1. The application for a declaration and orders under Section 149B(1) of the Planning and Environment Act is refused.

Mr N Hayes of Maddock Lonie and Chisholm, Lawyers, for Boroondara City Council.

1. This is an application by C and E Cooper, the owners of 21 Howard Street, Glen Iris for declarations under Section 149B(1)(b) of the Planning and Environment Act as follows:

"1. A declaration that a decision of the respondent on either or both of the 9th March and, or the 21 March 2001 to require us to enter into an agreement under s. 173(1) of the Planning and Environment Act as a condition to grant of permission by the respondent for construction of a vehicle "cross over" to the premises was beyond the power of the respondent;

2. Alternatively a declaration that the said conduct was so unreasonable and, or alternatively, unconscionable, that the decision be quashed or the respondent be permanently restrained from acting on it;

3. The respondent has granted permission for the construction of a second vehicle cross-over to the said premises;

4. Alternatively a declaration that the respondent determine our application for a vehicle cross-over according to law;

5. Such further or other declarations as the Tribunal may conclude are appropriate."

2. The background facts and circumstances are set out in the application as follows:

"1. On the 7 March 1996 we entered into a Contract of Sale for the purchase of a property contained in Certificate of Title Volume 6304 Folio 668 being the property known as 21 Howard Street Glen Iris. Pursuant to the completion of the said Contract we became the registered proprietors of such property on the 15 July 1996.

2. The premises are on land in the City of Boroondara which are zoned for residential purposes.

3. Construction of a residential dwelling is an "of right" use of the land.

4. On or about the 6 March 2000 plans were approved for a new dwelling on the subject property. The proposed dwelling is a large two storey structure designed to accommodate ourselves and our four teenage children. Additionally, the dwelling incorporates a home office facility required as a result of Chris Cooper "working" from home". The family and working circumstances are such that it was considered most desirable for the amenity of the neighbourhood that significant off street parking be incorporated into the development. The property has been traditionally serviced by a single garage on the western side of the property which has traditionally used a cross-over also on the western side of the property. On the western side of the property, approximately seven metres from the street, there is a large oak tree of approximately 20 metres in height. It was our desire to maintain this tree for the benefit of the streetscape pursuant to which it was possible to construct a garage to accommodate only one car on the western side of the property. That being the case we incorporated into our design a further garage on the eastern side of the property to accommodate two motor vehicles. The property, as designed and built, incorporates the two garages in such a way that they constitute an integral part of the structure of the residence.

5. We erected a dwelling on the land according to the plans. The building is completed and we have been granted a Certificate of Occupancy.

6. On or about the 25 February 2001 an application was made on our behalf from the respondent for permission to build a second vehicle cross-over to permit vehicles to cross from Howard Street to the garage on the eastern side of the dwelling.

7. There followed correspondence and meetings which are set out in the following documents marked "CA-1" to "CA-9".

8. By letter dated 9 March 2001 the respondent advised that it would grant permission for construction of a second vehicle cross-over addressing the eastern garage subject to a condition that we enter into a "173 agreement" in the usual form.

9. By letter dated 21 March 2001 the respondent again indicated it would grant permission for the construction of the second cross-over if we entered into an agreement under s.173 of the Planning and Environment Act.

10. We are concerned that there is no justification for requiring us to enter into a s.173 agreement either at law, or for any planning requirement or reason and that placing such agreement on the title to our house will be expensive and cause diminution to its value.

11. We have requested the respondent reconsider its decision but it has failed to do so.

12. On or about the 26 March 2001 we caused a second cross-over to be built according to specifications of the second respondent. We did this because vehicle traffic across the unmade nature strip was potentially hazardous to the vehicles and caused the creation of an unsightly "track" across the nature strip.

13. We have requested the respondent reconsider its decision. It has refused to reconsider its decision. On the 24 August 2001 the respondent purported to serve a purported notice under Local Law 1A of the City of Boroondara laws.'

