VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P41/2015
PERMIT APPLICATION NO. PP14/00958
APPLICANT
Coles Group Property Developments Ltd
(formerly BMDA Development Advisory)
RESPONSIBLE AUTHORITY
Boroondara City Council
REFERRAL AUTHORITIES
Public Transport Victoria
Vic Roads - Metropolitan South East Region
RESPONDENTS
(OBJECTORS)
Anna Carina, Rosemary Robertson, Siobhan
Barker, Mary Drost OAM, Bryan Yianakis, John
Sebald, Abdy Sadri, Richard Maddever, Mark
Cudlipp, Paul Hobson, Sally Harrison, and others
Redmoor (Camberwell) Pty Ltd
SUBJECT LAND
725-757 Riversdale Road, CAMBERWELL
WHERE HELD
Melbourne
BEFORE
Mark Dwyer, Deputy President
HEARING TYPE
Practice Day Hearing
DATE OF HEARING
27 March 2015
DATE OF ORDER
1 April 2015
ORDER
Further Hearings
1
This proceeding is adjourned to a further practice day hearing on 31 July
2015 at 10am at 55 King Street, Melbourne, with a time estimate of up to
two hours. The purpose of that practice day hearing is:

to consider the future conduct of the proceeding, including
arrangements for a final hearing.

to consider whether the permit applicant proposes to substitute
amended plans, including the timing and extent of notice about any
amended plans having regard to VCAT practice note PNPE-9.
2

to consider whether the proceeding should be referred to mediation or
a compulsory conference prior to any final hearing.

to make or amend representative orders for the filing or service of
information in the proceeding, including any expert witness
statements, having regard to the number of community objector
parties.
No final hearing date has yet been set. At this stage, a final hearing will
likely be scheduled for a hearing of up to 10 days, during or after November
2015, before a two-member tribunal comprising a legal member and a town
planner member.
Statements of Grounds
3
All Statements of Grounds already filed by community objectors in the
proceeding (up to and including those filed on 27 March 2015) are accepted
as valid, despite some having been received after the date of 2 March 2015
indicated in the permit applicant’s public notice about its application.
[VCAT has to date received Statements of Grounds from approximately
1,300 community objectors, of whom approximately 100 have elected (or
are deemed to have elected) to be parties in the proceeding. The other
approximately 1,200 objectors have indicated that they do not intend to
participate at the hearing but wish their Statement of Grounds to be
considered, and are not parties in the proceeding.]
4
The time for lodging or amending a Statement of Grounds in the proceeding
is further extended until 4 pm on 30 April 2015. (See also Order 6).
Parties
5
The name of the permit applicant and applicant in this proceeding is
amended from BMDA Development Advisory to Coles Group Property
Developments Ltd. The applicant’s address for service is c/- Norton Rose
Fulbright Australia, 485 Bourke Street Melbourne Vic 3000 (Email:
clare.somerville@nortonrosefulbright.com).
6
A ‘party contact list’ is attached to these orders, showing the approximately
100 persons that VCAT currently has registered as parties. By not later
than 4 pm on 30 April 2015, a person must notify VCAT in writing (and
forward a copy to the applicant and the responsible authority) if:

that person wishes to correct his or her name or contact details on the
party contact list, or provide an email address.

that person no longer wishes to be a party in the proceeding, and
wishes to be removed from the party contact list. (The person’s
Statement of Grounds will still be considered by VCAT).
VCAT Reference No. P41/2015
Page 2 of 9

7
that person is not on the party contact list, but wishes to be a party in
the proceeding and added to the party contact list. (If seeking to be
added as a party, the person will need to advise if he or she has
previously lodged a Statement of Grounds, or file a Statement of
Grounds).
To facilitate the efficient exchange of information and arrangements for the
hearing, and insofar as practicable, community objector parties are
encouraged to form themselves into representative groups with nominated
co-ordinators or spokespersons. Without limiting this option, by not later
than 4 pm on 7 May 2015, each of Anna Carina, Rosemary Robertson
and/or any other person representing a group of other community objector
parties named on the ‘party contact list’ must notify VCAT in writing (and
forward a copy to each of the persons listed in Order 14) of:

the name (if any) of the group, and the name and contact details of the
nominated co-ordinator of that group.

