1 The application for a declaration under section 149B of the Planning and Environment Act 1987 is refused.

2 No order as to costs.

1 This application concerns an extension to an existing deck at first floor level. The subject land is one of a series of seven units at 202 Nepean Highway, Aspendale. Unit 6 is owned by the respondents, Mr and Mrs Brand. The applicants, Mr and Mrs Ellix own the property next door at 201A Nepean Highway. A feature of the properties is that they directly abut the beach. This proximity to Port Phillip Bay means that most dwellings in the area are two storey in height and feature large decks to take advantage of views to the beach and the sea.

2 The subject land (Unit 6) has an existing balcony at first floor level facing towards the Ellix property. In 2005, the Brands applied for a planning permit for extension of this deck. A permit is required under clause 32.01-3 of the Kingston Planning Scheme to construct or extend one dwelling on a lot of less than 300 square metres. The existing balcony was proposed to be retained and further extended to create a deck 17.7m2 in area on the north east side of the dwelling. It was set back a minimum distance of 1.2m at the closest point to the boundary and a privacy screen was proposed to be erected along the perimeter using obscure glass.

3 This application was advertised and an objection was lodged by Mr and Mrs Ellix. They then lodged an application for review against the council's decision to grant a permit. This was subsequently withdrawn at a mediation. Mr and Mrs Brand lodged an application for review in respect of one condition in the permit relating to screening. The council's decision was varied by the Tribunal and a permit was granted for extension of a dwelling on a lot less than 300 square metres (balcony extension) in accordance with endorsed plans (Permit KP454/04). Plans were endorsed under the permit on 23 December 2005.

4 In November 2005, Mr and Mrs Brand made an application for amendment of permit under section 72 of the Planning and Environment Act 1987. The application was to amend the plans in association with permit KP454/04 to further increase the size of the balcony by 16.8m2. The amended plans provide for an enlarged balcony extending across the full width of Unit 6, the edge of which would be parallel to the common boundary between the Brand and Ellix properties. The balcony would be set back 1.7 metres from this boundary with 1700mm high obscure glass privacy screen along the edge parallel with the boundary and a 950mm return along the western edge. This is an increase in setback of 0.5 metres from the setback shown on the endorsed plans.

5 The council required the Brands to give notice of the application to amend the permit to a large number of surrounding properties. Unfortunately, it omitted to include Mr and Mrs Ellix in the people to be given notice even though they had previously objected and theirs was the most affected property. No objections were received. The council officer's report identified relevant planning scheme provisions and considered the application to be consistent with relevant decision guidelines. In deciding to endorse the amended plans to form part of planning permit KP454/04, the officer's report concluded:

Council has reviewed the proposal and considers the extension to the balcony to be appropriate considering the original size and scale of the development and the balcony extension approved. No objections were received in relation to the amended plan which was readvertised to adjoining properties.

6 Mr and Mrs Ellix first became aware of the amendment to the endorsed plans when construction of the deck began. After making enquiries with the council and discovering that they had been omitted from the persons notified of the application to amend the permit, they lodged an application under section 87 of the Planning and Environment Act 1987 to cancel or amend the permit (as amended). They also applied for a stop order under section 93 of the Act. This was heard on 15 September 2006 ex parte. An order to stop development was made dated 15 September 2006 and the matter was adjourned for seven days to 22 September 2006.

7 By order dated 25 September 2006, I amended the application from one under section 87 of the Act to an application for declarations under section 149B for the following reasons:

[8] Essentially the council claims that there is no jurisdiction for the Tribunal to consider the request under section 87 of the Act because none of the grounds set out in section 87(1) are satisfied. Proper notice was given of the application for the permit and indeed the applicants were objectors and parties to the application for review concerning the grant of the permit which was previously heard by the Tribunal. There has been no misstatement or concealment of fact in relation to the application for the permit. There has been no material mistake in relation to the grant of the permit and there has been no substantial failure to comply with the conditions of the permit. Rather, the applicants are concerned about changes to the endorsed plans made by the council. The council says it has power to amend the plans pursuant to the secondary consent condition contained in the permit.

