Victorian Civil and Administrative Tribunal|1999-11-03

Yarra City Council v A G Rattray-Wood & Ors [1999] VCAT 1935 (3 November 1999)

PLANNING LIST Application for Review Nos. 1999/55024 & 1999/78269

Planning List, Sections 187, 189 and 91 Planning and Environment Act 1987, cancellation and/or amendment of planning permit, form of request for cancellation, drafting of request, form of request recommended in Practice Directions, request seeking no relief, request for cancellation and/or amendment where requester opposes such relief, costs, costs not to be punitive or a punishment, but to compensate party unreasonably put to expense, costs to achieve justice rather than retribution, Stonnington CC v Dixon & Elligate

The land in Certificate of Title Volume 8945 Folio 793.

1. Request 1999/55024 is granted and Permit 981434 issued by the Responsible Authority on the 6 May 1999 is amended to substitute the plans entitled "AMENDMENTS TO NO. 70 WELLINGTON STREET, RICHMOND" drawn by Geoffrey Borrack, Architect of 34 Albert Street, East Melbourne dated 17 September 1999 and stamped as having been received by the Responsible Authority on the 20 September 1999 as the endorsed plans forming part of that permit and the Responsible Authority is directed pursuant to s.91(1) of the Planning and Environment Act 1987 to amend the said permit and endorse the said plans accordingly.

2. Leave is granted to withdraw Request 1999/78269 and that request is withdrawn accordingly.

Ms Adeline Lane, solicitor of the firm of Maddock Lonie & Chisholm, solicitors, appeared for the Responsible Authority. She presented written and oral submissions.

Mr Ian Wood, who describes himself as community planning consultant, appeared for Mr & Mrs Edwards. He presented written and oral submissions.

Mr Philip Edwards, town planner of Fastnet Consulting, appeared for the permit holder/land owner, Mr Rattray-Wood and Mr Geoffrey Borrack, architect, who made the original permit application on behalf of Mr Rattray-Wood.

Various plans, photographs and other documents were tendered as attachments to written submissions or as separate exhibits. The evidence and submissions presented in documentary form have been retained on the file of the Tribunal.

Request under s.87 of the Planning and Environment Act 1987 (PE Act)

Request under s.87 PE Act for cancellation of a permit.

Cancellation or amendment of Permit 981434 issued by the Responsible Authority on the 6 May 1999 granting permission for a three storey dwelling with attic and roof deck.

1. These cases have a rather unfortunate history. After the planning permit application was lodged with the Responsible Authority notice of it was given pursuant to s.52 PE Act. Several objections, including one from Mr & Mrs Edwards were lodged. Mr & Mrs Edwards live next door to the relevant land. Their property is separated from it by a 2.2m wide laneway which runs between the two properties.

2. In due course the Responsible Authority considered the application and determined to grant a permit. A Notice of Decision to Grant a Permit was prepared and sent to some of the people who, in accordance with the PE Act, should receive it. Unfortunately however, the evidence and submissions indicate that no copy of the Notice of Decision to Grant a Permit was sent to Mr & Mrs Edwards. They should have received such notice. It would have advised them of the decision of the Responsible Authority and of their rights to apply to this Tribunal for a review of that decision. Instead they received a letter advising them that the Responsible Authority had decided to refuse a permit. Naturally they had no occasion to apply for a review of the decision they were led to believe had been made.

3. In due course a permit was issued on the basis that there were no applications for review. When this was discovered, Mr & Mrs Edwards, quite understandably raised complaints.

4. It would have been possible, at that stage, for them to make a request under s.87 PE Act for cancellation and/or amendment of the permit. They did not do so. I do not know if they obtained any advice at that stage. They may have been dissuaded from that course by the proceedings undertaken by the Responsible Authority.

5. On the 9 July 1999 the Responsible Authority lodged a request for cancellation or amendment of the permit pursuant to s.87 PE Act with the Tribunal. That request was given the number 1999/55024.

6. I am afraid that this request is, in some respects, rather a confusing document. Part 10 of the pro forma used in making the request seeks to discover what is being requested. It is in two parts denoted as a. and b. Section a. asks "Do you want the permit to be cancelled?". No answer is given to that question. The space for an answer is simply left blank.

7. Section b. of part 10 asks "Do you want the permit to be amended? If yes, state the differences you want to make".

8. No answer to that question is provided in the appropriate place either. There is merely a note reading "(See attachment `A')".

