VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P671/2022 
Permit Application no. PDPL/01019/2021	
CATCHWORDS	
Port Phillip Planning Scheme; proposal for an accommodation building and associated buildings and works and car parking dispensation; Council supports proposal; three VCAT proceedings then initiated including a Section 149B Application for Declaration initiated by a joint group of affected neighbours; strike out application made by Council with respect to this Section 149B Application; strike out application granted. 	

ApplicantS	Kathryn Rosemary Bramwell & Toby Hayes for Linh Hung Tran & Ors	

responsible authority	Port Phillip City Council	
respondent	8 Louise Street Pty Ltd	

SUBJECT LAND	8 Louise Street
MELBOURNE VIC 3004	

WHERE HELD	Melbourne	

HEARING TYPE	Practice Day Hearing	

DATE OF HEARING	24 June 2022	

DATE OF ORDER	14 July 2022	
citation	Bramwell v Port Phillip CC [2022] VCAT 786	

Order
1	Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998, 8 Louise Street Pty Ltd is joined as a party to this proceeding. 
2	The proceeding is struck out pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
3	The costs of this proceeding are reserved.

Philip Martin
Senior Member			

Appearances
For applicant	Mr Toby Hayes presented a written submission shown as authored by Kathryn Bramwell, on behalf of all of the applicants.   Also present on the online hearing were the following other joints applicants - Catherine Bramwell, Anne Mecic, Shelley Freeman, Geoff Pinney and James Chamers.	
For responsible authority	Ms Tania Cincotta (lawyer) of Best Hooper lawyers	
For respondent	Mr Jarryd Gray (lawyer) of Minter Ellison lawyers	

