VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference NoS. P1283/2022 & P1336/2022 
permit application no. 005.2022.00000164.001
	
P1283/2022	

Applicant / Responsible Authority	
Mildura Rural City Council	

Respondents	
Fairsky Holdings Pty Ltd	

Steven John Ayling	

Affected parties	
Jayden Riordan & Kirsty McPherson	

Jeff McKeon & Tania McKeon	

Stephen Walker & Suellen Walker	

SUBJECT LAND	
902-908 Benetook Avenue
MILDURA VIC 3500	

P1336/2022	

Applicant	
Fairsky Holdings Pty Ltd	

Responsible Authority	
Mildura Rural City Council	

Respondents	
Jayden Riordan & Kirsty McPherson	

Jeff McKeon & Tania McKeon	

Steve Walker & Suellan Walker	

Referral Authority	
Head, Transport for Victoria	

SUBJECT LAND	
902-908 Benetook Avenue
MILDURA VIC 3500	

HEARING TYPE	Costs Hearing on the papers	

DATE OF HEARING	21 August 2023	

DATE OF ORDER	30 August 2023	

CITATION	Mildura RCC v Fairsky Holdings Pty Ltd [2023] VCAT 1008	

Order
1	Fairsky Holdings Pty Ltd and Steven John Ayling jointly and severally must pay the costs of Jayden Riordan & Kirsty McPherson, Jeff McKeon & Tania McKeon and Steve Walker & Suellan Walker of and incidental to the hearing of the proceeding.
2	In default of agreement, costs must be assessed by the Victorian Costs Court on a standard basis on the County Court Scale of Costs.
3	The costs must be paid within 30 days of the date of this order or, failing agreement, within 30 days following taxation by the Costs Court.

