Victorian Civil and Administrative Tribunal|2001-07-20

Noonan David & Ors v Boroondara CC & Ors [2001] VCAT 1548 (20 July 2001)

Town planning, Planning List, permit cancellation, s 87 Planning and Environment Act, material mis-statement in relation to permit application, substantial failure to comply with conditions, summary dismissal, s 75 Victorian Civil and Administrative Tribunal Act, vexatious, misconceived, lacking in substance, abuse of process, costs,

s 75(2) wider than s 109 VCAT Act, costs, expenses, loss, inconvenience and embarrassment as opposed to merely "costs".

RESPONDENT/PERMIT HOLDERS: George Sotiropoulos and

Medium Neutral Citation [2001] VCAT 1548

The land in Certificate of Title Volume 1679 Folio 670

1. These proceedings are dismissed pursuant to s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998.

2. The Requestors are ordered to pay the Respondent/Permit Holders the amount of $1,897.50 to compensate them for expenses and loss resulting from this proceeding, such amount to be paid within 30 days of the date of this document.

Mr Scott Taylor, planning advocate of the City of Melbourne, appeared for the Responsible Authority.

Mr Nick Hadjigeorgiou, town planner, appeared for the Respondent/Permit Holders.

Mr David Noonan, one of the Requestors, appeared in person for himself and for the other Requestors.

Application under S.87 of the Planning and Environment Act 1987 (PE Act) for cancellation of a permit.

Cancellation of Planning Permit No. BOR/98/01143 issued by the Responsible Authority on the 13 July 2000 at the direction of the Victorian Civil and Administrative Tribunal in this determination of Application for Review No. 1999/93293 which permit allowed the development of the land for two double storey dwellings and a single storey dwelling in accordance with endorsed plans and subject to 13 conditions.

1. In the short statement of grounds filed on behalf of the Respondent/Permit Holders it was suggested that the Requestors' proceedings seeking cancellation of this permit are frivolous and vexatious. It was said that the grounds or facts relied upon were frivolous as well as causing inconvenience, stress and expense. It was alleged that every condition of the permit had been complied with and the Council had carried out an exhaustive examination of the plans prior to endorsing them. The Respondents claim to have done nothing wrong or inconsistent with the planning permit and they had sought a hearing to determine if the request had any substance.

2. In effect they were seeking an exercise of the powers given to the Tribunal by

s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). That section empowers the Tribunal, at any time, to make an order summarily dismissing or striking out all or any part of a proceeding if it is of the opinion that a proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. If the Tribunal makes such an order it may order that the applicant (in this case the Requestors) pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceedings. These powers can be exercised by the Tribunal constituted for the proceedings or by a presidential or senior member who is a legal practitioner. Such orders can be made on the application of a party or on the Tribunal's own initiative.

3. Mr Noonan, in the course of the hearing, produced a photocopy of the text of

s 71 of the VCAT Act. That is a different provision which enables the Principal Registrar to reject a proceeding in certain circumstances. That section is not the one relevant for present purposes. The parties presented submissions in the course of the hearing. In the case of Mr Noonan he also presented a written outline of his submissions, and Mr Hadjigeorgiou presented written, as well as oral submissions.

4. Having heard the parties I announced my decision and gave oral reasons. I will not repeat here all that was then said, but will content myself with a summary.

5. The Requestors sought to rely on the grounds in s 87(1)(a) and (b) PE Act. In relation to first of these the Tribunal must be satisfied that there has been a material mis-statement in relation to the application for the permit. Section 87(1)(a) also refers to concealment of fact, but it is mis-statement of fact that relied on in this case. It is a mis-statement of fact "in relation to the application for a permit", not in relation to the procedure generally or in relation to any permit that might be granted or to the endorsement of plans. This point was clarified during the hearing.

6. In fact some degree of clarification was called for. The request form lodged by the Requestors did not, in itself, clearly specify the grounds relied upon. However, they were referred to in an attached document. This also purported to contain the facts relied upon as establishing those grounds. This proved to be a rather confusing document. Amongst other things, it contained confusion between mis-statement of fact in relation to the application for a permit on the one hand and mis-statement of fact in relation to the endorsed plans on the other.

7. The aspect of the application in relation to which it was claimed that a material mis-statement had occurred was the application plans. Originally these were the plans lodged with the permit application. Subsequently amended plans were substituted, shortly before the day fixed for the hearing of the review (that ultimately gave rise to the grant of the permit) by the Tribunal. The result was that the hearing was adjourned with a direction from the Tribunal for the preparation of a third version specifying further information. This third version was substituted as the application plans, by way of an amendment to the planning permit application, by the Tribunal in the course of the hearing. If there was a relevant material mis-statement, it would have to be in relation to those plans.

8. The result of the earlier hearing before the Tribunal was that a permit was granted and issued pursuant to a direction contained in a document containing the Tribunal's decision and reasons. This document is 29 pages long and deals with the matters that were in issue before the Tribunal. It grants a permit subject to conditions and directs its issue. The first condition deals with the question of endorsed plans. It provides that before the use or development starts amended plans must be submitted to the satisfaction of the Responsible Authority. The wording here is slightly cumbersome, but what it means is clearly that plans to the satisfaction of the Responsible Authority are to be submitted for approval. The condition goes on that when the plans are to the satisfaction of the Responsible Authority they will be endorsed and will form part of the permit. It goes on to provide that such plans must be generally in accordance with the plans submitted at the hearing but modified to show certain things specified in paragraphs (a) to (h).