[9] I agree with these submissions put by the council regarding the standing of the applicants to make a request under section 87. I find that the correct procedure that should have been followed in order for the applicants to challenge the validity of the amended plans would be to apply for a declaration under section 149B of the Planning and Environment Act that the council had no power to amend the endorsed plans either because:

a The changes were not changes that could be consented to under the secondary consent provision of condition 2 in the permit; or

b The changes could not be consented to by the council under section 72 of the Planning and Environment Act 1987; or

c The changes could not be consented to by the council under the former section 62(3) of the Planning and Environment Act 1987 by virtue of section 216 of the Act.

8 To assist me in making a decision and in particular considering whether the development authorised by the amended plans meets the requirements of clause 54 of the Kingston Planning Scheme, I referred the following question to Member Naylor as a special referee under section 95 of the VCAT 1998: Does the development meet the requirements of clause 54?.

9 Member Naylor heard from the parties, inspected the site and provided the following opinion dated 26 September 2006.

Subject to modifications to the extent of first floor decking in the north-west section and appropriate screening, I am of the opinion that an appropriate balance is achieved between the amenity of Unit 6/202 and the existing amenity of 201A Nepean Highway.

10 Member Naylor made a number of comments about what she regarded to be the relevant objectives of clause 54. In summary, they are:

•

Noise: None of the objectives in clause 54 require consideration of noise as an amenity impact. Any noise that is generated will be residential noise that is no different to that which is typical to all residential households throughout Melbourne, and is not unreasonable or inappropriate in a residential area.

•

Neighbourhood character: Within the context of the area where balconies are commonplace and are of varying shapes, sizes, and are located on varying levels (ground, first and roof decks), the proposed deck is respectful of the existing neighbourhood character.

•

Overlooking: There are existing direct views between the windows, balconies/decks and ground levels of the two properties. However, part of the deck extension falls within 9 metres of the first floor bedroom window of the Ellix property. Given that this is a new extension, further screening is required to limit views towards this existing habitable room window and the south-west screened return should be increased to a total length of 2 metres.

•

Visual bulk: The new section of the deck extension (north west section) creates unreasonable visual bulk. The northern edge of the existing balcony is set back about 3 metres from the common property boundary, so a deck extension could extend parallel with the property boundary from this point across to unit 7's garage and would require screening along the south west edge for that section which is within 9 metres of the first floor bedroom window of the Ellix property.[1]

11 Member Naylor's suggestion was not acceptable to Mr and Mrs Brand because of the awkward resulting shape of the deck, which would limit its useability and reduce the area too much. A compromise solution could not be agreed upon by the parties. Mr and Mrs Ellix remained concerned about the visual bulk of the deck seen from the open space at the front of their property and the potential for overlooking into their first floor bedroom window.

12 As a result, I must consider the application that is before me, namely an application for a declaration that the changes to the endorsed plans under permit KP454/04 approved by the responsible authority were invalid because either:

a

The changes were not changes that could be consented to under the secondary consent provision of condition 2 in the permit; or

b

The changes could not be consented to by the council under section 72 of the Planning and Environment Act 1987; or

c

The changes could not be consented to by the council under the former section 62(3) of the Planning and Environment Act 1987 by virtue of section 216 of the Act.

13 This is not an application to consider the merits of the council's decision to endorse the plans. Declaration proceedings are part of the Tribunal's original jurisdiction and the Tribunal's power is similar to that of the Supreme Court in such cases. As Justice Morris said in Sweetvale Pty Ltd v Minister for Planning[2]: "The same principles which operate in relation to judicial review of administrative action by superior court should also operate when the Tribunal is exercising its power."

14 The nature of the power is to review the legality of the decision made by the council to amend the endorsed plans. It is not to decide whether this was a good decision or a poor decision, or one that upon review of its merits at the Tribunal might have been modified. Mason J of the High Court has said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[3]:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision within those boundaries cannot be impugned.

The distinction is highly relevant in this case, as will become apparent.

