1 This directions hearing was convened at short notice following a late request from Trumbull Szanto Lawyers acting on behalf of Gayle and Douglas Pottenger who sought the proceeding listed for 31 January 2007 be adjourned so that the Tribunal could deal with an allegation that the premises do not enjoy existing use rights. Ms Leshinsky tabled a submission on behalf of her client alleging that the premises do not enjoy existing use rights pursuant to clause 63.01 of the planning scheme for a function centre and sought to table proof of this. She requested that VCAT refer the matter to a hearing seeking a declaration pursuant to section 149B of the Planning and Environment Act.

2 It is noted there has been no application lodged with the Tribunal under section 149B concerning existing use rights of the premises. Further the Pottenger's have not sought to add to their statement of grounds.

3 In opposing the adjournment request Mr Jones argued that this was an abuse of process and referred to previous attempts by the Pottengers to prevent the use from operating firstly in an earlier hearing before Justice Morris in 2003 and then in a matter before myself in a hearing in 2005. In each occasion the applicants did not pursue a section 149B application.

4 Ms Leshinsky and Ms Rosen explained that they had not intended to cause unreasonable delays in the proceeding and that they considered they only had recent or sufficient evidence to demonstrate the loss of existing use rights.

5 Mr McIlwraith opposed the adjournment and expressed some sympathy for the permit applicant although he did not express opposition on the basis of abuse of process. He claimed the applicants for review face significant hurdles in demonstrating the lack of existing use rights. He argued that the trigger for a permit in this case is not related to the use but rather to the zone provisions. He claimed there would be a delay in consideration of the relevant provisions in this matter.

6 At this point in time I consider there is no need to adjourn the merits hearing until some time in the future when the Pottenger's may or may not lodge an application under section 149(B). If the Pottenger's wish to add to their grounds then they need to be expeditious about it. But whether the premises enjoy existing use rights as a function centre or a restaurant or some other use can be determined after an application is lodged. As the application relates to buildings and works there seems insufficient reason to delay the normal consideration of the merits application

7 During the hearing I expressed concern about the lack of warning to the other parties about this issue and the method in contacting parties at a late hour in the proceeding. This was a fairly straightforward planning application involving buildings and works. The Responsible Authority had intended to be represented by one of its planning officers, the respondent was to be represented by a planning consultant however owning to the manner in which this legal issue was raised the Responsible Authority and the Respondent felt it important enough to engage a legal representation from experienced planning lawyers to represent them at this hearing.

8 I was also concerned that there has not been an application lodged pursuant to section 149B lodged despite this matter being alluded to in my previous decision in June 2005. The documentation tabled by Ms Leshinsky referred to events between 2003 to September 2006 and yet nobody had taken the time to contact other parties and add to the statement of grounds concerning this existing use issue. In addition Ms Leshinsky and Ms Rosen were not prepared sufficiently to argue their case today and given the amount of time taken dealing with this issue there was not sufficient time to hear the planning merits of this application. Accordingly I adjourned this merits application to a full hearing date on 14 February 2007 which is the earliest time available at the Tribunal.

9 Mr Jones sought costs relating to the time spent whilst involving in this matter. These costs amounted to $1100 and he requested it be paid within 30 days. Mr McIlwraith did not have any instructions concerning costs therefore sought his costs application be reserved.

10 I subsequently awarded costs against the Applicants pursuant to section 109(3) (a) (iv) as the applicants have caused an adjournment.

11 It is acknowledged that under section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 that each party is to bear their own costs in the proceeding. However in this case an adjournment was required concerning a fairly straightforward planning matter and it resulted in the need to have a Directions Hearing to deal with a desire to have the matter considered under section 149(B) of the Planning and Environment Act.

12 A Presidential member must consider application sunder section 149(B) of the act but at this stage no such application has been lodged with the Tribunal. There was no indication when such application will be lodged.

13 I consider that most of the matters raised today should have been raised at a much earlier time in the proceeding. The applicants for review had engaged legal and planning representation of some sort as early as 11 or 12 December 2007 and yet there was no effort made until just prior to the hearing to alert any party to this issue let alone produce documentation which the applicants could respond to. This has led to a need for an adjournment of the merits hearing.

14 For the above mentioned reasons the application hearing is adjourned to 14 February 2007 with Mr Jones' costs for the half day hearing to be paid by the applicants for review within 30 days. The Responsible Authority may apply for costs arising out of this adjournment.