Lord Haven PL v Greater Dandenong CC [1999] VCAT 177

Permit no.98/104 relates to139-155 Thomas Street, Dandenong. The application described the proposal as follows:

"To extend the Bistro area for the entertainment complex approved under permit 94/251 and provide a computer games area plus associated supervised children's play area."

The present use of the subject land was described as "Nightclub (L.C. Bar) & offices".

The statement of what the permit allows is as follows:

"To extend the existing Place of Assembly (Entertainment Centre), including bar, restaurant, entertainment and gaming facilities at Nos. 139-145 Thomas Street, Dandenong under Planning Permit no. 94/251 (as amended) into the adjoining premises known as Nos.147-155 Thomas Stet [sic], Dandenong, and to carry out associated buildings and works, all in accordance with the endorsed plan."

The solicitors for the Applicants sought leave to amend the application by deleting Dandenong Returned Services League from the list of Applicants by letter dated 17 July 1998. Subsequently, Trelille No. 28 Pty Ltd also decided not to proceed. Leave to amend by withdrawing these Applicants was refused at a directions hearing on 2 September 1998, on the ground that it was premature to give any party leave after the commencement of the Section 150 application, unless provision was made for the threat to which each Applicant was exposed by that cross-application. This issue remains unreolved.

R.Moretti is the applicant for permit no.98/104. He is employed by Villacam Pty Ltd ("Villacam"). For all practical purposes, Villacam is the relevant party to these proceedings. Evidence was given, and was not disputed, that Mr Moretti acted on behalf of Santino Belmuda, whose name appears on the application form as owner of the subject land. In fact, Mr Belmuda is a director of Villacam, which owns the freehold of 139-159 Thomas Street, Dandenong, being land which includes the subject land.

Ms Warren QC, who appeared with Ms Brennan on behalf of the Respondent, tendered a table setting out the names of the Applicants, the addresses of their hotels or licensed club premises, and other details of their premises.

Ms Warren admitted that her clients, including the ones who are not proceeding in this Application, were Villacam's commercial competitors, asserting that each stands to be substantially disadvantaged if Villacam's proposed venture proceeds. Their premises are scattered, some being closer to, and some more distant from, the subject land.

The subject land is proposed to become the Club premises of the Dandenong Basketball Association Inc.

The Applicants claimed to be persons to whom Section 89(1) of the Act applied, as persons who should have been given notice of the application prior to determination by the Responsible Authority. The Application was lodged 8 May 1998.

By letter dated 27 August 1998, Mahonys, solicitors for the Applicants (Requestors) gave notice of their clients' wish to amend the Application by adding the following grounds pursuant to Section 87(1)(c) of the Act:

1. The Responsible Authority and/or its officers have made a material mistake in relation to the grant of Permit 98/104 as this permit purported to amend an existing permit issued by the Responsible Authority being Permit 94/251.

2. Permit 98/104 purported to amend an existing Permit 94/251 however Permit 94/251 had expired and was invalid.

There were two sets of grounds filed by or on behalf of Villacam.

The first was by notice faxed to the Tribunal by Holding Redlich on 30 June 1998. This states:

1. Permit no. 98/104 was validly issued and sound in planning terms.

2. The Responsible Authority properly considered the application.

3. The objections that would have been raised by the objectors are not sound and based solely on economic grounds affecting the objectors.

The second notice was given by Williams, Winter & Higgs and was given on 30 July 1998. It stated:

1. The Responsible Authority and/or its Officers were correct in determining that the proposed use and development would not cause any material detriment and the matters taken into account by the Responsible Authority and/or its officers were sufficient to satisfy the criteria of Section 52 of the Planning and Environment Act.

2. The Responsible Authority has considered all matters concerning the proposed use and has acted properly in issuing Permit no. 98/104.

3. The Requestors are commercial interests who operate Licensed venues in the area. None of the Requestors own or occupy land nearby the subject premises and their request has been made primarily to secure or maintain a direct or indirect commercial advantage.

No grounds were given on behalf of Mr Moretti. Villacam has been treated as the substantive Respondent. We will refer to both as "the Respondent."

APPLICATION UNDER s.150

By letter dated 20 August 1998, the solicitors for the Respondent gave notice to the Applicants that they intended to apply under Section 150(4) of the Act for compensation and costs, alleging that these proceedings had been instituted primarily to secure or maintain a commercial advantage for themselves, and not for bona fide planning reasons.

SECTION 87 APPLICATION

Messrs Southall QC and Montebello disputed the application for amendment of the Application to include the two grounds pursuant to Section 87(1)(c) of the Act.

Technically it is correct that the Tribunal's jurisdiction comes from Section 87, which sets out the grounds on which the Tribunal may make an order under this Section, and also (in sub-section (3)), the persons entitled to make a request under Section 87. These include "a person under Section 89". Section 89 contains an additional list of persons who may apply if they can meet certain criteria. The grounds on which "a person under Section 89" may make an application do not extend to all the grounds available under Section 87. In particular, they do not include a ground related to a change of circumstances after the permit has been issued (compare Section 87(1)(d)). But a person who qualifies under Section 89 to bring an Application has available the ground "any failure to give notice in accordance with Section 52" under Section 87(1)(e), and "any material mistake in relation to the grant of the permit", under Section 87(1)(c).

