Victorian Civil and Administrative Tribunal|2006-12-07|Before: Stuart Morris J

Oglesby v East Gippsland SC [2006] VCAT 2475 (7 December 2006)

Planning review - withdrawal of application for review - Costs - allegation that proceeding primarily brought to secure a commercial advantage - Fairness ultimate test - Victorian Civil and Administrative Tribunal Act 1998 s 109 and cl 63 of Schedule 1 - Planning and Environment Act 1987 s 150

Oglesby v Jenbrook Pty Ltd [2006] VCAT 2475

I order the applicant for review to pay to Jenbrook Pty Ltd the sum of $17,872 in respect of the costs of the proceeding. Such amount must be paid within 28 days of the date of this order.

Mr Ragu Appudurai of counsel instructed by Russell Kennedy, solicitors

Mr A G Southall QC of counsel instructed by Mahons with Yuncken & Yuncken

1 On 27 April 2006 the East Gippsland Shire Council ("the council") decided to grant a permit to Jenbrook Pty Ltd ("Jenbrook") for a 376 lot subdivision at 1300 Paynesville Road, Paynesville. On 17 May 2006 Ken Oglesby lodged an application with the tribunal to review that decision. But on 18 August 2006 Mr Oglesby completed a form, which was subsequently sent to the tribunal, stating that he intended to withdraw his application for review. The application for review is now withdrawn. However, in preparing its case to contest the application for review, Jenbrook incurred substantial costs. Jenbrook now seeks an order that Mr Oglesby pay those costs.[1]

2 Ordinarily the tribunal does not make orders as to costs in planning review matters. But in this case the permit applicant claims that Mr Oglesby brought the proceeding primarily to secure a commercial advantage. As I will explain, this engages particular legal provisions in force in Victoria.

3 In essence, Jenbrook contends that, at the time Mr Oglesby brought the application for review, Mr Oglesby's private company was engaged in the selling of residential lots; and that his primary motive for bringing the application was to delay the Jenbrook subdivision and to secure the advantage that there would be less competition in the sale of the Oglesby lots.

4 Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") lays down a general principle that each party is to bear their own costs in a proceeding. However it also provides that the tribunal may order that a party pay all, or a specified part of, the costs of another party in a proceeding if it is satisfied that it is fair to do so. Various factors are set out in section 109(3) that may be relevant, including whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party.

5 Significantly, clause 63 of Schedule 1 of the VCAT Act provides:

(1) In determining whether or not to make an order for costs in a proceeding under the Planning and Environment Act 1987, the Tribunal may have regard to whether the proceeding was brought primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceeding.

(2) Sub-clause (1) is in addition to the matters that the Tribunal may have regard to under section 109(3).

6 Clause 63 of Schedule 1 of the VCAT Act has a close relationship with section 150 of the Planning and Environment Act 1987. Section 150(4) provides:

If any proceedings are brought before the Tribunal under this Act and the Tribunal is satisfied that -

(a) the proceedings have been brought vexatiously or frivolously or primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings; and

(b) any other person has suffered loss or damage as a result of the proceedings -

the Tribunal may order the person who brought the proceedings to pay to that other person an amount assessed by the Tribunal as compensation for the loss or damage and an amount for costs.

7 To the extent that section 150(4) relates to costs (as opposed to compensation for loss or damage), it overlaps and largely duplicates clause 63 of Schedule 1 of the VCAT Act.

8 The nature of the power to award costs on the basis that the applicant has been motivated by a commercial advantage has been considered by the tribunal on a number of occasions.[2] Although the phraseology used in these cases differs, I think the following principles emerge.

9 A legal proceeding might be regarded as vexatious if it is brought for an improper purpose or is an abuse of process.[3] As the Planning and Environment Act 1987 is not intended to regulate competition[4], an application to review a decision to grant a permit might be regarded as vexatious if it was brought primarily to secure or maintain a competitive advantage. However the existence of clause 63 of Schedule 1 of the VCAT Act and section 150 of the Planning and Environment Act 1987 renders it unnecessary to label such a proceeding as "vexatious"; as each provision provides a firm platform upon which the tribunal may make an order as to costs where a proceeding has been brought primarily to secure a commercial advantage of a competitive character.

