1. Merraton Pty Ltd has twenty-one days from the date of this document to file with the Tribunal and serve on the solicitors for Bismark Pty Ltd a further written submission in relation to the question of costs in answer to the application made on behalf of Bismark Pty Ltd for an order for costs on the basis of s 109 of the Victorian Civil and Administrative Tribunal Act 1998. If Merraton Pty Ltd elects not to lodge and serve such a further submission it is to advise the registrar of the Tribunal and the solicitors for Bismark Pty Ltd to that effect in writing as soon as practicable, and not later than within the said period of twenty-one days.
2. If Bismark Pty Ltd wishes to make a written reply to the submission authorised by direction 1 above, it must do so in writing within a further fourteen days, such reply be filed with the Tribunal and served on the solicitors for Merraton Pty Ltd within that period. If Bismark Pty Ltd elects not to make a written reply pursuant to this direction, then it is to advise the registrar and the solicitors for Merraton Pty Ltd in writing to that effect as soon as possible and not later than within the set period of fourteen days.

Mr Richard Hoxley, town planner of the City of Maroondah, appeared for the Responsible Authority. He presented written and oral submissions.

Ms Tania Cincotta, solicitor of the firm Best Hooper solicitors, appeared for the Applicant for Review, Merraton Pty Ltd. She presented written and oral submissions and called Mr Anthony Michael Zalewski, security consultant, as an expert witness. In the course of his oral evidence he adopted a written report and was cross examined.

Mr C Townshend, barrister, appeared on the instructions of the firm Minter Ellison solicitors for the Respondent/ Permit applicant company, Bismark Pty Ltd. In addition to presenting written and oral submissions he called two expert witnesses. They were Russell Brian Fairlie, traffic engineer and Howard Maugan Bastone, town planner. Each gave oral evidence, adopted a written report and was cross examined.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.82 of the Planning and Environment Act 1987 for review of a decision of the Responsible Authority to grant a permit

Use of existing building as a nightclub with some associated buildings and works together with permission for the display of outdoor advertising signs and waiver of car parking and bicycle parking requirements.

Permission pursuant to clause 52.27 of the planning scheme is also sought to use land to sell or consume liquor.

Business 1 zone and subject to a Development Plan Contributions Plan Overlay (schedule 1) under the Maroondah Planning Scheme. Maroondah Highway is a Road Zone Category 1.

1. This case was heard, and an oral determination was given on 30 October 2007. A written determination dated 15 November 2007 was subsequently given. A permit was granted with a direction for it to be issued.
2. Costs in relation to the proceedings were reserved. The respondent Bismark Pty Ltd had indicated that it sought costs pursuant to s 150(4) of the Planning and Environment Act 1987 (PE Act) against the applicant for review namely Merraton Pty Ltd. Directions were given as to the making of submissions in relation thereto.
3. Subsequently a written submission was made on behalf of Bismark Pty Ltd. In this document it sought costs (but not damages) pursuant to s 150 PE Act and also pursuant to s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
4. Previous mentions of an application for costs on behalf of Bismark Pty Ltd had not referred to s 109 VCAT Act, although that section was mentioned in the remarks attached to the written determination of 15 November 2007.
5. Subsequently a written submission in answer to that of Bismark Pty Ltd was lodged on behalf of Merraton Pty Ltd. That submission addressed only the application in relation to s 150(4) PE Act. The application in the written submission of Bismark Pty Ltd referring to s 109 VCAT Act was ignored except to claim that Bismark Pty Ltd is not entitled to make an application under s 109. The only reference to that section was to say that Merraton Pty Ltd would request an opportunity to make such submissions if the Tribunal determined that Bismark Pty Ltd can make such an application.
6. Section 109 VCAT Act lays down a general rule that the parties must bear their own costs, but also empowers the Tribunal to make an order for costs where it considers that it is just to do so having regard to certain specified considerations. That power is to enable justice to be done.
7. Order C in the written determination of 15 November 2007 reserved costs generally, and not limited to s 150(4) PE Act. In any event, I have no doubt that it is open to Bismark Pty Ltd to apply for an order for costs on the basis of s 109 VCAT Act, as it has done in its written submissions. It is entitled to ask the Tribunal to exercise a power granted to the Tribunal to enable justice to be done on the basis that it claims justice, in the circumstances, calls for the making of an order for costs. I think the view taken on behalf of Merraton Pty Ltd is unduly narrow and not justified. It is really asking that, in circumstances where the question of costs is still open, the respondent Bismark Pty Ltd should be prevented from asking for justice to be done.
8. I will give directions to enable the lodging of further written submissions.