2. This application for costs was made as part of the application by Mr. S. Konstanty for a review of Council's decision to refuse the permit application. The application for review, and the request for costs were made by Mr. Russell Hocking, of CityShire Planning, acting as agent for S. Konstanty.

3. At the initial hearing, Mr. Hocking asserted that he had provide a copy of the letter containing his intention to apply for costs to Council (letter dated 10th August, 2000), in addition to copies supplied to the Tribunal and to his own client. A copy of this letter had been received by the Tribunal. However, Council's files did not contain any copy of such correspondence and Mr. Sakolevas had not had the opportunity to prepare any arguments in response to such application.

4. At the conclusion of the hearing dealing with the merits of the case, I directed that if I were to support the application for review, a further hearing would be convened to consider the application for costs. This decision relates to this subsequent hearing.

5. Neither Mr. Hocking nor his client attended the reconvened hearing. Mr. Hocking had written to the Tribunal (23rd October, 2000) to request that the application for costs be based on the written submissions. It also appeared that Mr. Hocking's client had not made him aware of the date of the reconvened hearing. However, Mr. Hocking had previously made a number of written submissions elaborating his arguments and providing examples of previous council decisions which he submitted as relevant to this matter. I have taken these into account in this decision.

6. The grounds of the application for costs were set out in Mr. Hocking's letter of the 10th August, 2000, being that "the application was refused in ..... a superficial and unexplainable way,.........." Further, that "the application, in the first instance, was not properly, fairly or objectively considered by the Council and that even though an Officer Report was considered by the Council Delegate, that Report did not accurately or fairly outline the details of the proposed development, independently or objectively appraise all of the relevant planning issues nor give proper weight to the matters that are required to be considered pursuant to the provisions of the Planning & Environment Act 1987 and the Monash Planning Scheme."

7. Pursuant to Section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998, each party is to bear their own costs in the proceeding [s. 109(1)]. The Tribunal may only order that a party pay all or part of the costs of another party if "satisfied that it is fair to do so". In reaching a decision in this respect, the Tribunal is directed to have regard to a number of criteria in this section_._

8. Generally, the criteria relate to the proceeding itself (in this case, the proceeding being the hearing by the Tribunal of the application for review), so that the "costs of another party in the proceeding" would be the costs directly related to conduct of that hearing.

9. The last criterion [s.109(3)(e)] refers to "any other matter the Tribunal considers relevant". This could be applied to the grounds of Mr. Hocking's application for costs on the basis that Council did not properly or objectively address the planning issues relating to its decision, thereby coming to an inappropriate decision.

10. I accept that there may be circumstances where, if a Council does not follow appropriate procedures in reaching its decision, it may be reasonable to conclude that its refusal goes beyond the normal exercise of judgement to the extent that it is entirely unjustified. In such case, the costs imposed on the permit applicant in correcting this injustice via an application for review would also be unfair. On this basis, I am prepared consider this application for review under this criterion.

11. I now turn to examine the merits of the arguments relating to this criterion.

12. It would not reasonable for anyone to argue that merely because the Tribunal overturns a decision of the responsible authority, the decision of the responsible authority was unreasonable. The Tribunal may come to a different decision from Council's for a number of reasons: because it takes different matters into account; gives different weight to expert evidence and submissions; gives different weight to competing strategic issues or the policy framework. This is what a review of a decision usually involves.

13. In this case, Mr. Hocking's submission is that "the application, in the first instance, was not properly, fairly or objectively considered by the Council." In his letter dated 16th November, Mr. Hocking elaborated this: "the determination relied almost solely on the two crossing which this medium-density housing development had to the street and the fact that these were relied on almost entirely by the Council or justifying a reason to refuse the Application." Later, in the same letter, Mr. Hocking stated "the City of Monash unnecessarily delayed the development process in this case by refusing this Permit Application on grounds which had little foundation or were not sustainable in the overall context of State and Local Planning Policy and the provisions of the Good Design Guide."

14. The merits of this proposition need to be examined in two ways: in terms of other decisions by the Tribunal relating to similar developments in this City and with similar grounds of refusal by this Council and in terms of the way Council made its original decision to refuse the permit.

