicants’ land.
22	As the words ‘directly affected’ are not defined in the scheme, they are to be given their ordinary meaning. Relying on the Macquarie Dictionary for the definition of ‘directly’:
1.	In a direct line, way, or manner; straight…
4. 	absolutely; exactly; precisely
23	The Minister submits there is no land that is directly affected by the extent of consultation or the decision of the Minister to approve the consultation report.  
24	The Minister does accept that land may be ‘indirectly’ affected by consultation because this and any resultant report may inform aspects of the Project which may in turn impact land but that does not mean the land is directly affected.
25	The Minister relies upon the Explanatory Report for Amendment VC170 (‘VC170’) which introduced cl 52.03 of the scheme and emphasises the special nature of the consultation obligations in that clause.
26	In the alternative, the Minister submits that if ‘matter’ means the Project then CPG and SDH face a further hurdle namely that the land that is directly affected by the matter must be confined to the land which is used and developed for the purpose of the Project.
27	The Minister submits that cl 52.03 of the scheme is a facilitative provision to effect the removal of level crossings in Melbourne and is a project of significant importance to the State of Victoria.  
28	Clause 52.03-5 of the scheme requires approval of a boundary plan by the Minister.  This boundary plan identifies the area in which the works are to be undertaken for the Project.
29	The Minister relies upon the following text at cl 52.03-4 of the scheme:
Consultation requirement 
Prior to the commencement of the use or development*: 
•	Public consultation, and consultation with the relevant municipal council, must be undertaken to the satisfaction of the Minister for Planning.
•	A report that summarises the feedback provided during consultation and explains how the feedback has been considered and responded to must be prepared to the satisfaction of the Minister for Planning.
(*emphasis added)
30	The ‘use or development’ referred to in cl 52.03-4 of the scheme is that authorised by that clause because cl 52.03-1 provides:
Application 
This clause applies to the use and development of land (other than the subdivision of land) for projects undertaken by the Level Crossing Removal Project and declared under section 10(1)(b) of the Major Transport Projects Facilitation Act 2009. 
This clause does not apply to a project for which a document has been incorporated into this planning scheme expressly for that project.
31	The Minister relies upon the evidence of Andrea Kate Tansley that the relevant project is the Progress Street Level Crossing Removal which was declared under s 10(1)(b) of the Major Transport Projects Facilitation Act 2009 (Vic) (‘MTPF Act’) on 25 November 2021.
32	The Project area is an area designated under s 95(2)(a) of the MTPF Act by publication in the government gazette and relevantly does not include any land owned by either CPG or SDH.
33	Given the applicants’ land is not within the Project area and is not required for the project, the applicants do not have standing to bring the application under s 149 of the PE Act.
34	Whilst there will be impacts or effects on land outside of the Project area, such impacts are not direct.  Thus, change in travel time or effect on value of the land does not constitute a direct impact for the purposes of s 148 of the PE Act..
35	However, the Minister says that it is important to note that cl 52.03 of the scheme does not require the Minister to approve plans for the works nor, does it require the Minister to undertake an overall assessment of any net community benefit of the Project.  The Minister rejects the applicants’ characterisation of the approval under cl 52.03-4 of the scheme as overall approval.  The role of the Minister under cl 52.03-4 of the scheme is more confined.
36	Further, consultation is not limited, and it can continue throughout the process including during planning, design and construction phases.
37	In referring to s 148 of the PE Act, the Minister highlights the use of the definite article ‘the’ rather than the indefinite article.  It is said that must mean if land is affected by the Project it must be land within the Project area.
38	Further, the Minister relies upon cases of the Tribunal that have found that only those persons with an interest in the land the subject of a decision are ‘specified persons’.
Declaration proceeding
39	The application for declaration is brought under s 149B of the PE Act states:
149B General application for declaration 
(1) 	A person may apply to the Tribunal for a declaration concerning— 
(a) 	any matter which may be the subject of an application to the Tribunal under this Act; or 
(b) 	anything done by a responsible authority under this Act. 
(2) 	On an application under subsection (1), the Tribunal may make any declaration it thinks appropriate in the circumstances. 
(3) 	The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal.
40	Notably, this application is brought under s 149B(1)(a) of the PE Act and thus, requires consideration of what is meant by ‘any matter which may be the subject of an application to the Tribunal under this Act’.  If, the review proceedings are not summarily dismissed, this limb of s 149B(1)(a) of the PE Act is satisfied.  However, if the review proceedings are summarily dismissed, the applicants say they can bring enforcement proceedings under s 114 of the PE Act, to satisfy that limb of s 149B(1)(a) of the PE Act.
41	In response to the applicants submitting they can bring enforcement proceedings, the Minister relies upon the decision in Kantor v Murrindindi Shire Council (Kantor) by the Supreme Court of Victoria (‘court’).  The Minister submits that it is decisive of the issue of the Tribunal’s jurisdiction in the declaration proceeding.  The Minister says that Kantor is authority for the proposition that an application for an enforcement order under s 114 of the PE Act is not available in circumstances where a decision is valid on its face, and that decision has not been set aside or otherwise declared invalid at the time that the applications for enforcement order were made.  
42	In a nutshell, the Minister says that Kantor means that a proceeding under s 114 of the PE Act cannot be used to invoke the Tribunal’s jurisdiction under s 149B of the PE Act in circumstances where s 149B of the PE Act is required to impose jurisdiction under s 114 of the PE Act.  In other words, Kantor is authority for the proposition that an application for enforcement order is not available in circumstances where:
•	there is a decision that is valid on its face; and
•	that decision has not been set aside or otherwise declared invalid at the time the application for enforcement is made.
43	The Minister also adds that s 124 of the VCAT Act, is not available to the applicants because that provision does not enlarge the Tribunal’s jurisdiction rather it operates to aid the existing jurisdiction.
44	Further, the Minister highlights that the broader jurisdiction under s149B(1)(b) of the PE Act is not available as the Minister is not the responsible authority in this proceeding.
45	It is submitted that s 149B(1)(a) of the PE Act is in substantially the same form as the former s 14 of the Planning Appeals Act 1980 (Vic) (‘former Act’) and thus, the decision in Kantor remains good authority on the scope of that power.  And further, Kantor is decisive on the jurisdictional point.
46	In support of the Kantor propositions, the Minister relies on the following Tribunal decisions:
•	Davis v Murrindindi (Davis);
•	Cook v City of Melbourne (Cook); and
•	Love v Whittlesea (Love).
