1. Pursuant to section 149B of the Planning and Environment Act 1987, I make the following declarations:

1. The meaning of condition 1(h) of planning permit No P12/0078 is that screening must be provided to the satisfaction of the responsible authority. The screening must prevent direct downward views to the adjoining property. Direct views are those views prescribed in clause 53.04-6 to the deck and habitable room windows of the property at 14 Tulum Court. The screening may be in the form of louvres or a screen located directly under the relevant windows. If the option of a screen is chosen, such screens are to be the width of the windows and extend no less than 500mm from the wall. The responsible authority must be satisfied with the form of screening chosen and satisfied that the option chosen will prevent direct downward views to the adjoining property. 2. The plans endorsed by the responsible authority on 22 April 2013 under planning permit No P12/0078 do not satisfy the requirements of condition 1(h) of the planning permit.

1. The plans endorsed by the responsible authority on 22 April 2013 under planning permit No P12/0078 are invalid.
2. The respondents are ordered to pay the indemnity costs of the responsible authority of and incidental to the inspection of the subject land on 23 June 2014. The costs must be paid within 30 days of the date that the responsible authority provides details of its costs to the respondents.
3. All other costs reserved.
4. Any party that wishes to make an application for costs must file and serve such application and supporting submissions by not later than 31 July 2014 The application must include the following information:

1. The amount and details of the costs claimed. 2. The basis on which the costs are calculated (for example, indemnity or solicitor/client).

1. The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Act 1998.
2. Any response to the application for costs must be filed and served by no later than 14 August 2014
3. Upon compliance with the above orders, the Tribunal may decide any application for costs on the papers or list for a hearing if it considers this is appropriate.
4. Any party may request a hearing to consider any application for costs.

1. The applicants, Irvin and Tania Kaye, are owners and occupiers of the land at 14 Tulum Court, Balnarring Beach. This proceeding is an application for declaration by the applicants under section 149B of the Planning and Environment Act 1987 regarding overlooking of their private open space and habitable room windows from four first floor level windows in the recently constructed dwelling on the subject land at 12 Tulum Court, Balnarring Beach. The declaration they seek is that the plans endorsed by Council on 22 April 2013 under planning permit No P12/0078 are invalid as they do not satisfy the requirements of condition 1(h) of the planning permit.
2. Planning Permit No 12/078 issued by Mornington Peninsula Shire Council ("the Council") on 8 February 2012 permitted the development of a two storey dwelling and associated vegetation removal in accordance with endorsed plans at 12 Tulum Court, Balnarring Beach ("the permit").
3. In VCAT proceeding No P3660/2012[1] the Council, as responsible authority, lodged an application pursuant to 87 of the Planning and Environment Act on the basis it had made a material mistake in relation to the grant of the permit and had failed to give notice in accordance with the Act. The material mistake related to:
   • Council's failure to give notice to the applicants of an application to amend the permit notwithstanding that they own and/or occupy the adjoining property; and
   • approving the development without any screening of windows along the western elevation in contravention of clause 2.0 of Design and Development Overlay Schedule 3, which requires compliance with clause 54.04-5 of the Mornington Peninsula Planning Scheme.
4. The applicants were parties to the section 87 request. At the hearing of P3660/2012 before Senior Member Rickards on 17 January 2013, expert planning evidence was called on behalf of Council and the respondents, Adinelle Pty Ltd and Greg Farmer.
5. In the Tribunal's decision dated 15 February 2013, the Tribunal accepted that there had been failure to give notice of the application and there had been a material mistake in relation to the grant of the permit. The Tribunal directed that the permit be amended by including a new condition 1(h), which provides as follows:

1(h) Screening in the form of Louvres or a screen to be located directly under the two ensuite windows and two master bedroom windows at first floor on the west elevation to prevent direct downward views to the adjoining property to the satisfaction of the responsible authority. Such screens are to be the width of the windows and extend no less than 500mm from the wall.

