VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1576/2022
Permit Application no. 	
CATCHWORDS	
Sections 271, 429 and 431 of the Environment Protection Act 2017 (Vic); Application for stay under section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Stay granted.	

Applicant	Monsbent Pty Ltd	

Decision Maker	Environment Protection Authority	
SUBJECT LAND	42 Benalla-Yarrawonga Road
BENALLA  Victoria  3672	
HEARING TYPE	Application for Stay	
DATE OF HEARING	21 December 2022	
DATE OF ORDER	29 December 2022	
CITATION	Monsbent Pty Ltd v Environment Protection Authority [2022] VCAT 1487 	

Order
Stay of amended improvement notice
1	Pursuant to section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the operation of the decision of the Environment Protection Authority dated 3 November 2022 to issue the Amended Improvement Notice IMPN-00003321-1, is stayed pending the final determination of proceeding P1576/2022. 
Variation of Order of 6 December 2022
2	The Tribunal’s order of 6 December 2022 is varied as detailed below.
Schedule for proceeding
3	This application is scheduled for a practice day hearing, a compulsory conference and a hearing, as detailed below. 
All hearings and the compulsory conference will be at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you by a further order.

Practice Day Hearing:	
Date	14 February 2023	
Start time

		For details of the start time, please refer to the Tribunal’s website (www.vcat.vic.gov.au/todays-hearings) after 4:30pm on the day before the hearing	
Duration 	1 hour	
Conduct	In Person	

Compulsory Conference:	
Date and time	28 February 2023
2.00 pm – 5.00 pm	

Conduct	 In Person	

Hearing:	
Date and time	20, 21, 22 & 23 March 2023
10.00 am – 4.30 pm	

Conduct	 In Person	

Further advice about the hearing procedures will be provided to the parties prior to the relevant hearing.
What must the decision maker do?
4	By 9 January 2023 the decision maker must give the information required by the Tribunal’s Practice Notice PNPE2 – Information from Decision Makers (PNPE2) to the Tribunal, unless this material has already been given in another related proceeding. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au.
5	The decision maker must give a copy of the completed table of PNPE2 to the Applicant. The attachments do not need to be given to the Applicant.
Statement of Contentions required from all parties
6	By 7 February 2023, all parties must give the Tribunal and the other parties a Statement of Contentions setting out:
•	an outline of the primary contentions of fact or law relied upon by that party to support its position in the proceeding, and a summary of the basis for those contentions. The outline should be sufficient to enable all relevant issues in the proceeding to be identified.
•	the name of any witness retained in the matter as at the date of the Statement of Contentions and a brief summary of the evidence that would be adduced by that witness in a hearing.
7	The Statement of Contentions should preferably not exceed six pages. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au 
Practice Day Hearing
8	The purposes of the practice day hearing are:
•	to consider the Statements of Contentions filed by the parties in order to identify and clarify the issues in dispute in the proceeding;
•	to consider the future conduct of the proceeding. This may include a consideration of dates, duration, compulsory conference and/or venue;
•	to consider the request made by Monsbent Pty Ltd for disclosure or discovery of documents held by the EPA as set out in item 26 of the Application Form; and
•	to consider a timetable for the exchange of evidence and conclave of experts in like evidence if such evidence is being called.
9	Parties must attend the practice day hearing with the following information:
•	details of any other applications at the Tribunal that are related to this application; and
•	all evidence and documentation relating to the specific purpose of the practice day hearing (where relevant).
10	If a party is seeking specific orders or directions at the practice day hearing, a draft Microsoft Word copy of the orders or directions must be lodged electronically with the Tribunal and provided to the other parties. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au . This must be completed five business days prior to the date of the practice day hearing.
Compulsory conference
11	All parties must attend the compulsory conference either in person or by a representative who has permission to settle the proceeding on their behalf.
(See more information in Appendix B of this order).
12	By no later than 10 business days before the compulsory conference the applicant must give all parties a copy of any amended plans, proposal or conditions it wants to discuss or rely upon at the compulsory conference. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au 
13	If this proceeding is about a permission or notice, then the decision maker must give the Tribunal and all parties an electronic copy in Microsoft Word format of ‘without prejudice’ conditions or requirements that may be discussed at the compulsory conference. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au  This document must be received by all parties and the Tribunal five business days before the compulsory conference.