10 The word "commercial" is difficult to define precisely, but has connotations of being related to business or money or to the exchange of goods or services. Yet many of the actors in planning disputes routinely seek to protect what might be thought to be a business interest or an interest in maintaining the value of land. Persons who have business interests also can have legitimate planning concerns about a development proposal that might impact their business. Persons seeking to maintain land values can equally be concerned about amenity impacts. This is because persons with a commercial interest may also have an interest as neighbours; or they may have a legitimate interest in consistent and orderly decision making under a planning scheme. In this respect it is to be noted that one of the objectives of planning is to provide for the fair use and development of land[5]: and this may embrace the notion that persons who are engaged in commerce will have a level playing field when it comes to planning regulation.

11 In most cases where a party seeks to recover costs on the basis that the proceeding has been brought to primarily secure or maintain a commercial advantage the person bringing the proceeding will be in competition with the business sought to be advanced by the permit application. In the present case it is alleged that Mr Oglesby's company is in competition in the sale of residential lots. Thus, in this case, it is unnecessary to determine whether the expression "commercial advantage" extends beyond a competitive advantage in commerce.

12 In my opinion, provisions such as clause 63 of Schedule 1 of the VCAT Act and section 150 of the Planning and Environment Act 1987 ought be interpreted to give effect to the intent of the Parliament. Nevertheless it will usually be the case that costs will only be awarded pursuant to the provisions where there is some abuse of process. Usually this will arise in circumstances where the objector is not primarily seeking to advance an interest as a neighbour, but is mainly concerned as a commercial competitor. However the fact that an objector is a commercial competitor, and not a neighbour, may not be sufficient to justify a conclusion that there is an abuse of process; in some industries or market sectors commercial competitors may have a legitimate interest in ensuring that consistent standards are adopted. For example, if a shopping centre has been required to provide car parking at a specified rate the owners of that centre may have a legitimate interest in contesting a decision to allow another shopping centre to be erected on the basis of it providing car parking at a substantially lesser rate.

13 In his decision in Collins v Shire of Nillumbik[6], Deputy President Byard observed that in determining whether an application was primarily brought to secure a commercial advantage, the tribunal should not resort to guesswork. This is undoubtedly true, but it does not prevent the tribunal from making inferences from the evidence. Relevant evidence will include, but not be confined to, the grounds relied upon and the manner in which the application for review is prosecuted. Even if the grounds are undoubtedly "town planning" grounds and the proceeding is prosecuted responsibly, it would still be possible to make an inference that the primary motivation for the bringing of a proceeding was to secure or maintain a commercial advantage. If the tribunal was not prepared to make such an inference in an appropriate case, it would be too easy for the intention of parliament to be defeated.

14 Even if the tribunal is satisfied that a proceeding has been brought primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceeding it does not follow that the tribunal must make an order for costs. Whether the yardstick is section 109 of the VCAT Act (in combination with clause 63 of schedule 1 of that Act) or section 150 of the Planning and Environment Act 1987, the tribunal has a discretion as to whether or not to make an order as to costs. This discretion applies not only to whether an order is made, but also as to the quantum of any costs that are ordered to be paid. Although a finding that a proceeding has been brought primarily to secure or maintain a direct or indirect commercial advantage will be an important consideration, all the circumstances will need to be considered in the exercise of the discretion.

15 I should emphasise that when it comes to the exercise of the discretion to make an order as to costs the ultimate guide will be what is fair. What is fair will depend on many factors. However it is not to be determined by looking solely at the conduct of the person against whom costs are claimed. It will always be necessary to also consider the conduct of the party claiming costs.

