VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P422/2022
Permit Application no. PLA21/0138	
CATCHWORDS	
Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); Application for review under section 82(1) of the Planning and Environment Act 1987 (Vic).	

Applicant	George Lakrindis	

Responsible Authority	Manningham City Council	
Respondent	Manningham Property Pty Ltd	
SUBJECT LAND	330 Manningham Road
DONCASTER  VIC  3108	
HEARING TYPE	Practice Day Hearing 	
DATE OF HEARING	6 May 2022	
DATE OF Interim ORDER	9 May 2022	
Date of Order	31 May 2022	
CITATION	Lakrindis v Manningham CC [2022] VCAT 612   	

Order
1	Pursuant to section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the following grounds of review relied upon by the applicant based on the following issues are struck out - 
•	Reduction in visitors parking spaces leading to street parking which is dangerous.
•	Dividing fence between the land and the applicant’s land not built to the existing plan.
•	Treatment of windows screening not installed as required under the original permit.
•	Access to roof should not be permitted.
•	PFAS contamination to the applicant’s land. 

Picha Djohan
Member	

Appearances
For applicant	In person
	
For responsible authority	Mr P Doyle, solicitor, TP Legal.
	
For respondent	Mr J Joyner, town planner, Melbourne Planning Outcomes.

Reasons
Purpose of hearing
1	On 21 April 2022, the Tribunal ordered (amongst other things) that this proceeding, together with proceeding P377/2022 be scheduled for a practice day hearing for the following purpose – 
•	To consider the relevance of grounds relied on in proceedings P377/2022 and P422/2022 given the planning permissions sought and the planning controls that apply, and if none are relevant, to consider whether the application should be struck out or summarily dismissed;
•	To consider whether proceeding P377/2022 and P422/2022 should be heard and determined together;
•	To give directions about the future conduct of the proceeding, this may include a consideration of dates, duration, compulsory conference and/or venue.
nature of the proceeding
2	This proceeding was commenced by the applicant under s.82(1) of the Planning and Environment Act 1987 (Vic) (the Act) seeking review of the decision by Manningham City Council (Council) dated 17 March 2022 to grant an amended permit to the respondent in respect of development situated at 330 Manningham Road, Doncaster (the land).
3	The applicant resides on premises adjoining the land. 
4	The grounds of review relied upon by the applicant in his application for review are as follows – 

