VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1842/2019
Permit Application no. P1332/2018	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Banyule Planning Scheme; application withdrawn after initial Practice Day; costs application made.	

APPLICANT	TLC Aged Care Pty Ltd	
responsible authority	Banyule City Council	
RESPONDENTs	Eaglemont Neighbourhood Conservation Assoc. Inc., Rowan Harrison, Richard Harris, Andrew Fegan, Matthew Ford, Rick Mikus, Luigi Vaiano, Gary Marshall, Helen Trihas, Peter Kappadais, Elizabeth Marshall, Philipa Griffith, Kasey Wallis & David Thomas, Noel Spink, Michael Smith, Peter Greenham, Chris Canty, Carla Preece, Elise Burch, David Code, Olivera and Branko Krstevski, Anna & George Stavrakakis, Dr John F Culvenor, Michael Keogh, Anna Giannacos & Neville Kurth, Gurli Anker Hughes	
SUBJECT LAND	321 Lower Heidelberg Road and 1 Maltravers Road
IVANHOE EAST  VIC  3079	
WHERE HELD	Melbourne	
BEFORE	Philip Martin, Senior Member 	
HEARING TYPE	Hearing	
DATE OF ORDER	24 June 2020	
CITATION	TLC Aged Care Pty Ltd v Banyule CC [2020] VCAT 633	
costs Order
1	The costs claim made by the objector Ms Carla Preece against the applicant TLC Aged Care Pty Ltd (TLC) is refused.  

Philip Martin
Senior Member 			

Reasons
Context for THIS Costs Claim
1	In these reasons, for the avoidance of confusion, I shall call the relevant objector neighbour Ms Carla Preece ‘Ms Preece’. I shall refer to the permit applicant TLC Aged Care Pty Ltd as ‘TLC’. 
2	This proceeding involves the combined land at 321 Lower Heidelberg Road and 1 Maltravers in Ivanhoe East. This is a large site at 6,293 sqm, previously used as a church facility.  The seven titles which make up the whole site are all affected by a common restrictive covenant, in the situation where Ms Preece lives nearby and is a beneficiary of this covenant.
3	TLC lodged a planning permit application for this site be redeveloped in essence for a five storey residential aged care facility, café, medical centre, gym and childcare centre, together with several other related necessary approvals.  The estimated project value was $56 million.  Objections were received and Council issued a Notice of a Refusal to Grant a Permit.
4	The necessary planning permissions being sought did not include any proposal to vary or remove the aforementioned restrictive covenant.  This covenant most relevantly requires in relation to the subject land that the owner “… will not erect or cause to be erected more than one dwelling house… such house to have a roof of slate or tiles or any other material approved…”.
5	I am told that TLC on 13 February 2019 received written legal advice from its then-lawyers that a proposed “aged care facility, nursing home or similar purpose” would not breach the restrictive covenant. 
6	Where Council issued its Notice of Refusal to Grant a Permit, one of the grounds relied upon by Council was that it did not have power to approve the proposal, as Council considered that the approval of the proposal would breach the restrictive covenant.
7	Council’s lack of support for the proposal was taken on review to the Tribunal. The Tribunal’s orders of 24 September 2019 included a Practice Day Hearing (PDH) on 8 November 2019, a Compulsory Conference in early 2020 and a five day scheduled Hearing on 16 March 2020.
8	However as an outcome of the PDH before DP Bisucci on 8 November 2019, the procedural order dated 12 November 2019 set down a three day preliminary hearing on 16 March 2020 before a legal member, to resolve whether or not the proposal would breach the restrictive covenant. This procedural order also set down the main hearing for 15 June 2020, listed for 10 days before two members.
9	The Order 10 by DP Bisucci provided that Council and any respondent needed to pre-file their submissions in relation to the preliminary hearing by no later than 24 February 2020.
10	In the final result, TLC on 29 January 2020 sought the Tribunal’s leave to withdraw the proceeding. This leave was duly granted by the Tribunal’s order dated 6 February 2020. 
11	Ms Preece then made a costs application against the permit applicant, pursuant to Section 74(2) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).  In seeking an ‘indemnity costs’ order, Ms Preece (at the time of making her costs submissions dated 30 March 2020) is claiming $37,465.68 in legal fees, plus an additional anticipated $1000 costs associated with making this costs application ‘on the papers’.  Various copy bills from Ms Preece’s lawyers are attached to her costs claim i.e. accounts from Kyriacou Lawyers.    There is a helpful summary of the various costs set out at [23-27] of the main written submission for Ms Preece.