16 When costs are awarded it will usually be appropriate to require the costs to be assessed on a party/party basis. However where a party brings a proceeding in a manner, or in circumstances, where that proceeding is an abuse of process there will be a strong case for awarding costs on a solicitor/client basis.

17 It is now necessary to set out my findings as to primary facts in more detail. At this point I would observe that when the hearing took place on 17 November 2006 Jenbrook relied upon affidavits and other documents; whereas counsel for Mr Oglesby did not seek to advance evidence other than the tendering of certain documents. At that stage I observed that it would be open for me, on the evidence that had been produced, to infer that the application for review had been brought primarily to secure a commercial advantage. I further noted that an absence of evidence from Mr Oglesby would make it easier to draw such an inference. I provided counsel for Mr Oglesby the opportunity of calling Mr Oglesby; and this was done at an adjourned hearing on 22 November 2006.

18 In making the following findings as to the primary facts I take into account all the evidence which was presented, including the oral evidence of Mr Oglesby.

19 Jenbrook lodged its application for a permit to subdivide the subject land on 25 August 2004. The application was supported by a very detailed planning report jointly prepared by three consultants: Coomes Planning, Chris Runting & Associates Pty Ltd, and Gamcorp.

20 The site the subject of the application is located on the south side of the Bairnsdale/Paynesville Road. From east to west, the site extends from the existing urban area of Paynesville to Grandview Road. From north to south, the site extends from the Bairnsdale/Paynesville Road to Newlands Road.

21 The application for subdivision was not exempt from the third party notice requirements in the Act. The council required notice to be given of the application. Notices were sent by post to the owners of some 155 properties, signs were erected on the land, and notices were published in local newspapers. There were ten objections to the grant of a permit. Most of these objections were from persons having an interest in properties in Paynesville. One of the objectors was Mr Oglesby.

22 Mr Oglesby's objection was contained in a letter dated 27 October 2004. In his letter he raised two types of concerns: infrastructure concerns and safety concerns. Mr Oglesby set out nine separate points in support of his submission that the development was not suitable for Paynesville as the town did not have the infrastructure to cope with such a large scale development. He then set out seven separate points in relation to his concern that the use of Ashley Street and King Street to connect the proposed subdivision to the Paynesville township would cause safety concerns. Mr Oglesby concluded by urging the council to either refuse the application, reduce the size of the subdivision, or require a social, infrastructure and safety impact report to be prepared before any decision was made.

23 In his letter of objection Mr Oglesby gave as his address 133B Newlands Drive, Paynesville. Newlands Drive is an east-west road that is to the immediate south of the subject land. The subdivision plans show a north-south road that would connect Bairnsdale-Paynesville Road with Newlands Drive. Mr Oglesby's residence is about 15 properties - that is, about 250 metres - west of the point where the subdivision was proposed to connect to Newlands Drive.

24 Consideration of the application moved slowly. The council held a planning consultation meeting on 1 March 2005. Representatives of Jenbrook, a number of objectors and councillors and council officers attended the meeting. Mr Oglesby gave evidence, which I accept, that he was in Melbourne at the time of the meeting and could not attend. At the meeting some objectors expressed concerns similar to those which had been outlined in Mr Oglesby's objection. According to a planning report subsequently prepared by a council officer there was no agreed outcome to the matters raised at that meeting.

25 On 27 April 2005 a further consultation meeting was held, this time (it would appear) at the instigation of Jenbrook. Mr Oglesby did not attend this meeting. There is no evidence as to whether or not Mr Oglesby was aware of the meeting, although it is possible that he was invited.

26 Following the consultation meeting on 27 April 2005 consideration of the subdivision application moved from slow to glacial. One explanation offered for this was Jenbrook's desire to ensure that every possible objection to the subdivision was dealt with. Another possible explanation is that the council was overstretched and was not able to process the application promptly. In any event the next substantial event was the issue of a notice of decision to grant a permit on 27 April 2006: precisely one year after the second consultation meeting.

