1. Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 this proceeding is summarily dismissed as lacking in substance.

Mr Jason Sumner, town planner, of Apex Town Planning

1. This is an application by an objector under section 82 of the Planning and Environment Act 1987 against the council's decision to grant a permit to use the subject land for an indoor recreation facility (fitness centre) and variation to the car parking requirement for the use. The subject land is an existing, vacant shop in the Bayswater major activity centre. There is a large council owned car park at the rear of the premises of approximately 74 car parking spaces. No car parking is provided on the site. The land is proposed to be used for a ladies only fitness studio under the Contours franchise.
2. The purpose of the directions hearing was to consider an application by the permit applicant to have the application for review struck out because it is based on commercial competition grounds.
3. Mr Lindsay, the applicant for review/objector, operates another fitness centre three doors to the west of the subject land. Mr Lindsay's objection to the permit, which he lodged with the council, was based on grounds relating to the competition which the proposed fitness centre would present to his own business and other fitness centres located within the Bayswater activity centre. For example, the objection stated in part:

I am sure Council continually hear that small business is hard and getting harder. I am not sure that the proposed business is good for my small business and potentially question my time in Bayswater if it were to go ahead, as it is we are only getting by, we are not flat out busy, therefore, the need for another facility of the same would be deemed unnecessary and saturation for the area. I am aware that they offer female only training, yet we do offer female only times if requested.

1. Further issues raised in Mr Lindsay's objection to the council concerned the provision of toilets, a query about car parking, and council processes regarding the permit application.
2. In his application for review, Mr Lindsay has not referred to commercial competition. His grounds relate to the provision of toilets and disabled amenities, a question about why there is no parking onsite in this case, and traffic management in the rear car park. At the hearing, Mr Lindsay stated he was not opposed to this business opening, rather he wanted to raise questions with the council. He agreed that there was plenty of car parking available in the council car park but he wanted to know why everyone else had to provide car parking and not this particular proposal. He was also most concerned about traffic management in the council car park and along the right-of-way at the rear of premises used to access the car park. He wanted council to install speed humps or the like to control the traffic and was concerned about the additional traffic the proposed use would generate.
3. The Planning and Environment Act 1987 and the Victorian Civil and Administrative Tribunal Act 1998 both contain provisions to ensure that the processes under each Act are not used for commercial advantage. For example, section 57(2A) of the Planning and Environment Act 1987 provides that a responsible authority may reject an objection to a permit application which it considers has been made primarily to secure and maintain a direct or indirect commercial advantage for the objector. Section 150(4) of the Act provides that if any proceedings are brought before the tribunal under this Act and the tribunal is satisfied that the proceedings have been brought vexatiously or frivolously or primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings, and any other person suffered loss or damage as a result of the proceedings, the tribunal may order the person who brought the proceedings to pay to that other person compensation for loss or damage and an amount for costs. Under the Victorian Civil and Administrative Tribunal Act 1998, section 78 enables the tribunal, if the tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party by vexatiously conducting the proceeding, to order that the proceeding be dismissed or struck out and to make an order for costs. Section 109(3) also enables the tribunal to make an order for costs against a party vexatiously conducting the proceeding. Finally, clause 63 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides:
   1. Costs

(1) In determining whether or not to make an order for costs in a proceeding under the Planning and Environment Act 1987, the Tribunal may have regard to whether the proceeding was brought primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceeding.

(2) Sub-clause (1) is in addition to the matters that the Tribunal may have regard to under section 109(3).

