VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P504/2022
Permit Application no. PA3335 	
CATCHWORDS	
Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); application for costs in the context of an application for review involving a correcting repeat appeal and where the Tribunal set aside the decision of the Hepburn Shire Council and a planning permit issued. 	

Applicant	Clifftop at Hepburn Pty Ltd	

Responsible Authority	Hepburn Shire Council	
RespondentS	Carolyn Whitehead	
	Debra Rauber & Gerry Rauber	
	Inge van der Poel	
	Jeremy Whitehead	
	John Stockfeld	
	Kenneth John Mansell	
	Linda Hancock	
	Mark Considine	
	Melinda Sheard	
	Nagia Centurion	
	Paul Carney	
	Steve Smith	
	Michelle Penrose	
	Gareth Willis 	
	Richard Pleasance 	
Referral AuthoritIES	Central Highlands Regional Water Authority	
	Country Fire Authority	
	Goulburn Murray Water	
	North Central Catchment Management Authority	

SUBJECT LAND	153 Charlies Road
ELEVATED PLAINS VIC 3461	

HEARING TYPE	Costs Hearing – on the papers	

DATE OF HEARING	1 July 2024	

DATE OF ORDER	3 October 2024	

CITATION	Clifftop at Hepburn Pty Ltd v Hepburn SC (Costs) [2024] VCAT 952   	

Order
Amend VCAT application 
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the application for costs and reimbursement of fees dated 16 May 2024 as amended by the submissions dated 30 May 2024 is amended to remove the application for reimbursement of fees sought from the Hepburn Shire Council.
Costs 
Application for costs against the CFA
2	By no later than 3 November 2024, pursuant to section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Country Fire Authority is ordered to pay the costs of the applicant fixed in the sum of $2,200.00.
Application for costs against Melinda Sheard
3	No order as to costs.
Application for costs against John Stockfeld
4	No order as to costs.
Application for costs against Carolyn Whitehead
5	No order as to costs.

Susan Whitney
Presiding Member		Peter Gaschk
Member	

  Reasons
what is this decision about?
Background
1	This decision deals with an application for costs brought by Clifftop at Hepburn Pty Ltd (‘applicant’) with respect to an application for review that it lodged under section 79 of the Planning and Environment Act 1987 (Vic).
2	In the application for review, the applicant sought the Tribunal’s review of the failure by the Hepburn Shire Council (‘Council’) to make a decision within the statutory timeframe with respect to the proposed use and development of the land at 153 Charlies Road, Elevated Plains (‘Land’) for a caravan and camping park (‘glamping’) along with one associated business identification sign.
3	Following numerous hearing days and several interim orders issued by the Tribunal, on 10 May 2024 the Tribunal determined to set aside the Council’s decision and direct that a permit be issued for the proposal (‘2024 Decision’).
4	Following the 2024 Decision, on 16 May 2024 the applicant lodged an application for reimbursement of fees with the Tribunal.
5	In response, on 20 May 2024, the Tribunal issued an order requiring the applicant to lodge submissions in support of its application and providing for submissions in reply to be filed by the other parties. 
6	The Tribunal’s order required the applicant to file its submissions by 30 May 2024 and for any submissions in response to be filed by 14 June 2024. 
7	The costs hearing was scheduled to be heard ‘on the papers’ on 1 July 2024.
Brief overview of application for review
8	The Council is the responsible authority for the Land under the Hepburn Planning Scheme (‘Scheme’).
9	The Land is in the Farming Zone – Schedule 2 (‘FZ2’) and is subject to the Environmental Significance Overlay – Schedule 1 ‘Special Water Supply Catchment Protection’ and the Bushfire Management Overlay (‘BMO’).
10	A range of planning permissions were required for the proposal, including use for a camping and caravan park under the FZ2, for development under the FZ2 and the overlays and for signage.
11	The Country Fire Authority (‘CFA’) was a recommending referral authority for the proposal under the BMO. The CFA appeared at the hearing.
12	As explained in the 2024 Decision, this proceeding was a correcting repeat appeal following on from the decision by the Tribunal (differently constituted) in Clifftop at Hepburn Pty Ltd v Hepburn SC (‘Clifftop 2021’). Paragraphs 36 to 49 of the 2024 Decision address the key concerns of the Tribunal in Clifftop 2021, the principles of correcting repeat appeals and provide a comparison between the proposal before the Tribunal in Clifftop 2021 and the proposal before us in the 2024 Decision.
13	As set out in the 2024 Decision, the Tribunal issued several interim orders in this proceeding before issuing its ultimate decision on the merits of the permit application.
14	In the end, the applicant was successful in that the review proceeding resulted in the issue of a planning permit (subject to conditions) for the proposed use and development of the Land.
Brief overview of application for costs and reimbursement of fees
15	In the ‘Application for costs or for reimbursement of fees’ form dated 16 May 2024, the applicant sought reimbursement of its fees incurred in the proceeding from the Council.