27 After lodging his objection in October 2004 Mr Oglesby does not appear to have taken any other action in relation to the matter up to the time that the council decided to grant a permit. Counsel for Jenbrook made much of this. Although I accept the evidence that Mr Oglesby did nothing during this period to follow up his objection, I do not regard this as significant. It is often sufficient - and certainly reasonable - for objectors to rely upon a written objection without making further representations.

28 On 17 May 2006 the tribunal received an application for review from Mr Oglesby. No other objector sought to review the council's decision. Although the application was on the wrong form, it was clearly enough an application to review the decision of the council to grant a permit for the Jenbrook subdivision. Mr Oglesby did not set out the grounds upon which he intended to rely in reviewing the council's decision, but attached a copy of his letter of objection dated 27 October 2004; thus inviting the inference that he intended to rely upon the same matters in his application for review as raised in his letter of objection.

29 As an important issue in determining this costs application is Mr Oglesby's motive in bringing the proceeding, it is necessary to focus on the circumstances that existed on 17 May 2006. At that time, and for some years previously, Mr Oglesby was a resident in Paynesville. He is an accountant by occupation and was conducting an accountancy business in Paynesville. As a Paynesville resident and Paynesville businessman he clearly had an interest in a major subdivision proposal that would have an impact on the town.

30 However, at the time he brought the proceeding before the tribunal, Mr Oglesby was also the director of J Oglesby Investments Pty Ltd, a company which holds its assets for a family trust. Potential beneficiaries of that trust include Mr Oglesby and his family. In the year 2000, J Oglesby Investments Pty Ltd had purchased a parcel of land in Bairnsdale-Paynesville Road, having an area of about 2.5 hectares, with the intention of subdividing the land for residential lots. A planning permit had been granted for this purpose in about 2001, but it had taken a number of years since to have the plan certified. When the land was subdivided into 24 residential lots it was known as "The Grange". The subdivision is a short distance to the east of the proposed Jenbrook subdivision. The certification of The Grange subdivision occurred on 8 July 2005 and the marketing of the lots started in April or May 2006.

31 In the absence of any evidence by Mr Oglesby, an inference would certainly be open - and might be drawn - that Mr Oglesby's primary motive in bringing his application for review was to delay the Jenbrook subdivision so as to facilitate the sale of lots in The Grange. Certainly when Mr Oglesby gave his evidence he conceded that he knew that the effect of his application for review would be to delay the Jenbrook subdivision. However his evidence was that his primary motive in objecting to the subdivision and in bringing the application for review was his concerns, as a resident, about the impact of the Jenbrook subdivision on the infrastructure and safety of the town.

32 At this stage I observe that the task of fact finding is not simply a matter of deciding whether a witness should be believed or not. Rather fact finding involves examining all relevant evidence, considering intrinsic probabilities, being aware of human strengths and frailties, and being neither gullible nor unduly cynical. In the present context, fact finding is made more complex for another reason. A person who is primarily motivated by a desire to secure a commercial advantage is unlikely to admit that fact; indeed is likely to give evidence that they were primarily motivated by a factor which is squarely within the scope of the Planning and Environment Act.

33 Although Jenbrook was the permit applicant, the owners of the land were the Estate of E R and J Ah Yee. Jenbrook is a company associated with Coomes Planning and was simply being used as a vehicle to obtain the planning permit. However I accept that in incurring costs Jenbrook was required to pay those costs, even though it was entitled to be reimbursed by the Estate of E R and J Ah Yee.

34 Shortly after the application for review had been lodged Coomes Planning was engaged to manage the case on behalf of Jenbrook and the Estate of E R and J Ah Yee. To this end Coomes Planning prepared a statement of grounds upon which Jenbrook intended to rely at the hearing. These grounds rehearse planning arguments of a conventional kind; the grounds do not raise any concern as to the bona fides of Mr Oglesby's application for review.

