VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P249/2023
Permit Application no. 1373/17	
CATCHWORDS	
Application for enforcement order – withdrawn after permit amendment granted – no order as to costs – section 109 Victorian Civil and Administrative Tribunal Act 1998 (Vic) – reimbursement of fees granted – section 115B      	

Applicant / Responsible Authority	Stonnington City Council	
Respondent	Nicholas Ross Beveridge	
SUBJECT LAND	57 Beaver Street
MALVERN EAST  VIC  3145	
HEARING TYPE	Hearing on the papers	
DATE OF HEARING	18 December 2024	
DATE OF ORDER	23 December 2024	
CITATION	Stonnington CC v Beveridge (Costs) [2024] VCAT 1055	

Order
Costs claim
1	The application by Stonnington City Council for reimbursement of costs under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is refused.
Fee reimbursement
2	The respondent must reimburse the application fee paid by Stonnington City Council in the proceeding under section 115B of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) within 60 days of the date of this order namely, $1284.40.  

Dalia Cook
Member	

Reasons (costs)
introduction
1	The subject land contains an interwar cottage and is included within a precinct-wide Heritage Overlay under the Stonnington Planning Scheme. 
2	Stonnington City Council (‘Council’) issued a planning permit in late November 2018 allowing partial demolition and buildings and works to the dwelling (‘the permit’). 
3	Council lodged an application for enforcement order with the Tribunal on 22 February 2023 in respect of what it regarded as unauthorised demolition of parts of the building, including a front portico, some windows and part of a side wall. 
4	It sought orders to require the respondent to commission an inspection and Heritage Conservation and Works Plan from a suitable heritage expert, for this to be implemented and for the completed works to be reinspected.  
5	The respondent submitted a statement of grounds denying that he had breached the endorsed plans or conditions of the permit.  
6	After a number of attendances, the matter eventually progressed to a compulsory conference, where Council agreed to withdraw the application for enforcement order. 
7	By that stage, the respondent had obtained an amendment to the planning permit and endorsed plans from Council and all relevant rectification works were provided for. 
8	Council now seeks to recover its costs and fees of the proceeding. 
Assessment of the costs claim
Summary of Council position
9	Council is claiming costs under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).  
10	I note that this is the general power to award costs, rather than the more specific power that enables a party to seek an award of costs where a matter is withdrawn, via section 74(2)(b) of the VCAT Act. 
11	As to costs, Council claims the full extent of its costs incurred in briefing a barrister directly in this proceeding.  These costs total $13,060 (excluding GST).  
12	Council relied on the following provisions of the VCAT Act in support of its claim, in summary: 
•	Section 109(3)(b) – relative strengths of the claims for the parties.  It claimed that the works were clearly in breach of the permit and that this had been tacitly accepted by the respondent in applying to amend the permit. 
•	Section 109(3)(d) – nature and complexity of the proceeding.  It submitted that the proceeding was an enforcement application which was inherently complex. 
•	Section 109(3)(e) – it relied on other relevant matters, including the proceeding having been brought in the Tribunal’s original (rather than review) jurisdiction, and its statutory duty to enforce the planning permit under section 14 of the Planning and Environment Act 1987 (Vic) (‘PE Act’). It also pointed to actions it had taken in seeking to negotiate with the respondent to avoid the need for the application. 
Summary of respondent’s position
13	In costs submissions, the respondent opposed the notion that he had conceded a breach of the planning permit.  He confirmed that Council’s case had not been ‘tested’ at the Tribunal. 
14	Likewise, he submitted that the proceeding was no more complex than any other enforcement proceeding and that it was not prolonged by him lodging a related review proceeding (regarding amendments to the permit which had been refused by Council).  
15	He emphasised that the unauthorised work was not intentional or wilful, and that he had sought to work with Council following ‘unanticipated collapses’ in the face of ‘latent deterioration’ of the building.  He had also provided engineering and heritage assessments in connection with the permit.  
16	The respondent also submitted that the only ‘disadvantage’ to Council was in terms of costs, because he had actively pursued a further section 72 amendment to the permit to resolve the outstanding issues on their merits.  
Tribunal analysis
17	The starting point in section 109(1) of the VCAT Act is that each party must bear its own costs in a Tribunal proceeding unless the Tribunal considers it ‘fair’ to make an order for costs as per section 109(3). 
18	This will depend on the particular circumstances of the proceeding.  
19	I accept that the enforcement proceeding is one within the Tribunal’s original jurisdiction, where it is more common to make an award of costs compared with its review jurisdiction.  
20	I further accept that it was reasonable for Council to initiate the proceeding to ‘bring the matter to a head’ after it had been unable to resolve outstanding issues with the respondent and amendments to the permit had been refused without appeal.  
21	However, on balance, I do not consider an award of costs is warranted in on the particular facts of this case. 
22	It is relevant that the unauthorised demolition work was likely inadvertent, rather than deliberate.  
23	Also, this was not a clear cut case where the respondent could readily comply with the requirements of the permit once parts of the building had collapsed. 
24	This distinguishes it from cases such as Stonnington CC v McLaughlin (‘McLaughlin’) where a portion of Council’s costs were awarded in circumstances where the application for enforcement order was withdrawn after serving its purpose.  