9. There is nothing wrong with referring to an attachment if insufficient space is available on the form to answer a particular inquiry. However, one expects to find the answer, readily identifiable, in the attachment referred to.

10. In this case that has not been done. Attachment "A" turns out to be a four page document containing 35 paragraphs. It contains a great deal more than an answer to the question "Do you want the permit amended?" and to the further ancillary inquiry "If yes, state the differences you want made". It says a great deal more than answering the question and providing that information, but it does not actually give a clear answer to any of the things actually inquired of in part 10. It does not clearly say that cancellation is sought, that an amendment is sought, or if so what amendment is sought.

11. Part 11 of the request form seeks to find out what ground under s.87(1) is relied upon for making the request. That is answered quite satisfactorily with the statement "A material mistake in relation to the grant of the permit".

12. However, part 11 goes onto seek, in its part C, a statement of the facts relied upon in making the request. Again there is a cross reference to an attachment. However, it is again attachment "A".

13. What we have in attachment A is a lengthy narrative purportedly, but not actually, containing the information sought in part 10 and some information, amongst other things, as to the grounds relied upon.

14. The pro forma employed in preparing the request follows the recommended form suggested by the Tribunal and attached to a Practice Note. That form has been carefully devised with a view to eliciting the prescribed information and the necessary information for the purposes of a request under s.87. The separation between parts 10 and 11 is deliberate, and I do not approve at all of merging the responses to them together in one narrative leaving it for the Tribunal and other parties to try and pick out the relevant bits.

15. The 35 paragraph attachment is, in fact, set out under a series of subheadings namely "Background", "The Land", "Locality", "Planning Controls", "History of Grant of Permit & Notification of Decision", "GROUNDS OF APPLICATION", "Material Mistake in Relation to the Grant", "Exercise of Tribunal's Discretion and Order Sought".

16. A person making a request under s.87 or 89 is required to include in the request the facts relied upon in support of the request. The suggested pro forma also asks for that. What is sought is a succinct statement of the material facts relied upon to establish the ground or grounds under s.87 that are being relied upon. A lawyer preparing a statement of such facts might recognise that the words I have used (ie. succinct statement of material facts) are similar to those called for in drafting a court pleading like a statement of claim. In recent times some request documents have become longer and longer containing long narratives and large bundles of copy documents. It should be realised that the request document is not the place to present the equivalent of an opening address for the presentation of the case, it is not the occasion for a lengthy narrative setting out all manner of background and historical circumstances (except insofar as they might state material facts relied upon to establish the ground) and it is not a place for submissions or an address or argument. It is the place of a succinct statement of the material facts, with particulars if necessary, but not for a setting out of all the evidence that might be advanced to establish such facts. The hearing is the occasion for all these things.

17. I do not suggest that the attachment in this case has all the defects I am complaining of. However, some people preparing request documents seem to take the view that they will throw everything connected with the case in any way into a lengthy written statement with copies of all sorts of documents, some of which are of no apparent relevance. The notion seems to be that it will be helpful to someone to provide an abundance of material, only some of it relevant, so that the Tribunal and the other parties can entertain themselves sifting and sorting to try and determine what the case is about, even if tenuous guess work has to be resorted to.

18. It is as bad to provide too much material in a request as it is to provide too little, indeed it is worse if the volume of material leaves it unclear as to what the case is about.

19. In this particular case the Responsible Authority and its advisers were faced with a rather difficult problem. It had left Mr & Mrs Edwards in a situation where they lost their opportunity to apply for a review because of an administrative error committed by the Responsible Authority. That was clearly an unsatisfactory situation that called for rectification. The Responsible Authority was conscious that its error was a "material" mistake which provided a clear grounds for relief under s.87. Indeed, in paragraph 30 of attachment A it said:-

"30. In the circumstances, Council thinks it is just and fair to institute a request to cancel the Permit to provide Mr & Mrs Edwards an opportunity to challenge the planning merits of the Permit."

20. The Responsible Authority therefore undertook to itself initiate a request. Its dilemma was that it thinks that the permit that it granted was justified, and that if a new application was made after cancellation, then a similar permit should be again granted. What is the point, in those circumstances, of cancelling the existing permit, and putting everyone to that trouble and inconvenience. It therefore, did not, on the merits of the proposal, favour either cancellation or amendment of the permit. Paragraph 35, under the subheading "Order Sought" reads as follows:-

"35. While this is an application to cancel to amend a permit, it is submitted that no order be made to that affect in this case, having regard to the `substantial disadvantage' and `just and fair' tests."

