1. In Proceeding P51074/2001 applications for declaration dismissed.

2. Leave is granted to the Responsible Authority in Proceeding P51104/2001 to withdraw the application which is now withdrawn.

3. In Proceeding No. P51159/2001 direct that a permit must not be granted on the ground that no permit is required.

4. The Responsible Authority must pay Mr Mark Meaden's costs of these proceedings to be taxed in default of agreement in accordance with County Court Scale "D". I certify that this was a matter proper for the retention of Senior Counsel by Mr Meaden and fix his fee in the sum of $3,850.

For the Responsible Authority: Mr John Rantino of Maddocks Solicitors

For the Applicant: Mr I. McP. Pitt SC of Best Hooper

1. According to its solicitor Mr Rantino, the City of Yarra, as Responsible Authority under the Yarra Planning Scheme, finds itself in "a predicament". The predicament is that one of the Council's special committees issued a Notice of Decision to Grant a Planning Permit to Mr Meaden for the modification and extension of his house at 16 Yarraford Avenue, Fairfield. There was no application for review lodged in this Tribunal and accordingly the Council itself issued Permit No. 000646 on 11 September 2000 subject to some 20 conditions. The Council is of opinion "that, on the materials currently before it, the committee of Council which made the decision on 11 August 2000 to grant the planning permit did not have the power to make that decision". Nevertheless, Council believes that the determination to grant the permit was correct in the circumstances according to the planning merits. It adopts and accepts the opinions expressed by Mr Meaden's Planning Consultant, Mr Rodda.

2. Having reached the opinion just described Council instructed its solicitors to lodge an application under Section 149B of the Planning and Environment Act whereby it sought:

"A. A declaration that the Notice of Decision for Planning Permit 000646 issued by Yarra City Council dated 11 August 2000 and the Planning Permit 000646 issued by Yarra City Council dated 11 September 2000 and the plans endorsed thereunder are invalid and of no effect.

B. Such further orders as the Tribunal sees fit."

3. This application instituted proceeding P51074/2001. On 11 September 2001 the council's solicitors filed an application under Section 114 of the Planning and Environment Act 1987 seeking orders against Mr Meaden with respect to his property at 16 Yarraford Avenue seeking orders for:

"1. Rectification of the land [that is 16 Yarraford Avenue Fairfield] to the state existing prior to development works.

4. This application originated Proceeding No. P51104/2001.

5. In the period following the issue of the permit on 11 September 2000 Mr Meaden had commenced work on his redevelopment. The Council's solicitors sent a letter by courier to Mr Meaden dated the 7th of September 2001 which stated, inter alia:

"In accordance with the instructions from Council we have now filed an application for declaration. Despite verbal directions from Council officers to stop development in accordance with Permit No. 000646 you are continuing building works.

Unless you cease works by midday today we have instructions to institute proceedings to compel you to stop further building work."

6. Mr Meaden then instructed his solicitors Best Hooper who responded in a letter to Council's solicitors dated 13 September 2001 contending that in the events that had occurred their client was entitled to treat the permit as valid, they noted inter alia:

"Our client has acted on the permit by demolishing a major part of the dwelling on the subject land and commenced construction in reliance on the permit."

7. As a matter of caution, they said, and without conceding that the permit upon which Mr Meaden was relying was invalid, they filed Proceeding No. P51159/2001 which sought review of Council's failure to grant a permit in Application No. 000646. The logic for filing this application presumably is that if Council's contentions are correct then the Notice of Determination and the permit itself are nullities, hence the permit application has not been dealt with. The purpose of this cross-application by Mr Meaden was, according to his solicitors, to ensure that when Council's applications came on for hearing at the Tribunal, the Tribunal would have before it the planning merits of Mr Meaden's development proposal.

8. In the event despite the threat contained in the letter of 7 September 2001 Mr Meaden did not cease his building works nor did the Council seek an interim enforcement order or "stop order" under the Planning and Environment Act.

9. All three proceedings have come on for hearing before me.

10. Yarraford Avenue runs north-south, terminating at the Yarra River. Mr Meaden's property is on the eastern side of Yarraford Avenue. To the south are some 14 units at No. 14 and to the north is a single dwelling at No. 18. To the rear is Coate Park which stretches from the southern end of Perry Street on the western side and a 900 bend in Coate Avenue on the eastern side at its northern end to the Yarra River at its southern end. The north-western corner of the site is approximately 290m south of Yarraford Avenue's intersection with Heidelberg Road. It has a frontage of 15.24m and a depth of 38.7m being of regular shape with an area of approximately 590 sq m. According to his report dated March 2002 Mr Meaden's Planning Consultant Mr Rodda said:

"The rear portion of the existing dwelling has been demolished and construction of the foundations, sub-floor areas, walls and timber frame for the building addition has commenced and is partially complete."