reasons
Context for this Section 149B Application
Introduction
1	By way of context, with the site at 8 Louise Street, Melbourne (subject land) which is zoned Commercial 1, a planning permit application PDPL/01019/2021 has been made to use the subject land for accommodation and associated buildings and works and car parking dispensation.  Council has issued a Notice of Decision to Grant a Permit (NOD).
2	There has then been three proceedings initiated at the Tribunal:
•	This P671/2022 Application jointly made by a group of neighbours, seeking a Declaration that the NOD is void pursuant to Section 149B of the Planning and Environment Act 1987 (PE Act).
•	A planning merits review proceeding P670/2022 brought by a group of neighbours, seeking a merits review of the NOD pursuant to Section 82(1) of the PE Act.
•	A further Section 82(1) planning merits review proceeding P661/2022 initiated by WSTI Properties 490 SKR Pty Ltd. 
3	With the VCAT Section 149B Application form first lodged with VCAT, under the heading ‘What are your reasons for making the application’, the following is stated:
The responsible authority (RA) caused the application to be advertised, received and noted (not considered) the objections contrary to section 60(1)(c) of the Planning and Environment Act 1987 (Act) and notably only 66 of 102 (advised by Port Phillip) objections were referred to and addressed in the report of 28 April 2022 (Officer Report) to Planning Committee of Port Phillip City Council.
It also determined on 28/4/2022 to issue a Notice of Decision and issue such Notice on 3/5/2022. In doing so the RA acted unreasonably and with real or apprehended bias, for example, by providing internal referral advice to the permit applicant but not the objectors despite requests being made, did not treat objections as being expert, gave more weight to the applicant’s expert evidence, and accepted the applicant’s materials without due consideration such as the photomontages set out in the Officer Report.
It also did not afford procedural fairness and did not comply with or properly apply the law including the Act, the Local Government Act 2020 and Port Phillip Planning Scheme.  This includes not listing all the objections or properly referring to them or summarising them and at worst mischaracterising them, that Councillors did not have the actual objections before them at any stage in the process, request by objectors to receive the other objections were refused contrary to section 57(5) of the Act, breaching the public availability requirements under section 197A of the Act, refusing in-person access to the planning file, directing and requiring objectors to undertake a process under freedom of information in order to access salient materials from Council’s planning file and removing online availability of the application package documents from on or around 29/4/2022.  Further, the RA did not provide a fair hearing, for example, by objectors in attendance online not being able to participate including not being able to hear and participate fully, failing to take into account relevant considerations and taking irrelevant considerations into account.      
4	By its order dated 7 June 2022, the Tribunal listed this proceeding for a 60 minute Practice Day Hearing (PDH) to consider the follows aspects of the proceeding:
•	To give directions about the future conduct of the proceeding.
•	To consider the jurisdiction of the Tribunal to consider the application given the planning controls that apply or other statutory provisions.
•	To consider whether the application should be struck out or summarily dismissed.
•	To consider whether the application for review was made under the correction provision of the PE Act.
•	To consider the utility of the declaratory relief having regard to application P670/2022 seeking a review of the Council’s decision to issue a Notice of Decision to Grant a Planning Permit.
•	To consider if any other person should be served with a copy of the application. 
5	After I made some introductory comments, Mr Jarryd Gray (acting for the permit applicant 8 Louise Street Pty Ltd) requested that his client be joined as a party to this proceeding.  The permit applicant is clearly directly affected by this Section 149B Application and I orally made such an order.
6	Thereafter I heard the submissions of the applicant group (presented at the online hearing by Mr Toby Hayes).  I then heard submissions from Mr Gray and from Ms Cincotta on behalf of Council.  I reserved my decision at the end of the hearing.
Submissions of applicant group 
7	The written submission for the applicants usefully responds to each of the six points which the Tribunal order of 7 June 2022 set out as the agenda for the PDH.  A copy of this written submission is retained on the Tribunal file and, to avoid duplication, it is unnecessary for me to provide any detailed description of it.
8	One paragraph of significance from the applicants’ written submission worth quoting is paragraph 6, which reads as follows:
The declaration being sought is that the decision of the Responsible Authority on 28 April 2022 to issue a notice of decision to grant a planning permit is void.  The effect of this would that a permit could not issue in reliance on the notice of decision already issued.  It would then be open to the Responsible Authority to again make a decision on Planning Permit Application No. PDPL/01019/2021 provided it was absent procedural defects in the decision making process.  The Applicants consider that a compliant decision making process and decision would have likely resulted in a materially different decision being made.
9	Mr Hayes made considerable reference to concerns whether the various applicants’ objections made to Council had been validly considered in the Council Delegate Report and/or by the Councillors.  It was queried whether some objections were never actually taken into account by the time Council resolved to issue its NOD.  
10	Following this line of thinking, there should be as part of this proceeding a detailed review regarding how the Delegate Report was prepared and how the relevant Council meeting was conducted.   The submission emphasises a Request for Information that has been made to Council by the applicant group.  