21. The references to "substantial disadvantage" and "just and fair" are to s.91(3)(a)(ii) and (c) PE Act. Those provisions state that the Tribunal must not direct the Responsible Authority to cancel or amend a permit on a request under s.89(1) unless it is satisfied, amongst other things, that a person covered by s.89(1)(a) was substantially disadvantaged by the issue of the permit and that it would be just and fair in the circumstances to cancel or amend.

22. Ironically those provisions do not directly apply in this case because it is not a request brought under s.89(1), but by the Responsible Authority itself pursuant to s.87(3)(a). Of course the Tribunal still has a discretion as to whether it will cancel or amend, and in exercising the discretion it might see fit to consider whether anyone is substantially disadvantaged or whether it is just and fair in the circumstances, but the statutory requirement of s.91(3) does not apply in this case.

23. Leaving all that on one side, it can be seen that paragraphs 30 and 35, read together or in the context of the request document as a whole, create confusion. There is no direct answer to whether the request seeks cancellation, or amendment and if so what amendment.

24. Paragraph 30 expresses the opinion that it would be just and fair to "initiate" a request to cancel the permit. On reading that I assumed that this was, indeed, a request to cancel the permit. One would not normally initiate a request to cancel a permit unless one was requesting such cancellation.

25. Apparently, however, there is a subtle and easily missed distinction in the wording of paragraph 30. I have emphasised the word "initiate" above because it turns out that the request is not really saying that it is just and fair to cancel the permit, (that proposition is negatived in paragraph 35), only that it is just and fair to initiate a request, but then not proceed to the fulfilment of the request by cancelling the permit.

26. Paragraph 35 of attachment `A' actually states that the request is an application to cancel or amend the permit. That seems clear enough. But it goes on to submit that no order to that effect should be made. I know what the draftsperson is driving at, and I recognise the dilemma involved, but there is still something nonsensical about initiating proceedings that are available to achieve cancellation and/or amendment of a permit and to then, in the initiating document, say that no such relief, and no other relief, should be granted. It is confusing.

27. I think a court process that sought no relief, and which called upon the court to make no order, but asked for the situation to be left exactly as it was before the proceeding commenced, would be struck out. I appreciate that the Responsible Authority was trying to do the right thing and that it was seeking to find a fair solution to the situation created by its administrative mistake. I do not think that the solution it hit upon is a satisfactory one. It is confusing to start so equivocal a proceeding as this one. It is not satisfactory to be, in effect, on both sides of the record. The Responsible Authority finished up as both Requester and Respondent. In its latter role it opposed the request it had made in its former. The confusion was only compounded when it sought to amend its request. Perhaps it should have ascertained if Mr & Mrs Edwards themselves, wished to make a request and then to have assisted them to the extent of indemnifying them for the expenses involved.

28. On reading all the material I concluded that the document was, after all, an application to cancel, or alternatively to amend the permit. Its purpose was to give Mr & Mrs Edwards an opportunity to seek cancellation, or amendment, whether or not that was made altogether clear.

29. At any rate, I took it to be an application for cancellation or amendment so that such relief could be granted if Mr & Mrs Edwards persuaded me that such a result was appropriate, even if the Responsible Authority stood neutral on its own request. As a matter of fact it was doing more than standing neutral on the issue, it was actually saying no order should be made.

30. In the latter part of September the permit holder presented a new plan. It showed a couple of modifications compared with the plans considered by the Responsible Authority. They were modifications that favour Mr & Mrs Edwards. One modification was to increase, although only to a minor extent, the setback of the first floor southern wall from the southern side boundary. The southern boundary is the one facing Mr & Mrs Edwards. The other modification is that this setback would be extended further towards the front of the building as compared with the original plan. All this would give some extra protection to the passage of light to windows in the northern side wall of the Edwards' property. As I have said, the modifications represented minor improvements from the point of view of Mr & Mrs Edwards.

31. On the 23 September 1999 the solicitors acting for the Responsible Authority wrote to the Registrar of the Tribunal, sending a copy to Mr Edwards. It advised that the amended plans had been submitted. A copy was enclosed. It referred to the increased setback. It said that the Council considered that the amended form of the development is "more site responsive and warrants approval". The letter then concluded with the following paragraph:-

"Accordingly, Council seeks leave from the Tribunal to modify the orders sought in the application. Council now requests an order that Permit 981434 be amended to provide for development of the building on the subject land to comply with the amended plans. Council will formerly seek leave to amend the Application before the Tribunal at the hearing on 5 October 1999."