47	I briefly summarise these decisions.  
48	In Cook, the Tribunal constituted by Macnamara DP (as he then was) stated:
In Kantor v Shire of Murrindindi (1997) 18 AATR 285 Ashley J. in the Supreme Court of Victoria considered the scope of the Administrative Appeals Tribunal’s declaratory power under the former Section 14 of the Planning Appeals Act 1980.  That jurisdiction is in substance the same as the one conferred on this Tribunal by Section 149B(1)(a) of the Planning and Environment Act.  If the matter before him was such as could have been the subject of a declaration under Section 14 of the Planning Appeals Act, the Supreme Court’s jurisdiction over the matter was prima facie ousted by the operation of Section 66A of the Planning Appeals Act 1980.  His Honour considered that the width accorded to the declaratory jurisdiction under the Planning Appeals Act by the Administrative Appeals Tribunal and in particular by the decision of Judge Jones in State Transport Authority v Rural City of Wodonga (1989) 2 AATR 175 was not justified by the words in Section 14.  Ashley J. said that this greater width was achieved only by going beyond the actual words of the Section.  (1997) 18 AATR 285, 298-9.  Section 149B was enacted as part of the measures establishing this Tribunal and in the immediate wake of Kantor’s case it is reasonable to infer that Parliament was seeking once again to establish this Tribunal as a “one-stop shop” in planning matters as it had attempted to do in enacting the revised version of Section 14 of the Planning Appeals Act 1980 and doing so in light of the limitations which Ashley J. had found as to the latter in his decision in Kantor’s case.  In those circumstances the section should be given a wide construction whilst refraining of course from going beyond the actual language used in the provision mindful of Ashley J’s strictures.  His Honour held that Section 14 was not available as a ground for declaratory jurisdiction in the matters before him in Kantor’s case because according to his analysis the Administrative Appeals Tribunal would have had no power to grant substantive relief and therefore there was no matter which aside from Section 14 itself, could have been referred to the Tribunal.  He rejected the contention that in the circumstances the Tribunal could have entertained an application for an enforcement order pursuant to Section 114 of the Planning and Environment Act 1987 apparently on the footing that the use and development in dispute was covered by a permit.  It may be inferred that His Honour considered that at least for the purposes of hearing an enforcement order application the Administrative Appeals Tribunal would have had to treat the permit as valid in the absence of an order of a court of competent jurisdiction avoiding or annulling it.  Here it seems to be common ground that Ms Cook’s grievances could have been raised with the Tribunal by means of an application under Section 87 of the Planning and Environment Act 1987.  That being the case she is seeking a declaration which clearly could be the subject of an application to the Tribunal.  Even if I were wrong in this the issue of a permit prior to the giving of a Notice of Decision in accordance with Section 64 of the Act is clearly something done by a responsible authority under the Planning and Environment Act 1987.  In my view the Tribunal has jurisdiction to make the declaration sought.
49	In Davis, Macnamara DP (as he then was) considered himself bound by the view taken by the court in Kantor in respect of the breadth of s 14 of the former Act.  However, in Davis, the Tribunal determined it did have jurisdiction because of the ‘reformulated’ declarations then before the Tribunal.
50	In Love, Macnamara DP (as he then was) was considering declaratory relief and again in referring to Kantor said:
It followed therefore that the Planning Division was not at large to make declarations on any subject matter which was brought to it but only as to matters which could otherwise be raised before that Division.  It was argued by the respondents in Kantor’s case that since an application for an enforcement order could have been brought in the Planning Division then declaratory relief could have been sought under Section 14.  His Honour rejected this argument.  He said:
Without recourse to authority I would have said that s.114 of the Planning Act is not attempting to deal with the type of situation now under discussion.  The structure of the Act, as well as the verbiage of the section, suggests that the reference in sub-s.(1) to “contravention of the Act” is not addressing a contravention alleged to exist because an extension or amendment proper on its face might be successfully attacked as involving a wrong exercise of discretion in the decision to extend or amend.  The difficulty of making s.114(1) apply to such a case was highlighted, I consider, by the necessary recourse, in the submissions of counsel for the Shire, to s.14(1) of the Appeals Act as the source of jurisdiction to create the very contravention or prospective contravention which is the sine qua non of the availability of s.114. 

Whilst His Honour did not put it in quite these terms, in substance I take him to mean that it would not be possible under the guise of enforcement proceedings to mount a collateral attack upon a permit granted by a responsible authority or the endorsement of plans under such a permit.  It would be necessary before obtaining enforcement orders to obtain an authoritative adjudication that the permit or the endorsement was invalid,.  Hence as regard enforcement proceedings Mr Love has proceeded as he was obliged to do though absent the submission put by the permit holder, the enforcement order application could have been heard concurrently with the application for declaration.
51	The Minister says the expansive view of the power under s 114 of the PE Act as expressed by some division of the Tribunal is not correct.  The Minister also says that the decision in Sudi, now makes it abundantly clear that the expansive view of s 114 of the PE Act that essentially allows for collateral review is incorrect.
Kantor – binding authority
52	The Minister contends the court’s findings on the breadth of the declaratory power in Kantor are ratio decidindi (‘ratio’) and thus, binding on me, for the reasons expressed in Davis.
53	In the alternative, if I find that the relevant parts of Kantor are not ratio and thus not binding on me, it would still be wrong for me not to consider and apply the court’s reasoning.
Kantor – correctness
54	The Minister disputes the applicants’ argument that s 114 of the PE Act confers the power to make a determination as to validity of an administrative action, if, the validity of that action is an essential element to determining the relevant contravention.  In other words, the applicants say the validity of an administrative action may be determined in the course of an enforcement proceeding thus, they say the ‘matter’ (the validity of the administrative action) ‘may be the subject of an application to the Tribunal under this Act’.
55	The Minister says the applicants’ contention is not express nor implicit in the PE Act, is inconsistent with s 114 of the PE Act and circumvents express limitation on declaratory relief set out in s 149B(1)(a) of the PE.
56	Hence, the Minister submits the declaration proceedings should be summarily dismissed because the Tribunal does not have jurisdiction in the circumstances of these proceedings.
Authority
Standing – matter and land not directly affected
57	The Authority submits the principal reason that I should summarily dismiss the review proceedings is because they are lacking in substance and thus, bound to fail.  The basis for this according to the Authority, is that the applicants lack standing to bring an application for review under s 149(1)(a) of the PE Act.  Further, it is said the entitlement to bring an application for review under s 149(1) of the PE Act is limited to a ‘specified person’.
58	The Authority says the applicants are not a ‘specified person’for the purposes of s 148 of the PE Act because:
•	The applicant’s land is not ‘the land directly affected by the matter’;
•	there is no land that is directly affected by the relevant matter given the relevant matter is the satisfaction of the Minister regarding the public consultation that was undertaken and the reporting of that consultation; and
•	if there is land that is directly affected by the matter, it is land to which cl 52.03-5 of the scheme applies that is, the land to be used and developed for the Project.