35 On 5 June 2006 Coomes Planning asked Mr A Southall QC to advise and subsequently appear at the hearing of the application for review. Mr Southall received a formal brief from the solicitors Mahons with Yuncken & Yuncken in relation to the matter. It would appear that on 15 June 2006 Coomes Planning had prepared a search of the company in which Mr Oglesby had an interest. On 16 June 2006 a conference was held with Mr Southall at which the commercial nature of Mr Oglesby's application for review was discussed. According to a subsequent tax invoice levied by Coomes Planning to the Estate of E R and J Ah Yee, Mr Southall advised Jenbrook not to seek a directions hearing (which, I infer, would have been for the purpose of seeking to summarily dismiss the application for review). Rather the position adopted by Jenbrook was that it would prepare its case and meet the application for review on its merits.

36 The hurdle which a party must overcome in order to persuade the tribunal to summarily dismiss an application for review is a high one. Hence it is understandable why Jenbrook decided not to seek a directions hearing[7]; and its decision should not be criticised. However I flag for future consideration whether, at this stage, it would have been wise for Jenbrook to have put Mr Oglesby on notice: both of its concern about the bona fides of his application for review, and the possibility that he may be ultimately required to pay costs incurred by Jenbrook.

37 On 21 June 2006 Coomes Planning prepared letters of instruction, requesting a fee proposal, to the Traffix Group (traffic engineers) and to Biosis Research (environmental consultants).

38 By mid-June the parties had been notified that the hearing would be held in Bairnsdale in early September 2006, with one day being set aside. Jenbrook was concerned that two days would be required for the hearing, bearing in mind that it proposed to call three expert witnesses. Accordingly Jenbrook requested the tribunal to allocate two days for the hearing; and this was done.

39 Jenbrook started to incur very significant costs in the last week of July and in August 2006. For example, on 25 July 2006 Mr Southall and Mr Jim Coomes conducted a site inspection and conference at Paynesville. I note that Paynesville is about four hours drive from Melbourne. Further, employees of Biosis Research had started to work on the matter; the Traffix Group had conducted inspections and prepared a statement of evidence; and Coomes Planning had engaged in considerable further work, including preparing a witness statement.

40 On 8 August 2006 Mr Southall prepared a draft letter to be sent to Mr Oglesby challenging his bona fides and putting him on notice as to costs. This letter was subsequently sent, by registered mail, on 17 August 2006. Essentially the letter alleged that the purpose of Mr Oglesby's application for review was to secure a commercial advantage; and that, as a consequence, Jenbrook and the Estate of the Ah Yees had suffered and would continue to suffer loss and damage

41 Obviously concerned about the implications raised in the letter Mr Oglesby made the decision to seek to withdraw the proceeding; a decision which was communicated to the permit applicant on 23 August 2006. Subsequent to this date there were communications between the parties as to the terms upon which the proceeding ought be withdrawn. Ultimately the proceeding was withdrawn but without prejudice to the present claim for costs.

42 The permit applicant seeks the following costs:

•

counsel's fees $22,705.00

•

planning consultant's fees $15,600.00

•

traffic engineer's fees $11,000.00

•

nature conservation consultant's fees $ 4,424.09

•

solicitor's fees $ 3,300.00

All these fees include GST. I find that these costs were incurred and, save for the solicitor's fees, have been paid.

43 I find that Mr Oglesby brought the proceeding primarily to secure an indirect commercial advantage, of a competitive kind. When he brought the proceeding Mr Oglesby was the director and a beneficiary of J Oglesby Investments Pty Ltd. In turn, that company was about to market residential lots, near to the subject land, when the application for review was initiated. Mr Oglesby knew that by making the application for review he would be delaying the subdivision of the subject land. An obvious inference in such circumstances is that the bringing of the application for review was designed to secure a commercial advantage, of a competitive character, to Mr Oglesby's company in the selling of residential lots.

