VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1402/2022
Permit Application no. YR-2021/962	
CATCHWORDS	
 Sections 109 & 115B of  Victorian Civil and Administrative Tribunal 1998,  Fee reimbursement; Costs.   	

Applicant	Sharon Keeble	

Responsible Authority	Yarra Ranges Shire Council	
SUBJECT LAND	17 Symons Street
HEALESVILLE  VIC  3777	
HEARING TYPE	Costs hearing on the papers	
DATE OF ORDER	16 June 2023	
CITATION	Keeble v Yarra Ranges SC [2023] VCAT 667	

Order
Application for Reimbursement of Fees
1	Pursuant to section 115B of the Victorian Civil and Administrative Tribunal Act 1998, the Yarra Ranges Shire Council is ordered to reimburse the applicant, Sharon Keeble the whole of the application fee and daily hearing fees] paid by the applicant in the proceeding, namely $1,380.97 within 30 days of the date of this order.
Application for Costs 
2	No order as to costs.  

Laurie Hewet
Senior Member	

Reasons

background 
1	Application for Review No. 14012/2022 was an application to review the responsible authority’s failure to grant a permit within the prescribed time.  
2	The applicant had sought permission under the following provisions of the planning scheme: 
•	Construction of a second dwelling on a lot under the Neighbourhood Residential Zone.
•	Construction of a building exceeding 7.5m in height, removal of vegetation and construction of a front fence under the Significant Landscape Overlay.
•	Construction of a building used for accommodation under the Bushfire Management Overlay.
•	Demolition of the existing front fence and alterations to the front fence, buildings and works associated with the construction of a new dwelling under the Heritage Overlay.
3	At the hearing on 15 March 2023 the responsible authority advised that it supported the grant of a permit subject to conditions.  Two of the conditions sought by the responsible authority were opposed by the applicant. 
4	The responsible authority’s position had been first conveyed to the Tribunal and applicant with the filing of submissions on 8 March 2023.  
5	At the hearing the Tribunal amended the application by substituting amended plans.  The Tribunal further ordered that the issues in dispute be confined pursuant to section 84AB of the Planning and Environment Act 1987 (the PE Act)  to a consideration of the conditions that remained in dispute.  
6	The Tribunal ordered that a permit be issued subject to conditions.  The disputed conditions were deleted from the permit.  At the applicant’s request, costs were reserved.  
7	At the hearing the applicant made an application under Section 115B(1) of the Victorian Civil & Administrative Tribunal Act 1998 (the VCAT Act) for reimbursement of the application fee.  
8	I provided the responsible authority with the opportunity to make a written submission after the hearing, in respect of that application.  The responsible authority has provided a written submission contesting the reimbursement of the application fee.  
9	The applicant has subsequently applied for an order pursuant to s109(2) of the VCAT Act for a costs order against the Responsible Authority and in favour of the Applicant for Review.  
application for reimbursement of fees
10	Sections 115B and 115CA of the VCAT Act provide for an Applicant to seek to have hearing fees reimbursed by the Responsible Authority. 
11	Section 115CA specifically relates to an Application under section 79 of the PE ACT to review the failure of the Responsible Authority to grant a permit within the prescribed time.
12	To avoid the entitlement to reimburse fees the Tribunal must be satisfied that there was reasonable justification for the responsible authority to fail to grant the permit having regard to the following matters under S.115CA:
(a) the nature and complexity of the permit application; and
(b) the conduct of the applicant in relation to the permit application; and
(c) any other matter beyond the reasonable control of the responsible authority.
13	The responsible authority provided a written response in which it conceded the timelines for the processing of the planning permit application outlined in the applicant’s documentation is accurate. 
14	Notably the planning permit application was submitted on 8 December 2021.  The Application for Review was lodged 14 October 2022.
15	The application was amended on 21 June 2022, following discussions between the permit applicant and Council. The application was advertised on 4 August 2022. 
16	The total days elapsed at the time of the Application for Review was 114.  
17	The responsible authority submits that the nature and complexity of the application did justify exceedance of the 60 day statutory timeframe.  The responsible authority emphasises in this respect that the application proposed an additional dwelling on a lot in a Neighbourhood Residential zone with a Bushfire Management Overlay (BMO1), Heritage Overlay (HO427) and Significant Landscape Overlay (SLO22).   
18	I note that the Council does not submit that the conduct of the applicant contributed to the Council’s failure to decide the application in the prescribed time. 
19	Similarly, the Council has not identified any other matters beyond its reasonable control that justifies the failure to grant the permit within the prescribed time.  
20	Consequently, the Council seeks to justify its failure to grant a permit based on the nature and complexity of the permit application.
21	I am not persuaded by the Council’s submission on this point. 
22	The identification of legitimate planning issues is not sufficient of itself to demonstrate a justification for the failure to grant a permit within the prescribed time.  
23	The nature of the application and the planning scheme controls that apply have been outlined above.  The issues in the application related to neighbourhood character, heritage, amenity and vegetation removal.  These are the type of issues routinely dealt with by responsible authorities on a regular basis. I am unable to identify any matters associated with this application that would elevate the consideration of those issues into the realm of complexity that would justify the Council failing to deal with those issues within the prescribed time.
24	I have therefore ordered the responsible authority to reimburse the application fees.  
application for costs 
25	After the hearing the applicant applied for an order that the responsible authority pay its costs in relation to the hearing conducted on 15 March 2023. 
26	The applicant has filed details of its costs and fees. 
27	The amount claimed is $24,946 made up of heritage expert witness fees($14,300), review of witness statements ($2,200), preparation of submissions and attendance at the hearing ($7,700), hearing attendance by applicant for review at the hearing ($746).  