S P Djohan
Presiding Member
		Claire Bennett
Member	

Appearances
For applicant	Mr M Mathas, solicitor, Mathas Law.
	
For decision maker	Mr S Rajanayagam of Counsel instructed by the Victorian Government Solicitor’s Office.

Reasons
Nature of proceeding
1	The applicant seeks a view under section 430(1) of the Environment Protection Act 2017 (Vic) (EP Act) of the decision of the Environment Protection Authority (EPA) (reviewable decision) to issue an amended Improvement Notice IMPN-00003321-1 (amended improvement notice) dated 3 November 2022 for 42 Benalla-Yarrawonga Rd Benalla VIC 3672 (premises).
2	The amended improvement notice requires, the applicant, by 30 January 2023, in effect to handle, store, use and transport wood substances at the premises to minimise risk to human health and the environment.
3	Pending the hearing and determination of the review application, the applicant seeks a stay, pursuant to s.50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), of the reviewable decision. 
4	This decision deals only with the stay application and does not make any final findings in relation to the ultimate merits of the review application.
Background
5	The applicant – 
(a)	manufactures fibreboard on the premises;
(b)	is the holder of Operating Licence OL000009379 issued by the EPA originally issued on 15 January 1987 (Operating Licence). 
The operating licence is issued for – 
Scheduled categories	FO2	Fibreboard
Description		The licence holder manufactures particle board products. This licence allows for discharges to air.
(c)	is the holder of Development Licence DL000300012, issued on 18 May 2022.
6	As part of the manufacturing process, wood substances are received, stored and processed on the premises. The storage of wood substances on the premises occurs in stockpiles.
7	On 5 April 2022, the EPA conducted a site inspection and a drone survey of the premises. During the site inspection, the stockpiles of wood substances on the premises were measured as were the separation distances between stockpiles.
8	In August 2022, the EPA obtained further drone footage of the premises, specifically of the stockpiles. 
9	On the advice of its senior fire safety specialist, the EPA served the applicant with Improvement Notice IMPN – 00003321 dated 13 October 2022 (original improvement notice).
10	On 18 October 2022, the applicant sought an internal review of the original improvement notice. 
11	The amended improvement notice was issued following the completion of the internal review of the original improvement notice.
12	The amended improvement notice stipulates the following requirement -  
You are required to:
1. 	By 30/01/23 you must ensure that all substances at your Premises are handled, stored, used or transported in a manner that minimises risks of harm to human health and the environment from pollution associated with combustion of wood substances. Specifically, you must ensure that wood substances are stored in a manner that minimises the risk of combustion of those substances arising from:
- proximity of stockpiles to each other and surrounding buildings; and
- stockpile dimensions.
You must report to EPA:
R1.	By 30/01/23 you must report to EPA on how you have updated BEN-75W-168 Work Instruction – Wood Yard Stockpiles and BEN-75F-109 Stockpiles Map so as to address the matters set out in the requirement above 
R2.    By 30/01/23 you must report to EPA on how you have addressed the matters set out in the requirement above in any other documented evidence of the storage and handling of combustible materials on the Premises that shows how the risks of harm are being minimised
This improvement notice takes effect from the date of service. Amendments to this improvement notice take effect from the date of service of the amendment.
13	Following the signature of the delegate of the EPA is the following text - 
Support to comply
The means of achieving compliance with this notice includes:
•	Reducing and reconfiguring stockpiles of combustible materials at your premises to meet the dimensions and separation distances set out on pages 58 – 60 of EPA Publication 1667.3 Management and storage of combustible recyclable and waste materials (CRWM).
•	Reviewing and revising your procedures and processes for handling combustible materials on the Premises to ensure that handling occurs in a manner that ensures the risks of harm are minimised, including how stockpile dimensions and separation distance between stockpiles and away from buildings will be maintained to ensure ongoing minimisation of risks from combustion.
14	The applicant commenced this proceeding on 23 November 2022 seeking a review of the reviewable decision pursuant to s.431 of the EP Act. 
15	On 7 December 2022, the Tribunal issued its initiating order in this proceeding informing the parties (amongst other things) of the listing dates for a practice day hearing, compulsory conference and final hearing. The initiating order also gave directions regarding procedural steps in preparation for the hearing of the fixtures identified.
16	On 13 December 2022, the applicant filed an urgent application for an order “that the time for compliance with improvement notice SIR-0000 1109 be extended from 31 January 2023 until two months after the determination of these proceedings”. 
17	At the hearing before us, the applicant confirmed that it sought a stay of the amended improvement notice until the determination of the proceeding. A full copy of the amended improvement notice was provided to the Tribunal by the EPA for the purpose of the preliminary hearing.
Relevant principles – stay application