The application as originally lodged identified the basis on which the Applicants sought to establish a right to apply under Section 89, as a mistake about whether notice of the application should have been given; but did not relate this directly to a ground on which the Application was brought. The only explicit ground directly stated to justify an order under Section 87 was that there has been a "material mistake in considering the application in that no provision or requirement has been specified in the Permit for the provision of on-site carparking as required pursuant to Clause 19 of the Regional Section of the Greater Dandenong Planning Scheme." A further particular given was that no request for a waiver of the standard car parking requirement had been included in the application.

However, although the Application does not explicitly state as a ground of the application that there has been "any failure to give notice in accordance with Section 52", both the Respondent and the Council proceeded on the basis that it did. We take it that the information contained in the Application was adequate for them to recognise and deal with this alternative, which was indeed treated as the primary ground, rather than the more clearly expressed ground of "material mistake" which was supplemented by the two new grounds set out in the amendment.

The confusion caused by the Application does not stop there. It underlines the importance of identification of the heads of power on which an applicant relies, and completion of proper particulars. Both the Council and the Respondent argued that strict compliance with the Act on the part of the Applicants should be required. However, as the parties themselves did not take action to seek clarification of the nature of the application, and they are all well represented, we do not intend to go any further into alleged defects in the application documents.

We considered that it was appropriate to amend the Application as sought by the Applicants, for the reasons that -

* the amendment was clearly expressed (which was an improvement on the original application);

* even if there had been some confusion about whether the Applicants intended to pursue the application to amend, the parties had had ample time to clarify all such questions; and

* no-one claimed to have been taken by surprise by the amendment.

The hearing proceeded on the basis that the Applicants claimed to be entitled to bring the application under Section 89, on the grounds of -

* the Responsible Authority having made a material mistake in the grant of the permit, the particulars being:

- its decision under Section 52(1)(d) as to whether the grant of the permit may cause material detriment to any person was wrong;

- mistake in relation to the amendment of the existing permit; and

- mistake in that the new permit was intended to amend a permit that had already expired.

A history of the various permits affecting the subject land and a description of the areas making up the premises at the subject land is set out in the decision in Application 1998/68296 (the application for a declaration). It is not repeated here.

The requirements of Sections 89 and 87 were summarised by Mr Montebello as follows. The Applicants have to show:

* that there has been a material mistake in relation to the grant of the permit (Section 87 (1)(c) of the Act);

* that there has been a failure to give notice which was required by section 52 (1)(d) of the Act (Section 87 (1)(e) of the Act);

* the request has been made as soon as practicable, under Section 89(3) of the Act;

* that the Applicants have been substantially disadvantaged by the issue of the permit or any material mistake in relation to the grant of the permit (Section 91(3)(a) and (b) of the Act);

* that it would be just and fair in the circumstances to cancel the permit (Section 91(3)(c) of the Act).

We accept this as a correct statement, subject to two matters. The first two points are alternatives; and the allegation as to Section 89(3) is not a matter of something the Applicants "have to show", because it relates to a matter of discretion rather than a strict mandatory requirement.

The "interest of the requestors" (Applicants) is stated to be:

"persons pursuant to Section 89 of the Act, namely persons that should have been given notice of the application prior to determination by the responsible authority."

The matters set out in Grounds 1 to 4 of the "grounds for request" in the original application particularise aspects of "material detriment", without claiming that this detriment would be caused to the Applicants; only in a general way.

For the purpose of establishing standing to bring the Application under Section 89 on the ground of a failure to give them notice, the Applicants have to show two things:

1. that they would have been entitled to object. This requires an applicant to show on an objective basis that it would have been entitled to object.

2. a belief that they should have been given notice and were not given it. This implies a question of whether the applicants were persons to whom the Council should have considered that "material detriment" may have been caused, under Section 52(1)(d).

When the Tribunal comes to consider whether to make an order, it is barred from making the order unless it is satisfied that the applicant was substantially disadvantaged by the issue of the permit: Section 91(3)(a)(ii) of the Act. It is alleged that there was substantial disadvantage. This is referred to below.

In relation to notice, Ms Warren took advantage of the vagueness of the grounds set out in the Application also to argue that there had been "material mistake as to the necessity for notice", and "mistake as to the impact of the proposal on the Applicants' premises", as well as "failure to give notice". Under the "material mistake" ground, the Applicants have to show both that they would have been entitled to object to the grant of a permit (Section 89), and that they believe that they have been adversely affected by the mistake: Section 89(1)(b)(iii). The substantial disadvantage test also applies under Section 91(3)(b).

We consider this to be a confusion of the issue related to lack of notice under Section 89. Where the Act provides for a specific ground related to failure of the Responsible Authority to give notice, it is unnecessary to try to prove that the Council made a material mistake under Section 89(1)(b)(iii) in its decision to issue the permit without notice as well. But if the Applicants were trying to show that the Council made a mistake in not making a decision that someone (not being the Applicants) should have been given notice, then this form of "mistake" is not available to them. The requirement in Section 89(1)(a) for the ground of failure to give notice is that the notice should have been given to the applicant himself or herself. We do not consider that this limitation can be avoided by use of the "material mistake" ground as an alternative.

The basis on which the Applicants sought to justify an order being made on the "notice" ground was that the Applicants would have objected to the grant of Permit 98/104 if they had received notice of the application. The basis of their objection would have been "inadequate carparking provision", various aspects of which were referred to in Ground 4 of the application.

Ms Warren withdrew the first two of these grounds, which related to social and economic impacts and sufficiency of information to establish whether the proposed new facilities were ancillary to the approved use of the existing Place of Assembly.

In order to make out their case of failure to give notice, the Applicants must first show that they are persons who would have been entitled to object to the issue of a permit.