59	To support this position the Authority relies upon the decisions of Glenn & Ors v Delatite Shire Council (Glenn) and Maino & Anor v Nillumbik SC (Maino).  In Glenn the Tribunal held that ‘the land directly affected’ by a relevant matter specific within a planning permit was the land to which the permit applied and not the neighbour’s land.  In Maino, the Tribunal held the land directly affected by the relevant matter was the land to which the development plan applied.
60	On that basis, the Authority says that properly understood it might be said the applicants’ land is indirectly affected rather than directly affected.  The Authority notes that it must be the land that is directly affected by the relevant matter and not the owner or its operations.
61	Further, the Authority contends that the ‘matter’ in ss 148 and 149 of the PE Act is by reference to what must be done to the satisfaction of, or without the consent of the specified body.  Further, it is said that cl 52.03-4 of the scheme provides the relevant matters.  
62	The first is public consultation and consultation that must be undertaken to the satisfaction of the Minister.  
63	The second is a report that summarises the feedback during the consultation and explains how the feedback has been considered and responded to that must be prepared to the satisfaction of the Minister. 
64	The Authority submits the relevant matter is not the Project itself and thus, the question to be asked is ‘what land is directly affected by the satisfaction of the Minister with the public consultation and the report that was prepared’.  The answer is that the applicants’ land is not directly affected.
65	The Authority also highlights the use of the definite article before the word ‘land’.  
Declaration proceeding
66	The Authority endorses and adopts the submission of the Minister with respect to Kantor and says there is another matter that it pursues regarding the standing of the applicants to bring the declaration proceedings.
67	Section 149B(1)(a) of the PE Act limits the ambit of the Tribunal’s jurisdiction to making a declaration in relation to a matter if that matter may also be the subject of a separate application to the Tribunal.
68	The applicants’ submit they can bring enforcement proceedings and thus, satisfy the condition in s 149B(1)(a) of the PE Act.  The Authority disputes this submission by the applicants.  
69	The Authority also highlights that the ‘matter’ said to be the subject of any application for enforcement order is different to the ‘matter’ the subject of a declaration proceeding.  The matter for enforcement would be a contravention of the scheme that is, of cl 52.03-4 because prior to the use and development commencing the Minister must be satisfied of the public consultation and the report that follows that consultation.  The matter for the declaration would be the lawfulness of the decision of the Minister to be satisfied with the consultation and the report.
CPG and SDH
Burden
70	The applicants say the Minister and the Authority bear the burden of establishing that the applicants’ case is bound to fail, and that burden has not been discharged.
Lack of standing
71	The applicants contend that whether the land is ‘directly affected’ for the purposes of s 149(1) of the PE Act is a question of fact that renders it unsuitable for resolution by summary dismissal.  
72	Further, the applicants say that the question of whether the effect of the decisions was direct will turn on the nature of the process followed in making the decisions under cl 52.03-4 of the scheme.  This includes whether there were any events that occurred after the decisions were made which could be said to have broken the causal link between the decision not to consult on and consider alternatives to closing Progress Steet and the impacts of closing Progress Street.
73	The applicants also submit that the questions, to date has not been addressed by any evidence such that there is scope for the issues to be further illuminated by oral evidence or cross-examination of that evidence.  This evidence is not yet before the Tribunal.
74	Further, the applicants submit the starting point for analysis of the term ‘directly affected’ is its ordinary meaning.  This is not addressed by the Authority and only the word ‘directly’ is dealt with by the Minister.
75	The applicants rely on the primacy of the statutory text in the interpretation task set out in Federal Commissioner of Taxation v Consolidated Media Holdings at [paragraph 29 as follows:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
76	The applicants say the cases relied upon by the Minister and the Authority do not provide any analysis of the Tribunal’s conclusions that the particular persons were not ‘specified persons’.  Further, the applicants, seek to either distinguish the facts in Glenn and Maino or submit that I should decline to follow these cases.
77	The applicants also reject submissions regarding the relevance of the Project Area and the Project Boundary to the question of ‘directly affected’.  Notably the applicants submit:
It is not the purpose of either the Designated Project Area or the Project Boundary to define the area that is ‘directly affected’ for the purpose of s 148. Both designations are specifically created for the purposes of defining where use and development may lawfully occur. They do not circumscribe the area in which impacts will occur (as acknowledged in the Minister’s submissions.
78	The applicants make the following ‘observations’ regarding the text of s 148 of the PE Act:
•	Parliament has deliberately chosen direct effect as the relevant criterion when determining when a person’s land is sufficiently affected in order to have standing;
•	this criterion focusses on impact of the matter under consideration on the land;
•	‘directly’ should be given its ordinary meaning and reliance is placed on meaning 14 which provides:
‘without intervening agency; immediate; personal’, or meaning 6 in the Oxford English Dictionary, being ‘effected without intermediation or intervening agency; immediate
•	Further, the applicants say this meaning aligns with the meaning given to ‘direct’ under s 98 of the PE Act;
•	Given the wide range of matters which may be the subject of proceedings under ss 149 and 149A of the PE Act, the term ‘directly affected’ is necessarily ambulatory and its scope will depend on the nature of the matter under consideration. 
•	there is no textual imitation on the range of effects which may be relevant for the purposes of s 149 of the PE Act;
•	the decisions directly affect the applicants’ land because when viewed through the framework under cl 52.03 of the scheme, the decisions amount to a ‘de facto’ approval for the delivery of the Project which removes access across the Pakenham train line at Progress Street.
•	consultation started from the premise that Progress Street would be closed, the Minister has waived any need to consider the design of the Project any further and approved the closure of Progress Street.
•	The closure of Progress Street and its impact on access to the land is properly seen as a direct consequence of the Minister’s decisions to not require the Authority to undertake consultation on the different approaches to the removal of the level crossing.
Declaration proceeding
79	The applicants contend that even if the review proceedings are summarily dismissed it does not follow that the declaration proceedings are also summarily dismissed.
80	They say that the approach taken in Wellington v Surf Coast SC (Wellington) should be followed by me.  In Wellington, the Tribunal observed that the applicants were seeking declarations about whether there was a contravention of the relevant planning scheme and said that because the question of whether there was a contravention could be the subject of an enforcement application under s 114 of the PE Act, it followed that it could be the subject of an application for declaration under s 149B of the PE Act.
81	Relying on the logic they say is set out in Welllington, the applicants contend:
•	clause 52.03-4 of the scheme requires decisions to be made before use or development commences;
•	if the decisions are unlawful such that there are no decisions, then a mandatory condition in the scheme has not been complied with; and
•	if the scheme has not been complied with, then the use and development of the land for the Project will be a contravention of the scheme and could be the subject of an application under s 114 of the PE Act.