9. Some of these requirements contain further references to things needing to be to the satisfaction of the Responsible Authority, for example the choice of a tree required in condition 1(a). Others do not contain a repetition of the general requirement already made of things modified under condition 1 must be to the satisfaction of the Responsible Authority. For example, condition 1(e) says:-

"Exact wall heights above existing ground level nominated for any boundary walls."

10. The repetition of the phrase "to the satisfaction of the Responsible Authority" in these paragraphs is redundant, as the plans as a whole must be to the satisfaction of the Responsible Authority. The existence of such satisfaction is shown by the endorsement of the plans. That has occurred in this case. In fact construction work has commenced in accordance with the permit, although it has not progressed very far.

11. In seeking to establish the ground under s 87(1)(a) the Requestors have been pedantic. It is said that the distance between natural ground level and wall heights are not established and dimensioned on the endorsed plans as required. However, there is no doubt whatsoever as to the position, proportions and height of the building depicted in the endorsed plans and allowed by the permit. The plans are drawn to scale and display many heights and dimensions. Amongst other things heights are indicated in relation to ridge levels are specified in terms of Australian Height Datum. With the scale drawings and dimensions provided the position, shape and proportions of everything else can be worked out from those fixed points. There was nothing in the suggestion that the development, as it would be seen, would be varied by particulars said to have been omitted.

12. Various aspects were examined in this connection. For example, the heights were required by condition 1(e) in relation to "exact wall heights above existing ground level nominated for any boundary walls". There was in fact only one boundary wall. It belongs to a garage. As with other examples, the position could be ascertained by reference to the information provided. The Requestors seemed to have become a little carried away by the use of the word "exact" in relation to wall heights above existing ground level in this condition. However, the member constituting the Tribunal for the purpose of hearing the previous proceeding was not misled in relation to these things. The further information that he thought necessary to enable him to determine the case was provided to his satisfaction after he asked for it in the March hearing before it was adjourned. If there were further points needing clarification he could have, and in my opinion, would have sought that information. He made an inspection of the land. It was clearly a careful inspection. In this connection it must be remembered that it is the plans that were before him then, not the endorsed plans, in relation to which the material mis-statement must be established. I am not satisfied that there was a mis-statement, but if there was, it is plain that it was not a material one. On the contrary, it was an immaterial one.

13. Mr Noonan sought to establish that the alleged mis-statement in relation to the boundary wall (he was here again referring to the endorsed plans) was material because of the effect it may have on drainage. He speculated that it might not be possible to provide suitable drainage. His speculation was no more than that. That question was raised at the previous hearing, considered by the Tribunal, and dismissed. Whatever else "material" might mean, it means something that the Tribunal would need to, or want to know, in determining the matter before it. There is nothing that the Requestors have been able to point to that the Tribunal lacked for this purpose.

14. I thus found that the Requestors were unable to establish the ground of material mis-statement in relation to the application for a permit.

15. The other ground sought to be relied upon was substantial failure to comply with the conditions of the permit. It is rather unusual for this ground to be raised in a case like the present one. In my experience of the PE Act so far, I have found that this ground is relevant in only rather limited and special circumstances. In this case the alleged substantial failure to comply with conditions is said to be, not any action of the permit holders, but that of the Responsible Authority in endorsing the plans. Here again reference was made to the modifications required by condition 1. The Requestors considered that the plans endorsed did not sufficiently comply with the requirements of condition 1, and that the Responsible Authority erred in endorsing the plan in the circumstances. The matters referred to are not, in my opinion, "substantial" as required by the ground in s 87(1)(b). As I have said, I don't think they were even material. In any event, although the plans to be endorsed had to be modified, compared with the plans before the Tribunal at the previous hearing, in the ways specified; this was still subject to the overall qualification that they had to be modified "to the satisfaction of the Responsible Authority". That requirement, of the Responsible Authority's satisfaction, is required by condition 1 in relation to the plans as a whole, including the modifications specified. I consider that it qualifies even the, perhaps unnecessary, use of the word "exact" in condition 1(e).

16. Where the Responsible Authority has declared itself to be satisfied with plans, as it has in this case by endorsing them, there are only limited remedies. Section 149 PE Act provides a remedy, to those to whom it gives an opportunity to make an application, by clothing the Tribunal with authority to resolve a matter where there is a dispute as to what the Responsible Authority should be satisfied with. If there was a dispute between the permit holder and the Responsible Authority as to whether the plans should be endorsed, the permit holders could avail themselves of that section. It does not give a similar right to objectors.

17. It might well be open to objectors or others with an interest in the matter to apply to a court or the Tribunal for a declaration that an endorsement pursuant to condition 1 is invalid if the plans in fact endorsed were so at variance with the condition that no Responsible Authority, correctly instructing itself, and acting reasonably, could come to the view that the plans should be endorsed. That, however, is a difficult test which I do not think would be satisfied in this present case.