15 I will deal with the declarations in reverse order because the first two can be fairly easily disposed of.

FORMER SECTION 62(3) PLANNING AND ENVIRONMENT ACT 1987

16 The former section 62(3) of the Planning and Environment Act 1987 provided as follows:

(3) The Responsible Authority may approve an amendment to any plans, drawings or other documents approved under a permit if -

(i) the planning scheme currently applying to the land; and

(b) the amendment will not authorise anything which would result in a breach of a registered restrictive covenant.

17 Section 62(3) was repealed in 2004 when the new provisions relating to amendment of permits by the responsible authority in Division 1A of Part 4 were included in the Act. In Division 1A, a reference to a permit includes any plans, drawings or other documents approved under a permit.[4] Despite the repeal, section 216 was included in the Act, which provides:

Despite the repeal of section 62(3) by the Planning and Environment (General Amendment) Act 2004, that provision continues to apply to any permit granted before or within 3 months after the commencement of section 24 of that Act.

18 The former section 62(3) was not without its shortcomings. The section was interpreted to confer a broad power and it was held in Melbourne CC v Becton[5] that there were no limits on the extent of the amendments that may be approved under section 62(3) so long as they were consistent with the planning scheme and the permit, they did not result in a breach of covenant, and provided the approved development was not transformed. This meant that quite significant changes could be made pursuant to this provision. There were no specific rights of review arising from section 62(3). However, notwithstanding the lack of a right of review of the merits of a decision under section 62(3) or in respect of a council's failure or refusal to make a decision, it was always open to a person to seek a declaration pursuant to section 149B challenging the validity of a decision on the grounds that one of the pre-conditions set out in section 62(3) was not present.

19 It seems quite remarkable that, in the context of introducing a suite of provisions to regularise and improve the amendment of permits, to make the process more transparent and to provide opportunities for participation and review by affected persons, the previous, unsatisfactory statutory provision is retained. The operation of section 62(3) is preserved for innumerable pre-existing permits and permits issued within 3 months after Division 1A came into effect. This is notwithstanding that the section is repealed and no longer appears in the Planning and Environment Act. For many people, it would prove difficult to locate a copy of the section, let alone be familiar with the complexities and nuances surrounding its interpretation. It is difficult to comprehend the reason behind section 216 and what benefit is achieved by perpetuating the operation of former section 62(3).

20 Fortunately in the present case it is not a relevant consideration. Permit KP454/04 was issued on 14 November 2005. Having regard to section 216 of the Act, section 24 of the Planning and Environment (General Amendment) Act 2004 commenced on 23 May 2005. Thus any permit issued after 23 August 2005 is not affected by application of the repealed section 62(3). Because the permit was issued after this date, I therefore find that the changes to the endorsed plans under permit KP454/02 approved by the responsible authority were not changes that could have been consented to by the council under the former section 62(3) of the Planning and Environment Act.

SECTION 72 PLANNING AND ENVIRONMENT ACT 1987

21 Section 72(2)(a) of the Act provides that the provisions relating to an application for amendment of a permit under section 72 do not apply to a permit issued at the direction of the Tribunal. Where a permit has been issued at the direction of the Tribunal (in whatever circumstance) then, unless the amendment can be made under either a secondary consent condition in the permit or the former section 62(3) applies, an application to amend the permit must be made to the Tribunal under section 87 of the Act.

22 It is unfortunate in the present case that the council accepted the application to amend the permit by Mr and Mrs Brand under section 72 and then proceeded to process the application under the provisions of Division 1A. Because the permit was issued at the direction of the Tribunal, there was no power to make such an application or for the council to make a decision under section 72. The whole advertising process was unnecessary. It was unnecessary from a statutory point of view and it was also unnecessary from a practical perspective. Any sensible inspection of the plans would have revealed that the only properties that were likely to be affected by the proposal to enlarge the deck were Mr and Mrs Ellix at 201A Nepean Highway and possibly the owners/occupiers of unit 7.

23 I therefore find that the changes to the endorsed plans under permit KP454/04 were not changes that could be consented to by the council under section 72 of the Planning and Environment Act 1987.

24 It is the council's contention that it was open to the council to amend the endorsed plans by way of the secondary consent provision in condition 2 of the permit. This course of action was acknowledged in the officer's report where he says:

...It should be noted that although the Permit was issued by the Tribunal, Condition 2 of the Planning Permit allows the Responsible Authority (Council) to provide written consent to alter the development (i.e. secondary consent).