32. I interpreted this paragraph, upon reading it, as meaning that an application would be made to amend the request to delete the request for cancellation leaving only the request for amendment, such amendment to be the substitution of this new plan.

33. Ms Lane denies that this was the intention of the paragraph, although Mr Edwards and Mr Wood were immediately concerned that it was. Ms Lane informed me that there was a telephone conversation between herself and Mr Wood on the following day. She says that in that conversation she assured Mr Wood that it was not intended to prevent Mr & Mrs Edwards from arguing for cancellation and not intended that the foreshadowed amendment to the request document would not have that effect. Perhaps I should say here that, if the foreshadowed amendment to the request was made, it would not finally be Ms Lane's view of the effect this would have that would prevail, but rather the view taken by the Tribunal. Her reassurances as to what the paragraph was supposed to mean, or what interpretation it should have, could not necessarily be relied upon by Mr Wood and Mr & Mrs Edwards.

34. The last paragraph of the letter caused some consternation in the Edwards' camp which was not allayed by the telephone conversation on the 24 September 1999. On the 29 September 1999 Mr Wood wrote to the Registrar of the Tribunal, sending a copy of his letter to the Responsible Authority's solicitors. The letter, omitting formalities, read as follows:-

"I am acting for Mr & Mrs Edwards of 72 Wellington St, Richmond in the above matter and intend to appear before the Tribunal on 5th Oct. regarding this application made by Yarra Council under Section 87 of the Planning & Environment Act 1987 and dated 9.7.99.

As we understand it, this application sought (but did not support) an order to cancel the above permit so as to provide Mr & Mrs Edwards an opportunity to challenge the planning merits of the permit (see paragraphs 29-31, Attachment "A", Council application).

However, I write as a matter of urgency after Mr Edwards received written notification yesterday (28th Sept) from Maddock Lonie & Chisholm that Council intends to formally request leave from the Tribunal at this hearing to modify the order sought in its original S.87 Application.

Council is now requesting that the Permit merely be amended to comply with the newly - amended plans received by Council on 20th Sept. from the architect, and received yesterday by Mr Edwards from Council's lawyers.

For the reasons outlined in paragraphs 1-30 of Attachment "A" of Council's request in this matter, Mr Edwards is one of the objectors to this development who had the right to appeal Council's decision on 12th April 1999 to grant a permit, had he been correctly notified of this decision (see Attachment "A", paragraphs 22-28).

This right to request cancellation of the permit under Section 89 of the Planning & Environment Act 1987 has not been exercised by Mr Edwards to date because we understood that Yarra Council itself had made that request (under Section 87, as explained above) so that the matter could be brought before the Tribunal to consider the planning merits of the proposed development.

We thus strongly oppose Yarra Council being granted leave to modify the orders sought in its original application from those of cancellation to those of amendment, because this would abrogate the objectors' right to challenge the planning merits of the permit.

In light of both the serious nature and the lateness of these developments, Mr & Mrs Edwards now wish to exercise their right to challenge the grant of Permit 981434 by formally requesting a cancellation of the said permit under Section 89.1.b(iii) of the Planning and Environment Act 1987. The appropriate form and attachments will be lodged tomorrow morning, 30th Sept 1999.

In support of this request, we rely upon paragraphs 1-30 of Attachment "A" in Yarra Council's Section 87 application dated 9.7.99, except that as a matter of fact concerning paragraphs 4, 6, 22 & 23, not one but two parties were wrongly notified in what must have been a series of errors that a permit had been refused (as we submitted at the mediation hearing on 31 August 1999).

These two parties were the remaining objectors to the development - Mr & Mrs Edwards of 72 Wellington St, Richmond and Mr & Mrs Karakostov of 2 Blanche St, Richmond.

We further submit that Permit 981434 should not have been granted because of the planning grounds outlined in Attachment One to our request for cancellation.

We apologise for any unnecessary delays this request for cancellation may cause but point out that it is a direct result of Council's notification to us only a week before the hearing of their intention to modify their original request to cancel the permit.

However, we do not wish to cause unnecessary delays in the resolution of this matter.

