RESPONSIBLE AUTHORITY: Moonee Valley City Council

DATES OF HEARING: 5 September & 8 December 2000 and

Rectangle of land with a frontage of 11.89m to the western side of Union Road, a depth of 48.77m and an area of 580m2. The land has a rear abutment to a 4m wide laneway.

A. This review is allowed and a permit is granted for the use and development of the land for a shop and nine dwellings in accordance with the endorsed plans hereinafter provided for and subject to the following conditions:-

1. Before the use or development begin, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will form part of this permit. The plans must be drawn to scale with dimensions and three copies must be provided and they must be in accordance with the modified (as compared with those submitted with the application) plans drawn by Anthony G. & Associates Pty Ltd marked "Proposed Residential Develop. Town Planning Plans S & R Property 127-129 Union Road, Ascot Vale, Revision A-30-10-2K, Drawings VCAT 01 to 04.

Once approved these plans become the endorsed plans of this permit.

2. The layout of the site and the size, design and location of the buildings and works permitted must accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

3. All piping and ducting above the ground floor storey of the building must be concealed.

4. The site is to be so ordered and maintained so it will not prejudicially affect the amenity of the locality by reason of appearance.

5. The discharge of water from the property must be controlled around its limits to prevent any discharge onto any adjacent property or streets other than by means of an underground pipe drain discharging to an approved outlet in a street or underground pipe drain.

6. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan must:

(a) be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby permitted;

(b) thereafter be maintained to the satisfaction of the Responsible Authority;

(c) be made available for such use at all times and not used for any other purpose;

(d) be properly formed to such levels that it can be used in accordance with the endorsed plan;

(e) be drained and sealed with an all weather seal coat to the satisfaction of the Responsible Authority.

7. A concrete vehicular crossing must be constructed to suit the proposed driveway to the satisfaction of the Responsible Authority and the vehicle crossing to Union Road that is no longer required must be removed and the land, footpath and kerb and channel must be replaced all to the satisfaction of the Responsible Authority.

8. The existing street tree must not be removed or damaged during construction.

9. This permit will expire if one of the following circumstances applies:

(a) The development and use is not commenced within four (4) years from the date of issue of this permit.

(b) The development is not completed within six (6) years from the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

B. The Respondent/Objector Frank Sagaria is ordered to pay the Applicant $500.00 costs in relation to the hearing on the 19 February 2001 and there is no other order as to costs.

Ms Natalie Calleja of the City of Moonee Valley, appeared for the Responsible Authority.

Mr A Nicholson, solicitor of the firm of Wilson Potter Nicholson, solicitors, appeared for the Applicant.

Application under s.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision to refuse to grant a permit.

Mixed use development to contain a shop and nine residential apartments.

Business 1 Zone under the Moonee Valley Planning Scheme.

1. The proposal would have a detrimental economic impact on the shopping area in the closure of the motor repair business currently on the site.

1. The grant or refusal of a permit would not have any impact on the operation or otherwise of the motor repair business currently on the site.

2. The existence or otherwise of any motor repair business is a contractual matter between the owner and the present tenant (operator of the motor repair business). As such the existence or otherwise of such an operation at the site is an irrelevant factor in any determination of the application for permit.

3. The Responsible Authority failed to have regard to section 57(2A) of the Planning and Environment Act 1987 and proceeded to refuse the permit substantially on the basis of protecting a commercial advantage for the principal objector (being the operator of the motor repair business).

(c) consistent with amenity considerations applicable to the site and its surrounds;

(d) accords with the purpose of the Business 1 zone in which it is situated and the objectives of the Moonee Valley Planning Scheme; and

(e) supports the orderly and proper planning of the Union Road shopping precinct.

5. The proposed development will have no detrimental economic impact on the shopping area to the extent that economic considerations impact on considerations relevant to the planning process.

1. The main hearing in relation to these proceedings was conducted on the 5 September 2000. An interim determination was given, together with written reasons, in a document dated 5 October 2000. That document set out the nature of the proposal and gave reasons why, in most respects, it was considered to be appropriate and suitable for the grant of a permit. However, the document also set out what are conceived to be a significant shortcoming in the proposal and several improvements suggested by Mr Robert Kelderman, a town planner who gave evidence on behalf of the Applicant. The upshot was that, for reasons there given, the application was adjourned to a date to be fixed. This was to give the applicant an opportunity to indicate whether it wished to take up the opportunity of presenting and having considered modified plans for the proposal to take in Mr Kelderman's suggestions and to overcome my concern about the proposal as originally considered.