Geoffrey Code
Senior Member			

  Reasons
Background
1	On 22 May 2023, in Mildura RCC v Fairsky Holdings Pty Ltd:
(a)	I affirmed the decision by Mildura Rural City Council (‘the Council’) to refuse to grant retrospective permission under the Mildura Planning Scheme (the ‘planning scheme’) to use the subject land for the purpose of a store.
(b)	I allowed an application by the Council for an enforcement order and made an order requiring that use to cease.
2	Jayden Riordan & Kirsty McPherson, Jeff McKeon & Tania McKeon and Steve Walker & Suellan Walker (‘the affected parties’) have applied for an order that Fairsky Holdings Pty Ltd and Steven Ayling (together, ‘Fairsky’) pay its costs fixed on an indemnity basis.
3	The Council also applied for an order that Fairsky paid its costs.  Before the hearing on the papers of both costs applications, the Council withdrew its application.  It told the Tribunal:
We wish to advise the Tribunal (and parties) that we have reached agreement with Fairsky Holdings and Mr Ayling which has been documented and signed / executed by the parties.  Accordingly, we confirm that we do not propose to make any submissions regarding Council’s costs (and fee reimbursement) in respect of the Proceedings.
4	Accordingly, I only need to consider the costs application by the affected parties.
Principles
5	The general rule or presumption in any Tribunal proceeding is that each party is to bear their own costs.  This applies regardless of the final disposition of the proceeding.
6	Nonetheless, the Tribunal may order that a party pay all or a specified part of the costs of another party if the Tribunal is satisfied that it is fair to do so having regard to five statutory considerations.  The Tribunal determines what is fair from the circumstances of a particular case.
7	An award of costs is more likely in a proceeding in the Tribunal’s original jurisdiction than its review jurisdiction.  It is often said that an award in a proceeding in the review jurisdiction is rare.
Separate consideration?
8	This proceeding involved one application in each jurisdiction.  That is not so rare because an enforcement order application which alleges a contravention of the relevant planning scheme because permission is required and has not been granted often results in a person applying for the permission.  A person may then apply to review the responsible authority’s decision on the application for permission.  The Tribunal sometimes determines the review application before the enforcement order application.  Alternatively, as in this proceeding, the Tribunal hears and determines them together.
9	Fairsky submits that I should consider costs separately in respect of the enforcement application and the review application, having regard to the practice to which I have referred of costs rarely being awarded in the review jurisdiction.  In the hearing of this proceeding, most of the argument concerned the review application.
10	In the circumstances of this proceeding, I do not accept Fairsky’s submission having regard to the close relationship between the enforcement application and the review application.
Loss or damage
11	The affected parties bring their costs application under both section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) section 150(4) of the Planning and Environment Act 1987 (Vic) (‘PE Act’).
12	Section 150(4) of the PE Act provides:
If any proceedings are brought before the Tribunal under this Act and the Tribunal is satisfied that—
(a)	the proceedings have been brought vexatiously or frivolously or primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings; and
(b)	any other person has suffered loss or damage as a result of the proceedings—
the Tribunal may order the person who brought the proceedings to pay to that other person an amount assessed by the Tribunal as compensation for the loss or damage and an amount for costs.
13	I will not order Fairsky to pay the affected parties costs under this section.  They claim loss through costs of representation in the proceeding and loss of amenity arising from the use before the proceeding.  I do not find these are relevant losses.  They make no claim in relation to damages.  
Grounds
14	The affected parties do not rely on or make any submission about the statutory grounds relating to conduct causing unnecessary disadvantage, to conduct unreasonably prolonging time to complete the hearing, and to the nature and complexity of the proceeding.
15	Fairsky submits that no award should be made because, in accordance with the reasoning of the Tribunal in Sixty-Fifth Eternity Pty Ltd v Boroondara CC, costs are almost never awarded in review proceedings unless the statutory grounds relating to conduct causing unnecessary disadvantage are made out.  This decision is not binding and is qualified and does not prevent an award if it is fair to do so.
Relative strengths
16	The first statutory ground on which the affected parties rely is the relative strengths of the claims made by them and made by Fairsky.
17	Fairsky contends this ground cannot be made out because Fairsky did not make any claim that had ‘no tenable basis in fact or law’.  However, Fairsky properly accepts that such a finding is unnecessary under the statutory ground and relative strengths can arise in other circumstances.
18	I would characterise the strength of Fairsky’s claims in the review proceeding as very weak when properly assessed at the time the review proceeding was lodged.
19	The proceeding was the third Tribunal proceeding in which Fairsky had sought to obtain permission to store machinery and equipment associated with its farm machinery business in Mildura.
20	In the first proceeding, Fairsky had sought permission to use and develop the subject land for a rural industry.  The Tribunal affirmed the Council’s refusal to grant permission, citing fundamental problems.
21	In the second proceeding, Fairsky had sought permission to use and develop the subject land for a store.  Sufficient changes were made to the application such that the Tribunal was satisfied that the proceeding should be characterised as a correcting repeat appeal.  The Tribunal again affirmed the Council’s refusal to grant permission, citing support for the Tribunal’s reasons in the first proceeding.