Consequently, we also give notice that at the hearing on 5th Oct. we are prepared to withdraw our formal request for cancellation under Section 89 subject to the agreement of all parties that this hearing be conducted as a request to cancel the permit so that the permit can be challenged on planning grounds.

This was clearly Council's original intention as stated in paragraphs 30 & 31 of Attachment "A" in Council's own request of 9.7.99.

We appreciate that this may not give Yarra Council sufficient time to respond, given that they may have been preparing for an amendment hearing only.

In this case, we request that this hearing be adjourned to allow all parties sufficient time to respond.

35. I note particularly the fourth last paragraph indicating a preparedness to withdraw the request if there was agreement of all parties that the hearing could be conducted as a request to cancel. Clearly Mr & Mrs Edwards wanted to argue for cancellation on planning grounds.

36. On the 30 September 1999 the solicitors sent a reply to the Tribunal and to Mr Wood. No doubt it was an attempt to clarify the situation, but I do not think it had that effect. The letter, omitting formalities, reads:-

"We confirm receipt of a letter from Ian Wood to the Tribunal dated 29 September 1999, copied to our office.

In relation to the letter, we respond as follows:

* Whilst Application 1999/55024 is made pursuant to section 87 of the Planning and Environment Act 1987 ("the Act") and whilst this section of the Act provides the Tribunal with jurisdiction to cancel or amend a planning permit, Application 1999/55024 brought by Council expressly states that no order is sought by Council to cancel or amend Permit 981434. The third party respondent, Mr Edwards, is free to oppose the order sought by Council, namely no order, and make submissions in respect of an alternative order.

* On 23 September 1999, Council notified the Tribunal and the parties to this proceeding that Council sought a modification of the order originally applied for. Council will proceed to formally seek to amend Application 1999/55024 to seek amendment of the Permit 981434 to allow for the endorsement of amended plans.

* Council has not stated to Mr Wood or Mr Edwards that they are prevented from opposing the orders sought in Council's Application. To that extent, we are unsure how Council's actions can be regarded by Mr Wood as "abrogating the objector's right to challenge the planning merits of the permit.

* We note Mr Wood has instructions to lodge and serve a section 87 Application to be heard jointly with Application 1999/55024. As yet, we have not been served with a copy of this Application. However, we note that we understand from Mr Wood's letter that the orders sought in this Application will be for the cancellation of Permit 981434.

* In relation to paragraph 6 on page 2 of Mr Wood's letter, Council does not agree to the hearing of Application 1999/55024 being conducted as a request to cancel the Permit.

* In relation to paragraph 7 on page 2 of Mr Wood's letter, Council disputes that there is any inference able to be drawn from Council's original section 87 Application that Council sought the cancellation of the Permit. Council's Application clearly states no order is sought.

* Finally, Council does not consent to the adjournment of the proceedings listed for 5 October 1999. Council requests that any section 87 Application lodged on behalf of Mr Edwards be listed together with Application 1999/55024. Council is prepared to discuss the planning merits of Permit 981434 at the hearing on 5 October 1999."

37. I think the letter is confusing. Of course part of the confusion is the request proceedings that said that what it requested should not be granted, but I do not think it clarifies the question as to whether Mr & Mrs Edwards would, or would not be able to argue for cancellation or amendments other than those on the new plans. The last sentence of the first dot paragraph sounds reassuring where it says that Mr Edwards will be "free to oppose the order sought by the Council, namely no order, and to make submissions in respect of an alternative order". However, the third last dot paragraph on page 2 is much less reassuring where it says that "Council does not agree to the hearing of Application 1999/55024 being conducted as a request to cancel the Permit." Will the Edwards be able to argue for cancellation or not? Will the proceedings enable cancellation or not? Can Mr Wood and the Edwards be certain about what will happen or what will be able to happen in the circumstances?

38. Mr Wood informed me that he was so concerned about the position his clients might be placed in that he sought some legal advice and subsequently set about preparing a request for cancellation in their name. He claims to have had a very busy time devoting three days to the exercise. He explained that he is not familiar with this sort of proceeding or how to prepare for it. Nevertheless, on Monday 4 October 1999 he lodged a new request for cancellation with the Tribunal. He also served the other parties he knew of including the Responsible Authority and the permit holder with copies. The request was registered by the Tribunal under the number 1999/78269 on the 4 October, the day before the hearing fixed for the Council's Request 1999/55024.