2. My concern was with access to the basement carpark being provided from Union Road at the front of the premises, across the Union Road footpath, down a concrete vehicle ramp, under a large roller door and so into the basement carpark.

3. This would constitute an ugly and inconvenient intrusion onto Union Road and to the streetscape along its western side. It also greatly constrains the size, not to say the appearance of the proposed shop to be located on the Union Road frontage. It would be inconvenient and unsatisfactory in other ways.

4. It appeared that a much more satisfactory arrangement would be to have vehicle access to the basement carpark via a rear laneway that passes across the western frontage of the site to the eastern side of that lane. The lane was described in the document of the 5 October 2000 as being in the order of 4m in width. Attempts to scale the width of the lane during the hearing on the 19 February 2001 suggested a width in the order of 3.6m. It is certainly wider than the "standard" 10 foot rear lane.

5. Mr Kelderman suggestions concerned the seven dwellings proposed to run down the length of the allotment above the level of the basement and from the rear of the shop to the rear lane. These dwellings were to be of two levels and Mr Kelderman had suggested the elimination of a study, in each case, and its replacement with an open north facing balcony at first floor level. I accepted that this was a good idea.

6. His other suggestion was in relation to the rear wall of the proposed building, which would be the western wall of Unit 1 facing onto the rear laneway. Instead of a blank wall Mr Kelderman had produced a sketch plan indicating a reduced wall with an opaque window for the central portion and with articulation in the form of setbacks on either side. The setback at first floor level to the south would be to a window and on the north to a more distant window behind a balcony. Again I indicated that I considered this to be a good idea and an improvement on the original proposal.

7. I might say that the merits of Mr Kelderman's suggestions and mine in relation to rear vehicle access to the basement carpark were discussed in some detail in the course of the hearing on the 5 September 2000. Mr Sagaria participated in that hearing.

8. I indicated in my written reasons that I was unwilling to simply impose these three suggested modifications by way of conditions. I was concerned that the owners and occupiers of adjoining properties (not including Mr Sagaria who was present at the hearing) had considered a proposal that did not include those modifications. I thought it fair and appropriate that they should have an opportunity of considering the modifications and making submissions in relation to them if they saw fit. Although no significant problems with any of the suggestions were apparent at hearing, I was concerned that there may be problems or objections that have not been apparent.

9. Thus directions were given for the Applicant to indicate if it wished to submit amended plans. It was also foreshadowed that a Directions hearing would be needed, and further directions would need to be given to ensure that the owners and occupiers of adjoining or opposite properties that might be affected by the modifications should have notice of them and an opportunity to indicate whether they wished to be heard.

10. Subsequently, on the 8 December 2000, a Directions hearing was conducted. That was because the Applicant had indicated a wish to submit amended plans and had prepared such plans accordingly. Mr Nicholson and Mr Terry Montebello of the firm of Maddock Lonie & Chisholm, solicitors who had appeared for the Applicant and the Responsible Authority respectively were present at the Directions hearing. So was Mr Sagaria.

11. At that hearing directions were given for service of notice on others who might be concerned. Copies of the amended plans were also provided to the original parties. A date for a further hearing was arranged. The date obtained was the 19 February 2001. However, it was anticipated that this hearing might be vacated if no one responded to the further notice indicating, by filing Statement of Grounds, that they wished to be heard in relation to the modifications.

12. This was all directed to the possible new parties, and not to Mr Sagaria who had been present at all hearings and heard in relation to the suggested modifications. Nevertheless, copies of the amended plans were provided to him, together with a pro forma for Statement of Grounds, in case, on studying the actual plans for reflecting the suggested modifications there were new aspects that had not been anticipated when the modifications had been discussed in the absence of plans.

13. I notice, on re-reading the reasons given following the hearing of the 5 September 2000, that it was noted that the rear access idea was not necessarily ideal from all points of view but nevertheless appeared to be a significant improvement on the original proposal.

