Section 82 Planning and Environment Act 1987 - approval of two lot subdivisions - Melton Planning Scheme - Rural Zone

V & M Pace, G Hamm, J Dixon, E & A Koutroubas, Hurley Family, R Lee, L Aquilina, C De Bono, G & C Aquilina, M Vella, P & R Attard, A & J Cassar, Lowe Family, C Attard, C & M Magri, J & C Cilia, Kirkpatrick Family, S & V Kelemen, M & R Bugeja, J & K Peck, A & L Abela, A & P Magri, T Strang, J Pace, N Comley, J Darocha, A & A Straw, J & M Azzopardi, M Portelli, J & E Clarke, G Micallef, E Micallef, Snelgrove Family, K Altmann & Assoc., A Hedley & J Andrewartha, I & L Petkov,

993, 1865-1881, 972, 1008-1046, 1125, 1085, 1256, 951, 1247, 1124-1150 Mount Cottrell Road, Rockbank

153 Faulkners Road, Mount Cottrell, 718, 768 Leakes Road, Rockbank, 210 Paynes Road, Rockbank, 1013, 983, 289, 768 Greigs Road East, Mount Cottrell, 52-78, 59, 31, 108, 171 Alfred Road Melton South, 398, 430-458 Exford Road, Melton South, 3 Murray Road, Rockbank, 5, 8 Iramoo Circuit, Rockbank, 2608-2706, 2341, 1491-1521, Western Highway, Rockbank, 1757-1803 Gisborne-Melton Road, Kurunjang, 1138-1140, 1166-1190 Ryans Land, Melton, 379-429 Plumpton Road, Diggers Rest, 1287 Holden Road, Toolern Vale,

344-412 Balckhill Road, Toolern Vale, 1185-1281, 156, 1335-1395 Diggers Rest-Coimadai Road, Toolern Vale, 126-256 McCorkell Road, Toolern Vale, 655 Minns Road, Melton West

[2003] VCAT 1520

1. The applications for review P1807/2003, P1808/2003, P1810/2003, P1812/2003, P1813/2003, P1814/2003, P1815/2003, P1817/2003, P1881/2003, P1882/2003, P1883/2003, P1884/2003, P1886/2003, P1887/2003, P1888/2003, P1892/2003, P1893/2003, P1894/2003, P1895/2003, P1896/2003, P1897/2003, P1898/2003, P1899/2003, P1901/2003, P1907/2003, P1912/2003, P1914/2003, P2304/2003, P2308/2003, P2305/2003, P2306/2003, P2307/2003, P2308/2003, P2319/2003, P2320/2003, P2322/2003, P2323/2003, P2327/2003, P2329/2003 are dismissed pursuant to Section 75 Victorian Civil and Administrative Tribunal Act 1998.

2. The applications for review P1811/2003 and P1822/2003, are listed for a one day hearing on 8 December 2003 commencing at 10.00am at 55 King Street, Melbourne.

3. The applications for review P1900/2003 and P1908/2003 are listed for a one day hearing on 9 December 2003 commencing at 10.00am at 55 King Street, Melbourne.

5. Any application for costs must be filed and served on all parties to the application no later than 17 November 2003 such application must be in writing detailing the basis of the application and amount of costs sought.

6. Any response to an application for costs must be filed and served on all parties to the application no later than 8 December 2003.

7. A hearing in relation to the applications for costs is listed for one day on 19 December 2003 commencing at 10.00am at 55 King Street, Melbourne.

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For: Applicant for Review: Mr A Hooper QC of Counsel

For: Respondent/Objectors: Mr C Townshend of Counsel instructed by Mr I Lonie and Mr R Viney for numerous permit applicants

Mr E Koutroubos in person and on behalf of G & C Aquilina

1. Application was made pursuant to Section 75 Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) by the various Respondent/permit applicants for summary dismissal of the applications for review lodged by David Proctor. Included in the application pursuant to Section 75 VCAT Act, is also an application by E & A Koutroubas and G & C Aquilina against the applications for review of C & R Mifsud in P1811/2003 and P1822/2003. All of the matters are dealt with together for administrative convenience. The Tribunal recognises that each application is independent having its own set of facts.

2. In relation to applications P1900/2003 and P1908/2003 in which the applicant for review is Bailton Pty Ltd, there was no application for summary dismissal and those matters will be listed for hearing.