Section 57(1) states:

"Any person who may be affected by the grant of the permit may object to the grant of a permit."

The Applicants therefore have to show that they themselves may be affected by the grant of the permit.

The next step requires belief as to entitlement to notice of the application. It is common ground that the Applicants were not given notice; they have to show an objective basis for their belief that they should have been given notice of the permit application, but were not.

It is not alleged that any of the Applicants would have been entitled to notice under Section 52(1)(a) of the Act. However, they allege that they should have been given notice under Section 52(1)(d), in the belief that they were entitled to notice as "other persons" -

"... if the Responsible Authority considers that the grant of the permit may cause material detriment to them."

They state that if the Council had considered the relevant issues correctly, it would have recognised the potential material detriment.

The only form of effect or material detriment on which the Applicants rely relates to the issue of parking associated with the permit application. A further matter is raised in relation to "substantial disadvantage", but that is relevant to Section 89(3) and will be considered separately below. In any event, it still comes back to parking as the subject matter of the objection which the Applicants were unable to make prior to issue of the permit.

The test for an Applicant to satisfy in order to make out this ground of lack of notice is a stringent one. In order to show that the Responsible Authority is in breach of its obligations under Section 52, the Applicant has to satisfy the Tribunal that the conclusion reached by the Responsible Authority that the grant of a permit would not cause material detriment to any person is one which no reasonable Responsible Authority could have reached in the circumstances: Corry v Shire of Nathalia (1990) 4 AATR 232 at 243.

It is not denied that the Applicants are commercial competitors of the Respondent. This does not mean that the application was incapable of causing them "material detriment". On the contrary, commercial detriment may have been a direct result. Section 150 exists to discourage people from bringing proceedings to secure or maintain a direct or indirect commercial advantage. Further, if the Responsible Authority considers that an objection is made for that purpose, it may reject the objection under Section 57(2A), after which the Act applies as if the objection had not been made: Section 57(2B). But neither of there provisions states that the objection itself is necessarily invalid if it is touched by an element of commercial advantage . This is simply a ground on which the Responsible Authority may reject an objection as a matter of discretion, or for an order for compensation to be paid.

The Council's delegate considered the question of whether anyone would suffer material detriment as a result of the issue of a permit. The report of the delegate, Mr Kean, in permit application no.TP 98/104, dated 1/4/98, states:

"The application has not been advertised, as it is considered that the alteration from the existing restaurant use to the Place of Assembly use is essentially the same type of use and the proposed buildings and works would not adversely affect any party."

Also recited in the report were the following facts:

* The existing permit allows for 350 persons in the existing Place of Assembly and the existing Restaurant/Night Club permit contains a restriction on the numbers of persons to 80, totalling 430. A limitation of 400 was imposed by condition.

* The existing Place of Assembly has a time of operation condition, but the restaurant permit did not. (We understand this to be a reference to the originally permitted use at 147-149 Thomas Street, which is now LC's, and the nightclub use. The restaurant did not have a limit, but if LS'c is only operating as a bar, the limit in the later permit will apply. Copies of both the 1988 permit, no.2956, and Permit no.91/275 were tendered).

* The site is wholly surrounded by commercial premises, and wholly contained within the District Centre zone.

Approval for longer operating hours than applied in Permit 94/251 was given in this application. However, this site is in the District Centre zone, and the Applicants are commercial competitors, all of whose premises are situated at a considerable distance from the subject land. They are not residents complaining of amenity impacts. The matters mentioned in the report support the decision not to require that notice be given to the Applicants.

The Applicants also raise matters which they argue were mistakenly omitted from consideration.

Material mistake - Material detriment - parking

* the Council's delegate was wrong in deciding that no notice should be given to them, because he wrongly applied the test of whether the permit application might cause material detriment; and

* a material mistake was made by the failure to require car parking as a condition on permit (see Ground 5 of the original Application).

The nature of the only material detriment pursued by the Applicants was related to parking associated with the permitted use.

The issue of parking is a legitimate planning ground on which the Applicants would have been entitled to object they had been able to show a relevant material detriment for the purposes of Section 52(1)(d) to justify a finding that there has been a failure to give notice, and if they could have shown that they may be affected by the grant of the permit so as to justify a finding that they were persons who would have been entitled to lodge an objection, under Section 89(1).

The specific issue of car parking was not expressly considered by the delegate as an issue relevant to the question of whether notice should be given; but it was separately considered further on in the assessment part of the report. The delegate stated:

"These issues would have been dealt with under the previous permits, as car parking for the two types of uses which would have been permitted on the site is identical.

It is considered that additional car parking cannot be required for the change of circumstances under this application."

It is implicit in the limitation on patron numbers inserted by condition into the permit that although the Place of Assembly (defined in Permit no.94/251 as including bar, restaurant, entertainment and gaming facilities) was being extended into the areas previously used as an independent nightclub (latterly as a bar) and administrative offices, the numbers using the combined Place of Assembly, bar and office areas would not increase; rather, they would decrease.

Ms Warren acknowledged that having had limited access to Council records, she was unable to say that the subject land had never contributed to any parking requirement or scheme. No-one suggested that any permits issued for the use and development of the subject land for restaurant, bar, nightclub, entertainment and gaming facilities have required car parking to be provided. The evidence of Mr Peter Small included references to some of the assessments that had been made in relation to the previous permits, where the officers' reports recommended the appropriateness of reliance on available on-street parking. The issue of the absence or waiver of a parking requirement appears to have been considered in the case of each previous application.

