VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P58/2022
	
CATCHWORDS	
Section 115B and 115C of the Victorian Civil and Administrative Tribunal Act 1998; Application for reimbursement of fees by applicant following its withdrawal of proceeding      	

APPLICANT/ responsible authority 	Mansfield Shire Council 	
Respondents 	Michael Edward Graham 	
	Sophie Marion Digby	
SUBJECT LAND	6 Sonnberg Drive 
BONNIE DOON  VIC  3720 	
HEARING TYPE	On the papers 	
DATE OF HEARING	7 June 2022	
DATE OF ORDER	10 June 2022	
CITATION	Mansfield SC v Graham [2022] VCAT 649	

Order
Reimbursement of fees
1	Pursuant to section 115B of the Victorian Civil and Administrative Tribunal Act 1998, the respondents are ordered to reimburse the applicant, Mansfield Shire Council, the whole of the application fee and daily hearing fee paid in the proceeding, namely $3014.10, within 60 days of the date of this order.

Michelle Blackburn
Member			

Reasons
Introduction
1	This proceeding involved an application made by the responsible authority under section 114 and 120 of the Planning and Environment Act 1987 (P&E Act) seeking interim and final enforcement orders to stop the use of the subject land for a camping and caravan park, unless a planning permit was issued authorising that use.  The responsible authority sought such orders on the basis that this use of the subject land required a planning permit under the Mansfield Planning Scheme (the scheme) and no such planning permit had been issued. 
2	At a hearing in respect of the application for an interim enforcement order held before me on 21 January 2022, the respondents did not dispute that there had been a planning contravention.  They each gave a formal undertaking to the Tribunal that the use would immediately cease and they would undertake certain further measures to ensure this.  A further hearing was scheduled for 14 September 2022.  
3	After the 21 January 2022 hearing, the responsible authority wrote to the Tribunal confirming that the use of the subject land for a camping and caravan park had ceased.  In this context, the responsible authority requested that its application for enforcement order be withdrawn as compliance with the scheme had been achieved.  The Tribunal, by order dated 29 April 2022, granted leave for the responsible authority’s application to be withdrawn. 
4	However, in seeking to withdraw its proceeding, the responsible authority asked me to make an order under section 115B and 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) requiring the respondents to reimburse it for costs incurred by way of fees paid in respect of this proceeding.  
5	These fees are the application fees for the interim enforcement and final enforcement order applications ($2,448) and the daily hearing fee for the hearing on 21 January 2022 ($526.10).  The total of these fees is $3014.10.  
6	My orders dated 29 April 2022 set out a process by which the parties could make submissions in respect of this reimbursement/costs application of the responsible authority, with a hearing to be conducted ‘on the papers’ unless this was objected to by any party.  This process required the responsible authority to provide submissions in support of its reimbursement/costs application by 13 May 2022 and these submissions have been received by the Tribunal.  I also required any party wishing to oppose or otherwise respond to the application for reimbursement/costs to provide submissions by 27 May 2022.  No submissions were received from the respondents.  I provided a further date of 3 June 2022 for any submissions from the responsible authority in reply to any submission of the respondents, which was redundant given the lack of any submission being filed by the respondents.  
7	The costs hearing was scheduled to be conducted on the papers on 7 June 2022, unless this was objected to by 6 June 2022.  There was no such objection, and nor was there any request for alternative procedural orders (as allowed by order 8 of my 29 April 2022 orders).  
8	Accordingly, I have proceeded to determine the application of the responsible authority for reimbursement of its fees.  
9	Having considered the relevant regulatory framework and all of the material before me, I have decided to grant the request for the respondents to reimburse the responsible authority its fees paid in respect of this proceeding. My reasons for this follow.
Legislative provisions 
10	Section 109 of the VCAT Act provides that parties are to ordinarily bear their own costs in any proceeding before the Tribunal.  However, section 109 does allow the Tribunal to award costs against a party if it is satisfied that it is fair to do so, having regard to specified statutory considerations. 
11	In addition to this general provision about costs, are the more specific provisions of Part 4, Division 8A of the VCAT Act relating to reimbursement of fees.  These more specific provisions do not affect the power under section 109 to make an order for costs.
12	Section 115B of Part 4, Division 8A of the VCAT Act allows the Tribunal to make orders that a party reimburse another party the whole or part of any fee paid by that other party in the proceeding.
13	Section 115C of the VCAT Act applies to enforcement proceedings under section 114 of the P&E Act in circumstances where a party has substantially succeeded against another party.  If section 115C applies, there is a presumption that the responsible authority would be entitled to an order under section 115B.  However, I could order otherwise, having regard to: 
(a) 	the nature of, and issued 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.  
14	If the presumption of section 115C does not apply, I am still able to make an order requiring the respondents reimburse the responsible authority for its fees paid in this proceeding if I consider it appropriate to do so, after considering the matters set out in section 115B(3).  The matters set out in section 115B(3) similarly require consideration of the nature of and issues involved in the proceeding, the conduct of the parties, as well as the result of the proceeding.  
Tribunal findings
15	Given the responsible authority is only seeking orders in respect of its fees, I have first considered its request under the specific provisions relating to reimbursement of fees in Part 4, Division 8A of the VCAT Act.  
16	The responsible authority submitted that it should be reimbursed its fees by the respondents as it has substantially succeeded against the respondents in this proceeding. The responsible authority says it has substantially succeeded as the subject land has been brought into planning compliance, notwithstanding that this has occurred without the Tribunal making the interim or final enforcement orders sought by the responsible authority in its application to the Tribunal.  The responsible authority submitted that the Tribunal proceeding was required in order for planning compliance to be achieved.  
17	I agree with the responsible authority, that while the proceeding was not determined by the Tribunal, the practical result of the proceeding has been that the responsible authority has been successful in achieving rectification of the planning non-compliance occurring on the subject land.  
18	I also agree with the responsible authority that the proceeding was required for the planning compliance to be achieved.  The information before me indicates that the responsible authority had sought to resolve the non-compliance prior to commencing the proceeding, but it was only after the responsible authority brought this proceeding that the non-compliance was fully and finally rectified.  
19	In my view, this means that the practical situation is similar to that covered by section 115C of the VCAT Act, irrespective of whether it is actually covered by section 115C or not.  
20	There is no need for me to determine whether the situation is one which is covered by section 115C or by the more general provisions of section 11B.  This is because, the matters to which I must have regard under both section 115C and section 115B(3) are similar and whichever of these sections applies, I am in this instance satisfied that it is appropriate to make orders which require the respondents to reimburse the responsible authority its fees paid in this proceeding because, as I have explained above:  
(a)	the nature of the proceeding was an enforcement proceeding which has led to the responsible authority successfully achieving the planning compliance that it sought to achieve in bringing the proceeding; and 
(b)	the conduct of the parties was such that it was reasonable for the responsible authority to bring the proceeding and the proceeding was reasonably required for the responsible authority to achieve the planning compliance that it sought.  
21	It follows from the above, that I have decided to make orders requiring the respondents to reimburse the fees paid by the responsible authority.  I consider a reasonable time for this to be done is within 60 days of my order.
22	Given I have decided to make orders under section 115B, there is no need for me to consider the request of the responsible authority under the more general costs provisions of section 109 of the VCAT Act.      
Conclusion 
23	For the reasons set out above, the respondents are required to reimburse the responsible authority for the fees it has incurred in this proceeding.  These fees total $3014.10 and must be reimbursed within 60 days of the date of my order.  

Michelle Blackburn
Member