Mr Gary Testro, Solicitor. The following witness gave sworn evidence:

• Peter Siantis, Planning Investigations Officer, Moonee Valley City Council

• Carol Ida Pilatti, Town Planner, Moonee Valley City Council

Mr Stewart Rowland of counsel, by direct brief. The following people gave sworn evidence:

• Carol Anne Smith
• Kevin Douglas Starling, Design Consultant and registered builder, Designology Pty Ltd

Mr Andrew DeKretser, Solicitor, of Schembri and Co. The following person gave sworn evidence:

1. The council has applied to amend a planning permit[1] under section 87 of the Planning and Environment Act 1987 on the grounds of a material mistake in relation to the grant of a permit. The permit relates to the construction of a deck at the rear of the subject land at 20A Patterson Street, Moonee Ponds. The council has also applied for a stop order to restrain further construction or completion of the deck. It has admitted that the council officer who decided to grant the permit made a mistake in assessment of the permit application. She didn't realise the deck would be so high. The council has given an undertaking as to damages.
2. I have decided not to make a stop order because I am not satisfied that there is evidence of a material mistake in relation to the grant of this planning permit. I announced my decision at the hearing and now set out in expanded form my reasons.

1. The permit was issued on 27 November 2006 and allows construction of a single storey extension and deck to the rear of the existing dwelling in accordance with endorsed plans. The existing dwelling shares a party wall with the dwelling to the north (20B Patterson Street) which is owned by Julietta Rybicki. Both sites have a rhomboid shape and at the rear overlook the Moonee Ponds Creek valley. Both properties are elevated at the rear. The sunroom extension has taken advantage of the staggered relationship of the dwellings at nos. 20A and 20B and extends to a point which is still setback from the rear (east) boundary of the house at no.20B. The deck is at the same level as the extension and floor level of both properties. The plans show the deck as 1.5 metres high at the boundary between nos. 20A and 20B. It is as high as the top of the paling fence between the two properties. Due to the slope of the land to the north, the height of the deck has been measured as 1.6 metres from just inside Ms Rybicki's boundary at no. 20B.
2. The party wall between the dwellings extends 1 metre beyond the extension but there is no other screening between the deck and Ms Rybicki's property. As a consequence, there are clear views from the kitchen window of the house at no.20B onto and across the deck, and similarly there are clear views from the deck into the backyard and rear windows of no.20B. Ms Rybicki is most distressed about the extent of overlooking and has complained to the council.
3. Evidence was given that the owner of no.20A, Ms Smith, showed Ms Rybicki the concept plans prior to a permit application being made. Ms Rybicki said she did not object to the extension but did not want her views obscured by a solid fence or screen between the properties. Ms Rybicki presently enjoys views from her kitchen window diagonally across the subject land to the Moonee Ponds Creek Valley.
4. Notice of the permit application was required to be given under section 52(1)(a) of the Planning and Environment Act 1987 to owners of adjoining properties, including Ms Rybicki. Mr Starling, who designed the extension and managed the permit application, visited Ms Rybicki during the exhibition period to show her the plans. It was his evidence that he had difficulty making an appointment with her; she was busy and distracted and not interested in looking at the plans in detail.
5. Ms Rybicki said she had been extremely busy at the time due to a new business venture she was in the process of setting up. She submitted the following note to the council dated 5 October 2006:

I Juliette Rybicki of 20B Patterson St M/P do not object to the extension of 20A Patterson Street M/P, but do NOT want a SOLID WALL between our properties.

I originally purchased my property for the view, trees, Moonee Ponds Creek as a result I would not like my view obstructed.

This letter was treated as an objection and a notice of decision was sent to Ms Rybicki. No application for review was lodged with the Tribunal and the permit was issued on 27 November 2006.