16	On 30 May 2024, in accordance with the Tribunal’s order dated 20 May 2024, the applicant filed its costs submissions in which the applicant, in effect, amended its application to include an application for costs against certain, specified persons.
17	In all, the applicant sought:
a	Fixed amounts of costs from:
i.	the CFA;
ii.	Melinda Sheard;
iii.	John Stockfeld; and
iv.	Carolyn Whitehead; and
b	Reimbursement of its fees in the proceeding from the Council.
18	Following the filing of consent orders between the applicant and the Council dated 12 June 2024, the applicant no longer pursues its application for reimbursement of fees from the Council on the basis that the applicant and the Council have reached a separate agreement regarding the applicant’s requested reimbursement of fees from the Council.  
19	Instead, the applicant and the Council jointly request that:
a	The Tribunal dispense with the requirement in order 2 of the Tribunal’s orders dated 20 May 2024 for the Council to file submissions in reply; and
b	There be no order for reimbursement of fees made against the Council.
20	On the basis that the applicant and the Council have reached a separate agreement and consent to this aspect of the application being removed from the Tribunal’s remit, we are prepared to make orders that remove the application for reimbursement of fees from the application before us to determine.
21	That same consent order also stated that no agreement had been reached between the applicant and those parties against whom the applicant sought costs. It is these applications for costs that remain before us to decide.
22	Pursuant to order 2 of the Tribunal’s order dated 20 May 2024, the Tribunal has received written responses from Melinda Sheard, John Stockfeld and Carolyn Whitehead. Each of those respondents resist the costs order sought against them.
23	No response has been received from the CFA.
24	For the reasons that follow, we have decided to make an order for costs against the CFA fixed in the sum of $2,200.00 but to refuse to make an order for costs against Melinda Sheard, John Stockfeld or Carolyn Whitehead.
25	Before turning to our reasons for decision, we provide a brief overview of the applicable legislative provisions, the application for costs and the responses to same.
application for costs 
What are the legislative provisions?
26	Part 4, Division 8 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) deals with costs. Pursuant to section 109 (1) of the VCAT Act, each party is to bear their own costs, subject to Division 8. 
27	Nevertheless, the Tribunal has the power to order that a party pay all or a specified part of the costs of another party in a proceeding. ‘Costs’ is not defined in the VCAT Act but is generally understood to include fees, charges, expenses and disbursements incurred by a party through the prosecution of their case by their professional advocate.
28	Section 109(3) of the VCAT Act provides that the Tribunal may make an order for costs pursuant to section 109(2) ‘only if satisfied that it is fair to do so, having regard to’ the following:
(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.
29	Section 111 of the VCAT Act deals with the amount of costs and provides that:
If the Tribunal makes an order for costs, the Tribunal— 
(a) 	may fix the amount of costs itself; or 
(b) 	may order that costs be assessed, settled, taxed or reviewed by the Costs Court.
30	Pursuant to Rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2018, unless the Tribunal otherwise orders, the applicable scale of costs is the County Court costs scale.
31	Costs can be awarded on a ‘standard’ or ‘indemnity’ basis. The County Court Civil Procedure Rules 2018 provide that on a taxation, when costs are awarded: 
(a)	On a standard basis, all costs reasonably incurred and of reasonable amount shall be allowed; and
(b)	On an indemnity basis, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred.
32	It is more common for costs to be awarded on a standard basis, which results in approximately two thirds to 75% of the costs incurred being awarded. Costs are awarded on an indemnity basis only in exceptional circumstances.
33	The Tribunal will more often fix costs pursuant to section 111 of the VCAT Act if the amount of costs is small and certain. Otherwise, the Tribunal will refer the quantum of costs to be assessed, settled, taxed or reviewed by the Costs Court.
What is the application for costs?
Summary 
34	The applicant seeks costs as follows:
a	$3,000.00 in a fixed sum from CFA;BL
b	$1,250.00 in a fixed sum from Melinda Sheard;
c	$1,250.00 in a fixed sum from John Stockfeld; and
d	$2,400.00 in a fixed sum from Carolyn Whitehead.
35	In its submissions, the applicant states that the costs are sought to be fixed in the identified sums and whilst it is open to the Tribunal to order that the costs are to be taxed in default of agreement on a standard basis pursuant to the County Court Scale, given the scope of costs claimed the applicant considers that such an approach may result in procedural inefficiency.
36	The applicant provided invoices and a time card list spreadsheet in support of its application for costs. We observe that, in large part, the invoices are heavily redacted, save for a few entries/descriptions that have been left in. We acknowledge that the redactions likely relate to time and cost incurred that is not being pursued in these applications for costs. To the extent that these documents are evidence of the charge-out rates of the persons involved, as well as evidencing the invoices that were issued in respect to the relevant narrations that are unredacted, we accept that those documents serve this purpose.