1. On 22 April 2013, the Council endorsed plans pursuant to condition 1(h) showing on the first floor ensuite and master bedroom windows, powder coated louvres at 45 degree angle and spaced 90mm apart for the width of the windows and a depth of 600mm at the bottom of those windows.
2. The applicants contend that the plans endorsed by Council do not prevent downward views to the adjoining property at 14 Tulum Court from the two ensuite windows and two master bedroom windows at the first floor on the western elevation of the dwelling at 12 Tulum Court contrary to condition 1(h) of the permit. They say that no responsible authority acting reasonably could have reached the conclusion that the plans endorsed by Council on 22 April 2013 complied with condition 1(h) of the permit.
3. This contention essentially raises the principle of "Wednesbury unreasonableness_"_. The principle has its origin in the English decision of Associated Provincial Picture Houses v Wednesbury Corporation[2] where the Court stated:

It is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. ... It is not what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. ... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere...

1. The principle of Wednesbury unreasonableness has been adopted and applied by many Australian Courts and Tribunals, although always with the caution that 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."[3]
2. In deciding whether to make a declaration in the circumstances of this case, the critical issues I must first consider are:
   • The meaning of condition 1(h).
   • The effectiveness of the screens as shown on the endorsed plans and now as built.
   • The way in which the Council made its decision to endorse the plans.

1(h) Screening in the form of Louvres or a screen to be located directly under the two ensuite windows and two master bedroom windows at first floor on the west elevation to prevent direct downward views to the adjoining property to the satisfaction of the responsible authority. Such screens are to be the width of the windows and extend no less than 500mm from the wall.

1. The condition was included at the direction of the Tribunal in order to resolve a dispute between the applicants, the responsible authority and the respondents about overlooking. The overlooking was from the ensuite windows and master bedroom windows at first floor level from the respondents' property into the applicants' property, in particular into the private open space deck area on the west side of the applicants property and into the habitable room windows of 14 Tulum Court, namely the rumpus room, kitchen and dining room.
2. The Tribunal found there was a failure to apply clause 54.04-6 relating to overlooking as required under clause 2.0 of the Design and Development Overlay Schedule 3 applying to the land. Clause 2.0 provides that:

In the Residential 1 zone, an application to construct a building or construct or carry out works associated with one dwelling on a lot:

• Must meet all of the objectives and should meet all of the standards of Clause 54.02, 54.03-3, 54.03-4, 54.03-5, 54.03-6, 54.03-7; 54.04-2; 54.04-3, 54.04-4, 54.04-5, 54.04-6, 54.05, 54.06-1.

1. Clause 54.04-6 has an objective to limit views into existing secluded private open space and habitable room windows. Standard A15 sets out detailed requirements "to avoid direct views into the secluded private open space and habitable room windows of an existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio."
2. The Tribunal determined not to require a performance based compliance with Standard A15 pursuant to clause 54.04-6. Rather, it determined to amend the permit by inclusion of condition 1(h).
3. The parties referred me to various passages in the Tribunal's decision in support of their contentions about what condition 1(h) means. However, I do not consider it is relevant to have regard to the reasons enunciated by the Tribunal in attempting to interpret condition 1(h). Rather, I must have regard to the words themselves. In interpreting the words, I must have regard to all the words, not just some. I must ascribe meaning to all the words and resolve any conflict between them wherever possible.
4. In Vestey and Ors v Warrnambool CC[4], Justice Bell held:

[40] A planning permit is not a legislative instrument which can be interpreted by reference to extrinsic materials showing its object and purpose in the first instance. To repeat the words of Morris J in Gant v Greater Geelong City Council,[5] a "permit should speak for itself and any person reading it should be able to deduce its meaning and act upon that meaning." However, extrinsic materials can be used to interpret a permit when it is ambiguous or unclear and the materials might logically assist in resolving the issue of how the permit should be properly interpreted. ...

[42] The need to consider surrounding circumstances arises when, looking at the permit alone, its meaning is ambiguous. But the concept of "ambiguity" that operates here is not a restrictive one. In the words of Spigelman CJ in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc:[6]

The use of the word 'ambiguity' in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is for whatever reason, doubtful.

[47] Now, a planning permit is a land use authorisation issued by a responsible authority under a statute. It represents an authoritative resolution of the relevant planning issues, even if it came about because the parties agreed to it. It is not a contract. Nonetheless, the principles governing the interpretation of contracts which preclude reference to the evidence of the subjective intentions of the parties apply by analogy to planning decisions, as Doyle CJ acknowledged in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield[7] in reference to development authorisations:

A development authorisation is a unilateral document issued by the relevant authority. It is not an agreement between the applicant and the authority.

