VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P2050/2019
	
CATCHWORDS	
Section 114 of the Planning and Environment Act 1987 (Vic); Campaspe Planning Scheme; Application for enforcement order; Whether proceedings should be struck out or summarily dismissed.  	

APPLICANTs	Donald Graham McKenzie & Others	
responsible authority	Campaspe Shire Council	
respondents	Kypall Pty Ltd, Jenmar Drive Owners Corporation 	
SUBJECT LAND	1463 McEwan Road and South Boundary Road, Jenmar Drive, Table Drain South Boundary Road
KYABRAM  VIC  3620	
WHERE HELD	Melbourne	
BEFORE	Michelle Blackburn, Member	
HEARING TYPE	Practice Day Hearing	
date of hearing 	28 February 2020	
DATE OF ORDER	27 March 2020	
CITATION	McKenzie v Campaspe SC [2020] VCAT 406  	

Order
Proceeding struck out
1	The proceeding is struck out under section 75(1) Victorian Civil and Administrative Tribunal Act 1998 on the basis that the application is  misconceived.  
2	The hearing scheduled to commence at 10:00am on 9 June 2020 is vacated.  No attendance is required.  
Costs 
3	No orders in respect of costs on the basis of the adjournment of the practice day hearing on 14 February 2020.  
4	Costs are otherwise reserved.  Any application for costs and supporting submissions must be filed with the Tribunal and served on the party against whom costs are sought by 20 April 2020. The application must include the following information:
a	The legislative basis upon which costs are sought.  
b	The amount and details of the costs claimed.
c	The basis on which the costs are calculated (for example, whether on a standard or indemnity basis, and whether on the County Court or Supreme Court scale. Note that under Rule 1.07 of the Victorian Civil and Administrative Rules 2018, the default scale of costs is now on a standard basis on the County Court Scale.)
d	The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Act 1998.
5	Any response to the application for costs must be filed and served by no later than 4 May 2020.  
6	After the dates referred to in the above orders have passed, the Tribunal may decide any application for costs on the papers or list for a hearing if it considers this is appropriate.

Michelle Blackburn 
Member			

Appearances
For applicants	Mr P. Hill, authorised representative	
For responsible authority	Mr A. Fletcher, town planner of council.  	
For Jenmar Drive Owners Corporation  	Ms J. Sharp, barrister, instructed by O’Sullivan Johnson Lawyers	
For Kypall Pty Ltd 	No appearance.	

Reasons
what is this proceeding about? 
1	The applicants have filed an application under section 114 of the Planning and Environment Act 1987 (the Act) in the hope of addressing their concerns about the way that low density residential subdivisions to the south of Kyabram are drained.  
2	These subdivisions have been authorised under various permits issued by Campaspe Shire Council (the council).  They have all been designed to discharge stormwater into a table drain which runs along the southern side of South Boundary Road (the table drain).  Stormwater in the table drain runs from the east to west.  The applicants submit that during a significant rainfall event, the table drain fills up with stormwater from the eastern most subdivision, preventing stormwater discharging from the subdivisions further west along the drain.  The applicants say that this causes the stormwater to ‘back up’ within those western subdivisions causing flooding issues.  Jenmar Drive Owners Corporation (Jenmar) has an interest in common property containing stormwater infrastructure servicing this eastern most subdivision.    
3	A practice day hearing was scheduled on 14 February 2020 with a range of purposes including: 
•	To consider whether the application alleges a contravention that is capable of forming the basis of an application under section 114 of the Planning and Environment Act 1987; and 
•	To consider whether application should be struck out or summarily dismissed on the basis that it is misconceived.  
4	For reasons that I explain later in these reasons, full submissions on these matters was not able to occur at the practice day hearing on the 14 February.  Therefore, a further practice day hearing was scheduled on 28 February.  The purpose of this further practice day hearing had the additional purpose of considering any application for costs relating to the adjournment of the 14 February 2020 practice day hearing.
5	The Tribunal is able, under section 75 of the Victorian Civil and Administrative Act 1987 to strike out or summarily dismiss all or any part of a proceeding which it considers:
•	is frivolous, vexatious, misconceived or lacking in substance; or
•	is otherwise an abuse of process.
6	The general principles to be considered when deciding whether to strike out or summarily dismiss a proceeding using this power are well established. These principles make it clear that it is a power to be exercised with caution, with a ‘very high bar’ needing to be met for a proceeding to be summarily dismissed instead of proceeding to a full hearing.  The proceeding must be obviously unsustainable in fact or law, with the fate of the proceeding not depending on questions of fact that could be established by evidence yet to be tested.  