3. At various times in the first part of 2003, owners of properties generally in the south-eastern and north-eastern area of the Melton Shire and all located within the Rural Zone under the Melton Planning Scheme, applied to the Melton Shire Council ('the Responsible Authority') to subdivide their properties, generally into two lots and in accordance with the lot excision provisions under the zone. The applications were advertised to owners and occupiers of land surrounding the subject sites. In each case the Responsible Authority determined to grant a permit to allow the proposed subdivision.

4. Mr Proctor, although not an owner or occupier of any land surrounding any of the subject sites, and not having been notified in writing of the permit applications, lodged with the Responsible Authority, in relation to each permit application, a letter of objection. He has now lodged, with the exception of four instances, an application for review in relation to each permit application in which he had lodged a letter of objection. The four exceptions being, applications for review P1811/2003 and P1822/2003 in which C & R Mifsud, and applications for review P1900/2003 and P1908/2003 in which Bailton Pty Ltd, the owners of properties that adjoin the subject sites, have lodged applications for review. It is noted that in each of these latter applications, Mr Proctor or his company, New Zalia Pty Ltd is acting on behalf of each of the applicants for review.

5. The Respondent/permit applicants are requesting the Tribunal to summarily dismiss Mr Proctor's applications for review on the basis that they are an abuse of process, frivolous and vexatious, Mr Proctor not being a person who 'may be affected by the grant of a permit' such that an application for review should be entertained. In this respect Section 75 VCAT Act provides:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

6. Applications for permit are dealt with by the Responsible Authority under the provisions of the Planning and Environment Act 1987 (PE Act). Section 57 PE Act provides:

(1) Any person who may be affected by the grant of a permit may object to the grant of a permit.

(2) An objection must be made to the Responsible Authority in writing stating the reasons for the objection and stating how the objector would be affected by the grant of the permit.

7. Another issue that arises and will be required to be considered is in relation to the adequacy of the actual objections lodged by Mr Proctor. Section 57(2) requires an objection to state how 'the objector would be affected by the grant of the permit'. It was submitted that the objections to the Responsible Authority by Mr Proctor did not specify how he would be affected by the grant of the permit. Mr Proctor has now lodged additional information said to indicate how he would be affected, following a direction of the President of the Tribunal, Justice Morris on 5 September 2003. More will be said in relation to this issue latter.

8. The PE Act provides that if a person has lodged an objection in writing with the Responsible Authority then such a person may apply to the Tribunal for review of the decision in circumstances where the Responsible Authority indicates its intention to grant a permit. In this respect Section 82 PE Act provides:

(1) An objector may apply to the Tribunal for review of a decision of the responsible authority to grant a permit.

9. Section 42 VCAT Act recognises that the review jurisdiction of the Tribunal is jurisdiction conferred on the Tribunal by or under an enabling enactment. The PE Act is an enabling enactment. There is no question that Mr Proctor has a right to lodge an application for review with the Tribunal. The question for the Tribunal is whether his application for review is vexatious and should be summarily dismissed under Section 75 VCAT Act.

10. It is submitted that the application is vexatious, as Mr Protor is not a person that may be affected by the grant of the permit in respect of each application. The test that has previously been applied by the Tribunal in relation to what amounts to vexatious proceedings is that expressed in the decision of Attorney General v Wentworth [1988] 14 NSWLR 481, applied in: James W Sadler Pty Ltd v City of Keilor 6 AATR 200, Guiness Mahon Pty Ltd v Moonee Valley CC (1995) 15 AATR 176 and East Melbourne Group Inc v Melbourne City Council & Omiros Pty Ltd 2VPR 188.

It seems then that litigation may probably be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they brought;

2. they are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise;

3. they are also thought properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

12. It is the second of these tests that the Respondents rely upon, that is, that the application for review by Mr Protor is for collateral purposes. It is submitted the issues raised by Mr Proctor are issues that are aside from the main subject. It is said such issues arise from Mr Proctor's unsatisfactory dealings with the Melton Shire Council. In particular, in relation to the Shire's initial encouragement to persons to establish broiler farms in its Rural Zone and latter its movement away from this stance, and Mr Proctor's views about how particular policy in the Melton Planning Scheme should be applied. These issues, it was submitted are more appropriately raised in other forums, which may include the process of consideration of amendments to the planning scheme, as occurred when Mr Proctor made submissions to the recent Panel hearings in relation to Amendment C15 and the Rural Zones Review, not in consideration of particular applications for subdivision permits in various locations.

