VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11120/2021
planning Permit no. pla0007/20

CATCHWORDS	
Sections 109 & 115B of the Victorian Civil and Administrative Tribunal Act 1998:  Application for costs	

APPLICANT	Stuart Mclaren	
responsible authority	Baw Baw Shire Council	
SUBJECT LAND	785 Hazeldean Road, Cloverlea	
HEARING TYPE	No hearing	
DATE OF ORDER	23 December 2021	
citation	Mclaren v Baw Baw SC [2021] VCAT 1492	

Order

1	The application for an order for costs made by the applicant is refused.  No costs are awarded.

Tracy Watson
Member			

REASONS

1	The Tribunal conducted a short case hearing on the 26 October 2021 to determine the application made by Mr Mclaren under section 80(1) of the Planning and Environment Act 1987.  The application was to review Condition 16 of Planning Permit No. PLA0007/20 issued by the Baw Baw Shire Council on 3 May 2021.
2	Planning Permit no. PLA0007/20 allows the use and development of a dwelling and agricultural building associated with agriculture on the subject land at 785 Hazeldean Road, Cloverlea (Lot 2 PS 202773G Vol 9677 Fol 730).  
3	The application for review was determined by the Tribunal on 26 October 2021 and verbal reasons were given at the conclusion of the hearing regarding the planning merits of the proceeding.
4	At the short case hearing, Mr Mclaren also made an application for costs, seeking a payment of $3,077.65 from the Council.  The $3,077.65 amount sought by Mr Mclaren comprises $2,206.85 to cover the Council’s planning permit application fee, and $870.80 to cover the Tribunal’s application for review lodgement fee.
5	On 27 October 2021, the Tribunal issued an order setting out the process for the receipt and consideration of written submissions regarding the application for costs.
6	It is appropriate for the Tribunal to now determine this matter ‘on the papers’, without the need for a hearing.  I have considered the written submissions made by Mr Mclaren and the Baw Baw Shire Council in relation to the application for costs, although I do not recite or refer to the full content of their written submissions in these reasons.
7	The main basis of the application for an order for costs is Mr Mclaren’s dissatisfaction with the amount of time the Council took to determine the permit application and the way in which the permit application was processed.  
8	Mr Mclaren’s submission was that the Council’s handling of the permit application was unreasonable and caused unnecessary delays, including the fact that three separate requests for further information were made.  This meant that it took the Council over 15 months to determine the permit application.  Mr Mclaren said that rather than lodging a review under section 79 of the Planning and Environment Act 1987, he sought to work with the Council by responded to each of the further information requests in a timely manner.  Further, the inclusion of Condition 16 on the planning permit issued by the Council was unexpected given the nature of its further information requests.
9	Mr Mclaren’s submission did not say under which section(s) of the Victorian Civil and Administrative Tribunal Act 1998 his application for costs was being made.  
10	The starting point for my consideration of the application for costs is that section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the Act) requires parties to bear their own costs in the proceeding.
11	However, section 109(3) of the Act provides that the Tribunal may make an order for full or partial costs if it is satisfied that it is fair to do so having regard to the following matters:
(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. 
12	Also, section 115B(1)(a) of the Act provides that the Tribunal may make an order that a party to a proceeding reimburse another party the whole or any part of any fee paid by that party in the proceeding.  Pursuant to section 115A of the Act, the fee referred to in section 115B(1)(a) is specifically defined, and in this case it means the fee payable in a proceeding under this Act (that is, the Tribunal’s application for review lodgement fee).
13	In making an order under section 115B of the Act, pursuant to section 115B(3), 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.
14	The conduct of both the Council and the applicant for review has been fair, reasonable and appropriate throughout the proceeding.  I wish to underscore that the ‘proceeding’ relates to the application for review made by Mr Mclaren under section 80(1) of the Planning and Environment Act 1987.  In other words, the ‘proceeding’ does not relate to how the Council processed the permit application.
15	I can understand the frustration experienced by Mr Mclaren in relation to how long it took for the Council to determine his planning permit application.  However, section 115CA of the Act does not apply because the application for review was not made under section 79 of the Planning and Environment Act 1987.  Because of this, I give little to no weight to the way in which the Council processed the permit application and the associated timelines.  By contrast, I give considerable weight to the fact that the Council’s conduct in relation to the proceeding (that is, the Tribunal’s proceeding) did nothing to contravene sections 109(3)(a) and (b) and 115B(3)(b) of the Act.
16	I consider that the key relevant section of the Act in relation to this application for costs is section 109(3)(c), which refers to a consideration of 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.
17	My decision on the planning merits of the proceeding was in favour of the applicant for review, as I directed the Council to issue a modified planning permit deleting Condition 16.  However, this does not mean that the decision of the Council to include Condition 16 on the permit issued in May 2021 had no tenable basis in fact or law.
18	The original Condition 16 of the permit was intended to affect the consolidation of two, effectively contiguous, land parcels owned by the applicant for review by requiring that:
Before the use and / or development starts, Lot 2 on Plan of Subdivision 202773G and Lot 1 on Title Plan 587484J must be consolidated under the Subdivision Act 1988 through the certification of a plan by Council and the registration of such a plan by the Registrar of Titles.
19	The submissions made by Janet Power, on behalf of the Council, at the planning merits hearing provided the reasons why the Council imposed this condition.  Ultimately, I decided that the condition was unnecessary in order to achieve an acceptable planning outcome on the subject land.  However, this does not mean that the Council’s case had no tenable basis in fact or law.  For instance, under Clause 22.01-1 of the Baw Baw Planning Scheme, it is policy to, “require consolidation of vacant lots within the property (being lots in the same ownership which adjoin each other or are separated only by a stream, stream reserve, or unmade or unused government road or rail reserve) on which the dwelling is proposed, where the property comprises of more than one lot.”
20	Put another way, it was open to me (having regard to the relevant provisions and policies of the Baw Baw Planning Scheme) to make a different judgement call at the planning merits hearing, and to decide in favour of the Council.
21	Therefore, I find that in this matter, it is reasonable that each party bear their own costs relating to the proceeding.  It would be unfair to require the Council to pay the applicant either the whole $3,077.65 amount, or to pay the applicant a portion of the whole amount.  
22	I conclude that the application for costs should be dismissed.  No costs are awarded.

Tracy Watson
Member