Given that Permit no.94/251 was still current when the Council's delegate made his assessment, his opinion was reasonable.

The arguments in favour of the Applicants were that -

2. the Applicants have been subjected to parking requirements.

Therefore, it was submitted, in planning and in equity, the present permit applicant should also be subjected to parking requirements. To waive the standard requirement for parking both adds to the competition for the existing spaces and causes parking problems; while not to impose the requirement gives an improper advantage to the permit applicant, to the prejudice of the Applicants. They have to bear a cost that the business of the permit applicant would not have to bear in the provision of parking.

The parking evidence was based on the entire proposed entertainment centre including the area in Permit no.94/251 and Permit 98/104 having a capacity of 400 persons and comprising a bar/restaurant, TAB and gaming venue with 78 machines. Mr Symons of Ratio Consultants, who was called by Ms Warren, gave evidence that:

* there are 237 public on street and off street car spaces in the area, within approximately 200 metres walking distance;

* public transport access to the subject site is relatively limited, with the railway station located some 500 metres from the site;

* peak parking demand on a Friday evening was at 10pm and at 7pm on a Saturday, with a limited number of available spaces remaining (stated to be "as few as 69 spaces" that would serve only 173 patrons);

* the proposal represents an increase of 50 persons from the 350 person maximum on a previous permit;

* a parking requirement of 120 spaces should apply for the development.

Ms Warren put to the Tribunal that, on the basis of Mr Symons' evidence, the Council made a material mistake in not adequately considering the purposes of the zone or the guidelines set out in Clause 106-4 of the Planning Scheme for consideration of applications in the zone.

Contrary evidence was provided by Mr Stephen Hunt of Grogan Richards Pty Ltd who gave evidence for the Respondent. This paints a more optimistic picture of parking with the central area of Dandenong. It is summarised as:

* the site is well served by public transport (rail and bus), particularly during the day, which a component of clientele would use;

* there are some 927 car spaces within 300 metres walking distance of the site, although not all are available into the evenings;

* the peak period on a Friday was at 6pm when 179 spaces were occupied and 748 spaces were available. At 9.30pm, 139 spaces were occupied and 91 on street spaces were available. On Saturday evening, peak demands for 165 spaces occurred with some 64 on street and off street spaces available;

* There are two peak periods where the demand calculated for the proposed Place of Assembly use would exceed available spaces, one being after 9.30 pm of Friday (shortfall of 48 spaces) and the other on Saturday night after 6.00 pm (shortfall of 101 spaces).

* the parking requirement for the site would vary from 40 to 120 spaces between the standard and reduced requirement;

* based on experience, peak parking demands would generate between 140 and 160 spaces typically in the mid evening period on a Friday and Saturday

Both witnesses agreed that the number of patrons was the crucial determinant of the parking and traffic impact, rather than floor area. The condition requiring an overall decrease in patron numbers has been noted.

A draft agreement between the Dandenong Basketball Association and the City of Greater Dandenong providing for the use of the Council car park in Walker Street outside business hours was tendered. Mr Hunt described it as providing for access to 433 car spaces that are presently not available into late evenings. That car park is located approximately 160 metres from the site.

Mr Symons agreed that if the proposed licence agreement between the Basketball Association and the Council proceeded, under which the Association would have access to extended hours parking in the Council's Walker Street carpark, it would cover the peak demand period. Without it, Mr Symons' opinion was that there would not be enough parking available on Friday and Saturday nights until the early hours of the morning. The licence agreement had not been finalised.

The Tribunal does not intend to further examine the differences in the findings of Mr Hunt and Mr Symons in relation to the demand and available parking to service the use and development in planning permit 98/104. It is apparent to the Tribunal that there is a significant amount of parking available in the area, that is not fully utilised at this time.

The evidence of both these witnesses treated the assessment of parking demand for the proposal as if it were a new project. Nothing was said about the fact that it was a conversion of an area currently used as a bar and offices used in association with the existing reception rooms, in either of the statements tendered.

Mr Symons had been unaware that "LC's" was operating as a bar, and had not taken that area into account in his assessment. He had only looked at the area of Permit no.94/251. But as the balance of the site could well accommodate 400 persons, he felt no need to reassess his report once he learned of the inclusion of the LC's area. He had taken the numbers limit imposed by permit condition into account.

Mr Hunt sees the opening of the Council carpark on Friday and Saturday nights as a general benefit to traders. We see no reason to doubt that if the demand is there for it to be opened later at night, the Council will make sure it is opened, whether or not in association with the proposed use of the subject land. It is a public carpark to serve the heart of the Dandenong District Centre, and its management must have regard to the variations in demand for parking which occur in a busy commercial area over time.

The extension of operating hours at the subject land late at night would be unlikely to create unmet parking demand in the area. Nothing later than 10.00 pm was cited by Mr Symons in his assessment of the periods when there was a potential parking shortfall.

Ms Warren argued that the fact there was a difference of opinion between two such senior traffic engineers was itself an indication that there was a valid planning issue at stake. As both of them proceeded on the artificial assumptions that (1) Clause 19 applied, and (2) there were no adjustments to be made for existing uses, in this instance we do not consider that the difference of opinion proves that point.

The list of Applicants' premises, copies of some of the relevant permits, and the evidence of the traffic engineers was the only evidence forthcoming on which issue.

