VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1660/2023
permit application no. 5.2022.156.1

Applicant	Hilary Aberle	

Responsible Authority	East Gippsland Shire Council	
Respondent	Janine Wright-Smith	
Subject Land	30 Krammes Road
NICHOLSON  VIC  3882	
DATE OF ORDER	28 November 2024	
citation	Aberle v East Gippsland SC (No 2) [2024] VCAT 1132	

Order
Hearing adjourned
1	The continuation of this hearing on 26 March 2025 is vacated.  
2	The hearing of this proceeding is adjourned to the date and for the time as detailed below.
If there is any change to these details, the Tribunal will notify you.
Standard Cases Hearing:	
Date and time	Monday 16 June 2025
10.00 am – 4.30 pm	

Conduct	Online platform	
Before	Senior Member Naylor	
The details of the online platform will be provided to the parties before the hearing.
Amended dates for Responsible Authority to reconsider application
3	By no later than 4pm on Tuesday 28 January 2025, the Respondent permit applicant (Ms Wright-Smith) must provide to the Responsible Authority, the Applicant and the Tribunal:
(a)	the further information sought by the Responsible Authority (as set out in paragraphs 7(b) and 7(d) of the reasons contained in the Tribunal’s order dated 5 September 2024), and 
(b)	the plan(s) sought by condition 1 of the Notice of Decision to Grant a Permit issued on 30 November 2023.

4	By no later than 4pm on Tuesday 4 February 2025, the Responsible Authority must advise the Tribunal and the other parties whether it has received sufficient information to enable it to give notice and reconsider its decision.  
5	By no later than 4pm on Tuesday 1 April 2025, the Responsible Authority must have given notice of the permit application with the additional information filed under Order 3 above and then reconsidered its decision.  The Responsible Authority must file with the Tribunal and serve on all parties and any new objectors to the permit application advice about whether it:
•	Affirms its original decision; or
•	Varies its original decision; or
•	Sets aside its original decision and substitutes a new decision for it.
6	If the responsible authority varies the decision or sets it aside and substitutes a new decision, the responsible authority must also provide to the Tribunal, all parties and any new objectors:
•	Any reasons for the varied or new decision; and 
•	Any conditions upon which it would decide to grant a permit as contained in a new version of the Notice of Decision to Grant a Permit.
7	The hearing scheduled for 16 June 2025 will then include the consideration of the additional information filed under Order 3 above and the Responsible Authority’s decision filed under Orders 5 and 6 above.
Respondent permit applicant failure to submit information or failure to provide sufficient information
8	If the Respondent permit applicant fails to submit the information by the date in Order 3 above or if the Responsible Authority advises that it does not have sufficient information to enable it to give notice and reconsider its decision as set out in Order 4 above, the Tribunal will order that the decision of the Responsible Authority be set aside and no permit is to issue.  
Providing submissions and associated material before the hearing
9	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 documentation, case law and photographs) to the Tribunal and all parties.  The Tribunal requests that the submitted material be provided in a single PDF, if feasible.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au 
Witness material
10	All expert evidence must be filed and served in accordance with the Tribunal’s Practice Note – PNVCAT2 Expert Evidence. 

Draft conditions for hearing
11	No later than 5 business days before the hearing, the responsible authority must give the Tribunal and all parties a draft of the conditions to which the permit should be subject.
The draft conditions must be provided to the Tribunal in electronic Word format and must be sent to admin@vcat.vic.gov.au
Hearing fees
12	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