"It is proposed to construct alterations and additions to the existing dwelling. The building addition is located principally at the rear of the dwelling, extending along the southern boundary of the site. The additions comprise additional storage areas at basement level (non-habitable areas due to the flood level) and the provision of a kitchen, laundry, bedroom, ensuite bathroom and deck areas at the ground floor level. A rainwater storage tank is also proposed.

The front section of the existing dwelling including the existing car parking facilities are not substantially affected by this proposal.

The building materials are to comprise a combination of stucco finish, granite, timber and glazed elements. The extension of the existing wall along the southern boundary is designed to improve the privacy and amenity of the rear open space of the review site, whilst maintaining the reasonable amenity of the adjoining flats. The glazed elements are oriented east to optimise views into the adjoining Coate Park."

12. The site is zoned Residential 1 and is subject to a number of overlays. First, an Environmental Significance Overlay Schedule 1 - Yarra Environs, secondly a Design and Development Overlay Schedule 1 - Yarra River Corridor - inclusive of Merri and Darebin Creeks, thirdly, a Land Subject to Inundation Overlay and fourthly, a Special Building Overlay. Of those overlays, the Design and Development Overlay - Yarra River Corridor affects only a small area of the south-eastern corner of the site.

13. As part of the permit process Council gave notice of Mr Meaden's development proposal to all adjoining property owners and occupiers. No. 14 Yarraford Avenue is a block of 14 flats owned by Yarraford Pty Ltd. By letter dated 15 June 2000 Mr Norman Rothfield on behalf of Yarraford Pty Ltd lodged an objection to the grant of the permit, raising some seven matters most of which related to alleged adverse amenity affects on Yarraford's flats at No. 14. There was also an allegation that the "height and bulk" of the development would "intrude on Coate Park and Yarra River environs". In addition there was a letter dated 7 July 2000 over the signature of some nine residents (tenants) at No. 14. Messrs Skerry, Fraser, Edwards, Murphy, Sharp, Challita and Williams, Ms Tan and Ms Dixon. This letter of objection complained mainly of noise and disruption caused by construction but also asserted that "the new structure will have adverse effects on the quality of lighting to lower floor flats and this will impact on the already poor lighting to some flats at 14 Yarraford Avenue". The letter had a front sheet which stated: "it should also be noted: that this letter should be counted as nine individual objections and entered into Council records as such".

14. In light of the primary zoning of the site no permit was needed to use the land for the purpose of a dwelling or to construct or extend a dwelling. Since the site had an area in excess of 500 sq m the need for a permit for the development derived solely from the overlays. The Environmental Significance Overlay dealt with in Clause 42.01 of the Yarra Planning Scheme required a planning permit for buildings and works and to remove, destroy or lop vegetation. None of the exemptions was relevant. The two inundation overlays dealt with at Clauses 44.04 and 44.05 required permits to construct buildings or carry out works and provided for reference to the relevant floodplain management authority viz. Melbourne Water. The Design and Development Overlay at Clause 43.02 of the Scheme requires a permit for the construction of buildings or works. This overlay which affects only a very small portion of Mr Meaden's site seeks to protect and enhance the Yarra River corridor through appropriate siting and appearance of buildings and works and the provision of screening vegetation.

15. On 11 August 2000 one of Council's Planning Officers, Mr Edgar Gottschalk, prepared a report which was submitted to the Development Approvals Committee recommending that a Notice of Decision to Grant a Permit be issued subject to certain conditions. The Development Approvals Committee determined to grant the permit as previously described.

16. By letter dated 25 May 2001 Mr Meaden sought certain minor amendments to the building including the reduction in the overall height from 8.5m to 6.86m measured from the south-west corner at street level and a reduction of the south wall boundary from 5m to 4.429m measured from the south-west corner at street level. These elements of the total package of minor amendments sought represented an agreement between Mr Meaden and Mr Rothfield on behalf of Yarraford Pty Ltd. A permit for demolition was issued on 5 June 2001 when Council endorsed amended plans on the planning permit in accordance with Condition 1 thereof on 14 June 2001.