37	The applicant brings its application for costs against the various respondents pursuant to several heads of claim under section 109(3) of the VCAT Act. 
Application for costs against the CFA
38	The applicant brings its application for costs against the CFA pursuant to sections 109(3)(a), (b) and (c). The applicant also submits that an order against the CFA would be fair in the circumstances it outlined in its written submission.
39	The applicant submits costs ought to be made against the CFA because:
a	The CFA conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding (section 109(3)(a) of the VCAT Act);
b	The CFA was responsible for prolonging unreasonably the time taken to complete the proceeding (section 109(3)(b) of the VCAT Act); and
c	Ms Bergin as legal representative for the CFA made a claim that had no tenable basis in fact or law (section 109(3)(c) of the VCAT Act).
40	These claims all involve the CFA’s actions with respect to the applicant circulating a ‘pathways plan with contours’, being the Pathways Plan (Rev H) dated 11 September 2023 (‘Pathways Plan’), during the hearing. 
41	In summary:
a	Through its submissions dated October 2022, the CFA raised a concern that the proposal plans had not been modified to show suitable vehicle access on the Land to a fire hydrant compliant with AS 2419.1:2021 that is within 120m of all yurts, domes and caravans. The CFA had also required this through one of its proposed permit conditions that required the ‘Site plan: Fire safety’ be amended to show these things to the CFA’s satisfaction. The CFA also proposed other permit conditions that addressed additional matters;
b	The applicant prepared certain plans to address the CFA’s concerns;
c	The applicant wrote to the Tribunal and the parties on 21 March 2023 requesting a practice day hearing be scheduled to deal with the status of those plans in the proceeding and to obtain any necessary consequential orders;
d	The Tribunal held a practice day hearing on 4 April 2023. At that practice day hearing, the CFA was seeking confirmation that the plans, and specifically ‘2023_CharliesRd_FireSafety_RevD_28.02.23’, demonstrated to the CFA that its concerns regarding the turning circle, the location of the fire hydrant and access to the fire hydrant could be satisfied;
e	At that practice day hearing, the CFA through its representative Mr Holland confirmed that the ‘changes to the plans, the revised turning circle and the relocation of the hydrants are suitable for CFA’; 
f	At the hearing on 12 September 2023, the applicant advised that it would be circulating the Pathways Plan, which ostensibly placed contours on a plan advanced at the practice day hearing held on 4 April 2023’. According to the applicant:
23. 	Ms Bergin requested clarification of the status of the plan. Mr Peake stated that it was produced in response to Mr Whitehead’s request, and it was provided for the information of the Tribunal and the parties because it was requested.
24. 	Mr Peake confirmed that the plans discussed in the practice day hearing on 4 April 2023 were circulated to the Tribunal and parties specifically to address the CFA’s requirements. Those plans were accepted by the Tribunal as plans that indicated that the CFA’s conditions could be satisfied, and Mr Holland informed the Tribunal that he was satisfied that those plans addressed the CFA’s concerns.
25. 	Ms Bergin although not in attendance at the 4 April 2023 directions hearing (the CFA was represented by Mr Holland at the directions hearing of 4 April 2023) refuted that this accurately characterised the position of the CFA at the practice day hearing and stated that the CFA wanted to review the transcript of the practice day hearing. 
26. 	The Tribunal made orders dated 22 September 2023 and order 5 stated:
Issues arising from transcript of hearing
5 The Country Fire Authority (‘CFA’) has requested a copy of the transcript of the hearing on 4 April 2023 and has stated that when it receives same it will provide a copy to the applicant. Within 7 days of receiving the transcript from the CFA, the applicant must file with the Tribunal, and provide to all other parties, any submission that it wishes to rely on regarding issues that it says arise from the content of the transcript.
27. 	On 5 October 2023, CFA provided Clifftop with a copy of the transcript of the practice day hearing of 4 April 2023.
g	The Tribunal’s order dated 22 September 2023 required:
i.	All parties other than the applicant to file any reply submission on which they wished to rely by 20 October 2023; and
ii.	The applicant to file within 7 days of receiving the transcript from the CFA any submission on which it wished to rely regarding issues that it says arise from the content of the transcript;
h	The applicant contends that the transcript ‘completely vindicated’ the submissions of its legal counsel, Mr Peake, as accurately reflecting what was stated by the CFA at the practice day hearing;
i	The CFA’s submissions dated 20 October 2023 acknowledge that at the practice day hearing held on 4 April 2023, Mr Holland conveyed the CFA’s support for the layout in the indicative plans dated February and March 2023 as regards hose coverage, the revised turning circle and relocation of the fire hydrants. However, the CFA disputed any suggestion that the CFA provided a wholesale approval of those plans as meeting all of its proposed permit conditions;
j	The applicant submits that ‘it makes no sense to suggest that Mr Peake’s comments implied that the CFA confirmed acceptance of anything beyond what it did. This is apparent from the content of the plans’ and ‘it is also apparent from the remainder of the condition’; 
k	The applicant submits that ‘it was misguided for the CFA to assert that Mr Peake’s comments were inaccurate or that he has implied broader. This was particularly the case when the CFA’s advocate was not present at the practice day hearing’;
l	The applicant submits that it was open to the CFA to obtain a transcript of the practice day hearing but that upon receipt of that transcript, the CFA was not obliged to advance submission – ‘Once it was plain that that transcript supported the submissions of Mr Peake there was nothing to be advanced through submissions’ and that the CFA ought to have known that by advancing the submissions it did, it would be necessary for the applicant to respond; and
m	In essence, the applicant asserts that the costs incurred by the applicant in responding to this matter were a direct result of Ms Bergin seeking the transcript of the practice day hearing, the consequential orders of the Tribunal dated 22 September 2023 and the CFA then making the submissions that it did on 20 October 2023.