14. In the event further notice was given but no new parties came forward.

15. However, Mr Sagaria saw fit to lodge a Statement of Grounds which set out the following:-

INCREASE IN HEIGHT INAPPROPRIATE AS PROP0SED BUILDING IS ALREADY EXCESSIVELY BULKY 2(b).

16. The above amount to three propositions. Mr Sagaria was heard in relation to each of them.

17. The first was that the rear access was inappropriate. As to this he referred to the width of the lane and the fact that there would be a blind corner for vehicles emerging from the basement carpark.

18. There was nothing new in either of these suggestions. The width of the rear lane, as it exists on the ground, has remained constant. Although the actual rear vehicle door had not been designed at the time of the hearing of the 5 September 2000, it can hardly be surprising that it was to be set into a wall built to the rear, that is to say the western, boundary of the land.

19. As against this, cars would emerge at the level of the lane or at a level differing from that of the lane by only an insignificant amount. The lane itself is wider than a normal back lane and the plans clearly show a wide opening in the order of 5m. Also the whole design of the basement carpark is such as to allow vehicles to emerge moving in a forward direction. Furthermore, the circumstances of the lane and the developments, proposed and existing, on either side of it are such as to compel relatively slow movement in a lane reasonably expected to carry only low levels of traffic.

20. Mr Sagaria's assertion that the access arrangements would be unsafe are not supported by any credible arguments. The Responsible Authority, which has access to its own traffic engineers, made no such criticisms. In fact Ms Calleja, who appeared for the Responsible Authority on the 19 February 2001, said that the Responsible Authority had no concerns about the modified plans presented, and regarded them as far superior to the original proposal. I think that last comment is justified.

21. So far as Mr Sagaria's second new ground is concerned, it immediately became apparent that he had not carefully considered the new plans before lodging his Statement of Grounds and thus provoking the otherwise unnecessary hearing on the 19 February 2001. His references to "2(a)", "2(b)" and "2(d)" turn out to be references to a covering letter of the Applicant's solicitors sent with the modified plans. The letter was to, and did, set out in written form a list of the modifications made in the modified plans, as compared with the original application plans. Mr Sagaria apparently contented himself with looking down the list and picking off three items, either without referring to the plans or without considering them properly.

22. His second proposition about the height being inappropriate was based on item 2(b) in the letter referring to an increase in height in the order of 500mm to accommodate overhead clearance for the vehicle entrance being placed in the rear wall.

23. Mr Sagaria's complaints that the proposal was too bulky and an overdevelopment of the site generally were considered and dismissed in the reasons given following the hearing of the 5 September 2000. When it was pointed out to him, in the course of the hearing on the 19 February 2001, that the increase in height was in the order of 0.5m (or 18 - 20 inches in imperial measures) he readily and immediately conceded that this was too small, having regard to the overall height and scale of the building, to be a concern.

24. So far as his third point is concerned, Mr Sagaria was unable to explain at the hearing of the 19 February 2001 what he had in mind. It was just that he had picked the item of the covering letter which referred to the Kelderman suggestion made at the 5 September 2000 hearing and illustrated then with a sketch plan, which suggestion was discussed at that time and approved in the reasons dated 5 October 2000.

25. Thus it was found that there was nothing new and nothing of substance in Mr Sagaria's further statement of grounds, or in the submissions he made on the 19 February 2001. As none of the potential parties for whom provision in the directions were being made had given a statement of grounds or sought to be heard or sought a hearing such as the one conducted on the 19 February 2001, and in view of the merit of the original proposal as discussed in the document of the 5 October 2000 and the merit of the proposed amendments discussed there and approved by the Responsible Authority, I indicated that I would allow the review and grant a permit incorporating plans showing those modifications.

26. By this stage it was apparent that the hearing of the 19 February 2001 had been otherwise unnecessary but required because of the unreasonable and apparently thoughtless action of Mr Sagaria in filing a further statement of grounds in which he raised nothing new.

27. He said he had thought that the hearing of the 19 February 2001 was required in any event, and that costs would not be unnecessarily incurred and thrown away by his action. In saying this he must have forgotten what was said at the previous hearings and in the document of the 5 October 2000, particularly what was said at the Directions hearing on the 8 December 2000 to the effect that a further hearing in February would only be required in the event of there being new statement of grounds from new parties for whom the directions and such further hearing was provided (if necessary).

