VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P266/2023 
	
CATCHWORDS	
Section 109 Victorian Civil and Administrative Tribunal Act 1998 (Vic) – costs – enforcement proceedings    	

APPLICANT/ responsible authority	Manningham City Council	
RESPONDENTs	Alpine Developments Pty Ltd
Merrion (5) Pty Ltd	
SUBJECT LAND	5 Red Hill Terrace
DONCASTER EAST VIC 3109	
WHERE HELD	Melbourne	
DATE OF ORDER	19 June 2024	
CITATION	Manningham CC v Alpine Developments Pty Ltd (Costs) [2024] VCAT 570	

Order
Order for costs
1	Alpine Developments Pty Ltd and Merrion (5) Pty Ltd are ordered to pay the costs of Manningham City Council fixed in the sum of $50,130. The costs must be paid within 90 days of the date of this order.
Order for reimbursement of fees
2	Pursuant to section 115B and 115CA of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), Alpine Developments Pty Ltd and Merrion (5) Pty Ltd are ordered to reimburse the applicant, Manningham City Council the fees paid by the applicant in the proceeding, namely $2, 953.90 within 90 days of the date of this order.

Jeanette G Rickards 
Senior Member			

Reasons

1	This is an application for costs by Manningham City Council (‘Council’) against the respondents Alpine Developments Pty Ltd (‘Alpine’) and Merrion (5) Pty Ltd (‘Merrion’).
2	The costs application arises out of the Tribunal’s decision to allow an enforcement order against Alpine and Merrion.  The Tribunal found both Alpine the original developer, and Merrion the builder, responsible for installing car stackers on the subject land that did not comply with endorsed plans dated 2016 and ordered that they remove the installed car stackers and replace them. 
3	The Council seeks costs in the amount of $75,434.16 and reimbursement for fees in the amount of $2,953.90.
4	Alpine submits each party should bear their own costs of the proceeding. Alpine submits the Council originally approved the works the subject of the enforcement application. Merrion has not responded to the Council’s application for costs.
Legislation 
5	The Tribunal’s discretion to award costs is contained in section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) which provides:
(1)	Subject to this Division, each party is to bear their own costs in the proceeding.
(2)	At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3)	The Tribunal may make an order under subsection (2) only if 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 strength 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 matters the Tribunal considers relevant.
Consideration of costs application
6	The Council in support of its application relied on sections 109(3) (a), (c), (d) and (e) of the VCAT Act. The Council highlighted that enforcement proceedings in the Tribunal’s original jurisdiction differ from the Tribunal’s review jurisdiction.  In enforcement proceedings, as in ordinary court proceedings ‘the Tribunal is called upon to make findings of fact and to apply the law to the facts which it finds, in the same way as a court does.’
7	As stated by the Tribunal in Great Avenue Pty Ltd & Ors v Mitchell SC  ‘in enforcement proceedings, the person against whom the costs [is] claimed has brought the situation upon him or herself by causing the breach and then failing to deal with the problem without the need for a Tribunal hearing.’
8	The Council submits it had no other option but to bring the enforcement proceeding to remedy the non-compliance with the permit and the detrimental impacts being suffered by the owners and occupiers of the subject land. 
9	Alpine and Merrion did not respond to letters from the Council seeking compliance before the proceedings were lodged with the Tribunal. Alpine did not comply with the Tribunal’s orders to filing a statement of grounds, was late in filing submissions and an affidavit resulting in what Council described as additional work to prepare for the proceeding. Merrion did not file a statement of grounds but gave an oral submission at the hearing.
10	Despite Alpine denying the car stackers did not comply, no evidence was called to support this claim. This resulted in the Council calling evidence from a surveyor and a traffic engineer to show the car stackers did not comply. Merrion sought to show the Tribunal that the car stackers complied by parking a car in one of the spaces following the removal of the car’s aerial. Although Merrion did not deny the car stackers complied Merrion sought to put blame on others.
11	Alpine sought to raise arguments that the permit Under which the Council brought the enforcement application was invalid. The Tribunal found the permit the Council was relying on was for the development of the subject land, attached to the land and could be enforced. The permit Alpine referred to was for subdivision not for development. The subdivision permit having expired once the subdivision was registered.
12	Alpine relied upon the Council approving the development. As the inspection fell during the COVID - 19 Pandemic the Council did not carry out an in person inspection but relied upon photographs and confirmation by Alpine that the works had been carried out. As a result, the Council approved the works without inspecting.
13	Whilst Council had approved the constructed development without inspection it remained that the 2016 endorsed plans indicated the minimum dimensions and platform widths of the car stackers. The Tribunal at paragraph 52 of its decision stated: ‘we are not aware how the breakdown occurred between the endorsed plans and the as-constructed car stackers, we do not consider it fair or reasonable that the current owners be left with the poor planning outcome that has resulted.’ 
14	It is clear the Council was required to bring the proceedings. There was no response to the request from the Council from either Alpine or Merrion to rectify the issue. Alpine and Merrion were either late or did not respond to the Tribunal’s orders. The Council called Mr McCarthy to provide evidence that the car stackers were the incorrect size, despite Alpine’s claims. Alpine did not call any expert evidence. The Council also called Mr Mania, a Traffic Engineer to provide evidence in relation to the minimal number of cars that could use the car stackers. It is evident the proceedings were complex, possibly made more so by the rejection of both Alpine and Merrion that the car stackers did not comply, both seeking the car stackers to remain.  
15	In the circumstances it is considered that the Council should recover some of the costs it has incurred in bringing the enforcement proceedings. 
16	Alpine and Merrion are ordered to pay the Council the amount of $50,130.
Reimbursement of fees 
17	Council has sought reimbursement of its fees in the proceeding of $2,953.90 which included:
$1,284.40 – application fee;
$1,113.00 – October hearing fees; and
$556.50 – hearing fee site inspection.

