VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P999/2021
permit application no. 2021/13

Applicant	Stuart Strachan	

Responsible Authority	LaTrobe City Council	
Respondent	Garth Phillips	
Referral Authorities	Country Fire Authority	
	Head, Transport for Victoria	
SUBJECT LAND	739 Traralgon-Balook Road
CALLIGNEE  VIC  3844	
HEARING TYPE	Practice Day Hearing	
date of hearing	25 November 2022	
DATE OF ORDER	28 November 2022	
citation
	Strachan v LaTrobe CC [2022] VCAT 1350	
Order
1	The details set out in the Tribunal’s initiating order are changed.
2	This application is listed for a practice day hearing, preliminary hearing, and a hearing as detailed below.
The hearings will be conducted at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you.

Practice Day Hearing:	
Date	3 March 2023	

Start time	For details of the start time, please refer to the Tribunal’s website (www.vcat.vic.gov.au/todays-hearings) after 5.00pm on the day before the hearing	
Duration 	One hour	
Conduct	Online platform	

Preliminary Hearing:	
Date and time	16 & 17 May 2023
10.00 am – 4.30 pm	

Conduct	Online platform	

Hearing:	
Date and time	8 & 9 August 2023
10.00 am – 4.30 pm	

Conduct	Online platform	
The details of the online platform will be provided to the parties before the hearing.
What the respondent must do – circulate the permit application (including plans) relied upon
3	By no later than 9 December 2022, the respondent must file and provide a copy to any other party, the permit application (including the plans) that it relies upon in this proceeding, being the permit application considered by the responsible authority in deciding to issue the Notice of Decision to Grant a Planning Permit dated 14 May 2021. 
Questions of law – pre-filing dates
4	Subject to order 5, by no later than 21 February 2023, the responsible authority, on behalf of the parties, must file a joint questions of law statement with the Tribunal and copy any other party.  
5	If the parties are unable to agree on a joint questions of law statement, the parties must advise the Tribunal accordingly and each party must file and copy in any other party a questions of law statement by no later than 21 February 2023.
6	If any party opposes a question of law proposed by another party, they must file written submissions in the Tribunal and copy any other party by no later than 28 February 2023 explaining that party’s reasons as to why the proposed question(s) of law should be rejected or amended, and if amended, provide a mark-up of any alternate wording proposed.  
Practice day hearing – 3 March 2023
7	The purpose of the practice day hearing is:
•	to give directions about the future conduct of the proceeding;
•	to consider the extent and wording of any proposed questions of law filed by the parties;
•	to consider if any proposed questions of law are contested;
•	to consider if the proposed questions of law should be accepted, amended or rejected; 
•	to consider any alternate wording of any proposed question of law;
•	to consider the inclusion of any other questions of law considered appropriate by the Tribunal; 
•	any additional purposes to be considered at the preliminary hearing; and
•	any requests for procedural orders to be made. 
8	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;
•	submissions, including any supporting evidence and documents, relating to the specific purpose of the practice day hearing (where relevant);
•	if any party is seeking procedural directions, a copy of the directions sought.
What the referral authorities (CFA and Head, Transport for Victoria) must do - submissions
9	By no later than 4 April 2023, the Country Fire Authority (CFA) and Head, Transport for Victoria must file and provide a copy to the other parties, any written submissions they respectively wish to make addressing the purposes of the preliminary hearing (including addressing the matters set out in order 4 of the Tribunal’s Order dated 8 August 2022) and any associated materials.
What the applicant, responsible authority and respondent must do – further submissions
10	By no later than 4 April 2023, the applicant, responsible authority and respondent must file and provide a copy to other party any further written submissions they respectively wish to make addressing the purposes of the preliminary hearing (in addition to the submissions already filed by the parties to date in accordance with orders 4 and 5 of the Tribunal Order dated 8 August 2022) and any associated materials.
What all parties must do – submissions in reply
11	Any party wishing to make a submission in reply to any submissions pre-filed and served by the parties addressing the submissions pursuant to orders 9 and 10, must file a written submission and associated material and provide a copy to any other party by no later than 26 April 2023.
Tribunal Book
12	By 2 May 2023, the responsible authority must provide an electronic copy of a Tribunal Book to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au 
Information on the content and format requirements of the Tribunal Book is available at www.vcat.vic.gov.au  
11	All parties must assist the responsible authority by providing any document that they intend to rely upon at the preliminary hearing in a timely manner and by no later than 28 April 2023 to enable the responsible authority to comply with the timetable set in these orders. 
Preliminary hearing - 16 & 17 May 2023
12	The purpose of the preliminary hearing is
•	to give directions about the future conduct of the proceeding;
•	to consider the matters set out in order 4 of the Tribunal order dated 8 August 2022;
•	to consider the relevance of any questions of law raised in the Notice of Appeal to the Supreme Court from the decision of the Tribunal in Myers v Southern Grampians SC [2022] VCAT 695 to this proceeding and the implications for this proceeding;
•	to consider the decision of Justice Quigley, President of the Tribunal, in Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191
•	to consider section 7 of the Planning and Environment Act 1987 and whether there is an inconsistency between different provisions of a planning scheme pursuant to section 7(4) of the Planning and Environment Act 1987 and this proceeding;
•	to consider any questions of law articulated in the joint questions of law statement filed by the parties, or alternatively, each of the questions of law statements filed and served by the parties; and
•	any other purpose(s) determined the practice day hearing by the Tribunal that should be considered. 
13	Parties must attend the preliminary hearing with the following information:
•	details of any other applications at the Tribunal that are related to this application;
•	submissions, including any supporting evidence and documents, relating to the specific purpose of the preliminary hearing (where relevant);
•	if any party is seeking procedural directions, a copy of the directions sought.
Providing submissions and associated material before the hearing
14	No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
15	All expert evidence must be provided in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Hearing fees
16	If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