5	On 29 April 2022, the applicant provided by way of submission for this practice day hearing, two emails containing 7 photographs and accompanying descriptions. I consider the contents of these emails later in the reasons.
6	Following the practice day hearing on 6 May 2022, I became aware that the applicant’s submission of 29 April 2022 to the Tribunal was not copied to the respondent or Council. As a result, on 9 May 2022 I made orders permitting the respondent and Council to provide further written submissions addressing the applicant’s submissions of 29 April 2022 and providing the applicant an opportunity to provide a submission in response. 
7	On 16 May 2022, Council informed the Tribunal that it had received the email from the applicant dated 29 April 2022 containing ‘Exhibits 1-6’ and had no further submission to make in respect of those matters. Council also informed the Tribunal that it had not received the applicant’s email of 29 April 2022 containing ‘Exhibit 7’ and provided its observations on the content of ‘Exhibit 7’.
8	On 17 May 2022, the respondent lodged with the Tribunal a further written submission.
9	On 25 May 2022, the applicant lodged with the Tribunal a reply submission. 
10	In making my determination, I have had regard to all the submissions from all the parties.
The permit application
11	The permit application the subject of the decision under review is one that was made by the respondent under s.72 of the Act to amend an existing permit - Planning Permit PL15/025924 issued on 7 July 2017 (the Permit). 
12	The Permit was issued for the construction of a four-storey apartment building (comprising 40 dwellings) with basement car parking and the creation of alteration of access to a road in Road Zone, Category 1. The original permissions required under the Manningham Planning Scheme are not specified in the Permit.
13	The land is included in the Residential Growth Zone – Schedule 2 – Residential Areas Along Main Roads (RGZ2). A permit is required under clause 32.07-5 for the construction of two or more dwellings on a lot. Review and notice rights apply for permit applications required under clause 32.07-5.
14	The land is also affected by the Design and Development Overlay - Schedule 8 – Residential Areas Surrounding Activity Centres and Along Main Roads (DDO8). A permit is required under clause 43.02-2 for the construction of a building or construction or carrying out of works unless a schedule to the overlay specifies a permit is not required. The relevant schedule does not specify that a permit is not required for any buildings and works. Review and notice rights apply for permit applications required under clause 43.02-5 and DDO8. 
15	The history of previous amendments to the Permit are described in the ‘Delegation Report: Section 72 Amendment’ dated 16 March 2022 provided as part of Council’s submission for this hearing (the delegate’s report). The previous amendments to the Permit are – 
a.	PL15/025924.01 – Section 72 amendment to increase the number of apartments. Plans were not endorsed prior to or following this amendment, and a secondary consent (see below) was subsequently submitted, after which plans were endorsed to show the changes and to meet the conditions of the amended permit.
b.	Secondary consent August 2018 – plan changes as follows:
i.	Relocation of the storage areas to a dedicated space within the lower basement floor, except for apartments 2.07-2.11.
ii.	Relocation of the bicycle spaces to a dedicated space within the lower basement floor.
iii.	Relocation of the rainwater tank to the lower basement. Capacity remains at 21,000 litres.
iv.	Above bonnet storage space for apartments 2.07-2.11.
v.	Ramp between basement levels amended to a gradient of 1:8.
vi.	What are formerly spaces 52 and 53 for Apartments G.03 and G.10. This has increased the total number of car spaces from 59 to 61. 
vii.	Lift enlarged with access provided on both sides (required by Condition 1.9 of the amended Permit).
viii.	Minor internal changes.
c.	PLA20/0127 – Section 72 (June 2021) by changes to window screening (from external screens to fixed obscure glazing), rearrangement of entry paths and landscaping in the front setbacks, changes to external materials to increase contrast, internal layout changes including to the lift core and central stairwell, car parking layout/allocation changes, minor level changes including a 0.3m increase to Apartment G.05, deletion of Apartment G.08 pergola due to increased easement location, deletion of the entry frame over the driveway ramp, and extension of Bedroom 1 in apartments 1.01, 1.12, 2.01 and 2.12 towards the street to ‘fill-in’ the street facing framing feature.
16	A copy of the relevant application is not in the materials of the Tribunal; however the delegate’s report contains the following description of the amendments to the endorsed plans under the Permit – 
Basement levels 1 and 2
•	Rearrangement of car parking location/allocation.
•	Rearrangement of storage allocations.
•	Reduction of total visitor parking from 9 spaces to 4.
Ground level plan
•	Relocation of mail boxes.
•	Ground level drainage protection works along the southern boundary in the form of a 150mm scoria barrier between the timber formwork.
•	Street-facing ensuite window of apartments 1-3 changed to clear glazed from obscure.
First floor plan
•	Fixed obscure glazing to south-facing Bed 2 windows (adjacent to balconies) in apartment 201, 203, 205 and 304, in lieu of an external slat screen.
Second floor plan
•	South facing windows of apartment 408 provided with external slat screens, in lieu of obscure glazing to 1.7m.
•	Fixed obscure glazing to south-facing Bed 2 windows (adjacent to balconies) in apartments 405, 403, 401 and 504 in lieu of an external slat screen.
•	Extension of the west-facing balcony screen to apartment 503 so that it covers the entire western edge of the balcony.
Third floor plan
•	Apartments 602 and 701 extent of planter boxes along the street-facing edge of their balconies reduced.
Elevations
•	Side and rear-facing balcony screening (excluding the third floor balconies) updated to incorporate an additional perforated panel, and to provide slats in lieu of angled louvres.
•	Inclusion of solid grey sections to the south facing balcony balustrades, at the junction of  apartment 401 & 403 balconies, and the junction of apartment 503 and 504 balconies.
•	Change to clear glazed balcony balustrades for all street-facing balconies, in lieu of obscure glazing.
•	Addition of aluminium screens to cover the AC units on street-facing balconies, finished in silver of ‘surfmist’ (beige).
•	Dividing screens between street-facing balconies changed to a combination of full height solid partitions walls, and 1.74 high obscure glazed screens, in lieu of screens only, with a full height column at the balcony edge.
•	Front fencing to be aluminium slats in lieu of timber slats. 
•	Clarification of retaining wall details on southern elevation – to show RWs between the SPOS areas only, and not beneath the fence on the southern boundary.
17	In the absence of any argument to the contrary, I adopt Council’s description above as to the amendments sought by the respondent to the endorsed plans.
the respondent’s application
18	The respondent has applied for the review application to be summarily dismissed pursuant to s.75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act) on the ground that the application is misconceived for the following reasons – 
•	The sole ground of objection to the grant of the amended permit relates to allegations of contamination arising from the construction of the development which is a matter outside the relevant consideration raised by the amendment application. If the applicant is of the view that there has been a breach of the Environmental Protection Act 2017 (Vic), the appropriate course of action for the applicant is to seek remedy of that breach pursuant to that Act.
•	The other matters referred to in the review application do not amount to grounds of review but merely comments made by the applicant as to his expectations of the matters to be considered by Council in determining the amendment application.
•	The matters relevant to consideration of the amendment application are confined by the nature of the amendments sought to the endorsed plans and do not require a revisiting of the overall merits of the development. 
•	The lodgement of an application to amend an existing permit does not confer an opportunity to Council or the Tribunal to reconsider matters that may be relevant to the merits of the grant of the original permit.
19	Council supports the respondent in its application for summary dismissal.
The tribunal’s power of summary dismissal
20	Section 75(1) of the 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.
	