The Development and as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

25 In Westpoint Corporation Pty Ltd v Moreland CC[6] the Tribunal considered the ambit of the authority that may be exercised under secondary consent provisions. Essentially, a change can be approved by way of secondary consent if:

•

It does not result in a transformation of the proposal.

•

It does not authorise something for which primary consent is required under the planning scheme.

•

It is of no consequence having regard to the purpose of the planning control under which the permit was granted.

•

It is not contrary to a specific requirement (as distinct from an authorisation) within the permit, which itself cannot be altered by consent.

26 In the present case, the permit allows a balcony extension. The amended plans do not result in a transformation of this proposal: it remains a balcony extension. The amendment does not authorise something for which primary consent is required under the planning scheme. The primary consent required under the planning scheme is for alterations or additions to a dwelling on a lot less than 300 square metres and the permit already authorises this. There are no specific conditions in the permit that the proposed extension would be contrary to.

27 The only issue that arises with respect to the validity of the amendment to plans by way of secondary consent is the requirement that the change is of no consequence having regard to the purpose of the planning control under which the permit was granted. In the Westpoint Corporation case, the Tribunal made the point that: "The change need not simply be 'minor' to be allowable under a secondary consent provision"[7] provided it meets the requirements set out above.

28 The requirement that the change be of no consequence having regard to the purpose of the planning control under which the permit was granted was articulated in the case of Mentone Mansions Pty Ltd v Kingston CC[8] where the Tribunal examined in some detail the issue of secondary consents. Looking at the history of secondary consents, the Tribunal said:

[15] The most common informal consent condition is a condition which provides that the endorsed plans of a permit can only be amended with the consent of the Responsible Authority. Often these conditions are expressed in the negative providing that the endorsed plans cannot be amended other than with the consent of the Responsible Authority. A condition of this type would have appeared on most permits issued since the inception of the planning system. The practice and the law which developed around the imposition of these conditions was that the conditions were only for minor amendments. But minor amendments were not seen as amendments which were trivial in an absolute sense, rather minor amendments were seen to be amendments which were trivial in the context of the purposes of the control which led to the granting of the permit. If the particular planning control was concerned about car parking, or heritage, or amenity, then the question of whether or not a particular amendment was minor is decided by turning one's mind to the issue of whether or not in a particular case the amendment had an effect on car parking, or on heritage, or on amenity. For example in the old Restrictive Business zone where a permit was required for development under clause 22 of the then MMPS, the relevant issues under that control were primarily access and car parking. In that context a complete replanning of the internal layout of a proposed building could be regarded as a minor amendment if it did not adversely impinge on any of these issues.

29 The Tribunal considered that, in the case of permitted development, there is a continuum in the possibility of variations that will arise in the real world between what can and is constructed and what was approved by the primary planning permission. It said:

[17] ...Such variations may be on one hand minor, that is trivial or inconsequential having regard to the purpose of the planning control, or on the other hand may require a new primary consent because they are transforming, or consequential having regard to the purpose of the planning control.

[18] In the case of permitted development there is a continuum in the possibility of variation:

(b) Trivial variation (de minimus, in an absolute sense);

(c) Inconsequential variation ( de minimus in a contextual sense);

30 In the Mentone Mansions case, the Tribunal observed that, in the context of the consequences of any amendment vis-à-vis the purpose of the control, the idea of increased detriment should be based on the ability of an ordinary person to perceive or discriminate change.[9] In the Westpoint Corporation case, although the alterations to the development shown on the endorsed plans were quite substantial in some respects, they were largely internal to the buildings and internal to the site. The Tribunal found that the changes were unlikely to be perceptible from without the site and would not be of consequence having regard to the purposes of the different planning controls under which the permit was granted.

31 In the present case, a permit was required pursuant to clause 32.01-3 of the planning scheme to construct or extend one dwelling on a lot less than 300 square metres. Under this clause a development must meet the requirements of clause 54. The decision guidelines for such applications provide as follows:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

•

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

•

The objectives, standards and decision guidelines of Clause 54.

