VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No P311/2022
Permit Application no.YR-2014/1199/2 	

Applicant 	Healesville Leisure and Tourism Holdings Pty Ltd	
Responsible authority	Yarra Ranges Shire Council	

SUBJECT LAND	17-25 Maroondah Highway
HEALESVILLE VIC 3777	

HEARING TYPE	Practice Day Hearing 	

DATE OF HEARING	10 June 2022	

DATE OF ORDER	17 June 2022	
CITATION	Healesville Leisure and Tourism Holdings Pty Ltd v Yarra Ranges SC [2022] VCAT 674	

Order
1	The hearing scheduled at 10.00 am on 8, 9 and 12 December 2022 is vacated.  No attendance is required.
2	Under s 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998, consideration of application to amend permit YR-2014/1199/2 is set aside and is remitted to the responsible authority for re-consideration in accordance with the following  recommendation:
a.	Application to amend permit YR-2014/1199/2 is to be determined in accordance with the relevant provisions of the Planning and Environment Act 1987 and is to be based upon the further information required by the responsible authority (including the further information requested by the responsible authority in its letter to Ask Planning Services dated 2 August 2021)

Juliette Halliday
Member			

Appearances
For Healesville Leisure and Tourism Holdings Pty Ltd	Luke English, lawyer DSA Law 	
For Yarra Ranges Shire Council	Simon Ilsley, Team Leader, Planning