18	Section 50 of the VCAT Act provides (as relevant): 
50		Effect of original decision pending review
(1)	Subject to subsection (2), the commencement of a proceeding for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2)	Subsection (1) does not apply – 
(a)	if the enabling enactment provides otherwise; or
(b)	if the Tribunal make an order under subsection (3).
(3)	The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.
(4)	The Tribunal may make an order under subsection (3)—
(a)	on application by any party or on its own initiative;
(b)	whether or not it has given any person whose interests may be affected by the order an opportunity to be heard.
(5)	In making an order under subsection (3), the Tribunal—
(a)	may require any undertaking as to costs or damages that it considers appropriate; and
(b)	may make provision for the lifting of the order if specified conditions are met.
(6)	The Tribunal may assess any costs or damages referred to in subsection (5)(a).
(7)	The Tribunal's power to make an order under subsection (3) is exercisable by the presiding member.
19	Although both parties agreed as to the guiding principles applicable to the determination of a stay application under s.50 of the VCAT Act, there was unsurprisingly a divergence as to how those principles should be applied to the present facts of this matter.
20	The guiding principles are – 
(a)	The power to grant a stay is discretionary to be exercised after full consideration of the circumstances and facts of each particular case.
(b)	The dominant principle is whether or not the failure to grant a stay would render the application for review before the Tribunal nugatory.
(c)	Whether or not there is a serious question to be tried on review is a matter of some importance.
(d)	Whether or not it is in the community interest to grant a stay is properly to be taken into account. This involves the balancing of private interests against the public interest.
(e)	It is relevant for the Tribunal to take into account the period of time which will elapse before the hearing of the application for review.
21	The EPA’s written submission also stated – 
24.	However, in cases in the Tribunal’s review jurisdiction, the dominant principle referred to above must be balanced against the public interest, which must be given significant weight.
22	When the presiding member enquired as to the authority relied upon for the above submission, Counsel for the EPA was unable to assist. We are not aware of any binding authority that requires the Tribunal when considering a stay application in a proceeding commenced in its review jurisdiction to give ‘significant weight’ to the public interest.
23	Furthermore, as this proceeding has been commenced in the Tribunal’s review jurisdiction, the merits hearing is one that is considered ‘de novo’ and without a presumption of correctness conferred on the reviewable decision. Where, as in this case, the reviewable decision is one that is discretionary, the task of the Tribunal at the final hearing is to make the preferable decision in light of all the evidence and material.
24	We have adopted the guiding principles set out above in the exercise of our discretion and we have done so on the limited documentary material relied upon by the parties. 
25	It appears that because the Tribunal’s order of 16 December 2022 setting this preliminary hearing down did not specifically make orders as to the timing for the filing of affidavit or other evidence, both parties proceeded on the basis that the Tribunal did not require any evidence from either party to support their respective positions on the issue of staying the reviewable decision pending the hearing and determination of the review application.
26	Frankly we find this both surprising and disappointing. Surprising because both parties are represented by experienced legal practitioners who should understand the importance of relevant evidence to urgent interlocutory applications. It is disappointing that neither party has put before us any affidavit evidence to support their respective positions. What we are left with are bare submissions from the ‘bar table’ about important matters such as the layout of the stockpiles (including the separation distances between stockpiles and the height of stockpiles), the specific content of each of the stockpiles, the level of risk of combustion to be attributed to the stockpiles because of their content, height and separation distances. This failure by both parties made this interlocutory task more difficult than necessary.
Consideration
Will the failure to grant a stay render the application for review nugatory?
27	The applicant submitted that if it is required to comply with the amended improvement notice by 30 January 2023 prior to the final hearing in this proceeding, the ultimate review by the Tribunal of the reviewable decision is rendered nugatory because the requirements of the notice will have been completed and therefore there is no point in further pursing this proceeding to its conclusion. 
28	Further, the applicant has raised a complaint with the nature of the requirements of the amended improvement notice alleging that the stated requirements are vague and uncertain. It says that it is left in considerable doubt as to what it has to do to comply with the requirements of the amended improvement notice.
29	It was also submitted on behalf of the applicant that, for reasons not connected with the requirements of the amended improvement notice, by 30 January 2023 it was ‘likely’ that the layout and arrangement of the stockpile of wood substances on the premises would comply with the contents of Guideline 1667.3 due to the ongoing operations at the premises.
