PERMIT HOLDERS: Stanko and Kerry Anne Stoiljkovic

MEDIUM NEUTRAL CITATION: [2002] VCAT 918

1. The Tribunal finds that this proceeding was brought vexatiously by the Applicant/Responsible Authority within the meaning of s.150(4) of the Planning and Environment Act 1987.

2. Assessment of compensation (if any) for increased cost of construction and equipment supply and loss of farm income adjourned to 23 July 2002 at 9.30am for directions.

3. Order that the permit holders' costs of and incidental to the s.87 application be taxed, in default of agreement, on a party/party basis at the rate of $140 per hour for Mr Proctor. Certify for Mr Hooper Q.C.'s fees at $5,000. Liberty to apply.

4. Costs of s.150(4) application reserved.

For the Applicant/Responsible Authority: Mr C J Canavan QC

For the Respondents/Permit Holders: Mr A E Hooper QC

1. This is an application pursuant to s.150(4) of the Planning and Environment Act 1987 ("the Act") for an order that the Responsible Authority pay compensation and costs to the permit holders**.**

2. The application relates to land at 70 Racecourse Road, Nar Nar Goon ("the subject land") owned by the permit holders.

3. The application raises questions of both fact and law. Insofar as questions of law are raised, they have been decided in accordance with the opinion of the presiding member.

4. The application arises from a decision made by this Tribunal on 14 February 2002 refusing an application by the Responsible Authority pursuant to s.87 of the Act to cancel Permit T000618 issued on 28 June 2001. Reasons for that decision were published outlining the history of the permit application. We do not intend to repeat that history, save to the extent necessary to determine the present application.

5. Section 150(4) is in the following terms:

"(4) If any proceedings are brought before the Tribunal under this Act and the Tribunal is satisfied that -

(a) the proceedings have been brought vexatiously or frivolously or primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceedings; and

(b) any other person has suffered loss or damage as a result of the proceedings -

the Tribunal may order the person who brought the proceedings to pay to that other person an amount assessed by the Tribunal as compensation for the loss or damage and an amount for costs."

6. In directions given on 14 February 2002 the Tribunal stated that it would determine the following threshold issues:

(a) whether proceeding 2001/P50831 was brought frivolously or vexatiously;

(c) if yes to (a) whether the Responsible Authority should pay compensation and/or costs to the permit holders;

(e) if yes to (c), as to the method by which such compensation and/or costs should be assessed.

7. It is not contended that the proceedings were brought "to secure or maintain a direct or indirect commercial advantage" for the Responsible Authority. Rather, the allegation made on behalf of the permit holders is that the proceedings were brought "vexatiously or frivolously". In the circumstances of this case, we would find it difficult to conclude that the proceedings were brought frivolously yet not vexatiously. In reality, therefore, the applicants must demonstrate that the proceedings were brought vexatiously.

8. It is convenient at this stage for us to deal with the meaning of "vexatiously". In J & C Cabot and P Zukanovic v City of Keilor and James W Saddler Pty Ltd (1992) 11 AATR 87 Gobbo J. adopted the following test formulated by Rhoden J in Attorney-General v Wentworth [1988] 14 NSW LR 481:

"It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the tests may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;

2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the Court adjudicate on the issues to which they give rise;

3. They are also thought properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."

9. It is clear that the three limbs of the test are to be read disjunctively.

10. In Re Vernazza [1960] 1 QB 197 at 208 Ormrod J said:

"The question is not whether legal proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious."

This statement was cited with approval by Toohey J in Jones v Skyring [1992] HCA 39; [1992] 66 ALJR 810 at 813. Toohey J. added:

"That question is one for the Court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought is acting maliciously or in bad faith."

11. In Attorney-General for the State of Victoria v Lindsay, unreported, 16 July 1998 Kellam J said:

"In the case before me the plaintiff led no evidence of any subjectively malicious motive on the part of Lindsay in bringing the proceedings. Accordingly, proof that the various proceedings relied upon were or are vexatious depends upon whether or not those proceedings disclosed any reasonable course of action or basis or, to the contrary, were hopeless."

It is relevant to note that Lindsay was not a case under s.150(4).