17. Certain dispensations were required as part of the building regulation process under Element 2 of the Victorian Code for Residential Development - Subdivision and Single Dwellings (VicCode 1) which is an incorporated document in the Yarra Planning Scheme. This application was referred to Melbourne Water, to Mr Rothfield and to the residents of No. 14. Melbourne Water advised by letter of 31 July that it had no objection to the dispensation. Mr Rothfield stated his objection. Mr Edwards, one of the tenants at No. 14 sent a facsimile transmission to one of the Councillors objecting to the seven day period which was available to him to comment on the VicCode 1 issue. He observed "as you can appreciate some of us here at 14 Yarraford Avenue are still reeling from the misturths (sic) from the original planning application. It is not fare (sic) for Mr Pesoz [Deputy Municipal Building Surveyor] or: Mr Meadens to ask for such a time frame considering that the project has been going on for four years now. I don't think that a little more time spent waiting will hurt the process." On 15 August 2001 Council gave its consent to the proposal in relation to building within the flood zone and on 21 August 2001 following a report from the Deputy Building Surveyor to the effect that the proposal generally complied with the objectives and performance criteria of VicCode 1 Council granted its consent.

18. The following month the present complex of proceedings began.

19. The essence of Council's concern is that the Development Assessment Group Special Committee of Council consisting of Council Officers was not empowered in accordance with Council's delegation arrangements to determine the permit application.

20. Section 86 of the Local Government Act 1989 provides for the establishment of special committees of:

(d) any combination of persons referred to in Paragraphs (a), (b) and (c).

21. Sub-section (3) subject to certain irrelevant exclusions authorises a council by instrument of delegation to "delegate any of its functions, duties or powers under this or any other Act to a special committee". The relevant provision of the Planning and Environment Act 1987 require permit applications to be determined by the relevant responsible authority under a planning scheme. In the present case that responsible authority is the Council of the City of Yarra. Section 188(1) of the Planning and Environment Act provides that a responsible authority "may by instrument delegate any of its powers, discretions or functions under this Act" to a committee of the authority or an officer. The "responsible authority" itself is the councillors as the elected representatives of the ratepayers, see Section 5(1) of the Local Government Act 1989. In exercise of the powers described, at an ordinary meeting on 30 June 1997 the Council resolved to delegate the determination of planning applications "with five or less objections" "to an officer admitted Development Assessment Group". Council also delegated consideration of planning applications "with more than five objections" to a special committee entitled "the Internal Development Approvals Committee".

22. It was in purported pursuance of these arrangements that the present permit application was reviewed to the Development Assessment Group. Whilst the Instrument of Delegation was not produced at the hearing, it was common ground that such an instrument existed to give affect to the resolutions carried in 1997 delegating the functions to the two special committees.

23. By the year 2000 the "officer controlled" special committee had come to be called the DAP. The significance of this acronym was not explained at the hearing. One imagines the change occurred because of the unfortunate association of the original acronym "DAG".

24. Mr Rantino who appeared on behalf of the Responsible Authority submitted that in considering the propriety or otherwise of the reference to the "DAG" or "DAP" one was required to interpret and characterise:

(b) the effect of the letter of 7 July 2000 subscribed by the nine tenants at 14 Yarraford Avenue.

25. Mr Rantino conceded that the process of construction was objective with regard to the delegation. He said the task was one of construing and divining Council's intention. In his submission "it is doubtful that the Planning and Environment Act can offer assistance. This is because the Tribunal is here interpreting a delegation, not an instrument made under the Act." For the sake of completeness however, he referred me to a number of sub-sections. Section 57(4) of the Planning and Environment Act provides:

"If a number of persons make one objection, it is sufficient compliance with Section 64(1) and 65(1) if the responsible authority gives the notice:

(b) if no name and address is given under sub-section (3) to one of the persons who made the objection."

"If a number of persons make one objection, they may give the responsible authority the name and address of the person to whom the responsible authority is to give notice of the decision."

27. Sections 64 and 65 deal with the responsible authority's obligations to notify the applicant and each objector noted to its decision. According to Mr Rantino

"These sections recognise that every person who files an objection is an `objector'. Therefore, when nine people put their name to an objection, they are all objectors.

It is fairly clear that the legislative intention is to count objections by multiple persons as multiple objections."

