Miss Dolling has managed the Owners Corporation since 2005. She attested that the Centre is in a rundown condition with maintenance being undertaken only where necessary. She consider that there will be marked economic benefit to the Centre and the members as a result of the ALDI proposal proceeding, the benefits being the payment of the $1million to the current members and business benefits to all unit holders from the anticipated increase in customers. She considers that it is probably a one off opportunity to prevent the Centre from continued decline. She said that proper maintenance is not undertaken and the Centre's infrastructure continues to fall into disrepair. Even at this low level of contributions required from the members by the Owners Corporation there are a number of unit holders who have difficulty in meeting their commitments to the Owners Corporation and she has had to implement instalment agreements to obtain the funds from them. There is over $8,000 owing in levies at the present time.

Mr Armstrong is an economist and produced a report of September 2009. His area of expertise is in shopping centres. He has done a lot of work for ALDI in the selection of its sites for its neighbourhood supermarkets. He has carried out many investigations of centres similar to this; which he identifies as an anchor supermarket and local shops serving a local hub. He considers that the lack of an anchor tenant such as a supermarket is one of the main reasons that the Centre is failing as a retail centre. He regards the vacancy rate of approximately 27% to be higher than usual in neighbourhood centres, he considers that the normal vacancy rate in this type of centre it would be in the order of 2-3%. In all other indicators the Centre shows that it is under performing and in fact failing. The rental return is very low. The amount of money levied each year on the unit holders for maintenance and promotion of the Centre is 2 to 5 times less than he would expect of a centre of this size. He considers that the ALDI proposal will revitalise the Centre bringing an anchor supermarket that he estimates would generate an additional 300,000 shopping visits to the Centre each year within 3 years. The ALDI presence and also its work in providing a facelift to the Centre would have positive effects on the existing unit owners' businesses and rents. He expected a fourfold increase on current rents and a commensurate increase in property values.

(c) Michael Durkin Traffic Engineer, GAT Consultants Pty Ltd

He is a civil engineer specialising in transport planning. He conducted extensive surveys of the carpark usage over 2007 when he carried out a week long survey of carparking demand in the second half of 2007. The 2008 surveys were in relation to the carparking demands on Sundays carried out from late March to late April, being four surveys in all. A similar survey was carried out in 2009 starting on the last Sunday in August and going through to the Sunday four weeks later in the second half of September. The absolute peak demand that he measured was on Sunday 6 April 2008 when 106 cars were at the centre at noon and there were 145 carparks vacant. His conclusion is that the ALDI store will not result in capacity car parking being reached for some time. I refer to the results of Mr Durkin's surveys in my analysis.

1. The Respondents called the following lay witnesses:

(a) Richard Kerridge, Chairman of Associated Christian Missionaries for the Church:

Mr. Kerridge gave evidence of social disadvantages to the Church of the proposal. He submitted that anything that threatens the Church's welfare is detrimental to the community. He had seen the carpark packed on days when the Church had a special event as a song day. He agreed with Pastor Beling's concerns about carparking and he considered that the ALDI proposal would be detrimental to the future of the Church with respect to carparking. He accepted in cross examination that he had no expertise in retail economics or carparking.

(b) Nam Hong Nguyen, owner of Allotments 15 and 16, Tuition Centre:

Mr Nguyen stated in his outline of evidence that he considered the serviced component to be approximately 62% of the Centre's leaseable area and they had contributed a major proportion of the management expenses over the last seven years. He does not consider that ALDI's presence will necessarily guarantee the survival of the centre businesses. The apparent economic benefits are hypothetical, unquantified and unproven. His business had been operating at the centre since 2003. It is a profitable company with takings of $32,000 per month with a profit margin of 25-30%. The Centre provides students in the area with tuition services in mathematics, sciences and English. The Tuition Centre is a major user of the carpark; however, most students are dropped off and picked up by their parents; he estimates that staff and parent parking amounts to approximately 20 carparks when the Tuition Centre is operating. The drop off and pick up of students takes place approximately 15 minutes before and after the tuition sessions. He is concerned about car related safety incidents in the dropping off and picking up of students as it will create a potential for his company to lose students given the reduced parking and more congested, and what he considers to be, unsafe traffic conditions. He considers insufficient consideration is being given to the important community and education services provided by his company and the Church. The tuition centre works with local schools in improving their development.