  Reasons
Introduction
1	The purposes of the practice day hearing held on 10 June 2022 are:
a.	to give directions about the future conduct of the proceeding;
b.	to consider whether the application to amend planning permit YR-2014/1199/2 has been refused by the council; and
c.	to consider whether this proceeding should be heard and determined together with P589/2021.
2	On 25 May 2022 the Council sought a practice day hearing seeking orders that application P311/2022 be dismissed on the basis that it is a misuse of the Tribunal process because it is not appropriate for the Tribunal to consider this vague and incomplete application.
3	Application P311/2022 is an application under s 77 of the Planning and Environment Act 1987 (PE Act) for review of a decision to refuse to amend planning permit YR2014/1199. The hearing of this matter was set down for 8, 9 and 12 December 2022.
4	Application P589/2021 is an enforcement order application made by the Yarra Ranges Shire Council under s 114 of the PE Act against Healesville Leisure and Tourism Holdings Pty Ltd and PPH Healesville Pty Ltd. In that application it is alleged that there have been earthworks which have damaged trees in breach of planning permit YR2014/1199 and a s 173 agreement (amongst other things). The hearing of that matter is set down for 15, 16, 17, 18, 22 and 23 November 2022.
Background
5	Planning permit YR-2014/1199 (Permit) was issued by the Yarra Ranges Shire Council on 16 August 2016 with respect to the land at 19-25 Maroondah Highway, Healesville and allows the use and development of the land for:
•	hotel (including epicurean centre and function centre);
•	market;
•	restricted retail premises;
•	service station;
•	take away food premises; and
•	convenience restaurant; 
•	the sale of liquor (including packaged liquor) for consumption on and off the premises;
•	alteration and construction of access to a road in a Road Zone Category One; 
•	removal of native vegetation (including removal of vegetation in the Road Reserve); 
•	a reduction in the car parking requirement for a market; 
•	a reduction in the bicycle parking requirement for convenience restaurant and take away food premises; and 
•	erection and display of floodlit business identification signage.
6	I understand that the Permit has not expired as it has been extended by the responsible authority.
7	On 10 June 2021 an application to amend permit YR-2014/1199/2 was lodged with the responsible authority under s 72 of the PE Act for ‘removing conditions relating to retention of trees/vegetation and amending endorsed plans’. (Application to Amend). The Application to Amend was made by a town planner who represented the applicant at the time the Application to Amend was made. The letter submitted with the Application to Amend stated that further information was to be provided including a survey plan to show trees removed during earthworks; an arborist’s report and a report regarding native vegetation.
8	On 2 August 2021 the responsible authority wrote to the town planners representing the applicant requesting further information regarding a number of matters, including:
a.	A tree removal plan (showing trees to be removed);
b.	Updated Construction Management Plan (updating trees to be removed);
c.	Landscape plan showing retaining walls/extent of cut and fill batters/trees to be retained and proposed landscaping works;
d.	A survey plan showing levels and information about trees;
e.	A response to clause 52.17;
f.	An arborist’s assessment; and
g.	Details of replacement planting. 
9	The letter from the responsible authority dated 2 August 2021 reads as an attempt to obtain information from the applicant to enable the responsible authority to assess the Application to Amend. 
10	Despite follow up correspondence dated 10 September 2021 from the responsible authority seeking an update on the request for further information, there was no response to the request for further information from the applicant.
11	On 17 January 2022 the responsible authority wrote a letter to the applicant (Letter) stating that ‘…it is recommended that the request for amended plans to be approved under secondary consent be refused on the following grounds:
a.	Insufficient information has been provided to assess the application.
b.	The proposal is contrary to permit conditions 58 and 59.
c.	The proposed amendments are of consequence having regard to the matter for which a permit is required resulting in detrimental amenity impacts on neighbouring properties and the amenity of the area.’ 
12	The responsible authority’s representative acknowledged that the Letter referred to a request for amended plans to be approved under secondary consent, when in fact a notice of decision to refuse the application to amend the permit should have been issued under s 76 of the PE Act.
13	On 18 March 2022 the applicant’s lawyer applied to the Tribunal to review the decision of the Council on 17 January 2022 under s 77 of the PE Act. Accompanying the application for review were the several documents including:
a.	A feature and level survey dated 9 July 2021 for 17-25 Maroondah Highway, Healesville by A Line Surveying (Survey); and
b.	An Arboricultural Dilapidation Assessment for 17-25 Maroondah Highway by Ironbark Environmental Arboriculture dated 8 September 2021 (Arborist’s Report).
Submissions of the parties
14	Amongst other things, the responsible authority submitted that:
a.	Information (being the Survey and the Arborist’s Report) was available to the applicant before the responsible authority wrote the Letter on 17 January 2022, but this information was not provided to the responsible authority until May 2022;
b.	The Application to Amend was made to the responsible authority one year ago and the responsible authority has not got any information to assess what is proposed in the Application to Amend;
c.	The applicant has had ample time to provide the information sought by the responsible authority in the further information request dated 2 August 2021;
d.	There is no reason to delay the hearing of the enforcement order application in application P589/2021 whilst waiting for the applicant to provide the further information; and
e.	The application for review should be dismissed as no information is available for the Tribunal to consider the amendments to the permit proposed in the Application to Amend.
15	With respect to the application under s 77 of the PE Act (proceeding P311/2022), the applicant submitted (amongst other things) that:
a.	The Letter is a refusal to amend the permit and as a matter of fairness, the Tribunal should rely on s 127 or clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to ‘cure’ the application so that the Letter is treated as a notice of decision to refuse the application to amend the Permit under s 76 of the PE Act;
b.	An application was made to amend the Permit by PPH Healesville (who now own part of the land to which the Permit applies) and the applicant decided to wait for the outcome of that application before it provided the further information sought by the responsible authority on 2 August 2021;