42	The applicant submits that the cost relating to this include $1,100 for counsel fees and $2,205 for solicitor’s fees. The applicant seeks a fixed sum of $3,000.00.
Application for costs against Melinda Sheard and John Stockfeld
43	The applicant brings its application for costs against both Ms Sheard and Mr Stockfeld pursuant to sections 109(3)(a), (b) and (c). 
44	The applicant submits costs ought to be made against both Ms Sheard and Mr Stockfeld because they:
a	Conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding (section 109(3)(a) of the VCAT Act);
b	Acted in a way that was responsible for prolonging unreasonably the time taken to complete the proceeding (section 109(3)(b) of the VCAT Act); and
c	Made claims that had no tenable basis in fact or law (section 109(3)(c) of the VCAT Act).
45	These claims all arise from Ms Sheard and Mr Stockfeld pursuing the issue of, and making submissions about, traffic and access to the Land in circumstances where the Tribunal in Clifftop 2021 had made findings that both access to the Land for the purposes of the proposal before it, and the utilisation of the intersection of Charlies Road and Hepburn-Newstead Road, were acceptable.
46	The applicant refers to the 2024 Decision, where we stated that:
169.	…there have been no significant material changes to the Land (or to the surrounding land) since Clifftop 2021, including what is sought regarding access and road network conditions to the Land.
47	The applicant refers to the conclusion that we reached on this matter in the 2024 Decision:
184. 	We accept Mr Gnanakone’s evidence. We are satisfied there will be acceptable road access provided to the Land for the purposes of the proposed use and development. We are also satisfied there will be acceptable traffic impacts on the road network because of the proposal.
185. 	While we observed the two blind crests noted by Mr Gnanakone, we make our findings on the basis that we are dealing with existing conditions along Charlies Road and its intersection with Hepburn-Newstead Road. This was also a view accepted by the Tribunal in Clifftop 2021.
48	The applicant asserts that the submissions made by Ms Sheard and by Mr Stockfeld regarding access to the Land from Charlies Road and traffic impacts at the intersection of Charlies Road and Hepburn-Newstead Road were either ‘wasting time or forum shopping’. 
49	The applicant acknowledges that it is difficult to assess the costs associated with the time spent on these issues and then referred to various expert evidence and legal costs that it claims are open to the applicant to assert should be paid by Ms Sheard and by Mr Stockfeld.
50	However, the applicant submits that ‘it would be fairer (to the objectors) and simpler for the Tribunal’ if orders were made that each of Ms Sheard and Mr Stockfeld reimburse the applicant for one hour of its legal fees (charged by counsel at $800/hour and the instructing solicitors at $450/hour), amounting to $1,250.00 to be paid by each of them. 
Application for costs against Carolyn Whitehead 
51	The applicant brings its application for costs against Ms Whitehead pursuant to sections 109(3)(a), (b) and (c).
52	The applicant submits costs ought to be made against Ms Whitehead because she:
a	Conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding (section 109(3)(a) of the VCAT Act);
b	Was responsible for prolonging unreasonably the time taken to complete the proceeding (section 109(3)(b) of the VCAT Act); and
c	Made claims that had no tenable basis in fact or law (section 109(3)(c) of the VCAT Act).
53	These claims all involve Ms Whitehead pursuing the issue of, and making submissions about, whether the yurts and domes were ‘movable dwellings’ and if not, were required to be constructed to a BAL rating. This is in circumstances where the Tribunal in Clifftop 2021 had stated that the accommodation units would not be a place of shelter in the event of a bushfire and defendable space would not be required.
54	The applicant refers to the 2024 Decision where we agreed with the Tribunal in Clifftop 2021 that the accommodation units would not be a place of shelter in the event of a bushfire and concluded that:
a	The proposal falls within the definition of a caravan park and would be subject to the relevant provisions of the legislation applicable to a camping and caravan park; and 
b	BAL ratings would not apply to the proposal in the manner submitted by the respondents (including Ms Whitehead).