15. In considering this matter, it is relevant to consider only the matters that Council took into account, as well as the way that it took account of them, in reaching its original decision. It is these, Mr. Hocking argued, that were at fault.

1. The proposal does not satisfactorily address the purpose and intent of the Good Design Guide for Medium Density Housing.

2. The proposed development fails to provide appropriate car parking arrangements.

3. The proposal would adversely affect the streetscape and the character of the area.

17. The first ground is so vague that it gives no understanding about the specific issues at stake. The second matter can, by inference and cross-reference to the officer's report, be understood to refer to the issue of the undersized car space in the front carport. The final ground can be reasonably inferred as referring to both the carport's forward projection of the adjoining building and the provision of the two driveway crossings.

18. The Tribunal was provided with a copy of the officer's report (dated 8/3/2000) that reviewed the permit application and which formed the basis of Council's decision. This report compares and analysis, in table form, the various aspects of the proposed development against the requirements of both Council's User Guide and the Good Design Guide. It is clear that, in this report, those design aspects of the proposal that were considered by Council's officer to be deficient were highlighted in bold type. There are a number of other deficiencies noted, but these were not `bolded' and appear susceptible to ready resolution by small design changes.

19. From the table of analysis provided in the officer's report, the following list of significant design failures can be deduced as the basis for Council's refusal:

¨ Element E1 (density): "existing high picket fence to be retained" - in respect to a GDG requirement "Keep fencing heights to a minimum to allow for dwellings to visually address the street"; this issue relates to the proponent's desire to maintain an existing fence which could, if necessary, have been easily lowered

¨ Element E3 (neighbourhood character): "two separate driveways along 17.98 metre frontage"

¨ Element E4 (Site Layout & Landscaping): "front carport not set back behind front building line"

¨ Element E6 (Building Envelope): "Carport for existing dwelling not set back behind front building line".

¨ Element E8 (Car Parking & Vehicle Access): "Two crossing on frontage < 20 metres; Design of carport for existing dwelling unclear; Carport length (4.9 metres) inadequate; Carport in line with existing dwelling".

¨ Element E9 (Private & Communal Open Space): existing dwelling has a "min. dimension (ie. frontage setback of) 4.5m".

20. This list of deficiencies is relatively short. A very long list of design issues is recorded as complying with the Good Design Guide's requirements.

21. A summary of the critical issues is provided in the officer's report under the heading `Assessment'. Here, only three issues are referred to: that there should be only one driveway; that the carport dimensions of 4.9 metres be increased to 6.0 metres; that the carport should be set back 0.5 metres behind the front of the dwelling.

22. The retention of the "existing high picket fence" and the car port being "set-forward" of the dwelling may presumably have contributed to the third ground of refusal, though not mentioned in the report's `summary'. The officer's report acknowledges that the second dwelling is hardly visible from the street, so this appears not to be an issue.

23. It was clear, at the Tribunal hearing, that there was no impediment to the permit applicant changing the siting or dimensions of the front carport. It was simply a matter of proposing this change and the requirement was immediately accepted. The site layout did not impose any significant limitations to the necessary changes. No other changes needed to be made to the location of the front, existing dwelling to accommodate these adjustments.

24. The feasibility of these minor changes would, in my view, have been readily apparent and could have easily been established by a brief discussion between the Council officers and the permit applicant or by a simple permit condition. These are, in my view, relatively trivial matters and, of themselves, did not form any justifiable basis for the refusal. The fact that the refusal included reference to such trivia appears to have resulted from the permit applicant's eventual request, when it became clear that Council would not support the key aspect of the design (the two driveways), that the application be refused. As none of the minor issues had been corrected at that point, the refusal would appropriately refer to both major and minor issues (even though the latter could in other circumstances been adjusted via permit conditions).

25. Consequently, I consider it reasonable to conclude that the siting and dimensions of the carport do not, of themselves, provide any basis for Council to have refused this permit.

26. The real reason, as put by Mr. Hocking, is that the key ground of refusal is Council's policy of not allow two driveways in frontages of less than 20 metres.

27. At the time Council's decision was made, the ground of refusal based on the two-driveway criterion was drawn specifically from the neighbourhood character study which was undertaken for the City of Monash by Gerner Consulting Group Pty Ltd. This study had categorised the City into a number of Neighbourhood Types, with Winbirra Pde located in Neighbourhood Type `D1a'.