44 The thesis contained in the previous paragraph is dependent upon the workings of a typical market. In such a market an increase in supply tends to depress price. Most markets operate this way. However Mr Oglesby claimed that the market for residential land at Paynesville was not typical and that the proposed subdivision would actually enhance the sale of lots developed by his company. I accept that in some markets additional supply can actually work in favour of all suppliers. An example might be the provision of restaurant services. If one restaurant sets up in a local area it may struggle to obtain business; whereas if ten restaurants set up in the local area they may all be successful. The explanation for this is that a multiplicity of restaurants, located near each other, creates a critical mass which attracts substantial custom as the local area becomes known as a restaurant precinct. This type of market tends to occur where customers seek to compare the offer of suppliers before buying; and where the number and choice of suppliers is an important factor in attracting consumers to the area. But I do not accept that this principle applies in the case of subdivided land at Paynesville. Rather I think it more likely that an additional supply of lots would have the effect of depressing the price of lots. Further I do not accept that Mr Oglesby believed this alternative market theory when he brought the application for review. Put simply, if Mr Oglesby thought the proposed subdivision would actually help his company's sales, it would be quite odd if he brought the proceeding nonetheless.

45 It is significant that the application for review simply restated objections which Mr Oglesby had made some 18 months earlier. There does not appear to have been any detailed scrutiny of the notice of decision to identify the extent to which the conditions on the permit to subdivide the subject land had addressed Mr Oglesby's objections. An application to review a decision to grant a permit is a serious step with consequences. One likely consequence is that the permit applicant is put to expense in resisting the application. It is irresponsible for an objector to apply to review a decision to grant a permit without first considering the council's decision, including examining conditions which have been included in the proposed permit. If Mr Oglesby had studied the notice of decision he would have noticed that condition 78 specifically addressed the issue of traffic management at the two intersections said to be of concern to him: namely where the main road crosses King Street and Ashley Street.

46 After the application for review was lodged it would appear that Mr Oglesby did little, if anything, to prepare for the hearing of the review. He stated in evidence that he proposed to consult a former senior planning officer of the local council. But he did not consult this person. Having regard to the fact that the hearing was scheduled two or three weeks after the date upon which the application was withdrawn I find it improbable that Mr Oglesby intended to consult the former planning officer at all. If Mr Oglesby had prepared for the hearing, and was in a position to advance legitimate planning matters, it may have been more difficult to infer that the proceeding was primarily brought for a commercial purpose. But as that was not the case the making of the inference is much easier.

47 In the light of these matters, I am not willing to accept Mr Oglesby's evidence that he was motivated to lodge the application for review because of his concerns as a local resident. Rather I infer that the primary motive for bringing the application for review was as a delaying tactic; that is, a delaying tactic for the purpose of obtaining a competitive commercial advantage in the sale of residential lots.

48 I would regard it as fair that Mr Oglesby pay Jenbrook's costs, on a solicitor/client basis, from the time the application for review was lodged until 16 June 2006, being the date when Jenbrook received advice in relation to the commercial nature of Mr Oglesby's objection. Further, I would regard it as fair that the quantum of these costs be calculated on a solicitor/client basis. I assess these costs to be $1,820 in relation to counsel's fees; and I assess the sum of $3,000 in relation to case management fees paid to Coomes Planning.

49 When it comes to the costs incurred by Jenbrook after 16 June 2006 the matter becomes more difficult. As I have found, it is understandable why Jenbrook decided not to apply to summarily dismiss Mr Oglesby's application. But I raise the question whether, shortly after 16 June 2006, Jenbrook should have put Mr Oglesby on notice of its concerns about the bona fides of his application for review and the possibility that he may be ultimately required to pay Jenbrook's costs. For the reasons that I will elaborate, this is a difficult issue.

50 From time to time solicitors acting for permit applicants have been known to forward intimidatory letters to objectors threatening the prospect that the objectors will have to pay costs. As the tribunal usually makes no order as to costs in this type of proceeding, this practice can be misleading. Of course any letter threatening the prospect of costs could be regarded as intimidatory. What makes this type of letter inappropriate is not that it is intimidatory, but that it has no legitimate basis. By contrast, if an application for review is vexatious or an abuse of process, it will be both appropriate and desirable for a warning to be sent to the party bringing the proceeding. The purpose of such a warning is to encourage a vexatious proceeding to be withdrawn, thus saving the responding parties costs. Further, if a warning letter is sent and the proceeding is not withdrawn the person bringing the vexatious proceeding can hardly complain if costs are then awarded against him or her.