11	Otherwise, the submission discusses the role of Section 149B applications and refers to certain caselaw.  On the final two pages of the written submission is a table setting out the various orders sought.  The gist of same is that the applicant group seeks that Council serve a copy of this Section 149B application on all objectors in the related planning permits proceedings, that Council be required to respond to the Request for Information, that Council provide its complete planning file and make it available for inspection, that the parties be able to file further materials/Outline of Submissions and that this Section 149B proceeding be consolidated with the hearing of the other two aforementioned related proceedings.
Submissions of Council and the permit applicant
12	Ms Cincotta in response spoke to a detailed (17 page) written submission, responding to the various allegations made in the original Section 149B Application document (as quoted above).
13	The essence of Council’s submission is found at [6] of its written statement, which states:
Having regard to the matters listed to be ventilated at the practice day hearing, the Council relies on the following submissions. In summary Council submits that the Application for Declaration is misconceived, lacking in substance and/or vexatious, and should be summarily dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
14	After the introductory information and abovementioned summary over pages 1-4, the balance of the Council written submission helpfully sets out in ‘table form’ each of the assertions made in the Application for Declaration and Council’s response to same.  To avoid duplication, again I note that a copy of this document is retained on the Tribunal file and at this stage I simply refer to Council’s response on each of the issues raised.
15	In her oral submissions, Ms Cincotta argued that most of the allegations made in the Section 149B Application are not genuine ‘planning issues’ which fall within the scope of VCAT’s jurisdiction in its Planning and Environment Division (PED).  Rather, she submitted that where the applicants are seeking to challenge at a very detailed level how Council processed the subject planning application, this challenge is not a ‘legitimate planning matter before the Tribunal’ and goes beyond the jurisdiction of the PED.
16	At the end of her presentation, Ms Cincotta submitted that on the strength of Council’s response on each of the points raised, the Section 149B Application is so misconceived, vexatious and/or lacking in substance that it should be struck out by the Tribunal.
17	Mr Gray for the permit applicant indicated in summary that his client supports the position taken by Council. 
Relevant statutory provisions and caselaw
18	Various statutory provisions in the PE Act have already been mentioned in my ‘setting of the scene’ further above, or appear in the written submissions of the parties.  Whilst in most respects there is no need for me to repeat same here; I have set out below Section 60(1) of the PE Act:
Before deciding on an application, the responsible authority must consider-
(a)	the relevant planning scheme; and
(b)	the objectives of planning in Victoria; and
(c)	all objections and other submissions which it has received and which have not been withdrawn; and
(d)	any decision and comments of a referral authority which it has received; and
(e)	any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; or
(f)	any significant social effects and economic effects which the responsible authority considers the use or development may have.
19	Otherwise, Council is relying on Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), which states as follows:
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.
20	Strike out applications in the PED are not common but do arise, with some earlier examples being Urban Tide Pty Ltd v Monash CC (VCAT P389/2004) and Protectors of Public Lands Victoria Inc v Port Phillip CC (Red Dot) [2009] VCAT 1191.  However a recent leading decision is Axicom Pty Ltd v Melton CC (Red Dot) [2020] VCAT 190 by DP Dwyer.  
21	At [9] of this decision DP Dwyer reviews the relevant ‘strike out’ principles from the earlier Victorian Supreme Court decision of Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1683 and condenses these principles down to the following:
The general principles relating to the operation of Section 75 of the VCAT Act are clear.  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 found to fail.
•	the power to order summary dismissal should be exercised with great care and should never be exercised unless it is very clear that there is no real question to be tried.  Indeed, it must be ‘very clear’ that 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 persuasive burden of showing ‘that the complaints is undoubtedly hopeless’. 
22	I adopt these principles.
Findings of tribunal
Lack of practical utility of this Section 149B Application
23	I have explained above that this Section 149B proceeding is merely one of three current related VCAT proceedings arising from the aforementioned NOD with respect to the site at 8 Louise Street Melbourne.
24	Notably, both of the other related proceedings are seeking a planning merits review of Council’s support for the proposal, pursuant to Section 82(1) of the PE Act.  When these two planning merits review proceedings are heard, the Tribunal will be considering the proposal afresh or ‘de novo’.   That is to say, VCAT is ‘stepping in the shoes’ of Council and has to reach its own fresh decision on the planning merits or otherwise of the proposal, having heard from all the parties at the VCAT hearing.
25	In terms of the substantial opportunities which in practice all the parties will have to present to the Tribunal, at the scheduled hearing: 
•	Council will usually present first.
•	Council’s written submission needs to set out the relevant context for the planning dispute, which in the circumstances here typically includes an explanation/discussion of the objections being made in the two Applications for Review.
•	Council’s submissions to the Tribunal typically explain how Council views such Section 82(1) ‘resident objections’ and why Council still supports the proposal.
•	Any referral authorities would then present to the Tribunal.
•	Any ‘objecting neighbours’ (in this case the Applicants for Review) would then make their submissions to the Tribunal.  This includes such neighbours having the opportunity to ‘set the scene’ for their main submissions, then conveying their concerns about the proposal to the Tribunal.  It is very common for neighbours to appear at VCAT PED hearings in person, without using any professional representation.  Where a joint objection is brought, frequently one or two ‘lead objectors’ to present on behalf of the larger group.