The meaning of a development authorisation is to be determined objectively. The inquiry is as to the meaning that the terms of the authorisation would have to a reasonable person. The meaning of a development authorisation is not determined by inquiring into the subjective intention of the applicant for authorisation or of the relevant authority.

[48] Thus, when it comes to interpreting an ambiguous provision in a planning permit, it is permissible to examine the objective matrix of facts and circumstances that supply the context in which the permit was issued, but not the subjective intentions or expectations of the parties.

1. The ambiguity that arises in the meaning of condition 1(h) stems from its two parts. The first part requires that:

Screening in the form of Louvres or a screen to be located directly under the two ensuite windows and two master bedroom windows at first floor on the west elevation to prevent direct downward views to the adjoining property to the satisfaction of the responsible authority.

Such screens are to be the width of the windows and extend no less than 500mm from the wall.

1. The Council and the respondents say that provided the screens meet the criteria in the second part of the condition and the responsible authority is satisfied with that, then the condition has been complied with.
2. The applicants say that the first part of the condition, which is performance based, is the guiding requirement and must be complied with. The second part is no more than an example of how the first part of the condition may be met and this is evidenced by the flexibility inherent in the words "extend no less than 500mm from the wall."
3. Based on the principles enunciated in Vestey, I find it is not relevant when interpreting condition 1(h) to attempt to speculate what Senior Member Rickards might have meant when drafting the condition as she did. However, I am entitled to have regard to the objective matrix of facts and circumstances that supply the context in which the condition was included in the permit. In my view, this objective matrix includes the following:
   • The application was made by the responsible authority pursuant to section 87 of the Planning and Environment Act 1987 on the basis of a failure to give notice in accordance with the Planning and Environment Act 1987 and a material mistake in relation to the grant of the permit in terms that the responsible authority did not in granting the permit consider or require screening to the west facing habitable room windows of the dwelling on the subject land to meet the requirements of the ResCode objectives under clause 54.04-6 as required under the Design and Development Overlay Schedule 3 applying to the land.
   • The issues in dispute related to how, and if, the window should be screened to address the issue of overlooking.
   • The Tribunal found that notice should have been given to Mr and Mrs Kaye and there had been a material mistake.
   • It was appropriate to amend the permit by including condition 1(h).
4. I therefore find that the intent of condition 1(h) is to address overlooking from the four first floor windows into the eastern side private open space and habitable room windows of the Kayes' property at 14 Tulum Court.
5. I find that all parts of the condition must be complied with and the condition must be interpreted to give meaning to all parts of the condition. It is not appropriate to ignore the first part of the condition and rely solely on meeting the criteria in the second part.
6. When interpreting the first part of condition 1(h) there are a number of aspects that need to be specifically considered; for example:
   • What is the meaning of each of the following italicised words: prevent direct downward views to the adjoining property?
   • What parts of the adjoining property are referred to in the condition?
   • How should the options in the form of screening identified in the first part of the condition be interpreted; namely "louvres or a screen..."?
   • What is it that must be to the satisfaction of the responsible authority?
7. When interpreting the second part of the condition, what is meant by each of the following italicised phrases:
   • Such screens are to be the width of the windows and extend no less than 500mm from the wall.

Prevent direct downward views to the adjoining property

1. The word "prevent" is a critical word. Condition 1(h) does not say "limit" such views to the satisfaction of the responsible authority. It says "prevent". "Prevent" such views means to stop such views or prevent them from occurring.
2. Use of the word "prevent" in condition 1(h) may be contrasted to the wording of clause 54.04-6, which has the objective to limit views into existing secluded private open space and habitable room windows; and talks about avoiding direct views into such places. As noted previously, the Tribunal specifically declined to apply standard A15. Therefore, I consider that in drafting condition 1(h), use of the word "prevent" must be given its plain ordinary meeting, which is to stop such views.