7	Having considered the relevant regulatory framework, the submissions of the parties and the documents filed with the Tribunal, I have concluded that this proceeding is one which is unsustainable in fact or law.  I have therefore concluded that the proceeding is misconceived and should be struck out.  My detailed reasons for this conclusion follow. 
8	I have also considered whether an order for costs should be made because of the adjournment of the 14 February practice day hearing.  For the reaons I explain below, I have decided costs should not be awarded on the basis of the adjournment.  However, Jenmar has requested that I reserve the question of whether an order for costs (including costs associated with both of the practice day hearings) should be made on a different basis. For reasons explained below, I have reserved costs as requested by Jenmar and made orders in respect of any cost application made.          
Should the proceeding be struck out? 
Legislative basis for making an application under section 114 of the Act     
9	Section 114 of the Act, in essence, allows a person to apply to the Tribunal to make enforcement orders in respect of a use or development of land which has or will contravene the Act.  It says that a person is allowed to make an application to this Tribunal for:  
an enforcement order against any person specified in subsection (3) if a use or development of land contravenes or has contravened, or, unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under section 173.
10	Enforcement orders are only able to be made against people with a property interest in the relevant land or who are responsible for the contravening use or development.  This is made clear by section 114(3) of the Act which says that an enforcement order may be made against one or more of the following persons—
(a)	the owner of the land;
(b)	the occupier of the land;
(c)	any other person who has an interest in the land;
(d)	any other person by whom or on whose behalf the use or development was, is being, or is to be carried out.
Contraventions alleged in the application 
11	The application sets out eight alleged contraventions.  The first seven of these appear to relate to the actions of council.   The eighth appears to relate to the actions of Jenmar.   
12	The application also asks for two enforcement orders to be made.  The first would require the reinstatement of a section of the table drain.  The applicants say that works have occurred to this section of the table drain as a part of a subdivision being developed by Kypall Pty Ltd.  
13	The second enforcement order sought by the applicants, would require stormwater to no longer be pumped into the table drain from the retention basin located on the common property in which Jenmar has an interest.   
Alleged contraventions by council
14	The alleged contraventions by council are quite different to those that can be the subject of an enforcement order application under section 114 of the Act.  
15	The allegations suggest that the council has failed to carry out its statutory role under the Act.  In particular, the application sets out the following alleged contraventions of the council, acting in its statutory role as a responsible authority for the administration and enforcement of the scheme:  
1.	Failures to ensure compliance with planning permit TPA 104/2013
2.	Failures to ensure compliance with planning permit TPA 2005-122
3.	Failure to implement the objects of planning in Victoria contrary to Section 12(1)(a) of the PE Act 
4.	Failure to provide sound strategic and coordinated planning of the use and development of land in its area contrary to Section 12(1)(b) of the PE Act. 
5.	Fail to encourage and promote orderly and proper use and development of land in the area for which it is a planning authority; contrary to Section 12(3)(b) of the PE Act. 
6.	Failure to administer and enforce the Campaspe Planning Scheme contrary to Section 14(a) of the PE Act. 
7.	Failure to comply with the Planning and Environment Act and the Campaspe Shire Planning Scheme contrary to Section 14(b) of the PE Act. 
16	Section 114 of the Act does not allow an application to be made to the Tribunal for an enforcement order against a responsible authority acting in its statutory role.  Therefore, to the extent that the application relates to such matters it is beyond the scope of section 114 of the Act, it is unsustainable in fact or law and it is misconceived.  
17	At the previous practice day hearing on 14 February 2020 I had asked the applicants about this issue.  Further and better particulars filed after this earlier hearing and submissions made on behalf of the applicants at the practice day hearing on 28 February suggested that that orders were now being sought against the council in its capacity as the ‘owner’ of South Boundary Road.  The applicants allege that works had been done by Kypall Pty Ltd to fill in part of the table drain on the southern side of South Boundary Road.  It also alleged that these works were done within the road reserve which is vested in council as the road manager.  
18	The applicants also say that these works are not authorised or regulated by any planning permit.  I agree that this is the case, as the permits authorising the subdivision of the adjoining land relate to the land to be subdivided, not the South Boundary Road road reserve.   While the applicants therefore do not say that these works breached any planning permit, they appeared to suggest that the works breached the Act or scheme as they had been carried out without planning permission.  
