1. The decision of the Responsible Authority dated 27 July 1999 is set aside. The Tribunal directs no permit is to issue.

2. The application for costs pursuant to Section 109 Victorian Civil and Administrative Tribunal Act 1998 is refused.

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For the Applicants for Review: Mr A Hooper QC and Mr J Nixon of Counsel on behalf of Mr B Rumpf

Mr J Nixon of Counsel on behalf of Port Phillip Conservation Council Inc.

Mr J D'Helin on behalf of McCrae Residents & Friends Group

For the Responsible Authority: Mr P Barber, Deacons Lawyers

For the Respondent/Permit Applicants: Mr M Townsend and Ms G Hubble of Counsel, instructed by Allens Arthur Robinson on behalf of the Rosebud Lifesaving Club.

1. This is an application for costs pursuant to Section 109 Victorian Civil and Administrative Tribunal Act 1998. This application arose on the first day of the return hearing of an application for review following the setting aside of a decision of the Tribunal by the Supreme Court on 8 August 2000 and the remittance of the application for review to the Tribunal against the decision of the Responsible Authority to grant a permit for the development and use of a patrol base and associated works for the Rosebud and District Life Saving Club on the McCrae Foreshore at McCrae.

2. At the commencement of the hearing the Tribunal was informed that on the preceding day, 16 July 2001 a notice had been placed in a special edition of the Victorian Government Gazette No S 109 approving by the Minister for Planning Amendment C30 to the Mornington Peninsula Planning Scheme. The amendment allowed for the use and development of land on the McCrae Foreshore, McCrae for a permanent patrol base and associated works for the Rosebud and District Life Saving Club. The Gazettal notice stated the amendment comes into operation on the date this notice is published in the Government Gazette.

3. The amendment in effect resulted in the hearing before the Tribunal being superfluous as the use and development the subject of the application for review was now permitted under the Mornington Peninsula Planning Scheme and no permit was necessary. Accordingly the Tribunal allowed the application for review and directed in the circumstances that no permit was to issue.

4. Following the determination of the Tribunal with regard to the application for review Mr Hooper QC, Mr Nixon, Ms Parkinson and Mr D'Helin sought an order for costs against the Rosebud and District Life Saving Club pursuant to section 109 VCAT Act.

5. Mr Hooper QC submitted that the matter had been set down for a 7 day hearing and as a result a number of people had made extensive arrangements to ensure they were properly represented at the hearing. A considerable amount of time had been allocated to the preparation for the case by the parties' representatives. He advised that the matter had been heard and remitted by the Supreme Court in August 2000. He indicated the Life Saving Club had approached the Minister for Planning regarding an amendment to the planning scheme and there had been an amendment by the Minister for Planning in December 2000 in relation to allowing the Life Saving Club to place shipping containers on the foreshore over the summer period. Although the applicants for review had not been consulted with regard to this amendment they understood that this was just for the interim and the Minister's view was that the application for review should be dealt with on its merits by the Tribunal and there would be no amendment.

6. Mr Hooper QC submitted that even at the directions hearing in relation to the conduct of the matter in April 2001 there had been no mention by the Rosebud Life Saving Club that it was attempting to obtain a ministerial amendment to the planning scheme. Further the matter had gone to mediation on 15 June 2001 but with no resolution. At all times he submitted the Life Saving Club had not indicated its true intentions and as a result an amendment was gazetted the day prior to commencement of the allocated hearing date without any notice or indication that this could even be considered to any of the parties. In his view this amounted to the Life Saving Club conducting the proceedings in a vexatious manner and deceiving the parties resulting in the parties having expended considerable time in preparation that was now obsolete. He submitted that the parties applying for costs should be awarded their costs thrown away by reason of the failure to notify the other parties from the first day the application was made to the Minister .

7. Mr Nixon endorsed and adopted the submissions made by Mr Hooper as did Ms Parkinson and Mr D'Helin. These persons indicated they were not informed of the gazettal until late into the evening of the 16 July at which time they had all but completed their preparations for the hearing to commence the next day.

8. Mr Townsend submitted that it was unreasonable to award costs against the Life Saving Club who he stated had acted impeccably at all times. The Club had not caused an adjournment. It was in the same position as the other parties as submissions and evidence had been prepared and it was ready to proceed. He advised that although some members of the Life Saving Club had had a meeting with the Minister for Sport a week prior to the hearing date there had been no indication that the Minister for Planning would grant an amendment. They understood that the Minister for Planning had on at least two previous occasions when they had made requests refused such requests and they were ever hopeful, but not confident, that that position would change.

9. Mr Townsend submitted that the Life Saving Club had not been informed that on the prior Friday the 13 July 2001 the Amendment C30 had been approved by the Minister and that they had only been informed at approximately 3pm on the Monday 16 July 2001 of the gazettal of the amendment. It was immediately after this notification Mr Townsend stated that he and his instructing solicitors and clients met to discuss the implications of the amendment and to advise the other parties which they proceeded to do.

10. Pursuant to Section 109 VCAT Act each party is to bear their own costs in the proceeding. The Tribunal however has power to award costs if it is satisfied that it is fair to do so having regard to a number of matters referred to in particular in Section 109(3)(a), which refers to whether a party has conducted the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as submitted by Mr Hooper QC attempting to deceive another party or the Tribunal or vexatiously conducting the proceeding.

11. There has in the Tribunal's view been nothing deceptive in the conduct by the Life Saving Club. They have not notified any parties of the amendment because they were not aware the amendment was to occur. Even if they had been supremely hopeful that an amendment would occur by notifying the other parties that they were only hopeful would not have resulted in those parties acting any differently to the way they have acted. Until such time as the amendment was gazetted it had no force or effect therefore the other parties could not be sure that it would be gazetted and would have still prepared for the hearing. The other parties were aware that there had been previous occasions when the Life Saving Club had sought a ministerial amendment. They were not mislead in this regard. Mr Hooper QC had indicated that if they had been aware of a request to the Minister he would have requested an adjournment. Even with this knowledge from earlier occasions they still proceeded to prepare, attend directions hearings, allow the matter to be set down for hearing and attend a mediation. It was unlikely that the mere knowledge that the Life Saving Club were again seeking a ministerial amendment would have resulted in an adjournment request, they had not occurred previously. It was certainly outside the control of the Life Saving Club that on this particular occasion the Minister decided to approve the amendment. This does not amount to deceptive conduct by the Life Saving Club.

12. Nor in the Tribunal's view has the Life Saving Club vexatiously conducted the proceedings that is causing annoyance or instituting proceedings without foundation. As they were not aware until the day prior to the hearing when they informed all other parties that the amendment had been gazetted it could not be said that they allowed the proceedings without foundation. It would appear to be the Minister and not the Life Saving Club that has caused annoyance. The Life Saving Club has at all times acted as any other party by preparing for the hearing. It cannot be considered vexatious conduct to not have second guessed what a third person namely the Minister for Planning may or may not have done regarding the amendment. If considered on the experience the Life Saving Club it had already been exposed to in being twice refused by the Minister then it is not unreasonable that the Life Saving Club was not holding out any expectation of an amendment.

13. The Tribunal is not satisfied that in the circumstances it would be fair to award costs against the Life Saving Club. All parties including the Life Saving Club having equally been required as any party does in proceedings to prepare for the hearing of the matter. There has been no circumstances caused by the Life Saving Club which has resulted in the other parties being put to any costs that they would not have otherwise been required to bear in the circumstances of a matter before the Tribunal.

14. For the above reasons the Tribunal refuses the application for costs pursuant to Section 109 VCAT Act.

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