1 The decision of the Responsible Authority is varied.

A permit is granted for the use of the land as a convenience shop and a reduction in the car parking in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision of the Grant of a Permit No 68/02 dated 29 April 2004 but modified as follows:

Before the use and/or development starts, amended 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 then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted at the VCAT hearing and marked Revision A but modified to show:

a) the reduction of the floor area for the convenience shop to no greater than 240m2

b) No direct access from within the convenience shop to the balance of the store.

c) An independent internal access be available to the convenience shop.

d) The convenience shop with separate cash registers to the balance of the store.

2. Only goods purchased within the convenience shop can be paid for at the convenience shop cash registers.

3 The convenience shop must operate separate cash registers to the balance of the store.

The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(e) of the Planning and Environment Act 1987

2 Each party is to meet their own costs. That is there is no award of costs in this proceeding.

Mr M. Wright QC assisted by G. Peake, Barrister instructed by Meg Lee, Solicitor, Mallesons Stephen Jaques, Solicitors.

Ms S. Brennan, Barrister instructed by Juliet Halliday, Solicitor, Deacons, Solicitors.

1 At the conclusion of the hearing of this matter the Tribunal determined it was in a position to hand down an oral decision. The following is a summary, as revised, of the reasons given at the hearing.

2 This was an application pursuant to s 82 of the Planning and Environment Act 1987 seeking a review of the Warrnambool's City Council's decision to grant a Notice of Decision to Grant a Permit for the purpose of a convenience shop and a reduction of the associated car parking requirement at 84 Raglan Parade, Warrnambool.

3 The purpose of the application is to seek permission to develop and use part of the existing building at 84 Raglan Parade for the purpose of a convenience store and seek a dispensation for car parking in association with that use.

4 At the commencement of the hearing Mr Canavan on behalf of the permit applicant sought leave to substitute amended plans for the application plans. The plans had been circulated in accordance with the tribunals practice note and there being no objection from either the responsible authority or the applicant for review the plans circulated and marked Revision A were substituted for the application plans.

5 The subject land is located on the north side of Raglan Parade and forms part of a larger area used for the purpose of bulky retail goods and other uses consistent with the Business 4 Zone (B4Z) of the land.

6 Under the B4Z provisions a convenience shop is a specified Section 2 use and requires a permit. A convenience shop is defined in Clause 74 of the Planning Scheme as a `building with a floor area of no more than 240m2 used to sell food, drinks and other convenience goods. It may also be used to hire convenience goods.'

7 As was expressed by a differently constituted Tribunal in the Warehouse Group (Australia) Pty Ltd v Whittlesea City Council & Ors (Review No. P1479/2002) we find our primary role in this matter is to determine the application that is before us. That is, an application for the development and use of a convenience shop within an existing building. We find the application is primarily for a defined use that is a discretionary use within the B4Z of the land. In accordance with the documentation/material submitted with the application we find that the proposed use can be distinguished from the balance of the floor area currently operated by the Warehouse Group. We find this view is consistent with the view expressed by Justice Southall in Heda Nominees v City of Springvale (1982)1 PABR 287(Supreme Court).

8 In coming to this finding we accept that more than one use can operate from the premises. To that extent we find that there is no impediment to our capacity to grant a permit for a separately defined use on this land.

9 We make it clear however in determining this application we make no finding of fact or law as to the operation of the balance of the area currently operated within these premises by the Warehouse Group. That is not a matter we believe we are required to determine in coming to a decision in the matter that is before us.

10 Those matters are the subject of a separate application and will be determined following consideration of the material put before the Tribunal in those proceedings.

11 We are satisfied that the proposal as set out in the application material before us including the amended plans can, subject to the conditions to be imposed, lawfully operate as a convenience shop.

12 We accept Mr Canavan's submission that an evaluation of the existing operation of the area currently set out does not assist us in determining the proposal that is before us given this proposal is ultimately to be different to the current operation of the area. This proposal can be distinguished by the provision of separate checkouts, the provision of no direct link from within the convenience shop to the balance of the store and the range of goods offered for sale.