55	The applicant asserts that the submissions made by Ms Whitehead regarding the BAL ratings of yurts and domes were either ‘wasting time or forum shopping’. 
56	The applicant submits that there has been no material change in the circumstances as they relate to the regulation of the construction of the yurts and domes between the Tribunal’s decision in Clifftop 2021 and the 2024 Decision.
57	The applicant acknowledges that it is difficult to assess the costs associated with the time spent on these issues and then referred to various legal costs that it claims are open to the applicant to assert should be paid by Ms Whitehead.
58	However, the applicant submits that ‘it would be fairer (to Ms Whitehead) and simpler for the Tribunal’ if orders were made that Ms Whitehead reimburse the applicant for two hours of its legal fees (charged by counsel at $800/hour and the instructing solicitors at $450/hour), amounting to and fixed at $2,400.00. 
What responses were received by the Tribunal?
CFA
59	The CFA did not provide a response to the applicant’s costs application against the authority. 
Melinda Sheard
60	Ms Sheard resists the costs application made against her.
61	Ms Sheard submits:
a	Traffic concerns were raised in her statement of grounds and the applicant did not seek to have these grounds struck out;
b	The applicant called its own traffic expert evidence in this proceeding;
c	The applicant did not oppose her cross-examination of Mr Gnanakone;
d	Whilst she agrees that the Tribunal’s findings in Clifftop 2021 should have been given great weight in the present proceeding, it was incumbent on the Tribunal hearing the present proceeding to consider the new application on its planning merits. In the 2024 Decision, the Tribunal made a thorough assessment of traffic and access issues; and
e	Based on the FZ2 permit trigger and the associated relevant decision guidelines, ‘submissions could reasonably and fairly be made regarding transport and access issues in this proceeding’.
62	As such, Ms Sheard submits that she was not responsible for causing disadvantage to the applicant, prolonging unreasonably the time taken to complete the proceeding or making claims that had no tenable basis in fact or law pursuant to section 109(3) of the VCAT Act.
John Stockfeld
63	Mr Stockfeld resists the costs application made against him.
64	Mr Stockfeld submits:
a	This proceeding is dealing with a fresh application before a newly‑constituted Tribunal, as was recognised by the Tribunal in the 2024 Decision;
b	Section 109(1) of the VCAT Act provides that each party is to bear their own costs, which would include the cost of legal representation and expert witnesses;
c	Mr Gnanakone’s evidence initially was responding to the original grounds submitted by the Council and was also required to respond to the CFA’s concerns;
d	A claim seeking to apportion the costs of engaging Mr Gnanakone in the costs application ‘can only be based on an arbitrary apportionment’ and ‘cannot be quantified’ as acknowledged by the applicant. As such, the claim has no basis in fact; and
e	His submissions provided new facts/evidence on the sight distance to the south at the intersection of Charlies Road and Hepburn-Newstead Road, which was not available to the previous Tribunal. As such, the submission to the present proceeding did not consist entirely of matters considered by the previous Tribunal   
65	As such, Mr Stockfeld submits that the applicant’s claims against him are not supported by the VCAT Act.
Carolyn Whitehead
66	Ms Whitehead resists the costs application made against her.
67	Ms Whitehead submits:
a	the claims against her have no lawful foundation in this jurisdiction, given that the Tribunal is mandated to make its own findings of fact having regard to the Supreme Court of Victoria decision in Mond v Perkins Architects;
b	In this repeat appeal, she was allowed to present arguments and evidence on issues previously decided in the applicant’s favour, which is an approach that ‘ensures fairness and natural justice by allowing all relevant matters to be reconsidered with new information or deeper analysis, and aligns with the findings…in Mond v Perkins’;
c	She did not exhibit any behaviour described in section 109(3)(a) of the VCAT Act, including through making her submissions; and
d	She disputes that her submissions lacked a tenable basis in fact or law for various reasons including that:
i.	She was unable to orally defend her original detailed written submissions on BAL ratings due to the Tribunal’s decision that third parties were not permitted to make submissions regarding bushfire issues; and
ii.	Her revised written submissions questioned whether the domes and yurts were movable dwellings for the purposes of the Residential Tenancies Act 1997 (Vic), which was a topic that was not agitated before the Tribunal in Clifftop 2021; and
iii.	The CFA had queried whether the accommodation structures were movable dwellings under that legislation in a letter to the Council dated 18 October 2021, which refutes the claim that her submissions had no tenable basis in fact or law. 
68	As such, Ms Whitehead submits that the applicant’s claims against her are predicated upon unsubstantiated grounds and therefore should be dismissed.
Tribunal’s decision 
Summary
69	We acknowledge that pursuant to section 109 of the VCAT Act, the presumption is that each party will bear their own costs. However, this presumption may be displaced if the Tribunal is satisfied that it is fair to do so in any given case.