39. I became aware of the existence of this new case during the afternoon of the 4 October but thought it too late, at that stage, to require service or give notice to the parties including the Minister. As it turns out those who might be interested, apart from the Minister, had been served, but Mr Wood was unaware of s.90(1) which provides that the Tribunal must give a reasonable opportunity to be heard at the hearing of a request to, amongst others, the Minister, see s.90(1)(d).

40. At the commencement of the hearing the foreshadowed application to amend the request document was made. I refused that application. I did so on the basis that, whilst I recognised difficulties in interpreting the request, I regarded it as a request to cancel or alternatively to amend the permit and I was not prepared, in the circumstances, to make the amendment sought because it seemed to me that it would confine the proceedings to the question of amending the permit, excluding the possibility of its cancellation, and confining it to a particular amendment namely the substitution of the new plan.

41. I then proceeded to hear the matter on the basis that the question of cancellation was open, and also on the basis that amendments other than the substitution of the new plan were possible. I made it clear that I would entertain evidence and submissions on the planning merits of the application. In fact, the planning merits were the live aspect of the case. Everybody conceded that there had been a material mistake in relation to the grant of the permit and that this constituted a valid ground for cancellation or amendment if I saw fit.

42. In effect, this put Mr & Mrs Edwards in the position that they would have been in if they had received the Notice of Decision to Grant a Permit and had then applied for a review of that decision. If I thought no permit should be granted I would cancel the permit on these proceedings, just as I would have refused to grant a permit if I had been hearing such a review. If I concluded that a permit should be granted, but on a different basis to that approved by the Responsible Authority, then I could make such amendments as I thought necessary or appropriate. If I concluded that a permit in the existing form was appropriate I could simply decline to cancel or amend the permit. That would have the same effect as dismissing an application by objectors to review a decision to grant a permit.

43. I then proceeded to hear the case on this basis and the major part of the hearing was devoted to a careful examination of the merits of the proposal. Mr Wood, in particular, had prepared and presented submissions and evidence that dealt with many aspects, large and small, of the proposal. I was also assisted, in determining the case, by the argument he, and the other representatives, presented in relation to these various questions.

44. At the conclusion of the hearing I announced my decision and gave oral reasons in relation to the case and the various issues raised, save for one matter. I said that I was satisfied, on the planning merits, that a permit should be granted and that therefore I would not cancel the permit. I was also satisfied that the amended plans dated 21 September, although substantially similar to the original plans, were nevertheless an improvement on them. On that basis I said that an amendment to the permit should be granted to adopt those plans.

45. The outstanding question to which I wished to give further consideration was whether there should be any further modification to the building envelope at first floor level at the rear of the building. I have now considered that matter and I have come to the conclusion that the proposal is satisfactory in that respect. This is really a matter calling for a judgment to be made in relation to which one cannot do more than say that the proposal is judged to be appropriate. As to the other issues, I rely on the oral reasons given at the conclusion of the hearing. The result is that the request will be granted to the extent of amending the permit by substituting the new plans.

46. So far as the new request lodged on the 4 October 1999 is concerned, it has served its purpose and become redundant. It was lodged in case Mr & Mrs Edwards were not be able to argue for cancellation or amendments other than the substitution of the 20 September 1999 plans. As things have turned out, their case in relation to those matters has now been heard and determined on the merits based on the request made by the Responsible Authority. Leave will therefore be given, by consent, for the Edwards' request to be withdrawn.

47. Mr Wood sought an order for costs. He is aware that the ordinary rule at this Tribunal is that parties must bear their own costs and that it is exceptional for an order for costs to be made. He recognises that the request proceedings, and their hearing, were effectively the equivalent of the review that his clients would have initiated if they had received the Notice of Decision that should have been served upon them. On that basis he further recognised that the parties should bear their costs generally for these proceedings, on the basis of that ordinary rule. He seeks more limited costs on a particular basis.

48. The Tribunal has power to make an order for costs where it is satisfied that the circumstances warrant that course. The Tribunal, from time to time, has made orders where a party has been put to unreasonable expense that it should not have had to incur. Mr Wood argues that the situation, or at least the uncertainty, created by the letters of the solicitors of the Responsible Authority of the 23 and 30 September 1999, made it necessary, as a matter of prudence, for his clients to incur the expense and trouble of initiating their request lodged on the 4 October 1999. Of course they would have reason to lodge such a request if the Responsible Authority had not sought to save them the trouble by itself commencing proceedings. It is the ambiguous nature of those proceedings that has caused confusion throughout. Nevertheless, the Edwards would not have lodged their request if it had not been for the insistence that the request of the Responsible Authority was not to be regarded as a request for cancellation. The communications from the solicitors' office may have contained reassuring statements, but they also insisted on positions that appeared to be inconsistent with those assurances.

