VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference Nos. P630/2017 & P1880/2017
Permit Application no. MV/4917/1988/C	
CATCHWORDS	
Costs and fee reimbursement – section 109 of the Victorian Civil and Administrative Tribunal Act 1998 – claim by responsible authority – application for declaration – amendment to permit conditions –– existing use rights and conditions of permitted use – each party to bear own costs – partial award for causing adjournment 	

APPLICANT	Laurel Hotel Pty Ltd	
responsible authority	Moonee Valley City Council	
RESPONDENTS 	Craig Bruckner, Jocelyn Patricia Keron, Graeme, Eliana & Matthew Tait, James & Briony Tobin	
SUBJECT LAND	279-289 Mt Alexander Road
ASCOT VALE  VIC  3032	
HEARING TYPE	No Hearing	
DATE OF ORDER	9 February 2021	
CITATION	Laurel Hotel Pty Ltd v Moonee Valley CC (Costs) [2021] VCAT 101	

Order
1	The application for costs is allowed in part. 
2	The application for reimbursement of fees is allowed.  Pursuant to section 115B of the of the Victorian Civil and Administrative Tribunal Act 1998, Laurel Hotel Pty Ltd is ordered to reimburse the fee paid by Moonee Valley City Council of $28.90.  This fee must be reimbursed by 9 April 2021 unless otherwise agreed by Moonee Valley City Council. 
3	Pursuant to section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998, Laurel Hotel Pty Ltd is ordered to pay the costs of Moonee Valley City Council fixed in the sum of $1,200.  The costs must be paid by 9 April 2021 unless otherwise agreed by Moonee Valley City Council. 