12. The issue is whether the proceedings were brought vexatiously. In Lord Haven Pty Ltd v Greater Dandenong [2000] VCAT 1873 (30 September 2000) Deputy President Bruce said at paragraph 86:

"The point at which proceedings are usually considered to determine whether they disclosed any reasonable cause of action or basis, or are `so obviously untenable or manifestly groundless as to be utterly hopeless' is before the substantive hearing takes place. The judgment about whether they are vexatious is made on the basis of the material available then, not with the benefit of hindsight after the hearing has been concluded and the outcome is known."

13. The first of the three tests formulated by Rhoden J, and adopted by Gobbo J, is not pertinent to these proceedings.

14. Putting Rhoden J's second test to one side for the moment, the third test is whether the proceedings were "so obviously untenable or manifestly groundless as to be utterly hopeless."

15. In Lindsay Kellam J expressed the test in a slightly different way: were the proceedings brought "without any reasonable grounds". Is there any significant difference between this formulation and Rhoden J.'s third test?

16. The test suggested by Kellam J more closely follows the test commonly applied in applications to strike out a proceeding, or a defence. In such cases it is not necessary to demonstrate that the claim, or the defence, is "so obviously untenable or manifestly groundless as to be utterly hopeless".

17. In the Tribunal's view, the adjectives "obviously" and "utterly" can be removed from Rhoden J's formulation without doing any violence to it. It would then read "They are so untenable or manifestly groundless as to be hopeless". That done, the difference between Rhoden J's test and Kellam J's diminishes. The issue is whether the proceedings were hopeless at the time they were brought. As Deputy President Bruce observed, the judgment is to be made "on the basis of the material available then, not with the benefit of hindsight after the hearing has been concluded and the outcome is known".

18. If there is any appreciable difference between the Wentworth view and the Lindsay view, in my opinion the former is to be preferred in an application under s.150. I say that for two reasons: first, because Gobbo J, who adopted Wentworth, was also considering an application under s.150; secondly, the consequences of the finding of vexatiousness in the context of a s.150 application are, potentially, more severe than those which are likely to follow from a striking out of a claim or defence. In the latter case, there is simply a refusal to entertain what is adjudged to be hopeless; but in the successful claim under s.150, compensation may also be awarded.

19. There is no counterpart to s.150(4) in the laws governing Victorian Courts, ie a power to award compensation against a vexatious litigant. There are, no doubt, sound public policy grounds why this should be so. Litigants should not be discouraged from approaching the courts except by the prospect of having to pay costs if they are unsuccessful. There is a difference between a weak case and a hopeless case. It is by no means unheard of for a case to succeed which at the time of commencement was thought to be weak. In the context of s.150(4) "hopeless" must therefore mean without hope, other than a `Tattslotto' chance. Lawyers are apt to describe cases as hopeless when they really mean the case is very weak. "Hopeless" means considerably more.

20. Viewing the matter in this way, the Tribunal is not persuaded that the case presented by the Responsible Authority, if competently assessed before the hearing took place, was hopeless in the relevant sense. In support of this conclusion, the Tribunal can do no more than refer to the issues canvassed in the reasons given on 14 February 2002. Therefore the Tribunal does not consider the proceeding to be vexatious in the sense contemplated in the third limb of the test in Wentworth.

21. That brings us back to the second limb of the test. Were the proceedings "brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise"?

22. Mr Hooper QC, on behalf of the permit holders, presented an elaborate case calculated to demonstrate that over a long period of time the Responsible Authority took every opportunity, by fair means and foul, to frustrate, discourage and delay the permit applicants. The Tribunal does not intend to examine the case presented by Mr Hooper in this behalf because it does not bear directly on the critical issue. So far as collateral purpose is concerned, the Tribunal is concerned only with the Responsible Authority's motive for bringing the proceeding, not its motive for conduct which preceded the bringing of the proceeding. Earlier conduct is relevant only to the extent that it is capable of strengthening the inference the Tribunal is asked to draw as to the Responsible Authority's motives for bringing the proceeding. In that regard, after giving due consideration to the additional material presented in this proceeding, the Tribunal repeats the finding made at paragraph 16 of the decision given on 14 February 2002 that the Responsible Authority deliberately stalled the approval process. This occurred because of the Responsible Authority's determination that no broiler farm should be constructed on the subject land. We will further elaborate on this finding later in these reasons.

