Western Water v Rozen & Ors
[2008] VSC 384
•29 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8990 of 2007
IN THE MATTER of the Planning and Environment Act 1987 and
IN THE MATTER of the Victorian Civil and Administrative Tribunal Act 1998
| WESTERN WATER | Appellant |
| v | |
| MAURICE AND ESTHER ROZEN | First Respondent |
| & | |
| MACEDON RANGES SHIRE COUNCIL AND OTHERS | Second Respondent |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 SEPTEMBER 2008 | |
DATE OF RULING: | 29 SEPTERMBER 2008 | |
CASE MAY BE CITED AS: | WESTERN WATER v ROZEN & ANOR | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 384 | |
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Costs – Indemnity Certificate – s.4 Appeal Costs Act 1998
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P. O’Farrell | Deacons Lawyers |
| For the First Respondent | Mr N. Tweedie | Best Hooper Solicitors |
| For the Second Respondent | No appearance listed | Maddocks |
HIS HONOUR:
In this matter the appellant water authority has been successful. In the ordinary course costs would follow the event. Mr Tweedie has submitted, however, that this was a complex appeal involving difficult issues of the public interest. He further submits that it was not the position taken by his client which led the Tribunal into error of law.
I do not entirely accept the last submission. It seems to me that the Tribunal’s decision was in large part responsive to the case put on behalf of the first respondent. Nevertheless, I agree that this case raises complicated questions of real difficulty with respect to the regime of planning controls relating to residential development within open potable water catchments. It is perhaps regrettable given the significance of the underlying question that the planning controls are not simpler and easier of application.
It seems to me that in effect this has been a test case and that the first respondents have been caught up in a debate which is of significantly wider consequence than their individual permit applications considered alone might suggest.
In all the circumstances it seems to me that the appropriate order is that the first respondent be granted an indemnity certificate pursuant to s.4 of the Appeal Costs Act. Further, the first respondent be ordered to pay the appellant’s costs but limited to such costs as are covered by the indemnity certificate.
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