12	SM Daicic made certain procedural orders pursuant to the practice day hearing held on 28 February 2020. The gist of these orders is that the parties were given the chance to make written submissions in relation to this costs claim, so as to enable it to be dealt with ‘on the papers’.
13	In this context, I have received and carefully considered the main costs submission made on behalf of Ms Preece, the main submission in response made by TLC, plus the brief reply for Ms Preece.
Statutory basis for the costs claim
14	Paragraph 28 of Ms Preece’s main costs submission confirms that her costs application is made under Section 74(2)(b) of the VCAT Act.  This gist of this provision is that if an applicant withdraws an application, then “… the Tribunal may make an order that the applicant pay all, or any part of, the costs of the other parties to this proceeding…”. 
15	Excluding for convenience the footnotes involved, at [29-32] of Ms Preece’s main costs submissions, the following introductory comments are made about Section 74(2)(b).
29.	In Asghari v SBS Radio [2001] VCAT 1755 at paragraph 4, Deputy President McKenzie made a number of observations about this provision, including that:
(a)	the power to award costs on the withdrawal of a proceeding pursuant to s74(2)(b) is separate to the power to award costs under s109(2) of the VCAT Act;
(b)	unlike section 109, there is no rule that costs lie where they fall unless the Tribunal considers it fair to order otherwise;
(c)	there is no automatic rule that costs will always be awarded against the withdrawing party;
(d)	the decision as to costs must be based on the particular circumstances of each case.
30.	These principles have been cited with approval by the Tribunal on multiple occasions.
31.	As to how the discretion to award costs has been exercised, two principles have emerged:
(a)	that the discretion is ‘fettered only by the obligation to act fairly, and according to the substantial merits of the case’, pursuant to Section 97 of the Act;
(b)	that the circumstances of the case that may be relevant to the exercise of the discretion include, but are not limited to, those matters listed in s109(3) and 78(1) of the VCAT Act. 
32.	These principles have been cited with approval in subsequent decisions of the Tribunal.
SOME COMMON PRACTICES WITH HOW costs disputes are dealt with BY THE Planning and Environment Division (PED) at VCAT
16	At this preliminary stage, it seems helpful to explain certain long-standing common practices with the processing of costs claims by the PED at VCAT. 
Length of PED Costs Decisions
17	On the one hand, I have carefully read the very detailed written costs submissions the parties have provided to the Tribunal. 
18	On the other hand, it is standard practice for PED costs decisions to be succinct (sometimes with minimal reasons), rather than lengthy written decisions dealing with every point raised by the parties. In this spirit, I have aimed to make this costs decision to the point, focusing on what I see as the determinative issues. This is consistent with the Tribunal’s mandate under section 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998 to deal with the substance of disputes before it in an efficient and timely manner. 
Costs claims in the PED need to recognise the particular character of PED proceedings, compared to other jurisdictions of VCAT
19	It also needs to be said that proceedings/litigation in the PED usually has a very different character to the typically private disputes in other Lists of the Tribunal. Most planning proceedings at VCAT (as here) are planning merits hearings, which have a very public flavour, in resolving whether or not a public order should be made that a permit will issue.  Any such order and the resulting planning permit issued by the Responsible Authority (RA) ‘run with the land’, such that both present and future owners of the subject land are affected by the PED decision (as are the RA, any other relevant statutory authorities and any affected neighbours). 
20	In summary then, compared to for example a civil, building or leasing dispute at VCAT between two private parties, PED proceedings and decisions result in public orders which have implications for the wider  community.
21	It follows that some caution is needed where, in a PED costs dispute, any party seeks to rely on a costs decision from another VCAT List outside of the PED.  What constitutes ‘reasonable behaviour’ by litigants in private commercial disputes is not necessarily the same as the situation with the public nature of PED disputes – see my comments two paragraphs above. 
Rarity of PED costs orders involving ordinary planning merits reviews
22	With this ‘public flavour’ of planning reviews at the Tribunal in mind, the practical reality is that it is quite rare for the PED to make costs orders in ordinary planning merits proceedings at the Tribunal.  This situation is reinforced by the statement in Rainsbury v Delatite SC 1999] VCAT 176 that the awarding of costs in planning merits hearings is “very rare”.