19	The first enforcement order sought by the application appears to go to this issue.  The first enforcement order sought by application is: 
1. 	That the responsible authority reinstate the table drain function located on the south side of South Boundary Road, Kybram (adjacent to the Belthorpe Estate entrance) which serves as the legal point of discharge for stormwater runoff from the nearby Kashelmara and Gardadale Estates (and at this time for the illegal discharge of stormwater from the Jenmar Estate). 
20	However, in response to my questions and the submissions of the responsible authority on this point, the applicants appeared to accept that no planning permit is required for the works carried out on the table drain.  
21	The applicants’ apparent acceptance of this was sensible, as it is very clearly the case that no planning permit is required for such drainage works.  This is made clear by clause 62 of the Campaspe Planning Scheme (the scheme) which says that no planning permit is required for buildings and works associated with a minor utility installation.  Minor utility installation is defined by clause 73.03 of the scheme to expressly include the use of land for storm or flood water drains.    There are also a number of other exemptions of clause 62 which may also separately exempt the works, such as exemptions relating to roadworks and works with an estimated cost under $1million carried out by or on behalf of a municipality.  However, it is not necessary for me to consider these given the drainage works are unarguably already exempted as works associated with a minor utility installation.     
22	As no planning permit is required for the works, carrying out those works without any authorising planning permit does not contravene the requirements of the Act or scheme.     
23	In face of this further difficulty to the applicants case, the applicants’ advocate submitted that notwithstanding no permit was required for the filling in of the table drain, and notwithstanding that those works were done on land which was not subject to the Land Subject to Inundation Overlay (LSIO) under the scheme, those works contravened the scheme because they were contrary to the purpose of the LSIO as set out in clause 44.04 of the scheme. 
24	The purpose of the LSIO is not a planning regulation that must be complied with.  There is nothing in the Act which says that a council will be contravening the Act or the scheme if it carries outs works on drainage infrastructure in a manner which is inconsistent with the purpose of the LSIO.  Rather, the purpose of the LSIO is something which may be relevant to a decision maker deciding whether to issue a permit under it.    To suggest otherwise, is to completely misunderstand the planning regulatory framework. Therefore, to the extent that the application seeks to address an alleged non-compliance with the purpose of the LSIO, it does not seek to address a contravention of the Act or the scheme, it is beyond the scope of section 114 of the Act, it is unsustainable in fact or law and it is  misconceived.  
Alleged contraventions by Jenmar
25	The eighth alleged contravention appears to suggest that there has been a breach of the conditions of a planning permit issued in respect of a subdivision which created common property in which Jenmar has an interest as the owners corporation.  This parcel of owners corporation land contains the stormwater retention system for the subdivision.  
26	The eighth alleged contravention is set out in the application for enforcement order as: 
8. 	The non compliance with condition 4 of the Permit TPA 2005-122 is contrary to the objectives of clause 44.04 and clause 13.03-1 of the Campaspe Shire Planning Scheme.  
27	The second enforcement order sought by the application appears to relate to this alleged contravention.  The second enforcement order sought by the application is: 
2.	That stormwater from the detention located within the Jenmar Estate is no longer pumped under pressure into the South Boundary Road table drain but discharged under gravity in accordance with condition 4 of TPA 2005/144.  
28	Planning Permit TPA 2005-122 was issued by the responsible authority on 12 July 2005 (the permit).  It allowed the subdivision of land on the southern side of South Boundary Road to be subdivided into 19 lots.  The drainage infrastructure needed to service those lots was considered by the council as part of the permit process and the council imposed a number of conditions on the permit relating to drainage.  These include: 
3.  	All stormwater runoff must be disposed of to the satisfaction of the responsible authority.  On-site detention of stormwater must be provided to the satisfaction of the Responsible Authority.  
4.  	The owner/applicant must provide for the stormwater drainage in respect of each (lot/dwelling) and all drainage works both within the (subdivision/development) and to an approved point of discharge are to be constructed at full cost to the owner/applicant to the satisfaction of the Responsible Authority.  
12.  	Prior to the issue of a Statement of Compliance all works associated with the hereby permitted subdivision must be completed to the satisfaction of the responsible authority.    
29	The council does not consider there to be any breach of the permit.  It advised me that the subdivision authorised by the permit has been completed, drainage works have been designed and constructed to its satisfaction and a statement of compliance has been issued.   
30	The council took me to stormwater drainage plans including of the stormwater retardation basin.  These plans show a water pump with two outlets, one to the stormwater rising main and one to a raw water main.  This allows the stormwater from the retardation basin to be used as a raw water source as well as discharged by pumping to the council’s drainage infrastructure.  The council indicated that at the time those plans were submitted, council (acting in its role as responsible authority) formed the view that they were to its satisfaction.  The council also indicated that the stormwater infrastructure had been built in accordance with those plans and stormwater is being discharged as envisaged by those plans.  Council advised me that it had verified this in an inspection carried out some years ago.  