1. When considering what is meant by "direct" views, I consider it is appropriate to have regard to the objective matrix of facts and circumstances that supply the context in which the permit was issued, as identified in Vestey. I have outlined what I consider to be the objective matrix in this particular case. This includes the fact that the material mistake giving rise to the decision to include condition 1(h) was the failure to consider or require screening to the west facing habitable room windows of the dwelling on the subject land to meet the requirements of the ResCode objectives under clause 54.04-6 as required under the Design and Development Overlay Schedule 3 applying to the land.
2. I consider that what constitutes _"_direct" views to the adjoining property must be interpreted by reference to clause 54.04-6 of the planning scheme. Standard A15 in this clause provides:

A habitable room window, balcony, terrace, deck or patio should be located and designed to avoid direct views into the secluded private open space and habitable room windows of an existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio. Views should be measured within a 45 degree angle from the plane of the window or perimeter of the balcony, terrace, deck or patio, and from a height of 1.7 metres above floor level.

A habitable room window, balcony, terrace, deck or patio with a direct view into a habitable room window of existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio should be either:

• Offset a minimum of 1.5 metres from the edge of one window to the edge of the other,

• Have sill heights of at least 1.7 metres above floor level, or
• Have obscure glazing in any part of the window below 1.7 metres above floor level, or
• Have permanently fixed external screens to at least 1.7 metres above floor level and be no more than 25 per cent transparent.

Obscure glazing in any part of the window below 1.7 metres above floor level may be openable provided that there are no direct views as specified in this standard.

1. In the context of the specific planning scheme provision, which the responsible authority made a material mistake in respect of failing to consider when amending the permit, namely clause 54.04-6, the term "direct view" has a specific meaning. I consider that the same meaning should be applied to the term as it is used in condition 1(h).
2. Thus I find that the term "direct downward view" means the view measured within a 45 degree angle from the plane of the relevant windows and from a height of 1.7 metres above floor level within a horizontal distance of 9 metres (measured at ground level) of the relevant windows.

1. I find that the word "downward" used in the condition refers to views of the ground level of the adjoining property. The condition does not address views of the first floor habitable room windows of the adjoining property.
2. There are clear uninterrupted views into the first floor rooms of the adjoining property, which screens of the type identified in the condition would not have had any chance of addressing. By referring to _"_downward" views, I find that the condition was not intended to require any screening views at the same first floor level.

What are the parts of the adjoining property to which direct downward views must be prevented?

1. I find that the parts of the adjoining property referred to in condition 1(h) to which direct downward views must be prevented are the deck, which is existing secluded private open space for 14 Tulum Court, and the habitable room windows facing the deck. Existing secluded private open space and habitable room windows are the areas to which clause 54.04-6 apply.
2. Whilst the Tribunal's decision refers in different places to the deck alone and to the deck and habitable room windows, I consider there is no basis for attempting to limit the meaning of "the adjoining property" to simply to the deck and not the habitable room windows of 14 Tulum Court.

How should the options in the form of screening identified in the first part of the condition be interpreted?

1. The first part of condition 1(h) effectively requires "screening...to prevent direct downward views to the adjoining property". These are the operative words of the condition. Two options are given for the form of such screening:
   • Louvres or
   • a screen to be located directly under the two ensuite windows and two master bedroom windows at first floor on the west elevation.
2. I do not interpret the condition to mean that the words "to be located directly under the two ensuite windows and two master windows at first floor on the west elevation" necessarily apply to the option of louvres as well as to the option of a screen. In my view there is no guidance provided about the form that any louvres might take. The guidance in the first part of the condition refers to the option of a screen.
3. This interpretation is supported by the wording of the second part of the condition, which refers to screens but not louvres. It provides that "such screens are to be the width of the windows and extend no less than 500mm from the wall." In my view, this description and the dimensions relate directly to the option set out in the first part of the condition of "a screen to be located directly under the two ensuite windows and two master bedroom windows at first floor on the west elevation".
4. However, even if the words "to be located directly under the two ensuite windows and two master bedroom windows at first floor on the west elevation" apply to the option of louvres as well as the option of a screen, it does not detract from my finding that either form of screening device - louvres or screens - must prevent direct downward views to the adjoining property. Although the second part of the condition requires any screen "to be width of the windows and extend no less than 500mm from the wall", this is a minimum dimension. The possibility that the screens may extend further from the wall acknowledges the need to ensure that such screens comply with the requirement of the first part of the condition to prevent direct downward views to the adjoining property.

What must be to the satisfaction of the responsible authority?

