3. Payment of costs under paragraph 2 is stayed for one month from the date of this order.

Mr S Stewart of of Maddock Lonie & Chisholm appeared for the Responsible Authority.

Mr I G Sutherland QC appeared, assisted by Mr A Wood, Firbank's Business Manager, on behalf of the Respondent.

Mr A Dix of Maddock Lonie & Chisholm appeared for the Responsible Authority.

1. This proceeding commenced with an Application under Section 14 of the Planning Appeals Act 1980. The Application sought declarations relating to the interpretation of a planning permit, which was a matter that could be referred to the Tribunal under 149A(1)(a)(iii) of the Planning and Environment Act 1987 ("the PEA").

2. The Application was commenced in the Administrative Appeals Tribunal. On 1 July 1998, the Victorian Civil and Administrative Tribunal Act 1998 and Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 came into operation. Section 312 and Clause 9 of Schedule 2 to the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 apply. The Application continued in this Tribunal.

3. The Applicant submitted, by letter dated 8 September 1998 which was circulated to the other parties by way of notice, that "the power to hear the application will be that which the AAT had". Under Clause 9(1)(e) of Schedule 2 to the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, the Tribunal "has only the powers, functions and duties which the former Tribunal would have had in relation to the proceeding under the enabling enactment".

4. I do not take the Applicant's submission to mean that jurisdiction literally continues to be drawn from the repealed Act, or the PEA prior to its amendment by the VCAT Act and "Miscellaneous Amendments Act". There are no restrictions relevant to this Application that are imposed on the exercise of the powers under the new Acts arising from the provision that the former powers are not to be exceeded in a transitional case. There was no dispute about the extent of jurisdiction. The powers invoked in the Application are now available under Section 149A(1) of the amended PEA, which contains the jurisdiction to determine disputes about a matter relating to the interpretation of a Planning Scheme or permit, and Section 149A(2)(a), under which the Tribunal may make declarations.

5. The Applicant is the Bayside City Council, which is Responsible Authority administering the Bayside Planning Scheme.

6. The subject land is situated within a "Special Use (Brighton) zone", except for one property forming part of the school campus that is still zoned Residential C, and which operates under a permit as the school office. The Special Use zone provisions are contained in Clause 126 of the Planning Scheme.

7. The Application was set out in question and answer form, inviting that the following "answers" be made by way of declaration:

(i) Firbank Girls Grammar School does have existing use rights for an Education Centre.

(ii) Planning Permit P.2184 is a permit for development only, except to the extent that it allows the use and development of the SEC substation.

(iii) Condition 11 of Planning Permit P.2184 is valid.

(iv) "Normal school activities" means any activity carried out by any school of education for primarily an educational purpose.

8. The facts relied on in the Application may be summarised as:

(a) Planning Permit P.2184 was issued by the Applicant as Responsible Authority at the direction of the Administrative Appeals Tribunal on 25 October 1985. This permits use of the land situate at and known as 24 Middle Crescent, Brighton, for the purpose of a creative arts theatre, netball court and SEC substation.

"The Theatre shall not be used for any purpose not associated with normal school activities."

(c) The theatre is sometimes used for a ballet school which is not carried out by the School itself. The ballet school also advertises public performances at which fees are charged.

9. Prior to the second hearing day, the Applicant advised that it would seek leave to amend the facts on which it relied to be the facts outlined in its submission delivered on 15 July 1998.

10. Mr J Atkinson was one of the objectors who appealed against the decision of the Responsible Authority in Appeal no.P85/0995, which gave rise to the decision referred to in the fact summary. He was added as a party to this Application by Deputy President (AAT) R J Ball at a directions hearing on 13 May 1998.

11. The subject land has been described in a number of ways in the documents. It was not identified in the Application, except by a former name of the school, "Firbank Anglican Girls Grammar School". Correspondence from the Respondent ("Firbank") gives its address as 51 Outer Crescent, Brighton. I have described the subject land in the heading by the address used in the submission presented on behalf of the Applicant on 15 July 1998, which also explains that this is the administration area of the school.