•	The permit applicant then presents their case.
•	Near the end of the main hearing process, the Tribunal will hear any ‘rights of reply on any new points’ and the parties will discuss the without prejudice permit conditions. 
26	In summary, it needs to be understood that this is not a situation where the only relevant VCAT proceeding is this Section 149B Application.
27	Rather, it needs to be understood/acknowledged that ‘relevant events have moved on’, in the form of the two related VCAT planning merits review proceedings also on foot in relation to the proposal, that will involve a de novo hearing at VCAT.  
28	I note that at [6] of the applicants’ written submission, it is reiterated that the applicants seek a ruling that the NOD is void and that “The effect of this would that a permit could not issue in reliance on the notice of decision already issued”.  With respect, I consider this line of thinking to be excessively ‘backwards-looking’, where the reality is that ‘events have moved on’ and there are now two Section 82(1) Applications for Review to be heard on a de novo basis at VCAT.    
29	Hence I find convincing the submission by Ms Cincotta that this Section 149B application is ‘futile’, in that:
•	As a matter of ‘process’, events have moved well past Council issuing its NOD, with the practical focus now being the forthcoming VCAT de novo hearing.
•	It is difficult to see any practical utility in the Tribunal ‘looking back in time’ at the fine detail of to how Council arrived at its NOD, when the planning merits proceedings will consider the proposal afresh at the forthcoming hearing and VCAT will need to make its own independent decision on the planning merits of the proposal.
30	This finding is reinforced by other previous relevant decisions of the Tribunal.  Notably, in Hill v Campaspe SC [2005] VCAT 1128 the Tribunal set out four basic requirements for the Tribunal’s exercise of its discretion to grant a Declaration.  One of these four was that ‘The making of a declaration must be of practical use”.  I endorse the submission at [22] of the Council written submission that this challenge to the validity of the NOD lacks ‘practical use’, where this proposal now involves a forthcoming de novo planning merits review hearing. 
31	Likewise in Bennett v Wodonga CC [2019] VCAT 1482 the Tribunal stated at [81] that:
The objectors submit the officer’s assessment was flawed, especially in its failure to consider clause 65 matters.  This is no basis for refusing a permit.  It is well accepted that the Tribunal determines an application based on the material before it in a de novo hearing and does not determine the adequacy or completeness of the way the Council decided the application, including the reports submitted to it by its officers.
32	Also in Croke v Moira SC (Corrected) [2019] VCAT 112 the Tribunal made the following observations:
“…Similarly, in relation to criticisms of the Council’s assessment of the proposal, such matters are rarely relevant in a de novo hearing in which the Tribunal assumes the role of the decision maker when undertaking a review of Council’s decision”. 
33	To avoid duplication, I note the discussion at [26-28] of the Council written submission regarding the decision of SM Rickards in Magee v Boroondara CC & Anor (Red Dot) [2010] VCAT 1323.   Suffice to say that I agree that this decision involves similar circumstances to those here and that it is favourable for Council’s case before me that SM Rickards declined to make any Declaration in her Magee decision.  I also note that in Magee the applicant sought to appeal the VCAT decision at the Supreme Court, where  Justice Emerton (as Her Honour then was) refused leave in Magee v Boroondara City Council and Anor [2011] VSC 78.  
34	In refusing to grant leave for any appeal, Justice Emerton highlighted (amongst other things) the fact that the objector in question had the opportunity (moving forward) to participate in a de novo merits review proceeding at VCAT and that Council had given regard to not just the Delegate Report but also the submissions/presentations of the objectors and permit applicant.  These points are also very relevant to the circumstances before me.
Summary of initial findings by Tribunal
35	In summary, I rely on my various findings and comments above, in concluding at this point that this Section 149B Application involves a misconceived ‘earlier in time’ focus on the granting of the NOD, where in reality ‘events have moved on’ and the key focus now is the two planning merits review proceedings at VCAT which will be considered de novo.
36	Accordingly, I conclude that this Section 149B Application is misconceived and fatally lacking any practical utility, and should be dismissed under Section 75(1) of the VCAT Act.
37	For the purposes of the Hickery Group principles for strike out applications that I have quoted further above, I am satisfied that this Section 149B Application is ‘undoubtedly hopeless’, in terms of its lack of practical utility and it being very open to the criticism that it is ‘futile’.
Lack of particularisation of any alleged fundamental ‘failure of due process’ with Council’s processing of the subject planning permit application
38	Having made my initial finding set out above that the Section 149B Application fatally lacks any practical utility, strictly speaking I do not need to address any other aspects of the strike out application.
39	However even if I was shown to have erred in making that basic finding, I make the following comments and findings in the alternative.
40	At the PDH, the gist of the submission by Ms Cincotta was that ‘due process’ was followed in Council’s consideration of all of the objections, its preparation of the Delegate Report and the issuing of its NOD.
41	Where in the original Section 149 Application various allegations were made (see the three quoted paragraphs further above) that Council’s processing of the permit application and eventually issuing of its NOD was flawed, Ms Cincotta in her written submission set out a table listing each allegation and Council’s submissions why each criticism being made was either misguided or unfounded.
42	Even allowing for the contents of the applicant’s written submission to the PDH which was presented to me by Mr Hayes, I find Ms Cincotta’s responses in the right hand column of her table compelling.