3. Boroondara City Council ("Council") filed a statement of grounds indicating that it wished to contest the application and rely on the grounds that the decision in respect of which the declaration is sought is a decision made pursuant to a local law made under the Local Government Act 1989 and is not a decision made under the Planning and Environment Act 1987. Accordingly the application is misconceived and lacking in substance.

4. The background was added to in the Council's submission which attached the same correspondence referred to and attached to the application but noted that by letter dated 21 March 2000 the Council withdrew its offer to enter to the Section 173 agreement and advised the Applicant they could not construct a second vehicle crossover and returned the cheque for $52.50.

Section 149B - Applicants Submissions

5. Mr Hurley relied on Section 149B and Section 173(1) of the Planning and Environment Act 1987.

6. Section 149B(1) reads as follows:

(1) A person may apply to the Tribunal for a declaration concerning--

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act."

7. Section 173 reads as follows:

"173. Responsible authority may enter into agreements

(1) A responsible authority may enter into an agreement with an owner of land in the area covered by a planning scheme for which it is a responsible authority.

(2) A responsible authority may enter into the agreement on its own behalf or jointly with any other person or body.

(3) A responsible authority may enter into an agreement under sub-section (1) with a person in anticipation of that person becoming the owner of the land.

(4) Despite anything in this Division, if an agreement entered into with a purchaser in anticipation of the purchaser becoming owner is registered by the Registrar of Titles, it does not bind the vendor unless the vendor assumes the purchaser's rights and obligations under the agreement."

8. His argument was in this case the Council had purported to exercise its power to enter into an agreement under Section 173 and that the imposition of the condition on the offer to approve the second crossover was made under that section. He submitted that this gave the Tribunal power to make declarations in respect of the decision which included the condition containing the provision for the Section 173 agreement, notwithstanding that that decision may not be made under the Planning and Environment Act.

9. He relied on the High Court decision in Australia National Airlines Commission v Newman (1987) 162 CLR at 446 where the Court held that a provision in the Australian National Airlines Act 1945 providing a time limitation on bringing actions against the ANA Commission "for or arising out of anything done or purporting to have been done under this Act" did not exclude liability or statute bar proceedings against the Commission for failing to maintain its premises and to provide a safe system of work.

10. He submitted the passages at page 162 - 164 supported the proposition that the reference in 149B(1)(b) to "anything done by a Responsible Authority under this Act" covered the present situation and enabled the Tribunal to review the whole circumstances of the decision under the Local Government Act in regard to the crossover which included a proposed condition under Section 173 of the Planning and Environment Act.

11. Council's submissions were that although Section 149B(1) is expressed in wide terms, the power is not unrestricted and the Tribunal is not free to make arbitrary or fanciful declarations or declarations irrelevant to the purposes of the Planning and Environment Act and the purposes for which the power is intended to be exercised.

12. Mr Hayes submitted that the Tribunal should not exercise a power to make a declaration where the subject matter of the proceedings is hypothetical and where the grant of relief would be of no practical utility to the parties and said this principle applies to the situation where a declaration will not finally conclude the dispute between the parties.

13. He submitted in this case that even if there were jurisdiction to grant a declaration (which is disputed) the Tribunal should decline to do so. He said he would not conclude the dispute because the Council had withdrawn its offer to approve a second crossover if the Applicant entered into a Section 173 agreement, and accordingly a determination as to the validity of the condition or whether the Council had power to enter into a Section 173 agreement for this purpose would not resolve the dispute.

14. He further submitted that the decision to refuse to grant the second crossover was not a decision under the Planning and Environment Act but under a local law made under the Local Government Act. The relevant Local Law was Clause 8.1 which provided that a person must not, without a permit or licence

"(a) cause any change to Council - controlled land or anything on it; or

(b) remove anything from Council - controlled land."

15. In this instance "Council controlled land" includes the road reserve.

16. He referred to the penalties for non-compliance with the Local Law, the powers to serve a notice to comply and the powers of the Council to carry out any work which a person fails to carryout pursuant to a notice to comply.

