VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P61/2019
	
CATCHWORDS	
Section 109 Victorian Civil and Administrative Tribunal Act 1998 – costs – enforcement application 	

APPLICANT /
responsible authority	Mildura Rural City Council	
RESPONDENTs	Serdar Donmez, Mehmet Ali Donmez, Elif Donmez	
SUBJECT LAND	3003 Eleventh Street
IRYMPLE VIC 3498	
WHERE HELD	Melbourne	
BEFORE	Jeanette G Rickards, Senior Member	
HEARING TYPE	No Hearing	
DATE OF ORDER	5 June 2019	
CITATION	Mildura Rural CC v Donmez (Costs) [2019] VCAT 836	

Order
Order for costs
1	Serdar Donmez, Mehmet Ali Donmez and Elif Donmez are ordered to pay the costs of Mildura Rural City Council fixed in the sum of $13,237.77.  The costs must be paid within 30 days of the date of this order. 

Jeanette G Rickards
Senior Member			

Reasons

1	This is an application for costs by Mildura Rural City Council (the council) arising out of the granting of an enforcement order sought by the council against the respondents.
2	An enforcement order was granted by the Tribunal on 16 April 2019. The order found clause 35.07-4 of the Mildura Planning Scheme had been breached in that buildings and works had been constructed on the subject land without a planning permit. 
3	The respondents did not attend the hearing, nor did they lodge any statement of grounds, or responses to orders made by the Tribunal. 
4	The respondents have not responded to the application for costs by the council.
5	The council seeks costs in the amount of $13,237.77.
6	Costs in an application to the Tribunal are generally borne by each party. 
7	The Tribunal may consider the awarding of costs in various circumstances referred to in s 109(3) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).  Section 109(3) provides:
(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;
8	In its application the council relevantly notes that the Tribunal will often make an order as to costs in the circumstances of ordering an enforcement order when the respondent knew full well that planning laws were being contravened and refused or neglected to rectify the situation so that the council was required to bring proceedings.
9	In the circumstances of this application an order was made by the Tribunal on 15 November 2016 declaring relevant buildings on the subject land to be unlawful. 
10	The council requested the respondents remove the unlawful buildings on several occasions during 2017 and 2018. 
11	Having given the respondents ample opportunity to remove the unlawful buildings the council was left with no option but to seek an enforcement order. The council lodged an application for an enforcement order on 16 January 2019. 
12	As stated above the respondents have not responded to or appeared before the Tribunal.
13	The Tribunal accepts the council has been forced to incur the expense of preparing for and appearing at the enforcement application hearing to obtain an order. 
14	In the circumstances the Tribunal considers it would be fair to make an award of costs and concludes the respondents are required to pay to the council the amount of $13,237.77 which includes the fee for the application to the Tribunal.  

Jeanette G Rickards Senior Member