32 I find that the primary purpose of the planning control in clause 32.01-3 is to ensure that a development meets the requirements of clause 54. What I must now do is decide not whether I consider the amended plans meet the requirements of clause 54, but whether it was open to the council to reach that conclusion. In other words, was the council's decision to amend the plans so unreasonable (having regard to the need to meet the requirements of clause 54) that no responsible authority acting reasonably could have reached this conclusion. This is known as Wednesbury unreasonableness, based on the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[10] In commenting on how this test must be applied, Wilcox J said in Australian Pork Ltd v Director of Animal and Plant Qurantine[11]:

[300] It appears to be clear that, for Wednesbury unreasonableness to be established, it is not enough that the reviewing court has reached the conclusion that the statutory decision-maker erred, even seriously, in his or her assessment of the facts. Although the matter has been expressed in various ways in particular cases, a recurrent theme is that there must be something that, in effect, vitiates the decision-maker's exercise of discretion.

33 In reaching my conclusion, I have taken into consideration the opinion provided by Member Naylor as well as the submissions and visual images provided by the parties at the hearings.

34 According to Member Naylor, there were two aspects of the deck extension that she considered failed to meet the requirements of clause 54. The first related to overlooking vis-à-vis the first floor bedroom window in the Ellix property, and the second related to visual bulk as perceived from the private open space between the garage and front entry of the Ellix property. Notwithstanding Member Naylor's view, the question is whether a reasonable responsible authority could have reached the conclusion that these impacts were of no consequence having regard to the requirements of clause 54.

35 Under clause 54, a development must meet all of the objectives of this clause and should meet all of the standards of this clause. It is thus the objectives of the clause that are of paramount importance.

36 Looking at the issue of visual bulk, there is no objective in clause 54 specifically relating to visual bulk. There are only two references to visual bulk. One is in clause 54.03-3 as a decision guideline relating to the site coverage objective, which is: To ensure that the site coverage respects the existing or preferred neighbourhood character in response to the features of the site. In considering this objective, the responsible authority must consider:

•

The effect of the visual bulk of the building and whether this is acceptable in the neighbourhood.

37 The only other reference to visual bulk is in the decision guidelines of clause 54.06-1 relating to the design detail objective which is: To encourage design detail that respects the existing or preferred neighbourhood character. The decision guideline is the same as in clause 54.03-3:

•

The effect of the visual bulk of the building and whether this is acceptable in the neighbourhood.

38 In both instances, visual bulk must be considered in the context of what is acceptable in the neighbourhood setting. Member Naylor considered that within the context of the area, the proposed deck was respectful of the existing neighbourhood character. This opinion is reinforced having regard to the visual material presented to me at the hearing. The deck extension meets both the height and setback standards of clause 54. In light of these factors, I cannot conclude that there is any requirement of clause 54 relating to visual bulk that is not met by this proposal. Thus I find it was quite reasonable for the council to decide that any requirements of clause 54 regarding visual bulk were met by the amended plans.

39 Even if visual bulk is considered in the context of affect on the amenity of the area under the general decision guidelines of clause 65.01, I am not persuaded that no responsible authority acting reasonably could have approved this deck extension. In other words, I consider it was reasonably open to the council to decide that the deck extension would not have a detrimental effect on the amenity of the area when perceived from the Ellix property. The conclusion in the council officer's report states that the extension to the balcony is "appropriate considering the original size and scale of the development and the balcony extension [already] approved." This does not mean that an alternative conclusion in line with the conclusion reached by Member Naylor might not also have been reached and been equally reasonable, but that is not the test. As Justice Morris said when dealing with a development plan in the case of Baarmutha Residents Association Inc v Indigo SC[12]:

[24] The next contention advanced by the applicants was that the decision of the responsible authority to approve the development plan was unreasonable. I emphasise the limited scope of this ground of legal challenge. In Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38 at [25] I stated that the hurdle facing a person alleging that a planning permit decision is not open is a high one. More recently, when sitting in the Supreme Court of Victoria in East Melbourne Group Inc v Minister for Planning [2005] VSC 242, I emphasised that when a challenge is based upon unreasonableness it is necessary to understand that an applicant must do more than show that the decision is one which is a poor decision or a decision which is not to be preferred in all the circumstances. Rather this ground of invalidity is reserved for "decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them".

