Western Water v Rozen & Ors

[2008] VSC 384

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:

1. 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. 

1. 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. 

1. 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.

1. 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.