70	For the reasons that follow, we have found that this is an instance where it is fair and appropriate to depart from the position expressed in section 109 of the VCAT Act that each party bear their own costs in terms of the application for costs against the CFA but not for the application for costs against Melinda Sheard, John Stockfeld or Carolyn Whitehead. 
Application for costs against the CFA
71	The applicant seeks costs against the CFA on the basis that the CFA’s conduct in relation to the Pathways Plan resulted in unnecessary cost to the applicant in needing to respond to submissions from the CFA made in response to the Tribunal’s order dated 22 September 2023. In short, the applicant contends that once the CFA reviewed the practice day hearing transcript, that should have been the end of the CFA’s concerns regarding what had occurred at the practice day hearing held on 4 April 2023 (in the absence of the CFA’s legal representative). However, instead, the CFA filed further submissions on 20 October 2023, to which the applicant then needed to respond.
72	The applicant contends that this behaviour warrants the making of an order for costs pursuant to section 109(3)(a), (b) and (c) of the VCAT Act.
73	We are mindful that we have not heard from the CFA as to the reasons it proceeded in the way that it did regarding the Pathways Plan. However, we are also aware that the Tribunal file indicates that the CFA was provided with a copy of the relevant material for the costs application and we can only infer that the CFA has elected not to respond. Even if we are incorrect in our inference, we are satisfied that the CFA was given notice of the costs application made against it by the applicant.
74	We accept that the grounds set out in section 109(3)(a)(i) to (vi) of the VCAT Act are not exhaustive of the ways in which it might be found that a party has engaged in conduct that has unnecessarily disadvantaged another party in a proceeding. 
75	We also accept that whilst the grounds specified in section 109(3)(a)(i) to (vi) of the VCAT Act might appear to contain behaviour that is consciously, deliberately or maliciously unreasonable, it has been held that such behaviour need not be present to found a claim under this provision. We accept that the wording of clause 109(3)(a) deals with a party’s conduct that unnecessarily disadvantages another party and whilst this might often take the form of the examples given in section 109(3)(a)(i) to (vi) of the VCAT Act, there might be other forms of behaviour that similarly unnecessarily disadvantage another party.
76	In the present case, we accept that what appears to have been either a lack of communication, or a miscommunication, between the CFA and its legal representative as to what was said at the practice day hearing held on 4 April 2023, and its effect, has either caused or contributed to the CFA’s submissions on 20 October 2023.
77	However, we also acknowledge that this was a relatively long and drawn out proceeding that involved many iterations of plans over time that were prepared in order to address many issues raised by different parties. In such circumstances, it is perhaps not unexpected for something like this to occur.
78	Having said that, there is an expectation that a party will conduct their case in an efficient manner and in a way that does not unnecessarily disadvantage other parties to the proceeding. This is especially so in proceedings of a longer duration. We accept that ultimately the applicant was put to expense that it need not have been given the CFA’s conduct, albeit there is nothing before us to suggest that the CFA was acting with malice.
79	As such, we find that the CFA’s conduct in relation to the Pathways Plan as described by the applicant did unnecessarily disadvantage the applicant for the purposes of section 109(3)(a) of the VCAT Act.
80	It is less clear to us on the basis of the material before us whether the CFA’s conduct unreasonably prolonged the time taken to complete the proceeding for the purposes of section 109(3)(b) of the VCAT Act. Whilst we accept that the CFA’s conduct resulted in submissions needing to be filed by the applicant and associated consideration of the issues raised, it is not clear to what extent this prolonged the hearing time, let alone unreasonably so.
81	In terms of the relative strengths of the arguments of each of the CFA and the applicant and whether the CFA made a claim in its 20 October 2023 submissions that had no tenable basis in fact or law, ultimately the applicant’s submissions were correct given the transcript correlated with the applicant’s assertions. 
82	Again, possibly the length of this proceeding and the various iterations of the plans contributed to the CFA’s misunderstanding. 
83	However, there is an expectation that a party will conduct their case in a way that does not result in other parties incurring unnecessary costs. To the extent that the CFA’s claims in this regard were ultimately incorrect, it is not fair in the circumstances of this case for the applicant to have to shoulder the costs of responding to those claims, yet that is what it was required to do.
84	As such, we find that the claim under section 109(3)(c) of the VCAT Act is also made out in the circumstances of this case.
85	Accordingly, we find that an order for costs against the CFA and in favour of the applicant is warranted in the circumstances.
86	As for the quantum sought, we observe that the individual amounts quoted by the applicant for its counsel fees and solicitor fees amount to more than the quantum of costs sought against the CFA: the amount quoted came to $3,305.00, whereas the amount sought is $3,000.00.
87	If the total amount of $3,305.00 was sought, this would be equivalent to seeking costs in relation to this aspect of the proceeding on an indemnity basis. As discussed earlier, costs are rarely awarded on an indemnity basis; there would need to be conduct of an exceptional nature to warrant such an order.