Carol Daicic
Senior Member

Appearances
For Stuart Strachan	In person	
For Garth Phillips	David Vorchheimer, Australian Lawyer of HWL Ebsworth Lawyers instructed by Garth Phillips 	
For LaTrobe City Council	Mimi Marcus, Australian Lawyer, Marcus Lane Group instructed by Karen Egan, town planner	

For Country Fire Authority	Eliza Bergin of Counsel, instructed by Louise Naylor, Australian Lawyer of CFA and Stephen Foster of CFA	
For Head, Transport for Victoria	No appearance	

remarks
Purpose
1	The purposes of the practice day hearing according to Tribunal Order 2 dated 28 October 2022 are set out below:

Pre-filed submissions
2	Submissions were pre-filed on behalf of the applicant, responsible authority and the respondent. 
3	No submissions were pre-filed by the referral authorities. 
4	The Head, Transport for Victoria did not appear. 
Which permit application plans does the respondent rely upon?
5	The respondent confirmed that he no longer seeks to substitute the amended plans discussed at the hearing on 5 August 2022 for the permit application plans (refer to discussion below). 
6	Instead, the respondent submits that he relies upon the permit application plans that were considered by the responsible authority in deciding to issue a Notice of Decision to Grant a Planning Permit dated 14 May 2021 (the ‘decision plans’).
7	I have made orders requiring the respondent to file and circulate the permit application (including the decision plans) relied upon in this proceeding.  
Status of any verbal orders made to substitute the permit application plans
8	An issue before me at the practice day hearing was the fact that on 20 June 2022, the respondent gave notice of his intention to amend the permit application plans with the following (collectively the ‘amended plans’):
a)	amended plans prepared by Opulent Homes dated 17 June 2022 and an accompanying statement of changes;
b)	an amended Farm Management Plan, prepared by Dean Suckling Enprove Pty Ltd dated 17 June 2022; and
c)	a Native Vegetation Assessment prepared by Ranges Environmental dated 17 June 2022. 
9	In response to Tribunal Order 3 dated 28 October 2022, on 16 November 2022, the respondent confirmed he no longer seeks to formally substitute plans in the proceeding and that he does not rely on the amended plans. 
10	The Tribunal had sought clarification at the practice day hearing on 28 October 2022 because the substitution of amended plans is a live issue and a ground of appeal in the Supreme Court in the matter Myers v Southern Grampians SC  [2022] VCAT 695.
11	The amended plans were discussed verbally on day 1 of the hearing on 5 August 2022. The Tribunal constituted by Member Wickramasinghe made a verbal order substituting the amended plans for the permit application plans. 
12	However, the Tribunal Member’s verbal order was never perfected in written orders. 
13	The responsible authority filed written submissions dated 22 November 2022, with which all parties either concurred or did not oppose, as follows. 
14	Section 116 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) relevantly states:

15	Rule 4.22 of the Victorian Civil and Administrative Tribunal Rules 1998 (VCAT Rules) states that an order may be authenticated in accordance with s 116(1)(b) of the VCAT Act by being signed by a member of the Tribunal or the principal registrar and having the seal of the Tribunal affixed:
 
16	Section 118 of the VCAT Act states:

17	In this case, the Tribunal’s verbal order of 5 August 2022 was not:
a.	made in writing; or
b.	authenticated in accordance with the VCAT Rules insofar as it was not signed by a member of the Tribunal or the principal registrar, with the Tribunal’s seal affixed to it. 
18	Accordingly, it was submitted that:
a.	there is no order made for the purpose of s 116 of the VCAT Act formally substituting the amended plans in the proceeding; and
b.	where no order was made, it cannot have come into effect for the purpose of s 118(1) of the VCAT Act. 
19	The responsible authority cited Carmody v Mornington Peninsula SC & Anor where the Tribunal in that case determined while the orders had been pronounced orally in that case, they had not been issued in accordance with the VCAT Act and it was therefore not functus officio in the proceeding. 
20	The Tribunal said:
9. 	It appeared to me that the Tribunal was not functus officio in this proceeding. Although orders had been pronounced, they had not been issued. It seemed to me that the orders were akin to an order of a court that has been pronounced, but not drawn, passed and entered (as to which see Re XL Petroleum Pty Ltd [1971] VicRp 67; [1971] VR 560), and that they might consequently be recalled. I add that section 116(1) of the Victorian Civil and Administrative Tribunal Act 1998 requires an order of the Tribunal to be in writing and authenticated in accordance with the rules, and that rule 4.16 of the Victorian Civil and Administrative Tribunal Rules 1998 provides that an order may authenticated by being signed by a member of the Tribunal or the principal registrar and having the seal of the Tribunal affixed. Here, the seal of the Tribunal had not been affixed to the written orders and the account of the oral reasons.
10. 	It appeared to me also that the question that had arisen since the hearing plainly justified offering the parties the opportunity of being heard further. It was accordingly arranged that the parties would be heard further on 20 September 1999.
21	I consider that the current proceeding is an analogous circumstance insofar as whilst the Tribunal pronounced orders formally substituting the amended plans in the proceeding, they were not made and issued in accordance with the VCAT Act. 
22	Thus, in circumstances where the respondent no longer seeks to formally amend the permit application plans for the amended plans, no order is to be made in writing and the hearing is to proceed based on the plans forming the subject of the responsible authority’s decision. All parties agreed to this course of action. 
Timetable
23	It is common ground that:
a.	there should be a preliminary hearing; and
b.	the parties be given sufficient time and opportunity to prepare a proposed joint questions of law statement and failing agreement on that joint statement, individual proposed questions of law statements.
24	Having heard from the parties as to their availability and constraints, and considering the Tribunal’s availability, I have made orders listing this matter for a preliminary hearing for the purposes agreed with the parties. 
25	I have also made orders for the pre-filing of further submissions, submissions on behalf of the referral authorities as previously foreshadowed, particularly from the CFA, and submissions in reply. 
26	The responsible authority has agreed to prepare a Tribunal Book because the applicant is a lay person. 
27	It was agreed that a minimum 12 week period is required following the preliminary hearing to allow for the making of the Tribunal’s determination, time for the parties to consider the determination and seek advice, and to meet the standard pre-filing of requirements in advance of the hearing on the merits. 
28	Thus, I have made orders providing for a 12 week period between the preliminary hearing and the main hearing. 
29	However, the Tribunal and all parties acknowledge this period may change depending on the complexity and number of the questions of law raised, the timing of the Tribunal’s determination following the preliminary hearing and whether the parties indicate that they need more time to prepare for the main hearing, particularly if supplemental expert statements and updated submissions must be filed in advance of the hearing. This is likely given that the permit applicant has indicated he does not rely upon the amended plans. 
Requests for procedural orders
30	Any party who seeks procedural orders must request a practice day hearing and the Tribunal will list the matter for a practice day hearing if it considers it appropriate or necessary. 

Carol Daicic
Senior Member

Help and support
Information for all parties is available at the Tribunal’s website www.vcat.vic.gov.au

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www.vcat.vic.gov.au/afterapplyplanning

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