1. What is it that the responsible authority must be satisfied about?
2. The first part of condition 1(h) provides an option in terms of the screening to be provided. It may be in the form of louvres or a screen to be located directly under the two ensuite windows and two master bedroom windows at first floor level on the west elevation. However, either method of screening is "to prevent direct downward views to the adjoining property to the satisfaction of the responsible authority."
3. Does this mean that the satisfaction of the responsible authority relates to:
   • Whether the screening in fact prevents direct downward views to the adjoining property?
   • Whether the responsible authority is satisfied with the location, specifications, materials, style and dimensions of the screening?
   • Whether the responsible authority is satisfied with both the construction of the screening and whether it meets its purpose?
4. In my view, the responsible authority must be satisfied with both the construction, in terms of location, specifications, materials, style and dimensions of the screening, as well as satisfied that the screening prevents direct downward views to the adjoining property.
5. I do not consider that the words "to the satisfaction of the responsible authority" give the responsible authority any discretion to accept a lesser standard of overlooking than preventing direct downward views to the adjoining property. The only discretion is whether screening is in the form of louvres or a screen, and with respect to the proposed materials, location and dimensions of the screening. Whichever form of screening is used, the responsible authority must still be satisfied that it prevents direct downward views to the adjoining property. In other words, this phrase casts an onus on the responsible authority to be satisfied that the screening device chosen will achieve what the condition requires. If there is any dispute about whether the screen complies with the condition and its purpose, namely to prevent direct downward views to the adjoining property, there would be a right of review to the Tribunal under section 149 of the Planning and Environment Act 1987.
6. However, I find that the phrase does not confer a discretion on the responsible authority to disregard the standard set out in the condition that the screening device must meet or to be satisfied by screening that fails to prevent direct downward views to the adjoining property.

1. I have noted that there are two parts to condition 1(h). I have set out my findings relating to the interpretation of the first part of the condition. If the condition was limited to the first part only, there would be no ambiguity. It is the second part of the condition that parties suggest introduces an element of ambiguity. The responsible authority and the respondents say that the inclusion of the second part of the condition with very specific dimensions for the screens effectively defines the screening which is required to be provided and that compliance with such dimensions means that the condition as a whole is complied with.
2. I disagree with this interpretation. If compliance was only required with the second part of the condition, it would leave no work to be done by the first part of the condition. That cannot be right. Rather, I consider that the first part of the condition sets the standard that must be met by any screening device. The second part of the condition simply provides one potential option by which the first part of the condition might be met.
3. I have already set out my view that the words "to be located directly under the two ensuite windows and two master bedroom windows at first floor on the west elevation" relate to the screening option of screens not to the option of louvres. This view is supported by reference in the second part of the condition to the opening words "such screens". The second part of the condition does not refer to louvres and it is arguable that the dimensions given are not applicable to the screening option of louvers.
4. However, whether the location described in the first part of the condition relates to both screening options of louvres and screens or only to screens is not determinative in my view of the meaning of the second part of the condition. The main reason why I find that the first part of the condition, in terms of setting the standard that any screening option must meet, is the primary part of the condition and that the second part of the condition must be read subject to it, is that the dimensions in the second part of the condition are not completely fixed. They allow a degree of variability by reason of the words that the screens are to extend "no less than 500mm from the wall". By not fixing the extent to which screens must extend from the wall, it leaves open an aspect of the screens about which the responsible authority must be satisfied. That satisfaction relates to whether or not the primary purpose of the condition set out in the first part has been met, namely whether the screens prevent direct downward views to the adjoining property.
5. Admittedly, the dimensions set out in the second part of the condition and the location specified in the first part of the condition have proved to be entirely inadequate in meeting the purpose of the condition to prevent direct downward views to the adjoining property. However, that does not mean that the operative part of the condition embodied in the words "Screening ... to prevent direct downward views to the adjoining property" should be ignored and given no meaning.

1. I therefore find that condition 1(h) requires screening to the satisfaction of the responsible authority. The screening must prevent direct downward views to the adjoining property. Direct views are those views prescribed in clause 53.04-6 to the deck and habitable room windows of the property at 14 Tulum Court. The screening may be in the form of louvres or a screen located directly under the relevant windows. If the option of a screen is chosen, such screens are to be the width of the windows and extend no less than 500mm from the wall. The responsible authority must be satisfied with the form of screening chosen and satisfied that the option chosen will prevent direct downward views to the adjoining property.