1. The extension and deck have been constructed in accordance with the endorsed plans except for the omission of a simple pergola. A certificate of final inspection under the Building Act 1993 was issued on 13 September 2007, which states: Rear pergola has not been constructed and is considered deleted from this building permit. Ms Smith says that she no longer intends to built the pergola.
2. Construction commenced in March 2006. Early in the construction process, a series of 21 large steel posts were installed to support the deck. Temporary subfloor framing was installed over the posts, which provided a platform for the builders to work from. The floor of the deck was installed in July. Prior to this, in May, Ms Rybicki expressed concerns about the height of the deck and the handrail, which consists of stainless steel wires. There was a meeting in May between Ms Rybicki, Ms Smith and Mr Starling to discuss Ms Rybicki's concerns. There were more discussions in July, this time involving the council. A formal letter of objection was sent to Ms Rybicki to the council dated 19 July 2007. More discussions occurred during August.
3. The council's application to amend the permit and seek a stop order was lodged on 4 September 2007. It alleges that there has been a material mistake in relation to the grant of the permit. The facts relied on include:

[j] Subsequent to the neighbour to the north, Julietta Bernadette Rybicki of 20B Pattison Street contacting the responsible authority in July 2007 to complain about the "as built" characteristics of the deck, Council Officers investigated the complaint and found that the floor level of the deck was approximately level with the top of the side paling fence so as to have both an overlooking and a visual impact upon the property at 20B Pattison Street irrespective of what impact it may have on other adjoining properties.

[k] Subsequent to that complaint being made and investigated, the delegate revisited the file and realised that in deciding to grant the permit, she had made a mistake in that she had misunderstood what the Application-related documents, especially the plans, had been proposing as to the characteristics of the deck and had, thereby, misconstrued the extent to which the deck would be visible from 20B Pattison Street and the extent to which the deck would have visual and overlooking consequences. The delegate had understood that the deck floor would be lower than the top of the fence and would be approximately 1 metre above ground level. She had read the Application plans as if the brick boundary dividing wall extension between the two properties would extend further east as to form an edge to the northern side of the deck.

[l] There has been a material mistake in relation to the grant of the permit by the responsible authority via its delegate.

1. In the affidavit of evidence by Ms Pillati, who was the delegate who made the decision to grant the permit, she says:

[6] The Application for Permit was handled by a Planning Officer, Simon Stainsby. He produced an Officer's report recommending the granting of a permit.

[7] In accordance with the usual practice adopted for planning applications, prior to a decision being made in relation to the Application, the Application was the subject of discussion at an internal Panel meeting which, from recollection, was attended by Simon Stainsby, Margaret Blackney and myself.

[8] My understanding (and my recollection of the collective view of the Panel at the time) was that the deck floor would be lower than the top of the fence and would be approximately 1 metre above ground level. I had read the Application plans as if the brick boundary dividing wall extension between the two properties would extend further east so as to form an edge to the northern side of the deck.

[9] Subsequent to the neighbour to the north, Julitta Bernadette Rybicki of 20B Pattison Street, contacting the Council in July 2007 to complain about the "as built" characteristics of the deck, I have revisited the Council file. That revisiting exercise has caused me to realise that I had misunderstood what the Application-related documents, especially the plans, had been proposing as the characteristics of the deck and, thus, in deciding to grant a permit, I had made a material mistake by misconstruing the extent to which the deck would be visible from 20B Pattison Street and the extent to which the deck would have visual and overlooking consequences.

[10] In trying to reconstruct how I may have made the mistake in interpreting and understanding the Application Plans, I can only say that I was not assisted in my endeavours of understanding and assessment by the fact that there was no northern elevation shown on the plans (the northern elevation being the critical elevation between the site the subject of the permit and the adjoining property to the north).

1. An issue in contention is what representations were made about the projected finished height of the deck in relation to the height of the boundary fence.
2. Ms Rybicki says that Ms Smith and Mr Starling represented to her that the height of the deck would be about half the height of the fence. Ms Smith said that with the assistance of her father she tried to estimate the projected height of the deck from the plans by counting brick courses and taking a string out to the fence. By this means she estimated that the height of the deck would be approximately one foot (30cm) below the top of the fence at about the height of the top rail. She said she made a mark on her fence on her side. Mr Starling says that he discussed the height of the deck with Ms Rybicki in his meeting with her during the exhibition period by reference to this mark on the fence. However, he said that the height of the fence was not a datum point. Whilst it was discussed approximately where the height would be, the level of the deck as always intended to be at the level shown on the plans and reflected in the construction.
3. Ms Pillati's evidence is that she thought the deck would be lower than the top of the fence and would be approximately 1 metre above ground level.