28. The character type `D1a' is based on the "Character derived from 1950's public housing, sloping topography to Gardiners Creek and a gently curvilinear subdivision pattern". Distinguishing features of the character type included scale of buildings, enclosure by trees and openness due to large building setbacks, diversity due to variations in subdivision pattern and building form, coherence due to consistency in the subdivision pattern, naturalness due to the undulating topography and rarity due to the uniqueness of the curvilinear subdivision pattern.

29. The desired future character of this neighbourhood type is "as a well planted open and spacious garden suburb." Amongst other matters, "The soft quality of the street that is derived in part from the nature strips should be maintained by ensuring that there is only one single crossover per lot frontage. If an additional crossover is necessary it should be constructed to minimise visual impact and any effect on street planting."

30. A series of techniques are provided, which include the following: "Car Parking and Vehicle Access - There should be one single cross over per lot street frontage unless lot frontage is in excess of 20m."

31. At the time Council's decision was made, the Neighbourhood Character Study had been used to provide the basis of an amendment that was to introduce Local Variations to the Good Design Guide into the Monash Planning Scheme. The panel report on this amendment was lodged with Council in August 1998, the same month that Council received the separate panel report on the new format planning scheme. The panel report on the local variations was highly critical of much of the neighbourhood character study and its usefulness as a basis for the local variations. With specific reference to Neighbourhood Type D, the panel recommended that "Area D should be identified as an area where substantial change can be expected."

32. Council's decision on this permit application was made in 15th March 2000. Council did not adopt its new format planning scheme until June, 2000, and it was not approved until 16th November, 2000. The new format planning scheme that was exhibited and adopted also included Clause 22 policies derived from the Gerner Consulting Group's Neighbourhood Character Study, as did the `User Guide to Residential Development in Monash', which Council was also using to assist its analysis of residential proposal at the time it decided on this permit application.

33. The nature of Council guidelines is that they often create arbitrary criteria. That is what make them so helpful, as decisions can thereby be rendered simpler and certainly more consistent. However, their very arbitrariness can lead to unfairness in particular situations, which in turn requires that there be some test of the appropriateness of the guideline to the particular situation. With the `two-driveways' criterion, we have a situation where two driveways will be considered unacceptable for a site with a frontage of 19.7 metres while it would be acceptable if the frontage is 20.3 metres, though the observer may not identify any significant difference. Other issues that may have a more critical bearing on the effect of two driveways on the local streetscape character include such matters as the depth of front setbacks, landscaping character of the front gardens, slope of the land, width of nature strips, engineering/design treatment of crossovers and the proximity of other existing crossovers. The Desired Future Character Statement, which contains the effective objective for this area, is not prescriptive but refers to the desired outcome in relation to vehicle crossovers, together with some options to be considered.

34. Council's report gives no indication that any of the above issues were considered. In fact, from the several references in that report to the two-driveways criterion, it is clear that it this criterion has only been considered as a prescriptive and mandatory requirement. There is no reference to any other consideration than the width of the frontage. There was no consideration of any related issue that would set the criterion into a context that related it to its underlying objective and that would indicate why it was appropriate to adopt a prescriptive approach to its use. It is clear that the analysis has been formulaic, based only on the prescriptive technique.

35. Council is a responsibility authority under the Planning & Environment Act 1987. As such, it is directed to (s. 14) "(b) to implement the objectives of the planning scheme and; (c) to comply with this Act and the planning scheme." The objectives of planning in Victoria include [s. 4(1)] "(a) to provide for the fair, orderly, ...... use, and development of land; ......(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e)."

36. In this context, Council has, in my view, an obligation to turn its mind to the issue of fairness in the exercise of its discretion, which in turn requires that, as discussed above, it at least considers the appropriateness of the guideline's criterion to the particular case. The existence of a prescriptive guideline is not a reason to behave is if discretion did not exist or did not have to be exercised. In this case, the `guideline' has, unfortunately in my view, been drafted in a highly prescriptive technique. Furthermore, also as discussed above, Council's documentation has applied the criterion in an unquestioning and arbitrary manner.