30	The EPA submitted – 
•	if the applicant is likely to comply with the requirements of Guideline 1667.3 then it is difficult to see how the “application would be rendered nugatory”;
•	there is insufficient evidence to demonstrate that the application for review would be rendered nugatory.
31	We disagree with the EPA and find that the application for review would be rendered nugatory if we do not grant a stay of the amended improvement notice because:
•	If the applicant complies with the requirements of the amended improvement notice, there is nothing further for the applicant to do. In such circumstances, there clearly arises a question as to the utility of the proceeding continuing to a final determination. 
•	That the applicant may comply, or is ‘likely’ to comply, with the requirements of the amended improvement notice is not to the point of an application to legally stay the requirement of the amended improvement notice.
•	Nothing has been put before us by the EPA that, in the event the applicant is required to comply with the amended improvement notice by 30 January 2023 but is ultimately successful in the review application, the applicant has an opportunity to be compensated for the costs of complying with the amended improvement notice.
•	The applicant raises questions regarding the validity of the amended improvement notice (by reason of the requirements being vague and uncertain) which for the reasons below amount to a serious question to be tried. Requiring the applicant to comply with the requirements of the amended improvement notice by 30 January 2023 would render determination of that question academic.
Is there a serious question to be tried?
32	The application for review lists 12 grounds of review. It is not necessary to review all of the grounds in detail in these reasons. For the purposes of the stay application, it will suffice if there is one serious question to be tried at the merits hearing.
33	At the hearing, the applicant submitted that the requirement of the amended improvement notice was vague and uncertain, and it should not be left to the applicant to discern what specifically it must do to satisfy the EPA that it has complied with its general environmental duty. This submission is reflective of ground 2 in the application for review that states – 
The notice is vague and uncertain. It does not provide clear direction so that the applicant does know and cannot reasonably take steps to comply with the notice.
34	The EPA submitted that the requirements of the amended improvement notice are clear and unambiguous and require a reduction in the risk of harm to human health and the environment by a change in the manner in which wood substances are stored on the premises. 
35	Further, it was submitted by the EPA that the amended improvement notice did not specifically require that the wood substances be stored in stockpiles in accordance with the dimensions and separation distances as set out in pages 58-60 of the Guideline 1667.3, but rather that was merely one way in which compliance with the general environmental duty under s.25 of the EP Act could be achieved.
36	Counsel for the EPA submitted that the applicant could comply with the requirement of the amended improvement notice (and thus s.25 of the EP Act) another way if the applicant wished. When asked by the presiding member how the applicant would know whether it had complied with the requirement of the amendment improvement notice if the applicant sought to comply by means other than compliance with Guideline 1667.3, Counsel for the EPA said words to the effect that the applicant could consult with the EPA to find out if compliance had been achieved.
37	Section 271(4) of the EP Act provides – 
(4)	An improvement notice must – 
(a)	specify the name and address of the person to whom the notice is issued; and
(b)	state the grounds on which the notice is issued; and
(c)	specify the actions that the person must take to comply with the notice; and 
(d)	specify the period within which the person must comply with the notice; and 
(e)	set out the penalty for failing to comply with the notice; and 
(f)	specify how the person may seek review of the decision to issue the notice.
38	It is clear from the above that there are mandatory matters that an improvement notice must address including specifying the actions that a person must take to comply with the notice.
39	On the facts of this matter, the question of what action the applicant must take to comply with the amended improvement notice has been put in issue by the applicant in its grounds of review. Our preliminary view is that it is not clear specific actions the applicant must undertake to comply with the notice should it choose not to follow the path of complying with the requirements of Guideline 1667.3. On this issue, we note that there is a difference between achieving an ‘outcome’ and undertaking specified actions to achieve an outcome.
40	In our view, the question of whether the amended improvement notice complies with the requirement of s.271(4)(c) is a serious question to be tried. It is not our task, nor is it appropriate for us to predict the answer to that question, however we are satisfied on the material before us that the question is a real one and requires determination.
Is it in the community interest to grant a stay?
41	The EPA submitted that the public interest heavily outweighs a stay being granted because there is significant risk to public welfare “as the fire danger period has commenced”. The relevant fire danger period for the Benalla district commenced on 19 December 2022.