12. The Applicant's description, which was accepted by Firbank, states that the school has a campus of some 5 hectares on both sides of Middle Crescent. The Junior School is bounded by Inner Crescent, Barkly Street, Middle Crescent and St Andrews Street; while the Senior School is bounded by Outer Crescent, Barkly Street, Middle Crescent and residential properties to the west.

13. No permit is required for the use of land in this zone for the purpose of an Education centre; but a permit is required for a Place of Assembly.

14. The present definition of "Education centre" in the Regional Section of the Bayside Planning Scheme is:

"A school, college, university, technical institute, academy, live-in training centre and any other place of education, public library, lecture hall, art gallery and museum."

15. It is plain that this definition goes well beyond the concept of a primary and secondary school for children.

"A building in which people gather for recreation, entertainment or meetings. It includes a community building, non-residential club and theatre."

17. Under Clause 126-4, a permit is required to construct a building or to construct or carry out works.

18. Also relevant is Clause 126-3, headed "Amenity of the neighbourhood", which provides:

A use must not adversely affect the amenity of the neighbourhood including through the:

* The transport of materials or goods to or from the land.

* The appearance of any stored materials or goods.

19. The Applicant also referred to the provisions of the Planning Scheme that existed at the time Planning Permit P.2184 was issued. At that time, the subject land was zoned Residential C under the Melbourne Metropolitan Planning Scheme.

20. If it is necessary for Firbank to rely on existing use rights, Clause 15 applies. Clause 15-1 provides that:

A use in Section 1 of a zone that was lawfully carried out immediately before the approval date may continue.

21. Under Clause 15-2, a use in Section 2 of a zone that was lawfully carried out immediately before the approval date may continue, provided (omitting irrelevant parts):

* Any condition or restriction on the use continues to be met.

* A building is not constructed without a permit.

22. Clause 126-5 also applies to uses which have occurred since the amendment inserting these provisions came into effect. This Clause provides:

"All use, subdivision, buildings and works must comply with a master plan prepared to the satisfaction of the responsible authority.

The master plan must show the proposed future development of the land and nearby land in the ownership of the institution."

23. The role of the master plan appears in the zone purpose for the Special Use (Brighton) Zone:

* To ensure that the provision and expansion of such facilities:

. Does not adversely affect the amenity and character of the surrounding area.

. Is in accordance with a master plan and/or agreement that clearly indicates future development and landuse.

24. A copy of a plan entitled "Master Plan for the Eighties and Beyond", dated March 1985, which was endorsed in relation to Permit P 2184, was tendered. It showed what was then a proposed creative arts theatre. There has been no allegation that Firbank's use is affected by the absence of a Master Plan prepared for the purpose of Clause 126-5. There was no need to consider this clause further.

25. At the first occasion on which this Application came on for hearing, on 15 July 1998, Mr Atkinson did not appear. He provided a letter to the Tribunal stating he was unable to attend on account of illness. Although given the opportunity to do so, he did not take part in the subsequent hearing.

26. Pursuant to directions given by the Tribunal at a hearing on 13 May 1998, both parties had filed and served, before the hearing, an outline of their submissions and legal argument, and in the case of the Applicant, a statement setting out the details of existing use rights which it believed Firbank to have, and a summary of existing permits.

27. At the commencement of the hearing, it was conceded by the Applicant that Firbank had existing use rights for what is now defined as an "Education Centre" and ancillary uses. Mr Stewart, for the Applicant, stated that Firbank had been operating as a school since the early 1900s, and that there was no evidence to suggest that the school use had ever ceased for a period relevant to loss of existing use rights.

28. The Applicant further conceded that the existing use rights applied to the entire "planning unit", rather than being dependent on title boundaries. This included the entire 5 hectares campus as described above.