In cross examination he agreed with Mr O'Brien's opinions that the Centre was a dead centre and that ALDI would revitalise it. He also agreed that Mr O'Brien considered that ALDI would not have any significant impact on his business. He added that traffic congestion is a real issue in the drop off and pick up of children. He agreed that although the sign on his façade would be blocked from sight on Heatherton Road by the ALDI supermarket he could direct his new students to the centre by saying it was behind ALDI. He agreed that the improvements by ALDI should increase his business. At the conclusion of his evidence he said that the only real issue he had was with traffic congestion relating to the dropping off and picking up of his students in a centre that in all likelihood would have substantially more business.

(c) Donald Betts Jr, Business Owner and member of Church:

Mr Betts has been a member of the Church for six years and a regular attendee at its services and functions. He considers that the Church has a fast ability to grow particularly in the area of younger people. It has social programmes for feeding needy people and students. He considers that the present congregation is approximately 300 members. He considers that ALDI would be a great benefit to all parties if established at the Centre but is concerned about carparking. In cross examination he said that he did not accept the figures produced by Mr Durkin for carparking and that his assessments were speculative.

Pastor Beling said that the church had been an incorporated assembly since 1986 and that they had purchased Unit 21 in the Centre in 2001 and that their present congregation was 260 adults and children. They had a planning permit that limited the numbers at the church to 500 which Pastor Beling considers requires 150 carparks to hold that congregation. If the growth of the congregation was to be impeded the Church would suffer an economic set back and possible loss of members. Therefore, the Church considers that if the ALDI proposal was to go ahead additional carparking is required. In cross-examination Pastor Beling said that the congregation had grown in 2009 to the date of the hearing by 50 and in 2008 it had also grown by 50. Pastor Beling said that in his opinion that currently the peak parking on the Sunday service together with retail traffic could approach the carparking capacity. He said that the Church welcomed ALDI into the Centre, their only concern was for the carparking. That was the reason for their open offer.

(e) Michael Gerard O'Brien, Traffic Engineer, Director of TTM Consultants (Vic) Pty Ltd:

Mr O'Brien produced two reports, the first on 29 June 2009 and a supplementary report in September 2009. In his reports and his evidence in chief he said that he considered that the current centre was essentially a dead shopping centre; this was due to:-

(a) the proximity of the main Springvale shopping centre, approximately 1 kilometre to the north;

(b) that the upgraded Westall Road which took away passing traffic on Heatherton Road;and,

(c) that the Centre suffers from not having an anchor tenant.

He accepts the estimates of Mr Armstrong for the increased trade to the Centre that ALDI will bring and he accepts the existing carpark surveys as carried out by Mr Durkin and his projections for the increase in carparking as a result of ALDI. In relation to the anticipated increase in carparking if the ALDI proposal was implemented the Church, under its current planning permit limit of church attendances of 500 persons together with the planning permit seating capacity of the reception centre of 300 persons and the restaurant of approximately 100 seats then at the normal carparking provision for shopping centres of 0.3 carspaces per seat, this requires a peak carparking provision of 240 carparking spaces. If the ALDI peak demand of 52 spaces is added to that this is far in excess of the carparking now proposed with the ALDI proposal of 192 spaces. He assessed this another way in looking at all of the carparking was with the ALDI store was taken up what would be the availability of carparking for the Church, reception centre and restaurant and this would be in the order of a peak attendance of 330 persons; which is significantly less than the peak attendance. If the ALDI proposal was implemented he expects that it would revitalise the Centre and the smaller local shops will thrive off the increased retail trade. In his addendum to the reports he recommends that a 100 capacity multilevel carpark be constructed on the eastern carpark. When asked why he had used the maximum number for church attendance under the town planning permit he had said this was the maximum allowable. When asked when he considered this would be he said that he didn't have any information and it was not relevant. In relation to the ALDI shoppers he said they stayed at the Centre for approximately 20 minutes while attendees at the Church stayed for approximately two hours. He said if Church carparking started to squeeze out retail traffic this would result in ALDI and the other retailers getting regulations limiting carparking time. He agrees that the measured Church peak attendance of 155 persons for a Sunday service was correct. He agrees that he has made no attempt to assess the carparking using the church's current attendance figures.

1. From the evidence of Ms. Dolling and the draft Contract of Sale, ALDI have offered to purchase part of the common property, being the creation of a new lot 23 on the southern portion of the car park, adjacent to Heatherton Road, for a price of $1 million which will be apportioned amongst the unit owners in proportion to their existing unit entitlement. ALDI will provide at its own cost a facelift to each property, refurbish the Centre's infrastructure facilities, carry out car park renovation works and improved signage by means of new pylon sign on Heatherton Road. ALDI at its own costs will obtain all necessary permits.