The period of time that PED costs orders usually focus on
23	In the situation where most costs disputes in the PED spring from Section 109 of the VCAT Act, with two provisos, the usual focus with PED costs disputes is the period after the VCAT proceeding commenced.  This reflects Section 109 (with my highlighting) empowering the Tribunal to award costs in relation to “…the costs of another party in a proceeding” 
24	The first proviso is that where the party claiming their costs is the party that lodged the Application for Review to VCAT, the costs of preparing that application commonly is also considered (such paperwork does not prepare itself).  
25	The second proviso is as follows.  I acknowledge that the relevant wording of Section 74 does not include any ‘each party is to bear their own costs in the proceeding’ type provision, where Section 109 does include this qualification at 109(1).  I am also mindful of DP McKenzie’s relevant comments quoted above from Asghari v SBS Radio and also that DP Gibson took a very broad view of Section 74(2)(b) in Wilcon Projects Pty Ltd v Hobsons Bay CC [2019] VCAT 190 at [13].  I shall return to this issue further below in these reasons.
PED costs orders are generally made on a standard rather than a ‘full indemnity’ basis
26	By way of explanation, a basic costs award made by a court or tribunal involves what is historically known as a ‘party/party’ costs determination.  Such a determination assumes that even the successful party with the costs order still has to bear a minority of their own costs.  By contrast, a ‘full indemnity’ costs order involves the beneficiary of that order being reimbursed for every last dollar of the costs that person is claiming. 
27	In terms of the current situation at a more micro-level, Rule 1.07 of the VCAT Rules 2018 provides that unless the Tribunal orders otherwise, the applicable scale of costs is the County Court costs scale.  The County Court Civil Procedure Rules 2018 provide that different forms of costs orders can be made, notably:
•	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” (Rule 63A.30.1).
•	Alternatively on a “Standard basis: all costs reasonably incurred and of a reasonable amount should be allowed” (Rule 63A.30). 
28	In this context, where the PED does from time to time make costs orders, such orders are generally made on a ‘standard’ rather than a ‘full indemnity’ basis.  Essentially this cautious approach by the PED to potentially making ‘full indemnity’ orders reflects the following type of factors:
•	Full indemnity orders are at the very opposite end of the spectrum from a ‘costs neutral’ starting point.
•	The public policy benefits of discouraging speculative and/or very opportunistic litigation.
•	Avoiding the ‘chilling effect’ of other potential parties in VCAT proceedings being inappropriately ‘shut out’ by the spectre of a potential large costs order.
•	VCAT aiming to be a very accessible judicial forum for all Victorians to be able to access justice.
The benefits of private planning resolutions in the Victorian planning system
29	Whether we are talking the day-to-day operation of VCAT or the higher courts, it is a common and desirable aspect of such operation that the parties in dispute have the freedom and capacity to potentially privately come to a resolution.  This situation is desirable for several reasons – it can result in more creative and holistic compromises, plus it reduces the workload strains on the Tribunal or court.  Also there is ‘alternative dispute resolution’ research suggesting that the stakeholders may (from an emotional perspective) more readily accept the resolution of a dispute, when he or she has been directly involved in brokering the outcome. 
30	With these benefits in mind, it is an important part of the day-to-day operation of the PED that a certain proportion of PED disputes are finalised without needing to continue to the scheduled hearing.  Whilst the obvious possibility here is that the parties have agreed to ‘consent orders’, it is not unusual for an applicant in a planning merits dispute to withdraw his or her Application for Review prior to the hearing.
Key issues to be resolved in this costs dispute
31	Moving now to the key issues in this costs dispute, I consider them to be as follows:
•	Should the scope of any potential Tribunal costs order in favour of  Ms Preece include the period before this P1842/2019 proceeding was initiated at the Tribunal?
•	Otherwise, should some form of costs order be made against the permit applicant?
•	If so, what quantum of costs should be awarded and should this occur on a ‘indemnity costs’ basis?
•	Should TLC pay some or all of the cost of Mr Preece preparing her costs application? 
32	I shall now deal with each of these issues in turn.
Should the scope of any potential costs order by the Tribunal include the costs incurred by Ms Preece before this VCAT proceeding was initiated?
Primary findings of the Tribunal
33	The Application for Review VCAT documentation on the Tribunal file is stamped as having been lodged on 18 September 2019.