42	The EPA identified the ‘significant risk’ as risks to the environment and to human health that are occasioned from ‘major fires’.
43	The EPA submitted that the amended improvement notice mitigates those risks and staying its effect would allow those risks to continue unabated. 
44	The applicant submitted that it has always operated within the requirements of Victorian Country Fire Authority (CFA) and the local council. The applicant says that it has had its Fire Fuel Reduction Site plan reviewed by the CFA and council and has not received any adverse finding or other request for remedial or other action. 
45	Further, the applicant submitted that the fire risk was not significant, submitting that there was no evidence that these premises are likely to catch fire. The applicant asserted that the stockpiles are not likely to catch fire due to the high moisture content of the wood substances stored therein. The applicant submitted that Guideline 1667.3 is designed for waste materials which have lower moisture content and are more likely to combust than the wood substances stored in the stockpiles on the premises.
46	We do not accept as an established fact that the wood substances on the premises have either a high water content or a higher water content than ‘waste materials’. Further, we do not accept on the material before us that even if the wood substances were of high moisture content that such substances are less likely to spontaneously combust than waste materials.
47	It is, however, the EPA that positively contends as to the significant risk of fire on the premises arising from the present storage conditions of the wood substances in stockpiles on the premises. The EPA relied on the reasons set out on page 16 of the amended improvement notice in support of this submission. We disagree that what is set out on page 16 amounts to evidence of the existence of a significant risk of fire occurring as a result of the manner in which the wood substances are stockpiled on the premises.
48	The fact that a fire did occur on premises (in the bagging area) but not in the stockpiled material does not speak of the risk of fire occurring because of the way the stockpiles are dimensioned or maintained.
49	The fact that large scale fire events have occurred in stockpiled woodchips on other premises does not assist in identifying the likelihood or the level of risk of fire occurring on the premises concerned in the present existing conditions. We have no information as to the conditions on the other premises referenced and any similarity of the storage conditions on the premises. Such examples amount to no more than analogies without the establishment of fact in order to reasonably draw relevant inferences to the conditions under consideration.
50	The extract from the ‘D&R Hendersen Pty Ltd ‘Risk Assessment Report – Storage of Combustible Recyclable and Waste Material” dated October 2019 (commissioned by the applicant) does not support the conclusion that there is a significant risk of fire occurring as a result of the storage of wood substances on the premises as currently occurring. 
51	We note that we were not provided with a full copy of the report and without regard to the context from which the extract was taken we cannot conclude, without further evidence, that the extract supports the EPA’s submission that there is an increased risk of fire at the premises in its present condition.
52	Therefore, on the material before us at the preliminary hearing, we disagree that any risks to the applicant are outweighed by the public interest. 
What period of time will elapse before the hearing of the application for review?
53	The final hearing is scheduled to commence on 20 March 2023. 
54	Despite submissions from the EPA that the period of time to final hearing and determination weighed against a stay being granted, the EPA made no submission that the final hearing date should be expediated. If such submissions had been made, the Tribunal would have been able to provide revised (earlier) hearing dates.
55	In any event, both parties agree that there is utility in the convening of a compulsory conference prior to the final hearing. The parties have come to agreement as to the dates for preparatory steps to the final hearing.
56	We do not consider in the circumstances of this matter, and the present listing of future fixtures, that the period of time that will elapse before the hearing of the application for review weighs against the grant of a stay of the reviewable decision.
General discretion and conclusion
57	The guiding principles set out earlier indicate that the discretionary power to grant a stay is to be exercised after full consideration of the circumstances and facts particular to each case. We have exercised our discretion after consideration of the reviewable decision (including the reasons given for that decision), the written submissions of the both parties unsupported by any evidence to establish the underlying facts upon which these submissions rely.
58	In circumstances where – 
(a)	the application for review will be rendered nugatory;
(b)	there is a serious question to be tried; 
(c)	the public interest does not, on the material before us, outweigh the applicant’s private interest;
(d)	the time to final hearing does not outweigh the grant of a stay of the reviewable decision,
the application of the guiding principles weighs in favour the grant of a stay of the reviewable decision, and we see no reason to depart from that conclusion.