1. All unit consenting owners that gave evidence said that the Centre is failing to do sufficient business and may become unviable in the future. Mr Armstrong, urban planner for the applicant, was of the opinion that the major cause of the Centre's malaise was the lack of an anchor tenant such as the Centre, which it originally had with a supermarket. He considered that most of the retail businesses in the Centre were struggling with low stock levels and modest shop fit outs. The vacancy level was 20-27% in September 2009 when the vacancies in normally operating neighbourhood shopping centres were generally around 2-3%. Another indication was the amount of outgoing expenses to operate and maintain the Centre; the managing agent, Ms Dolling, estimated these at $65,958 for 2009 which in centre area terms equated to $18/m2, of leaseable area. Whereas, Mr Armstrong maintained that for current modern shopping centres this outgoing was in the range of $40-100/m2. This severely limits the manager's ability to properly maintain and market the Centre.
2. His conclusion was that without an anchor tenant many of the existing businesses will fail and the Centre will cease to act as a neighbourhood centre. Mr O'Brien, traffic engineer for the respondent, said in retail terms it was his opinion that the Centre was dead.
3. In relation to current gross rentals at the Centre, Mr Armstrong estimated based on income profiles that these would be in the range of $100-125/ m2 per annum. From his knowledge of other neighbourhood shopping centres gross rents from speciality retail shops varied between $400-800/ m2 per annum.
4. The Centre Manager, Ms C. Dolling of Ross Hunt Real Estate Pty Ltd, stated in her witness statement that maintenance was limited to matters of necessity. Many owners testified in their evidence of many examples of roof leaks. The Centre cannot afford to repair the vandalised and broken column sign on Heatherton Road, which is the main advertising item on Heatherton Road. As at 31 March 2009 the Owners Corporation had a bank balance of $1,297.84 and negative assets of $10,041.73. Ms Dolling stated that a number of owners had a problem paying the current levies and she had to implement an instalment plan for these struggling owners.

1. The first test in ss34D34(3)(c) is the requirement for a majority of the members and of lot entitlements to have consented to the proposal; this necessitated obtaining the express consent of the owners of Unit 21 as without their consent the total consenting entitlement units would be 4215 out of a total of 10,094 entitlement units. Therefore, with the consent of the joint proprietors of Unit 21 with 2074 entitlement units, there is a majority of members and entitlement units consenting to the proposal and the requirements as ss34D(3)(c)(i) is satisfied.

1. The second test at ss34D(3)(c)(ii) is a comparison test between the economic and social benefits of the proposal to all of the members when weighed against the economic and social disadvantages to the non-consenting members. The first task is to identify the economic and social benefits to the members. Mr Armstrong of Urbis estimates, on his knowledge of the performance of other ALDI stores in the Melbourne area and his knowledge of retail marketing, that the ALDI supermarket will generate 300,000 customers annually. From which there is the potential for a flow on of an additional 186,000 visitors to the existing facilities and retail outlets in the Centre. This is a substantial increase over the current trade of the Centre.
2. With the ALDI supermarket as the anchor tenant and the refurbishment to the Centre facilities, the evidence of the witnesses and the other expert witnesses who gave evidence was that in their opinion the ALDI proposal will significantly increase the patronage of the Centre and revitalise it. In fact that is the reason for the Calvary Church's refusal to consent to the ALDI proposal.
3. If the Centre, as a result of the ALDI proposal eventually starts to perform at the normal trading level of a typical neighbourhood shopping centre; then Mr Armstrong estimates that the owners are likely to have a rental increase of 3 to 4 times. Accepting that the value of commercial property is based on the annual rent the property attracts there is likely to be a similar increase in the capital value of the units in the Centre.
4. At the moment everyone agrees in terms of management and operation the Centre is moribund. A real danger, acknowledged by all experts, was that if the Centre doesn't get increased retail trade it would become unviable and fail. This presumably would mean that the investment of the current owners would be reduced; or, in the event of a total failure of the Centre, the member investment possibly be wiped out.

