2. That the respondents, Thomas Adrian Campbell and Mr and Mrs Michael John Calman pay Messrs J and C Stolz, N Grambas and M and I Heffernan party/party costs of these proceedings to be assessed on County Court Scale B to be taxed by the Registrar in default of mutual agreement - such costs to be paid no later than 21 days following taxation by the Registrar.

Mr T Montebello, Solicitor of Maddock Lonie and Chisholm, appeared for the applicant/ responsible authority.

Mr A Southall QC, instructed by Michael Coldham and Associates, appeared for the respondents.

Mr Simon Molesworth QC, instructed by Wainwright Ryan, Solicitors, appeared for the Affected Persons.

1. This is an application under section 109 of the Victorian and Civil Administrative Tribunal Act 1998 for costs resulting from the need to obtain an enforcement order to remove a tennis court fence constructed without a planning permit in breach of the Code of Practice - Private Tennis Court Development.

2. This decision is made "on the papers" following directions handed down on 9 July 1999 as follows:

"As to costs, as no particular preference was expressed by the Respondents or by the Responsible Authority as to how the question of costs was to be dealt with, yet a preference was expressed by the Objectors to deal with costs by way of submissions, I make the following directions.

1. Each of the parties shall lodge with the Tribunal and serve on each other party's solicitors on the record, a copy of its costs submissions by 23 July 1999.

2. Any application for costs must be prepared in an itemised form suitable for taxation on County Court Scale B.

3. Any submissions which each of the parties wishes to make in response must be served upon each other party and lodged with the Tribunal by 6 August 1999".

3. On 9 July 1999 the Tribunal found that the respondents were and continue to be in breach of the Bayside Planning Scheme in that the development of the tennis court fence contravenes, has contravened and will continue to contravene clause E2.3.1 of the Code of Practice - Private Tennis Court Development.

4. During the course of handing down my decision, I said:

"As Mr Southall failed to elect which method of compliance with the Planning Scheme was more preferable to his client, and as his client only improved the appearance of the fence with creepers and trees in October 1998, ten months after construction in December 1997, I have decided to order its removal. That will not prevent the Respondents from seeking a planning permit if they so desire. In reaching this conclusion, I have taken into consideration the correspondence passing between the Responsible Authority, the Minister for Planning and Mr Campbell. Rather than set out this correspondence here, it will form a subsequent part of this decision which will deal with the costs applications."

5. As stated there, I will set out the correspondence in this section of the decision, as the parties themselves have done in their submissions to me. The correspondence is set out here, as it is more relevant to the question of costs, rather than the question of whether the tennis court fence complies with the planning controls in law.

6. This decision is being made "on the papers", being the submissions by the following parties:

(i) Bayside City Council application for costs and taxed bill dated 23 July 1999;

(ii) Application for costs and taxed bill by Messrs Stolz, Grambas and Heffernan (Affected Persons) dated 15 July 1999; and

(iii) Submission in response by Messrs Campbell & Calman (undated) but faxed to the Tribunal on 30 July 1999.

7. The starting point in respect of costs applications is clearly spelt out in s. 109(1) of the Victorian and Civil Administrative Tribunal Act, namely that:

"Each party is to bear their own costs in the proceeding".

8. However, the Tribunal has power to award costs, "only if satisfied that it is fair to do so, having regard to" a list of matters specified in s.109(3).

(i) failing to comply with "an enabling enactment" within the meaning of section 109(3)(a)(ii) and section 3. The Planning and Environment Act 1987 is such an enabling enactment which requires compliance with planning schemes and planning controls;

(ii) any other matter the Tribunal considers relevant under section 109(3)(e).

10. The responsible authority relies on the respondents' breach of the planning scheme (which incorporates the Tennis Court Code of Practice) as the basis for its claim.

11. The tennis court fence had been constructed by the Respondent Thomas Adrian Campbell by December 1997.

12. As Council's building surveyor had responded to Mr Campbell's building surveyor by letter dated 15 October, 1997 that in its opinion no planning permit was required as the fence complied with the Tennis Court Code of Practice, it cannot complain of any costs it incurred around that time as it was of the opinion the fence was lawful under the planning scheme.

13. Notwithstanding that Council's solicitors' advised it on 2 December 1997, that the fence was unlawful, the Council's solicitor did not advise Mr Campbell of its change of opinion until letter dated 15 July 1998. Accordingly, it would not be entitled to claim any costs prior to July. However, its costs claim only commences from 24 November 1998. This is perhaps because negotiations were proceeding between council and the respondents, where the respondents were seeking particulars of illegality, council was seeking remedial works to bring the fence within element 2.3.1 of the Code of Practice, and both sides were waiting from responses and remedial works.