31	Jenmar says that given the subdivision has been completed and a statement of compliance has been issued, the permit is now ‘spent’.  However, even if it was not Jenmar says that there is no breach of any condition. 
32	Whether a permit is ‘spent’ is something that has been the subject of a number of decisions of this Tribunal and the Supreme Court.   These decisions indicate that it is generally the case that once subdivision has been effected and new titles issued, the subdivision permit is no longer relevant and of no continuing independent force or effect.  However, as was made clear by the Court of Appeal in Khan v Victorian Civil and Administrative Tribunal [2018] VSC 546 at [120]: 
in each case, the resolution of this issue will turn on the construction of the permit, including any conditions imposed, in the context of the Subdivision Act.  
33	While I consider it likely that the relevant permit conditions are indeed ‘spent’, it is not necessary for me to make a finding on this issue.  This is because even if I assume that the applicants could establish that the permit had some continuing effect in relation to the drainage of the subdivided land, I have concluded that there are no facts which could be established by the applicants which could lead to the conclusion that there is any breach of the conditions of the permit relating to drainage.    
34	Condition 4 requires all stormwater drainage works to be constructed at full cost to the owner/applicant to the satisfaction of the responsible authority.  As I have explained, the council (in its role as responsible authority) has confirmed that this has indeed occurred to its satisfaction. That this has occurred is further evidenced by the issue of a statement of compliance, which condition 12 of the permit says is only to issue all works had been completed.  Therefore, there can be no doubt that the stormwater drainage works had been constructed to the satisfaction of the responsible authority and, therefore, there can be no breach of condition 4.  
35	While the application does not contain any alleged non-compliance with condition 3 of the permit, the situation is similar.  Condition 3 requires stormwater to be disposed of and detained on-site to the satisfaction of the responsible authority, and the council (acting as responsible authority) has confirmed its satisfaction.  
36	The situation before me in this case is similar to the situation before the Court of Appeal in Khan.  I have reached a similar conclusion to that expressed by the Court in paragraph 102 of its decision in Khan in that I also find that even if it could be shown that stormwater was not disposed of or detained by drainage infrastructure in the manner stipulated on the stormwater documentation that the responsible authority has confirmed is to its satisfaction, this would not avail the applicants.  This is because the obligation is to do no more than undertake stormwater management works and dispose of stormwater to the satisfaction of the council, and council has confirmed that it is so satisfied.   
37	The applicants have indicated that they do not agree with the stormwater drainage works that the council has indicated it is satisfied with.  The applicants have indicated that they think the Jenmar subdivision should have directed its drainage to a different discharge point rather than being allowed to pump stormwater to the drain along South Boundary Road.  They also have concerns about the rate at which stormwater is discharged into that drain.  However, enforcement proceedings do not provide a mechanism for challenging the decisions council has made on those matters.  
38	Therefore, to the extent that the application seeks to address an alleged contravention of condition 4 of the permit relating to stormwater drainage, that allegation is unsustainable in fact or law and is misconceived.    
Conclusion
39	It follows from the above that I have concluded that the application should be struck out on the basis that it is misconceived.  In essence this is because:  
•	The application in part, seeks an enforcement order to control the manner in which the council carries out its statutory role under planning law as a responsible authority.  This is not something which an enforcement order can do.  
•	The application also appears to seek an enforcement order against the council or Kypall Pty Ltd for an alleged contravention of the scheme  arising from works carried out on drainage infrastructure within the road reserve managed by council.  However, those works did not require any planning permission and were, therefore, not subject to planning regulation.  The aspect of the scheme that the applicants allege in submissions to the Tribunal to have been contravened does not impose any requirement which must be complied with and therefore, is not a contravention and is not capable of enforcement under section 114 of the Act.
•	The application also appears to seek an enforcement order against Jenmar for non-compliance with the conditions of a permit authorising the subdivision of land.   Generally, conditions of a subdivision permit are ‘spent’ upon the completion of the subdivision and I consider this likely to be the case in this instance.  However, even if the applicants were able to establish that the conditions on the subdivision permit imposed ongoing obligations on Jenmar, there can be no facts adduced which could establish that those conditions have been contravened.  The permit conditions relating to stormwater and drainage only require things to be done ‘to the satisfaction of the responsible authority’.  The council acting in its capacity as responsible authority has clearly indicated that it is so satisfied, including by issuing a statement of compliance for the subdivision. Therefore, this alleged contravention is unsustainable in fact or in law.         