37. This situation is the more critical if this policy provides the only substantive basis for Council's refusal, for the reasons discussed above. If Council is to exercise its duties as a responsible authority in a responsible way, then it must, when deciding on a permit application, exercise its discretion with appropriate deliberations. It must consider not only applicable guidelines but must always consider the objectives of the guidelines and whether the guidelines have been rendered less appropriate because of any aspects of the local situation. This was not a particularly demanding task in this case as there was only one critical design element and policy to consider.

38. However, there is no indication as to whether Council would have formed a different view if it had properly considered the merits of the matter. In this context, Council's decision falls, perhaps, into the category of poorly considered decisions, as discussed earlier. This does not, in my view, provide a basis for awarding costs, notwithstanding the apparent injustice of Council not having undertaken a proper decision-making process. It does not extend to a conclusion that the decision was deliberately obstructive in intent, or perverse.

39. However, if the Tribunal were to continually find against Council's use of this policy, or if Council were to persist in applying a formulaic assessment of this criteria without proper and transparent exercise of its discretion, it could well lay itself open to an award for costs on grounds relating to s.109(3)(e) in relation to obstruction or denial of fairness and thereby failing to meet important provisions of the Planning & Environment Act 1987 and its obligations as a responsible authority under that Act.

40. The other part of Mr. Hocking's argument is that Council's policy of refusing developments that include two driveways in a frontage of less than 20 metres has been rejected by the Tribunal in similar and local situations, so that Council should not have persisted with this ground in this case. To support his positions on this argument, Mr. Hocking referred me to a number of Tribunal decisions that were favourable to his position. I had requested and Ms. Moser to provide me with examples of tribunal decisions in related matters, which she did. However, were so highly selective that they did not provide a fair overview. Consequently, I have researched a larger number of decisions myself. These are summarised below, together with my assessment of their relevance to this issue.

Tribunal comment: "The inspection was helpful and noting the crossings and developments in the street, the Tribunal cannot understand how the responsible authority has refused this proposal. ....... The responsible authority cannot give blanket refusals based on the frontage width as was the case here. Each proposal must be dealt with on its merits and in this case the Tribunal is satisfied that the proposal will not further alter the area character ...." Frontage is 17.68 metres

Tribunal comment: the issue of 2 driveways in a frontage which is more than 20 metres formed only part of Council's concerns relating to streetscape character, with building bulk and other streetscape issues being important. In rejecting Council's concerns about streetscape issues, the Tribunal did not comment specifically on the issue of the 2 driveways. The site's frontage is 21.7 metres

Tribunal's comment: "..... two driveways on an allotment some 3 metres less in frontage than the policy requirement, however in this street .... there doesn't appear to be a problem with this as there don't appear to be other examples of such." The site's frontage is 17.04 metres

Tribunal's comment re the proposal for two driveways: "these are modest dwellings and commensurate in size, and form to the modest development at 232 Huntingdale Road which has driveways in a similar configuration to this proposal." The site's frontage is 18.9 metres

Tribunal's brief comment: "Two driveways in his section of Hiscock Street are not seen as changing the neighbourhood character ..... The site's frontage is 18.04 metres.

Tribunal comment: ".... the submission by Mr. Radisich on crossing locations shows that the proposal will fit the area without detriment to the character of the area." The site's frontage is 18.4 metres.

Tribunal comment: "(the respondents)..... were concerned that two driveways were proposed. This is not an ideal situation, but Technique 12 of Element 8 suggests that where the total frontage is 20m or less, the amount of frontage taken up by accessways is limited to a maximum of 40% which in this case would be 6.7 metres. The technique is satisfied and ...." The frontage is 16.9 metres.

Tribunal accepted that a second crossover would be reasonable, subject to minor changes in location and alignment. Frontage width not stated

Tribunal noted "the front setback, the density and the provision of two driveways do satisfy the relevant Techniques of the Good Design Guide, but together I think that they are not satisfactory having regard to the relevant Objectives and Criteria." Site frontage is 21.95 metres and the site is situated at the head of a court bowl.

Tribunal comment: "The two driveways proposed and the extent of hard surface together with the location of the front unit garage was considered to be inappropriate. ......... The Tribunal agrees that (the garage) should be relocated to the rear of this unit." Site frontage is 16.69 metres.