14. The responsible authority seeks costs on a solicitor/client rather than party/party basis. Its reasons for seeking same are based on:

(i) the failure of the Respondents to attend a conciliation meeting with the neighbours and affected persons;

(ii) failure to concede the patent illegality of the fence;

(iii) failure to consider the affect on the neighbours;

(iv) failure to lodge an application for planning permit on a without prejudice basis;

(v) failure to seek a declaration from the Tribunal regarding the legality of the fence;

(vi) reliance on the reason maintained by the respondent, Thomas Campbell, in constructing the fence based on destruction of the trees.

Costs Claims By The Affected Persons (Neighbours)

"claim for costs is the culmination of almost 2 years effort on their part to have the offending wall on the Respondents' property removed".

16. They seek costs almost as a vindication of their position which involved having to persuade the responsible authority, Members of Parliament and this Tribunal (by way of supporting the council's enforcement order application) to issue the enforcement order.

17. Enforcement order applications, successfully obtained, often justify an award of costs in favour of the successful parties. See Svanosio v Shire of Strathfieldsaye and Others (1989) 2 AATR 26. But there is no general rule to this effect and each case must be judged on its merits. See E F & A Lucas v Shire of Flinders and G & E Todaro (unreported Appeal No. 1989/46988), per Russell Byard.

18. Guidelines for the awarding of costs in enforcement proceedings are also set out in the leading case of City of Sunshine v Cima 3 AATR 316 at 319.

19. The leading cases on this issue of costs talk of parties acting in a "blatant and cavalier way" or "ignoring proper requests and warnings", as being situations where the Tribunal is more likely to make an order for costs than a situation where there is a reasonable dispute about whether or not a contravention has occurred. What is noteworthy is that section 109(3) of the new Victorian and Civil Administrative Tribunal Act 1998 does not set such a extreme standard of misbehaviour as justification for the award of costs against a party. For example, section 109(3)(a)(ii) merely talks of "failure to comply with ... an enabling enactment".

20. Other cases also talk of quite extreme behaviour, eg:

(i) "not bona fide" see Kelk and Fruskelso v City of Brunswick and Director of Housing (1992) 8 AATR 236 at 250;

(ii) "wilful ... persisted with undertaking works of a substantial nature in the full knowledge that the works were unacceptable ...and has ignored proper requests and warnings". See City of Williamstown v Thomas noted at 12 AATR 103.

21. The neighbours maintain that they have warned the respondent, Thomas Campbell, since 1997, that the tennis court fence breached the planning scheme, but to no avail.

22. The other basis upon which the affected persons justify an award of costs in their favour, besides the fact that they were "successful" are:

* the fact that the respondent is a "very experienced and well known land developer who has been working with planning controls and planning legislation for many years" and therefore "must have readily available to him a wide range of professional advisers"; and

* the fact that the 5 metre high fence was, by its very height and breadth, of such an offending nature to clearly blight the amenity of neighbours living within 3 metres of the structure. In this circumstance, there must have been a real doubt in the respondents' mind as to the legality of the structure.

23. The affected persons also seek costs on a solicitor/client basis, rather than a party/ party basis.

24. Am I satisfied that it is fair to award the Council and the affected persons their costs and to order that they be paid by Messrs Campbell and Calman?

25. Mr Southall contends that there has been "no failure to comply with ... an enabling enactment". I disagree. The definition of an enabling enactment is:

"An enactment by under which jurisdiction is conferred on the Tribunal."

Victorian Civil and Administrative Tribunal Act 1998, s. 3.

26. The Planning and Environment Act is clearly an enabling act which has conferred jurisdiction on the Tribunal. It is also identified as same in schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. The breach of the planning scheme is a breach of a subordinate instrument under the Planning and Environment Act 1987.

27. Mr Southall also contends that because of the nature and content of the submissions and the issues, the content of the Tribunal's decision and the fact that its decision was reserved, it cannot be argued that the respondents' claim had "no tenable basis in fact or in law".

28. The Tribunal does not necessarily agree that just because the respondents were able to maintain arguments based on technicalities, that that gave them a tenable case in law. Even completely unmeritorious cases can have a smart lawyer find some basis for argument. In any event, that quote is taken from s.109(3)(c), which is not a head under which I am exercising my discretion whether costs should be awarded.

29. As for the argument that the reason the fence was built was due to the destruction of (part of) the cypress trees and that reason should be a basis for not awarding costs against the respondents - that is no excuse for the construction of an illegal structure and the costs generated by subsequent litigation to declare it illegal in order to have it removed. The law looks to compliance, not excuse for non compliance, or excuse as a means of avoiding the costs necessarily incurred by parties to uphold the planning laws. To use the colloquial, "two wrongs do not make a right".