1. The council seeks an order that the deck be lowered to a maximum height of 400mm above natural ground level at the western edge of the deck (i.e. adjacent to the sunroom extension) and to a maximum of 800mm above natural ground level the eastern edge of the deck (i.e adjacent to the rear boundary of the property). Amendments are also sought requiring consequential (and significant) changes to the sunroom extension involving relocation of doors and windows and the provision of steps down from the extension to the deck. A screen would also be provided by the top of the boundary fence to a height of 1.7 metres above the finished floor level of the deck.

1. The Tribunal is enjoined by section 97 of the Victorian Civil and Administrative Tribunal Act 1998 to act fairly and according to the substantial merits of the case in all proceedings. I find that the substantial merits of this case dictate that no stop order should be made because in my view, there is no likelihood that this case would succeed on its merits. Notwithstanding the council says it has made a material mistake in relation to the grant of the permit, I must still satisfy myself that there has been a material mistake, or at least there is strong prima facie evidence of one. It would be wrong to issue a stop order if the ground relied upon as the basis for the application to cancel or amend the permit is not made out. I am not satisfied that it has.
2. The basis of the material mistake is a statement by the council officer who decided to grant the permit as delegate, but who did not produce the officer's report or handle the planning permit application, that she understood "the deck floor would be lower than the top of the fence and would be approximately 1 metre above ground level". Even if factually correct, I do not find that this constitutes a material mistake in relation to the grant of the permit.
3. First, I do not accept that this evidence can be an accurate portrayal of Ms Pillati's understanding of the plans at the time she made her decision. The fence she refers to is not shown on the plans forming part of the planning permit application (or which have been subsequently endorsed). There is no reference to the height of the deck in relation to the height of the fence in the officer's report. The plans are accurately scaled and clearly depict what the ultimate height of the deck will be in relation to the existing dwelling residents and proposed addition on the subject land and the adjoining dwelling at no. 20B. The east elevation (rear) shown on the plans clearly depicts the deck level in relation to the windows and rear elevation of Mrs Rybicki's property.
4. The lack of a north elevation on the plans does not alter the interpretation of the plans or render them ambiguous in any way. In any event, if the lack of a north elevation had been perceived to be a problem when the permit application was being assessed, it was open to the council to ask for further information of this nature under section 54 of the Act. No such request was made. In my view, the set of plans provided with the permit application are both accurate and unambiguous in terms of depicting the ultimate height of the deck in relation to the adjoining property at no. 20B and in particular in relation to the rear windows. There were three qualified planners who were apparently at the meeting at which the decision to grant the permit was made and who signed off on these plans. I find it quite unconvincing to say that they all misread the plans.
5. I consider it is likely that Ms Pillati's recollection has been coloured by later seeing the deck as-built and its relation to the fence. I am not prepared to accept what Ms Pillati says was her understanding at the time of granting the permit.
6. However, even if there was a misunderstanding about the plans and the deck is higher than the council officer envisaged and has greater effects on overlooking and privacy than envisaged, this does not mean that there has been a material mistake in relation to the grant of a permit.

1. It is not being alleged by the council that there has been a material misstatement or concealment of fact in relation to the application for the permit. It does not appear that there has been any representations made about the height of the deck in relation to the height of the fence to the council. In relation to representations made to Ms Rybicki on this issue there is a conflict of evidence. On this point, I prefer the evidence of Ms Smith and Mr Starling to that of Ms Rybicki. I find it is likely that Ms Rybicki was distracted by her business interests and did not pay attention to the detail of what she was being told or the explanation of the plans at the time they were presented to her. Mr Starling's evidence was that she was not interested in looking at the detail. She was busy and distracted due to her business ventures and she rejected the offer to leave her with a set of the plans to look at. I am satisfied that no representations were made by Ms Smith or Mr Starling that the deck level would only be half the height of the fence. I am satisfied that the indication given was that it would be slightly lower than the top of the fence. The fact that it is level with the top of the fence does not mean that there has been a material misstatement or concealment of fact. The difference in height is marginal and makes no difference whatsoever to the overlooking complained of.
2. Further, the steel posts at deck height were in place for several months and workmen were walking around on the temporary covering placed over them as they worked on the building. In my view, it would have been clear to Ms Rybicki months ago what the finished height of the deck was going to be.
3. In realty, Ms Rybicki has failed to take the opportunity to look in detail at the plans when she had the opportunity to do so and to make an objection. She failed to pay proper attention to explanations which were given to her or which she had the opportunity to pursue at the appropriate time. She indicated her acceptance of the plans provided there was no solid wall between the properties and cannot now be heard to complain because the outcome is different to what she may have thought.
4. However, this is not an application brought by Ms Rybicki and the grounds relied upon are not a material misstatement or concealment of fact in relation to the application for the permit. The grounds are a material mistake in relation to the grant of the permit on the part of the council.