S P Djohan
Presiding Member
		Claire Bennett
Member	

appendix a
important information for all parties
Non-compliance with orders and directions
Please read the orders and following information carefully. Non-compliance with these orders may result in an application being struck out, or other sanctions under the Victorian Civil and Administrative Tribunal 1998, including an award of costs.

Major Cases List
If this proceeding has been included in the Major Cases List, VCAT Practice Note PNPE 8 – Major Cases List (Planning) governs the procedures for matters in this list.

Short Cases List
If this proceeding has been included in the Short Cases List, VCAT Practice Note PNPE7 – Short Cases List governs the procedures for matters in this list.

Statement of grounds
If you are a respondent, a person with an interest named in the application, or the owner or occupier of the subject land, you may be entitled to become a party to this proceeding if you file and serve a statement of grounds in accordance with this order, unless you indicate that you do not intend to participate in the hearing of the proceeding.

If you file a statement of grounds and indicate that you do not intend to participate in the hearing of the proceeding, you will not be a party to the proceeding but your statement of grounds will be considered at any contested hearing of the proceeding.

Fees apply if you intend to appear or present a submission at the hearing. If you do not pay the fee at the time of lodging your statement of grounds, you will not be a party and will not be entitled to take part at the hearing or any compulsory conference, even if you indicated that you wanted to participate. For information about fees and fee relief, visit www.vcat.vic.gov.au. 

Your statement of grounds should provide sufficient information so that the issues you intend to raise can be clearly identified. 

Lodge your statement of grounds online with VCAT 
You may lodge your statement of grounds online with VCAT. Go to www.vcat.vic.gov.au 
Alternatively, you may access a blank statement of grounds form on the VCAT website.

Withdrawals
If you are a respondent and wish to withdraw your objection at any time after you lodge your statement of grounds, you must inform VCAT, the applicant and the relevant authority in writing. You will then be withdrawn from VCAT’s record and receive no further correspondence.

If you are the applicant, any application for withdrawal of the application must follow the procedures set out in VCAT Practice Note PNVCAT1 – Common Procedures.

Adjournments
Applications for adjournment of a hearing are not encouraged and you should not expect that an adjournment will be granted even if all parties consent.

VCAT may refuse an adjournment if it considers that the adjournment is:
•	not in the public interest
•	prejudicial to the interests of one or more parties or the expeditious determination of the proceeding
•	contrary to efficient case management, or
•	otherwise not justified.

If you wish to apply for an adjournment, choose the Application for Consent to adjournment form on the VCAT website or call us for a hard copy. Any application for adjournment must follow the procedures set out in VCAT Practice Note PNVCAT1 – Common Procedures. Refer to the VCAT website for more detail.

Providing your email address
VCAT will send copies of all orders, including the final decision, to a party’s email address. VCAT will not send a hard copy in addition.

A party’s email address will be available on VCAT’s records for other parties to access.  If you do not want other parties to have access to your email address, do not provide your email address. If VCAT does not have your email address, you will be sent a hard copy of any order, but you may receive it after other parties have received the order by email and after the order has been published.

VCAT does not accept any responsibility for emails not received due to changes in address, firewall or other security measures that may be attached to your email account.

Inspecting VCAT’s file
Any party to the proceeding may inspect the VCAT file relating to the proceeding without a fee. Anyone else can inspect the file, but they must pay a fee. There is a charge for photocopying. To arrange an inspection time, complete the File and Document Access Request Form available on the VCAT website.

Hearing fees and waiver or reduction of hearing fees
If you are the applicant in this proceeding, you are required to pay a daily hearing fee for each day or part day of hearing. This includes accompanied site visits. 