23. The case presented on behalf of the permit holders is, of necessity, a circumstantial one, because there is no direct evidence of improper purpose. Among the material presented in support of the circumstantial case is a document the Tribunal regards as crucial. It is Document 21 of the documents tendered by Mr Proctor during the cancellation application and consists of a report presented by a council officer to a meeting of Council on 23 July 2001 recommending that Responsible Authority "seek a review of the VCAT determination in respect of broiler sheds at No. 70 Racecourse Road, Nar Nar Goon", together with the Minutes recording the resolution of Council adopting that recommendation.

24. The report does not identify its author, though it is likely to have been Mr Geoff Rundle, General Manager, Community Planning.

"Council has now received a letter from the Minister of Planning dated 9 July 2001 indicating that whilst tribunal's [sic] do not operate retrospectively, `I do not believe that this would rule out council considering whether the application of s.87(1)(b) of the Planning and Environment Act is appropriate'."

"The Minister may have meant to refer to s.87(1)(d) which allows the Tribunal to cancel or amend a permit on the basis of material change of circumstances."

"It is encouraging that the Minister holds this view".

"Council has sought legal advice on its options. Maddock Lonie Chisholm has sought to review the Victorian Government Solicitor's advice to the Minister but has been unable to view this information. Maddocks advise that an appeal to the Supreme Court or an appeal to VCAT could fail for the following reasons:

* A basic tenet of law is there must be finality to decisions and a change of Government policy does not warrant a review of a previous decision.

* The recent Government decision regarding the Draft Code did not constitute a material change in circumstances.

* The Council will need to also convince the Tribunal that cancellation of the permit is just and fair.

Maddocks also advises that Council could be liable for the opposing side's costs if the Tribunal of [sic] regarded the Appeal as frivolous or vexatious. In the case of a Supreme Court the appeal could cost in the order of $50,000, or in the case of VCAT perhaps $20,000, including Council's share of the opponent's costs."

27. Any objective reader of the Minister's letter would have concluded that it said very little It emphasised that the proposed code would not be retrospective. It said, however, that in the Minister's view the Code did not "rule out" the Council "considering" whether there was room for the application of s.87(1): in other words `it may be worth considering'.

28. The reporter believed, obviously, that the Minister's view was based upon advice given by the Victorian Government Solicitor. Clearly, Maddocks sought to view this advice, but was unable to do so. The advice was therefore capable of adding nothing to the debate at that stage.

29. In addition to the Minister's letter, the Council had advice from Maddocks. That advice has not been tendered (beyond the extract in the report). The Tribunal must do its best to glean the tenor of the advice from the report. The report records Maddocks advising that an appeal to the Supreme Court or VCAT could fail and that Council "could be liable for the opposing side's costs if the Tribunal or Court regarded the appeal as frivolous or vexatious". Although this was not an unqualified condemnation of the contemplated litigation, there is nothing in the report to suggest that Maddocks had anything positive to say about it at all.

30. The Responsible Authority was under no obligation to produce Maddocks' advice at the hearing, but could have elected to do so. The Tribunal is entitled to infer, and does infer, that Maddocks' advice would not have assisted the Responsible Authority's case. Put another way, the Tribunal infers that there was nothing in Maddocks' advice which would have supported any legitimate expectation by Council that litigation had more than a fanciful prospect of success.

31. All the Council had, therefore, was an indication by the Minister that an application under s.87(1) might be worth considering and Maddocks advice that (as the Tribunal infers) Council should have no expectation of success.

"Clearly Council does not consider itself to be frivolous or vexatious, as the Government's position is the catalyst for this approach. Accordingly, Council should be confident of not having costs awarded against it."

33. In other words, if (as Maddocks predicted) the Responsible Authority were to lose the case, the Minister's guarded suggestion could be called in aid to show that the proceeding was not frivolous or vexatious.

"It is acknowledged that the proposal is of great concern to the Nar Nar Goon township. An appeal to VCAT or to the Supreme Court will indicate that Council supports their concerns."

35. In other words, litigation had a value as a demonstration of Council's support for the concerns of residents.

36. There would probably be no criticism of a Council launching proceedings to demonstrate its support for the concerns of residents if the Council had at least some expectation of success. But in the absence of such an expectation, how can it be said that the proceeding is brought "for the purpose of having the Court adjudicate on the issues to which [the proceedings] give rise"?