29. Mr Sutherland QC, who appeared for Firbank, objected to the allegations of fact concerning the use of the Creative Arts Theatre for a ballet school and for performances. He submitted that the ballet school use was to cease before the Application was brought; an undertaking had been given to that effect; the use had ceased; and the Application was unnecessary.

30. Mr Sutherland explained that three ballet schools had used the theatre for their end of year performances and also rehearsals for it. He understood these performances to be the basis for the allegation that there had been public performances at which fees were charged.

31. The purpose of the Application, apart from the specific allegations against the ballet school and performance use, was for the Applicant to "seek guidance" as to what could occur at the theatre, and what was the proper interpretation of the expression "normal school activities". Mr Sutherland questioned the justification for the Application on that basis.

32. There had been no attempt at commencement of enforcement proceedings. In Mr Sutherland's submission, under Section 149A of the PEA there must be a "matter" relating to a set of facts to be determined. He submitted that the Tribunal does not have a general advisory jurisdiction under Section 149A.

33. Mr Stewart accepted that the Application had to have a basis in specific facts. He stated that his instructions were that the Applicant believed that the ballet performances for an audience unrelated to Firbank's own operations would be an annual event. This left the question of whether annual ballet performances are "normal school activities" or not.

34. The hearing was adjourned part heard on the basis that the Applicant would consider its position on whether it would proceed, at least with the Application in its present form, having regard to the new legislation and the disputed jurisdiction to make a declaration in the absence of a "matter". The precise basis of the Application under the amended PEA needed to be clarified by the Applicant. Directions were given for notice to be given of any amendments that the Applicant desired to make to its Application.

35. Having considered its position, the Applicant decided to persevere, and the hearing was reconvened on 6 November 1998. Mr A Dix of Maddock Lonie & Chisholm appeared for the Applicant, and Mr G Garde QC for the Respondent. Mr Atkinson again advised the Tribunal by letter that he would not be attending.

36. The Applicant sought leave to amend the facts relied on in its Application, to be those set out in the submission that had already been tendered at the hearing on 15 July 1998. This submission contained a lengthy summary of the permits that had been obtained for the school site, which numbered 31. Most of the permits were naturally related to the period during which Firbank had been zoned Residential C.

37. At the commencement of the hearing, Mr Dix confirmed the Applicant's contention with respect to paragraph (i) of the Application, and abandoned paragraph (ii).

38. Regarding paragraph (iii), Mr Garde QC (who appeared for Firbank) agreed that Condition 11 of Permit no. P.2184 was valid, i.e conceded the point; but submitted that it had been largely superseded by the rezoning of the subject land, which granted additional use rights to the school.

39. Mr Dix pursued the application for a declaration sought in paragraph (iv) of the Application as to the meaning of the words "normal school activities". This expression derives from Condition 11. If Condition 11 had not been valid, there would have been no need to consider the meaning of these words. They are not part of the definition of any relevant land use, either under the former Residential C zoning or the present zone.

40. The Applicant tendered copies of the zone provisions and also the existing use right provisions of the Planning Scheme as at the date of the Board's decision. Both Educational Establishment and Place of Assembly were uses that required a permit. The existing use rights were in Clause 7 of the Planning Scheme ordinance. Under Clause 7(1)(d), the lawful prior use of the land could continue after the permit requirement commenced; but (amongst other conditions that were not relevant) a permit was required for construction of any new building.

41. Copies of the permit application and supporting information supplied to the Council in 1985 were tendered by the Applicant. The intended use of the new building was detailed as:

42. The school use must have had existing use rights at that date, according to the concessions made by the Applicant. The definition within which the school use would have properly been classified in 1985 was "Educational Establishment". This definition was:

"... a school, college, university, technical institute, academy, or other educational centre, public library, lecture hall, art gallery, museum, but does not include a reformative institution or institutional home."

43. Mr Garde agrees that if Firbank did exercise existing use rights under Clause 15-2, it is still obliged to comply with Clause 126-3 regarding amenity. Counsel agreed that in that event, Clause 126-3 would operate as a set of de facto conditions of permit.