c.	It is the applicant’s intention to review all the material and identify the anomalies; to prepare a cut and fill plan; to prepare a landscape plan and to amend the application under Practice Note - PNPE9 Amendment of Plans and Application;
d.	Any deficiencies in the application can be cured and it would not prejudice the responsible authority in any way to do so;
e.	The hearing of P311/2022 should take place before the hearing of the enforcement order application in application P589/2021; and
f.	It will prejudice his client if it has to make a fresh application for review to the Tribunal regarding the application to amend the Permit by the applicant, because it will have to pay an additional fee.
16	At the practice day hearing I explored a procedural arrangement that would produce a hearing of the matters in dispute as soon as possible, where the applicant could potentially make an application under s 79 of the PE Act (on the basis that the permit application could still be on foot if the Letter is not a notice of refusal to grant an amendment to the permit under s 76 of the PE Act). 
17	However, in this case I am not persuaded that the approach of the applicant to bring the proceeding before the Tribunal and then to ‘identify anomalies’ to clarify what amendments are sought in the Application to Amend, and then to provide outstanding information that was sought by the responsible authority on 2 August 2021 is appropriate. These are issues that should have been addressed before the application was made to the Tribunal. I am also not persuaded that this is an appropriate matter in which to rely on s 127 or clause 62 of Schedule 1 of the VCAT Act to ‘cure’ the application for the following reasons:
a.	The applicant was represented by a town planner at the time the Application to Amend was made. At that time the town planner told the Council that the following documents would be provided: a survey plan to show trees removed during earthworks; an arborist’s report and a report regarding native vegetation. This material was not provided to the responsible authority in response to the request for further information made on 2 August 2021;
b.	After lodging the Application to Amend on 10 June 2021, the applicant had ample time to provide the responsible authority with the additional information it requested on 2 August 2021, but it chose not to do so;
c.	I am not persuaded that the fact that the applicant was waiting for the outcome of the application to amend the Permit by PPH Healesville Pty Ltd is an adequate reason for the lack of response to the responsible authority’s correspondence seeking more information about the Application to Amend;
d.	Some additional information (being the Survey and the Arborist’s Report) was provided to the Tribunal when the application for review was lodged with the Tribunal on 18 March 2022. Although the Survey and the Arborist’s Report were prepared before 17 January 2022 (when the responsible authority sent the Letter to the applicant), neither the Survey or the Arborist’s Report were provided to the responsible authority by the applicant in response to the request for further information by the responsible authority dated 2 August 2021; and
e.	Since lodging the s 77 application with the Tribunal on 18 March 2022 the applicant has had ample time to provide the further information sought by the responsible authority on 2 August 2021, but it chose not to do so.
18	It is a matter for the applicant to provide information and clarification about what changes are sought in the Application to Amend and to provide the information sought by the responsible authority in response to the request for further information in a timely manner, so that the application can be dealt with expeditiously by the responsible authority. It appears that the applicant chose not to respond to the request for additional information from the responsible authority. It proceeded to lodge the current application for review under s 77 of the PE Act with the Tribunal. The applicant was represented by a town planner when the application to amend the permit was made to the responsible authority, and it was represented by lawyers when the application for review under s 77 of the PE Act was made to the Tribunal. Despite the fact that the applicant was so represented:
a.	The applicant chose not to provide the further information to the responsible authority in response to its further information request dated 2 August 2021; and
b.	Even though the application for review was lodged with the Tribunal on 18 March 2022, the further information requested by the responsible authority on 2 August 2021 has not been provided to the responsible authority in this matter (apart from the Survey and the Arborist’s Report). 
19	The course suggested by the applicant to ‘cure’ the proceeding means that the issue of clarifying and resolving the nature of the amendments sought to the Permit and the provision of the further information requested by the responsible authority on 2 August 2021 must be dealt with as part of the Tribunal proceeding. This information should have been provided before the application for review was made to the Tribunal under s 77 of the PE Act. I consider that it is preferable for the matter to go back to the responsible authority to be dealt with in a proper and orderly way. If there is to be an application made to review the responsible authority’s decision by the Tribunal, that can be dealt with. 
20	I consider that s 51(2)(d) of the VCAT Act provides a convenient means of dealing with this matter, so that the applicant does not have to start from the beginning with a new application. On that basis, consideration of application to amend permit YR-2014/1199/2 is set aside and is remitted to the responsible authority for re-consideration in accordance with the following recommendation:
a.	The application to amend permit YR-2014/1199/2 is to be determined in accordance with the relevant provisions of the PE Act and is to be based upon the further information required by the responsible authority (including the further information requested by the responsible authority in its letter to Ask Planning Services dated 2 August 2021).
21	The responsible authority can then consider the application, and the application can follow its usual course. If necessary, a further application for review can be made to the Tribunal. Whilst this may require the payment of an additional fee, I consider that this matter should be returned to the responsible authority to be dealt with in a proper and orderly way.
22	On the basis that the decision under review is to be remitted for re-consideration under s 51(2)(d) of the VCAT Act, the hearing of application for review P311/2022 set down for 8, 9 and 12 December 2022 will be vacated, and proceeding P311/2022 will not be heard and determined together with P589/2021.

Juliette Halliday
Member