37. There is nothing in Document 21 which demonstrates that the reporter believed there was any real prospect of litigation succeeding.

38. The reporter had considered, but rejected, non-litigious options. Re-zoning would not extinguish the planning permit. Negotiating a settlement with the permit applicants to acquire the land would create an undesirable precedent.

39. Well before the proceeding concluded Mr Canavan QC, who appeared on behalf of the Responsible Authority, was on notice that failure to call as witnesses the councillors who had attended the meeting might result in the Tribunal drawing an adverse inference. The councillors were not called. The reporter was not called. No officer of the Responsible Authority was called to support the decision to bring the s.87 proceedings.

40. The Tribunal is entitled to infer, and does infer, that the evidence of the reporter and the councillors who attended the meeting (and who are named in the minutes) would not have assisted the Responsible Authority's case. The failure of the Responsible Authority to call such witnesses enables the Tribunal to more readily draw the inference for which Mr Hooper contends, namely that at the time the proceedings were brought, those representing the Council had no expectation that the proceedings would succeed and that the proceedings were not therefore brought "for the purpose of having the Court adjudicate on the issues to which they [gave] rise" but rather as a public relations exercise to demonstrate support for the objectors.

41. The inference which Mr Hooper asks the Tribunal to draw is strengthened by the Council's attitude to the permit application throughout, the high water mark of which may well be a hand-written note from Mr Rundle to a Council officer Shiran Wicks written not later than 21 June 2001 in which Mr Rundle instructs Mr Wicks as follows:

"Can you check for me whether we have issued a permit for 2 broiler sheds - 70 Racecourse Road following VCAT Hearing. Don't issue the permit if we haven't as yet. We are going back to VCAT to seek cancellation."

42. We observe that this note was written well before the Minister's letter of 9 July 2001 which, according to Document 21 was "the catalyst for this approach" (ie the challenge to VCAT's decision).

43. The proceedings were commenced on 7 August. On 14 August Council wrote to the Minister requesting, inter alia, that the Minister "support Council in its application to VCAT to cancel the planning permit for the proposed broiler farm at 70 Racecourse Road, Nar Nar Goon." The Minister responded on 31 August 2001 to Maddocks advising that the Minister would "make a submission at the appeal in relation to the general issue about the application of the Code of Practice for Broiler Farms in Victoria following the Government's decision." The letter continued "My presentation will be on the basis that local implication [sic] of this decision is the responsibility of the Council."

44. Having regard to the Minister's repeated public assurances that "the Code will not affect permits granted and decisions already made by Councils or VCAT" it is difficult to see how the Minister's letter of 31 August 2001 could have given the Responsible Authority or Maddocks much comfort.

45. In November 2001, in response to a direction given by Member Komesaroff, the Victorian Government Solicitor on behalf of the Minister filed "grounds relied upon by the Minister". Clause 8 of those particulars asserted that:

"This permit cancellation application by Cardinia Shire Council in relation to a farm not yet commenced to be established is a proper application of that provision."

46. The justification for this assertion is not articulated in that document in a meaningful way.

47. There is no inconsistency between our conclusion, on the one hand, that the section 87 application was not hopeless at the time it was "brought" and our conclusion that the Council had no expectation that the application would succeed. The criteria articulated in the third limb of Wentworth are to be applied by examining the case brought to determine whether it had any basis or foundation at all. The criteria for the second limb of the Wentworth test involves an examination of the Responsible Authority's motives. If the proceedings are brought for an improper purpose, it is not enough to show that they were thought to have some faint chance of success. The issue here is the purpose for which they were brought. If they were brought for an improper purpose "and not for the purpose of having the Court adjudicate on the issues to which they give rise", they are vexatious. The ability of the Responsible Authority's legal advisers to "cobble together" (a pejorative but apt term) a weak case does not detract from the fact that at the time the proceedings were launched, the Council had no expectation of success but was conducting a public relations exercise.

48. Returning to the threshold questions earlier stated, the Tribunal is satisfied that proceeding 2001/P50831 was brought vexatiously in the relevant sense.