34	At [23] of TLC’s costs submissions, it is stated that $21,195.48 or 56.5% of the costs claimed by Ms Preece relate to the period before 18 September 2019.  These pre-costs essentially are the $12,000 cost of a written opinion from Mr Sam Horgan QC and the relevant costs of Ms Preece’s solicitors Kyriacou Lawyers.
35	This split of $21,195.48 costs incurred before 18 September 2019, compared to ‘costs incurred afterwards’, was not disputed in itself by Ms Preece, in her written reply.
36	I find that even if I were to make some form of costs order in favour of Ms Preece, the scope of that order would only relate to costs incurred by her after 18 September 2019.  I consider it to be mis-guided for Ms Preece to be seeking to recover her costs in relation to the period before the VCAT proceeding for this project was initiated.
37	I rely on the fact that the Tribunal power to award costs under Sections 109(2) and 74(2)(b) both use the term ‘costs…in/to the proceeding’.   Common sense indicates that these provisions do not create an ‘open slather’ situation with the Tribunal’s discretion to award costs.  
38	I consider there to be a strong argument that this choice by Parliament to use the words ‘the proceeding’ in Sections 109(2) and 74(2)(b) limit the debate about costs to the period after the Tribunal proceedings were initiated.    
39	Returning to Section 74(2)(b), I acknowledge that DP Gibson took a very expansive view of the operation of this sub-clause in Wilcon Projects Pty ltd v Hobsons Bay CC [2019] VCAT 190.   Notably at [13] she described the power to award costs under sub-clause (b) as “unfettered and broad”.  She also commented that “The power to award costs under Section 74(2)(b) is governed by the overarching obligation on the Tribunal to act fairly and according to the substantial merits of the case…”.
40	Even allowing for these two points, I am still inclined to view the Tribunal’s power to award costs under Section 74(2)(b) as essentially focused on the relevant costs which arise after the point in time at which the VCAT proceedings were initiated. 
41	I primarily rely here upon the fact that even if Section 74(2)(b) is interpreted very broadly as per the comments of DP Gibson, the reality is that someone wishing to rely on it can in practice only do so once a Tribunal proceeding is on foot.  If for example Ms Preece had incurred her relevant legal costs prior to 18 September 2019 but TLC then in theory decided to abandon the permit application, Ms Preece would not have ‘got to square one’ with seeking to rely upon Section 74(2)(b) i.e. because there would be no VCAT proceeding on foot as a ‘vehicle’ for her costs claim. 
42	Some other more general considerations are as follows:
•		At a more ‘first principles’ level, the focus on the period after the VCAT proceedings commenced can be seen as reflecting the more specialist role of PED hearings, with a planning focus.  This is as opposed to hearings such as Royal Commission or a Board of Enquiry, with a very broad-ranging brief to investigate the dispute/controversy in question.  With PED planning merits proceedings, the PED is doing no more or less than resolving the particular planning permit application which has come to VCAT on review, in accordance with the process laid out in the VCAT Act and the Planning and Environment Act 1987.  
•	Simply focusing on the contentious costs incurred after the VCAT proceeding commenced avoids the greater challenge involved, if the Tribunal starts adjudicating on what constitutes ‘reasonable behaviour’ going further back in time.  It can become a ‘how long is a piece of string’ type of situation with the type and extent of costs incurred by the key stakeholders in very long running planning disputes.  This is in the situation where the process for preparing and lodging a permit application with Council, then getting a formal decision from Council, commonly takes some months or occasionally very stretched out periods.
43	For these reasons, I consider that even on the most favourable broader view of the operation of Section 74(2)(b) for Ms Preece, there would need to be more exceptional  circumstances to justify a costs award being made under that provision which involves costs that were incurred prior to the relevant VCAT proceedings being initiated.     
44	I am not seeing any such ‘more exceptional circumstances’ here.  I am not seeing any real nexus between the conduct of TLC prior to 18 September 2019 and the need for Ms Preece to have incurred the earlier costs that she did.  It is not as if TLC was overtly provoking a dispute with Ms Preece or behaving in a vexatious, under-hand or bloody-minded manner.  Rather, my view is that it was very much Ms Preece’s choice and discretion to have incurred the greater extent of earlier legal costs that she did (notably obtaining a $12,000 written opinion from a silk).