82	The applicants further say that Kantor is neither binding nor persuasive.
Kantor – not binding
83	The applicants say that Kantor is not binding because the court expressly said it was not necessary to the decision.  Relying on various decisions including from the High Court of Australia (‘HCA’) in Vunilagi v the Queen (Vunilagi) the applicants highlight that:
…The classical view of the ratio decidendi that binds lower courts is as follows. It is the legal rules necessary (or sometimes sufficient where a decision might have more than one basis) for the decision, based on the material facts before the court, and expressed at an appropriate level of generality. The ratio decidendi will generally follow the expression of it where it is stated by the judge or, if unstated by the judge, it will be the legal principles at the appropriate level of generality which "the judge must logically have considered necessary or treated as material.
(footnotes omitted)
84	The applicants then rely on two paragraphs in Kantor, in support of their submission that Kantor is not binding on this Tribunal which I now extract:
… In my opinion, it is appropriate that this Court consider the matter. Perhaps more importantly, I consider that it is appropriate that this Court pass upon the circumstances necessary to be proved in order that a decision to extend time or to amend a permit be successfully attacked; and upon the consequences of a successful attack. Quite apart from the issue of the consequences of breach of s.52(1), those matters, even if I was to conclude the Tribunal had the jurisdiction which counsel for the Shire asserted, would abundantly satisfy me of the existence of special circumstances within s.66A(2) of the Planning Act…
What I have said is enough to dispose of the jurisdictional issue. But it appears to me to be important for this Court to say whether an attack on the grant of an extension of time under s.69(2) of the Planning Act or of amendment of a permit under s.73 of that Act (each of which counsel conceded ought to be available) are justiciable by the Tribunal; or otherwise by this Court
85	The applicants say ‘it is fair to interpret these paragraphs as meaning they were not part of the ratio in Kantor for the following reasons:
a	express statements about ‘even if’ the Tribunal had jurisdiction, the judge was ‘abundantly’ satisfied that he would exercise power to have the matter dealt with by the court;
b	the use of the word ‘important’ rather than ‘imperative’;
c	observations that interpretation of s 114 of the PE Act was difficult; and
d	overriding significance of the finding on jurisdiction of the court. 
86	The applicants highlight that the Tribunal’s conclusion in Davis, that it was bound by the decision in Kantor was without the benefit of submissions on the issue.  Thus, relying on authority from the HCA, the applicants say that if a point is not in dispute in a case, then the case is not authority for the decision on that point.
87	The applicants further say that even if I conclude that those parts of Kantor are part of the ratio, it was unnecessary for the court to decide the question of whether the ability to apply for an enforcement order engaged s 66A of the relevant Act because that question had already been decided in El Alam v City of Northcote (El Alam).  The applicants say the issue as to the court’s jurisdiction under s 66A of the relevant Act had been decided and the failure to refer to El Alam is a significant omission.  If the court’s attention in Kantor had been drawn to the decision in El Alam, then as a matter of comity, the court would have been bound to follow the decision, unless it was plainly wrong.
88	Hence, the applicants contend the observations made in Kantor about the availability of declaratory relief are obiter and not ratio.  
Kantor – should not be followed
89	Put simply, the applicants say that if Kantor is not binding, it should not be followed because:
•	Sudi expressly states that the question of whether an administrative decision can be challenged in proceedings under an Act depends on the construction of the relevant Act; and
•	the relevant question is whether the combination of the VCAT Act and the PE Act evince an intention that the Tribunal should be required to give some legal effect to a decision, notwithstanding that it might be affected by legal error.
90	In Kantor the court:
•	could not consider the VCAT Act as it did not exist at the relevant time;
•	did not undertake a comprehensive consideration of the relevant Act;
•	only provided a broad explanation to support the view that the Tribunal was obliged to treat administrative decisions as valid; and
•	did not comprehensively consider the construction of ‘contravention’.
91	The applicants disagree with the Minister’s observations of the decision in Sudi and the scope of s 124 of the VCAT Act.  The applicants in fact contend that nothing was said about the scope or effect of s 124 of the VCAT Act in Sudi.  Accordingly, there is no warrant for treating the decision as establishing some general principle that s 124 of the VCAT Act cannot be used to make declarations regarding the validity of administrative action.
92	On that basis, the applicants then contend that there is nothing in the language of s 114 of the PE Act that prevents a review of the administrative action where consideration of the validity of the administrative decision is part of determining whether the contravention has occurred.  And in any event, they also say that allowing a review of administrative action as part of an application for enforcement order is consistent with the nature and function of enforcement orders because:
•	such orders are to prevent or restrain unlawful conduct and are akin to a statutory injunction.  It follows that a necessary part of determining an application for enforcement order is to determine lawfulness or otherwise of the conduct; and
•	there is no obvious reason why if a party raises the validity of an instrument, either as a defence or in reply to a defence, the Tribunal should not be able to deal with that question as part of its process.  For example, the validity of a condition in an enforcement proceeding should be able to be determined if raised by a respondent.
93	The applicants also note that the Minister’s position would mean that every time a question of validity of administrative action arose in an enforcement proceeding, a separate application would need to be made to determine the issue of validity.  This it is said would create ‘islands of quasi-immunity within the planning system where certain decision makers’ decisions could only be challenged in the SCV’.  
extension of time 
94	Section 126 of the VCAT Act contains the power to extend time to commence a proceeding.  It provides:
126 	Extension or abridgment of time and waiver of compliance 
(1) 	The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding. 
(2) 	If the rules permit, the Tribunal, on application by a party or on its own initiative, may— 
(a) 	extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or 
(b) 	waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge. 
(3) 	The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made. 
(4) 	The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages. 
(5) 	In this section— 
relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section.
Minister
Action taken
95	The Minister takes issue with any extension of time for the commencement for the review proceedings being granted.  It is said that Gadens was notified on 11 August 2023 and not 24 August 2023.  Thus, the application for review with respect to CPG was filed 41 days after being advised of the decision and not 28 days.
96	Even if I disagree with the Minister regarding the number of days that elapsed from being notified of the decision and lodging an application for review, the Minister says that ‘extreme expedience’ was required by the applicants because the time limit for filing an application for review had well and truly expired by 11 or 24 August 2023.
97	The Minister says the prejudice suffered between 28 days and 41 days is a matter for the Authority but that there is broader policy concern when an extension of time is being considered which delays the commencement of a major planning project.
