Mr P Connor of Counsel, instructed by Clements Hutchins and Co. for Dr David Daly and Ms Fabiola Superina

Respondent and Applicant for Review/Permit Applicant

These are applications pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 for costs resulting from my decision to dismiss Application for Review P51030/2001, an application by Kubis Constructions for review of a decision of the responsible authority, Yarra City Council, to refuse to grant a permit to partly demolish an existing industrial building at 180A Lennox Street, Richmond.

and construct four dwellings in a three storey building on the land.

My Order in relation to the Application for Review was dated 27th of December 2001 and was as follows:

The Application for Review is dismissed and the decision of the responsible authority is affirmed.

Costs reserved. If any of the respondent objectors or the responsible authority wish to apply for costs then a formal application and accompanying written submission must be served on the applicant for review and lodged with the Tribunal by no later than the 1st of March 2002. If the applicant for review wishes to contest any application for costs the applicant for review must serve on the other parties and lodge with the Tribunal written submissions in that regard by no later than the 2nd of April 2002. Any party may request that the application(s) for costs be the subject of a hearing.

By the 1st of March 2002 the Tribunal had received written submissions on behalf of all the parties seeking costs. A supplementary submission was also subsequently received from Mr Wren on behalf of his clients with a covering letter from his instructing solicitors dated 29th of April 2002.

No submission had been received by the 2nd of April from Kubis Constructions.

At my request the Senior Registrar on the 12th of April 2002 wrote to Kubis Constructions noting that no submission had been received and stating that if Kubis Constructions intended to file and serve submissions in response to the applications made for costs, then this should be done on or before 22nd of April 2002 after which time I would proceed to determine the question of costs. Also at my request the Senior Registrar on the 12th of April wrote to Kubis Constructions requesting that, in view of submissions made by Mr Beale as to its corporate identity, it advise whether "Kubis Constructions" is a company or registered name, and provide full particulars of its registered office, directors or the relevant proprietors (as the case may be) and registered number.

A response to the costs applications was received by the Tribunal on the 23rd of April 2002. The response was signed by "R Hamilton Wilson, Consultant Architect" and was on the letterhead of the Domaine Ramsay Group. Mr Wilson did not include any statement in his response that he was acting for Kubis Constructions.

The Tribunal has not received any response to the request made by the Senior Registrar in his letter dated the 12th of April 2002.

1. Pursuant to s 109(1) of the Victorian Civil and Administrative Tribunal Act 1998,

normally each party is to bear its own costs in cases before the Planning and Environment List. However, s 109(2) provides that the Tribunal may make an order that a party pay all or a specified part of the costs of another party in a proceeding. Section 109(3) provides as follows:

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

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

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

(d) the nature and complexity of the proceedings;

(e) any other matter the Tribunal considers relevant.

2. Mr Wren submitted that in relation to s 109(3) the Application for Review was

initiated by Kubis Constructions notwithstanding that it was so obviously untenable and manifestly groundless as to be utterly hopeless, and in addition there has been on the part of Kubis Constructions and/or Mr Wilson a clear deception regarding the respective each played in the preparation of plans, site analysis and attending to Council's request for further information. Therefore, he submitted, his clients had been unfairly and unnecessarily exposed to having to contest the Application for Review and having to incur legal costs and expenses, for which a normal order for costs would not fully compensate them. He sought costs on a Solicitor/Client basis pursuant to the Supreme Court Scale of Costs.

3. Mr Connor also sought costs on a Solicitor/Client basis pursuant to the Supreme Court Scale of Costs. He also submitted that in relation to s 109(3) the case of Kubis Constructions in the Application for Review was without foundation and merit, that Mr Wilson attempted to deceive the Tribunal and the other parties, and that therefore an award of costs is appropriate because his clients have incurred legal costs in opposing a development so poorly conceived as to constitute a waste of the Tribunal's valuable time.

4. Ms Lane in her submission traversed the same grounds on which Mr Wren and Mr Connor based their submissions. However, she also submitted that in relation to

s 109(3)(d) the Application for Review proceedings may have taken a different direction and have been more meaningful if Kubis Constructions had heeded the advice of Council as set out in its letter of 30 August 2000 and had sought to substitute amended plans based on that advice at the Review hearing, rather than seeking to substitute amended plans which paid only very scant and superficial regard to that advice. Ms Lane sought costs to be taxed in default of agreement pursuant to County Court Scale D.