1. The screens shown on the plans endorsed by the Council and as built are not effective to prevent direct downward views to the adjoining property.
2. Evidence was given on behalf of the applicants by Peter Brown, architect, in the form of a plan detailing existing overlooking conditions. The plan shows that the area of the adjoining property (14 Tulum Court) with zero overlooking is confined largely to the area between the dividing fence and the edge of the deck. Overlooking of the deck and the habitable room windows within the ambit of the view cone set out in clause 54.04-6 is not prevented by the screens shown on the endorsed plans and as built.
3. This evidence was supported by photographs produced at the hearing and by my own inspection. Although I am lesser in height than 1.7 metres high, when I stood at the windows of the master bedroom, I found that the screens only obscure views directly downwards into the subject land. Visually, the screens extended to the top of the dividing fence. They did nothing to obscure views beyond the top of the fence. The fence itself obscures views immediately to the west of the fence between the fence and the edge of the deck as shown in the plan produced by Peter Brown. Standing adjacent to each window, I had a clear and uninterrupted view of the whole of the deck for 14 Tulum Court and into the dining room, kitchen and rumpus room within a 45 degree angle from the plane of the window. I could see obliquely beyond this view cone into other parts of the property at 14 Tulum Court, but these are not direct views within the meaning of clause 54.04-6. The 9 metre distance referred to in clause 54.04-6 extends well into the relevant habitable rooms at 14 Tulum Court.

RESPONSIBLE AUTHORITY'S DECISION TO ENDORSE PLANS UNDER CONDITION 1(h)

1. The plans submitted to the Council for endorsement under condition 1(h) and as endorsed by the Council show "privacy screens in accordance with VCAT Order No. P3660/2012". The screens comprise 90mm aluminium coated louvres at 55 degrees angle and spaced at 90mm centres. They are the width of the windows and extend 600 millimetres from the window wall and are located at the base of the window sill. Dotted lines of sight are depicted on the plans from a height of 1.7 metres above floor level, which indicate that a person would not be able to see directly below the screens.
2. However, there is no depiction of the adjoining property at 14 Tulum Court shown on the plans and there is no depiction of the line of sight from the windows to illustrate overlooking into the adjoining property.
3. I find there was no information submitted with the plans that would enable the responsible authority to form of a judgment about the extent of overlooking into the adjoining property or to be satisfied that the screening prevented direct downward views to the adjoining property.
4. At the hearing, Council advised that it did not prepare a report or memorandum outlining Council's consideration of the amended plans. It advised this is not a step Council requires its officers to undertake when forming a view that plans comply with the condition. It is customary only to outline Council's view where Council is not satisfied plans will comply with the condition. Council acknowledged it is difficult to appreciate the considerations Council took into account when forming a view to endorse the amended plans. Despite no documented consideration, Council denies it has erred when endorsing the plans showing screening to the windows along the western elevation (at the upper level). Council further submitted that in not documenting its decision, this in itself was not evidence of a failure to consider relevant matters in a Wednesbury sense.
5. The Council submitted that it was entitled to be satisfied that the screens comply with the terms of condition 1(h) because the screens:
   • Are located under the two ensuite windows and two master bedroom windows at the first floor along the western elevation;
   • Are the width equal to the relevant window opening; and
   • Are more than 500mm in length extending from the window.
6. Council submitted there is no scope in condition 1(h) to require vertical screening to the master bedrooms. The Tribunal's order, while endowing Council with discretion to be satisfied with the screening, is prescriptive. Council's discretion as to its satisfaction is confined to the specific treatment required. Whether the prescription is adequate is another issue.