43	In terms of the common sense need to have a workable planning system in Victoria, it needs to be understood that it is a rare and serious matter to challenge the validity of a NOD, with potentially wide-ranging consequences.   Given the gravity of such a challenge being made, I consider that an applicant in this situation must be able to particularise (preferably by way of sworn evidence) the alleged fundamental discrepancies/errors/omissions with how Council processed the planning permit application in question.  
44	Putting this another way, for a finding to be made that any one NOD is void, there would need to be much more than loose or speculative allegations of discrepancies, or a debate ‘around the edges’ of how Council processed and considered the relevant objections.  
45	Returning to the circumstances of this Section 149B Application, I am not seeing that it provides any such ‘particularisation’ that fundamental failures of due process have occurred in the disputed circumstances here. Rather, I find that the allegations being made are either misconceived, lacking substantiation and/or raising what I would consider to be merely peripheral or inconsequential issues.
46	Whilst it is unnecessary for me to delve into the fine detail of each separate allegation being made in the Section 149B Application, I make the following points.  When I compare the allegations being made in the Section 149B Application to the various explanatory comments being made in the right hand column of the table in the Council written submission, I consider that:
•	Where Council’s position is that all of the objections made prior to the relevant Council meeting were considered by the Council officers, I see nothing tangible in the Section 149B Application (beyond speculation) to refute this basic position.
•	There is strong weight in Council’s general position that the criticisms of the processing of the permit application are generally mis-guided and in some cases quite irrelevant to the validity of the NOD.  For example, I agree that it is irrationally going well beyond ‘proper due process’ to be micro-debating whether the Delegate Report should list every objection in a very controversial project, or whether any objections should be given an ‘expert’ status or not.
•	It would be inappropriate and unworkable for there to be any strict requirement that Delegate Reports must include as an Annexure a copy of every objection lodged, bearing in mind that very large projects can attract hundreds of objections to Council.  As it is, Delegate Reports are already often what I would call very long documents, that presumably already can be very time consuming to prepare.
•	There are legitimate ‘privacy’ concerns which may arise where any one objector seeks to obtain copies of all other objections and that sometimes FOI issues can legitimately arise.
•	There are legitimate practical limitations to how Council meetings (such as the one which resolved to issue this NOD) can operate as an online-meeting, including how many objectors can participate on the screen at any one time with projects involving very large numbers of objectors.   I note that this permit application attracted over 100 objections.
•	The detail of how the ‘consultation meeting’ for this permit application was run, whether the application materials should have been kept online after the NOD was issued and whether ‘internal referral comments’ should have been supplied to the objectors seems quite irrelevant to the main ‘due process’ requirements that legitimately arise here under the PE Act.     
•	The PE Act does not ‘go there’ in terms of how Councils choose to conduct their Council meetings, to what extent objectors should be able to address the relevant Council meeting, whether Councillors should be expressly provided with a copy of each objection made, etc.  This are ‘local government’ matters, not ‘planning’ matters.
•	Beyond some ‘sweeping assertions’ of a brief nature, I cannot see any particularisation in the Section 149B Application of how it is said that  Council took into account a material irrelevant consideration or failed to consider a material relevant consideration.  I would make the same finding in relation to the ‘sweeping and brief assertion’ that Council’s processing of the NOD involved perceived or actual bias.   I note that the range of matters Council considered before issuing its NOD included not just the Delegate Report but the submissions/presentations of the objectors and likewise with the proponent.
•	There is nothing unusual or improper in that NOD being dated/issuing several days after the date of the actual Council meeting.  I also agree with the Council submission that any such delay in practice benefits any objectors where Council supports the proposal, in effectively extending the period for any appeal to VCAT to be lodged. 
47	Where the applicants’ written submission referred to certain caselaw, I consider such cases to turn on their own facts and to provide little assistance to the applicants with the relevant facts and issues here.  For example, where at [11] of the applicants’ written submission there is reliance upon a quoted paragraph from the aforementioned Magee decision, that paragraph adds little to how I should deal with this strike out application.  Where at its [14-15] the applicants’ written submission cites several cases, it is telling that these are all fairly generic quotes from decisions in other jurisdictions.  Where at [17] and [19] of the applicants’ written submission two more decisions are quoted, these quotes simply deal with underlying aspects of how Section 149B applications are assessed, rather than tackling the real issues in question here.    
48	To summarise, beyond my ‘fatal lack of practical utility’ initial finding, I conclude that the Section 149B Application fails to provide any particularisation of any alleged fundamental failures of due process (such that I see ‘no real question to be tried’ in this regard).  This alternative finding likewise justifies the Section 149B Application being struck out under Section 75(1) of the VCAT Act, on the basis that it is misconceived and lacking in substance.  In relation to the relevant principles under the Hickory Group decision, with this alternative finding, I likewise find the prospects of the Section 149B Application to be ‘undoubtedly hopeless’.
Conclusion
49	For the reasons set out above, I have made orders above striking out this Section 149B Application and reserving costs.

Philip Martin
Senior Member