VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1491/2022
permit application no. PP317-2022

Applicant	Guy Wilson-Browne	

Responsible Authority	Greater Geelong City Council	
Respondents	Craig Cummings	
	David Newton	
	Jeanne Nel	
	Kellie Langdon	
	Kevin Neville	
	Fernando Sorgiovanni & Paula Sorgiovanni	
SUBJECT LAND	7-8 Oakwood Ridge
ST ALBANS PARK  VIC  3219	
type of hearing	Practice day hearing	
date of hearing	31 March 2023	
DATE OF ORDER	21 April 2023	
citation	Wilson-Browne v Greater Geelong CC [2023] VCAT 425	
Order
Hearing
1	The details set out in the Tribunal’s initiating order are changed.
The proceeding is listed for hearing on the date and for the time as detailed below, subject to the Tribunal determining that the application for review can proceed.  
The hearing will be at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you.
Hearing:	
Date and time	21 and 22 August 2023
10.00 am - 4.30 pm	

Conduct	In person	
Details will be published in the law list late on the afternoon of the day prior to the hearing. 
Providing submissions and associated material before the hearing
2	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
3	All expert evidence must be filed and served in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Hearing fees
4	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
Registered restrictive covenants
5	The application for review does not seek permission to remove or vary a restrictive covenant pursuant to clause 52.02 of the Greater Geelong Planning Scheme.  No further notice is directed to beneficiaries of registered restrictive covenants applying to the subject land.  
6	Leave is granted to parties to make any further written submissions by 1 May 2023 in respect of:
(a)	whether a potential determination by the Tribunal to grant a planning permit for a two lot subdivision and the subsequent issuing of a permit (if granted) by Greater Geelong City Council would constitute ‘approval by the responsible authority’ for the further subdivision of the relevant lot pursuant to the registered restrictive covenant contained in PS408242C; 
(b)	whether there is another lawful and appropriate mechanism available for approval of further subdivision under the registered restrictive covenant contained in PS408242C by the responsible authority as a separate act, concurrently with or after this review proceeding including:
i	whether a planning permit condition to the effect that the plan of subdivision cannot be registered with Land Use Victoria (Land Titles Office) until the approval of the responsible authority for further subdivision is obtained under PS408242C; or
ii	whether an interim determination could be issued by the Tribunal indicating support for the grant of a permit (if appropriate) to facilitate potential approval being granted by the responsible authority under PS408242C for the further subdivision of the subject land.  The Tribunal could then make a subsequent (final) decision granting a permit if such approval was granted; and
(c)	the effect of the decisions of TPSC Pty Ltd v Kingston CC [2018] VSC 313, Reid v Boroondara CC & Skinner [2004] VCAT 1797 or Mango Bonview Pty Ltd v Stonnington CC [2021] VCAT 1471 in respect of the above, relative to operation of section 61(4) of the Planning and Environment Act 1987 to the facts in the current proceeding. 
A copy of any submissions must be provided to the Tribunal and all parties at the same time. 
Substituted plans (representative order)
7	The permit applicant foreshadowed that it will make an application to amend the permit application by substituting amended plans for the permit application plans in this proceeding, or otherwise amending its application.  
Provided that the only amendments to the plans are to correct the area mapped for Victorian Heritage Significance and to introduce a proposed easement on the southern boundary of the land, it shall be sufficient compliance with clause 12 of VCAT Practice Note – PNPE9 Amendment of Plans and Applications if the permit applicant by 2 May 2023 (or such later date as may be provided by the Tribunal) gives notice of its application to amend the permit application in accordance with Table 3 of the Practice Note in the following way:
(a)	Provide a copy of the following documents to the Tribunal, all parties to the proceeding, any objector to the permit application who is not a party to the proceeding, all adjoining owners and occupiers and referral authorities:
iii	A notice of an amendment of an application in the form of PNPE9 Form A with the relevant details completed;
iv	A statement in writing pursuant to clause 12(a)(ii) of PNPE9;
v	directions to locate a blank statement of grounds form on the VCAT website, with any statement of grounds to be filed by 30 May 2023; 
vi	Advice that copies of the amended plans or other supporting material can be inspected on the responsible authority’s website; and
vii	Advice that a party may obtain a copy of the amended plans or other supporting material upon request to the permit applicant.