28. The provisions of Section 57(4) are merely procedural, providing for the giving of notices. In his submission they do not deem multiple objections to be a single objection.

29. It followed in Mr Rantino's submission that if there were nine objectors there were therefore nine objections contained in the letter of 7 July. This when added to the objection lodged by Mr Rothfield on behalf of Yarraford Pty Ltd meant that there were in total ten objections and the "DAG" or "DAP" was not a competent body to deal with the permit application.

30. This conclusion, if adopted, would place Mr Meaden in an invidious position. It is clear, and the contrary is not suggested by Mr Rantino, that whatever has gone astray in this permit process is in no way the responsibility of Mr Meaden. He acted in good faith and with propriety throughout.

31. The Council does not contend that the planning merits of Mr Meaden's development proposal should lead to his being refused a permit, indeed Mr Rantino specifically endorsed the expert report of Mr Rodda which was supportive of the planning merits. Mr Rantino therefore sought orders in the three proceedings in alternative form. The first option was as follows:

"In relation to No. P51074/2001, the declaration of the Notice of Decision for Planning Permit 000646 issued by Yarra City Council dated 11 August 2000 and the planning permit issued by Yarra City Council dated 11 September 2000 and the plans endorsed thereunder are invalid and of no effect.

In relation to No. P51159/2001, the Responsible Authority be directed to issue a permit for the development of the land at 16 Yarraford Avenue, such permit to be in like form to the permit issued by Yarra City Council dated 11 September 2000.

In relation to No. P51104/2001 leave be given to the Responsible Authority to withdraw the application."

32. The second option he proposed is as follows:

"In relation to No. P51074/2001, while the Tribunal is of the view that Yarra City Council's Development Assessment Group did not have the power to make the decision which led to the permit issued by the Council dated 11 September 2000, having regard to the circumstances of the case and the equity of the matter, the Tribunal is not prepared to make the declarations of invalidity sought by the Responsible Authority.

In relation to No. P51159/2001, in light of the findings made in No. P51074/2001, there is no need to determine the application if the permit issued by Yarra City Council dated 11 September 2000 is valid and effective and governs the development of the land at 16 Yarraford Avenue.

In relation to No. P51104/2001, leave be given to the Responsible Authority to withdraw the application."'

33. Mr Pitt SC who appeared on behalf of Mr Meaden took me at length to the planning controls and the report of Mr Rodda. He observed that many of the matters raised by the owner and the tenants at No. 14 were not the proper planning concerns in any event, eg. complaints about the noise and dust etc. from building works entailed in carrying out the development. He noted that since it was only the overlays which required that a permit be granted, the other matters raised by those from No. 14 were "all amenity grounds unrelated to the overlay controls" and therefore were irrelevant. He referred to Salmal Constructions Pty Ltd v City of Hobsons Bay (1998) 22 AATR 339, 342.

34. He referred to Sections 57, 64 and 65 of the Planning and Environment Act, provisions to which Mr Rantino had already taken me. Those provisions in Mr Pitt's submission made a clear distinction between "objectors" and "objections". These provisions recognised that many individual objectors may join together in giving a single objection. Mr Pitt said that in framing its resolutions and delegations, Council would have been aware of the distinction made by the Planning and Environment Act and should be taken to have made a deliberate choice to distribute the work of determining planning permit applications between Committees based on the number of objections, not on the number of objectors. The document dated 7 July was in his submission a classic joint and single objection. Accordingly, there were the two objections to his client's development proposal. The matter had been referred to the correct committee and there was no question of any invalidity. He said that the words written on the front sheet could not alter the fundamental nature of the document which was a single objection.

35. Mr Pitt further submitted that even if contrary to his primary contention the determination of his client's permit application should not have been referred to the DAG, Council was "estopped from denying that permission was properly granted". He relied upon the decision of the High Court of Australia in Brickworks Limited v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568. In the Brickworks' case the company applied to a shire council for its consent to use certain land for the purpose of extracting clay and shale. It received in reply a document dated 22nd April 1960 and headed "Land use consent". The document bore the typed initials of the Shire Deputy Town Planning Officer who stated that the Council as the Responsible Authority thereby consented to the application subject to certain conditions. It was signed by the Shire President. The Shire later contended that the document had been issued without proper authority.