49. The Tribunal's power to order compensation and costs is discretionary: so much is clear from the use of the word "may". It is also the Tribunal's view that the discretion extends to the amount of compensation and costs which the Tribunal can award. The Tribunal is empowered to award "an amount" as compensation and "an amount" as costs. In conjunction with "may", this give the Tribunal absolute discretion. It follows that once the Tribunal has determined to award compensation, it is not simply a matter of calculating the loss, damage and costs suffered and incurred by the permit holders. At the end of the day any amount awarded by the Tribunal as compensation and costs must be an amount which the Tribunal regards as appropriate in all the circumstances of the case.

50. The issue of compensation must be considered separately from the issue of costs. As to the former, it was contended by Mr Canavan on behalf of the Responsible Authority that the permit holders suffered no damage because commencement of the use depended on the approval of an Environment Management Plan which was not approved until after the conclusion of the section 87 proceedings. To this important issue we now turn.

51. Condition 1 of Permit T000618 provides that development of the poultry sheds must not commence until amended plans, including an amended Environmental Management Plan, have been submitted to and approved by the Responsible Authority.

52. It is contended by the permit holders that approval of the Environmental Management Plan ("EMP") was unnecessarily and unreasonably delayed by the Responsible Authority in order to strengthen its s.87 case.

53. This allegation is denied by the Responsible Authority, Mr Canavan drawing attention to the fact, inter alia, that the EMP delivered in its final (and acceptable) form on 19 February 2002 differed materially from earlier versions. In this regard we observe that Mr Canavan limited his argument to the EMP. This was hardly surprising: all other documents submitted in conjunction with the permit application were accepted without significant change, albeit many months after they had been submitted.

54. The permit holders contend that the Responsible Authority delayed approval of the EMP

* so as to prevent the use from commencing and thereby `shore up' an argument that there was no existing farm on the subject land that could be said to be protected by the "existing farms" provisions of the Broiler Code

* to prevent reliance by the permit holders on s.88(a) of the Act, which prohibits the cancellation or amendment of a permit relating to the construction of buildings or works once that development has been completed

* to obviate the need for it to obtain a stop order under Section 93 of the Act, and the consequential need to give any undertaking as to damages in the event of the cancellation request being unsuccessful.

55. The Tribunal's order that a permit issue was made on 8 May 2001. Condition 1 of the permit conditions specified by the Tribunal was as follows, so far as is presently relevant:

"1. The development of the poultry sheds hereby permitted must not be commenced until three (3) copies of amended plans have been submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions. When approved, the plans will form part of this permit. The plans must be generally in accordance with the submitted plan but modified to show and include:

* an environmental management plan ("EMP") for the construction and ongoing operation of the sheds hereby permitted which must include:

. a contingency plan to address potential operation malfunctions such as disposal of dead birds from high bird mortality incidents and removal of wet litter due to systems failure.

. an order management plan which addresses options available should offensive odour arise from the operation of the premises.

. details of the system of litter removal which will minimise dust and odour emissions while trucks are being loaded or unloaded.

All to the satisfaction of the Responsible Authority."

56. An EMP, addressing construction and design as well as management of the farm, was submitted with and formed part of the application for permit."

57. Section 86 of the Act provides that if the Tribunal orders that a permit issue, the responsible authority must issue the permit within three working days after the first ordinary meeting of the Responsible Authority held after it receives a copy of the order. Contrary to this requirement, the permit was not issued by the responsible authority until 28 June 2001. We have referred already to Mr Rundle's note to Mr Wicks directing that the permit should not issue.

58. An EMP had been submitted with the original permit application. On 9 July 2001, following the issue of the Permit, Mr Proctor submitted a revised EMP and supporting chemicals inventory, together with other necessary and appropriate documents to which we need not specifically refer. These documents were submitted in accordance with the conditions of the Permit, although Mr Proctor later conceded that the revised EMP was almost identical to the original: in other words, the revision did not sufficiently address the environmental concerns specified in the permit conditions.

59. What should have occurred at this point? Given that the revised EMP was deficient, what was the proper course for the Responsible Authority to take - and in how timely a way?

60. Permit conditions requiring submission of documents are commonplace. Often the conditions will specify that the documents be "to the satisfaction of the Responsible Authority", as was the case here. How much time should a responsible authority be allowed to indicate its satisfaction, or otherwise.