44. I should record that the agreement of the parties that the school has existing use rights as "Education centre" as now defined in the Planning Scheme should not be taken to mean that the Tribunal agrees that the existing use rights attaching to a school that commenced in the first decade of the century would necessarily extended to include every form of use contained in the Planning Scheme definition of "Educational Establishment" in 1985, or "Education centre" now. It is not necessary to consider whether part of the campus could have been turned into a college or technical school, or even an art gallery, for instance, without a permit prior to the rezoning to Special Use.

45. The rezoning of the subject land to Special Use (Brighton) zone in 1996 changed the situation. There is no longer a need, as Mr Garde rightly submitted, for the school to rely on existing use rights. All the existing rights that the school previously held, and more, have been codified and expanded into the new zone provisions. "Education centre" is an as-of-right use in the zone. There are no conditions set out in Section 1 for it. The status of the use of the theatre therefore depends not on whether it falls within the meaning of "normal school activities" under the terms of Permit P.2184, but whether it falls within "Education centre", or some other Section 1 (as-of-right) use in the Special Use zone. Condition 11 is irrelevant for the purpose of limiting the use that may take place in the creative arts centre since the rezoning of the subject land to Special Use (Brighton) zone.

46. As Mr Garde submitted, the Tribunal should not give a declaration inconsistent with what the Planning Scheme now states.

47. Condition 11, however, does still have one function that should not be overlooked. That is, it makes it very plain that Permit P.2184 did not permit the use of the "creative arts centre" for a purpose that would have extended beyond the scope of Firbank's existing use rights in 1985.

48. When Permit P.2184 was issued, the Applicant submitted, no permit was required for a use for which Firbank already had the existing use rights that have already been conceded. Under the zone controls that then applied to the subject land, a permit was therefore required only for the development of the theatre and the netball courts, and for the use of the SEC substation (probably as a minor utility installation as then defined). The Applicant nevertheless submitted that Condition 11 was a valid and necessary "use related" condition in a development permit, to which Firbank agreed.

49. The reason the Applicant gave for this was that the essence of the existing use rights related to an education purpose, which had to be distinguished from a more general or commercial purpose, such as a Place of Assembly. A "creative arts theatre" permitted without reference to the context of the school use would on the face of it fall within the definition of "Place of Assembly", and could give rise to arguments that a permit had been granted for that use. Condition 11 limited the use so as to be related to the existing use rights.

50. It was further submitted by the Applicant that the common meaning of "school" in Condition 11 was the appropriate interpretation to adopt. That was said to be a place or establishment of education. "Normal school activities" therefore mean any activity carried out by a School (being a place or establishment of education) for primarily an educational purpose, rather than another purpose.

51. The Planning Appeals Board directed the issue of the permit, after a hearing that concentrated mainly on the conditions that had been discussed between the parties, in Appeal no.P85/0995 (unreported). The Board's direction for the issue of a permit begged the question of what the subject matter of the approval was. It named the purposes, but not whether the permit was for development, use, or both development and use for those purposes. The words used were:

"The Board therefore allows the appeal in part and directs that a permit issue for a Creative Arts Centre ...."

52. The Council issued a permit in the following terms:

"To use land situate at and known as 24 Middle Crescent, Brighton, for the purpose of a creative arts theatre, netball court and SEC substation."

53. This not only refers specifically to use, but omits any reference to development. However, the amendment described by the PAB does not say that use was substituted for development; its direction was meant to cover both, and the Responsible Authority should have included both in the permit.

54. The PAB's discussion of the proposed conditions was couched in terms of "use" rather than being confined to the development of the new buildings. As the Applicant pointed out, there was a reference (on p.3) of the decision to amendments that had been necessary under Section 53 of the Planning Appeals Act 1980, including amendment to the application to show "the use applied for as a Creative Arts Centre, a Netball Court and an SEC Substation". The amendment by the PAB therefore converts the application to include "use"; but the "uses" were descriptions of the precise use of each building. This is more consistent with identifying the proposal's compliance with a Master Plan than specifying a permitted use in terms appropriate to the use controls in the Planning Scheme.