30. I remind the parties that 5.50 metre tall trees are an integral condition of the tennis court lighting permit No. P4244 obtained in 1993, which needs to be separately complied with. Perhaps the respondent, Mr Campbell, would have been better to have had the cypress trees under surveillance to establish the cause of the damage, rather than go to this extent to replace them, and incur the resultant costs.

31. The argument that a building permit was obtained and should be reason not to award costs, is irrelevant to compliance with planning laws and the costs incurred for breach thereof.

32. Do the following statements by the council and the Minister for Planning assist the respondents?

"As the siting of the fence is in excess of 1m from the adjoining property boundary, thereby complying with the Tennis Court Code of Practice, Council does not intend to take any further action in regard to this matter. The adjoining property owner has accordingly been notified of this decision".

(Letter dated 15 October 1997 from Mr M Top, Development Manager of Bayside City Council, to the respondents' building surveyor)

(Letter dated 24 February 1998, from the Minister for Planning and Local Government to Mr Michael Campbell).

33. They do not assist the respondents as against the affected persons, as they consistently maintained their opinion that the fence was an illegal structure from the outset and at all times. Having had their position vindicated by the decision of this tribunal, they should not have to bear the costs of their `2 years efforts' to reach this point. As it is, they will be out of pocket because I do not propose to award the solicitor/client costs they seek.

34. The letters do not assist the respondents as against the council, for council is only claiming its costs after November 1998, one year after its initial expression of opinion.

35. The Respondents rebut a costs order against them because Council "sat on its rights" for almost 12 months from December 1997 (when Maddock Lonie and Chisholm advised Council of its opinion of the fence was illegal) and October 1998 when Maddocks advised the respondents that the fence required a permit. However, that rebuttal overlooks Maddocks' statement in paragraph 14 of their costs submission, that they wrote to Mr Campbell by letter dated 15 July 1998 advising:

"Our client is of the opinion that your tennis court fence does not comply with the Code of Practice and, as you have no permit, the structure is unlawful. Our client is now resolved to seek an enforcement order from the Victorian Civil and Administrative Tribunal ... however, our client desires that the matter be settled ... we therefore request ... the top 2m metres of the fence be replaced with an open chain meshed type fence and ... landscaping and other remedial measures .... Please advise whether you propose to undertake these actions within 7 days. Failing your agreement, we will lodge the application for the enforcement order immediately. We will produce this letter on the question of costs".

36. It is true that there was a six month delay, but council is only seeking costs incurred after 24 November 1998. By July 1998, the respondents knew of council's altered opinion.

37. Having considered the written submissions and all the arguments, I am of the opinion that it is reasonable to award the affected persons their costs to be assessed by the Registrar. The affected persons have at all times maintained a consistent approach and had an uphill battle to achieve the enforcement order. The overbearing nature of this structure should at the very least have been the subject of a without prejudice application for a planning permit, as I said in the Enforcement Order. In that way, the issue could have been resolved as a real question to be tried, rather than ignoring complaints, warnings and forcing the neighbours to keep lobbying the council to use its enforcement powers.

38. As for the council, I do not agree that its actions after mid 1998 could be perceived to be an act of "brinkmanship under pressure from local objectors and politicians rather than on properly conceived legal justification". The nature, size, breadth and height of the tennis court fence are such as, in my opinion, to render it patently requiring planning permission from the outset. I think the council had no other choice, as the respondents did not test the issue by way of a declaration or a without prejudice planning permit application.

39. Notwithstanding the reasons expressed by the council for seeking costs on a solicitor/client basis, I do not think this case is so remarkable as to justify a departure from the usual rule of ordering costs on a party/party basis. Council are not entirely pure in this matter, given that the respondent, Mr Campbell, was lulled by the Top letter referred to earlier. I can appreciate Mr Campbell's annoyance at council's initial opinion that the fence was legal and then its about face half a year later.

40. As for the submission contained in paragraph 17 of the respondents' costs response, I agree that much of the Affected Persons' historical and legal excursus was excessive and not to the point, and that the references to the Svanosio and Cima cases would have sufficed. The Registrar should take these comments into account in his taxation.

41. As to the argument on quantum of disbursements, I will leave that to the discretion of the Registrar.

42. I propose to order that the respondents, Thomas Adrian Campbell and Mr and Mrs Michael John Calman pay the Responsible Authority and Messrs J and C Stolz, N Grambas and M and I Heffernan party/party costs of these proceedings to be assessed on County Court Scale B to be taxed by the Registrar in default of mutual agreement - such costs to be paid no later than 21 days following taxation by the Registrar.

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