13 We accept the findings in the Tribunal's decision referred to earlier Warehouse Group (Australia) Pty Ltd v Whittlesea City Council also known as the `Bevandale' decision is particularly relevant on a number of matters that are similar to the proposal and submissions that are being put in this case. In the Bevandale decision the Tribunal referred to these and its analysis at paragraphs 34 through to 39 stating

34 Mr Peake referred to the Supreme Court decision in Cascone & Vella v City of Whittlesea (1993) 11 AATR 175 submitting it is not correct to characterise a proposed use by reference to the constituent activities, processes or transactions which together make up the proposal and then fit each into a defined use within the planning scheme. He submitted that because there is a relationship between the uses then there is an integration, whereas if there is no relationship there is no integration, as a result, the use is the whole of the tenancy occupied being 3,300m².

35 Mr Justice Ashley in Cascone was considering the characterisation of the use of a building that was being used for a number of interrelated activities which were not specifically defined within the planning scheme. The uses were already operating and were the subject of an enforcement application in which it was sought to bring the activities within defined uses in the planning scheme and alleging such uses were prohibited within the zone in which the building was located.

36 In this matter there is an application for a convenience shop, a use that is clearly defined within the planning scheme. There is nothing that indicates that this proposal contains anything additional or otherwise than what falls within the definition. There is therefore no requirement to go outside what has been proposed to seek to characterise this proposal as anything but the use as a convenience shop as applied for. This was certainly contemplated by Mr Justice Ashley in Cascone when he stated:

* The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely falls within a defined use. The extent to which it does not may be trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.

37 An application is considered on the basis of what is applied for. In this respect in Addicoat v Fox (No 2)[1979] VR 347 the Supreme Court considered it is the application and the accompanying plans one must look at to decide the nature and purpose of the application. In this respect the applicant has applied for a convenience shop to consist of a leasable floor area of 227m², to be located within an existing building with a total area of 3,300m², the leasable floor area of 227m² is proposed to be used to sell food, drinks and other convenience goods. It appears in the terms of the decision of Marock Pty Ltd v Billjoy Pty Ltd [1981] VicRp 41; [1981] VR 413 that this application is clear and would fairly convey to a fair-minded citizen in the light of the relevant definitions within the planning scheme what has been applied for.

38 `Part of a building' is contained within the definition of `building' within the planning scheme. The proposed leasable floor area is less than that allowed under the planning scheme, being a `leasable floor area of no more than 240m²'. A list of possible convenience type goods which will be sold by the applicant were provided. These include: Confectionary; Drinks; Basic groceries (excluding perishables but including potato ships sauces and some tinned food); Personal care items; Pet food and associated pet care products; Batteries; Film. Mr McGurn also submitted milk, bread and papers would be sold.

39 The plans clearly show the area to be used is separate from the rest of the building in which it is to be located. It is also proposed to use separate cash registers and staff and have a separate entrance. As Mr McGurn noted this is not dissimilar to the sale of liquor in a separated area from a supermarket [eg: a Coles Liquorland] and as such he considered that what is proposed in the application falls clearly within the defined use of a `convenience shop' in the planning scheme.

14 We agree with the Tribunal when it said in paragraph 42 of the Bevandale decision inter alia"

The Tribunal can only consider an application on the basis on which it is put forward. This is not an enforcement application where the allegation is that what is occurring onsite falls outside the use of a convenience shop. This is merely the subject of speculation. There is nothing in the planning scheme that requires convenience shops to sell the same items or them to sell a full range of convenience items to be available. Furthermore we consider that any assessment of what is proposed should be made on the basis of material and evidence put forward as part of the application not on assumptions based on the way another activity is being operated.

15 In making our decision our assumption is that the use will be carried out and operate in a lawful manner. If not other courses of action are open to the Responsible Authority and other parties to pursue.

16 In coming to our decision the questions of law have been determined by the legally qualified member of this Tribunal and all other matters have been determined by both the Tribunal members.