36. The High Court by a majority found that the presumption flowing from the signature of the document by the Shire President to the effect that it had been regularly issued was not in the circumstances rebutted by the "meagre" evidence to the contrary. Windeyer J said that even if contrary to the Court's final view, the Shire had not consented then an estoppel would arise. His Honour said:

"It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case. The decision of the [English] Court of Appeal in Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [[1962]] 1 QB 416] was relied on. The facts of that case do bear a superficial resemblance to those of this case. But there is a distinction. There the Corporation had, by its engineer, said that its permission for the use of land as a builder's yard was not in fact and law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the corporation from exercising its statutory discretion to forbid the land being used as a builder's yard. That is to say, the Corporation had in effect said to the respondent company there, `you do not need our permission; we have no discretion to prevent your action'. In the present case, on the other hand, the Council said in effect, `you do need our permission; we have a discretion which we have exercised in your favour'. It seems to me that, in the circumstances of this case, the Council was estopped from denying that it had exercised its discretion in the manner it had said it had done." [1963] HCA 18; (1963) 108 CLR 568, 576

37. Mr Pitt referred to Jurkovic v City of Port Adelaide (1979) 41 LGRA 71, 79 where Wells J as another example of estoppel by representation in the planning jurisdiction.

38. Finally, he submitted that even if it were established contrary to his primary submission that the permit was invalid but no estoppel arose against the Council, the appropriate course for Council to have taken would have been a request to cancel the permit under Section 87 of the Planning and Environment Act 1987. He noted that if a permit were cancelled under this section, Section 94 of the Planning and Environment Act made provision for the payment of compensation. He conceded that there was jurisdiction for the Tribunal to entertain an application for declaration under Section 149B of the Planning and Environment Act in these circumstances, nevertheless, the availability of the alternative and more appropriate remedy under Section 87 was a significant factor which as a matter of discretion should lead to a dismissal of Council's application for the declaration. He referred to Salmal Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192, 201 and Cook v Melbourne City Council (1998) 1 VPR 41, 52. Mr Pitt observed that the objectors at No. 14 Yarraford Avenue had had the opportunity to seek a review of the determination to grant the permit in August 2000 and had failed to take any such steps. He continued:

"It is submitted that the history of the matter and the opportunities that all parties other than the respondent have to review the decision to grant the permit and the Council having waited until the development had commenced by demolition of a major part of the respondent's dwelling are grounds upon which, even if the basis for making a declaration had been established, in the exercise of discretion no such decision should be made."

39. Further, since it was conceded that the planning merits favoured the grant of the permit, he said this was a further discretionary consideration which would tell against making any declaration sought by the Responsible Authority.

40. In my view Mr Pitt is correct in noting the distinction which the Planning and Environment Act draws between "objectors" and "objections". The usage in the statute cannot as Mr Rantino rightly observes, govern the meaning of the words "in Council resolutions and delegations". Nevertheless, it represents an important context which it is reasonable to conclude has informed those responsible for framing the resolutions and the forms of delegation. Moreover, it is likely that the Councillors in supporting the resolution would have been influenced in the usage of language which they thought appropriate by the way language is used in a statute so important to local government as the Planning and Environment Act.

41. Accordingly, the mere fact that nine people subscribed to the letter of 7 July does not in itself render it nine objections. Section 57 of the Planning and Environment Act clearly supposes that a number of persons can join together and lodge one objection. If nine persons had lodged separate sheets of paper, even employing the same language, it could not as it seems to me, be contended that there were other than nine objections. What enables a plurality of objectors to produce one objection is that they act jointly. Under the word "joint" in Stroud's Judicial Dictionary (6th Edition 2000) the following appears:

"Where two persons bind themselves, without law, that they or one of them will do something the obligation is joint ...; where they bind each of them, the obligation is several ... where they bind themselves and each of them the obligation is joint in several."

In other words, whether a particular act is undertaken jointly or not depends upon the intention of those involved, generally evidenced by the words which they employ. In my view the words quoted on the front sheet to the letter of 7 July constitute an intention evident on the face of the document that the objections are to be regarded as several and not joint. To borrow a phrase from the law of co-ownership the words on the front sheet are "words of severance". That being the case it cannot be said that there is one objection only, rather there are nine objections.

42. It follows that Council's apprehension that the DAG did not have power to deal with this permit application was well founded.

43. In my view however, Council is nevertheless estopped from denying the validity of the permit which it issued on the basis of the doctrine relied upon by Mr Pitt.