98	It also addresses the circumstances relating to each applicant individually.
99	In respect of the delay in the filing of the applications for review by SDH, the Minister submits:
•	that SDH was aware of the Project from 17 November 2022 but did not take action until 7 June 2023;
•	there is no obligation on the Minister to give notice of the decisions under cl 52.03-4 and thus, it was incumbent on SDH to make the relevant enquiries regarding the decisions;
•	on 29 June 2023 SDH (through its lawyers) was provided with a decision made under the Freedom of Information Act 1982 (Vic) (‘FOI Act’) that denied access to the document titled ‘Consultation Report for Progress St, Level Crossing Removal Project’ dated 25 January 2023.  Thus, SDH clearly understood that the report whose access had been denied was the consultation report submitted by the Authority to the Minister.  Further, SDH did not request access to:
o	the consultation report approved by the Minister;
o	the documents recording any decision under cl 52.03-4 of the scheme; or
o	the brief to the Minister in relation to the decisions under cl 52.03-4 of the scheme.
•	on 10 July 2023 SDH (through its lawyers) wrote to the Authority and copying the Minister requesting confirmation of whether the decisions under cl 52.03-4 of the scheme had been made.  The Authority says this is not a letter to the Minister asking whether the decisions had been made nor did it seek any document relating to the decisions;
•	on 28 August 2023, SDH through its lawyers asked the Minister to provide a copy of the consultation report and statement of reasons for the decision; 
•	the application for review that was lodged was ‘basic’ and was not complex; and
•	SDH were represented by appropriately qualified lawyers.
100	Thus, the Minister submits there is no reasonable explanation provided for the delay in the filing of the application for review by SDH.
101	The Minister says that CPG has not provided any explanation for the delay in the filing of their application for review.  It relies on similar submissions set out for SDH above, and thus I do not repeat these in full.  I simply extract the Minister’s summary as follows:
•	CPG was represented by a law firm with relevant expertise; 
•	by 19 June 2023, Gadens was made aware of the existence of the consultation report; 
•	Gadens failed to make the relevant FOI application (or even request) for the Decision Documents; 
•	by 21 June 2023, and in further letters, Gadens threatened legal action, suggesting consideration of the appropriate response to the Decisions being made and an understanding of the potential future need to take rapid action; and
•	CPG delayed 41 days from becoming informed that a decision had been made, including a delay in engaging counsel until after 28 days had passed from becoming aware of the Decisions.
Lack of grounds
102	The Minister alleges the applications do not identify a proper ground and are thus lacking in substance.  The only ground relied upon is that the Minister’s decision is ‘contrary to law’ but there is no identification of the alleged error.  Further, despite being on notice of the deficiency with the application, until recently, there has not been any attempt to amend the grounds relied upon.
Authority
103	The Authority notes that the declaration cannot be continued if the review proceedings are summarily dismissed or alternatively an extension of time is not granted to commence the review proceedings.
104	The Authority strongly opposes the grant of an extension of time to commence the review proceedings for the following reasons.
Inadequate explanation for delay
105	The Minister’s decision under cl 52.03-4 of the scheme were made on 7 April 2023.  The statutory period for the filing of an application for review of those decisions is 28 days after the decision was made.  Accordingly, the last day for the filing of an application for review was 5 May 2023.
106	The applications for review were filed on 21 September 2023, well outside of the statutory time frame.
107	The Authority acknowledges that the applicants were not given notice of the Minister’s decision until 11 August 2023, and it disagrees with the applicants’ position as to the date of the notice.
108	The Authority says there is no requirement under cl 52.03-4 to notify any person of the approval of public consultation or the related report and any reliance by the applicants that they were not notified until 24 August 2023 (noting that date is contested) must be seen in that light.
109	Addressing the circumstances for each applicant separately the Authority says:
SDH
•	on 11 August 2023, the solicitors for the Authority wrote to SDH, which correspondence, amongst other things, made reference to the decision having been made on 7 April 2023.  SDH accordingly became aware of the decision on that date; 
•	28 days from 11 August 2023 is 8 September 2023;
•	the Review Proceedings were both lodged on 21 September 2023;
•	hence SDH’s application was clearly made more than 28 days after learning of the decisions;
•	submissions regarding the need to obtain legal advice ought be rejected because the letter in July 2023 had already foreshadowed the possibility of proceedings.
CPG
•	Erika Peter knew of the consultation report on 11 August 2023;
•	CPG were legally represented.
Merits
110	The Authority contends the applications do not enjoy good prospects of success because the material before me demonstrates that a systematic program of public consultation was undertaken including direct consultation with the applicants.
111	Furthermore, the Authority and the Minister were aware of the substantive matters raised by the applicants, and they were all considered.  It is contended that the applicants have not identified any substantive matter that was either misunderstood or overlooked in respect of the use and development.
112	The applicant’s amended statement of grounds allege that the sole deficiency in the consultation to be that ‘the Authority should have been required to consult on options that did not require the closure of Progress Street’.  The Authority says the applicants contend that because the Project was not amended to respond to their concerns, they were not heard and thus, consultation was inadequate.  
113	The Authority says that complaint is directed to the substance of the Project and not the adequacy of the consultation.  Therefore, none of the proceedings before me, enjoy good prospects of success.
114	The Authority also disputes that the Project will have ‘very significant impacts’ on the applicants.
Prejudice
115	The Authority relies upon s 126(4) of the VCAT Act and says that it would suffer prejudice if an extension of time to commence the review proceedings is granted.  Accordingly, if I accept that position it is said that I do not have any discretion to extend time. 
116	Relying on the evidence of Travis Mark Edmonds the Authority says:
a)	Any material delay to the planned work schedule will result in a number of adverse consequences to the Authority, including both direct and indirect costs, and including the prospect of quite substantial costs;
b)	A delay in the planned work schedule in the order of one month would likely result in the planned rail occupation not being able to be realized, resulting in additional costs, disruption and delay flowing from that aspect of the Project;
c)	Should the Review Proceedings ultimately result in any delay to the Project, the consequences of any such delay would have been lesser were it to have occurred in 2023, as opposed to the middle or later parts of 2024. This particular prejudice arises directly as a consequence of the application having been lodged out of time. It would not have arisen were the applications brought within time; and
d)	Had the Review Proceedings been filed within time, then the relevant project contract annexure could have been drafted to address risk associated with the Review Proceedings particularly relating to timelines and project costs The detriment set out above cannot be remedied by an order for costs or damages.
117	The Authority refutes any submission by the applicants that the prejudice is caused by the Authority’s own conduct.
118	The Authority submits that if I am not satisfied that prejudice and detriment is not established, I should nonetheless consider these to be relevant to my consideration of the extension of time.
CPG and SDH
119	The applicants submit the critical issue for consideration in the extensions of time is the fact that neither the Minister nor the Authority disclosed to the applicants the fact the decisions had been made.