1. A material mistake in relation to the grant of a permit within the meaning of section 87(1)(c) can be an error of law or fact or opinion.[2] The issue in this case is whether it encompasses a change of opinion on the part of a council officer in her assessment of the permit application when faced with the as-built version of the development, which is effectively what has occurred here.
2. The meaning of "material mistake" was considered in the case of Mullan v City of Doncaster and Templestowe.
3. The material mistake in that case related to the responsible authority's misinterpretation of the tenement provisions of the planning scheme and their application to the facts in this case. The Tribunal held that the council made a material mistake in granting a permit for a development which was prohibited and which it did not have the power to grant. It held that it was the responsibility of the responsible authority to interpret the planning scheme and assess the application.
4. In Elson v Mt Alexander Shire Council[3] the Tribunal held that there had been a material mistake in the granting of a permit in the following circumstances. The case concerned an application to construct a substantial two storey dwelling in an area affected by a Heritage Overlay. Part of the dwelling was designed to house a sizeable private art collection. The application was referred to council's heritage adviser who assessed the application and reported that the scale of the dwellings was excessive and would have an adverse impact on the physical character and integrity of the Castlemaine Historic Precinct. However, at the request of the applicant's architect, the heritage adviser made a second assessment. On this occasion she gave greater weight to the "cultural heritage landscape" of Castlemaine including, the question of housing of private art collection. Her earlier opinion was reversed. No notice of the application was given and subsequently, the council issued a permit for the proposal. Neighbouring residents sought cancellation of the permit on the basis of "no notification" and also on the basis that there had been a material mistake in relation to the grant of a permit.
5. The Tribunal upheld both submissions. With respect to the second assessment, the Tribunal held that the heritage adviser "placed far too much significance on largely irrelevant consideration of the permit holder's needs such as the art gallery." The Tribunal held that her first assessment was the more valid assessment under the Heritage Overlay. Accordingly, the planning officer's assessment of whether the grant of a permit would not cause material detriment was based on "an incorrect heritage assessment". It should have been based on the first assessment, which found the proposal was not acceptable in heritage terms. For this reason, the Tribunal held that the judgement that the development would not result in material detriment was in error and accordingly the council should have required notice to be given under section 52 of the Planning and Environment Act 1987. The Tribunal then went on to say with respect to "material mistake":

[6.1] It follows that as I consider Ms Jean's second heritage assessment of the proposal to be wrong, the first assessment was the correct assessment. Thus, basing the issue of the permit on the second assessment is a material mistake in the granting of the permit. And, the requestors have also made out this ground.

1. If a council fails to properly assess an application according to the relevant requirements and decision guidelines of the planning control such that it could be said that the decision made was one that no reasonable responsible authority acting reasonably could have made, then I consider this type of error of judgement would constitute a material mistake in relation to the grant of a permit. When the decision in Elson's case is read carefully, I consider that the "mistake" found by the Tribunal to have occurred in that case was tantamount to such a mistake. But I consider it is questionable to extend the concept of material mistake to embrace a report involving the subjective assessment of a planning application where the relevant issues have been addressed. In my view, an error of opinion of this nature would not constitute a material mistake.
2. In deciding what constitutes a material mistake for the purpose of section 87(1)(c) of the Act, regard must be had to the public policy interest of upholding the certainty of planning permits once issued. As I said in the case of Phillips v Greater Shepparton CC[4]:

[122] There is a clear public interest in the need for certainty regarding the validity of planning permits. It is not desirable that permits should generally have hanging over them any aura of uncertainty about their validity depending on whether someone at some time may appear and allege that proper notice was not given under section 52.... In my view, it is only in exceptional circumstances that this need for certainty should be overturned

1. Whilst it was the issue of notice under section 52 that was relevant in Phillips' case, it is equally undesirable that there be any aura of uncertainty hanging over permits because it might be said, with the benefit of hindsight, that a planning assessment made in the course of considering a permit application was a poor judgement.
2. In the case of Baarmutha Residents Association Inc v Indigo SC[5] Justice Morris, in the course of considering an application for declaration pursuant to section 149B of the Act, said:

[24] The next contention advanced by the applicants was that the decision of the responsible authority to approve the development plan was unreasonable. I emphasise the limited scope of this ground of legal challenge. In Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38 at [25] I stated that the hurdle facing a person alleging that a planning permit decision is not open is a high one. More recently, when sitting in the Supreme Court of Victoria in East Melbourne Group Inc v Minister for Planning [2005] VSC 242, I emphasised that when a challenge is based upon unreasonableness it is necessary to understand that an applicant must do more than show that the decision is one which is a poor decision or a decision which is not to be preferred in all the circumstances. Rather this ground of invalidity is reserved for "decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them".

[25] In my opinion, this ground of challenge has not been made out in the present case. This is not to say that I agree with the council's decision to approve the development plan. In this proceeding that has not been an issue; and I am not to be taken as agreeing or disagreeing. But it is not enough for the applicants to show that the decision was a poor one; it must be so devoid of any plausible justification that no reasonable body of persons could have reached it. ....

1. I consider that the same comments apply where it is asserted that there has been a material mistake in relation to the grant of a permit based on an error of judgement or opinion. It is not enough to show that the judgement was a poor decision or a judgement not to be preferred in all the circumstances. Nor is it sufficient to say that now the development is complete (or nearly so) or a use has commenced and the effects or impact can be seen, a different judgement would have been made. In my view, section 87(1)(c) does not enable a responsible authority to revisit a subjective assessment it has made in the course of assessing a permit application by saying that it has made a material mistake. A material mistake of fact or law must be of such significance that if the true situation had been known, a different decision would have been made.[6] If there has been a mistake in judgement or opinion, it must be of a nature that, looked at objectively, no reasonable body or person could have made, and of such significance that a different decision would have resulted.
2. In many respects, such an error is tantamount to an error of law in terms of amounting to Wednesbury unreasonableness.[7] To my mind, if an error of judgement or opinion (as distinct from fact or law) is to be relied upon as constituting a ground material mistake in relation to the grant of a permit it must be something more than simply a change of mind or a realisation that a poor judgement was made.
3. If council officers lack adequate information to assess a permit application, they have powers under the Act to obtain more information. However, once they have enough information to form an opinion and make a decision, they are bound by the judgement they have made. If that results in the grant of a permit, then that permit should not be set aside unless there has been a serious defect in the events leading to its grant. I do not accept that poor judgement and nothing else is contemplated by the Act as justifying the cancellation or amendment of a permit or that this constitutes a material mistake in relation to the grant of a permit.
4. The planning system in Victoria provides generous opportunities for responsible authorities to require more information about permit applications and for third party participation in decision making. In most cases there are opportunities to review cases on their merits. Section 87 is an important mechanism to rectify a miscarriage of justice or error relating to the grant of a permit. It is not a mechanism for belatedly seeking a review on the merits of a particular case.
5. There is a fairly exhaustive process to be gone through before a planning permit is issued. If that process is duly followed, which it was in this case, a permit is issued and then what is substantially built complies with that permit, it would be unfair in my view to then cancel or amend the permit because someone who had the opportunity to participate in the process, or the person deciding to grant the permit, did not fully realise what the proposal would look like when built.
6. Effectively, the council is seeking to review the merits of this case at the behest of Ms Rybicki. The real problem is not so much the height of the deck as the lack of any privacy screen along the edge of the deck on the boundary between nos. 20A and 20B. The lack of privacy screen creates the opportunity for overlooking and lack of privacy, which is what concerns Ms Rybicki. However, it seems evident that no screen was proposed or required due to Ms Rybicki's desire, set out in her objection, that there be no solid wall between the properties because she did not want her view obstructed across the subject land. Unfortunately, I do not consider that Ms Rybicki's failure to appreciate the implications of her objection and the council's failure to insist on such a screen constitute sufficient grounds to now justify a request to amend the permit.