88	Obviously, the applicant is not seeking costs against the CFA on an indemnity basis. Nor would we be prepared to award costs on this basis, given that whilst the CFA’s conduct might warrant an order for costs being made, there is nothing before us to suggest that, for instance, its conduct was deliberately seeking to prolong the hearing, cause additional time or expense to the other parties or was in any way malicious.
89	As discussed earlier, it is more common for costs to be awarded on a standard basis, which equates to between two thirds and 75% of costs incurred, although it can be more or less than this.
90	The amount claimed equates to 90% of the costs that are claimed to have been incurred in relation to this aspect of the case.
91	Given our observations about the CFA’s conduct, above, we do not think that an order equating to 90% of the costs incurred is justified.
92	Rather, we are prepared to award the applicant an amount of $2,200.00, which is slightly more than two thirds of $3,305.00. We find this amount to be a reasonable and appropriate amount having regard to the time that would have been spent dealing with this issue but acknowledging the time that was nevertheless required to be spent on the proceeding as a whole.
93	We accept that it cannot always be identified with precision the costs that are attributable to one action on a file, or dealing with one particular matter, as compared with another. This is both a product of the billing systems that are in place for the various professionals that are engaged on a file and the interrelated nature of issues that need to be dealt with on any particular case. We have arrived at the quantum of costs that we have based on our experience over time in having dealt with various applications. 
94	Further, given the amount of costs involved, we consider that fixing the amount of costs in this way is a preferable approach to requiring the parties to be put to further expense and time in having costs assessed.
95	Accordingly, we have ordered the CFA to pay to the applicant costs in the fixed sum of $2,200.00.
Application for costs against Melinda Sheard and John Stockfeld 
96	The applicant seeks costs against both Ms Sheard and Mr Stockfeld based on their conduct in pursuing the issues of traffic and access to the Land in this proceeding when the Tribunal in Clifftop 2021 found that access to the Land and the utilisation of the intersection of Charlies Road and Hepburn‑Newstead Road were acceptable in relation to the proposal before that Tribunal.
97	The applicant contends that this behaviour warrants the making of an order for costs pursuant to section 109(3)(a), (b) and (c) of the VCAT Act.
98	Both Ms Sheard and Mr Stockfeld resist the costs application made against them.
99	As we stated in the 2024 Decision, whilst we agreed that the planning permit application before us was a correcting repeat appeal pursuant to the principles established in various cases, those principles are not a statutory test. Further, those principles do not derogate from our duty to assess the planning permit application before us on its merits and in accordance with the Scheme and the Act, as confirmed by the Supreme Court of Victoria in Zumpano v Banyule City Council. 
100	In undertaking that assessment, we were required to satisfy ourselves that the planning permit application represented an acceptable planning outcome. However, in undertaking that assessment, we were required to consider, in the instance of each permission sought and each issue raised, the weight that we should afford to the findings of the Tribunal in Clifftop 2021. This weight varied depending on what had changed between the two proceedings, cognisant of the ‘Reichert’ principles.
101	In order for us to find that the conduct by Ms Sheard and Mr Stockfeld in raising these issues warranted the making of an order costs pursuant to section 109(3)(a), (b) and (c) of the VCAT Act, in essence we would need to conclude that their raising of these issues:
a	Unnecessarily disadvantaged the applicant (section 109(3)(a) of the VCAT Act);
b	Resulted in an unreasonable prolonging of the time taken to complete the proceeding (section 109(3)(b) of the VCAT Act); and/or
c	In a relative sense was weaker than the applicant’s case, possibly to the extent that those issues had no tenable basis in fact or in law (section 109(3)(c) of the VCAT Act).
102	In short, we do not think that the raising of these issues by Ms Sheard and Mr Stockfeld amounts to conduct of the nature that warrants an order for costs under any of the sections of the VCAT Act that are relied upon. We say this for the following reasons.
103	First, as stated, we were required to assess the planning permit application that was before us on its merits. This included an assessment of all permissions and inherent in that assessment were matters such as access to the Land and the impact that existing and projected traffic might have on the proposed use and development and the context of the surrounding road network. Even if Ms Sheard and Mr Stockfeld had not pursued these issues, the Tribunal might well have in order to satisfy itself of those matters. 
104	Second, the statement of grounds for each of Ms Sheard and Mr Stockfeld referred to these issues. As such, those grounds were available to them to address at the merits hearing and should not have been a surprise to the applicant.
105	Third, the applicant itself called traffic evidence from Mr Gnanakone. Whilst this might have been to ensure that these issues were not left unaddressed given the respondents’ statements of grounds, it also allowed the applicant to rely on that expert evidence in seeking to persuade the Tribunal that the various permissions required should be granted.