55. It is clear that the PAB in 1985 recognised that the theatre would be used for what it described as "major functions". The discussion of the objectors' proposed conditions shows that there had also been submissions about the need to distinguish between the use of a building permitted under the name "theatre" for Firbank's purposes, and its possible use as a Place of Assembly not tied to the school use. The only reference in the permit that could be said to be inconsistent with the theatre being permitted for the general "Place of Assembly" use is Condition 11.

56. I should clarify that although the use was described as a Creative Arts Centre in the statement of what was permitted by the PAB, the permit conditions referred to what was obviously intended to be the Creative Arts Centre as "the theatre". When I have referred to the "theatre", I mean the "Creative Arts Centre", as the PAB did.

57. Mr Garde submitted that it was common practice for a use permit to be granted in similar circumstances, even where there were existing use rights. The issue does not seem to have been deeply considered by the PAB, but I think it likely that the "use" amendment was made out of an abundance of caution in the light of the objections by neighbours to the extension of Firbank's hours of operation and attraction of a new class of audience and traffic to the site through the "theatre" element of the creative arts centre. Factual details concerning such matters, which are relevant to intensity of use, rather than purpose, have been known to give rise to arguments about limitations on the extent of the existing use rights. There may also have been an intention to better relate the proposed conditions to the subject matter of the permit. Many of the conditions were related to intensity of use rather than to development as such.

58. In the Board's decision there was a reference to replacing an old assembly hall that was less than half the capacity of the new theatre. The complaints of the objectors as other residents of Outer Crescent as to off-site effects of inadequate on-site parking were also referred to. The purpose of the conditions governing on-site parking, numbers in attendance, and hours and frequency of use were imposed "in relation to amenity considerations".

59. Condition 11 itself governs "use", prohibiting use for any purpose "not associated with normal school activities". This is broadly consistent with a recognition of existing use rights for school purposes at the date of the PAB decision, prior to the rezoning to Special use (Brighton) zone. But Condition 11 should not be regarded as containing a definitive statement of the extent of the existing use rights at the date of the PAB's decision.

60. Mr Dix submitted that the theatre may properly have been characterised as a "Place of Assembly" when the permit was sought. "Place of Assembly" is still a Section 2 use under the Special Use zoning. Under Clause 101-2, a Section 2 use requires a permit. The relevant part of Clause 15-2 provides that:

A use in Section 2 of a zone that was lawfully carried out immediately before the approval date may continue provided:

* Any condition or restriction on the use continues to be met.

61. Mr Garde acknowledged that he could not say that the PAB did not treat the theatre as a Place of Assembly, rather than a school use covered by existing use rights. If that were so, and the theatre continued to be used as a Place of Assembly, it would continue to be subject to the permit conditions restrictions under Clause 101-2.

62. However, I do not consider that that was the case. In my view, the opposite is true, and this aspect of the Applicant's argument was correct. Condition 11 was intended to operate so as to contain the use of the permitted theatre within the parameters of what was allowable in any event under existing use rights, remembering that at the time the PAB considered the application that resulted in Permit P.2184, the land was still zoned Residential C. Condition 11, the validity of which is agreed by the parties, reflects an intention on the part of the PAB not to expand those rights so as to allow a Place of Assembly as a use independent of or additional to the school's use under such existing use rights as it then had. I conclude that Permit P.2184 did not permit the use of the theatre as a Place of Assembly.

63. While it was not necessary for the purpose of the dispute about conditions for the PAB to examine the limits of the school's existing use rights in detail, the PAB did consider the question of whether any person other than Firbank would have the use of the permitted theatre. This is apparent in its consideration of a condition proposed by the objectors, that:

".. the Theatre shall only be used by Firbank for school activities and functions and shall not be used by any other school, organisation or other group of persons except when such use by others is part of a Firbank activity or function."