1. It was submitted on behalf of Ms Smith that section 88(a) of the Planning and Environment Act 1987 precludes this application because the development authorised by the permit is complete, or so nearly complete that the areas of discrepancy with the endorsed plans are de minimus.
2. The Tribunal may only exercise its power to cancel or amend the permit if the permit relates to the construction of buildings or the carrying out of other works, at any time before those operations have been completed. I reserved my decision at the hearing on whether the development was complete. Having considered this matter, I now rule that the construction of buildings and works authorised by the permit has not been completed. The endorsed plans under the permit enable a pergola to be constructed. The fact that Ms Smith no longer intends to construct the pergola is not relevant. She cannot be compelled to construct it but it means that there is an aspect of the permit which is not entirely "spent".
3. There are various other minor discrepancies between the deck as built and what is shown on the plans. However, the aspect of the buildings and works which the council seeks to amend has been completed. I find that the total lack of correlation between these minor discrepancies and what is complained of, namely the height of the deck, mean that it would be unfair to direct either the issue of a stop order or an amendment of the permit on this basis. Nevertheless, the issue of the level of completion is a matter that goes to the exercise of my discretion rather than my legal ability to exercise that discretion because of section 88(a).

1. An application for a stop order is a discretionary remedy. Apart from my finding that no material mistake fact has been established, I find that it would not be fair to grant a stop order in these circumstances in any event.
2. It follows that the application for stop order is refused. I will adjourn the primary proceeding under section 87 to an administrative mention to provide the council with the opportunity to decide how it wishes to proceed.

1. At the conclusion of the hearing I announced my decision. An application for costs against the council was made on behalf of both Ms Smith and Ms Rybicki.
2. I find that so far as Ms Rybicki's costs are concerned, the normal rules set out in section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 should apply, namely that each party is to bear their own costs in the proceeding.
3. This is a case where it appears that the council has made an application in response to concerns expressed by Ms Rybicki. She has been provided with an opportunity to be heard in support of the council's application. The council has been unsuccessful. Ms Rybicki and the council have effectively been on the same side. I see no reason why Ms Rybicki should be awarded costs for what essentially amounts to the failure of her own case.
4. So far as Ms Smith's costs are concerned, I take a different view and find that the council should be required to pay her costs associated with Mr Rowland's appearance. I am satisfied that this is a case falling within the ambit of section 109(3)(c) and (d) of the Victorian Civil and Administrative Tribunal Act 1998.
5. In terms of the relative strengths of the claims made by the parties, the council has failed to establish the primary ground upon which it makes this application. It has failed to establish this even on a prima facie basis. Respondents called upon to defend such applications should, if successful, not have to bear the costs burden. They have had no choice but to defend themselves.
6. In terms of the nature of the case, the Tribunal has frequently found that enforcement order applications and applications to cancel or amend permits are of a nature where it is more likely to be fair to make an order for costs. In each of these type of cases, the onus lies on the applicant to prove its case, and applicants should accept that responsibility with the forethought of the consequences that result from not doing so.[8] If not defended, the potential effects could be devastating for respondents in such applications.[9]
7. In the present case, Ms Smith had no alternative but to defend herself. She has done nothing wrong in the course of applying for the permit or in constructing the building in accordance with the permit. It is a situation where the council has failed to establish the onus cast upon it to prove its case and establish that there was at least a prima facie case of a material mistake in relation to the grant of a permit. The council appears to have assumed that because it has asserted that it had made such a mistake, and was prepared to accept responsibility by giving an undertaken as to damages, that a stop order would automatically be granted by the Tribunal. That is the not the case. The Tribunal always has a discretion. However, in this particular case, as I have indicated, the council did not even get to that point because it failed to establish the ground relied upon. Whilst I have indicated how I may have exercised my discretion if the ground had been established, this does not detract from the fact that the council has failed to discharge the onus cast upon it. In these circumstances, it should pay Ms Smith's costs.

[2] See Mullan v City of Doncaster and Templestowe 11 AATR 157 at 164; Shire of Marong v Bendigo Junior Moto Cross Club 22 APA 539 at 547-549

[4] [2005] VCAT 653; 19 VPR 266

[5] [2005] VCAT 1521

[6] A different decision includes different conditions.

[7] Based on the principle derived from Associated Provincial Picture Houses v Wednesbury Incorporation [1947] EWCA Civ 1; [1948] 1 KB 223 and meaning that a decision was so unreasonable that no reasonable authority could make it.

[8] See Baw Baw SC v Zorro Produce PL [2004] VCAT 2198 at [7]

[9] See Haouli v Hobsons Bay CC [2001] VCAT 433 at [24] and [26]