Dalia Cook
Member			
reasons 
Background
1	A longstanding Hotel operates from the subject land.  Its current use as a Hotel does not require permission given the commercial zoning.  
2	These proceedings concerned the use of a rooftop deck permitted by planning permit in 1998 as amended in 2013.  
3	I note that an enforcement order applied for by Moonee Valley City Council (Council) was issued in respect of the land by consent at a compulsory conference on 29 March 2017.  The enforcement order required the use of the deck to be limited to 10pm each day (with the exception of specified dates for existing functions) and prevented the playing of amplified music without Council permission.   
4	In mid 2018 I made orders declaring conditions of a permit applying to a roof deck at the Laurel Hotel to be valid notwithstanding a underlying entitlement to use the land as a Hotel.  These were intended to provide finality to the parties about entitlements in respect of the use of the roof deck.   
5	In summary, I concluded that the analysis of the inter-relationship between the existing zone controls, existing use rights and the conditions of the permit provided by Council was generally sound, contrary to the position advocated by the Laurel Hotel Pty Ltd (Laurel Hotel) as applicant.  
6	The contested conditions regulate the operating hours of the deck as well as restricting the provision of amplified music except with the consent of the responsible authority.  These conditions were intended to provide measures to control noise emissions recognising the close interface with residential properties in conjunction with a condition limiting patron numbers on the deck (which was not contested). 
7	Having found that the contested conditions were valid and ongoing, I then refused to amend the planning permit to extend trading hours for the deck and to permit amplified music being played.  In all the circumstances, I found that the existing conditions represented the outer limit or acceptability for the roof deck and was far from satisfied that the applicant could manage amenity impacts suitably with more lenient conditions.  
8	Council requested that costs in the proceeding be reserved.  This matter has taken time to return for determination since there was an intervening Supreme Court appeal (subsequently withdrawn) and delays due to COVID-19 and the digitisation of VCAT files. 
9	The Tribunal provided parties with an opportunity to make costs submissions.  A submission was provided by Council but the Laurel Hotel (respondent to costs) did not provide a submission or comment in reply.  Third parties who participated at the substantive hearing did not wish to be heard on the issue of costs. 
Capacity to award costs
10	Sections 109(1) and 109(2) of the Victorian Civil and Administrative Tribunal Act 1998 (the Act) provide a rebuttable presumption that each party must bear their own costs in a proceeding. 
11	However, Council seeks an order for partial reimbursement of its costs pursuant to section 109(3) of the Act on the basis that “it is fair to do so”.  
12	Council seeks an order for costs totalling $8,760 from the Laurel Hotel Pty Ltd who was the owner and occupier of the land at the time of the substantive proceeding for permit amendment and declarations.  
13	Council also seeks reimbursement of its fee for lodging its Statement of Grounds form ($28.90) pursuant to section 115B of the Act. 
14	The onus rests with Council to demonstrate that it is fair to award partial costs and fee reimbursement.              
15	While it has not clearly specified which subsections of this provision are relied on, it appears that it is principally claiming the Laurel Hotel conducted the proceeding in a way that unnecessarily disadvantaged Council by its conduct (including causing an adjournment) 
16	In addition to the conduct of the parties, section 109(3) enables the Tribunal to consider whether a party has been responsible for unreasonably prolonging the time taken to complete the proceeding (subsection b); the relative strengths of the claims made by each party (subsection c); the nature and complexity of the proceeding (subsection d) and any other matter the Tribunal considers relevant (subsection e). 
17	Council submitted the totality of these matters should be considered. 
The review proceeding
18	The submissions for Council allege that the Laurel Hotel openly stated that the review proceeding (seeking to amend the permit) was a ‘fall back position’ - secondary to its primary position that conditions of the permit regulating the use of the deck were unlawful.   
19	It reinforced the fact that the Laurel Hotel did not properly address the impact of known noise emissions to the surrounding area, such as through acoustic evidence.  
20	Council further submitted that it was inevitable that the review proceeding would fail given the nature of the application and the ‘lack of any real prosecution’ of the underlying issues.  
21	Therefore, Council suggested that it was unfair for it to bear the burden of incurring costs to defend this proceeding. 
22	Council also specifically referred to costs ‘wasted’ from attending the hearing on 10 July 2017 which was adjourned to enable the Laurel Hotel to bring two further proceedings. 
The declaration proceeding
23	This was a proceeding in the Tribunal’s original jurisdiction.  Council submitted that costs in that proceeding are justified since: 
•	the applicant for declaration (Laurel Hotel) did not file evidence to establish existing use rights notwithstanding the opportunity to do so and that this prolonged the hearing; 
•	Council was required to maintain the existing enforcement order issued by the Tribunal in respect of the use of the deck to protect the amenity of the area; and
•	the proceeding was complex and prolonged due to the applicant’s conduct. 
Tribunal findings on costs and fees
Integrated nature of the proceedings
24	At the substantive hearing, the parties requested I determine the application for declaration first since this may negate the need for further consideration of the review proceeding.  
25	While this was laudable in theory and may have had the potential to reduce costs overall, I found it was reasonable and necessary to hear and consider both proceedings in full to arrive at an integrated decision in both matters. 
Declaration proceeding
26	The declaration proceeding raised complex questions about the interaction between existing use rights, uses permitted under the zone controls and permit conditions that stem from permitted works on the land.  In these circumstances, I find it was reasonable for the applicant to bring and defend the proceeding.  The answers to these questions were far from clear until the matter was fully heard and determined, and the positions of each party were potentially sustainable. 
27	In my experience, it is relatively rare for an award of costs in contested declaration proceedings.  In my opinion, this is consistent with the fact that it is in the public interest for parties to be able to bring a proceeding such as this for determination by the Tribunal without fear of an award of costs if unsuccessful. 
28	While the applicant did not take sufficient initiative to demonstrate existing use rights until urged by the Tribunal, this was not ultimately a determinative factor in my decision.  In any case, it falls short of the type of poor behaviour warranting an award of costs in the context of the proceedings overall.  
29	I find that Council should be reimbursed its Statement of Grounds fees even though this is a confined amount, consistent with the presumption in section 115C(1)(d) of the Act relating to ‘substantial success’ in an application under section 149A of the Planning and Environment Act 1987.  
30	I consider that substantial success in the proceeding in question related more to the application of the contested conditions of the permit to the use than confirmation of existing use (or otherwise permitted) rights.  There are no contrary factors sufficient to displace this presumption. 
Review proceeding
31	The standard practice of the Planning and Environment List is that it is unusual to award costs against an unsuccessful party in a review proceeding. 
32	I accept that the applicant in this case was somewhat ill prepared to meet the issues raised against the application (such as by electing not to call evidence as to compliance with noise standards or options for potential acoustic amelioration).  Despite this, I do not consider that its conduct or the circumstances of that proceeding were sufficiently unmeritorious to warrant an award of costs against it.  
33	I make this finding with one exception.  I consider that the applicant should be required to reimburse the costs incurred by Council for attendance at the hearing on 10 July 2017 which was adjourned to enable the Laurel Hotel to make its application for declaration.  This was recorded at $1,200 on a solicitor-client basis.  
34	These costs should have been avoided by taking a structured approach to the proceeding, including proper consideration of the key underlying issues from the outset. This is particularly the case since the Laurel Hotel was legally represented. 
General comment 
35	It is evident that the Tribunal more commonly departs from the default position to require an unsuccessful respondent to an enforcement order to reimburse some of the applicant’s costs.  This is often tied with the public duty of a council to enforce the planning scheme and permits issued under it.  
36	By contrast, the current claim for costs does not directly concern the enforcement proceeding in respect of the subject land.  
37	The fact the current proceedings emanated from the unacceptable emission of noise from the deck at the Hotel is not of itself sufficient to justify an award of costs in favour of Council. 
Conclusion
38	I find that it is reasonable for each party to bear its own costs in both the declaration and review proceedings subject to reimbursing Council’s costs for the hearing that was adjourned and its fees claimed in the declaration proceeding. 

Dalia Cook
Member