the names of each party included in that representative group.
8
A party is not required to join a representative group. A party not joining a
representative group will however be required to separately attend or be
represented at each compulsory conference or hearing, including that part of
any final hearing when their submission will be made. Failure to attend may
lead to that party being removed as a party without further notice, or orders
being made in their absence.
9
Given the number of community objector parties, VCAT may regulate the
time allocated to particular parties at any hearing, and may regulate the
cross-examination of expert witnesses.
Communication with other parties, and interim representative orders
10
All communications to VCAT about this proceeding must quote the VCAT
reference number P41/2015.
11
If the permit applicant or the responsible authority or a referral authority is
required to communicate with the other parties, a copy of that
communication must be provided by mail or email to each other party on
the party contact list.
12
If a respondent or community objector party is required to communicate
with the other parties, a copy of that communication must be provided (as a
minimum) to each person listed in Order 14.
13
On an interim basis until further order, if a communication by any party to
VCAT or other parties refers to or includes another document (e.g. plans,
reports etc), it will be sufficient compliance with any notice or service
requirement if that party:
VCAT Reference No. P41/2015
Page 3 of 9
14

provides a copy of that document to each person listed in Order 14;
and

provides two additional hard copies and one electronic copy of the
document to the responsible authority for community inspection
and/or posting on the Council website; and

indicates to any other party receiving the communication details of the
place where the document may be inspected or a copy obtained.
For purpose of Orders 7, 12 and 13, in addition to the filing of any
communication or document with VCAT, the parties to whom a copy of the
communication or document must be given are:

the applicant Coles Group Property Developments Ltd (via its
solicitors NortonRoseFulbright)

the responsible authority, Boroondara City Council

the two referral authorities, Public Transport Victoria, and Vic Roads
- Metropolitan South East Region.

Redmoor (Camberwell) Pty Ltd (via its solicitors Best Hooper)

Anna Carina (on behalf of the currently named Middle Camberwell
Friends and Community Group)

Rosemary Robertson (on behalf of the currently named Abutting
Residents Group)

Jack Roach (on behalf of the Boroondara Residents Action Group)

a separate copy to each of Siobhan Barker, Mary Drost OAM, Bryan
Yianakis, John Sebald, Abdy Sadri, Richard Maddever, Mark
Cudlipp, Paul Hobson, and Sally Harrison, at their address as stated in
the party contact list.
15
The interim representative orders may be changed by further order,
following clarification of parties and representative groups, and updating of
the party contact list, in accordance with these orders.
16
Email is the preferred form of communication. If a party does not provide
an email address, that party will receive information via ordinary mail and
may therefore receive the information later than other parties.
Council to host website information
17
The responsible authority, Boroondara City Council, is directed to host on
its website a webpage or section dedicated to this proceeding, within which
current information relevant to this proceeding may be posted. Without
limiting the information to be posted, it must include:

a copy of all VCAT orders, including this order. The posting of this
order should exclude the attached party contact list, but the Council
VCAT Reference No. P41/2015
Page 4 of 9
should post information about how a party may obtain a ‘party contact
list’ from VCAT or the responsible authority for other relevant parties
in the proceeding.

information about the date(s) and venue of any scheduled VCAT
hearing.

