VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P797/2024
permit application no. PA23-0102

Applicant	Alex Singh	

Responsible Authority	Casey City Council	
Respondent	Manjit Kaur	
SUBJECT LAND	24 Huon Park Road
CRANBOURNE NORTH  VIC  3977	
hearing type	Practice Day Hearing	
date of hearing	1 November 2024	
DATE OF ORDER	6 December 2024	
citation	Singh v Casey CC [2024] VCAT 1160	

Order
Amend name
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by changing the name of the permit applicant to:
Manjit Kaur
Hearing
2	The details set out in the Tribunal’s initiating order are changed.
3	The hearing scheduled at 10:00am on 7 April 2025 is vacated.  No attendance is required.
4	The compulsory conference scheduled at 2:00pm on 3 February 2025 is vacated.  No attendance is required.
The proceeding is listed for a hearing as detailed below.
The hearing will be at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you.

Hearing:	
Date and time	3 February 2025
10:00am – 4:30pm	

Conduct	In person - VCAT Melbourne, 55 King Street, MELBOURNE VIC 3000	

The in person hearing will be conducted at 55 King Street, Melbourne.  Details will be published in the law list late on the afternoon of the day prior to the hearing.
Application for summary dismissal or strike out 
5	The Tribunal declines to summarily dismiss or strike out application P797/2024.
6	Ground 5 of the application for review, that ‘The proposal fails to demonstrate a community benefit and local community need, particularly having regard for the approved child care centre at 26 Huon Park Road, Cranbourne North’ is struck out, by consent, pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Providing documents
7	By 4pm on 13 December 2024, the council must provide the following documents to the Tribunal and all parties to the proceeding:
(a)	A copy of Planning Permit PA23-0065; 
(b)	A copy of the decision plans under Planning Permit PA23-0065; 
(c)	A copy of any other documents considered by the Council in making it decision on Planning Permit PA23-0065 including reports provided by the applicant in support of the application as well as any internal or external referral comments;
(d)	A copy of the Delegate Report for Planning Permit PA23-0065; and
(e)	A copy of all internal and external referral comments relating to planning permit application PA23-0102.
Providing submissions and associated material before the hearing
8	No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
9	All expert evidence must be provided in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Hearing fees
10	If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

J Perlstein
Member

Appearances
For applicant	Rachael Bowden of M2Co Planning.	
For responsible authority	Virginia Jackson of Casey City Council.	
For respondent	Andrew Gray of GrayKinnane.	

reasons
1	This is an application for review of the decision of Casey City Council (‘council’) to issue a notice of decision to grant a permit for use and development of a childcare centre and reduction in the car parking requirement at 24 Huon Park Road, Cranbourne North.
2	A practice day hearing was listed on 11 October 2024 to ‘consider the matters raised in the respondent's request for a practice day hearing and supporting cover letter dated 26 August 2024’. 
3	The letter from the respondent (permit applicant) dated 26 August 2024 requested a practice day hearing to consider the following matters:

4	The applicant did not attend the practice day hearing and it proceeded in their absence, given that they were aware of the listing, which was evident from the fact that the applicant was represented and had filed a submission.
5	The council and respondent made submissions with respect to all of the matters included above.
6	Following the practice day hearing, the applicant’s representative apologised for their non-attendance and requested a further practice day hearing. The Tribunal allowed it on the condition that the applicant listen to the audio recording of the hearing so that parties did not need to repeat their submissions.
7	A further practice day hearing was held on 1 November 2024 with all parties in attendance.
8	Further to hearing from all parties, I have determined not to summarily dismiss the application, to require the relevant documents to be provided and that further orders requiring conditions are not required. A further issue was also raised, concerning a statement of grounds filed in this proceeding. All of these matters are discussed below, along with my reasons.
Application for summary dismissal
9	The respondent referred to the Tribunal decision of Axicom Pty Ltd v Melton CC (Red Dot) [2020] VCAT 190 (‘Axicom’) to articulate the Tribunal power of summary dismissal and the general principles relating to its operation, which are set out below and which I endorse:
VCAT’s power of summary dismissal
8 	Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides as follows:
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.
9 	The general principles relating to the operation of section 75 of the VCAT Act are clear.1 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’.
10 	For present purposes, I adopt these principles. The parties were not in any disagreement about the ‘very high bar’ to be met by a respondent in seeking summary dismissal of a proceeding.
1.	The principles set out here are a condensed version of the principles summarised in the decision of Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1683 (Justice Garde P). The authorities and citations in support of these principles are set out in the Hickory Group decision, and several of the authorities are also separately discussed in Pizer’s 'Annotated VCAT Act' (6th ed.)
10	Other relevant paragraphs of that decision are:
13	Objector rights are an important part of the Victorian planning system. For objector applications seeking to review the grant of a planning permit, most raise arguable differences of opinion about the relevance or balancing of competing policies, objectives and decision guidelines under a planning scheme or the PE Act that influence how a merits-based discretion should be exercised by the decision-maker. In such matters, even though there may be no disputed facts, the nature of the discretion will make it difficult to demonstrate that a review proceeding is bound to fail. Objector applications may sometimes be weak, but not hopeless. The opportunity for summary dismissal will therefore still be rare and exceptional.
14	However, it does not follow, just because an objector-initiated VCAT proceeding is a de novo review of a decision involving the exercise of discretion, that an application for summary dismissal of such a proceeding can never be successful. It may be that an objector application for review under section 82 of the PE Act, when considered objectively at a summary level, is found to be devoid of planning merit. 
15 	I consider that a review proceeding brought by third-party objector that is devoid of planning merit equates to a proceeding that is ‘misconceived’ or ‘lacking in substance’ for the purpose of section 75 of the VCAT Act. 
16	The power in section 75(1) of the VCAT Act is predicated on the ‘opinion’ of the tribunal that a proceeding is misconceived or lacking in substance etc. although, having regard to section 75(5), this is also a question of law.
…

20	It is clear that a third-party objection in a town planning matter is not vexatious or an abuse of process just because the objector is a commercial competitor. It is the planning merits of the objection that are important
11	The applicant’s grounds of review are reproduced below:
1. 	The proposal fails to comply with State and Local Planning Policy Framework relevant to site, particularly Clause 22.02 (Non-Residential Uses in Residential and Future Residential Areas Policy).
2. 	The proposal fails to have adequate regard for the cumulative impact on the neighbourhood character and amenity of the area, particularly having regard to the approved child care Centre on the land at 26 Huon Park Road, Cranbourne North.
3. 	The proposal fails to have adequate regard for the cumulative impact on car park parking and traffic impacts when both child care centres are in operation.
4. 	The reduction in on-site parking is considered unreasonable and unnecessary.
5. 	The proposal fails to demonstrate a community benefit and local community need, particularly having regard for the approved child care centre at 26 Huon Park Road, Cranbourne North.
6. 	The proposal is contrary to the proper and orderly planning of the area.
Submissions of the parties
12	The council did not oppose the application for summary dismissal by the respondent, submitting that it undertook a thorough assessment of the application and concluded that the application was appropriate and determined to issue a notice of decision to issue a planning permit. In oral submission, the council submitted that it considered the applicant is seeking a competitive advantage by delaying the proposed childcare centre while its property is being developed. It said that the fact that the adjoining centre has not been built means it is not relevant to the consideration of cumulative impact as this only applies to existing facilities. 
13	The council noted that the ground of review relating to car parking reduction may be a planning ground, and that the application could be confined to considerations of that ground, but also submitted that the ground has no merit. 
14	The respondent noted that the two properties had applied for planning permission for childcare centres within a day of each other, and that the applicant had filed an objection to the respondent’s application citing an oversupply of childcare in the street and a resulting commercialisation of the area. The respondent referred to the council officer report which included the following comment on the applicant’s objection, which was one of two objections filed with the council:

15	The respondent submitted that the application was lodged primarily to secure a commercial advantage by way of delaying and frustrating the issue of a planning permit for a child care centre.
16	The respondent had regard to each of the applicant’s grounds as follows:
23.	It is respectfully submitted that having regard for the principles established in Axicom that the proceeding should be summarily dismissed as the grounds lodged in support of the Application lack planning merit as follows:
a. 	Ground 1 relates to the alleged non compliance with Clause 22.02 and relevant policy of the Casey Planning Scheme. The Officers Assessment of this matter is that the proposal is acceptable having regard to policy, including Clause 22.02.
It is noted that both centres provide over 40 places and are both located on a road that is not a collector road and hence seek a variation to the requirements in Clause 22.02 to be located on a road zone. The Applicant’s centre, at 124 places indeed provides for a greater departure from the policy.
b.	In relation to Ground 2, any argument about cumulative impact is null and void in this case as the Applicant has not acted on their permit and therefore there is no current development and use of the site for a childcare centre to form part of a “cumulative impact” in relation to neighbourhood character an amenity. Whether the child care centre at the Applicant's property proceeds or not is still unknown.
c. 	In relation to Ground 3, any argument about cumulative impact is null and void in this case as the Applicant has not acted on their permit and therefore there is no current development and use of the site for a childcare centre to form part of a “cumulative impact” in relation to traffic and parking. Whether the child care centre at the Applicant's property proceeds or not is still unknown.
d. 	In relation to Ground 4, the parking reduction on the site as proposed is acceptable having regard for the Officers assessment and the car parking assessment provided as part of the application.
e. 	In relation to Ground 5, the proposal provides for a clear community benefit particularly having regard for the future redevelopment of the Cranbourne Golf Club opposite the site for residential use and it is anticipated that the demand for childcare will be significantly higher over time. The Applicant has not acted on their permit and therefore there is no current child care centre existing on the adjoining lot. Whether the child care centre at the Applicant's property proceeds or not is still unknown.
f. 	In relation to Ground 6, the proposal clearly represents orderly and proper planning and there are no details provide as to how the proposal does not represent orderly and proper planning. This ground is weak and presumably relates to the potential development of the adjoining child care centre.
24. 	Noting that Section 75 of the VCAT Act allows for “part” of a proceeding to be struck out, if the Tribunal is not convinced that all grounds are without merit, we would submit that Grounds 1, 2, 3, 5 & 6 could be struck out for the reasons above, leaving Ground 4 as the only remaining ground.
17	The applicant, at the second practice day hearing, confirmed that the buildings on their site had been demolished in September and that plans pursuant to conditions 1, 2, 29 and 31 of their permit had been endorsed on 24 September 2024. The applicant submitted that although the centre is not yet constructed, the project has been tendered to builders and the commencement date is earmarked for early 2025.
18	The applicant is concerned that the council chose not to undertake any assessment of the approved childcare centre at its property at 26 Huon Park Road when assessing the application for 24 Huon Park Road, and noted that the Traffic Impact Assessment prepared by TTM Consulting and dated 27 September 2023, did not consider parking demand and/or traffic generation and movements, if both centres were operational.
19	The applicant submitted that its grounds have planning merit and can be distinguished from the decision in Axicom.
20	With respect to the specific grounds, the applicant, in response to questioning from the Tribunal about the difference between the second and fifth ground included in the application for review, confirmed that they were content with ground 5 being struck out.
21	The applicant submitted that the council did not properly consider clauses 22.02, 52.06 and 65 of the Casey Planning Scheme (‘Scheme’) in assessing the planning permit application and determining to issue a notice of decision. Grounds 1, 2 and 6 were described by the applicant as being ‘overarching’ grounds of cumulative impact of non-residential uses.
22	Grounds 3 and 4 relate to traffic and car parking which the applicant submitted has not been properly considered in light of the future scenario which includes both childcare centres. The applicant confirmed that it is obtaining its own traffic advice in this regard.
23	The applicant submitted that it is concerned about how both centres will coexist and considers that this must be properly assessed. 
Tribunal consideration 
24	As is clear from the Axicom decision, summary dismissal under section 75 of the VCAT Act requires a very high bar. 
25	Having considered the grounds relied on in this application, and the submissions of all parties, I do not find that the bar has been met.
26	As stated in Axicom, and cited above, ‘objector applications may sometimes be weak, but not hopeless. The opportunity for summary dismissal will therefore still be rare and exceptional’. In Axicom, the respondent was able to establish to the satisfaction of the Tribunal, on the facts and circumstances of that case, that the proceeding was misconceived or lacking in substance, because it is devoid of planning merit having regard to the grounds of review; and that the proceeding is vexatious or an abuse of process, because it has been brought for a collateral purpose, and is intended primarily to secure or maintain a commercial advantage. 
27	This is not the case here. The grounds in this case are legitimate planning grounds and matters that the council did not specifically consider in its written assessment of the proposal. The council did not refer to the policy elements of clause 22.02 concerning concentration of non-residential uses in a particular location and did not have regard to the potential future car parking and traffic scenario if both centres are in operation. Whether or not these grounds are ultimately persuasive or determinative, they are worthy of consideration. 
28	While the centre next door has not yet been built, the permission for it is recent and the applicant has taken steps to act on the permit including endorsement of plans under the permit. When assessing whether to grant the planning permit sought by this application, the proposed development next door is a factor to consider. There will be submissions made about what, if any, weight should be given to consideration of a future scenario that may not occur and the need to assess an application on the basis of existing conditions, but the permit on adjoining land is not irrelevant from a planning perspective. The weight to be given to the issues raised will be determined by the member hearing the proceeding.
29	Referring back to the principles set out earlier, the grounds are not obviously unsustainable in fact or law and bound to fail. Having heard from the parties, I am also not persuaded that the application has been lodged primarily to secure a commercial advantage by way of delaying and frustrating the issue of a planning permit for a child care centre.
30	For those reasons, I have declined to summarily dismiss the application.
31	Given the issues in dispute, I consider that the hearing should be brought forward and determined as soon as possible. I have therefore vacated the compulsory conference and converted it to the hearing.
Documents to be provided
32	The respondent sought several documents relating to the childcare centre approval at 26 Huon Park Road. The applicant, in its submission, requested internal and external referral documentation relating to the application that is the subject of review in this proceeding. The council opposed the request of the applicant on the basis that the referrals are internal council documents. 
33	I consider that each of the documents requested by the parties has relevance to the application for review before the Tribunal and should be provided. I understand some of the documents have already been provided and apologise for the delay in the making of these orders which has delayed receipt of all the documents for the parties. For completeness, the orders have included a requirement to provide all the documents requested so as to ensure the entirety of documents requested have been provided. 
Conditions issue 
34	The notice of decision to grant the permit includes an error in the conditions. This was described in the council letter to the permit applicant dated 5 July 2024, as follows:
I wish to advise you that there is an error in one of permit conditions contained in the NOD which resulted from a miscalculation of the requirements of Clause 52.06 of the Casey Planning Scheme (CPS) in relation to the provision for car parking.
The car parking requirement for a Childcare Centre is 0.22 car spaces per child place. The development would provide 18 on-site car spaces.
Council approved the application with a reduction of 2 car spaces from the standard car parking requirement contained in Clause 52.06. This would allow the Childcare Centre to operate with 95 child places instead of the 86 places allowed by Condition 17 of the NOD.
Section 71(1)(b) of the Planning and Environment Act 1987 provides for the correction of mistakes on permits arising from (in this case) a material miscalculation of figures.
If no objector appeal is lodged with the Victorian Civil and Administrative Tribunal (VCAT), it is proposed to issue a corrected permit that allows the Childcare Centre to operate with 95 child places instead of the 86 mentioned in the NOD. The amended Condition 17 would read as follows:
“Unless with the prior written consent of the responsible authority, no more than 95 children may be present on the land at any one time.”
I am drawing this to your attention as it may affect whether you decide to appeal the approval of the NOD. Information on the appeal process is listed on the last page of the NOD document sent to you last week.