40 In my opinion, ground of challenge based on Wednesbury unreasonableness has not been made out in the present case with respect to visual bulk. I consider that it was open to the council acting reasonably to have reached the conclusion that the deck extension was appropriate having regard to the requirements of clause 54 and also the decision guidelines of clause 65.01.

41 With respect to the issue of overlooking, I consider it was open to the council to conclude that the degree to which the balcony extension fails to comply with the standard in clause 54.04-6 is de minimus in a contextual sense and represents an inconsequential variation having regard to what was said in the Mentone Mansions case.

42 The length of the entire deck along the edge parallel to the common boundary will have a privacy screen 1700mm high of obscure glass/glazing. There will be a return of 950mm on the western edge of the deck. Member Naylor calculated that to comply strictly with the standard in clause 54.04-6, this return should be extended by a distance of 1050mm to a total length of 2 metres.

43 Taking into account the distance, the angle of view and the presence of the privacy screen, there is only a limited view available from the balcony towards the Ellix first floor bedroom window.

44 The decision guidelines of clause 54.04-6 require consideration of the existing overlooking into the habitable room windows of existing dwellings. There are already views towards this habitable room window from the existing balcony on the subject land albeit the existing balcony is 2 metres further away than the edge of the new extension and beyond the 9m radius specified in clause 54.04-6. There is also an existing balcony attached to Unit 7 directly opposite the habitable room window in question on the Ellix property, which is only half the distance away compared to the proposed balcony extension. Direct views from the balcony on Unit 7 to the window may be currently obscured by an existing tree but the tree could be removed at stage, which would expose the habitable room window to a far greater degree of direct overlooking than is likely to occur from the unscreened portion of the balcony extension on Unit 6.

45 In all the circumstances, I consider it was open to the council to conclude that the slim viewline left unscreened within the 9m radius specified in clause 54.04-6 did not represent an overlooking opportunity of any significance and was not contrary to the objective of clause 54.04-6 in any meaningful sense. I find that the council's failure to require a further 1050mm of privacy screen along the western edge of the balcony was a decision that no responsible authority acting reasonably could make.

46 My overall conclusion is therefore that the decision by the council to amend the endorsed plans under the secondary consent provision of condition 2 of the permit was a decision that a responsible authority acting reasonably could have made. It could not be said that the changes were of such consequence to the purpose of the planning control in clause 32.01-3 that they fell outside the ambit of discretion afforded by the secondary consent provision.

47 As these changes were therefore changes that could be consented to under the secondary consent provisions of condition 2 in the permit, it is not appropriate that I make a declaration under section 149B of the Planning and Environment Act that the council had no power to amend the endorsed plans.

48 I do not suggest that the deck will not be perceptible by Mr and Mrs Ellix nor does my conclusion mean that a preferable planning outcome might not have been to either set the deck back further or to provide the additional screening suggested by Member Naylor. However, as I have tried to emphasise, that is not the decision I have been called upon to make.

49 What is reasonable decision must be judged in context, both physical and statutory. In making a decision, the council has a discretion. There are a range of conclusions that the council could have reached in exercising its discretion. The Tribunal's role in this type of proceeding for a declaration is to ensure that the discretion has been exercised properly. Its role is not to say how that discretion should have been exercised or to substitute its own judgement.

50 The only mistake that I consider the council made was in confusing the nature of its authority to make a decision. It should have simply decided to amend the plans under condition 2 of the permit. This did not require notice to be given to anyone. Indeed, as the Tribunal noted in the Westpoint Corporation case:

[39] Alterations to a use or development allowed by a permit pursuant to a secondary consent provision in the permit do not attract third party participation or rights of review. The tests that have been developed for deciding whether a secondary consent should be granted tacitly acknowledge this. The process now offered by Division 1A of Part 4 of the Act does involve third party participation and it provides a mechanism for changing a permit, including situations where the proposed change falls outside the parameters of a secondary consent provision and it is hence appropriate for third parties to be involved. However, as we have noted, it should not automatically be assumed that all changes to a use or development can only occur via this mechanism. An important role will remain for secondary consents to facilitate the practical implementation of proposals large and small, which should involve a fairly robust approach to assessing what is or is not of consequence having regard to the purpose of the planning control under which the permit was granted. The present case illustrates that change within the framework of the permit can be quite substantial provided this and the other criteria relevant to secondary consents are observed.