120	Furthermore, once the applicants become aware of the fact the decisions had been made, they acted promptly by filing the review proceedings.
121	The applicants say it would be unfair and unreasonable to decline to extend time to commence the proceeding having regard to the inaction of the Minister and the Authority, the prompt action by the applicants in filing their review proceedings and their case enjoying good prospects of success.
Explanation for delay
122	The applicants say the explanation for the delay is simple, they were not advised about the decision at the relevant time.  As such, it is not a failure of the applicants.  They could not have filed the review proceedings within time because they were not told about the decisions. 
123	Any delay in the filing of the review proceedings from the date the decisions were communicated to the applicants is readily explained by the need to obtain legal advice in the context of a novel planning control.
Fairness
124	In circumstances where the failure to file the review proceedings within time rests largely with the actions of the respondents, fairness dictates that the time to commence the review proceedings should be extended.
Action taken
125	The applicants have been clear about their concerns regarding the consultation process.  Further, both applicants engaged lawyers to represent them.  
126	Relevant correspondence includes several letters to: the Authority, local members of Parliament and various Minsters.
127	In fact, the applicants’ state that had it not been for their persistent contact, they would not have been made aware of the relevant decisions.
Prejudice
128	The applicants are critical of the Authority’s evidence that it will suffer prejudice by the delay in the commencement of works and additional costs will be incurred.  They are critical because they say the evidence lays a foundation for an extraordinary submission by the Authority.  The applicants say the evidence reveals that the Authority did not take any steps to disclose to the applicants that a decision had been made notwithstanding, that the applicants continued to correspond with the Authority about possible future legal challenges.
129	Thus, the central proposition advanced by the Authority allows it to take the benefit of its own poor conduct.
130	Moreover, the applicants submit it would be wrong to give any weight to the prejudice alleged by the Authority because such prejudice arises from their own conduct rather than any failing on the part of the applicants.
Merits
131	The applicants contend that the review proceedings have a good prospect of success because cl 52.03 is one of a series of new planning controls and it requires mandatory steps in the approval process.
132	Further, such mandatory steps in this context must be real and meaningful consultation.  
Tribunal determination
133	Having set out in some detail the submissions of the parties, I will consider each issue in the following order:
a	standing of the applicants in the review proceedings;
b	extension of time to commence review proceedings (if necessary); and
c	if the applicants do not have standing in the review proceedings, continuation of the declaration proceedings.
Standing
134	I disagree with the applicants’ submission that standing should be determined as part of the overall proceeding.  
135	First, the applications were listed for a preliminary hearing to determine whether the applications should be summarily dismissed because it is alleged the applicants lack standing.  Thus, the Tribunal has already determined that the issue of standing is to be determined separately to the merits of the proceedings. 
136	Second, in Maddingley the Tribunal acknowledged the importance of standing to bring an application and said it was ‘an essential ingredient’ of an application and thus, it is ‘appropriate to deal with the question of standing as a preliminary matter’. 
137	Third, I do not agree with the applicants that I cannot decide the issue of standing because to date there is no evidence to assist me in this task.
138	The issue of standing is in essence a task of statutory construction aided by relevant facts that are already before me in this preliminary hearing.
139	There is no dispute amongst the parties about the relevant principles of statutory interpretation.  The task starts and ends with consideration of the text of the provision in its context.  Such context may include the legislative history and extrinsic materials, but these cannot displace the meaning of the text.
140	Sections 148 and 149 of the PE Act have been set out earlier in this decision.  The question I am to determine with respect to standing is whether the applicants are a ‘specified person’ for the purposes of ss 148 and 149 of the PE Act.  
141	There is no contention that the applicants own land as follows:
•	CPG – 51-65 Nathan Road and 88-90 Nathan Road, Dandenong South; and
•	SDH – 72-84 Nathan Road, Dandenong South.
142	Further, there is no contention that the land owned by the applicants is not within the Project boundary that is, the land on which the use and development of the land for the Project will occur.
143	The ‘decisions’ in these applications for the purpose of s 149(1)(a) of the PE Act are that of the Minister (the specified body):
-	to be satisfied with the public consultation and consultation with the relevant municipal council; and
-	to be satisfied that a report that summarises the feedback provided during consultation and explains how the feedback has been considered has been prepared.
144	The ‘matter’ or matters referred to in s149(1)(a) of the PE Act that is required to be to the Minister’s satisfaction are public consultation, consultation with the relevant municipal council and preparation of a report.
145	The question of standing now turns on whether the applicants are the owners of the land directly affected by the Minister’s satisfaction in relation to the matters (public consultation, consultation and preparation of a report).
146	The phrase ‘directly affected’ is not defined in the PE Act, the scheme or the Interpretation of Legislation Act 1984 (Vic) and must be given its ordinary meaning.  Turning to the Macquarie Dictionary the definitions are extracted below:
‘Directly’
adverb 1.  in a direct line, way, or manner; straight.
2.  without delay; immediately.
3.  presently; soon.
4.  absolutely; exactly; precisely.
‘affected (1)’
adjective 1.  acted upon; influenced: the affected group.
2.  influenced injuriously; impaired; attacked, as by climate, disease or pollution, etc.: 
3.  moved; touched:
‘affected (2)’
adjective 1.  assumed artificially:
2.  assuming or pretending to possess characteristics which are not natural: 
3.  inclined or disposed: 
affect
verb 
1.  to act on; produce an effect or a change in:
2.  to impress; move (in mind or feelings): 
3.  (of pain, disease, etc.) to attack or lay hold of:
–noun 4.  /ˈæfɛkt/ (say 'afekt) Psychology observable feeling or emotion, as linked to a thought process or as a response to a stimulus (opposed to conation).
147	The word ‘directly’ means immediate or without delay when used in s 148 of the PE Act.  Whilst the word ‘affected’ is the verb when it is used in s 148 of the PE Act and thus, it means an effect or change.  
148	Hence, turning to s 148 of the PE Act a ‘specified person’ is the owner or occupier or developer of the land to which there is an immediate effect or change by the matter (public consultation, consultation with the relevant municipal council and preparation of a report).  
149	The land owned by CPG and SDH is not within the Project boundary but does that mean that it is not directly affected by the matter?  The answer is to be found at cl 52.03 of the scheme.
150	I now set out the relevant parts of cl 52.03 the scheme:
Clause 52.03-1
Application 
This clause applies to the use and development of land (other than the subdivision of land) for projects undertaken by the Level Crossing Removal Project and declared under section 10(1)(b) of the Major Transport Projects Facilitation Act 2009. 
This clause does not apply to a project for which a document has been incorporated into this planning scheme expressly for that project.