21	In Axicom Pty Ltd v Melton CC (Red Dot) [2022] VCAT 190 (Axicom), the Tribunal helpfully set out a condensed version of the principles summarised in the decision of Owners Corporate No. 1 PS53762N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1683 by Justice Garde. I adopt that summary – 
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 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 proceeding bears the persuasive burden of showing ‘that the complaint is undoubtedly hopeless’.
22	I agree with the Tribunal that it may be that an application for review under s.82 of the Act, when considered objectively at a summary level, is found to be devoid of planning merit and such an application equates to a proceeding that is ‘misconceived’ or ‘lacking in substance’ for the purposes of s.75 of the VCAT Act.
23	Whether an application for review brought by an objector is devoid of planning merits requires consideration of the relevant statutory provisions that govern the making of applications for review by objectors in s.82 of the Act and any limits or constraints on the determination of the relevant planning application under the Act. In this case, as the permit application is one made under s.72 of the Act and has been approved by Council and that decision is now under review, the requirements of s.76C and s.84B of the Act are of most direct relevance.
review of decision to amend a Permit
24	As observed by Niall J in Mondib Group Pty Ltd v Monee Valley City Council [2021] VSC 722 (Mondib), ‘in broad terms the process for considering an application for an amendment to a permit mirrors that which application as if it were an application for a permit. In other words, an application for amendment is treated as if it were an application for a permit. It involves a formal application, referral and notice, the prospect of third party objections, and rights of review.”
25	Thus, the following provisions of the Act are respectively relevant for the application and assessment stage – 
a.	the reference in s.47(1) to ‘the application for the permit’ is to be read as a ‘the application for the amendment to the permit’.
b.	the reference in s.60(1) to ‘an application’ is to include an application under s.72 to amend an existing permit.
26	Section 76C of the Act provides – 
76C.	Review of decision on amendment
		Division 2 (with any necessary changes) applies to an application for an amendment of a permit and an amendment of a permit as if – 
(a)	a reference to an application for a permit were a reference to a reference to an application for the amendment; and 
(b)	a reference to the grant of a permit were a reference to the grant of the amendment; and 
(c)	a reference to the issue of a permit were a reference to the issue of an amended permit.
27	As a consequence of s.76C, Division 2 of Part 4 of the Act applies to an application for an amendment of a permit, with s.84B(1) directing what matters, as relevant, that the Tribunal must take into account when determining such an application.
28	As in the case of an application for a permit, the contents of an application for amendment to a permit are fundamental to the identification of the relevant matters under the relevant planning scheme and the Act that must be taken into consideration, or may be taken into consideration, when determining the application. It goes without saying that the matters relevant to the assessment of an application to amend a permit are those matters raised by the subject matter of the proposed amendments. 
29	In Mondib, Niall J examined the legislative history of s.72 and noted that part of the second reading speech in support of the Bill that introduced s.72 at paragraph 39 – 
In relation to the changes to s 72, the Minister said:

Currently, responsible authorities can make only ‘minor’ changes to planning permits. Many responsible authorities are reluctant to classify a change to a permit as ‘minor’. The alternative is to require a new application to be submitted and the whole proposal is reassessed. This would be costly and inefficient and would open the whole application to reassessment. 
The bill allows an application to request modification to a permit, including any associated plans, without being unnecessarily restricted to ‘minor’ modifications. The existing provisions in relation to minor amendments are repealed.
The responsible authority will now simply need to consider whether material detriment is likely to be caused by the proposed modifications. Notification will be given in the normal way if the modifications may cause material detriment. The tests for notifications will be the same as for any permit; however, only the effect of the proposed modification will be assessed, so that the whole development is not opened to reassessment.
30	It is clear that the legislative intent for s.72 was to limit assessment to the proposed amendments or modifications, and not to revisit the assessment of the whole development or proposal. This intention is apparent in the following limitation imposed on a decision maker under s.73(2) – 
If the responsible authority decides to grant an amendment to a permit subject to conditions, the conditions must relate to the amendment to the permit.
Consideration
31	The review application together with the applicant’s submissions opposes the grant of an amended permit on the following grounds – 
•	Reduction in visitors parking spaces leading to street parking which is dangerous.
•	Dividing fence between the land and the applicant’s land not built to the existing plan.
•	Treatment of windows screening not installed as required under the original permit.
•	Screening on balconies should be angled.
•	Access to roof should not be permitted.
•	PFAS contamination to the applicant’s land. 
Car parking
32	The endorsed plans show that nine spaces are provided for visitors.
33	The permit application seeks to amend the endorsed plans to show four spaces to be provided for visitors.
34	The land is located within the Principal Public Transport Network Buffer and a permit is triggered for car parking for dwellings (calculated on the number of bedrooms to each dwelling). 
35	Importantly, on site visitor car parking is not required under clause 52.06 for the development on the land.
36	One of the applicant’s grounds of opposition to the amendment of the Permit is based on the reduction of visitor car parking. Given that the scheme does not require any visitor car parking spaces for the development on the land, this ground is bound to fail. This ground of opposition to the amendment application is struck out.
Dividing Fence
37	The applicant opposes the amendment application because he says that damage has been caused to the applicant’s property by the respondent’s builder not building the fence “to the regulation and to the agreement”.
38	It is not clear what the applicant means by ‘the regulation’ or ‘the agreement’. The applicant has not directed me to any specific legislative provision or agreement. The only applicable existing document in the present context is the Permit (as amended) and I have had regard to its contents.
39	The amendment application does not seek to amend the fence shown on the endorsed plans under the Permit. Therefore, this ground of opposition is not responsive to the amendment application and is struck out.
Access to the roof of the development
40	The applicant opposes the amendment application because he says that the persons can access the roof of the development and as result overlook his property. He says that access to the roof is made possible because there are “no screens as per the regulations and agreement”.
41	Again, the applicant’s complaint is one that does not respond to any of the changes to the development sought under the amendment application. Therefore, this ground of opposition is not responsive to the amendment application and is struck out.
‘PFAS contamination
42	The applicant alleges that his property has been contaminated by PFAS chemicals (poly-fluoroalkyl substances) and he is currently awaiting results from the Environmental Protection Agency on this issue. This is not a matter that arises from the amendment application and is struck out.
Window treatment
43	The applicant says he was assured that windows in the development facing his property would be 75 per cent covered with screens to ensure his privacy. He acknowledges that Council approved a change to the treatment of the relevant windows to allow for obscure glass to be used. He also complains that the windows open and therefore do not prevent overlooking to his property.
44	The change to the window treatments referred to by the applicant were the subject of an earlier amendment application (PLA20/2017) that was approved by Council. Council’s decision to approve that earlier amendment application is not, nor can it be, the subject of the review application now before the Tribunal. This ground of opposition is also struck out.
45	The applicant also draws attention to a ground floor level west facing window that is clear glazed. One of the photographs relied upon by the applicant shows a person clearly visible through one of that window. The photograph is taken from an upper storey of the applicant’s residence. It demonstrates that the applicant can overlook into the internal private areas of the development. It does not, however demonstrate that the occupants of that room are able to overlook the private internal areas of the applicant’s residence. In any event, the clear glazing treatment of the window shown in the photograph complies with the Permit. This ground of opposition is struck out.
Angled slats for balcony screen
46	The endorsed plans show angled louvre screens to a height of 1.7 metres above the obscure glazed balcony balustrades. This treatment applies to the balcony in the development facing the applicant’s property.
47	The respondent acknowledges that the screens installed on the balconies within the development do not confirm to the requirements of the endorsed plans and the Permit because the balcony screens do not have angled louvres but rather horizontal louvres. One of the changes proposed under the amendment application is the application of a further treatment to the balcony screens to limit downward views.
48	The review application states in part that “Slats on balcony should be angled”. While this ground is rather perfunctory, it does respond to a change proposed under the amendment application and may be relied upon by the applicant in this proceeding.
Conclusion
49	For the reasons given above, all the grounds relied upon by the applicant in his review application and submissions to date in this proceeding are struck out, except for the ground relating to the change to the louvres used in the screens on the balconies in the development.
50	For the avoidance of doubt, the applicant is not permitted at any future hearing in this proceeding to advance any of the grounds that have been struck out above.
51	As a result of my determination, procedural orders will be issued in the coming days setting out the further requirements and timetable for preparation for a compulsory conference and final hearing.

Picha Djohan
Member