51 It is regrettable that Jenbrook did not send a letter to Mr Oglesby shortly after 16 June 2006 - and before it incurred substantial costs - raising the concern about the bona fides of the application for review and, in particular, warning Mr Oglesby that Jenbrook was about to incur substantial costs in resisting the application for review. If such a letter had been sent I would have had no hesitation in ordering Mr Oglesby to pay all the costs incurred by Jenbrook; and I would have no hesitation in making such an order by reference to solicitor/client costs. The difficulty I face is that the warning letter was not sent until 17 August 2006; after very considerable costs were incurred.

52 I think a fair solution requires consideration of the conduct of both parties. I do not regard Jenbrook's failure to warn Mr Oglesby in June 2006 as a deliberate attempt to ambush Mr Oglesby. Rather I think it likely that in June 2006 Jenbrook, and its advisors, thought there may be difficulties in establishing that Mr Oglesby had brought the proceeding primarily to secure a commercial advantage; and that it changed its mind after Mr Southall inspected the subject land in late July 2006. Be this as it may, it is probable that Mr Oglesby did not realise that Jenbrook was incurring the level of costs that it did incur. In other words, it is probable that Mr Oglesby did not realise the financial impact that his actions had caused on Jenbrook and the Ah Yee family.

53 I think a fair outcome is one where Mr Oglesby should be required to pay a portion of Jenbrook's costs incurred after 16 June 2006, but that Jenbrook should be obliged to meet most of these costs itself. Such an outcome makes Mr Oglesby responsible for costs which he might have realised he was forcing Jenbrook to incur by his application for review (even though he was not warned), without imposing the full burden of Jenbrook's costs upon him.

54 Hence, in addition to the $4,820 which Mr Oglesby should pay in respect of the time to 16 June 2006, I propose that he also be required to pay one quarter of Jenbrook's solicitor client costs after 16 June 2006: that is, the sum of $13,052. Hence the order of the tribunal will be that Mr Oglesby pay to Jenbrook the sum of $17,872 in respect of costs.

[1] The council has informed the tribunal that it does not seek to take part in the present costs proceeding as it has no interest in advancing or resisting any claim.

[2] Collins v Shire of Nillumbik (Unreported, 1995/23263, per Deputy President Byard); Ram v Whitehorse City Council (1997) 19 AATR 281; Ritchies Stores Pty Ltd v Bass Coast Shire Council [2004] VCAT 2322; Woolworths Limited v Warrnambool City Council [2005] VCAT 1362; Seacrest Pty Ltd v Banyule City Council [2005] VCAT 1362; Lord Haven Pty Ltd v City of Greater Dandenong [2000] VCAT 1973.

[3] See, for example, Cabot v City of Keilor [1994] VicRp 14; [1994] 1 VR 220.

[4] In introducing the bill for the Planning and Environment (Amendment) Act 1993 - which was the amendment that first introduced provisions relating to proceedings brought primarily to secure or maintain a commercial advantage - the Minister for Planning observed that the power to consider significant economic effects of a development was not intended to mean that planning schemes may regulate commercial competition.

[5] See section 4 of the Planning and Environment Act 1987.

[6] Unreported, 1995/23263, per Deputy President Byard, quoted at length in Ram v Whitehorse City Council (1997) 19 AATR 281.

[7] The description of a hearing to consider an application to summarily dismiss a proceeding as a "directions hearing" is a misnomer. This is so notwithstanding this is the description which is commonly given to such a hearing, including by the tribunal.

Environment Act 1987

Oglesby v East Gippsland SC [2006] VCAT 2475

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Oglesby v East Gippsland SC [2006] VCAT 2475 (7 December 2006)

Parties

Legislation Cited (1)