8	The permit applicant must provide the responsible authority with a copy of the plans and/or other material in electronic PDF form and the responsible authority must make available the plans and material on its website as soon as practicable after receiving them.
9	The permit applicant must provide the Tribunal with a statement of service three business days after giving notice of the amended plans, pursuant to clause 13.2 of the Practice Note.

Dalia Cook
Member

reasons
Introduction
1	A Practice Day Hearing was convened in this proceeding to consider a number of procedural and threshold issues.  
2	The first issue related to a request for adjournment of the main hearing by Mr Neville on behalf of himself and Ms Langdon. 
3	The second issue related to whether there was any relevant conflict of interest involving Maddocks Lawyers in this proceeding. 
4	The third issue was whether there was any need for a preliminary hearing or further orders in respect of compliance with registered restrictive covenants applying to the subject land. 
5	Other matters that arose in the running of the Practice Day Hearing related to an intervention order and a possible claim of inconsistency with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter). 
6	The permit applicant also sought orders confining service of proposed amended plans in the proceeding. 
consideration of issues raised
Adjournment request
7	The original basis for the adjournment was a claim by certain respondent objectors that they should be able to obtain and consider a report that was sought under the Freedom of Information Act 1982. 
8	They seek access to this document, which they understand to be a report of the Ombudsman into conduct concerning an earlier planning permit application in respect of the subject land.  They considered that it may raise pertinent issues relating to council governance and/or the permit applicant, who was a senior executive of Greater Geelong City Council (Council) at the time. 
9	This request is the subject of a proceeding in the Review and Regulation List of the Tribunal (Application No. Z466/2022).  A compulsory conference was held after the practice day hearing but did not resolve the issues in dispute.  The matter has been adjourned and will be listed for a hearing when Member resources permit.  
10	I found in principle that the document sought does not have the potential to be sufficiently relevant to this proceeding to occasion an adjournment.  It appears to concern an entirely different planning permit application that had been assessed in a discrete way.   
11	By contrast, the current planning permit application is a fresh application, subsequently lodged with Council, and processed in the ordinary way.  
12	If there are any governance considerations arising from the processing of the earlier planning permit application, I cannot see how this can be relevant to a determination of the Tribunal in a subsequent application, particularly where Council has refused to grant a permit and this decision will be reviewed afresh by the Tribunal in the current review proceeding. 
13	A second reason why an adjournment was sought, now a 12 month adjournment ‘with regular check ins’ was due to extreme health conditions of one of the respondents.  The participation of this particular respondent was considered central to the position of a number of respondents, all of whom are local residents.  
14	Council neither supported nor opposed the request.  The permit applicant advised it would agree to a short adjournment (of approximately 2 months) if the Tribunal considered this appropriate.  
15	It is extremely regrettable that one of the respondents is experiencing such health challenges.  
16	The Tribunal needs to consider how it can provide for a fair opportunity for all parties to be heard in a timely way.  It is important to ensure a reasonable amount of time for any respondent who may be facing challenges to attend a scheduled hearing to investigate potential opportunities to seek advice or to nominate another person (professional or otherwise) to represent them. 
17	At the same time, this is not a case where the affected respondent is the only objector party seeking review of a decision to grant a permit.  There are a number of other independent respondent objectors and Council will be defending its case against the grant of a permit.  
18	In all these circumstances, I find it would not be fair to the permit applicant to be required to wait a further 12 months for a hearing, even then without certainty about whether the respondent will be in a position to coordinate or run their case.  
19	However, I consider it would be reasonable to adjourn the hearing for a few months to enable the affected respondent to explore their options for how they could best be represented at a hearing.  