25	In the current proceeding, Council sought steps to require compliance with the endorsed plans and documented measures for assessment and reporting.  
26	However, given the complex condition of the partially collapsed/demolished building, it was understandable that the respondent would want to progress an opportunity to review the practicalities and details of retention and reconstruction.   
27	It is therefore relevant that the respondent made a further application to amend the permit after the application for enforcement order was lodged in an attempt to regularise the permission sought in light of the unanticipated damage to the building. 
28	Although this was a separate process to the enforcement application, it was a necessary parallel process, and one that ultimately obviated the need for an enforcement order hearing and determination.  
29	There appear to have been some delays in this process at the instigation of the respondent, but I do not regard this alone as a reason to award costs in the proceeding (and it is unclear from the history of the matter whether it was actively pursuing this amendment at all relevant times). 
30	Ultimately, it led to a successful resolution whereby a contested hearing was not required and the application could be withdrawn because the subject matter had been resolved with appropriate permission granted.  
31	The negotiated Tribunal processes were used appropriately.  
32	Also, the matters raised were not particularly complex so as to justify an award of costs.  
33	In these circumstances, I do not consider it is fair to make an award of costs against the respondent.  
Comment on amount of costs sought
34	I observe from recent experience in other costs claims by Council in enforcement proceedings that it appears to have become standard practice to seek an order for full reimbursement of costs.  
35	Instead, Council should be more mindful that the appropriate scale of costs for the Tribunal as specified in Rule 1.07 of the Victorian Civil and Administrative Rules 2018 is the County Court Scale. 
36	The default is for standard costs if an award of costs is appropriate.  
37	Full costs on an indemnity basis (excluding any unreasonable costs) would only be warranted if justified on the facts of the particular case.  
38	This would be relatively rare as evinced by earlier decisions of the Tribunal.  
39	Clearly, this is not such a case and it does not assist the Tribunal for Council to universally seek orders for reimbursement of all its costs in such proceedings if this is unrealistic on the facts.  
40	In future, Council should provide detailed submissions about both the basis for an award of costs and the appropriate measure of costs in each particular case, having regard to the individual circumstances and particular costs incurred.  
assessment of fee reimbursement application
Party positions
41	Council also relies on sections 115B and 115C in claiming reimbursement of its application fee. 
42	 Section 115B of the VCAT Act enables the Tribunal to make an order as to the reimbursement or payment of fees. ‘Fees’ is defined to mean a fee payable in a proceeding, which might include the application fee and the daily hearing fee.
43	Section 115B(3) of the VCAT Act identifies matters to which the Tribunal must have regard in making an order under section 115B of the VCAT Act. It provides:
(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.
44	Section 115C of the VCAT Act contains a presumption that an order will be made for the reimbursement of fees to a successful party in certain proceedings. Section 115C states:
(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.
45	Such proceedings include an application made under section 114 of the Act and a ‘successful party’ is defined as one who has ‘substantially succeeded’ against another party in the proceeding.  
46	Council considered it had been ‘successful in the proceeding’ as this term is used in these provisions. 
47	The respondent contested this view and opposed reimbursement of the fee. 
Tribunal analysis
48	In line with my findings in other proceedings involving this Council, I do not consider that it was ‘substantially successful in the proceeding’ in the sense that any findings, decisions or orders were made in its favour.  I consider this is the nub of the provision.  
49	The fact Council may have been satisfied with the ultimate negotiated outcome is positive, but not one that automatically justifies reimbursement of fees.  
50	On this basis, I do not consider the presumption in section 115C applies. 
51	I have therefore assessed the claim by reference to the standard considerations in section 115B.  
52	The application was an enforcement proceeding, and I accept the responsible authority had a statutory duty to either enforce the permit in this instance, or to take actions that would lead to the respondent seeking a legitimate amendment to the permit. 
53	This was especially the case in circumstances where it appears the property was being offered for sale, to limit the exposure of potential third parties.  
54	Council’s conduct in the lead up to the proceeding indicated it had sought to avoid the need to institute the proceeding.  
55	It had also acted appropriately in negotiating to achieve an acceptable outcome on the merits, and withdrew its application once this was achieved. 
56	The outcome of the proceeding, albeit resulting in a withdrawal of the application for enforcement order was in favour of Council, practically speaking. 
57	For all these reasons, I reach a similar conclusion to the Tribunal in Stonnington CC v McLaughlin that the fair outcome is that Council should not be required to shoulder the cost of the application fee when it was unclear at that stage whether (and how) the respondent would comply with the permit.  
conclusion
58	For the reasons above, the application for reimbursement of costs is refused. 
59	Each party must bear its own costs in the proceeding. 
60	The application for fee reimbursement is allowed, and the respondent must repay Council as directed. 

Dalia Cook
Member