Victorian Civil and Administrative Tribunal|2001-03-31|Before: Kadil P

Bell F M v Melbourne CC [2001] VCAT 522 (31 March 2001)

Request under S.87 of the Planning and Environment Act 1987 for cancellation/amendment of a permit. Permit No. TP 99/691. Material misstatement or concealment of fact in relation to an application for permit. Mixed Use Zone. Heritage Overlay. Shops and Dwellings (in a 3 and 4 storey building). Site (Frontage 14.98 metres, Area 322 square metres).

Mr Craig Porter, Barrister, appeared on behalf of the Applicants for Review. Mr Porter called Mr David Bell, son of the Applicant, and Mr Neil Bell, husband of the Applicant as witnesses in support of his submissions.

Mr John Cicero, Solicitor, appeared on behalf of the Respondent Permit Holder. Mr Cicero called Mr Nicholas May, Project Architect, as a witness in support of his submissions.

Mr Nicholas Tweedy, Barrister, appeared on behalf of the Responsible Authority.

1. This is an application for the cancellation or amendment of a permit for shops and dwellings in a three and four level building at 104-106 Errol Street, North Melbourne. The hearing of the matter on the 16th of January 2001 proceeded to the point where submissions and evidence submitted to the Tribunal in relation to the question of whether or not there had been a material mis-statement or concealment of fact in relation to the permit application (the basis of the application) was completed.

2. The parties in this application agreed that the Tribunal should first decide whether or not the basis of the application was made out, before hearing any submissions or evidence in relation to the question of whether or not the permit should be amended or cancelled on the merits of the application. In this context the I reserved my decision at the conclusion of the first day of hearing. On the 19th January 2001, I made the following directions, on the basis that I had formed the view that additional information was required if a decision was to be made in respect of the basis of the application.

1. The Respondent Permit Holder is to have the height of the southern boundary wall of the Imperial Theatre building measured and certified by a licensed surveyor. The height of the wall is to be measured above the paved surface of Lancashire Lane at the north-eastern corner of 104-106 Errol Street, North Melbourne. The results of this measurement are to be provided to the Responsible Authority, the Applicant for Review and the Tribunal by no later than 5.00 pm on Wednesday 24th January 2001.

2. The hearing of Application for Review 2000/095126 is to resume at 9.00 am on Thursday 25th January 2001 for a period of 1 hour.

3. The hearing resumed on 25th January 2001. The additional information required by the Tribunal was made available, and the parties made further submissions and presented further evidence. I advised the parties that I was satisfied that there had been a material mis-statement or concealment of fact in relation to the permit application, and therefore it was necessary for the Tribunal to hear submissions and evidence in relation to the merits of the application. I did not give any reasons for this decision at this juncture. The application was set down for further hearing on 1st February 2001.

4. At the commencement of the hearing of 1st February 2001, Mr Porter advised the Tribunal that the parties were near agreement in relation to the merits of the proposal, and expected to be able to seek a Consent Order from the Tribunal. I again adjourned the application, to allow for the finalisation of the agreement between the parties.

5. On 9th February 2001, the hearing resumed at which I was advised that the parties were seeking a consent order in relation to the application for amendment or cancellation of the permit. The order sought the amendment of the permit application in accordance with plans which were available at the hearing, but were subject to some additional handwritten modifications. I advised the parties that I was prepared to make such an order, but that I wished to have a set of plans which fully describe the amendments sought, without the need for handwritten modifications. Mr Cicero undertook to furnish to the Tribunal such a set of plans endorsed by the parties.

6. Mr Porter made application on behalf of his clients for an order as to costs. Mr Cicero advised the Tribunal that he would be resisting any order as to costs, and that to do so he would want, my reasons in respect of the decision outlined on paragraph 3 above and submissions from Mr Porter in relation to the basis of the application for costs to enable him to make submissions in reply. Mr Cicero indicated that he would like an opportunity to discuss the issue of costs with the applicants before the exchange of reasons and submissions.

7. Therefore, the hearing concluded on the basis that an endorsed copy of the finalised amended plans would be provided to the Tribunal, and that further submissions would be made in relation to the issue of costs. An endorsed copy of the amended plans was provided to the Tribunal under a cover letter dated 28th February 2001. To-date no request for reasons and no further submissions in respect of the issue of costs have been received.

Bell F M v Melbourne CC [2001] VCAT 522

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Bell F M v Melbourne CC [2001] VCAT 522 (31 March 2001)

Parties