28. The only other matter to which attention was given at the hearing on the 19 February 2001 was the question of conditions. The Responsible Authority provided a set of draft conditions in a coded form, but with means of deciphering the code, at the hearing of the 5 September 2000. On the 19 February 2001 a written draft set of conditions, not in code, was referred to. As it turned out the suggested draft conditions were uncontroversial and the only discussion was to see to the inclusion of two further conditions discussed on the 5 September 2000 and referred to later in the reasons in the document of the 5 October 2000. All this could have been, and would have been, dealt with in written submissions without the need of a hearing, if it had not been for the further statement of grounds of Mr Sagaria.

29. I note, by the way, that Mr Sagaria is a solicitor. The only further matters demanding attention are two applications for costs made on behalf of the Applicant. The Applicant seeks an order for costs against Mr Sagaria in relation to the hearing of the 19 February 2001, and of the review proceedings generally prior to that date against the Responsible Authority on the basis that the Responsible Authority should never have determined to refuse its application thus occasioning the review.

30. Of these the former is the simplest and I will deal with it first. Mr Nicholson seeks an order for $800.00 against Mr Sagaria in respect of the hearing on the 19 February 2001. This sum is arrived at by allowing two hours of preparation and $200.00 per hour plus $400.00 for the appearance.

31. In all the circumstances, as discussed above, I can find no basis for a conclusion other than that Mr Sagaria, by unreasonable conduct caused the Applicant to incur otherwise unnecessary costs. I think it just in the circumstances, in terms of s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) that there should be an order against Mr Sagaria in favour of the Applicant. I do not agree with him, for reasons set out above, that there was need of the hearing on the 19 February 2001 in any event. I am aware that it is the ordinary rule, in accordance with s 119, that parties bear their own costs, but the Tribunal has power to make an order for costs where it is fair in the circumstances to follow that course. I am very conscious of the other proposition put by Mr Sagaria, namely that parties should not be discouraged from exercising their rights in participating in planning review proceedings by the fear of orders for costs being made against them. That is a very important principle, and I would not contemplate making an order for costs against him, for example, in relation to the hearing of the 5 September 2000 notwithstanding that his submissions on that occasion were unsuccessful. Unlike the situation in court proceedings, costs for this Tribunal do not "follow the event" where a successful party can expect to recover costs; quite the contrary. Whilst I recognise the importance of the principle of not discouraging participants in planning proceedings, that does not mean that a party can unreasonably occasion unnecessary expense to other parties, as I found to be the case in this instance, without facing an order for costs.

32. I recognise that some preparation by Mr Nicholson was necessary in relation to the hearing of the 19 February 2001, but that it would not be long and difficult preparation, having regard to his knowledge already of the circumstances of the case. Furthermore, it was apparent, having regard to the limited statement of grounds, that the hearing itself could not be expected to be long, complex or difficult. I am aware that Mr Nicholson has made allowance for this in the figure he has suggested. However, all things considered, I propose to fix the quantum at $500.00.

33. Mr Nicholson also sought an order for costs against the Responsible Authority. This first appeared as paragraphs 25 and 26 at the end of his written submissions presented at the hearing on the 5 September 2000. He recognised that costs are not ordinarily granted but, without direct reference to s 109 VCAT Act, pointed to six factors which, he submitted, took the case out of the ordinary. Of course at that stage he did not have my subsequent decision in relation to the merits of the case. I would not be prepared to make an order on the basis of any or all of these supposedly exceptional circumstances. I have a brief comment to make in relation to each. I will set them out hereunder in bold, in each case followed by my comment in ordinary type.

(a) The development was recommended by the Council Planning Officer.

That in itself is not a circumstance indicating that costs should be awarded. It is the Council that takes responsibility for its decisions, and thus to decline to adopt recommendations of officers where it thinks that appropriate. Where there is decision that is clearly perverse or unarguably wrong, the fact that the Council acted as it did in the face of competent professional warnings and advice may enhance the prospects of an order being made. Nevertheless, it would normally need to be a clearly perverse and unjustifiable decision that unreasonably required another party to incur expenses that should have been unnecessary, rather than simply the overruling of a Council officer's recommendation, that might lead to an order for costs.