17 Our decision on the merits application is that we shall vary the Responsible Authority's Notice of Decision conditions insofar as that will require amended plans to be submitted to show the reduction of the floor area for the convenience shop to no greater than 240m2 and we shall require a number of other conditions to be included that we believe to be appropriate. These include conditions requiring:

* No direct access from within the convenience shop to the balance of the store.

* That independent internal access be available to the convenience shop.

* That the convenience shop operate separate registers to the balance of the store.

* Only goods purchased within the convenience shop can be paid for at the convenience shop cash registers and any other conditions which we will articulate more clearly in our written order.

18 Following the handing down of this decision Mr Canavan on behalf of the Warehouse Group made an application as to costs in respect of these proceedings.

19 Mr Canavan briefly outlined that costs were sought pursuant to s 109(3a)(vi), 3(c) and 3(d) of the VCAT Act and also pursuant to s 150(4)a of the Planning and Environment Act 1987.

20 Given this request was without notice we adjourned the matter until 10.00am the following day to give the applicants for review an opportunity to consider the request and respond accordingly. We also gave Mr Murray on behalf of the Responsible Authority an opportunity to obtain instructions on its position in respect of costs.

21 On the resumption of the costs hearing Mr Rantino (in place of Mr Murray) submitted that the Responsible Authority did not wish to make any claim as to costs in these proceedings.

22 Ms Brennan on behalf of the applicant for permit reiterated the grounds on which costs were being sought and provided some further information supporting each of the grounds being sought to be relied upon. There was nothing new in the material submitted by Ms Brennan which differed from the grounds articulated by Mr Canavan the night before.

23 Mr Peake on behalf of the applicant for review also gave a detailed response to each of the grounds upon which costs were being sought.

24 We are of the view having considered the submissions of each of the parties that the normal practice of this division of the Tribunal where each party bears its own costs of the proceeding should be followed.

25 In summary the basis of the application for costs was:

* That the application for review was vexatious and sought to obtain an indirect or direct competitive advantage (s 150)(4)(a)).

* The case of the applicant for review was relatively weak (s 109(3)(c)).

* The proceedings were conducted in a vexatious manner (s 150(4)(a), s 109(3)(a)(vi)).

* The complexity of the case put forward (s 109(3)(d)).

26 In summary we believe the applicant for review has not conducted the proceedings in a vexatious manner. We believe the applicant for review is entitled to put a case which is contrary to a decision of a different division of this Tribunal. It is a well established principle that each case must be determined on its merits in the planning jurisdiction of VCAT. While in the final analysis we did not accept the position put forward by the applicant for review we recognise we are not bound by the decisions of the Tribunal in earlier cases even though we acknowledge that in this instance we accepted and adopted as sound planning a number of matters set out in the decision of the Bevandale decision (Warehouse Group v Whittlesea City Council) referred to earlier in these reasons.

27 While much was made of the fact that the applicant for review was a competitor that in our opinion is not the test that needs to be applied to be successful for an award of costs to be made. The test to be satisfied in our view pursuant to s 150(4)(a) is that the application was made to secure a direct or indirect commercial advantage. No evidence was presented to us to conclusively establish that that was in fact being sought to be achieved.

28 We do not accept that the case for the applicant for review was relatively weak nor was the applicant for review conducting the proceedings in a vexatious way. It was clear to us that Mr Wright on behalf of the applicant for review had given serious consideration as to the case to be put forward on behalf of the applicant for review. Mr Wright conducted the case for the applicant in an efficient manner that did not disadvantage the applicant for review. He was brief and to the point in his submissions so much so that the matter was concluded effectively in one day.

29 Ms Brennan submitted that the concessions made in respect of the planning merits and parking were made just one week before the hearing and this lead to unnecessary costs being expended for the engagement of two expert witnesses. We however prefer the view that was submitted by Mr Peake that, after having considered the expert's statements, the applicant for review accepted those statements and advised that it was unnecessary to have those witnesses cross-examined. This is not at all unusual in planning merits proceedings. The concession itself led to a reduction in the time required for the proceedings to be completed.

30 Thus it is our view that it is proper in this matter to have each party meet its own costs.