1. To establish the ground of Wednesbury unreasonableness, Courts have established that the circumstances in which a decision can be held to be unreasonable must be overwhelming. Courts and tribunals must not use unreasonableness as a guise for hearing an appeal and reviewing the merits of a decision. They cannot substitute their own decision for that which was made by the decision-maker on its merits. Nevertheless, it would be wrong to say that Wednesbury unreasonableness has no role to play in reviewing a decision, not on its merits but on the way in which the decision was made.
2. Thus in unChain St Kilda Inc v Port Phillip CC[8] Deputy President Dwyer, in rejecting an argument of Wednesbury unreasonableness, said:

[113] In the exercise of planning discretion and in planning decision making generally, it will be common that there is no single decision or outcome that is objectively reasonable to the exclusion of all others. As I have indicated, the decision maker must integrate state and local planning policy and balance conflicting objectives, and there may be differing but still reasonable outcomes. In reaching an integrated and 'balanced' outcome, one responsible authority, acting objectively and reasonably, might come to a particular decision. But this does not mean that an alternative decision reached by another responsible authority on the same material is necessarily or objectively 'unreasonable'.

1. unChain St Kilda was a case where the Tribunal found that the decision made by the Council to approve a Development Plan was at least open to the Council on the material before it, in particular having regard to matters it was required to consider under the Development Plan Overlay.
2. Sisinni v Darebin CC[9] is another case where the Tribunal found that a decision by a Council officer to endorse plans under a permit was one that "was not so unreasonable that no Council could have reached such a decision"[10] despite the Tribunal's view that the conduct of the Council officer was most imprudent in the circumstances. Deputy President Dwyer's reasons for coming to the conclusion that there had been no Wednesbury unreasonableness, despite his misgivings, were that:

[60] ...As indicated, the evidence of Mr Rollis was that he had 'resolved' the anomaly through an examination and comparison of the various plans and elevations, and had not simply ignored the issue.

1. The question of whether there was any basis or evidence to support a decision, even though the decision represents a poor judgement or one that the Court or tribunal reviewing the decision may not agree with, is a different matter to a situation where there is no evidence to support a decision or there is no logical basis for a decision.[11] If the latter is the case then it is open to find that there has been Wednesbury unreasonableness.
2. However, Wednesbury unreasonableness is not the only ground that may invalidate the decision of an administrative decision-maker. A decision may be invalid because:
   • It is contrary to law.
   • It is made for an improper purpose.
   • It takes into account irrelevant considerations.
   • It fails to take into account relevant considerations.
   • It is so unreasonable that no reasonable decision-maker acting reasonably could have made the decision.
3. These factors were all acknowledged by the Court in Wednesbury and have been endorsed in numerous other decisions.[12] As the Court in Wednesbury noted: "in fact, all these things run into one another."
4. Not all these matters were dealt with specifically at the hearing. Nevertheless, whilst I have some doubt whether the circumstances of this case fit within the principles of Wednesbury unreasonableness, I do not consider I need to finally decide this issue because the Council, by its conduct, has either:
   • misdirected itself;
   • misinterpreted the condition;
   • failed to take into account relevant considerations;
   • taken into account irrelevant considerations; and/or
   • reached a decision that is in a Wednesbury sense unreasonable.
5. All of these factors, alone or in combination, provide a sufficient basis for a declaration that the endorsement of the plans was invalid.
6. I have previously set out my findings about the meaning of condition 1(h). It is different to the meaning which the Council has ascribed to this condition. In this respect, I find that the Council has misdirected itself and has misinterpreted the meaning of the condition. Accordingly, from its own submissions, it has not directed to its mind to the primary obligation under the condition, which is that the screening must prevent direct downward views to the adjoining property.
7. In addition to misdirecting itself about the meaning of the condition, I find that the Council had before it no information or evidence to enable it to make the decision that it was required to make under the condition. It had no information to enable it to form any view about whether the screening would prevent direct downward views to the adjoining property.
8. In my view, the Council's actions are not excused because it had a different interpretation about the meaning of condition 1(h). This is not a situation where the decision was a poor decision or an ill-judged decision. Rather, it was a decision that lacked a logical or lawful basis.
9. Wednesbury unreasonableness is not a test of the bona fides of the decision maker - did it honestly, but mistakenly, believe it was applying the correct test. Rather, it is a test of whether the decision was one so devoid of any justification that no reasonable Council could have reached it. In my view, this is a somewhat different test to the other basic principles of administrative law that I have referred to.
10. In the present case, I have found that:
    • the Council failed to consider the correct interpretation of condition 1(h) when deciding whether to endorse the plans;
    • it endorsed the plans without any material before it upon which it could have assessed whether the screens complied with the true meaning of the condition; and
    • it endorsed the plans without any consideration of the fundamental obligation cast by the condition, namely whether the screens "prevent direct downward views to the adjoining property".
11. In these circumstances, I find that the Council has misdirected itself as to the correct interpretation of condition 1(h) and has failed to have regard to any material that would demonstrate whether the screens would prevent direct downward views to the adjoin property. I further find that it has taken into account an irrelevant consideration, namely the wrong interpretation of the meaning of condition 1(h). For these reasons, I find that the decision to endorse the plans under the permit was not a valid decision.
12. As I have previously stated, the critical issues are the meaning of condition 1(h), the effectiveness of the screens, and the way in which the Council made its decision. All parties addressed these issues at length. Having considered these matters, it is then for me to decide whether there has been a valid endorsement of the plans or not, whether by virtue of Wednesbury unreasonableness or otherwise. For the reasons I have set out above, I do not consider the decision to endorse the plans is valid
13. The fact that I have determined the case on a somewhat different basis to that argued at the hearing does not mean the parties have been denied natural justice. They all addressed the critical issues. Section 97 of the Victorian Civil and Administrative Act 1998 requires the Tribunal to act fairly and according to the substantial merits of the case in all proceedings. Section 149B of the Planning and Environment Act 1987 enables the Tribunal to make any declaration it thinks appropriate in the circumstances. I consider it is appropriate in the circumstances to make declarations about the meaning of condition 1(h) and that the plans endorsed under the permit are not valid because they do not satisfy the requirements of condition 1(h).
14. I consider it is appropriate to exercise my discretion to make a declaration because there is a dispute in existence that is attached to facts. The dispute is real and not hypothetical. The declaration will be of practical use because it means that the respondents must submit further plans for endorsement under the permit, which the Council will need to assess having regard to the proper meaning of condition 1(h).