Clause 52.03-2
Exemption from planning scheme requirements
Any requirement of this planning scheme to obtain a permit or any provision of this planning scheme that prohibits the use or development of land, requires the use or development of land to be carried out in a particular manner, or requires a specified thing to be done to the satisfaction of a specified person or body, does not apply to any use or development this Clause 52.03 applies to if the requirements of Clause 52.03 are met. The provisions of this clause prevail over any inconsistent provision in this planning scheme.
Clause 52.03-5
Project boundary requirement
Prior to the commencement of the use or development, a plan that shows the boundary of the land on which the use or development will be undertaken must be prepared to the satisfaction of the Minister for Planning.
Clause 52.03-4
Consultation requirement
Prior to the commencement of the use or development: 
•	Public consultation, and consultation with the relevant municipal council, must be undertaken to the satisfaction of the Minister for Planning.
•	A report that summarises the feedback provided during consultation and explains how the feedback has been considered and responded to must be prepared to the satisfaction of the Minister for Planning.
151	In summary, cl 52.03 applies to the use and development of land for projects:
•	undertaken by the Authority; and
•	declared under the MTPF Act. 
152	The use and development of land is exempt from the requirements of the scheme to obtain a permit if, cl 52.03 of the scheme applies and the requirements of that clause are met.
153	The requirements are use and development requirements, consultation requirement, project boundary requirement, other pre-commencement requirements and native vegetation requirements.  The consultation requirement and the project boundary requirement are to occur ‘[p]rior to the commencement of the use or development.
154	The language of cl 52.03-4 of the scheme, that is the consultation requirement, does not limit public consultation to the owners, occupiers or developers of land on which the use and development will be undertaken.  Clause 52.03-4 of the scheme is clear on its face, public consultation, and consultation with the relevant municipal council must be undertaken to the satisfaction of the Minister.  That satisfaction would include the extent and nature of the consultation. 
155	If cl 52.03-4 of the scheme was intended to apply only to public consultation with owners, occupiers or developers of land on which the use and development was to be undertaken, it would have included such limitation.  
156	Thus, if one of the ‘matters’ is public consultation, and consultation is not limited to the land on which the use and development will be undertaken, does it follow that the applicants’ land is directly affected by that public consultation? Or in other words, is it land on which there will be an immediate effect or change to it, by that public consultation?  
157	The applicants contend the closure of Progress Street and its impact on access to their land is a direct consequence of the Minister’s decision not to require the Authority to undertake consultation on the different approaches to the removal of the level crossing.
158	First it is incorrect to say that consultation did not include the different approaches to the removal of the level crossing.  The Consultation Report January 2023 identifies the closure of Progress Street as a matter that was frequently raised by the submissions.  But, in any event, the consultation process, its extent and nature do not impact in a direct sense access to the applicants’ land.  There is no physical or tangible change to either of the applicants’ land.  There will be an impact, consequence or change to the route taken by vehicles to go to the land or after departing from the respective land.  At best, that is an impact to the business interests of the owners and not to the land they own.  But there is no immediate effect, or direct consequence to the applicants’ land. Returning to the phrase in s 148 of the PE Act, I find that the applicants are not owners of land directly affected by the public consultation that was undertaken.
159	For completeness, for the same reasons, I find that the applicants are not owners of land directly affected by the report that summarises the feedback from the consultation process and explains how that feedback has been considered and responded to the satisfaction of the Minister.
160	It follows that the applicants are not a specified person for the purposes of 
s 148 of the PE Act and thus, do not have standing to make an application under s149 of the PE Act.
161	Accordingly, the review proceedings should be summarily dismissed under s 75 of the VCAT Act because the proceedings are misconceived. 
162	I note by way of passing that I have accepted the submissions of the parties that in being satisfied with the consultation and the report, the Minister actually made ‘a decision’ or ‘decisions’ for the purposes of s 149(1)(a) of the PE Act.
Extension of time
163	Given my determination above, it is not necessary to consider the requests for an extension of time to commence the review proceedings.  However, I make the following observations about the requests.  
164	The applicants were not aware of the date the Minister made her decision to be satisfied with public consultation and the report that summarises the feedback.  They were not aware because they were not advised of the decisions notwithstanding, they engaged in the public consultation process.
165	I do not make any determination on whether the decision should have been sent to the applicants and accept that cl 52.03 of the scheme does not expressly provide for the giving of any notice.  However, I simply note that commensurate processes such as communicating a decision that plans are to a responsible authority’s satisfaction are also not required by the PE Act or the relevant scheme, but responsible authority’s routinely do so.
166	I observe that any person wishing to file an application under s 149 of the PE Act had 28 days from 7 April 2023 in which to do so.  Thus, by the time CPG was told about the decision of the Minister (regardless of whether it was on 11 or 24 August 2023) any application would have been well beyond the 28 days provided for under s 149(2) of the PE Act.
167	The fact the Authority issued an election notice on 10 May 2023 a date just beyond the 28 days and the prejudice to the Authority by any extension of time to commence the review proceedings would need to be balanced against the fact the Minister’s decision was not communicated to the applicants.
168	I do not consider the submissions of the Minister and Authority about the detriment caused between an application lodged within 28 days of receiving notice of the decision and 41 days to be particularly persuasive.   
169	The applicants provided a plausible explanation for any delay, should a delay in the commencement of the review proceedings have been found.
170	I also note that it is not necessary in these proceedings to make any determination about the operation of s126(4) of the VCAT Act.   That is a matter for another day.
Declaration proceeding
171	It is uncontroversial that the ratio of a SCV decision is binding authority, and that obiter is not binding on the Tribunal but may be highly persuasive having regard to analogous facts and legal reasoning. 
172	Rather, than spending an inordinate amount in this decision determining whether the decision in Kantor is binding on me, I consider it in the interests of justice to look at s149B(1)(a) of the PE Act directly.
173	Section 149B of the PE Act provides:
General application for declaration
(1)	A person may apply to the Tribunal for a declaration concerning—
(a)	any matter which may be the subject of an application to the Tribunal under this Act; or
(b)	anything done by a responsible authority under this Act.
(2)	On an application under subsection (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.
(3)	The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal.
174	The important phrase for the purposes of this proceeding is ‘A person may apply to the Tribunal for a declaration concerning  - any matter which may be the subject of an application…’.
175	In other words, the jurisdictional issue in this proceeding ‘hangs on’ the words ‘may be’.  To that end, I agree with the Tribunal in Ileowl Pty Ltd v Environment Protection Authority (Ileowl) that:
13	The question of jurisdiction therefore hangs on the words in s 36D about a matter which ‘may be’ the subject of an application to VCAT. Do these words broaden the jurisdiction of VCAT to make a declaration about something that might prospectively become the subject of a future application for review to VCAT under the EP Act? Illeowl contended that the utility of the declaration power in s 36D would be diminished if a reviewable decision needed to exist as an effective pre-condition to the use of s 36D, as an applicant would instead simply undertake that review.