There is no evidence to quantify the extent of the extra cost placed on them by their own parking provisions, or otherwise how the alleged shortfall of parking associated with the subject land would disadvantage the various Applicants. The list of the parking requirements relevant to the Applicants' properties does not state when the parking requirements were imposed, whether they are continuing, or whether the businesses of the respective Applicants benefit financially from having parking on-site or conveniently close. Other relevant facts may be summarised as follows:

* Some of the Applicants' premises are outside the District Centre zone.

* The Albion Hotel, operated by one of the Applicants, has no parking on site, and no provision for parking required of it, and thus is in the same position as the subject land.

* Some requirements were imposed years ago, and whether or not they are a cost to the business now operating at the relevant property is a matter on which there was no evidence at all.

* The requirement relevant to the Players Hotel was contained in a permit, no.2476, issued in 1987 for a hotel, shops, offices and associated carpark, without a break-up of how many of the required 108 spaces to be provided off-site were attributable to the hotel, or how the development was to be shared by the various elements permitted.

* The Dandenong RSL is said to have an agreement with Lend Lease and Council to maintain a carpark, but without any specified number of car spaces being required.

Mr Symons stated in cross-examination that the Old Dandy Inn was about 200 metres away from the subject land, and might be affected by parking associated with it. This is the only evidence of effect upon the Applicants of the grant of the subject permit. We are not satisfied by this evidence that the Council came to an incorrect and invalid decision about whether this Applicant should have been given notice.

The premises of the other Applicants were further away, and Mr Symons did not claim any impact on them.

We are not satisfied that the Council's delegate was wrong in deciding that no-one (i.e. none of the Applicants) would suffer "material detriment" to their own properties or interests arising from the absence of a parking requirement in the permit, or otherwise from the issue of the permit. Even in the case of the sole business that Mr Symons considered may be affected, there was no attempt to show what the effect would be; or even if its hours of operation in peak parking demand periods would coincide with those at the subject land. The generous parking available in the area while the Council's Walker Street carpark was open would ensure that there would be no detriment suffered during those hours. No evidence of the effect on any other business, let alone the Applicants' businesses, was led to justify an allegation of detriment after the Council carpark's current operating hours, when the overall shortfall at the two peak times might occur.

We are unable to conclude from the evidence that no reasonable Responsible Authority could have reached the decision that the grant of a permit would not cause material detriment to any person in these circumstances. There has therefore been no failure to give notice under Section 87(1)(e).

Further, we do not consider that Mr Symons' evidence establishes that the Applicants are persons "who may be affected by the grant of a permit", for the purposes of Section 57(1). Because of the lack of evidence of an effect on the Applicants which would give them the right to lodge an objection under Section 57, they do not satisfy Section 89(1). They cannot show that they would have been entitled to object.

There is a further reason why we do not consider that notice should have been given for reasons relating to the possible detriment that might be caused through car parking if the permit was granted. This matter was broadly raised, but not spelled out, both in the delegate's report on the permit application and in the evidence of Mr Small. It concerns the power to require parking to be provided.

Clause 19 of the Planning Scheme, which contained the relevant parking requirement at the time Council made its decision on application 98/104, provided that a use must not commence until the required spaces have been provided; and that if an existing building is extended, the Responsible Authority may determine the parking requirement only for the additional space if the use remains the same: Clause 19-1 and 19-3.

The uses collectively described as Place of Assembly (entertainment, bar gaming and restaurant facilities) are essentially the same as under Permit no.94/251 plus the existing LC's bar. A reduced number of patrons is to apply under Permit no.98/104.

The only additional or new activities included under Permit no. 98/104 are a child minding area, with games and a play area directly associated with the facility and users of the entertainment complex. These are unlikely to give rise to any parking demand independently of the entertainment, gaming and restaurant facilities. The ancillary activities of children's entertainments take on the same character as the dominant use, and merely replace the previous ancillary use of offices related to the existing reception rooms upstairs. Neither "reception rooms" nor "bar" is treated separately from "Place of Assembly" in the Table to Clause 19. There is no increase in floor area of a Place of Assembly use by means of the conversion of the office space ancillary to the upstairs use into an ancillary children's entertainment area.

The Council's delegate was correct to characterise the application as one that did not change the nature of the existing permitted uses in any way that would attract a notice requirement; and the same reasoning applies to the parking requirement. Without a change in the use of the areas included in the application, as properly characterised, there is no room for Clause 19-1 to apply.

All the works proposed are internal to the existing building shell, so that Clause 19-3 did not apply.

Mr Montebello was prepared to concede that a waiver of the standard parking requirement could have been referred to in the permit and suggested that the Tribunal may wish to add a condition to the permit that shows that parking has been waived. The only basis on which this could be done, having regard to our finding that Clause 19 was not applicable to application no. 98/104, is to echo and bring forward into an "omnibus" permit, the waiver (whether expressly granted or implied, but anyway referred to in the officers' reports quoted by Mr Small) in one or more of the other permits operating with respect to the various areas within the premises, when a parking requirement could have been made but was not.

The second part of Ground 5 of the Application related to absence of request for a waiver of the parking requirement. It was not separately pursued. In view of our findings, it would not have succeeded in any event.

The Applicants have not established that notice should have been given to them under Section 89(1)(a) because Council should have decided that the grant of the permit may cause material detriment to them; nor have they shown that Council made a material mistake in the grant of the permit as to material detriment and the notice requirement, even if this ground was available to them, which we consider it is not.

The alternative grounds of material mistake must be considered.