64. This condition was rejected by the PAB. The rejection does not amount to a permission for the use of the theatre as a Place of Assembly, as I have indicated. It reflects the fact that the existing use rights are not personal to Firbank. So long as the use of the theatre fell within the purposes protected by the rights, and any relevant restrictions on the use continued to be met, the identity of the other persons who exercised the rights was irrelevant.

65. Mr Garde submitted that, whilst it was not disputed that the Tribunal has wide jurisdiction to make declarations as to planning matters, this Application did not satisfy the basic requirements. In his submission, these requirements include:

* The jurisdiction is not available if the issue is purely theoretical.

* The dispute must not only be in existence but must be attached to facts.

* The making of a declaration must be of practical use.

66. These requirements were not disputed by Mr Dix. There are summarised from the decision of Judge Jones, then President of the Administrative Appeals Tribunal, in State Transport Authority v Rural City of Wodonga (1989) 2 AATR 175, 184 paragraphs 32-37. His Honour in turn summarised them from a number of statements of the principles developed by the Courts for their guidance in the use of the discretion to grant declarations.

67. Reference was made in paragraph 35 (at p.185) of his Honour Judge Jones' decision to the warning given in Sumner v William Henderson & Sons [1963] 2 All E R 712, by Sellers, LJ (at p.713) as follows:

"It does not seem to us possible or, if possible, appropriate to express a general opinion on the law which might be of no effect or erroneous on a certain view of the facts or which would have to be alternative with regard to a variety of views of the facts."

68. This was quoted and followed by the Full Court of the Supreme Court of Victoria in Swift Australian Co (Pty.) Limited v South British Insurance Co Ltd [1970] VicRp 47; [1970] V R 368 at 369. The Court declined to answer certain questions in a Special Case, on the ground that if it did so, it would be involved in -

" ... advising the parties as to their legal rights and obligations upon varied and alternative states of fact which may or may not be found hereafter by the tribunal of fact".

69. In my view, if the Tribunal were to enter into an attempt to provide some guidance, by way of a declaration, as to the legal limitations on the use of the theatre - as opposed to the restrictions that Firbank can imposed upon itself as a matter of management decision - it would fall into the trap of expressing a general opinion on the law which might be erroneous if applied to future fact situations, and would at least be "alternative with regard to a variety of views of the facts". The activities that may be found to take place on school sites, some of which were set out in the Applicant's submission dated 15 July 1998, are many and various. Some may never have been contemplated at the time Permit P.2184 was issued, let alone when Firbank was founded in the early days of the century. Not only are there questions of evidence about the activities included in the definition of "Education centre"; there might be issues of how the activities related to each other and to other activities in the particular Education centre, for the purpose of giving due consideration to ancillary uses and existing use rights: see, for example, the analysis in City of Heidelberg v Ivanhoe Girls' Grammar School & Ors (1990) 4 AATR 147 (a decision of Judge Jones). There would have to be evidence of the particular facts and circumstances in each case.

70. It is not disputed that the use by the ballet schools has ceased. It was not clear that this use fell outside the meaning of the term "Education Centre", as it was not necessary to go into the evidence or consider whether the preparation for end of year concerts and the like is merely ancillary to, or a normal part of, an educational activity that falls within the definition. No alternative basis of fact on which a dispute can be identified has been produced.

71. Further, having reached the view that the expression "normal school activities" in Condition 11 does not govern the use to which the theatre can be put by Firbank under the Special Use zoning, a declaration in the terms sought would have no practical consequences. I would also decline to exercise the declaratory jurisdiction on this ground, following Gardner v Dairy Industry Authority of New South Wales (1978) 52 ALJR 180, in which the High Court declined to declare that three previous rearrangements of milk quotas were invalid once it reached the conclusions that a fourth one was valid, for the reason that the declarations sought with respect to the earlier rearrangements would have no foreseeable consequences; see also Church of Scientology v Woodward [1982] HCA 78; (1982) 43 ALR 587 at 604, in respect of past acts completed under a repealed statute. These cases are referred to in the extract from "Equity - Doctrines and Remedies" by Meagher, Gummow and Lehane, published by Butterworths, 2nd edition, tendered by Mr Garde.