22	I characterised Fairsky’s application in the proceeding (the third proceeding) as a classic repeat appeal.  It was poorly conceived and had little or no prospects of success because:
(a)	It sought to side-step, brush aside or ignore the Tribunal’s reasons in the second proceeding, and sought to respond unsatisfactorily to unchanged policy.
(b)	It made no changes to the application which attempted to address the Tribunal’s concerns in the second proceeding.
(c)	In fact, I found it to be an ‘intensification or enlargement’ of the proposal rejected in the second proceeding
(d)	There were no relevant changes to the circumstances of the land and its surrounds.
(e)	There had been no changes in the interpretation of the facts or law, particularly in relation to use for a store in a Farming Zone.
23	Fairsky’s submissions were weak for the following reasons:
(a)	Although it had sought permission to use and develop the subject land for a store, it made no submission as to why the store in its application was an acceptable planning outcome.
(b)	It contended the proposed use should be characterised as a rural industry (ie differently to that in its application) based on a ‘honest belief’ that I found was an unreasonable belief.
(c)	It sought to deflect responsibility for seeking permission for a store by stating it had merely bowed to the Council’s demands.
(d)	Instead of advancing the merit of its application, it sought to criticise the Council’s processing of the application when it ought to have known that in a review proceeding the processing of the application before the primary decision is not under review.
(e)	It sought to advance its application by reference to criticism of the provisions of the instrument under which its application must be assessed.
(f)	It submitted the Council should have approved proposed vehicle access to Benetook Avenue (that formed a part of the overall application) because the road manager had consented, which failed to recognise the matters the Council needed to consider in deciding the application.
(g)	It submitted the Council should have granted permission consistently with its decision on an application for a store in a Farming Zone in another location, failing to recognise the well-established principle that precedent has little value in planning decisions.
24	Fairsky’s submissions in the enforcement application were weak for the following reasons:
(a)	The facts as presented in the Council’s evidence were not contested.
(b)	It contended the use should be characterised as a rural industry that meets the conditions in the Farming Zone and not as a store and hence the Council’s application must fail.  These submissions were weak having regard to the permission Fairsky sought in the review application and a sensible application of the conditions.
(c)	It resisted the making of an enforcement order on grounds of deficiencies in the Council’s investigation leading to the enforcement application, including non-compliance with Council’s policy for handling complaints, which I found lacked merit and were weak.
(d)	It submitted the lodging of the enforcement order application was rushed, causing unfairness, which I found lacked merit and were weak.
(e)	It submitted the Council’s failure to communicate with Fairsky over a four month period before February 2022 was an acceptance of conformity of the existing use with the planning scheme, which I did not accept.
25	The relative strengths of Fairsky’s claims were significantly below those advanced by the Council and the affected parties.
Other relevant matters
26	The second statutory ground on which on which the affected parties rely is any other matters the Tribunal considers relevant.
27	I consider the following matters relevant.
28	First, Fairsky started the use after the second proceeding on a ‘seriously risky’ and weak basis.  The risk was evident from the Tribunal’s reasons in the second proceeding.  Fairsky states it relied on advice from a consultant.  It concluded its problems related to conditions specified in the planning scheme when it knew the Council did not agree.  I found that Fairsky did not mitigate the risk, as a prudent occupier of land would have, by taking action such as applying for a certificate of compliance.
29	Second, Fairsky sought to ambush the Council and the affected parties in its the grounds on the enforcement application.  Fairsky originally did not deny a contravention but at the start of the hearing, and only giving less than one day’s notice, it sought to amend those grounds seeking to contest any contravention.  I refused its application to amend on procedural grounds.
30	Third, Fairsky’s filed grounds in the review application accepted that the correct characterisation of the use was a store but at the start of the hearing, without notice, relied on different grounds that resiled from that acceptance.  I found this to be a further ambush by Fairsky.
31	Fourth, Fairsky had an opportunity to consent to the making of an enforcement order before the proceeding in February 2023.  The terms of this consent would have put Fairsky in either the same position or a better position than the outcome of the proceeding.
32	Fairsky chose not to settle the enforcement proceeding because it claimed it had decided to seek permission.  These reasons lack merit because the terms of the enforcement order in the settlement meant that the order would not be effective unless permission was refused.
Indemnity costs?
33	The affected parties primary submission is that it would fair to make an award on an indemnity basis.
34	While Fairsky’s claims were weak and while other matters were relevant, the affected parties application does not rise to the standard at which they have proven any basis for an award on an indemnity basis.

Conclusion
35	In these reasons, I have identified a number of factors that contribute to a finding that it would be fair that Fairsky pay costs.
36	It might not be fair to do so taking each of the factors on their own.  However, taken in combination, the factors satisfy me that it would be fair to do so.
37	I will make an order requiring Fairsky to pay the affected parties’ costs on a standard basis.

Geoffrey Code
Senior Member