13. Ms Moles referred to the provisions of the Rural Zone under the Melton Planning Scheme, and to the State and Local Planning Policies required to be considered by the Responsible Authority in exercising the discretion given to it, to consider whether or not to grant a permit in each of the particular permit applications. She indicated, there was an officer recommendation to the Responsible Authority to seek the views of the Minister for Planning as to the appropriate approach to the applications, given, in particular the Government's Melbourne 2030 Policy and Rural Zones Review. The Responsible Authority did not follow this recommendation, preferring to exercise its discretion to indicate an intention to grant permits.

14. Mr Hooper also referred to a Department of Sustainability and Environment letter from Paul Jerome, General Manager, Planning, Land & Environment Regulation, dated 10 July 2003 to the Melton Shire Council, which he says demonstrates, the significance of the issues raised by Mr Proctor. To my mind this letter merely indicates the matters and processes the Responsible Authority is required to consider when exercising its discretion, matters that were referred to by the officer in his recommendation and nothing more. The letter merely refers to various provisions contained within the Planning Scheme and concludes by encouraging the Responsible Authority to consider applications in a strategic manner having regard to the relevant policies.

15. There was a view expressed that Mr Proctor's interest was only commercial and was therefore vexatious. Although the PE Act gives the Responsible Authority discretion under Section 57(2A) to reject an objection, if it considers it is made for a commercial advantage, this discretion is not passed to the Tribunal under this provision. The Tribunal notes that under Section 5 VCAT Act 'interest' is defined to mean 'interest of any kind and is not limited to proprietary, economic or financial'.

16. The Responsible Authority in this matter did not exercise its discretion under Section 57(2A) and reject Mr Proctor's objection. The Responsible Authority accepted the objection, which was the only objection in all but four of the applications and issued a notice of decision to grant a permit, instead of granting a permit, which it is entitled to do in instances where there are no objections.

17. As the Respondents submit that Mr Proctor is not a person who 'may be affected by the grant of the permit', I now turn to consider whether the letters of objection by Mr Proctor give any indication as to whether he may be affected. In Guiness Mahon the Tribunal considered the information contained in an affect statement may be relevant in cases where it is alleged that an objector has acted vexatiously or frivolously or for other ulterior motives.

18. It was submitted that the affect must be a direct affect as put by Nathan J in Murragong Nominees Pty Ltd v MMBW (1987) 4 PABR 73 in considering the meaning of a person affected, under the provisions of the PE Act:

A person affected "by the scheme" could be one whose financial or aesthetic interests or whose enjoyment of life is touched, whether beneficially or detrimentally, by the proposed scheme. It is wider in scope than the phrase used in section 18C [of the Town and Country Planning Act 1961] "other person aggrieved' as it encompasses those affected to their benefit or advantage, it is also narrower as it must include those upon whom a direct effect upon their interests has been wrought. The phrases must be interpreted in the light of the provision of the statute in which they are used...

If an enabling enactment provides that a person whose interests are affected by a decision may apply to the Tribunal for review of the decision -

(a) interest means interest of any kind and is not limited to proprietary, economic or financial interest;

(b) the person may apply to the Tribunal whether the person's interests are directly or indirectly affected by the decision and whether or not any other person's interests are also affected by the decision.

20. The letters of objection by Mr Proctor, forwarded to the Responsible Authority in relation to each application, were generally in the same form and did not allude to any specific fact in relation to the particular site which the application for permit related to.

21. The letters indicate the "application does not satisfy the proper and orderly planning requirements of the Planning and Environment Act 1987. Nor the requirements of the Melton Planning Scheme. The requirements of Melbourne 2030 must be addressed by the applicant and considered by the Shire".

22. Reference was made particularly to the Local Policy 21.01-3 (Rural Areas), highlighting the policy "recognizes a trend to 'more intensive agricultural uses such as poultry farming". Subdivision into even smaller lots reduces the possibility that such land can be used for genuine agricultural and farming uses - not just poultry farming". Other clauses of the relevant policy were referred to, stating "whether the site is in Toolern Vale Hills or Mt Kororoit Hills and Plans Land Use Area, rural residential and/rural living subdivisions and small lot excisions are to be discouraged". Finally the letter contains a paragraph under the heading "Sterilis[z]ation of land for genuine farming purposes".

23. My observation of the letter of objection is that it is couched in very general terms, makes observations, but does not indicate how the person may be affected by the grant of a permit in relation to the particular application that was being objected to. It does no more than refer to the matters referred to by the officer in his recommendation and by the Department's correspondence as matters required to be considered by the Responsible Authority in exercising its discretion.