44. It is trite law that generally estoppel by representation has no role to play in public law. A public authority cannot by the careless or deliberate misstatement of one of its officers acquire power to discharge its duties other than according to law. Here however the situation was not such as typically presents in those cases where estoppel by representation has unsuccessfully been relied upon in the public law domain. The present problem is one entirely of internal management for the Council. It had the power under the Local Government Act and the Planning and Environment Act if it so chose to delegate consideration of this class of permit application to an officer controlled Development Assessment Group. The permit actually issued was one which Council was empowered to issue. Indeed as previously noted, the planning merits favour the grant of this permit.

45. In Rubico v Minister for Immigration and Ethnic Affairs [1989] FCA 90; (1989) 86 ALR 681 Lee J quashed a deportation order. In the course of his judgment he observed:

"It is well settled that an estoppel by representation may not be argued where the effect of such an estoppel would be the prevention of the performance of the statutory duty or exercise of a statutory discretion: see Southend-On-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416. But the argument does become available where the words or conduct of the authority involved a representation that the duty had been performed or the discretion exercised: see Brickworks Limited v Warringah Shire Council (1936 (sic)) [1963] HCA 18; 108 CLR 568 per Windeyer J at 577; Wyong Shire Council v Associated Minerals Consolidated [1972] 1 NSWLR 114 at 142. Such an estoppel is capable of extending to a Minister of the Crown or his delegate; see Robertson v Minister of Pensions [1949] 1 KB 227."

46. In Minister for Immigration, Local Government and Ethnic Affairs v Kertovic [1990] FCA 22; (1990) 92 ALR 93 a Full Court of the Federal Court (Neaves, Ryan and Gummow JJ) declined to quash a deportation order. Mr Kertovic was convicted of manslaughter having been resident in Australia for less than 10 years he was ordered deported under Section 12 of the Migration Act 1958 the Commonwealth Administrative Appeals Tribunal recommended the deportation order be revoked and the then Minister accepted the recommendation. A year later a new Minister made a further deportation order. A single Judge of the Federal Court had quashed the second deportation order but the Full Court reversed his decision. Gummow J then a Judge of the Federal Court undertook an exhaustive analysis of the role if any of estoppel by representation in public law. As to the dictum of Lee J in Rubico he said:

"I should also say that in my respectful view Lee J spoke too widely Rubico v Minister for Immigration and Ethnic Affairs [1989] FCA 90; (1989) 86 ALR 681 at 703, he said that estoppel by representation is available where the words or conduct of the decision-maker involved a representation that the duty had been performed or the discretion exercised. As I see it, the decision-maker were (sic) estopped from resiling from a single exercise of his discretion, is in the nature of the discretionary power (being exercisable from time to time) would be stifled." [1990] FCA 22; (1990) 92 ALR 93, 115

47. The Court had concluded that the power to order deportation was a discretion of the Minister in Mr Kertovic's circumstances (having been convicted of manslaughter after residence in Australia of less than 10 years). Once the Court concluded that the Minister had a power exercisable from time to time, no single exercise of the discretion not to deport would prevent him re-visiting the issue later. I do not understand Gummow J to be calling into question the law on the subject stated by Windeyer J in the Brickworks' case.

48. The situation in the present proceedings is quite different from that which obtained in Kertovic. A decision by a Responsible Authority to grant a permit is generally not open to reconsideration. Once the permit has been issued, generally the responsible authority has no discretion simply to recall it or reconsider it later. The present case bears a strong resemblance to the facts assumed by Windeyer J in his alternative reasons for decision in the Brickworks' case. It also resembles the facts in a more recent decision of Lloyd J in the Land and Environment Court of New South Wales, Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206. In that case a Council Officer purported to issue a development consent. The officer believed he had power to issue the consent because no objection had been lodged. In fact an objection had been lodged and in those circumstances the officer had no delegated authority. His Honour concluded that the development consent was nevertheless valid. He said:

"I have come to the view that the applicants' submissions are correct. In the present case the document signed by Mr Bowls [the Council Officer] _on 25 July 1996 was regular on its face. There is nothing to suggest that he did not have the delegated authority to issue it. The respondent by its officer Mr Bowl, said that it had consented. Unless the consent is one which the Council itself did not have the power to grant, then it is to be regarded as a consent on which the applicants could rely (_Brickworks Ltd v Warringah Shire Council at 577-579; 229-231). Such a consent, in the absence of express statutory power cannot be altered or withdrawn. ... The failure by the respondent to observe its own internal procedures does not enable it to disallow the approval ..." (1997) 93 LGERA 206, 211-12

(a) decline to make any of the declarations sought by the Responsible Authority;

(b) give it leave to withdraw its enforcement order application; and

(c) direct that no permit issue in the application based on failure to consider the permit application on the footing that no permit is required.

