VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1960/2020
Permit Application no. M/2019/632	
CATCHWORDS	

Applicant	S T Architects Pty Ltd	

Responsible Authority	Maroondah City Council	
Respondent	Steven Cannizzo	
Referral Authority	Country Fire Authority	
SUBJECT LAND	17 Little John Road
WARRANWOOD  VIC  3134	
HEARING TYPE	Hearing	
DATE OF HEARING	26 July 2021	
DATE OF ORDER	26 July 2021	
CITATION	S T Architects Pty Ltd v Maroondah CC [2021] VCAT 831	
Order
1	The Tribunal finds that a Cultural Heritage Management Plan is required under the Aboriginal Heritage Act 2006 in respect of the proposed activity.
2	The application for review under s 79 of the Planning and Environment Act 1987 is dismissed for want of jurisdiction, and on the basis that it is misconceived, having regard to s 52(4) of the Aboriginal Heritage Act 2006.
3	For the avoidance of doubt, the dismissal of the application for review for want of jurisdiction and on the basis that it is misconceived means that permit application M/2019/632 remains to be decided by the responsible authority, after a Cultural Heritage Management Plan has been prepared, and as if the purported application for review under s 79 of the Planning and Environment Act 1987 had not been made.
4	The hearing listed to continue on Tuesday 27 July 2021 is vacated.  

Laurie Hewet
Senior Member			

Appearances
For applicant	Ms R Wilson, town planner and solicitor	
For responsible authority	Ms I Plakidis, town planner 	
For referral authority	No appearance	
For respondent	Ms S Cannizzo appeared on his own behalf	

Reasons

1	This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for the construction of three dwellings at 17 Little John Road, Warranwood.
2	By correspondence received on 20 July 2021 the responsible authority advised the Tribunal and the parties that it had confirmed that the review site is included in an area of Aboriginal Cultural Heritage Sensitivity and the proposal is not an exempt activity under the Aboriginal Heritage Regulations 2018.  
3	The responsible authority advised that in its view a Cultural Heritage Management Plan (CHMP) is required.  
4	By correspondence dated 22 July 2021 the Applicant for Review advised that having regard to the decision of Deputy President Dwyer in Stanley Pastoral Pty Ltd v Indigo Shire Council & Ors  the Tribunal is unable to entertain a section 79 application in circumstances where a CHMP is required.  
5	The Applicant for Review requested the Tribunal to dismiss the Application for Review for want of jurisdiction.  
6	At the start of the hearing I confirmed with the parties that there is no dispute between them that a CHMP is required.  I also confirmed with the responsible authority and Mr Cannizzo that they consented to the Applicant for Review’s request for the application to be dismissed for want of jurisdiction.
7	I advised the parties that I would dismiss the application for review for want of jurisdiction.
8	I was also advised that the responsible authority had inadvertently issued a Notice of Decision to Refuse to Grant a Permit after the Applicant for Review had filed the Application for Review under section 79 of the Planning and Environment Act 1987.  
9	The responsible authority acknowledged that the Notice of Decision to Refuse to Grant a Permit is invalid and a Declaration to that effect should be issued by the Tribunal under section 149B of the Planning and Environment Act 1987.  
10	The Tribunal’s power under this section is exercisable only be a presidential member of the Tribunal.  
11	In any event there is not currently an application before the Tribunal made under section 149B.  
12	I advised the parties that a separate application for a declaration in relation to the responsible authority’s issue of the Notice of Decision to Refuse to Grant a Permit will need to be made.  Such an application can be brought by any person.   

Laurie Hewet
Senior Member