17. He submitted that the Tribunal has no power to make a declaration in relation to a decision made under the Local Government Act 1989. Such a decision is not something done by a Responsible Authority under the Planning and Environment Act.

18. The Tribunal accepts the Council's argument and considers that it has no jurisdiction under Section 149B(1) to consider issues arising under a local law made under the Local Government Act 1989.

19. It is clear to the Tribunal that an application under the local law for a second vehicle crossing is not an application under the Planning and Environment Act and the decision of a Council to grant or refuse such an application is not anything done by a Responsible Authority under the Planning and Environment Act in terms of Section 149B(1)(b).

20. There are many provisions in the Planning and Environment Act giving authority to the Tribunal to review decisions of Responsible Authorities but all these provisions are confined to applications and matters made or arising under the Planning and Environment Act itself.

21. In this case the only thing done under the Planning and Environment Act is the offer by the Council to agree to a second crossing provided the Applicant enter into an agreement under Section 173 of the Planning and Environment Act.

22. I consider that the Tribunal would have power to consider whether it should make a declaration as to whether the Council could make such an agreement or whether such an agreement was valid but its power would be confined to those issues.

23. I reject Mr Hurley's submissions that the condition for a Section 173 agreement as part of the offer to approve a second crossing under the by law brings the decision to approve the crossing within the declaration powers of the Tribunal under Section 149B. The decision to approve or refuse to approve a second crossing is not anything done by the Council under the Planning and Environment Act.

24. The Tribunal is a creature of statute and must take great care to ensure that its powers are exercised within the confines of the statutes conferring power on it. The Local Government Act does contain some provisions giving powers of review to the Tribunal, for example in relation to special rates and charges, but contains no provisions giving the Tribunal any power to make declarations or of review in relation to decisions under local laws of this nature.

25. I make no comment on whether the proposed 173 agreement would have been validly made under Section 173 of the Planning and Environment Act. That question was not argued.

26. Accordingly the decision of the Tribunal is to strike out the application as misconceived pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

27. Mr Hayes applied for costs in the matter. The solicitor/client costs incurred by the Council were $3,300 and he applied for two thirds on a party/party basis of $2,200. He relied on Section 109(3)(c) of the Victorian Civil and Administrative Tribunal Act on the basis that the application had no tenable basis.

28. After hearing Mr Hurley my decision was that each party should bear their own costs for the following reasons.

29. Section 109(1) sets out the overriding principle governing costs in the Tribunal which is that each party should bear its own costs.

30. Whilst the Applicants' claim may have been weak, I do not accept that it had no tenable basis in fact or law. It was the Council that introduced the concept of an agreement under Section 173 of the Planning and Environment Act into the decision under the Local Law as to the vehicle crossing and in doing so linked that decision with the Planning and Environment Act. In my view it is understandable how an argument could be made that this link might give the Tribunal jurisdiction.

31. I agree with Mr Hurley that the question of whether the Applicants' case has any tenable basis in fact or law must be considered prospectively not retrospectively after the Tribunal has made its decision.

32. Another issue the Tribunal has to consider in relation to costs is the nature and complexity of the proceeding pursuant to Sub-section 109(3)(d). In this case the nature of the application is simple, the argument is a jurisdictional one, and the hearing was short. There is nothing in the nature and complexity of the proceedings which in the Tribunal's view would create any ground for an order for costs in the matter.

33. I do not consider that the decision of Deputy President Macnamara in Hobsons Bay City Council v K Haouli and Another Application 1999/100657 (7 VPR 249) is applicable in this case. This is not a case where the resistance by the Council to the application by the Respondents was a commercial necessity nor were the issues complex as they were in that case.

34. I consider that the Tribunal must take great care in exercising its powers to award cost under Section 109 in order to ensure that the Tribunal remains readily accessible to the public at relatively low cost, particularly having regard to the Tribunal's obligations under Sections 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998.