50. Mr Pitt submitted that I should in the circumstances of these proceedings depart from the general rule to be found in Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 that costs lie where they fall. He noted that Section 109(3) of that Act authorised the Tribunal to make a costs order in favour of a party "only if it is satisfied that it is fair to do so" having regard to a number of factors including:

"(c) The relative strengths of the claims 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 proceeding; and

(e) Any other matter the Tribunal considers relevant."

51. Mr Pitt said "it is submitted that if these proceedings have any basis at all they are solely a consequence of the Council mismanagement of its internal procedures to which the respondent bears no responsibility whatsoever". It was conceded that the present proceedings were set in motion as a result of complaints by a Mr Edwards, one of the tenants of the flats at No. 14 Yarraford Avenue. Mr Pitt submitted that the costs should be awarded on a full indemnity basis which including legal and town planning costs came to $12,000.

52. In response Mr Rantino submitted that the general rule set out in Section 109(1) should apply. The Council found itself, though having acted in good faith in a predicament, in his submission it was necessary to have this matter referred to the Tribunal to remove the uncertainty which would otherwise attend the issue of the planning permit. Council had acted reasonably and in the public interest. It would be wrong in his submission for any costs order to be made against it or at any rate for a costs order of the full indemnity type sought by Mr Pitt.

53. The general rule that costs lie where they fall has been widely and almost universally applied in this Tribunal and in the boards and tribunals which preceded it in the permit review jurisdiction. The rationale for this presumably is that permit review proceedings represent a dispute as to the exercise of policy discretion. Whilst the submissions of one party rather than another may ultimately succeed, it is not a situation where the one party or the other contends for a particular view of fact or law which has found in favour of or against that party. The assumption underlying the ordinary planning permit review proceeding is that minds may legitimately differ on such relatively vague and subjective concepts as amenity, the need to maintain neighbourhood character. Where relief is sought by way of declaration of enforcement, different considerations apply. The one party or the other does contend for a particular view of fact or law which is either accepted or not. There is a strong resemblance to inter partes litigation in court. If an enforcement order is made the assumption is that the respondent to it has acted wrongly. If an enforcement order is refused this will frequently be because an owner or occupier has been wrongly assailed with false or misconceived allegations of unlawful conduct. The nature of these proceedings clearly warrants a departure from the general rule and that is the approach customarily adopted by the Tribunal and by its predecessors.

54. Mr Meaden was dragged unwillingly into these proceedings having acted at all times reasonably and in good faith. His contentions have prevailed. There is every good reason for a departure from the usual rule, nevertheless, I do not believe that an order fixing the costs for a sum certain at a full indemnity level is warranted. First, not all of Mr Meaden's contentions have been sustained. Secondly, whatever might be the situation as to the grant of a full indemnity costs order in Court in these circumstances, the situation in the Tribunal is different. Section 109(1) shows that the Tribunal is established as a low cost venue or frequently or generally a no costs venue. In those circumstances an even higher hurdle must be surmounted to justify an order for full indemnity costs in the Tribunal than would be necessary in court. Even in court orders for the payment of costs on a full indemnity basis are exceptional. In my view the proper order in these circumstances is that the Responsible Authority should pay Mr Meaden's party party costs. Once again, since the Tribunal is to be a low cost rather than a high costs venue, we should be guided by the scales used in the County Court rather than those in the Supreme Court. There is no evidence as to the cost of the development which was at stake here. I am prepared to infer however that having regard to its extensive nature it would have cost no less than $50,000. That would place this matter within the realms of County Court Scale "D".

55. Accordingly I will order that the Responsible Authority pay the costs of Mr Meaden in each of these proceedings to be taxed in default of agreement in accordance with County Court Scale "D". I am satisfied that in the circumstances it was reasonable for Mr Meaden to be represented by Senior Counsel. This would lead to Counsel's fee in excess of the County Court Scale "D" and I certify for the fees of Senior Counsel and fix those fees in the sum of $3,850, that is a daily rate of $3,500 plus GST.