51 If a council decides to consider an amendment under a secondary consent provision in a permit, as a matter of practice it should not require notice to be given as though it were an amendment under Division 1A. To do so only confuses people. If the amendment falls outside the ambit of discretion exercisable under a secondary consent provision then indeed notice may be required if the application for amendment is made under section 72. Council should be aware though that if the permit was issued at the discretion of the Tribunal, the Division 1A procedure is not available. In those cases, permit holders must make an application to the Tribunal under section 87. Applications for secondary consent should not use the forms and procedures specified for applications under section 72 either as this also leads to confusion.

52 Council's mistake in the present case was not to recognise this. Its mistake was to allow an application to be made under section 72 and then to apply the procedures under Division 1A. .The mistake was compounded by not properly assessing the plans and failing to give Mr and Mrs Ellix notice when notice was given to other (unaffected) people.

53 As it has turned out, the issue of notice is a red herring. But it has created confusion and a sense of injustice on the part of Mr and Mrs Ellix. Perhaps one benefit that might come out of this case is improved procedures at Kingston City Council to deal with amendments to permits and plans by ensuring that they are dealt with under the appropriate provisions and that notice is not given unnecessarily (or when it is given that it is given the right, affected people).

54 However, whilst mistakes may have been made in this case, they are not mistakes that vitiate the decision made by the council or justify a declaration that the decision was invalid.

55 At the conclusion of the hearing an application for costs was made by both the respondents and the applicants against the council. The respondents have subsequently withdrawn their application.

56 I have decided that this is not an appropriate case in which to award costs. I accept that the council has made mistakes in deciding to treat the application to amend the endorsed plans under the permit as an application to amend the permit under section 72 of the Planning and Environment Act 1987 when there was no power to do so, and then to require extensive notice of the application to be given but not to the people most affected, namely Mr and Mrs Ellix. However, if the council had treated the request to amend the endorsed plans as an application for secondary consent under condition 2 of the permit in the first place, the issue of notice would never have arisen.

57 Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 sets out the general rule that each party is to bear their own costs in the proceeding. The circumstances when a Tribunal may make an order for costs are set out in section 109(3). This provides as follows:

The Tribunal may make an order under sub-section (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

58 I do not consider that any of these circumstances apply to this case. The council has not conducted the proceeding in a way that has unnecessarily disadvantaged Mr and Mrs Ellix. It has not been responsible for prolonging unreasonably the time taken to complete the proceeding. There is nothing about the nature or complexity of the proceeding that would justify an award of costs. The relative strengths of the claims made by each of the parties does not lead to the conclusion the arguments raised by council are relatively weak. Indeed the council has ultimately succeeded, in establishing the validity of its decision.

59 The purpose of awarding costs is not to punish a party, especially a council, for errors made during its administration of the planning scheme. The Act provides opportunities for people who consider that errors have been made to rectify those errors. Mr and Mrs Ellix have taken advantage of those procedures but they have not been able to establish that an error in fact occurred. I therefore do not consider that an award of costs should be made against the council in these circumstances. It is a situation where the normal rule should apply that parties are to bear their own costs.

[1] An illustrative diagram is included in Member Naylor's opinion.

[2] (2004) 16 VPR 192; [2004] VCAT 38 at [17]

[3] [1986] HCA 40; (1985) 162 CLR 24 at 40-41

[4] Section 72(3) Planning and Environment Act 1987

[5] [2003] VCAT 1077

[6] [2005] VCAT 1049

[7] [2005] VCAT 1049 at [38]

[8] [2000] VCAT 1947

[9] [2005] VCAT 1049 at [27]

[11] [2005] FCA 671

[12] [2005] VCAT 1521