24. Section 60(1)(a) PE Act provides that a Responsible Authority must consider all objections and other submissions. The Act does not give the Responsible Authority any guidance on how it should deal with objections or submissions, indicating only that it is mandatory to consider all. In undertaking the mandatory consideration, it is a matter of discretion for the decision-maker as to the weight it would put, particularly on an objection that did not clearly indicate how the person objecting 'may be affected'.

25. Justice Morris required Mr Proctor, to provide a further document "setting out how the applicant for review is affected by the grant of each permit". This additional document was filed with the Tribunal prior to this preliminary hearing. This additional document states: "as well as a general interest as a member of the public of Victoria, David Proctor has a special interest in proposed development and uses in the Rural Zone within the Shire of Melton". The document then provides additional information from that already provided in the letters of objection. The information falls into two categories, general and what Mr Proctor would consider to be his special interest.

26. The more general parts include: the proximity of the Melton Shire to broiler processing plants; good infrastructure; limited productive agricultural land; limited 'sensitive' dwellings; the provisions of Melbourne 2030 particularly in relation to the Green Wedge Zone; the size of the proposed subdivided lots and their ability to accommodated a dwelling, whether as of right or with a permit; the reduction in the size of the parent lot; the raising of the value of rural land and the expectation of 'repeat excisions'.

27. With respect to the special interest claimed by Mr Proctor, the document indicates 'In August 2000 Mr Proctor entered into a contract to purchase twelve hectares of land at 1173-1199 Beattys Road, Rockbank'. The document then indicates, this resulted in an application for a permit for a broiler farm. The Responsible Authority refused the application and on review, the Tribunal affirmed this decision.

28. The document also indicates that around the same time, that is in 2000, Mr Proctor was also involved in two broiler farm applications for clients, both were refused by the Responsible Authority, one refusal was affirmed by the Tribunal and one was granted a permit by the Tribunal. The permit that was granted is understood to relate to the property owned by C & R Mifsud, the applicants for review in P1811/2003 and P1822/2003.

29. The document also states: 'his interest in establishing a poultry farm in Melton Shire will be frustrated by approval of the subject excision applications, ... Mr Proctor has investigated other parts of Melton Shire with a view to the establishment of one or more broiler farms, ...on 10 September 2003 New Zalia Pty Ltd (David Proctor - consultant) prepared and lodged for a client a fresh broiler farm permit application for a Troups Road South, Mt Cottrell property, ... Mr Proctor is interested in proposing poultry developments within the shire'.

30. Mr Hooper emphasised, Mr Proctor had a clear intent to establish a broiler farm in the Rural Zone in the Melton Shire, he is he stated, a potential purchaser of land in the Shire to enable him to establish a broiler farm. It was also submitted this intent has been frustrated to a certain extent, by prolonged Court proceedings that related to the broiler farm permit for the Mifsud property and by the Panel considerations of proposed Amendment C15 to the Melton Planning Scheme, which has since been abandoned.

31. The Respondents submitted, a mere intention was not sufficient and did not give Mr Proctor a special interest over and above what any other member of the public may have. In this respect they submitted, he does not have an interest which is directly affected: he does not live or own property in the vicinity of any of the applications or within the Melton Shire; he does not claim any direct impact from any particular application for review; he has no aesthetic or cultural connection with the land; he has attempted in the past to obtain a permit for, and establish a broiler farm, but he was not successful; he has acted as a consultant for other parties seeking permit applications, but claims no agency where the principal's interest is directly affected; he has no recognised public duty, nor does he represent a group of citizens.

32. Mr Hooper submitted the widest possible meaning should be given to the term 'may be affected' and that it should include any person whose interest could potentially be affected, in this case Mr Proctor, the potential purchaser of land in the Rural Zone.

33. Mr Hooper contended, the PE Act involved a process of participation and involvement and depending on the circumstances of each case the range of interests of a person affected was generally unlimited. Whilst the PE Act required notice of applications to be given to certain persons (Section 52 PE Act), the Act did not shut out other persons, who 'may be affected', from objecting. It was his contention, that it was therefore sufficient for the person to qualify, if affected in some way.