(b) The history of objections indicate that they were and are essentially aimed at achieving a purpose irrelevant to the planning process, namely an economic advantage for the existing tenant.

The relevance or otherwise of the objections lodged are not relevant to a consideration of whether an order for costs should be made against the Responsible Authority. The Responsible Authority is responsible for its decision, not for possibly irrelevant objections. The economic advantage of the existing tenant may or may not have been background information in the minds of Councillors when the decision to refuse a permit was made, but that is not to say that it was the motivating force, or that it can be shown to be so. The current and continued health and viability of the Union Road strip shopping centre, and its enhancement, is a legitimate planning concern and consideration. The tenancy for such strip centres to decline or fail, and for them to contain collections of disused vacant shopfronts, is a significant planning problem that a Responsible Authority should bear in mind and seek to overcome. The criticism of the Responsible Authority in this instance was not that it sought to pursue such a worthwhile planning goal, but that it sought to pursue it in a way not properly open to it by refusing a planning permission which, on the basis of the relevant planning considerations was an unjustified refusal. It would not be wrong for the Council to encourage the retention of a business that it thought contributed to sustaining the viability of the strip shopping centre, it is just that it was not entitled, on my finding, to pursue that legitimate goal by an illegitimate means of denying planning permission for the legitimate use and development sought by the owner. Refusal because of valid objections to the proposal would be one thing, refusal of an acceptable proposal for the sake of preventing an owner exercising its right change from an existing use is another. Planning imposes some restraints on the owners and occupiers of land which, but for the planning laws, would not apply to them. Those restraints to-date, so far as I am aware, include preventing uses and developments which, from a planning point of view are undesirable, but not compelling the continuance of uses or developments, or trying to induce that result by seeking to prevent or restrain other appropriate proposals.

I might say that the conclusion reached in relation to this matter was only reached after careful consideration of opposing submissions made at the hearing, and after thorough debate in the course of the hearing. I do not regard the error I discern as so blatant and obvious that a Council, comprised of non-legal members, could be blamed (and called upon to pay costs) for not discerning it. I do not think that it has been shown that the Responsible Authority was guilty of blatant, deliberate or obvious error in circumstances where it did or should have known better. I might be persuaded to make an order for costs in those circumstances, but I do not find them to have existed here.

(c) As noted in the Council Planning Officer's report at a deputations meeting on 17 February 2000:

`The key issue at this meeting centred on the loss of the motor mechanic site in Union Road as an important attraction for the shopping centre precinct.'

That may have been the view of some or all of the people at the meeting. They may have thought it important. That does not mean that the Responsible Authority took notice of the meeting to the exclusion of relevant considerations. In any event, it is the Responsible Authority's decision on the application that is to the point, not what people at the meeting thought.

(d) Council determined the application without apparent regard to planning issues as can be demonstrated by the grounds of refusal.

There is not really anything to add here to the comments under (b) above.

(e) Had Council dealt with the application in a manner consistent with the consideration of proper planning issues there would have been ample opportunity for the Appellants to address any such legitimate concerns through the usual consultative process.

The "consultative process" is not part of the official legal process. That is not to disapprove of it, or to be unwelcoming to the benefits it might bring. Nevertheless I would think it is the Responsible Authority's actions in relation to the statutory processes and its carrying out or otherwise of its duties that might (if anything does) justify an order for costs in a case like this one.

Apart from that this point is a repeat of (b) and (d) above to which the response to (b) is relevant.

(f) The Council's determination to incorrectly apply factors irrelevant to the planning process, ie, approaching the planning issue as if it were one of continuity of a leasing arrangement, denied the Appellants the opportunity to address legitimate planning concerns in a cost effective manner and forced the Appellants to proceed by way of appeal.

I do not think the reference to leasing arrangements is pertinent, or other than a re-run of other points already made. Any decision affording the Permit Applicant a reasonable basis for a review, particularly if the review is successful, might be said to have denied that party the cost effective remedy of a decision in its favour from the Responsible Authority. Nevertheless most such decisions will, quite correctly, not attract an order for costs against the Responsible Authority. In any event it is difficult for the Applicant for such costs to show that it would not have been faced with a review in any event when there are a number of vigorous and committed objectors who would be likely to review a decision by the Responsible Authority to grant a permit. In the present case I would regard it as, at least highly probable, that Mr Sagaria would have applied for such a review.