Material Mistake - amendment of existing permit

This is one of the amended grounds of the Application. It is alleged that Council made a material mistake in the issue of a new permit in 1998 purporting to amend the existing permit no. 94/251 (if it did exist). This is an alternative to the other new ground. It was not particularised, nor did the Applicants seriously pursue it at the hearing. But Mr Montebello did address the issue, in order to defend the Council's action, and as the argument is about the status of the permit, we feel obliged to say something about it.

The application was not to amend, but to extend. The use of the area covered by previous permits was intended to be extended into an area that had not been actively used in relation to the Place of Assembly use at 139-145 Thomas Street.

Arguably, no permit was required for use under the Planning Scheme, because the area now occupied by LC's operates as a bar pursuant to Permit no.91/275 for a nightclub (Place of Assembly) and restaurant, and 153-155 Thomas Street was already used for purposes ancillary to the Place of Assembly (reception rooms) operating on the first floor, so that the dominant use of Place of Assembly did not change even if the particular business operating in the space did. But the layout would change, and Permit 94/251 required approval for a change of layout. The permit for LC's, also had a condition to this effect.

The Respondent appears to have been trying to ensure there was no doubt about the status of the areas included in application 98/104. The application explained what it wanted to do. The application site was stated to be 139-155 Thomas Street. The proposal was:

"To extend the Bistro area for the entertainment complex approved under permit 94/251 and provide a computer games area plus associated supervised children's play area."

The present use of the subject land was described as "Nightclub (L.C. Bar) & offices". It did not repeat that 139-145 Thomas Street was used for the purpose of a Place of Assembly; but as that was what Permit no.94/251 did, and the permit was referred to, there was no need for that.

The permit was issued for the whole site 139-155 Thomas Street, not just for the old the LC's and office areas. The extension of the area covered by Permit no.94/251 into the additional areas, necessitating removal of internal walls and the loss of definition between the various areas of the building, was appropriately dealt with by this application procedure rather than the Section 87 procedure. It was not inappropriate to have the Council act as Responsible Authority and assess the application, rather than have it brought straight to the Tribunal without a planning assessment having first been carried out by the Council, and where the various limiting factors which we have had to deal with in this case apply.

Although an application for a new permit may not always be an appropriate way to amend an existing permit, the use of this traditional method is not absolutely prohibited in all circumstances. In the present instance, an attempt to wrap up the planning approval for the entire ground floor of the subject premises in an "omnibus permit" seems to be a sensible way of proceeding. The procedure was supported in the evidence of Mr Peter Small of A T Cocks Consulting as being good planning practice, frequently adopted.

It can be suggested that it might have been better administratively to call up all the old permits and cancel them, leaving only the one single permit affecting the whole ground floor; but given the nature of the challenges that have been mounted to the new permit, it is probably just as well that this was not done.

Alterations in the conditions that had applied in Permit no.94/251 were included in Permit no. 98/104. If anyone was going to complain about that, it should have been the permit applicant. It is not unusual for an "omnibus permit" to take the opportunity to impose conditions as to amenity matters, for instance, that reflect current standards rather than simply repeating the old conditions. In this instance, adjustments had to be made to equalise the way the conditions apply to the whole of the premises, rather than having different conditions applying to different parts of overall area once the internal walls are removed. The adoption of the open plan means the whole of 139-155 Thomas Street becomes the planning unit. It is no longer appropriate to have a series of distinct planning units controlled under different conditions. The Council was not mistaken about this.

We consider that Permit no. 98/104 functions as an omnibus permit for the ground floor of the premises known as 139-155 Thomas Street, superseding previous permits, which now merely support it and explain its history.

Material Mistake - extension of use under an expired permit

The second alleged mistake was as to the status of Permit no. 94/251. The Applicants argue that this permit had expired (see the amendments to the Application).

The Respondent and the Council argue that work had commenced within the time limit, so that Permit no.98/104 had not expired; or that if it had, Permit no.98/104 was an "omnibus" permit which permitted everything referred to in its operative part, whether or not there was an underlying permit in operation for aspects of the uses included in the later permit.

The decision in Application no.1998/68296 establishes that Permit no. 94/251 did not expire as alleged by the Applicants. Development had commenced under the permit prior to its expiry date; so that it was available to form the basis for a later permit that expanded the use into additional areas of the subject premises.

In view of our findings in relation to the Grounds of the Application, it is not strictly necessary to go to this issue. However, we will do so not only to deal with the issues in case were are wrong about the previous issues, and to respond to issues to which substantial argument was directed, but also with a view to the unfinished business of the Section 150 applications.

The Tribunal must not make the order sought unless it is satisfied that the Applicants have been substantially disadvantaged, either by the issue of the permit in the case of the ground of lack of notice, or by the material mistake in relation to the grant of the permit in the case of that ground: Section 91(3).

The Applicants alleged that the loss of the right to lodge an objection was a "substantial disadvantage" which is relevant to the issue of the permit. They have to show that if they had had the opportunity, they could have utilised it to bring legitimate planning objections, and now cannot.

Mr Montebello submitted that this in itself is not a loss that can give rise to "substantial disadvantage", relying on Kantor v Murrindindi Shire Council (1997) 18 AATR 285 at 339. This part of the decision deals with the negligence action against the Council. The reference is to the error made by the Council in failing to consider "material detriment" under Section 52(1)(a), which invalidated the permit, although the consequences would not necessarily be that there would be a declaration of invalidity. This aspect of the argument was considered starting at p.294. The reasons have to do with the current legislative scheme, of which Section 87 is a prominent part. At p.295, the Kantors are found to have been people who would have been included in Section 89(1), as having the belief that they should have been given notice of the application. Their complaint is considered at pp 300-301. The items of material detriment identified by the Tribunal in the Jellinek appeal (which had been brought by a different neighbour with respect to the same property) were listed. They did not include the loss of the right to object. The Court found that similar items were relevant in the case of Kantor. Ashley J specifically did not go beyond that in determining the Council's decision was faulty; and he expressly stated he need say nothing about the other matters relied on by the Tribunal in the Jellinek decision.