1. At the conclusion of the hearing, I directed that there would be an accompanied site inspection of both properties. When arrangements were subsequently made by the Tribunal for the inspection to take place on 23 June 2014, reference was again made to the accompanied nature of the inspection.
2. When I arrived at the subject property at 12 Tulum Court, accompanied by Mr and Mrs Kaye and Ms Mimi Marcus, the legal representative of the responsible authority, a person from the respondents' solicitors' office, Davis Lawyers, refused to allow access to the house to the applicants or Ms Marcus. Despite repeating my direction that this was to be an accompanied site inspection and that the applicants and Ms Marcus were accordingly entitled entry to the house to inspect the views from the first floor windows in question, the respondents' representative continued to deny access to Ms Marcus and the applicants.
3. The Tribunal is entitled to enter and inspect any land or building in the presence of the parties pursuant to section 129(1)(a) Victorian Civil and Administrative Act 1998. Pursuant to section 129(5), a person must not obstruct or hinder or refuse access to any land or buildings to a person exercising a power of entry and inspection under this section. The penalty for so doing is imprisonment, a fine or both. In addition to it being an offence not to comply with an order of the Tribunal, a person not complying may be guilty of contempt.
4. In all my time as a Tribunal member, I have never encountered such behaviour from a party and their legal representative in refusing point blank to comply with a Tribunal direction.
5. In the circumstances, I propose to order indemnity costs against the respondents in favour of the Council to compensate for Ms Marcus' wasted trip.

1. With respect to other costs of the proceeding, I shall reserve costs and provide an opportunity to any party wishing to claim costs to make an application with supporting submissions.

[1] Mornington Peninsula SC v Adinelle Pty Ltd & Anor [2013] VCAT 152

[2] [1947] EWCA Civ 1; [1948] 1 KB 223 at pp 230-231

[3] East Melbourne Group Inc v Minister for Planning [2005] VSC 242; (2005) 12 VR 448, at [48] per Morris J, following Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821 per Lord Diplock, quoted in unChain St Kilda Inc v Port Phillip CC & Ors (Includes Summary) (Red Dot) [2009] VCAT 833 at [108]

[4] [2008] VCAT 963

[6] [2000] NSWCA 65; (2000) 171 ALR 523, 550

[7] [2004] SASC 373; (2004) 137 LGERA 189, 197

[8] [2009] VCAT 833

[9] [2007] VCAT 1270

[10] [2007] VCAT 1270 at [60]

[11] See Minister for Immigration v Eshetu [1999] HCA 21 at [101

[12] For example, see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24