106	Fourth, the traffic evidence of Mr Gnanakone, and submissions regarding access and traffic, was also used by the applicant in addressing the permission required under the BMO, which was not available for third party submission having regard to the Tribunal’s earlier ruling. As such, it could not be said that the applicant and Mr Gnanakone were addressing the submissions of Ms Sheard and Mr Stockfeld in dealing with the BMO permission.
107	Whilst we ultimately found the traffic and access matters to be acceptable, and we accepted Mr Gnanakone’s evidence, this does not lead to a conclusion that Ms Sheard and/or Mr Stockfeld unnecessarily disadvantaged the applicant, unreasonably prolonged the proceeding, or that those issues were so weak that they had no tenable basis in fact or law. We disagree with the assertion that Ms Sheard and Mr Stockfeld were ‘wasting time’ or ‘forum shopping’ in raising these issues.
108	In the context of merits review, and in the absence of a finding that those issues were irrelevant to the decision before the Tribunal (which they clearly were not), those issues being raised by Ms Sheard and Mr Stockfeld was not unreasonable or conduct that warrants the making of a costs order pursuant to section 109(3)(a), (b) and (c) of the VCAT Act.
109	Even in the context of this correcting repeat appeal, it was still not unreasonable for Ms Sheard and/or Mr Stockfeld to raise these issues, given the Tribunal is required to make a decision on the planning permit application as a whole, notwithstanding that it will give varying amounts of weight to the findings of the previous decision.
110	As such, we find that neither Ms Sheard nor Mr Stockfeld in raising these issues regarding traffic and access behaved in such a way that warrants the making of a costs order pursuant to section 109(3)(a), (b) and (c) of the VCAT Act. 
111	Accordingly, we make no order as to costs against either of them.
Application for costs against Carolyn Whitehead 
112	The applicant seeks costs against Ms Whitehead based on her pursuing the issue of, and making submissions about, whether the yurts and domes were ‘movable dwellings’ and if not, were required to be constructed to a BAL rating, in circumstances where the Tribunal in Clifftop 2021 had stated that the accommodation units would not be a place of shelter in the event of a bushfire and defendable space would not be required.
113	The applicant contends that this behaviour warrants the making of an order for costs pursuant to section 109(3)(a), (b) and (c) of the VCAT Act.
114	Ms Whitehead resists the costs application made against her.
115	This application for costs raises similar issues as were raised in the costs application made against Ms Sheard and Mr Stockfeld, in terms of this having been a correcting repeat appeal and Ms Whitehead allegedly raising issues that were raised and addressed in Clifftop 2021.
116	We similarly do not think that the raising of these issues by Ms Whitehead amounts to conduct of the nature that warrants an order for costs under any of the sections of the VCAT Act that are relied upon. Our reasons for saying this are that:
a	As set out above, we were required to assess the planning permit application that was before us on its merits, which included an assessment of all permissions and issues inherent in that assessment;
b	These issues formed part of Ms Whitehead’s case and so were available to Ms Whitehead to address at the merits hearing; and
c	The arguments before us regarding these issues arose in a different context to that in Clifftop 2021, given our earlier order that third parties (including Ms Whitehead) could not make submissions regarding the BMO permission or bushfire matters. As such, strictly it could not be said that the Tribunal in Clifftop 2021 considered exactly the same issue.
117	As with Ms Sheard and Mr Stockfeld, whilst our ultimate decision was contrary to Ms Whitehead’s submissions on these issues, this does not lead to a conclusion that Ms Whitehead unnecessarily disadvantaged the applicant, unreasonably prolonged the proceeding or that those issues were so weak that they had no tenable basis in fact or law. We disagree with the applicant’s assertion that Ms Whitehead was ‘wasting time’ or ‘forum shopping’ in raising these issues. 
118	As stated above, in the context of merits review, and in the absence of a finding that those issues were irrelevant to the decision before the Tribunal, those issues being raised by Ms Whitehead were not unreasonable or conduct that warrants the making of a costs order pursuant to section 109(3)(a), (b) and (c) of the VCAT Act.
119	Even in the context of this correcting repeat appeal, it was still not unreasonable for Ms Whitehead to raise these issues, given the Tribunal is required to make a decision on the planning permit application as a whole, notwithstanding that it will give varying amounts of weight to the findings of the previous decision.
120	As such, we find that Ms Whitehead in raising these issues did not behave in such a way that warrants the making of a costs order pursuant to section 109(3)(a), (b) or (c) of the VCAT Act. 
121	Accordingly, we make no order as to costs against Ms Whitehead.
Conclusion
122	For the reasons given above, we have made the following orders:
a	The CFA must pay to the applicant costs fixed in the sum of $2,200.00 within 30 days of the date of this order;
b	No order as to costs against Melinda Sheard;
c	No order as to costs against John Stockfeld; and
d	No order as to costs against Carolyn Whitehead.
123	This costs decision should now bring this proceeding to an end.  

Susan Whitney
Presiding Member		Peter Gaschk
Member