VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No.  P2106/2018
	
APPLICANT	Alexander Philip O'Toole 
(aka Stephen Boyd-Squires)	
responsible authority	Yarra Ranges Shire Council	
reFERRAL AUTHORITIES	Country Fire Authority 
Vic Roads - Metropolitan South East Region	
SUBJECT LAND	1854  Warburton-Woods Point Road
MCMAHONS CREEK  VIC  3799	
WHERE HELD	Melbourne	
BEFORE	Mark Dwyer, Deputy President	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	13 March 2020	
DATE OF ORDER	13 March 2020	
CITATION	O’Toole v Yarra Ranges SC [2020] VCAT 335	

Order
1	The application for a stay under section 149 of the Victorian Civil and Administrative Act 1998 is refused. 

Mark Dwyer
Deputy President			

Appearances
For applicant	In person	
For responsible authority	David Ramsey, solicitor, of Russell Kennedy	

Reasons
1	The applicant had applied for a planning permit for a dwelling and associated works on land at McMahons Creek.  In this proceeding, in a decision in May 2019 (reported as O’Toole v Yarra Ranges SC [2019] VCAT 810), Member Blackburn affirmed the decision of the responsible authority to refuse a permit, and ordered that no permit is granted. 
2	The applicant has belatedly sought to appeal Member Blackburn’s decision in the Supreme Court.
3	Under section 149 of the Victorian Civil and Administrative Act 1998, the applicant now seeks a stay of the operation of the VCAT order pending the outcome of that appeal.
4	As indicated at the Practice Day hearing, I have refused to grant a stay. In essence:
•	A stay is unnecessary. The applicant will derive no benefit from a stay being granted, and is not prejudiced by the refusal of a stay, as the decision under review involved the refusal of the permit and affirmed the decision of the responsible authority, which would therefore still apply.
•	It is inappropriate for VCAT to exercise a discretion when it is unnecessary to do so.
•	The responsible authority has indicated that the Supreme Court appeal is the matter of a directions hearing in the court on Wednesday 18 March 2020 (i.e. in a few day’s time), when summary dismissal is being sought. Even if the matter is not dismissed, the Court would be well-placed to itself consider the appropriateness of a stay at that time, and has power to grant a stay.
5	At the practice day hearing, the applicant sought to raise a number of other issues about the proceeding and Member Blackburn’s decision. With Member Blackburn having made a final decision, VCAT is functus officio and unable to re-open or reconsider any aspects of the decision with which the applicant disagrees. At most, they are matters for the appeal. 
6	To the extent one of those matters concern is the potential for existing use rights, VCAT has assisted the applicant by indicating that there are other mechanisms through which that issue can be raised, including through a separate application to VCAT. They are not matters that can be raised in this proceeding which, subject to appeal, is now at an end.

Mark Dwyer
Deputy President