The amount of fee will depend on whether your case is deemed to be a complex case. You will be advised if your application is considered a complex case by the Registrar in advance and prior to the hearing. If your application is deemed a complex case you will be required to pay higher hearing fees. See VCAT’s website for information on hearing fees for complex cases.

You are required to pay your fee online or at Counter Services on the ground floor at 55 King Street the day before the hearing. If you do not pay the fee, your hearing may be adjourned or struck out.  

There are some exceptions to this requirement to pay hearing fees. VCAT Practice Note – PNVCAT 6 Hearing Fees sets out the procedures that apply to the charging of daily hearing fees in proceedings before the Tribunal, including who is liable to pay the daily hearing fee.  This Practice Note and other information is available on VCAT’s website.

For example, Day 1 hearing fees do not apply to a VicSmart application or a change in conditions application unless an objector application is also lodged, in which case the permit applicant must pay the Day 1 hearing fee. If an objector application is transferred into the Major Cases List, the permit applicant must pay any hearing fee.

The Principal Registrar has the power to waive or reduce a daily hearing fee in certain circumstances.  An Application for Fee Relief form is available on VCAT’s website. Any application to waive or reduce the daily hearing fee should be made as soon as possible in order to avoid any delay in the hearing.

Attendance at the practice day hearing
If you do not appear or are not represented at the practice day hearing, the Tribunal may make orders, including final orders, which may affect your interests. In particular, the Tribunal may make any of the following orders under the Victorian Civil and Administrative Act 1998:

•	If you are the applicant to VCAT, your application may be dismissed or stuck out.
•	If you are not the applicant, you may be struck out as a party to the proceeding. This means that you can take no further part in any compulsory conference or hearing.
•	You may be ordered to pay costs in certain circumstances.

If you wish your interests to be taken into account or wish to make submissions:
•	You must file with the Tribunal and serve on all other parties a submission in writing by close of business on the Wednesday prior to the date of the practice day hearing; and/or
•	Appear at the practice day hearing. An applicant should normally attend or be represented at the hearing.

appendix B 
compulsory conference INFORMATION SHEET
(environment and resources proceedings)
What is a compulsory conference?
A compulsory conference is a confidential meeting at which parties to the proceeding, can explore options to reach an agreement on all or some of the matters in dispute with the assistance of a Tribunal member.  If the compulsory conference is to be successful, the parties should come with an open mind and flexibility in considering options that could resolve the case. More information about compulsory conferences is available on the Tribunal’s website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 – Alternative Dispute Resolution (ADR).

Requirement to attend compulsory conference
If you are a party, you must attend the compulsory conference in person or by a representative who has permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in your absence.  

Who may attend a compulsory conference?
Only parties to the proceeding may attend a compulsory conference. 

What happens if the compulsory conference is successful?
If the compulsory conference is successful and results in an agreement by the parties present at the compulsory conference, the Tribunal may make a final order to give effect to the agreement without a hearing being required. 

What happens if the compulsory conference is not successful?
If parties present at the compulsory conference do not reach an agreement, the application will be listed for hearing. An order may be issued by the Tribunal confirming the details of the hearing or the Tribunal may list the matter for a practice day hearing to consider its future conduct, e.g. length of hearing, venue, filing of additional materials, calling of evidence and expert witness conclaves etc. 

What happens if the compulsory conference is partially successful?
If the parties present reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference. 

What should you bring to the compulsory conference?
Parties should be come to the compulsory conference with a summary of their issues and solutions as well as any possible changes that each considers could be made to the plans, proposal or notice in order to address the concerns of the other parties.

Planning and Environment division
opening statement at a compulsory conference
VCAT reference number	P11778/2021	
Applicant	

	Brimbank City Council	

Decision maker	Environment Protection Authority	
Other parties		

Each party must complete this opening statement prior to the date of the compulsory conference and give it to the member on the day.  The statement must not be given to the Tribunal before the compulsory conference because it is confidential.  Its purpose is to clarify the respective positions of each of the parties to the application by identifying the issues that the parties consider most important to them and possible solutions.
Name of party signing form		
Most important issues in dispute from your perspective (including any legal matters)Attach additional pages if required

	

	

What potential solutions would you consider?  Attach additional pages if required

	

	

Signature:_______________________________________ 
Date:________________