1. In Oglesby v East Gippsland SC[1] Justice Morris considered the various provisions relating to a proceeding that has been brought to primarily secure and maintain a commercial advantage. He expressed the view that provisions such as clause 63 of Schedule 1 of the VCAT Act 1998 and section 150 of the Planning and Environment Act 1987 ought to be interpreted to give effect to the intent of the parliament, which is to prevent an abuse of process in circumstances "where the objector is not primarily seeking to advance an interest as a neighbour, but is mainly concerned as a commercial competitor".[2] In deciding how an abuse of process in such circumstances may be evidenced, Justice Morris said:

[13] In his decision in Collins v Shire of Nillumbik[3], Deputy President Byard observed that in determining whether an application was primarily brought to secure a commercial advantage, the tribunal should not resort to guesswork. This is undoubtedly true, but it does not prevent the tribunal from making inferences from the evidence. Relevant evidence will include, but not be confined to, the grounds relied upon and the manner in which the application for review is prosecuted. Even if the grounds are undoubtedly "town planning" grounds and the proceeding is prosecuted responsibly, it would still be possible to make an inference that the primary motivation for the bringing of a proceeding was to secure or maintain a commercial advantage. If the tribunal was not prepared to make such an inference in an appropriate case, it would be too easy for the intention of parliament to be defeated.

1. I have no doubt that Mr Lindsay's original objection to the council was made primarily to secure and maintain a direct or indirect commercial advantage for the objector, namely to frustrate a competing business from establishing in close proximity to his own identical business. The objections originally made about the competition and effect that the proposed use would have on his and other similar businesses in Bayswater have not been repeated in the grounds set out in his application for review. However, I consider that the grounds relied upon are so lacking in substance that it is still possible to draw an inference that the primary motivation for bringing this proceeding is to secure or maintain commercial advantage. I consider the grounds are lacking in substance for the following reasons.
2. The subject land is in a Business 1 Zone. There are no third party rights of review in respect of an application to construct a building or construct or carry out works.[4] Thus, to the extent that the grounds of review relate to buildings and works, Mr Lindsay has no rights of review.
3. In terms of ensuring that adequate toilet and disabled facilities are provided, these are matters dealt with by the buildings regulations. They will be addressed at the time building permit is issued. They are not matters relevant to the planning permit.
4. A permit is required for a reduction or waiver of car parking pursuant to clause 52.06 of the planning scheme and there are no exemptions from third party review rights in respect of this. However, Mr Lindsay's main concern is to be that this use should be required to provide car parking on site because other uses have been so required. Whilst he says that "the added load would certainly place an overload on this car park", at the hearing Mr Lindsay acknowledged that there was no shortage of car parking spaces in the council car park. The planning officer's report considered that the provision of car parking was sufficient given the amount of car parking in the immediate vicinity. There is nothing in the matters raised about car parking by Mr Lindsay to suggest that there is any substance to his concerns or that he will be affected by waiving the number of car spaces required. Whether or not other uses have been required to provide on-site car parking is not relevant to this application.
5. Finally, whilst Mr Lindsay has concerns about traffic management, it is the council's responsibility to manage traffic within the rear car park and in the right-of-way accessing it, not the permit applicants. His concerns abut the speed of vehicles concern the existing situation and are in no way related to the permit application. Again, I find there is no substance in this ground of review.
6. In my view, it is not sufficient simply to raise issues of car parking and traffic management, which are often legitimate town planning grounds, when there is no substance to them. In the circumstances of this case, given the original objection to the council and the fact that Mr Lindsay operates an identical business to the proposed new use three doors away from the subject land, I consider it is reasonable to infer that this application for review has been made to either stop the use and gain a direct commercial advantage, or to frustrate, delay and cause added expense to the permit applicant, which in its own way is an indirect commercial advantage to the applicant.
7. For these reasons, I consider that the application should be summarily dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 because in my opinion it is lacking in substance.
8. The permit applicant advised at the hearing that it had lodged its own application for review under section 80 of the Planning and Environment Act 1987 against conditions (P1609/2007). Mr Lindsay is entitled to notice of this application and there is nothing to prevent him from participating in this proceeding notwithstanding my decision concerning his own application for review.

[1] [2006] VCAT 2475

[2] [2006] VCAT 2475 at [12]

[3] Unreported, 1995/23263, per Deputy President Byard, quoted at length in Ram v Whitehorse City Council (1997) 19 AATR 281

[4] See clause 34.01-4 of the Knox Planning Scheme