35	The respondent queried whether an application for review was required to be filed with the Tribunal under section 80 of the Planning and Environment Act 1987 (Vic) (‘PE Act’) or whether section 71 of the PE Act can be used to correct mistakes.
36	Council has made it clear that condition 17 as currently drafted is incorrect. All parties, and the Tribunal, are aware of this. The application before the Tribunal is an application for review of the council decision and, if the Tribunal determines to order that a permit be granted, it will determine what conditions are included on that permit. 
37	The council, and all parties, are directed to file submissions in advance of the hearing.
38	These submissions should address this issue and the fact that, if a permit is granted, condition 17 must be amended.
39	The Tribunal, if it determines to issue a permit, will consider all of the submissions and include conditions as it sees fit, after considering submissons of the parties.
40	In those circumstances it seems unnecessary to lodge a further application or take further procedural steps with respect to this error.
Statement of grounds filed
41	The Tribunal received a statement of grounds form (‘SOG’) from Ian McCallum (‘McCallum’). McCallum is not an original objector to the application and indicated that they did not wish to participate in the hearing but would like the Tribunal to consider their SOG.
42	The other parties confirmed during the hearing that this statement of grounds was not served on them and they were unaware of it.
43	The form provides that if you are a person who did not object to the original application to the council and now wants to object, you are not a formal party and you must attend the hearing to be considered to be added as a formal party. 
44	McCallum did not attend the hearing. While the SOG indicates that McCallum did not want to participate in the hearing, they would have needed to attend the practice day hearing in order for their objection to be considered. 
45	Given that McCallum is not an original objector, did not notify the other parties and did not attend the practice day hearing, they do not have status to be heard in this proceeding and therefore their SOG cannot be considered by the Tribunal.

J Perlstein
Member

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