14	Given what I have said above, I am not convinced that the words ‘may be’ in s 36D can be read in such broad fashion as Illeowl suggests. I prefer the EPA’s contention that s 36D should be read as conferring jurisdiction only concerning a matter that may – at the time the declaration is sought – be the subject of an application to VCAT. That does not however mean that the other application must have already been made. But the circumstances must already reasonably exist for that other application.
176	Further, I agree that the words ‘may be’ require the circumstances to exist at the time to allow another application to be made, in this case an enforcement proceeding.  However, it does not follow that an application must be made or even be successful, for an application for declaration to be made. This is supported by the language of the provision itself, by use of the phrase any matter which may be the subject of an application. This phrase does not necessarily require an application to exist in fact but rather, that when an application for declaration is made, the circumstances exist for such an application to be made to the Tribunal.
177	To that end, I accept the Minister’s submission that s114 of the PE Act cannot be used to invoke the Tribunal jurisdiction under s 149B of the PE Act in circumstances where the facts do not exist to the filing of an enforcement proceeding.  And further, in circumstances where the declaration proceeding is required for jurisdiction for the enforcement proceeding.  It is the circularity of that argument that is problematic, and it further lends support for the interpretation of the words ‘may be’ that I have arrived at.  
178	To that end, I have arrived at the same conclusion as the Court in Kantor, albeit for different reasons.  I specifically note the following:
Without recourse to authority I would have said that s.114 of the Planning Act is not attempting to deal with the type of situation now under discussion.  The structure of the Act, as well as the verbiage of the section, suggests that the reference in sub-s.(l) to “contravention of the Act” is not addressing a contravention alleged to exist because an extension or amendment proper on its face might be successfully attacked as involving a wrong exercise of discretion in the decision to extend or amend. The difficulty of making s. 114(1) apply to such a case was highlighted, I consider, by the necessary recourse, in the submissions of counsel for the Shire, to s.l4(l) of the Appeals Act as the source of jurisdiction to create the very contravention or prospective contravention which is the sine qua non of the availability of s.114.* It is, however, difficult to know what s.114 intends by its reference to an actual or apprehended contravention of the Planning Act. Counsel for the plaintiffs referred me to s.126 of that Act. That would give the relevant part of s. 114(1) some work to do; but it is not a wholly satisfactory explanation. I should, in the circumstances, do no more than repeat my conclusion that the particular reference in s. 114(1) does not pick up a case where the contravention of the Act is alleged to be action undertaken or threatened in respect of an apparently regularly issued permit.
(*Tribunal Emphasis)
179	I do not intend to review and address the case law relied upon by the parties in support of their respective submissions given my findings above, except for Wellington.  In Wellington, the Tribunal was considering an application for declaration under s 149B of the PE Act and in considering its jurisdiction stated as follows:
Jurisdictional limits on use of s 149B?
20	In correspondence filed shortly prior to the hearing, the responsible authority challenged the jurisdiction of the Tribunal to deal with the applicants’ s 149B application, based on the recent decisions of Gibson DP in Farr v Boroondara City Council and Glenample Air Pty Ltd v Corangamite Shire Council. 
21 	In Farr and Glenample, Gibson DP had noted that a person may apply for declaration under s 149B of the Planning and Environment Act 1987 only in limited circumstances including, under s 149B(1)(a), where the declaration concerns “any matter which may be the subject of an application to the Tribunal under this Act”. She therefore questioned whether an objector could use s 149B to challenge existing use rights over another person’s land, because the objector would not have standing to bring a separate application under ss 149A or 97P in relation to existing use rights. Gibson DP similarly doubted that the challenge to existing use rights in those cases could form the subject matter of an enforcement proceeding under s 114. She also questioned the utility of making a declaration under s 149B where a more appropriate remedy existed to deal with the lawfulness of the use through an enforcement proceeding under s 114.
22	At the hearing, the responsible authority did not pursue this matter with any vigour, nor did SMCC and MA seek to challenge the Tribunal’s jurisdiction on this basis. The applicants however responded on the issue, and it is necessary to deal with it in the context of this proceeding.
23	I consider that the Tribunal does have jurisdiction to deal with the matters before it under s 149B of the Planning and Environment Act 1987. In particular, I consider that the lawfulness of the use of the land for motorcycling activities (which directly raises the issue of the extent of any existing use rights), and the lawfulness of the buildings and works, are both matters that in this case may be the subject of an application to the Tribunal under the Planning and Environment Act 1987. Under s 114 of that Act, the responsible authority or ‘any person’ may apply for an enforcement order against an owner or occupier of land if a use or development contravenes the Act or a planning scheme. Indeed, the applicants have now initiated such a proceeding under s 114, albeit adjourned for the time being. In my view, the necessary trigger for the use of s 149B is met here. It is clear from the s 149B proceeding that the applicants are essentially seeking declarations about whether there is a contravention of the planning scheme, which is a matter that may be the subject of an application to the Tribunal under the Planning and Environment Act 1987.
180	Firstly, I note that in Wellington, an application under s 114 of the PE Act, existed in fact notwithstanding it had been adjourned.  To the extent the Tribunal made additional comments in respect of the ‘trigger for the use of s 149B’ being met, they were not germane to the Tribunal’s determination of its jurisdiction.  Secondly, in Wellington the Tribunal said that ‘applicants are essentially seeking declarations about whether there is a contravention of the planning scheme, which is a matter that may be the subject of an application to the Tribunal’.  In these proceedings, it is not a contravention of the scheme that is at the heart of the ‘matter’ the subject of the declaration proceedings, rather the ‘matter’ is the nature of the public consultation and the adequacy of public consultation.  
181	Thus, I do not consider my decision differs from that in Wellington because the factual matrix in each case is readily distinguishable.  
182	Lastly, given my decision, I do not need to address the matters raised by the parties concerning the decision in Sudi.
183	Accordingly, the declaration proceedings should be summarily dismissed under s 75 of the VCAT Act because the proceedings are misconceived.
Other matters
184	Other matters were raised by the parties including the adequacy of the pleadings and whether the grounds in support of declaration proceedings should be permitted to be amended.
185	Given my decision above, it is not necessary that I deal with these other matters.
Conclusion
186	For the reasons given above, all applications before the Tribunal are summarily dismissed under s 75 of the VCAT Act because the proceedings are misconceived.

Teresa Bisucci
Deputy President