Tribunal comment: there were several reasons on which the Tribunal concluded that the development should be refused, including building bulk, overlooking, two crossovers of which one would be 6 metres width and a car port in the front of the dwelling. Frontage width is 16.46 metres

The Tribunal simply noted that the provision of two crossovers is contrary to the guideline in Council's Urban Character study.

The Tribunal noted that there were both public and private costs associated with the provision of a second driveway. The public costs in the loss of nature strip to the second driveway, the private cost is the diminished liveability of one of the dwellings. Site frontage is 17.37 metres.

The Tribunal indicated that it would not approve development that included, amongst other matters, two driveways in frontages of less than 20 metres. The Office of Housing, as permit applicant, redesigned the development proposal to meet the Tribunal's various criteria and permits were granted accordingly in three cases.

The Tribunal simply noted that the "principle area of concern is that of neighbourhood character and in this respect the proposal fails in terms of the two driveways and crossovers proposed, open space proposed to be located in the front setback area and limited potential for appropriate landscaping in this setback and elsewhere around the site." Site frontage is "just over 20 metres".

Although two driveways were proposed for this three-unit development, neither of the parties at the review hearing, nor the Tribunal's decision, appear to have referred to this issue at all. Site frontage is 15.2 metres

Tribunal referred to "the dominance of built form and hard surfaces (which) will be accentuated by the garages and driveways located along both side boundaries, giving the appearance of boundary to boundary development." The Tribunal referred to other matters as also influencing its decision. The site's frontage is 18.29 metres.

41. It is clear that, in the majority of cases, the Tribunal rejected the proposition that two driveway crossings in a frontage of less than 20 metres would be unacceptable. In two cases, the Tribunal granted a permit but required that the layout of the dwellings and garages/car ports be modified to remove the second driveway. In these cases, the two-driveways issue was only one of several design/layout concerns. It is also clear that this modification was feasible while still allowing the development to proceed.

42. In a few cases where it has rejected a permit, the Tribunal referred to the proposal's non-compliance with the `two-driveways' guideline as one of a number of deficiencies. However, it is not possible to draw any conclusion from the Tribunal's wording as to whether on not it would have refused the permit if there were no other significant grounds but non-compliance with the `two-driveways' policy. In a small number of cases, the Tribunal treated the two-driveway policy as the critical element, but in these cases, the Tribunal's acceptance of the importance of the criterion was without any discussion as to its applicability in the circumstances or its standing as a policy.

43. While it is clear that, in most cases the Tribunal did not place great weight on the importance of the two-driveway policy, the Tribunal's treatment of this policy, and the weight it gave to the policy's standing, varied. The relative consistency of the Tribunal's decisions does give grounds for believing that if the two-driveway's policy was the principle basis of a refusal of permit, there would be a better-than-even probability of overturning the refusal at appeal. However, that is not a basis for arguing that Council was unreasonable in the exercise of its discretion. Only if the Tribunal had clearly and consistently set this policy aside in all cases could this point be argued with any strength. This is not the situation at the present.

44. However, it is my view that, if Council were to continue to apply this policy while also continued its policy of requiring adjoining crossovers (ie. on either side of the same boundary of adjoining properties) to be `joined' by an additional strip of concrete rather than a grass median and thereby substantially increasing their visual impact, there would be further grounds for concluding that Council was applying policy in an unfair way. (Refer my earlier comment and the comment in the Neighbourhood Character Study - para. 28). In this case, there would be further grounds to set aside the two-driveways policy on the basis of unfairness and, possibly, further grounds for an application for costs by the permit applicant pursuant to the provisions of s.109(3)(e) of the Victorian Civil and Administrative Tribunal Act 1998.

45. Although not relevant, given my decision above, it can be pointed out that the provisions of this section of the Victorian Civil and Administrative Tribunal Act 1998 only apply to the costs of proceedings before the Tribunal, not to such other costs that may be incurred by the applicant, such as property holding costs. If costs in the proceeding had been awarded against Council, any claims for other costs, as above, would have had to be pursued through other legal avenues.

For the above reasons, this Application for costs is rejected. It is not appropriate in this case for Council to pay any proportion of the permit applicant's costs of the proceeding and I so order.