Findings by Tribunal in the alternative
45	However even if I was shown to have erred with my findings set out in my paragraphs 36-46 above and the scope of my ‘costs claim discretion’ 74(2)(b) includes the $21,195.48 costs incurred by Ms Preece prior to 18 September 2019, then on the merits, I am not seeing any convincing case that the applicant should pay some or all of these earlier costs.
46	I am not seeing any particular conduct or actions by TLC, that make TLC culpable and responsible for some or all of the $21,195.48 earlier costs incurred by Ms Preece.  
47	Where Ms Preece chose a more ambitious approach prior to 18 September 2019 in obtaining a $12,000 opinion on the restrictive covenant from a silk and other relevant expenses incurred by her solicitors, I consider this to have been her choice and her responsibility.  As mentioned, from what I have been told, it is not as if TLC at this earlier stage was overtly provoking a dispute with Ms Preece or behaving in a vexatious, under-hand or bloody-minded manner.
48	It also needs to be kept in mind that prior to 18 September 2019, it was unclear whether there would even be any VCAT proceeding lodged by TLC, which Ms Preece could formally participate in.
49	In my experience, most neighbour objectors at this earlier stage of a planning application being considered by Council (even with large projects) are capable of readily researching and preparing their objection to Council, without needing to run up substantial legal costs.  Such objectors typically regard these type of earlier costs as their own responsibility and are prudent in the extent of their involvement at this earlier stage.  Where TLC has argued that costs of $21,195.48 were disproportionate to the circumstances in question at that early stage, I see real merit to this position.
50	I do not see the size of the project here as changing this fundamental position.  Even with large and more complex projects, I understand that objector parties can (as necessary) obtain suitable professional advice from a town planning consultant, planning lawyer or junior barrister, with a tempered level of expense which that objector typically accepts.
Should some form of costs order be made against TLC, in relation to the period 18 September 2019 onwards?
51	Having made the finding set out in the paragraphs immediately above, the scope of this next question becomes ‘Should some form of costs order be made against TLC, in relation to the ordinary costs incurred by Ms Preece from 18 September 2019 onwards?’.
Factors counting against any costs order for the period after 18 September 2019 (excluding for the moment the role of the restrictive covenant)
52	I shall separately deal further below with the role of the restrictive covenant.
53	At this stage, I have set out below some ordinary planning merits factors which create a strong prima facie case that it is fair and reasonable that no costs order should be made in relation to the period after the VCAT proceeding was initiated.
54	Whilst Section 74(2)(b) of the VCAT Act provides a separate statutory basis for the potential awarding of costs against a party who withdraws their VCAT proceeding, this is still very much a discretionary power, on the facts of each case.  It is not as if the awarding of such costs ‘follows the event’ if a withdrawal occurs.  This basic position is reinforced by both the Wilcon Projects and the Asghari v SBS Radio decision.
55	The ‘discretionary’ nature of the potential awarding of costs is reinforced by the comments of Member Rickards (as she then was) at [6] of Kameel Pty Ltd v Casey CC [2006] VCAT 526.  Likewise with the comments of Member Sibonis (as he then was) at [8] in Beth Rivkah Ladies College v Glen Eira CC [2013] VCAT1564, where both these cases involved Section 74(2)(b).  
56	As mentioned above, it is not that unusual in itself for an Application for Review in the PED of the Tribunal to be withdrawn, during the intervening period before the scheduled hearing.  I also observe that, to my knowledge, it is rare for the PED to make a costs award against a such a party who is withdrawing their proceeding.
57	With respect to the procedural steps set down as a result of the PDH before DP Bisucci on 12 November 2019, TLC made its 29 January 2020 ‘Application to withdraw’ over three weeks before the 24 February 2020 deadline for Council and any respondent to pre-file their submissions in relation to the preliminary hearing to deal with the restrictive covenant.
58	In addition, this 29 January 2020 application to withdraw was made:
•	47 days before the 16 March 2020 scheduled three day hearing, to deal with the restrictive covenant issue.
•	Roughly four and a half months before the scheduled 15 June 2020 ten day hearing to deal with the whole planning dispute.  
59	The fact that the 29 January 2020 application to withdraw was made ‘earlier in time’, as opposed to say just before 24 February 2020 or either of the scheduled hearings, indicates that Ms Preece should have incurred much less costs at this ‘earlier in time’ stage.  Whilst Ms Preece did need to be represented at the PDH on 8 November 2019, that 30 minute scheduled hearing was quite brief and confined by PED standards.