Economic and Social Disadvantages to Non-consenting Members

1. The second respondent, Nam Hong Nguyen, owner of Units 15 & 16, owns and manages the Tuition Centre. In his witness statement he stated that the Centre was poorly managed and operated with the service component of the Centre meeting the majority of the Centre expenses, compared to the retail component. He does not see ALDI as a saviour; other anchor tenants have failed in the past.
2. At the conclusion of his evidence he said his only real concern was the safety of his students when they were entering and leaving cars when they were being dropped of into the carpark. He considered that if the ALDI supermarket went ahead the orientation of the Centre would change from being a service provider e.g. church, tuition centre, medical centre to a retail centre, resulting in a marked increase in vehicular traffic in the carpark. In relation to social impacts he said he worked with local schools in the area, involving a total of approximately 1000 students. His business contributed to charities and school development. His business employed a significant number of people in the community. His concern was that if the ALDI proposal was implemented then student involvement would drop off mainly due to traffic congestion.
3. In relation to the safety of arriving and leaving students he considered that a specialised drop off zone was required and it should be constructed as part of the carpark upgrading to be carried out by ALDI.
4. The Church's objections relate almost exclusively to carparking. The Church anticipates that its congregation, currently at 260, will grow to 500 by 2015. Under its current planning permit the Church is limited to an attendance of 500. The Church is concerned that the reduction in car parking spaces due to the construction of the ALDI store from the present number of 251 car parks to a proposed 192 car parks means that the car park capacity is too small for the projected congregation in 2015, as demonstrated by the evidence of its traffic engineer, Mr O'Brien.
5. This lack of carparking is the Church's only real concern and it has made an open offer to the applicant to withdraw its opposition to the ALDI proposal if all parties consent that the Tribunal should order that a multilevel 100 space car park be constructed over the west car park, generally as indicated on the sketch plan prepared by Mr O'Brien.
6. The Church submits if church attendance was limited by a lack of car parks the Church would suffer economically; however, the Church did not quantify this potential pecuniary loss. Before going to the traffic evidence, I make a general observation that I am not sure that a possible future shortfall of car parking is a current substantial disadvantage to the Church. This disadvantage identified by the Church only arises if the implementation of the ALDI proposal is a substantial economic success. If this is the case then every member of the Owners Corporation will benefit from the ALDI proposal. If car parking demand exceeds capacity, due to the Centre's future success, this is a disadvantage to all members. It is my opinion that if this does occur regularly then the ALDI proposal will have been highly successful in turning around the fortunes of the Centre; in such a case where the Centre has significantly greater financial resources it should have sufficient funds to control its own future; and this includes the provision of carparking in the future.

1. Therefore, in balancing the benefits against the disadvantages, I consider the economic benefits to all members of the Owners Corporation of the ALDI proposal are immediate and substantial in terms of the purchase price of $1million. From the expert evidence the implementation of the proposal is very likely to stop the Centre from failing; it will significantly increase trade at the Centre, leading to an increase in business for all retail owners and an increase in asset value for all members of the Owners Corporation. There do not appear to be any substantial social benefits to the Members, other than a likely increase in their wellbeing due to the success of the rejuvenated Centre.
2. In relation to the disadvantages to the non-consenting owners I do not consider there are any immediate economic disadvantages rather the opposite, in that the only significant disadvantage identified by the Church was a potential lack of carparking capacity. This disadvantage will only occur if the rejuvenation of the centre by the ALDI proposal is as successful as the experts predict. The highest this disadvantage can be put at this time; and, therefore in this assessment is that it is a contingency that has a reasonably high probability of occurring given the experts' opinions and which will take some years to occur. Therefore, when carrying out the comparison required under ss.34D(3)(c)(ii) the disadvantage claimed by the respondents must carry a lighter weighting than if it was an immediate and existing disadvantage because of the implementation of the proposal.
3. In relation to social disadvantages I will consider each of the respondents in turn. In relation to Mr Nam Hong Nguyen his major concern was the dropping off of students for the Tuition Centre in a carpark congested with traffic. I can understand his concern and, although it is a prospective problem, I consider the safety of children to be a paramount concern. I would recommend that consideration be given to the installation of a drop off lane across the front of the Centre from the Tuition Centre to the Church. I consider if the safety of children or more elderly attendees was compromised when alighting from vehicles in a congested carpark this could to some extent lead to a loss of patronage and would constitute an economic disadvantage to each of the Respondents; however, I was not given any expert evicence that enabled an estimation of this financial impact.
4. The Church submits that it is a significant social benefit to the community in that it assists approximately 6000 needy people a year with gifts of free food and clothing. It has a student support programme assisting new migrants to assimilate into Australian society. It has youth and child programmes focussing on teaching life skills to young people. All of these aims are of benefit to the Australian community.
5. However, these are not direct social disadvantages to the Church, rather they are a frustration in being able to perform what it sees as its proper role in the community. However, I consider that if the Centre becomes successful this may attract more people to seek help from the Church located at the Centre, when it should have more resources via donations, etc. to alleviate those needs. On balance I do not see that a successful implementation of the ALDI proposal would compromise the Church's social work.
6. So on the one hand we have substantial and immediate economic benefits from the prospect of turning a failing neighbourhood shopping centre into a successful enterprise. And, on the other hand we have concerns by the Church that this success may bring a decline in membership and social disadvantages in being unable to provide their clients with the existing level of carparking and pedestrian safety in the carpark.
7. On balance, I consider the immediate capital injection of the purchase price and the construction of a successful supermarket anchor tenant into the Centre is a benefit to all members that clearly outweighs the potential economic and social disadvantages to the respondents, most of which can be overcome by future planning and works if they occur. Therefore, I will make orders consenting to the proposal on behalf of the respondents.
8. If I am wrong in the above analysis for the sake of factual completeness I will address the traffic evidence of Mr Armstrong and Mr O'Brien; as well as the Church's evidence of the likely growth in its congregation.