Registered restrictive covenants
20	The parties were provided with a copy of a decision in Application No. P1008/2022 dated 21 March 2023 where I answered various preliminary questions of law in respect of covenants with the same wording as those that apply to the subject land. 
21	In summary, in that case, I found that: 
a.	Section 60(2) of the Planning and Environment Act 1987 (PE Act) was not enlivened in respect of that permit application, since there was no permit application to remove or vary the restrictive covenant.  Therefore, the responsible authority and Tribunal on review did not need to form the view that beneficiaries of the covenant will be unlikely to suffer certain types of loss or material detriment as a consequence of the removal or variation of the covenant. 
b.	The Tribunal had jurisdiction to grant a planning permit if appropriate on the merits.  Section 61(4) of the PE Act would not be a bar to the grant of a permit since the grant of a permit would not itself authorise anything which would result in a breach of any registered restrictive covenant having regard to the wording of such restrictions. 
c.	The grant of a planning permit, and most likely the issuing of a Notice of decision to grant a permit by Council acting as the responsible authority, would constitute approval for further subdivision under the relevant restrictive covenant contained within the plan of subdivision. 
22	Having regard to my rulings in these other proceeding, no party identified any further questions of law that required determination in the current proceeding. 
23	The essential requirement in the relevant plan of subdivision provides: 
1. The development of multi-dwellings on lots 1-21 is prohibited unless approved by the Responsible Authority. 
2. The further subdivision of Lots 1-21 is prohibited unless approved by the Responsible Authority. [Tribunal emphasis.]
24	Council submitted in its written submissions in advance of this hearing that: 
… covenants in PS408242C dated 19 November 1997 or covenant V172802J dated 29 December 1997 will not be removed or varied by the issue of a planning permit, that the issuing of the planning permit does not breach the covenants, that the City has refused the proposal based on grounds of refusal related to neighbourhood character and subdivision pattern and that the Tribunal has the jurisdiction to determine planning permit 317/2022.
25	On reflection, I consider that one issue requires further consideration on the facts of this case.   
26	There is a need to ensure that the Tribunal does not impinge on the restriction in section 61(4) of the Planning and Environment Act 1987 which provides: 
If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.
27	It is clear to me from the reasoning in cases such as TPSC Pty Ltd v Kingston CC that a Notice of Decision to Grant a Permit by the responsible authority can constitute approval or consent by that authority under a relevant planning agreement or restriction. 
28	However, the status of approval by the responsible authority under a covenant is potentially less clear where that responsible authority has refused to grant a permit (as is the case here) and that decision is under review by the Tribunal. 
29	Would the decision of the Tribunal to grant a permit or the subsequent issuing of a permit pursuant to section 86 of the PE Act constitute approval by the responsible authority for further subdivision under the restrictive covenant?  
30	If not, and the responsible authority was to commit to giving effect to any decision of the Tribunal potentially supporting the subdivision, would there be other lawful and appropriate mechanisms to facilitate such approval by the responsible authority? 
31	I propose to give parties an opportunity to make written submissions on this issue before I make any findings.  
32	In framing Order 6 above, I have outlined the key considerations I need to have regard to before I can confirm whether this matter can progress to a hearing.  Parties may make submissions on these limited matters if they wish.  
33	The need to resolve this threshold matter is another factor supporting a short adjournment of the main hearing, if it is ultimately able to proceed. 
Notice of amended plans (proposed)
34	The permit applicant advised that it proposed to amend the application plans to enlarge and correct the area of identified Victorian Heritage Significance. It also proposed an additional easement for services at the rear of the property, allegedly on account of consent being withheld to connect into relevant existing services.  
35	Subsequent to this hearing, the permit applicant provided a copy of a Heritage Consent from the Executive Director of Heritage Victoria dated 31 March 2023.  This consent was issued pursuant to section 124 of the Heritage Act 2017 (Heritage Act).  
36	The consent granted permission subject to conditions to excavate by way of ‘site disturbance works as part of sewer main construction, subject to historical archaeological monitoring and reporting’.    
