Victorian Civil and Administrative Tribunal|2000-01-29|Before: Mr J, Mrs P

The Applicant is to pay the Respondents' costs in the sum of $1,500/-

Leave is granted for the Applicants to withdraw this application and the Tribunal's file has been marked "withdrawn".

For Mr B and Mrs P Wilson and Calabrina Pty Ltd Mr Warwick D Nelson

2. Application No 1998/99551 - application under Section 77 of the Act for review of a decision to refuse to grant a permit.

3. Following hearings at Melbourne on 17 February and 8 and 9 April 1999 the Tribunal issued a written document giving reasons for an making an order that the application for the enforcement order was dismissed.

4. The hearing of the application to review the decision to refuse a permit was adjourned to a date to be fixed.

5. By letter to the Registrar of the Tribunal dated 16 September 1999 Harwood Andrews, Lawyers acting on behalf of Mr and Mrs Wilson and Calabrina Pty Ltd advised the Tribunal that the application for review of the decision to refuse to grant a permit could now be withdrawn.

6. The Tribunal believes it appropriate to grant leave for the application to be withdrawn.

7. Following the Tribunal's order that the application for an enforcement order be dismissed Harwood Andrews on behalf of the same clients also wrote to the Registrar of the Tribunal on 5 August 1999 stating that:-

"We believe our clients are entitled to an order for costs in their favour having regard to the Tribunal determinations and also the expressed reservation of the costs issue on 26 November 1998."

8. The letter went on to request that the application be listed for hearing.

9. The application for costs came on for hearing before us and the Tribunal heard submissions from Mr Nelson on behalf of Mr and Mrs Wilson and Calabrina Pty Ltd, Mr Demeo on behalf of the City of Greater Geelong and Mr Heath on behalf of Ms Tribe.

10. At the conclusion of the hearing the Tribunal gave oral reasons for its decision. The following is a written record of those reasons.

"In his submission Mr Nelson stated that the making of an enforcement order involves the exercise by the Tribunal of a discretion where a breach of a planning scheme or permit is established.

Here, as detailed in our written reasons dated 26 May 1999, we were not satisfied as to the proof of the alleged breach of the provisions of the planning scheme having regard to the standard of proof required and the possible consequences that might result.

Mr Nelson argued that on 18 November 1998 Mr St Quentin, Surveyor, produced a written report which expressed the opinion that part of the ridge line of the Wilsons' house exceeded the limit of 7.5 metres in the planning scheme by 0.31 of a metre. Mr Nelson submitted that even if the Tribunal had been satisfied that this breach existed it would not have exercised the option to require modification of the building as the amenity impact on the adjoining property of this small exceedance would be negligible.

We agree with Mr Nelson that the Wilsons' acted not unreasonably in seeking all permissions and advice from Council Officers before proceeding to carry out the extensions to their property.

These matters go to the issue of whether Ms Tribe unreasonably pursued a case which had in fact and law little or no chance of success.

Even though this Tribunal encourages persons to bring their own proceedings before it, we recognise the difficulty they may have in understanding the effect of provisions which require the Tribunal to exercise a discretion. We also recognise that individual members of the community may well have different perceptions of the amenity impacts of developments on properties adjoining their own, which differ from an objective assessment of those impacts.

Nevertheless we believe that others should not be put to unnecessary or unreasonable expense to defend enforcement proceedings brought against them when they have not ignored or flouted the requirements of the planning system.

In the circumstances we will make an order requiring Ms Tribe to make a payment towards the costs incurred by Mr and Mrs Wilson of $1,500.

This is not the full amount of solicitor/client costs claimed by Mr Nelson on behalf of his clients but is the amount we consider appropriate in the circumstances of the case."

11. Accordingly appropriate orders will be made to first grant leave to withdraw the application for review of the refusal to grant a permit and secondly for costs in respect of the enforcement proceedings.

Civil and Administrative Tribunal Act 1998

Tribe v Greater Geelong CC [2000] VCAT 444 (29 January 2000)

Tribe v Greater Geelong CC [2000] VCAT 444

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Tribe v Greater Geelong CC [2000] VCAT 444 (29 January 2000)