72. For these reasons, no declaration will be made in the terms sought in paragraph (iv) of the Application as to the meaning of "normal school activities".

73. To sum up the position on each of the other declarations sought:

74. Although the parties agree that Firbank has "existing use rights for an Education centre", this is a useless statement in the factual situation presented, when an Education centre is an as-of-right use in the zone in any event. Although Mr Garde agreed with the proposition that there were existing use rights, he still submitted that not even in this instance, should the declaration sought in paragraph (i) of the Application be made; and I think that is the correct view.

75. Paragraph (ii) (seeking a declaration that the Permit was for development only) is not pursued.

76. The validity of Condition 11, which is the subject of paragraph (iii), is not challenged. There is no dispute to resolve by a declaration. Further, the purpose for this declaration was to establish the reason for interpreting the term "normal school activities" used in the Condition, which was the subject of paragraph (iv), on which the Applicant concentrated. I have found this term to be irrelevant for the purpose of limiting the use that may take place in the creative arts centre since the rezoning of the subject land to Special Use (Brighton) zone, in which "Education centre" is an as-of-right use. I therefore consider it inappropriate to make a declaration about the validity of Condition 11, as well as the declaration sought in paragraph (iv) , although I have commented on the function of the Condition.

77. The Application for the four declarations will therefore be dismissed.

78. Mr Garde sought an order for costs, based among other things on Firbank's statement that it wished to have guidance for other schools as well as Firbank, making Firbank the guinea pig. The amount claimed was a total of $8,000.00.

79. Mr Garde further submitted that no good reason had been shown why the Tribunal should be made to decide on the issue, although a total of three hearings had been held on this Application, all after the ballet schools had been directed by Firbank to cease the activities complained of in April 1998. On the first substantive hearing day, the Applicant was warned that the matter appeared to be unsuitable for a declaration.

80. Mr Dix went through the criteria set out in Section 109 of the Victorian Civil and Administrative Tribunal Act 1998, and submitted that if any costs at all were to be ordered, it should be a proportion of the amount claimed, rather than the whole. He submitted that the issues were not complex, and it was unnecessary for Firbank to have briefed Senior Counsel. The Application was not, he submitted, brought for frivolous or vexatious reasons, or vexatiously pursued. The Council had previously assured Firbank that it would not seek costs against the school. He did not assert that the sum claimed was unexpectedly large.

81. I note that in the Opinion prepared by Mr Garde for Firbank, which was produced as part of the school's outline of submissions, a suggestion was made that if there was persistent doubt as to the scope of Condition 11, Firbank should apply to the Tribunal for a declaration. This suggestion was made before the change of zoning; but it indicates that the Applicant's current application was not totally misguided.

82. The parties expressed a preference for having the costs dealt with now, rather than reserving them for further debate. I do not have much information to go on as to how the costs incurred by Firbank are broken up.

83. I consider that the costs associated with the hearing on 6 November should be borne by the Applicant. The brief directions hearing started the process of identifying the issues. Firbank's outline of submission filed 30 June 1999 was a brief document which relied on the Memorandum of Advice given by Mr Garde, which was prepared in 1996 and the costs of which could not be recoverable as a cost of this Application. The first hearing day on 15 July1998 was a short session in relation to which the greater part of the costs was plainly borne by the Council, and which included its long submission and the information that it had collated about the permits. I do not think it is unfair that each party should bear its own costs to that point. But after 15 July1998, the Council had been warned by Mr Sutherland's submission and the discussion of it that this remedy was inappropriate; very firm statements had been made by Firbank about the termination of the ballet school use of the theatre having actually ceased; and Firbank was still required by the Council to proceed with the preparation and presentation of its case on 6 November.

84. Using such information as I have available, I fix Firbank's costs for the period after 15 July 1998 at $5,000.