37	Some respondents sought an order requiring that notice of these amendments to the plans should be given to all people originally notified and who had objected.  
38	I need to consider the extent to which people may suffer material detriment as a result of these two proposed changes.  
39	The heritage registration is a relevant consideration under the auspices of the Heritage Act, given the site’s inclusion in the Victorian Heritage Register.  However, there are no third party rights to review a decision to issue a heritage consent. 
40	Likewise, if the owner or applicant were to seek permission under section 93 of the Heritage Act for carrying out works or activities in relation to the registered place, the Executive Director may decide whether to give public notice (and thereby receive public submissions).  
41	Once a decision is made under section 102 of that Act, the applicant/owner or government asset manager could apply to the Heritage Council for a review of the decision under section 106.  Once again, there are no third party rights to seek review.  
42	There is also no Heritage Overlay applying to the subject land under the current planning scheme, so no permission is sought for works under such overlay.  
43	In these circumstances, I consider it would not be appropriate to give broad notification when there is no relevant trigger under the planning scheme controls. 
44	While the creation of a new easement for conventional domestic services requires planning permission under clause 52.02 of the planning scheme (and this permission is already sought in the current permit application), I consider that this has limited potential for detriment to adjoining properties, especially having regard to the proposal for only one additional lot.  While there may be impacts on vegetation and the like, these are likely to be localised.  
45	On this basis, I consider that the interests of people who may be capable of being caused material detriment in a real and substantial sense would be confined to people who originally objected and all adjoining properties (if different).  
46	These people should be given notice of the amended plans in addition to parties to the proceeding and any referral authorities.  However, it is not necessary for broader notification to be given, as long as the subject matter of the amendments is confined as described in this hearing.  
Other matters
Potential conflict of interest
47	Legal practitioners have a duty to the Tribunal to facilitate the efficient and proper administration of justice to the standards set by it and the legal profession.    
48	I find that there is absolutely no evidence of any conflict of interest (perceived or otherwise) involving Maddocks Lawyers in this proceeding as alluded to by some respondents.  
49	Maddocks Lawyers provided legal advice about the operation of the restrictive covenants applying to the land and the prospect of the land being subdivided and developed for more than one dwelling.  This was in 2019.  
50	I was advised that firm may have originally been advising or representing Council in respect of the Freedom of Information request referred to above (Z466/2022).  However, at this hearing, Council clarified that it had engaged a different firm of solicitors to represent it in that proceeding. 
51	Maddocks Lawyers is not on the record as having any role in the current proceeding.  
52	In my opinion, this puts any claim of impropriety or perceived conflict of interest to rest in this proceeding. 
Intervention order 
53	I was also advised that one of the respondents had the benefit of an intervention order (or similar) against tenants of the subject land.  I queried how this may have the potential to affect the running of this proceeding, noting that only the owner of the land is participating as permit applicant.  
54	At this point in time, I am not aware of any threat to the safety of any of the parties while directly participating in this Tribunal proceeding.  
55	However, if special measures are sought by any party, they could make such a request to the Tribunal registry with appropriate justification. 
Adherence to Charter
56	Mr Neville raised concerns that his partner’s basic rights to privacy, life and property would be affected by this proceeding or its potential outcomes.  
57	The Tribunal takes its obligations under the Charter seriously. 
58	The right to privacy is contained in section 13 of the Charter in the following terms:
A person has the right-
(a)	not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.
59	The right to life is contained in section 9 of the Charter in the following terms:
Every person has the right to life and has the right not to be arbitrarily deprived of life.
60	Property rights are protected in section 20 as follows:
A person must not be deprived of his or her property other than in accordance with law. 
61	To the extent that the Tribunal has been held to be a public authority bound by the Charter, the essence of the legislative obligation in section 38 is to ensure that it does not act in a way that is incompatible with a human right or, in making a decision, fail to give proper consideration to a relevant human right.  