34. The objectives of planning in Victoria and the planning framework established by the PE Act as set out in Section 4 were referred to. In relation to planning generally in Victoria the objectives include 'to provide for the fair orderly, economic and sustainable use, and development of land; to balance the present and future interests of all Victorians'. In relation to the planning framework established under the PE Act the objectives include 'to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making; to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice'.

35. When viewed overall the PE Act provides for wide public participation in relation to planning scheme amendments and the ability for 'any person' to apply for an enforcement order to ensure compliance with a planning scheme or permit.

36. To my mind, the Act draws a distinction between wider public participation acknowledged in some areas and narrower situations in other areas particularly in its use of such terms as 'a person who is substantially or materially affected by a failure' may refer a matter to the Tribunal (Section 39), 'a person who may be affected may object' (Section 57) and 'any person who is affected may apply to the Tribunal for leave' (Section 82B).

37. This can be compared to the conclusions reached by the Tribunal in Brambles Australia Ltd v Environment Protection Authority & Ors (2000) 4 VPR 175 that the meaning of the words "a person whose interests are affected" had the same meaning in Section 33B Environment Protection Act 1970 as Section 5 VCAT Act, which was a wide meaning. The Tribunal recognised that the Environment Protection legislation was for the public benefit overall and applications were given wide public notification. The PE Act has not been amended as was the Environment Protection Act to include the similar phrase, although it can be considered as did Nathan J in Murragong, that the phrase "person interest" is similar if not synonymous with the phrase 'person affected".

38. I would therefore consider that the affect on a person for the purposes of the PE Act can be direct or indirect as referred to in Section 5(b) VCAT Act.

39. I do not disagree with Mr Hooper's contention that the PE Act includes a process of participation and involvement, but I consider the participation in relation to a permit application falls not within the wider public participation contemplated by the Act but rather in the narrower sense. A class of person who may be affected could therefore be quiet wide particularly if the affect is either direct or indirect but it is questionable as to whether the width in the circumstances of this case can be stretched to the point that would apply to Mr Proctor. As stated in Guiness Mahon it will depend on the circumstances of the case:

Whether an objector can convincingly claim to be affected will depend upon the circumstances of the case, it is not just a question of having a house near the appeal site. An application for permission to erect a garage on a backyard residential boundary might be reasonably said to affect only those in the immediate locality. A proposal that will have a dramatic affect on the amenity of the central trading area of a country town, or some principal feature in such a town, might affect all those who live, work or own property in that town. Some proposals have regional or even statewide significance. I do not wish to create a fashion for interstate objections but a proposal that would seriously impair the appearance and integrity of the Sydney Harbour Bridge or the Sydney Opera House or Uluru (Ayers rock) would, I think, legitimately excite the interest of all Australians.

40. I do not consider that Mr Proctor in his letters of objection to the Responsible Authority has shown how he may be affected. However, when a matter comes before the Tribunal such a deficiency may be cured, either by disregarding the deficiency or by providing details by way of remedy and in this respect I rely on the decisions in Leonora Group (Wonthaggi) Pty Ltd and Another v Bass Coast SC [2003] VCAT 233 (21 March 2003), Guinness Mahon Pty Ltd v Moonee Valley CC & SJB Planning Pty Ltd (1995) 15 AATR 176, East Melbourne Group Inc. v Melbourne CC & Omiros (1999) 2 VPR 188, STY Building Supplies (Shepparton) Pty Ltd v Greater Shepparton CC & Peps Plans Pty Ltd (2000) 5 VPR 246.

41. I am unable to conclude from the document lodged with the Tribunal that Mr Proctor is a person who 'may be affected by the grant of the permit'. I am unable to reach the conclusion that the intention to grant permits will have any direct or indirect affect on Mr Proctor. Each permit application deals with a particular site located in various locations, each has its own individual set of facts as in the case of Mr Strang who is subdividing to enable two existing dwellings to be placed on separate titles. The class of person 'who may be affected' either directly or indirectly, is therefore likely in such circumstances to be extremely limited. It is not considered that the class of person likely to be affected would extend to a person who does not live or own property within the municipality.

42. There is no relationship in either the letter of objection to the Responsible Authority or in the document filed with the Tribunal that indicates in relation to a specific subject site how the proposal to subdivide in relation to that site may affect Mr Proctor. There are generalised references to the likely increase in dwellings but it is also acknowledged that in a number of instances further permit applications would be required. In each such instance the Responsible Authority would be called upon as it has in the present matters to exercise its discretion. It was noted a number of the lots to be excised already have existing dwellings.