It is something of an overstatement to say in those circumstances that the Kantor decision supports the line of Tribunal cases in which loss of the right to object has not been found to be a substantial disadvantage.

The Jellinek decision, although not reported, is referred to and quoted (under the name Jelinek v Shire of Alexandra Appeal 1989/25546) in P Carter & Twenty First Febtor Pty Ltd v Shire of Mitchell (1995) 14 AATR 177.

A right to object cannot be of substantial benefit to you unless you have some ground for objection that can be properly considered by the Council as an objection under Section 57. We do not regard statements such as Mrs Gibson's in Ellul v Shire of Melton (1989) 3 AATR 179 at 189 as supporting the view that loss of the "opportunity to participate in the planning process" by itself was sufficient to be a substantial disadvantage. This form of loss was coupled in the same sentence with the further words "...and to have the issue of security, which is a very real detriment which they may suffer, properly resolved".

The distinction made in Corry v Shire of Nathalia (1990) 4 AATR 232 at 243-4 between denial of an opportunity to participate in the planning process and what was described as a substantial disadvantage in "another way", being a significant detriment in the operation of the applicants' farm, does not justify adoption of "loss of opportunity to participate" as a separate ground of disadvantage. Loss of opportunity to participate in the planning process by way of commencing a frivolous or vexatious objection, for instance, could not be considered a "substantial disadvantage". Both loss of opportunity to participate and detriment to the applicant's property were in fact present in Corry's case.

The distinction was made in P Carter & Twenty First Febtor Pty Ltd v Shire of Mitchell, referring to the previous decisions including Jelinek, between a legitimate ground for planning objection, and a planning issue that affected the applicant who had not been given the opportunity to object. Jelinek's case required that there be a "real nexus between the grant of a permit and the Requester's use and enjoyment of his land" (quoted in Carter at 184). The issue was an objection based on the applicant's perception of diminution to the natural beauty of the area surrounding her property, in an area abutting a State park and State forest. This was found not to be a substantial disadvantage for the purpose of Section 91(3)(b).

The Tribunal in McCarthy v Shire of Cohuna (unreported, 1990/25726) disagreed. Carter's case agreed with McCarthy. We also agree that the Jelinek test is too restrictive. The obvious case of persons who have a statutory role in the planning process to protect certain values, but no relevant land of their own, was raised.

In Collins Street Properties Pty Ltd v City of Melbourne (1996) 16 AATR 127, a Tribunal comprised by Deputy President Macnamara and Mr Marsden considered that the likely detriment to an applicant who owned a historic building, and who had not been given notice of a permit application affecting the property next door, was neither trivial nor fanciful, continuing, at 141:

"What is erected next to [such a building as the applicant's] has direct consequences for the building's owners. Those consequences may be economic or aesthetic or indeed, a combination of both for this is a situation where the two are not easily separated."

The nature of the detriments referred to would not necessarily be considered relevant objections to an application for permit, especially in the case of the economic circumstances of the owner. That would depend on the nature of the control under which the application was made. As a matter of meeting a test of standing, economic consequences, for example, are relevant. The objection as to parking that the Applicants allege they would have made if the opportunity had been given to them would not necessarily have had to be the source of the detriment which they allege in order to justify making the Application. But they have not established any material detriment affecting them except possibly the loss of opportunity to object.

It seems possible that Jelinek's case confused the issues of standing and the grounds on which an objection could properly be brought. While no doubt the two will often be connected, Collins Street Properties Pty Ltd shows that this is not essential. The Tribunal referred to an argument that the application under Section 87 was dictated by reasons of a commercial nature. Its response, at p.135, was:

"That may or may not be so. However, it cannot be gainsaid that the grounds upon which the Requestor relied were legitimate planning matters, properly brought forward and supported by expert opinion evidence."

The only direct effect on the applicant's own building that the Tribunal referred to was a loss of direct sunlight that was considered minor, recorded, and then passed over. But the grounds of the objection, relating to height and streetscape, although it was not alleged that they had any other direct physical impact on the applicant's own property, were valid grounds of objection. The Tribunal quoted with approval the Heritage Guidelines of the United Kingdom Department of Environment:

"The appearance of a building may be spoilt, or even its whole future jeopardised, by what goes on around it. An old building can be destroyed as surely by changes in its surroundings as by direct assault, indeed, in the long term, the fate of historic buildings is determined largely by the quality of their environment."

The Tribunal in Collins Street Properties summed up the position (at 142) by in effect adopting the test in Ellul v Shire of Melton in slightly different words:

"The Tribunal is satisfied that the Requestor has been substantially disadvantaged by the issue of the permit. It was denied the opportunity to participate in the planning process and to have its legitimate concerns regarding the proposal, including the consequences for the streetscape, properly considered by the Responsible Authority and, if necessary, by this Tribunal on appeal."

We consider that this is the true test of the relevant form of disadvantage; but will add so that there is no misunderstanding that the "and" which we have underlined in the above passage is not cumulative, but indicates that participation for the purpose of having legitimate concerns properly considered.