Rachel Naylor
Senior Member

reasons
Background
1	Hilary Aberle (the applicant) has lodged an application to review the decision by East Gippsland Shire Council (the council) to issue a Notice of Decision to Grant a Permit for the land at 30 Krammes Road, Nicholson allowing ‘use of the land for Horse Husbandry (Agistment for seven horses)’.
2	These reasons follow on from the reasons given in the Tribunal Order dated 5 September 2024.  
3	The 5 September 2024 reasons identify that the permit application contains insufficient material and information to enable the Tribunal to consider and determine whether the proposal should be approved or refused.  The Tribunal remitted the application back to the council to enable the parties to consider better, more fulsome information about the proposal.  
4	In essence the 5 September 2024 orders require:
i	The respondent permit applicant to lodge sufficient material and information with the Tribunal and the other parties by 4pm on 4 November 2024.
ii	The council to reconsider the application and issue a new decision by 4pm on 6 January 2025; and
iii	The hearing to resume on 26 March 2025.  
5	The 5 September 2024 reasons state at paragraph 17:
This opportunity will only be afforded once in this proceeding.  
6	The 5 September 2024 reasons also state at paragraph 22:
I advised the parties that they may apply for extensions to the timeframes set out in this Order, but any extensions may impact on the scheduled hearing date being able to proceed.  
Respondent permit applicant request for extension of time
7	At 2.56pm on 4 November 2024, Carrie Jones for Janine Wright-Smith (the respondent permit applicant) requested an extension of time ‘to finalise the submission details’.  The request explains a recent accident and subsequent surgery has meant the necessary work has been unable to be completed.  
8	The Tribunal enquired as to the length of extension required and the respondent permit applicant requested a four week extension till 2 December 2024 to complete the submission.  
Council and applicant for review responses
Applicant for review
9	The applicant for review responded expressing concern that the extension request was not served on her.  Reviewing the email sent, the Tribunal notes that this is correct.  The respondent permit applicant has made an error in the email address, using ‘arberle’ rather than ‘aberle’.  This error is unfortunate.  Every effort should be made in the future to check the detail of the respective email addresses.  
10	The applicant for review is concerned at the failure to comply with the 5 September 2024 Order to submit the necessary information as ‘the Respondent has had plenty of time to prepare the required information’.  The applicant for review points out this permit application and the Council’s requests for further information during the permit application process means that the respondent permit applicant has been aware of the information that is necessary for nearly 12 months.  The applicant for review submits this should be more than enough time to prepare the requested information and that this request for additional time should be denied.  
Council
11	Council initially responded asking for a Practice Day hearing to consider the request and submissions that may be presented on this matter.  The council considers a refusal to extend the time means the only reasonable response would be to refuse the application on the basis of insufficient information.  
12	Council explains that it offered to clarify the information required from the respondent permit applicant after the hearing.  It appears there have been no such conversations between the council and the respondent permit applicant.  
13	Council then explained that if an extension of time is granted:
•	A similar extended amount of time should be provided to the council to consider this information; and
•	The hearing should be adjourned to a later date.
14	Council provided a subsequent response noting the applicant for review’s opposition to an extension of time.  Council submits the respondent permit applicant must provide further clarification and a date by which she will file the amended documentation.  If an extension of time is not granted, the council submits a permit should not be granted.  Otherwise, the council requests a further Practice Day hearing to resolve the issue and confirm the future conduct of the matter.  
Tribunal findings
15	Council and the applicant for review have not specifically expressed any concern about the reason given for the extension of time request – namely an accident, subsequent surgery and recovery time.  Such a situation would generally be considered a reasonable reason why an extension of time should be granted.  
16	Having said that, the applicant for review is correct that this permit application has been ongoing for a long time.  The requests for information during the permit application process and within the conditions of the Notice of Decision to grant a permit are well known to the respondent permit applicant.  
17	In case there is any misunderstanding by the respondent permit applicant about the merits of this review application, the reasons in the 5 September 2024 Order clearly state at paragraph 7 that there is insufficient material and information to enable the proposal to be considered and determined.  As such, it is open to the Tribunal to refuse this proposal because of the lack of sufficient material and information.  As this permit application is associated with enforcement/compliance action by the council, on the face of it, it is in all parties’ best interests to see this VCAT review proceeding effectively completed.  What the Tribunal has done in this case is provide the respondent permit applicant with one opportunity in this proceeding to address the deficiencies in the permit application.
18	Given why this request has been made, one extension of time will be granted.  Council is correct that allowing this extension will extend all timeframes.  This is particularly so given the closeness of the Christmas and January holiday period.  In the circumstances, it is unfair for the council and the applicant for review to have to consider any new material and information over this period.  So, all timeframes are being extended, and the resumption of the hearing is adjourned to June 2025.  
19	The applicant for review is correct that allowing this extension further prolongs this proceeding.  The Tribunal is not a holding pen for permit applications, and it is certainly not a holding pen for insufficient permit applications.  The objectives of the planning framework established by the Planning and Environment Act 1987 (Vic) include:
(j) 	to provide an accessible process for just and timely review of decisions without unnecessary formality; 
20	So, this one opportunity in this proceeding to address the deficiencies in the permit application provide for a just and timely review of the council’s decision.  
21	Given the longer passage of time by granting this extension, a further step has been added into the orders (Order 8) contained in this Order.  This will bring this proceeding to a final decision by the Tribunal earlier, if appropriate.  This reinforces the need for the respondent permit applicant to provide sufficient material and information to enable the proposal to be properly considered and determined.  
22	If the council considers it has not received sufficient information to enable it to give notice and reconsider its decision, then it must advise the Tribunal and other parties of this in accordance with Order 4.  This enables the council to consider if the material and information submitted addresses:
•	the further information sought by the Responsible Authority (as set out in paragraphs 7(b) and 7(d) of the reasons contained in the dated 5 September 2024 Order), and 
•	the plan(s) sought by condition 1 of the Notice of Decision to Grant a Permit issued on 30 November 2023.
23	If there is insufficient information, the Tribunal will issue a final order refusing to grant a permit on the basis of insufficient material and information.
24	If the information is sufficient, the process outlined in this Order will continue.  The hearing will resume on 16 June 2025.  

Rachel Naylor
Senior Member

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

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www.vcat.vic.gov.au/afterapplyplanning

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