1. As is apparent from the evidence given in this proceeding that the major issue between the opposing parties was the effect of the ALDI proposal on the carparking capacity of the Centre. I have some reservations about the analysis of both traffic engineers. Both engineers appeared to me to use methods of analysing and presenting the traffic data that promoted the interests of the party that engaged them.
2. Mr Durkin for the applicant, took Mr Armstrong's figures that the ALDI supermarket could generate approximately 330,000 new patrons of which approximately 180,000 would visit the existing retail and serviced premises at the Centre. Mr Armstrong made this assessment using the increase in takings and the customer generative figures from the average costs of a visit to ALDI from comparable ALDI neighbourhood shopping centres. However, he did not allow for any self generated traffic such as the students of the Tuition Centre. This method tends to minimize the carparking generation figures.
3. On the other hand, although Mr O'Brien accepted Mr Armstrong's figures for the generation of ALDI patrons; when it came to assessing the potential parking demand of the ALDI proposal, he simply applied the normal carpark generation figure used for neighbourhood shopping centres of 0.3 cars per customer or attendee. He then applied this to the maximum attendance figures under their existing planning permits for the Church, the Function Centre and the Khe Sanh Restaurant, and calculated the number of carparks needed. In other words, he assumed that all of these uses occurred at the same time, including ALDI. This is highly unlikely; as the Church's time of highest attendance is the service on Sunday morning, the Function Centre would be a Saturday evening, as would the restaurant. He did not produce any evidence to establish that his maximum carparking demand figure used in reaching his opinion was likely to occur or at what time of the week.
4. I consider the traffic generation data is likely to be somewhere in the middle of that generated by each of the traffic engineers. Accepting Mr Armstrong's estimate of the increase in 300,000 new or more regular patrons to ALDI in 2011, Mr Durkin's carparking analysis shows that at its peak use, Sunday, there would still be approximately 53 spaces available. Mr Durkin estimates that this additional capacity could allow at least a 60% increase in Church attendance at its services; this allows a significant increase in Church attendance.
5. Further, if the carparking requirements are as indicated on the proposal plans I accept the evidence of Mr O'Brien that it is church attendees who will dominate the car parking. Church attendees are coming to Sunday service for approximately 2 hours, typical retail shoppers for 20 minutes. Thereby, church attendees will wait until a retail shopper leaves and then park for 2 hours or longer. This way the church attendees will tend to dominate the car park at times when church attendance and retail times overlap for the Sunday morning service commencing at 10.30am. The Church is concerned that if this occurs the retailers will have the local municipality place shorter parking times than the length of the normal church service of 2 hours. However, this could not be done without a change to the permit and for this the Church could seek to address the local municipality and failing satisfaction then it could apply to VCAT for a review of the decision. All experts acknowledged that if the ALDI proposal is to be implemented it will require a planning permit and that is the forum in which to deal with the appropriate carparking time restrictions, if any.