As noted above, I recognised a legitimate planning concern in the decision of the Responsible Authority.

34. Maddock Lonie & Chisholm, on behalf of the Responsible Authority, responded to the application for costs as put forward above in a written submission of the 16 January 2000. In paragraph 3 of that document it is asserted that the sole basis for the claim is the alleged existence of "exceptional circumstances".

"4. The first and most obvious point to make is that the power of the Tribunal to award costs must be founded on a statutory basis. Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (the Act) sets out the rules as to costs. Needless to say, exceptional circumstances is not one of the basis upon which an order for costs can be made. Accordingly, the submission as put must fail."

36. I am afraid I regard this more as a semantic debating point than a valid submission. Section 109 may not use the expression "exceptional circumstances", but, in subsection (1), it creates the general rule that "each party is to bear their own costs in the proceedings". Subsections (2) and (3) then go on to create an exception to that general rule. Subsection (2) provides that the Tribunal may order a party to pay all or a specified part of the costs of another party in a proceeding. Sub-section (3) provides that the Tribunal may make an order under sub-section (2) "only if it is satisfied that it is fair to do so, having regard to ...". The sub-section then goes onto list considerations in paragraphs (a) to (e) which are or may be relevant to the Tribunal's consideration of whether it is fair, in the circumstances of a particular case, to make an order for costs. The touchstone is fairness. The (a) to (e) considerations are a checklist and aid to determining what is fair in particular circumstances. It is not a matter of satisfying any one or more of (a) to (e). Those considerations are to lead to the ultimate question of fairness. I note, by the way, that (e) involves "any other matter the Tribunal considers relevant".

37. The written submission then goes on with a series of rebuttals of the points in paragraph 26 of the Applicant's written submissions. What is said is by no means exactly the same or co-extensive with what I have said above in relation to those points, although what I have said is generally in accord with this part of the Maddock Lonie & Chisholm submission so that I feel no need to comment further on them. The submissions concluded by saying that if further submissions in relation to costs were forthcoming, presumably on the basis of the reasons in the document of the 5 October 2000, the Responsible Authority should be given a reasonable opportunity of addressing them.

38. Such a further submission dated 18 January 2001 was forthcoming from Mr Nicholson. This document quoted the first three sub-sections of s 109 VCAT Act and drew heavily on the reasons given in the 5 October 2000 document.

39. It qualifies some of the assertions put in the previous submission on behalf of the Responsible Authority and I think some of these points are correct and well taken. However, as they do not go to the heart of the basis on which I propose to decide this question of costs, I do not think it necessary to go through them, point by point.

40. It is true, as asserted in paragraphs 11 and 12 of the submission, that I found that the approach taken by the Responsible Authority to this application was flawed and based on improper (or at least incorrect) reasoning and that the discretion of the Responsible Authority had been exercised in what, on analysis, was found to be an impermissible and improper way. I did use expressions like "manipulation" and "ulterior motive". These certainly sound pejorative, and so they are. Having worked out what I considered to be the true position, I sought to set it out clearly and to point to what I considered to be errors in terms that would not be ignored. I would not wish to see them repeated. Nevertheless, "ulterior" for example, does not necessarily mean wicked or even wilful. It may mean no more than other than the true or correct purpose. There is, I think, a certain subtlety in discerning the errors in the approach adopted by the Responsible Authority. I see the Responsible Authority as having been pursing a legitimate planning purpose in looking to the health and well being of the Union Road strip shopping centre. It is not as though it was pursing something that had nothing to do with planning. It is just that, upon careful analysis, I found that it exercised its discretion in relation to the application giving rise to this case in a way that was not correct. Whatever the strength of the language I used, I was not suggesting that the Responsible Authority, in seeking to protect and enhance the Union Road strip shopping centre, was deliberately, consciously and wilfully misusing its powers notwithstanding that Mr Nicholson has been able to point to a warning in the officer's report to the Council that the officer regarded the question of the loss of an "attractor" to the shopping precinct as being irrelevant. As Mr Montebello has pointed out, a finding that the Responsible Authority's view is wrong, even seriously wrong, does not necessarily mean that its behaviour was disgraceful or reprehensible or that, having regard to the duties and constitution of a council, that its decision was necessarily so unreasonable and unfair as to warrant an order for costs.