28	The responsible authority was provided with the opportunity to make a written submission in accordance with the Tribunal’s Order dated 19 April 2023.  The order stipulated that submissions must be received by 12 May 2023.  
29	The responsible authority did not provide a submission by the specified date.  
30	Having regard to the responsible authority’s failure to provide a submission in response to the costs application, the applicant’s submissions in relation to that application, and its detailing of events in support of the application, are uncontested.  
31	I have however been able to verify through my review of the file, the primary elements of the applicant’s submission in relation to those matters that bear on my decision in this case.   
32	The relevant statutory provision for costs is to the effect that parties bear their own costs in a proceeding. This is often referred to as the ‘normal rule’.
33	However, the Tribunal may require a party to pay all or part of another party’s costs if the Tribunal is satisfied that it is fair to do so, after having regard to specified criteria and any other matter the Tribunal considers relevant.
34	The Tribunal’s power is therefore discretionary and of broad scope
35	The applicant submits that the responsible authority’s conduct and the timing of the circulation of its position on the application resulted in the applicant for review incurring unnecessary costs.  The applicant submits this conduct falls within the ambit of section 109(3)(e) of the VCAT Act which empowers the Tribunal to have regard to any other matter it considers relevant.
36	The circumstances underlying the applicant’s submission are detailed in its documentation supporting the application for costs.    
37	In broad terms its submits that the responsible authority had consistently advised the applicant that the proposal was opposed.  The responsible authority’s opposition to the proposal continued to be communicated to the applicant following the filing of amended plans. 
38	On the basis of that advice the applicant prepared for a contested hearing and engaged the services of a heritage expert to provide evidence at the hearing.
39	 In addition to the circulation of the Amended Plans on 23 January 2023, an expert witness statement prepared by Mr Raworth was circulated on 28 February 2023 in accordance with the requirements of the Tribunal’s Practice Note (PNVCAT2).
40	On 7 March 2023 submissions on behalf of the Applicant for Review were circulated in accordance with the Tribunal’s Order dated 25 October 2022.
41	On 8 March 2023 the responsible authority circulated its submission.  The responsible authority’s submission was to support the grant of a planning permit subject to conditions.
42	Although the responsible authority at the hearing did not oppose the substitution of the amended plans, it is relevant that the delegate report which recommended the grant a permit did not reference the amended plans.  
43	The applicant therefore seeks costs from the responsible authority in relation to fees charged by the expert witness and the advocate.  The applicant notes that Mr Raworth was not required to attend the hearing.   The costs associated with the preparation of the evidence could have been saved had the responsible authority conveyed its position on the application within an appropriate timeframe of the Hearing. 
44	In respect of the advocate costs, the costs associated with the preparation of submissions and attendance at the Hearing are sought.  The applicant submits that the submission prepared was not required to be presented at the Hearing with the Hearing confined to consideration of two draft conditions. 
Decision on the application for costs
45	Section 109(3) of the VCAT Act states that a costs order under s109(2) can be made if the Tribunal is satisfied that it is fair to do so, having regard to-
(a)	whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—
(i)  failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii)  failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii) asking for an adjournment as a result of (i) or (ii);
(iv)  causing an adjournment;
(v)   attempting to deceive another party or the Tribunal;
(vi)  vexatiously conducting the proceeding;
(b)	whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c )	the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d)	the nature and complexity of the proceeding;
(e)	any other matter the Tribunal considers relevant.
46	As previously documented the applicant in this case relies on section 109 (3) (e). The basis of the application is that the applicant was subjected to unnecessary costs because the responsible authority did not reveal its position on the proposal until a week before the hearing.  
47	Importantly the applicant does not rely on any of the other relevant matters under section 109 (3). 
48	The responsible authority’s performance in this matter during the processing of the application and leading up to the filing of its submission prior to the hearing, is justifiably a source of great frustration for the applicant.  
49	This is not however grounds for an award of costs.  
50	In relation to the proceeding itself, the responsible authority did not engage in conduct that unnecessarily disadvantaged the applicant.  The responsible authority had complied with VCAT’s orders and directions.  At the hearing it consented to the substitution of amended plans and it also consented to a confinement of the issues in dispute pursuant to section 84AB of the PE Act.    
51	Consequently, because of those actions, the duration of the hearing, which was listed for one day, was truncated and concluded in less than three hours. A decision was delivered orally by the Tribunal at the end of the hearing.  A permit was issued.  The disputed conditions were removed from the permit.  
52	Because this proceeding was brought under section 79 of the PE Act, the Tribunal in determining the application for review is required to take account of any relevant matter the responsible authority is required to have regard in making its decision.  
53	Prior to the Tribunal’s decision to confine the matters in dispute, and notwithstanding the responsible authority’s decision to support the grant of a permit, it was open to the Tribunal to consider all relevant aspects of the proposal including the proposal’s affect on the significance of the heritage place.  
54	In the circumstances of this case, the applicant’s decision to engage expert heritage evidence may have been considered necessary irrespective of the responsible authority’s belated support for the grant of a permit.   
55	The preparation of submissions by the applicant’s advocate and the advocate’s appearance at the hearing were also necessary components of the applicant’s preparation for the hearing and presentation to the Tribunal.    
56	In these circumstances and for these reasons I have decided against making an award of costs against the responsible authority.  

Laurie Hewet
Senior Member