49. I agree with Mr Wood, that these communications made it necessary, as a matter of prudence, for the new request to be made. I would have done the same thing myself, if I was still in practice and had been acting for the Edwards. I think it would be a remiss not to have done so. However, when I come to reflect upon the matter, it would have been more prudent for the Edwards to make such a request at an earlier stage, in any event. It would have been unwise for their case to have simply relied upon the uncertain ramifications of the confusing request made by the Responsible Authority. I therefore think that prudence would have called for the expense (including the lodging fee) and trouble of making such a request in any event. On this basis even the limited expenses claimed can be seen as part of the general costs of the proceedings, rather than an unreasonable expense that should not have been incurred and that was unreasonably imposed on the Edwards by the conduct of the Responsible Authority or its solicitors.

50. Of course, in the event of the Notice of Decision having been given and a review having been applied for by the Edwards, they would not have incurred the trouble and expense of preparing and lodging a request. They would, on the other hand, have been obliged to prepare, lodge and serve an application for review which would have attracted a lodging fee of $170.00. The fee on the request, on the other hand, was only $23.00. If I had been persuaded to order costs on the basis sought by Mr Wood, I would not have allowed anything like the suggested amount of $900.00 being 10 hours per day over three days at $30.00 per hour. If the preparation and lodging of the request document took Mr Wood that long, because of inexperience in the field, then it would have been better to engage an experienced professional at a much higher hourly rate but for 1 to 2 hours. In considering quantum I was thinking in the range of $120.00-$150.00. That turns out to be approximately equivalent to the difference between the lodging fee paid and that which would have been payable on a review. All in all, I have come to the conclusion that I should not make an order for costs.

51. In relation to the application for costs, Ms Lane referred to an earlier Tribunal decision of City of Stonnington v Dixon & Elligate reported at 7 AATR 130, and particularly to the first paragraph on page 137 dealing with costs. The circumstances of that case were not identical but there was a request to cancel the permit based on a material mistake in relation to the grant of the permit. In that case, like this one, it was quite clear that there had been a material mistake. However, the Tribunal decided on the merits of the proposal that the grant was appropriate and did not warrant cancellation. The request had, in that case, been made by the Responsible Authority. The other party was the permit holder. The Respondent permit holder sought an order for costs. It was said that the Responsible Authority should have not instituted a request and that should have been left to an affected party.

52. The Tribunal considered the Responsible Authority's action in bringing the request in that case to be justified. It took a rather sympathetic attitude in observing that "mistakes in the procedure surrounding planning permit applications are inevitable" (page 136). At the top of page 137 it said:-

"Because mistakes are inevitable, and because it is desirable that mistakes be confronted and dealt with rather than left to fester away, the Tribunal does not consider it appropriate to punish the Responsible Authority by an award of costs merely on the basis that it decided to actively confront the problem rather than leave it to some other party to work towards a solution. In all problems of this type, time is of the essence, if the issue is confronted quickly damage and delay can be minimised. It is in the public interest that responsible authorities take the lead in resolving procedural disputes. It is important the responsible authorities not ordinarily be exposed to punitive costs for taking action to resolve a procedural mistake, they may be exposed to both costs and damages if the procedural mistake is of their making."

53. I do not disagree with the decision to refuse costs in that case. Questions of costs have to be determined on the merits of the particular cases in which the question arises. I only wish to refer to the expressions in the above passage where there is reference to "punish the responsible authority" and "punitive costs". Certainly it is not appropriate to be punishing responsible authorities or other parties with punitive costs. It is not usually punitive costs that are being sought, but rather compensatory costs. I think that where costs are being awarded they should be to compensate the injured party for loss or expense unreasonably and unjustifiably imposed on that party. It is rather a question of fairness to such a party than of punishment for the other.

Environment Act 1987

Yarra City Council v A G Rattray-Wood & Ors [1999] VCAT 1935

At a glance

Court

Decision date

Source

Judgment (96 paragraphs)

Yarra City Council v A G Rattray-Wood & Ors [1999] VCAT 1935 (3 November 1999)

Parties

Legislation Cited (1)