60	I would certainly not describe the conduct of TLC over the period after 18 September 2019 as being vexatious, uncooperative and/or bloody-minded.  From what the parties have told me, it is not as if TLC was breaching any Tribunal orders or communicating with the other parties in a cavalier or inappropriate manner.      
61	It is a fair comment by TLC that, because of the withdrawal, Ms Preece has avoided the major expenses she would otherwise have incurred if the three day initial hearing and/or the 10 day later hearing had gone ahead.  It is also a fair comment that of the two opposing ‘camps’, it is Council and the objector neighbours that have ended up with their preferred practical outcome i.e. this proceeding has ended with no permit having been issued.    
Does the role of the restrictive covenant change this prima facie strong case that no costs order should be made?    
62	In arguing that a costs order should be made, Ms Preece has emphasised that her own objection to Council included a copy of the opinion of her own lawyers that the proposal would breach the restrictive covenant.  She also relies on the Council Grounds of Refusal including the Ground that the proposal would breach the covenant.  
63	Following this line of thinking:
•	The restrictive covenant was central to the fate of the proposal, noting that a three day preliminary hearing was set down just to deal with this legal issue. 
•	This three day hearing would have ‘put TLC to proof’, with its case that the proposal was consistent with the restrictive covenant.
•	In the situation where TLC in the final result lodged its application to withdraw on 29 January 2020, it is reasonable to infer that TLC  actioned such withdrawal because on reflection it was pessimistic about its prospects of winning the debate about this legal issue.
•	It is fair and reasonable in all the circumstances, where Ms Preece has incurred certain costs after 18 September 2019 and where TLC can be inferred to have ‘lost its nerve’ with defending its position with the restrictive covenant, that a costs order be made against TLC.
64	This line of argument is disputed by TLC.
65	For the following reasons, I consider the line of thinking set out two paragraphs above to be flawed and to carry limited weight.
66	First, TLC rely on the fact that in February 2019, it obtained its own legal advice that an “aged care facility, nursing home or similar purpose” on the subject land would not breach the covenant.  This opinion (whilst not overly long at two pages) was obtained from the law firm HWL Ebsworth, which I accept is a reputable firm which has a significant planning practice.
67	Accordingly, it cannot be said that TLC was ‘flying blind’ or had failed to do any due diligence about the restrictive covenant.  The fact that this legal advice was obtained in February last year (well before this proceeding was initiated) sought tells me that early in the project, TLC had turned its mind to the role of the covenant.
68	Second, my initial impression is that I see room for legitimate debate both ways, as to whether the mixed use proposal refused by Council would breach the restrictive covenant.  The fact that Ms Preece and Council saw the proposal as breaching the restrictive covenant does not in itself make this so.  I do not regard the application of the covenant to the facts here as a straight forward exercise, which is consistent with the choice by DP Bisucci to set this issue down for an exceptionally long hearing on a legal issue i.e. three days.    
69	Third, TLC has not made any written overt admission that its withdrawal of this proceeding was driven by TLC’s thinking about its prospects of success at the three day hearing regarding the restrictive covenant.  Rather, its solicitor’s covering letter provided with the ‘application to withdraw’ said little more than that TLC wished to have the opportunity to re-consider its position with the project.  It is unavoidable that there is a significant speculative element to the argument by Ms Preece that TLC’s withdrawal was driven by the situation with the restrictive covenant.
70	Finally, it is fair point by TLC that the 8 November 2019 30 minute scheduled PDH was a quite discrete hearing by PED standards, which Ms Preece should have been able to participate in, without needing to incur major costs.  I note that the question of the restrictive covenant is only one of the issues that would have been canvassed at this PDH. 
71	In summary then, relying on these factors set out at my paragraphs 54 onwards, I find that it is fair and appropriate that no costs order should be made under Section 74(2)(b) of the VCAT Act, in relation to the costs incurred by Ms Preece after 18 September 2019.
If so, what quantum of costs should be awarded and should costs be awarded on an ‘indemnity costs’ basis?
72	Having found that no costs order should be made for the period after 18 September 20219, this ‘quantum’ issue is redundant.
should TLC pay some or all of the cost of Ms preece’s  costs application? 
73	I see no basis for TLC paying any of the cost of Ms Preece preparing this costs application, where I have refused that application.

Philip Martin
Senior Member