5. It is unclear whether Mr Wilson in making his submission was acting as a Director or Proprietor of Kubis Constructions, the owner of the land which was the subject of the permit application, or as an agent for Kubis Constructions. His submission was on the letterhead of the Domaine Ramsey Group Pty Ltd. He admitted in para 4 of his submission that he was a Director of the company which owns the subject land, but stated that had he been asked he would have replied that he was. But, as I have set out in my decision on the matter, during the hearing Mr Wilson was vague and evasive in response to my questions and in response to Mr Wren's questions as to his role in preparing the plans. He purported to be acting as the architect or the architectural consultant for the proposal and stated that his client was Debbis Kubis of Kubis Constructions. Despite my questioning of him on his role he evaded any direct answer as to whether he was the architect or the architectural consultant. In fact, as demonstrated by the documentation attached to Mr Connor's submission for costs, Domaine Ramsay Estates Pty Ltd is the registered proprietor of the subject land and Mr Wilson and Ms Debbie Kubis are co-directors of that company. Mr Wren stated in his submission that "it has come to the attention of the Respondent Objectors that Mr Wilson and Ms Kubis are in fact married".

6. Mr Wilson submitted that Mr Hooper, a Consultant Town Planner who appeared for Kubis Constructions at the Application for Review hearing, had been "commissioned to review the application with the view of amending the application if necessary in order to successfully obtain a planning permit. Mr Hooper reviewed the application, provided instructions in that regard to overlooking which were adopted and specifically provided instructions to increase the south setback to reduce overshadowing and bulk. This was also done to the extent that it was determined that it met the planning technique requirements and should be a reasonable resolution. It was also expected that if this setback was not deemed acceptable a condition may attach to any permit that may be issued. This is a common occurrence in tribunal determinations."

7. I have some difficulties with this part of Mr Wilson's submission. Firstly, it is at odds with the evidence he gave at the Review hearing, which I summarised in para 6 of my reasons in the Review decision as follows:

"The amended plans (but not the written statement describing the amendments) were served on the other parties by mail on the 24th of November 2001. The amended plans and the written statement were received by the Tribunal on the 26th of November 2001. The amended plans were prepared in a hurry and at the last moment to meet the requirements of the Practice Note in relation to the circulation of amended plans prior to a hearing. In Mr Wilson's words "They were done in my office late at night to get them out". In other words, despite having been advised as early as the 30th of August 2000 of what the Council saw as the limitations and deficiencies of the plans accompanying the permit application, the applicant did nothing about amending the plans until the 23rd of November 2001. The haste in which the amended plans were prepared shows. Mr Wren described them as labelling the very extensive glazed areas as "etched glass" and then "using the rubber" to show a 1.8 metre setback at first floor on the southern elevation, with a curved roof above that to a setback of 4 metres. The curved roof sits very oddly on the southern façade. The consequential changes of the amendments to the southern elevation have not been carried through on the floor plans so that windows shown on the floor plans do not line up on the elevations and in some instances the walls between rooms have not been shifted so that windows which are supposed to be wholly in rooms are bisected by dividing walls."

Secondly, I have difficulty accepting the implication of Mr Wilson's submission that engaging Mr Hooper somehow made the proposed development more acceptable. I don't know what Mr Hooper's instructions were. It may well be that he viewed the proposed development as shown on the amended plans as unacceptable or even outrageous, but nevertheless also took the view that he would represent his client to his best ability. But in any event it does not matter what Mr Hooper's view was. What matters is my view.