a copy of any expert witness statements filed by the parties.
Non compliance with orders and directions
18
Non-compliance with these orders may result in an application or party
being struck out, or other sanctions under the Victorian Civil and
Administrative Tribunal Act 1998 (including an award of costs) without
further notice.
19
Further information about VCAT procedures in the Planning and
Environment List is available on the VCAT website, including VCAT
practice notes.
Mark Dwyer
Deputy President
APPEARANCES
For Coles Group Property
Developments Limited & BMDA
Development Advisory
Chris Townshend SC of counsel, instructed by
Norton Rose Fulbright Australia
For Boroondara City Council
Andrew Kerr, assisted by Jake Matthews,
Council town planners
For Referral Authorities
No appearances
For Redmoor (Camberwell) Pty Ltd Dominic Scally, solicitor, of Best Hooper
For Community Objectors
VCAT Reference No. P41/2015
Anna Carina, Rosemary Robertson, Siobhan
Barker, Mary Drost OAM, Bryan Yianakis,
John Sebald, Abdy Sadri, Richard Maddever,
Mark Cudlipp, Paul Hobson, Sally Harrison,
and others, all in person
Page 5 of 9
REMARKS
1
The above orders are self-explanatory for those parties who were present at
the practice day hearing. Any community objector parties receiving a copy
of this order who were not present or represented at the hearing should
initially contact one of the other community objector parties who was
present, or the responsible authority, if they wish to understand the context
within which these orders are made. A key task over the coming month is
for the parties to clarify those objectors who wish to be separate parties in
the proceeding, and those who are content to be represented by others or to
have their Statement of Grounds considered by VCAT without formally
participating at a hearing.
2
I indicated at the practice day hearing that I would further consider the
request by some objectors that the permit applicant be directed to give
further notice of the VCAT application, and that the time for lodging
Statements of Grounds be extended.
3
I have decided that the time for lodging or amending Statements of Grounds
be extended until 30 April 2015. The permit applicant did not oppose a
short time extension.
4
I have however decided that VCAT will not make a direction for further
notice at this time. This issue will be further considered if the permit
applicant seeks to amend its current plans.
5
In relation to notice generally, the Council had not given any notice of the
permit application under s 52 of the Planning and Environment Act 1987. It
is not obliged to do so when it intends to refuse the application and I make
no criticism of the Council in this regard. However, a Council decision not
to give notice does have consequences for potential community objectors if
the matter then proceeds to VCAT. VCAT may direct that notice be given
about the VCAT application for review. However, this is different to the
statutory notice and objection process undertaken by a Council, and occurs
much later in the planning permit process, with potential community
objectors often receiving notice in a different way, and when the matter is
already at VCAT. In such cases, VCAT does not have the benefit of a list of
people who have already objected at the Council level. Some community
objectors feel disadvantaged by this process but, as I have said, it stems
from the Council’s decision not to give notice earlier in the planning permit
process.
6
Here, when the application for review was lodged at VCAT by the permit
applicant following the Council’s refusal to grant a permit, VCAT accepted
a Council request that separate direct notice be given to approximately 78
owners or occupiers of nearby land who may be materially affected by the
proposed development. The permit applicant complied with this direction.
The Council also suggested that broader public notice be given through four
signs on the land. VCAT directed three signs, but amended their location to
VCAT Reference No. P41/2015
Page 6 of 9
ensure all three road frontages were included in the notice. (The Council
had not suggested any notice in Hassett Avenue). Again, the permit
applicant complied with this direction. The dimensions and colour and
content of the signs also complied with VCAT standards. It is unfair to
blame the permit applicant for the level of notice when it has complied with
what it was required to do.
7
Public notice, through a sign on land or an advertisement in a newspaper, is
often undertaken for larger development proposals in addition to the
separate direct notification of nearby owners or occupiers. That occurred
here. It is notice to the public at large. It is not necessary that every person
in the local community physically sees the public notice. It is simply an
additional mechanism to get information into the public domain, with the
expectation that those who do see the notice will then interact with other
members of the community on matters of common concern, and the
information about the application and the opportunity to lodge an objection
will thereby be disseminated. I was told, by way of example, that one local
person living nearby had not seen the signs and only found out about the
development by talking to another local at the supermarket. That is not a
demonstration of the failure of notice, but of the public notice process
actually working.
8
With the benefit of hindsight, it could be argued that there could have been
more signs, or they could have been positioned differently, or that public
notice in a newspaper could have been given. However, the fact is that
approximately 1,300 Statements of Grounds have already been filed by
community objectors within a short space of time – much higher than the
normal levels for an application of this type. I am satisfied that the
community has been made sufficiently aware of the application through the
existing public notice, and through the work of a few committed members
of the local community. I am satisfied that relevant community views will
be well represented at any hearing.
9
There is thus no need for VCAT to direct further notice of the VCAT
application. If the Council or community groups wish to undertake further
public notice about the development proposal, or if the permit applicant
wishes to engage in further public notice as part of its proposed community
consultation about its proposal, that is a matter for those parties.
10
I also consider it unnecessary to direct further notice at this time, when the
permit applicant has foreshadowed that it may engage in informal
community consultation over the next couple of months outside of the
VCAT proceeding, and may well amend its proposal before the matter
proceeds further at VCAT.
11
A secondary issue about notice was raised by some community objector
parties in relation to the applicant’s proposal to vary a covenant affecting
some of its land in relation to roofing materials. It was argued that notice
should have been directed to be given to the beneficiaries of the covenant,
VCAT Reference No. P41/2015
Page 7 of 9
having regard to s 52(1)(ca) or (cb) of the Planning and Environment Act
1987.
12
I have decided that no further notice is required in relation to the covenant.
In particular:

Section 52 of the Planning and Environment Act 1987 applies to a
Council giving notice of a permit application, and does not strictly
apply here. The Council did not give notice of the permit application.
VCAT directed the permit applicant to give notice of the VCAT
application, which arises under s 83B of the Planning and
Environment Act 1987 rather than s 52.

Even if notice had been given under s 52, the Council would not have
been obliged to give notice to beneficiaries of the proposed variation
of this covenant, having regard to s 47(2) of the Planning and
Environment Act 1987, and given the lawful use and development of
the land for many years with non-complying roofing materials.
Although s 47(2) also does not strictly apply here, VCAT is entitled to
adopt an analogous position in considering what notice should be
given under s 83B. I note that the Council agrees with this view.
13
I also note in passing that several of the beneficiaries of the covenant
received direct notice in any event, as the benefit of the covenant appears to
be limited to nearby land, and many beneficiaries were amongst the 78
owners and occupiers of nearby land where direct notice was given. As I
have noted, the land has been used and developed for many years with noncomplying roof materials, and with no apparent concern by any beneficiary
under the covenant. Whilst the proposed variation of the covenant may be a
legitimate matter for debate at any hearing, I am not convinced from the
Statements of Grounds that have so far been filed that this is the key
concern for most community objectors.
14
It follows that no further notice will be directed.
Mark Dwyer
Deputy President
VCAT Reference No. P41/2015
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Printed: 9/03/2016