It was also argued by Ms Warren that the Tribunal needs to be satisfied that the Council would not have issued the permit, or would have imposed further conditions in it, before we could find that the Applicants were substantially disadvantaged by the loss of the opportunity to object. The Tribunal in Corry v Shire of Nathalia (at 238) stated that it was inevitably necessary to consider the planning merits of the proposal that was the subject of the permit in issue, continuing:

"It is difficult to see how a person would be substantially disadvantaged by the issue of a permit that the Tribunal was satisfied should in any event on the merits have been issued."

The Respondent called Mr Peter Small to give evidence as to planning merits. The evidence of the two traffic engineers also dealt with merits issues. Ms Warren objected to parts of Mr Small's report on the basis that he was purporting to give expert evidence on the conclusions to be reached on very issues that the Tribunal has to determine. Mr Small's report contains some convenient summaries of relevant facts and the planning controls, and some useful background on Council's previous consideration of the application for the upstairs reception rooms. We have reached our own conclusions on the matters to which Ms Warren objected, based on the other evidence available to us.

The ground of objection on which the Applicants wished to rely in this case has proved to be untenable, so that in any event we do not consider that the Applicants have suffered substantial disadvantage from the loss of opportunity to put the objection to the Responsible Authority.

Before coming to the grounds on which the Application was brought, the Respondent sought to take as a preliminary point the argument that "the request had not been made as soon as practicable after the person making it had notice of the facts relied on", under Section 89(3).

Unlike Section 91(3), where if the Tribunal is not satisfied that the Applicant was substantially disadvantaged, it must not cancel the permit, Section 89(3) only creates a discretionary power to reject the Application. Mr Southall sought to persuade us that we should refuse to hear the Application on that ground. Because the issue is not one that must be decided as necessary to establish jurisdiction, and it is necessary to go into evidence about it, the request was denied.

The basis of the argument was that the Applicants knew about the permit application before the decision in Permit no.98/104 was made, but did not lodge an objection. The permit was issued on 2 April 1998, and the Application was lodged on 8 May 1998.

We decided that the application should be considered. We do not find it necessary to determine whether the application was made as soon as practicable after the Applicants had notice of the request. Our principal reason is the extraordinary behaviour of the Council officer whose notes were recorded on the permit application file. The notes were tendered. The solicitor for the Applicants, Ms Francine Sullivan, gave evidence regarding her dealings with the Council over the file and when she learnt of the issue of Permit no. 98/104. This evidence was uncontradicted.

The evidence showed that this officer spoke to Ms Sullivan, who disclosed that she was acting for objectors to a liquor licence application for the same property, and wanted access to Council's file in that context, on 1 April 1998, which was the day before the permit was issued. They actually discussed the lodging of an objection to planning permit application which was then current, Ms Sullivan being warned that it had been on foot for some time and she had better move quickly. Ms Sullivan arranged to come back the next day (2 April 1998) to go over the file, which she did. Nothing was said on either occasion about the intention of the officer to issue the permit under delegation the next day, or on the second occasion, on that same day. Given the time of day when they spoke, the permit may already have been issued. Ms Sullivan was only given access to the file in the presence of the officer, who argued about access to certain documents. He did not show her any delegate's report in application no.98/104, although the report was dated 1 April 1998 and should have been on the file. The officer demanded a $50 fee for copying the relevant documents for the purpose of considering the lodging of an objection.

Although Ms Sullivan did not ask directly when the application was likely to be determined, she assumed that if the officer knew as a fact that it would be very soon, he would have told her. This is a reasonable assumption. However, when at the end of the hearing, Mr Southall applied to amend the Application to include a further ground related to concealment of the fact that the permit was about to be issued, the application was rejected for grounds given orally by Mrs Bruce at the time.

Ms Sullivan further stated that once they were made aware of the application, the Applicants themselves retained a planning consultant, instead of instructing her to brief one. He seemed to take a fairly leisurely approach. It was not until 27 April 1998 that he reported to Ms Sullivan that a permit had been issued.

We do not agree with Mr Southall's submission that the Applicants showed a lack of candour in alleging that they first became aware of the permit on 28 April 1998. We see no reason to conclude that Ms Sullivan purposely failed to ask the right question in order to avoid being given notice of the issue of a permit. Her evidence supports the date on which actual knowledge was received by her clients.

The delay between 27 April 1998 and the lodging of the Application was not such as to justify rejecting the Application. It is not inconsistent with the Applicants taking proper advice on whether such a serious application should be commenced, and the preparation of documents for it.

If the gap between 2 and 27 April could have been closed by a greater sense of urgency on the part of the Applicants' planning consultant, it may be said that there was no indication given to Ms Sullivan that the permit application was going to be dealt with under delegation instead of at a Council meeting.

We do not think that the rights of an Applicant should be jeopardised by conduct such as this Council's in this instance. Ultimately we have found against the Applicants, but we did not consider it appropriate they should be deprived of their opportunity to undo the effect of the permit issued by the Council in such circumstances as these.

In view of our findings, it is not necessary to consider whether it would be fair and just to cancel the permit.

2. The further consideration of the application by Villacam Pty Ltd and Santino Belmuda under Section 150 is adjourned to a date to be fixed.

Mrs M Warren QC appeared with Ms S Brennan of Counsel, for the Applicants, instructed by Mahonys, solicitors.

Mr A Southall QC, instructed by Williams, Winter & Higgs, solicitors, appeared for Villacam Pty Ltd and Mr Moretti.

Mr T Montebello, assisted by Mr S Stewart, both of Maddock Lonie & Chisholm, solicitors, appeared for the Responsible Authority.