8. Mr Wilson submitted that the Review hearing was unusual "in that an extra party was added to the appearance list despite an objection (Clements submission), the submission of Mr Hooper who was the applicant's only expert was suppressed and the submission of myself was by way of cross examination and questions from the chair. Mr Hooper only got to ask the council and the expert witness some questions." Yes - an extra party was added in that I joined Dr Daly and Ms Superina as parties at the request of Mr Connor for reasons set out under the heading of Preliminary Matters in my decision. Mr Hooper was not appearing as an expert witness, but as an advocate with expertise in town planning. Mr Hooper's submission was not suppressed - as set out in para 1 of my reasons I departed from the normal order of hearing with the consent of all the parties, including the consent of Mr Hooper for Kubis Constructions. Having heard Ms Lane's submission for the responsible authority, Mr Wren's submission and the evidence of his expert witness Ms Nicholson, who was cross examined by the other parties, including by Mr Hooper, I heard, with the consent of all the parties, the opening part of Mr Hooper's submission. As previously agreed by all the parties, Mr Hooper then called Mr Wilson to give evidence. Mr Wilson was questioned by me and by Mr Wren on a number of matters related the original and amended plans for the proposal, including who drew them and the characteristics of the subject land and site and surrounding land taken into account when the plans were prepared. Mr Wilson claimed in his submission that he was not requested, nor did he register as an expert witness. But the appearance sheet for the Review hearing has in Mr Hooper's handwriting: "N Hooper of Taylors Surveyors & Planners for Kubis Constructions" beside "Permit Applicant", and on the same line and under the heading of "Witnesses": "R Wilson Architect of Domaine Ramsay Group". Mr Wilson clearly was intended to be called by Mr Hooper as an expert in relation to the plans and Mr Wilson was "registered" on the appearance sheet as a witness.

9. The submission of Mr Hooper at the Review hearing was not suppressed. As I have set out in my reasons, having heard the submissions of Ms Lane, Mr Wren, the evidence of Ms Nicholson, the opening part of Mr Hooper's submission and the evidence of Mr Wilson, I decided that the proposed development was a gross overdevelopment of the site and would very seriously and unreasonably impact on the property of Mr Wren's clients. I therefore dismissed the Application for Review and affirmed the decision of the responsible authority to refuse a permit and set out my specific reasons for doing so in paras 6 to 8 of my decision. .

10. As those reasons make clear, it was my opinion that the proposal was so flawed and the unreasonable impacts on the property of Mr Wren's clients so obvious from even a cursory perusal of the plans that I had difficulty understanding why the applicant persisted with it. I agree with the submissions of Mr Wren, Mr Connor and Ms Lane that, having regard to s 109(3)(c), the proposal has no tenable basis in fact. In other words, the proposal was so lacking in merit that the Application for Review had no chance of success and was hopeless. I am satisfied that it would be fair to award costs having regard to s 109(3)(c) and have so ordered.

11. While the behavior of Mr Wilson in concealing information from the Tribunal and the other parties may well have had the effect either intentionally or unintentionally deceiving the Tribunal and the other parties as to who was the applicant, who drew the plans for the original and amended proposals, and the role of Mr Wilson in this matter, I do not consider that Mr Wilson's behaviour was such as to deceive the Tribunal or the other parties about the merits of the proposal. Therefore, having considered Mr Wilson's behaviour in the context of s 109(3)(a)(v) and (vi), I am of the view that it has not been such as to reinforce or add to my decision to award costs. It may well be, as Ms Lane submitted, that in relation to s 109(3)(d), the Review proceedings may have taken a different direction and have been more meaningful if Kubis Constructions had heeded the advice of Council as set out in its letter of 30 August 2000 and had sought to substitute amended plans based on that advice at the Review hearing, rather than seeking to substitute amended plans which paid only very scant and superficial regard to that advice. However, I do not consider that this failure to heed advice in any meaningful way added to the complexity or length of the Review hearing process.

12. In the absence of compelling arguments by Mr Wren and Mr Connor to justify awarding costs on a Solicitor/Client basis pursuant to the Supreme Court Scale of Costs, I have awarded costs on a party/party basis to be assessed on Country Court Scale D and to be taxed by the Registrar in default of mutual agreement.

13. As Mr Beale was not legally represented, he cannot be awarded costs. However, it is fair that he be compensated by the applicant for the expenses incurred in defending himself against the proposed development. Mr Beale submitted a claim for expenses with 6 items totalling $1,156:70. Item 1 was a claim for $700 comprising the cost of taking a day's annual leave from his place of employment and the time taken up by writing submissions for the Review hearing and for the Costs application, discussions and correspondence with the Architect he engaged to prepare shadow diagrams, and discussions and correspondence with the City of Yarra and other parties. I have disallowed in Item 1 all but the cost of taking a day's annual leave (at $50 per hour, which he submitted was the hourly equivalent of his annual salary). My reason for doing this is that the parts of the claim I have disallowed are not out of pocket expenses actually incurred.