18	Reimbursement or payment of fees is considered under sections 115B and 115C of the VCAT Act:
Section 115B Orders as to reimbursement or payment of fees
(1)	At any time, the Tribunal may make any of the following orders—
(a)	 an order that a party to a proceeding reimburse another party the whole or any part of any fee paid by that other party in the proceeding, within a specified time;
			…
(3) 	In making an order under this section, other than in a proceeding to which section 115C or 115CA applies, the Tribunal must have regard to—
(a)	the nature of, and issues involved in, the proceeding; and
(b) 	the conduct of the parties (whether occurring before or during the proceeding), including whether a party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse; and
(c) 	the result of the proceeding, if it has been reached.
115C Presumption of order for reimbursement of fees to successful party in certain proceedings
(1)	   This section applies to the following proceedings—
    …
   (d) 	a proceeding under section 114, 120 or 149A of the Planning and Environment Act 1987;
(2) 		Subject to subsection (3), a party who has substantially succeeded against another party in a proceeding to which this section applies is entitled to an order under section 115B that the other party reimburse the successful party the whole of any fees paid by the successful party in the proceeding.
(3) 	Subsection (2) does not apply if the Tribunal orders otherwise, having regard to—
(a)	the nature of, and issues involved in, the proceeding; and
(b) 	the conduct of the parties (whether occurring before or during the proceeding), including whether the successful party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse.
(4) 	In this section—
successful party, in relation to a proceeding, means a party who has substantially succeeded against another party in the proceeding.
19	Section 115C of the VCAT Act by referring to section 114 of the Planning and Environment Act 1987 (Vic), the enforcement application, confers a presumption the Council is entitled to an order that a party pays for the whole fees it incurred in the proceeding. The Council was successful in obtaining the enforcement orders it sought. 
20	In the circumstances I consider the Council is entitled to a reimbursement of fees in the amount of $2, 953.90. 

Jeanette G Rickards Senior Member