Should costs be awarded in respect of the adjournment of the Practice Day Hearing on 14 February?  
40	Consistent with Order 13 of the Tribunal’s orders in the proceeding dated 18 December 2019, a detailed schedule of hearing times was published the day prior to the practice day hearing on 14 February 2020.  This schedule provided that the hearing time was 11:00am.  The proceeding was the only matter listed before me at this time.  It was listed for a duration of 30 minutes.
41	The applicants’ representative was not present in the hearing room at 11:00am and no communication had been received by the Tribunal explaining his absence.  After waiting some time for the applicants’ representative to attend, I commenced the hearing at around 11:20am.  At the commencement of the hearing I made enquiries of the other parties and of one of the joint applicants who was present, as to the whereabouts of the applicants’ representative.  I was advised that the applicants’ representative was in another Tribunal hearing scheduled to run from 10:00am until 1:00pm that morning.  
42	After some further discussion on the matter, including confirming that the joint applicant present was not in a position to make submissions in lieu of his representative, I stood the matter down to enable the joint applicant to ascertain the availability of his representative.   
43	I recommenced the hearing at around 11:40am.  At this time the applicants’ representative was in attendance.  He advised that the other proceeding he was involved in had been stood down until 12:00pm to enable him to attend the practice day hearing before me.  
44	I attempted in that time to better understand the basis of the application and to hear submissions on whether the proceeding should be struck out.  However, when it became clear that there would not be enough time for submissions on this issue to be fully made prior to 12:00pm, I adjourned the hearing to a date agreed to by the parties.  I also made procedural orders clarifying those who were joint applicants, requiring further and better particulars to be filed by applicants in respect of aspects of its application prior to the re-scheduled practice day hearing, and requiring any application for costs relating to the adjournment of the practice day hearing to be filed prior to the re-scheduled practice day hearing.    
45	Both council and Jenmar filed an application for costs relating to the adjournment of the practice day hearing.
46	Council’s application related to costs incurred by the attendance of one if its employees attending the hearing.    As I explained to council at the practice day hearing, costs associated with a parties time spent in relation to the proceeding are not the type of costs that can be the subject of a costs order. For this reason, I dismiss the application by council in respect of costs. 
47	Jenmar has also filed an application for its legal costs relating to the adjournment of the practice day hearing.  It has sought those costs against either the applicants or Mr Hill.  It says that as a result of Mr Hill ‘double booking’ his time, the hearing on the question of whether the matter should be struck out could not occur on 14 February 2020 and its legal counsel  needed to attend a further practice day hearing on 28 February 2020.  
48	For the following reasons, I have decided that costs should not be awarded against Mr Hill or the applicants on the basis of the adjournment of the hearing on 14 February 2020: 
•	I agree that Mr Hill did ‘double book’ himself and I do not find any of the explanations put forward by Mr Hill to acceptably excuse his ‘double booking’, particularly as he is a paid representative who asserts familiarity with Tribunal processes and should well know that a Tribunal hearing remains as listed unless the Tribunal otherwise advises.
•	However, Mr Hill did, in the end, attend the hearing on 14 February 2020 and useful orders, including an order for further and better particulars, were made as a consequence of this hearing being able to be held.  
•	While there was not sufficient time at the hearing on 14 February 2020 for full submissions on the question of whether the matter should be struck out, this was not primarily a result of Mr Hill’s ‘double booking’.  As became clear at the Practice Day Hearing on 28 February 2020, more than an hour was required for full submissions on the question of whether the proceeding should be struck out.  This was not the result of particularly lengthy submissions by one party.  
•	An additional hearing, in addition to that scheduled for 30 minutes on 14 February 2020, would therefore have been likely to have been necessary in order to provide for a process of further and better particulars and also to hear the full submissions of all of the parties on the question of whether the proceeding should be struck out.  
49	While I have not found the adjournment of the practice day hearing on 14 February 2020 to be a basis on which to order costs, Jenmar have requested that I reserve the question of whether costs should be awarded on a different basis.  There are many different reasons why costs may be awarded, with an adjournment of a proceeding being only one of the bases upon which costs may be sought.  Therefore, I consider it appropriate to reserve costs in the manner sought by Jenmar and allow parties to make an application for costs associated with the proceeding as a whole (including costs associated with attending both practice day hearings) on a different basis.  I have made orders which set out a process for receiving and determining any such costs application.   

Michelle Blackburn  
Member