1. I consider that factually there are inconsistencies in the Church's evidence as to congregation numbers, congregation growth and the Church's future carparking demand. Reverend Beling gave evidence that when the Church purchased Unit 21 in 2001 the Church had a congregation of 125 people, comprising adults and children. He said the present congregation was 260 people, with a growth of 50 people during 2009 and a further 50 people, comprising approximately 20 new parishioners and 30 students seeking permanent residence visas, in 2008. This means that the growth in the Church's congregation between 2001 and the end of 2007 was 35 new parishioners; this doesn't appear consistent with the sudden recent growth. If you average the congregation growth over the 7 years from 2001 to 2009 the annual growth is approximately 20 persons per year. The Reverend Beling's evidence was anecdotal, he said the Church did not keep statistics on when people joined the congregation. He said the Church's aim was to have a congregation of 500 by 2015 and that the Church was on course to achieve this. A Church attendance limit of 500 was sought from the local authority and allowed under the conditions of the planning permit issued on 28 September 2001: Permit No PLN01/403.
2. The Reverend Beling said that the Church allowed 0.3 cars per attendee as required by the normal carparking provision for neighbourhood shopping centres. For a congregation of 500 the Church required a carparking provision of 150 spaces. Based on surveyed attendances at the Sunday morning church service by Mr Durkin over 3 years, there was an average peak church carparking demand there are 133 people attending using 82 car spaces. The absolute peak church demand was 155 people using 89 car spaces, Mr Durkin does not tell us the date on which this peak occurred. So using only the average peak church demand and assuming it was taken about the end of 2008 when the congregation numbers were 210; i.e. thus taking into account the Sunday surveys of 2007and 2009; this means that around an average peak attendance of 133 persons attending the Sunday service is 0.6 times the size of the whole congregation. This means if the Church anticipates a congregation of 500 by 2015; then the average maximum peak attendance at Sunday service will be 300 attendees requiring 90 carparks in total. In Mr Durkin's traffic analysis he estimated average peak Sunday Church demand at 82 spaces at which time he estimated, allowing for this level of Church demand on the carpark plus the anticipated ALDI demand he estimated, that there would still be approximately 53 vacant spaces. Thus, I consider that there is a high probability, if present estimates are correct, that there will be no parking problems for the Church on normal Sundays; there may be minor delays and inconvenience on the absolute maximum congregations on a few days of the year.
3. The above analysis is based on the accepted carparking generation rate for shopping centres of 0.3 cars per person attending the centre. However in relation to Church attendance, Mr Durkin's survey figures were:
   • (a) average Peak Church parking demand of 82 cars for 133 attendees, 0.6 cars per attendee; and,
   • (b) absolute Maximum Church parking demand 89 cars for 155 attendees, 0.7 cars per attendee.

It is the Church's own evidence is that it is family oriented and it has many family groups as parishioners, this means that a single person per car is the predominant method by which attendees get to Church. I consider that such a high level of car use should be discouraged and car pooling by attendees should be promoted.

1. The normal rule in the Tribunal is that each party bear their own costs: ss109(1). This can only be changed if it is just and fair to do so: ss109(2), having regard to the factors set out in ss109(3). From this determination the applicant was successful and taking into account the relevant factors of the relative strengths of each party's case and the nature and complexity of proceedings; a case can be put forward for considering the applicant should be awarded his costs.
2. On the other hand as I pointed out at the start of the proceeding there are no previous determinations in relation to action seeking to have the Tribunal make an order, on behalf of a non consenting owner, consenting to an Owners Corporation carrying out a purpose under s.32 of the Act. Further, as I raised at the start of the hearing, I asked Counsel to indicate to me what they considered to be the appropriate enquiries; evidence and methods or tests of assessment by which I should determine this application. Neither Counsel disagreed with each other or took significant departures from the line of evidence presented at the hearing by the other party. Both parties concentrated on disputing and analysing the car parking evidence. Carparking evidence would have taken up approximately two thirds of the total substantive hearing time. That it ultimately proved pointless could not be laid at the feet of either party.
3. The nature of this proceeding was unique. It was the first of its type or at least the first to go to a full hearing and determination. This meant that the hearing was complex and difficult for both the parties and the Tribunal as we pushed our way into unexplored territory. Thus, it was necessary to carefully address and consider the enquiries that should be made in relation to the tests at ss34D(3)(c) of the Act. On balance, I consider the uniqueness of this application means that it is fair that neither party be made responsible for the costs of the other.
4. To ensure that there is no disagreement as to whether the vote was unanimous, I will make orders consenting on behalf of all of the parties that did not consent to the resolution put to the Special General Meeting of 12 December 2007.