41. In this connection I note that Mr Nicholson has referred to the case of Peter Mazorini & Ors v Mitchell Shire Council [2000] VCAT 1110 where an order for costs was made against a Responsible Authority. He quoted the following from paragraph 36 of the reasons in that case:-

The actions of the Responsible Authority in perversely persisting in its decision against the advice of its own town planners and the findings of the Tribunal has put the Respondent/Objectors to repeated expense to defend good planning in their area. [emphasis added].

42. I note the expressions "perversely persisting" and "repeated". My understanding is that in that case the Responsible Authority not only erred once, but erred again and again in the same way against the repeated advice of its planners and repeated findings of the Tribunal. It is my understanding that the Objectors there were incurring expense in defending good planning again and again and the Tribunal, quite reasonably in my view, thought that this was unjust and sufficient to warrant the making of an order for costs.

43. Part of the motive for wanting to spell out my reasons in this case clearly, even forthrightly, is the hope that they will be noted and understood and that future applications will not be approached on the same basis. In that event the Responsible Authority would be in a weak position in resisting an order for costs.

44. I have considered all that is said in Mr Nicholson's written submission of the 18 January 2001. I am nevertheless not persuaded that I should make an order for costs in this case. I do not wish to say more in relation to the submission, except to note the reference to Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397. In summing up his submissions Mr Nicholson said that, as envisaged in that case, the Responsible Authority continued to maintain a position which, if properly advised, it ought to have known had no chance of success. I do not disagree with the advice offered in the officer's report. However, in so far as that was advice as to the merits of the application, the Responsible Authority was entitled not to follow it. In so far as the advice was legal, it was not given a person with legal qualifications, at least as far as I know. It does not appear that legal advice or assistance was sought until the review proceedings came into existence. Insofar as the advice touched on the extent and limitations of the discretion open to the Responsible Authority, I do not disagree with the view in the officer's report, but I also recognise that a correct understanding of the extent and limitations of that discretion called for analysis and reasoning of some subtlety which a meeting might overlook or mistake whilst seeking to act honestly and with bona fides.

45. I think the reference to "properly advised" in Mr Nicholson's summation smacks of "costs following the event". I might add that Mr Montebello had an opportunity to advise his client in relation to the review proceedings. I dare say that, if he had considered the case to be unarguable, he would advised his client accordingly. Although I found the approach taken to be in error, and even to warrant the things I have said in the document of the 5 October 2000, I do not think that the result was so obvious as to be unarguable or that the Responsible Authority or its advocate are to be criticised on that account. At the outset it was not obvious to me. As I have said it only became clear with the assistance of a deal of careful consideration, analysis and argument in the course of the hearing.

46. Mr Montebello responded to the second submission on costs of Mr Nicholson in a written submission dated 9 February 2000. It is clear from what he says that some of my language including "contriving" and "manipulation" have stung and that he and/or his client consider that it goes too far. Perhaps what I have said above will serve to show I was not being quite as disapproving as might have been supposed. I do not disown the words, but I did not mean them as denunciations, but as carrying what I conceive to be their actual meanings and I am not disagreeing with Mr Montebello when he said "Council, in determining to refuse the application, did so in good faith, notwithstanding that it was contrary to the officer's report". This case raised quite an important point. I am not aware of it having been raised in quite this way, or in similar circumstances before. To borrow a couple more sentences from Mr Montebello:-

Council was of the view that the ground of refusal was an appropriate one, although, it has ultimately been found to be unsupportable. Costs should not be awarded on the assumption that Council had the benefit of the wisdom gained from having hindsight.

It is also true that, as he says, the tribunal was not prepared to allow the development in its original form. However, if that had been the only problem perceived by the Responsible Authority it might have determined to grant a permit imposing a condition requiring appropriate modifications to the form.

47. The Applicant and the Responsible Authority have both indicated that they wish the question of costs between them to be determined on the basis of the written submissions I have referred to. The result is that there will be no order as to costs between them.