18. As Mr Hadjigeorgiou said, the evidence indicates that the Responsible Authority was satisfied with these plans and thus condition 1 has been complied with.

19. There was some other discussion of further minor matters in relation to trees and landscaping which could never, in my opinion, justify cancellation of the permit. The Requestors in this case cannot make out either the grounds under

s 87(1)(a) and (b) that they have relied upon and the request therefore must fail.

20. Not only that, the matters that they have raised are in fact trivial in the circumstances. They certainly do not warrant and could not possibly justify cancellation of the permit. Mr Hadjigeorgiou relies on the fact that the Requestors have sought cancellation, rather than amendment, as an indication that they have been vexatious and frivolous in bringing and maintaining these proceedings. It must be remembered that the Requestors had the Respondents' short statement of ground well before the hearing and yet the Requestors maintained, in the course of the hearing, that only cancellation would suffice. This was on the flimsy ground that if further alterations to the plans were required it would involve a fifth version of plans for this project. It was said that this would be confusing. If it might be mildly confusing, it is not so confusing as to be any sort of problem. In any event, cancellation would only result in a new application in relation to which a fifth version of the plans would be required. The explanation as to why cancellation rather than amendment was sought under s 87 is flimsy and completely unconvincing. The Requestors might have had some shade of creditability if they had sought amendment, but I think the request for cancellation was an abuse of process in the circumstances. I do not mean by this that an amendment request would have been successful.

It appears, from what was said on behalf of the Requestors, that their indignation is really directed to the Responsible Authority. They resent the Responsible Authority having endorsed these plans which do not, in their opinion, display the exactness they consider appropriate. Also, they are vexed by an alleged failure of the Responsible Authority to respond to their communications in relation to the matter. Mr Noonan gave this as the motivation for why proceedings were commenced. It might indeed be the motivation for the commencement of proceedings, but it is nevertheless incumbent on those who commence proceedings to have regard to whether the proceedings are appropriate and regard to who the proceedings threaten. This request seeks cancellation of the Respondents' permit. That result would have a severe adverse affect on them. Such proceedings should not be undertaken merely for the purpose of punishing or exposing the alleged shortcomings of another party, in this case the Responsible Authority.

21. Mr Noonan was mistaken when he said the Respondent/Permit Holders were not really parties. He may not have been intending to aim at them, but by commencing these proceedings he sought to destroy their permit upon which they were relying. They were certainly a party, indeed the party most threatened by the request. It is really unthinkable, when consideration is given to the matter, that they are not parties. They most certainly are.

22. In my opinion these proceedings were misconceived and lacking in substance. Furthermore I consider that an intelligent lay person, making a sensible appreciation of the proceedings, would at least realise that they lacked substance, notwithstanding the use of the word "exact" in condition 1(e) or the absence of a repeat of the expression "to the satisfaction of the Responsible Authority", in some of the other paragraphs of that condition.

23. Mr Hadjigeorgiou applied for an order for costs on the basis that the proceedings were unjustified. He referred particularly to s 109 VCAT Act, but attention was also directed to s 75(2). I notice that there was an order for costs for $5,000.00 against his clients in relation to the adjournment of the previous proceeding in March 2000. He mentioned this point as showing that the Requestors here, who were the beneficiaries of that order, were aware of the possibility of an order for costs in relation to unjustified proceedings.

24. Mr Noonan resisted the order for costs but did not dispute the quantum of $1,897.50.

25. I raised with Mr Hadjigeorgiou the question as to whether the term "costs" encompasses the fees of an advocate who is not a lawyer, or whether, on the other hand, it is confined to legal fees and disbursements. Whilst I recognise that there is room for such an argument, perhaps in relation to s 109, I see that s 75(2) is framed in wide terms. It does not talk of an order for "costs", but rather an order for an amount "to compensate" a party for "costs" but also for "expenses, loss, inconvenience and embarrassment" resulting from the proceedings. In my opinion, this expression is wide enough to include the fees of a town planner appearing as a professional advocate in proceedings such as these. Such fees are expenses and loss whether or not they are technically "costs". I think the Respondent/Permit Holders were justified in resisting these proceedings and in defending their permit. In doing so it was reasonable, and I think necessary, for them to obtain professional help. Mr Hadjigeorgiou said that the idea of his appearing, rather than lawyers being engaged, was to reduce expenses.

26. I am satisfied that this is an occasion appropriate for an order for costs. Mr Hadjigeorgiou pointed out that the hourly rate claimed is only three quarters of the hourly rate allowed by the Tribunal in relation to costs for work of an expert planning witness thrown away by the adjournment previously referred to which formed part of the previous order for $5,000.00. In the absence of any challenge to the quantum claimed I will accept the figure claimed.

Noonan David & Ors v Boroondara CC & Ors [2001] VCAT 1548

At a glance

Court

Decision date

Source

Judgment (44 paragraphs)

Noonan David & Ors v Boroondara CC & Ors [2001] VCAT 1548 (20 July 2001)

Parties