43. In Mr Proctor's situation merely having an intention, no matter how strong that intention may be, for the person that has the intention, to purchase land in the Rural Zone of the Melton Shire, is not sufficient to indicate that person may by affected by the grant of a particular permit within that zone. Raising issues of the reduction in the size of the parent lot, the possibility of applications for other dwellings, the potential impact on a broiler farm may all have a direct or indirect affect on a particular person but I am unable to conclude that there will be such an affect either directly or indirectly on Mr Proctor who does not own any property in the vicinity of any of the applications and can only state that he has an intent to purchase property.

44. I am unable to conclude that having also made attempts in the past to attain one's intention gives Mr Proctor a special interest that is over and above the interest that any other member of the general community may have who has attempted to purchase a property in a particular area in which they may desire to live or work. I consider Mr Proctor's intent is nothing more than a desire or wish that may or may not be fulfilled at some point in time. Whilst he may have an intent to establish a broiler farm, this was nothing more than a desire or wish that was so indirect as to have no interest or in any way be affected by the applications.

45. That Mr Proctor has acted, and may still act, for persons who own property in the area, as a consultant, does not in my view elevate his status to one that would be attributed to a principal not a mere agent. The special interest said to be shown by Mr Proctor would fall into the category of what was referred to as "mere intellectual or emotional concern": Australian Conservation Foundation Inc v Commonwealth of Australia and Others [1980] 146 CLR at 493 Gibbs J:

I would not deny that a person might have a special interest in a preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage other than a sense of grievance ort a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law should be prevented does not suffice to give it possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring action could maintain it.

46. I also refer to the statement of the majority of the High Court in Peter Allan v Transurban City Link Limited [2001] HCA 58:

The "expression 'affected by' and cognate terms appear in a range of laws..."

In Re McHattan and Collector of Customs (New South Wales) Brennan J stated that "[a]cross the pool of sundry interest, the ripples of affection may widely extend". However as Davies J pointed out in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd, Brennan J "did not propose that any ripple of affection would be sufficient to support an interest". A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting the criteria specific in that statute". (Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 at 266)

47. I therefore do not consider that the document lodged with the Tribunal indicates how Mr Proctor may be affected either directly or indirectly. Having concluded that the class of persons who may be affected by the particular permit applications are likely to be limited and having concluded that Mr Proctor's special interest amounts to nothing more that a desire this leads me to the conclusion that Mr Proctor's applications for review are vexatious, having been brought for a collateral purpose, that is to say a purpose other than consideration of the particular issues that relate to each individual application.

48. The applications for summary dismissal of the applications for review brought by Mr Proctor are granted.

49. I turn now to the applications for summary dismissal by Mr Koutroubas and Mr Aquilina against the applications for review brought by C & R Mifsud. The Mifsud's property adjoins the properties of both Mr Koutroubos and Mr Aquilina. Mr Koutroubas contended that the applications were vexatious but in doing so referred mainly to the relationship with Mr Proctor and the circumstances of the granting of a permit for a broiler farm at the Mifsud property. The Tribunal noted that Mr Proctor had lodged an objection with the Responsible Authority in relation to both applications but had not lodged an application for review.

50. It was the view of the Tribunal that it is not unreasonable for the Mifsuds to lodge an application for review given the close proximity of their property to both applications. In such circumstances it is contemplated the Mifsud's could be affected either directly or indirectly. They raise planning issues in relation to their broiler farm permit and the subdivision of the nearby land. Although the arguments may be considered weak, particularly by the Respondents, I do not consider they fall within the category of obviously, manifestly and utterly groundless It is therefore appropriate that the issues are considered on their planning merits at a hearing. Nor was there anything put by Mr Koutroubos that lead the Tribunal to conclude that these applications were vexatious, particularly if the tests in Wentworth are considered. The applications for summary dismissal of the applications for review by C & R Mifsud are refused. Both applications will be listed for hearing.

51. Applications for costs were made by the applicants for review, in relation to P1811/2003, P1822/2003, P1900/2003 and P1908/2003. No submissions in relation to the question of costs was made, although Mr Townshend strongly objected to any applications for costs in relation to P1900/2003 and P1908/2003 submitting the applicants for review had been notified that there would be no application for summary dismissal in relation to theses matters and noting Mr Hooper was already present in relation to the other matters.

52. The Respondents/permit applicants also indicated they wished to make an application for costs. The Tribunal reserves any application for costs such matters to be dealt with separately and following directions.

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