62	Also, on the proper operation of section 32 in conjunction with section 6(2)(b), the Tribunal is obliged to consider the Charter when applying the PE Act and the planning scheme to ensure these are interpreted compatibly with protected human rights.  
63	I have no doubt that being a party to a Tribunal proceeding takes a personal toll on participants.  
64	However, I was not provided with any persuasive response from Mr Neville when I queried how it would be possible for this Tribunal proceeding to affect any of these rights arbitrarily or other than in accordance with the law. 
65	Also, the rights protected by the Charter are not absolute.  They are subject to reasonable limits that may be placed on these rights under section 7(2).  That provision reads:
A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
66	For example, one person’s right to not be deprived of their property does not negate another person’s potential right to develop their property nearby. 
67	It is also relevant that the Charter operates in a state-wide legislative context whereby legal proceedings can be legitimately progressed.  It is difficult to see how the mere exercise of such an entitlement under other legislation could infringe the scope of the human rights that are protected in a way that was contrary to law.
68	I am conscious of the three step process endorsed by the Court of Appeal in R v Momcilovic.  In Smith v Hobsons Bay CC, the Tribunal adapted this process to a planning proceeding by asking, in summary: 
•	Is a protected human right engaged by the proposed decision?  What is the scope of the right, including specific qualifications or limitations in the Charter? 
•	Would any particular decision or outcome be incompatible with that human right? 
•	If so, would any limitation or restriction be justified as part of the decision?  
69	Given the way in which the rights are expressed in the Charter, I cannot see how the affected respondent could be ‘arbitrarily deprived the right to life’ as a consequence of a Tribunal determination in this two lot subdivision application, let alone by the Tribunal making any procedural orders progressing the matter to a hearing.  
70	I have already separately considered the merits of the adjournment request as a matter of procedural fairness above.  
71	Likewise, I cannot see how the affected respondent could be deprived of any property other than in accordance with the law as a result of the above.  No party stands to be deprived of any legal or proprietary interest in land, or the ability to use and develop that land in accordance with the planning regulatory framework operating in Victoria.
72	The right to privacy is potentially more nuanced in a proceeding such as this.  Mr Neville was concerned that a practical outcome of a decision to allow the subdivision may be the removal of vegetation on the subject land near the common boundary, or disturbance by contractors. 
73	In reality, the application for permit does not seek any permission for vegetation removal (which may be allowed without any permission under the relevant planning scheme provisions).  Likewise, no permission is sought for buildings and works at this stage.   
74	Even if this was a right capable of being engaged by the proposed decision, Mr Neville has not satisfactorily demonstrated that any decision the Tribunal is making at this stage in the proceeding would be incompatible with the right to not to have one’s privacy, family or home ‘unlawfully or arbitrarily interfered with’.
75	I endorse the view expressed by Deputy President Dwyer in the decision of Smith v Hobsons Bay CC, that: 
it would be a rare and exceptional case where a planning scheme provision was not Charter compatible, or that a planning discretion properly exercised within the limitations of the planning regulatory framework would be viewed as anything other than a lawful, reasonable, proportionate and justifiable limitation on a person’s right to privacy. Each case will however turn on its own facts and circumstances.
76	This is especially the case where the Charter is invoked in respect of procedural orders sought in a hearing. 
77	Instead, it appears that the more substantive concern of these respondents is that the proceeding may result in the grant of a permit for subdivision, and that this may result in works for a second dwelling on one of the lots to be created.  The amenity impacts of these works were identified as a particular concern for the respondents. 
78	The Tribunal does not have the power to control whether or when a permission that may be granted is acted on.  It would be an improper use of its discretion to extend the time to complete a proceeding in an attempt to delay commencement of any works that may be approved.  
79	I also note that, in practise, there are other more direct legislative provisions that could be invoked and enforced by Council or other authorities to prevent unreasonable nuisance, such as during construction, if this were to become an issue.  
80	However, this issue is entirely premature considering the application before the Tribunal.   

Dalia Cook
Member

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