61. There are two relevant sections of the Act. Section 197 is in the following terms:

"Where the Minister or any responsible authority, planning authority, public authority, municipal council, panel, committee or officer is required to do any act, including making any decision or forming any opinion, that act must be done as promptly as is reasonably practical, in any event within the time limits prescribed or any extension of those time limits allowed by or under this Act, so that loss or damage to any person from unreasonable or unnecessary delay is avoided."

Section 149(1)(a) empowers the Tribunal to review the decision of a responsible authority in relation to a permit condition, or

"(d) if there is no prescribed time for a decision of a kind referred to in paragraph (a), (b) or (c), a failure of a person or body to make that decision within a reasonable time after the matter is referred to it."

62. No useful purpose would be served by considering whether there is a meaningful difference between "as promptly as is reasonably practical" and "within a reasonable time". In any event, the two sections are of a different character. Section 197 imposes a duty on the responsible authority. Section 49(1)(d) confers jurisdiction on the Tribunal. For the purposes of the present case, the focus must be on the provision which defines the responsible authority's duty, ie s.197.

63. What is "reasonably practical" will depend on all the circumstances of the particular case. We observe, however, that the purpose of s.197, as expressed therein, is "to avoid loss or damage to any person from unreasonable or unnecessary delay". Determining what is a reasonably practical time must be considered in that light.

64. We return to the unfortunate history of this particular matter. Following delivery of the EMP and other documents on 9 July 2001, Mr Proctor wrote to the responsible authority on 27 July 2001 requesting "your earliest written confirmation that the documents submitted are approved by the Shire". By letter dated 8 August 2001 Mr Wicks advised that "Council is currently considering the information provided and your attention is drawn to Condition 1 of the permit". The letter went on to remind Mr Proctor that "... the development must not commence until Council has given approval". In the meantime, on 7 August 2001 the Responsible Authority filed with the Tribunal its request for cancellation of the permit, though the request was not served on the permit applicants at their correct address until 14 August 2001.

65. In a letter to Mr Wicks of 29 August 2001 Mr Proctor refers to a conversation on 9th August in which Mr Wicks indicated that he "would examine and approve all the plans which have been lodged within 10 days". In the same letter Mr Proctor requested that the plans as lodged be approved "as a matter of urgency" stating

"as far as I am aware there are no problems with the plans. Melbourne Water has approved the drainage requirements, the building surveyor is satisfied with the building plans and computations, the EMP is almost the same as an EMP already approved by Cardinia Shire for another broiler farm in the Shire and the chemical's inventory list the same chemicals as are already in use on broiler farms within Cardinia Shire."

66. According to Mr Proctor's chronology (the accuracy of which we generally accept) on 3rd September 2001 he was told by Mr Wicks, by telephone, that Council "will not process nor approve any plans until the application to cancel has been determined". Mr Proctor asked that this be put in writing and Mr Wicks said he would ask Mr Rundle to respond. According to Mr Proctor, there was no response from Mr Rundle.

67. By letter dated 14 September 2001 Mr Rundle advised Mr Stoiljkovic:

"Council is presently assessing the EMP and will be seeking the comments of referral authorities, particularly the EPA. When the assessment has been completed, I will be better able to provide information on the approval of your management plan."

Yet it was not until 2nd of October 2001 - almost three weeks later - that the EMP was referred to the Environment Protection Authority ("EPA").

68. On 8 October 2001 the Stoiljkovics lodged their application under Section 149 of the Planning and Environment Act for review of the Responsible Authority's failure to make a decision in respect of the amended plans.

69. The EPA is not a referral authority in respect of broiler chicken applications or EMPs associated with such applications. Accordingly, referral to the EPA is not a statutory requirement. Nevertheless, in the absence of any in-house environmental expertise, we accept that the EPA would be an appropriate body from which a responsible authority might seek advice in relation to such a document.

70. We have not been provided with a copy of any correspondence which might have accompanied the responsible authority's referral to the EPA. Accordingly we cannot be clear as to the nature or extent of the EPA's brief - whether the Authority was being asked to advise in respect of the EMP's compatibility with the Broiler Code provisions and the Generic EMP under consideration at that time, or whether it was asked to give advice on the footing that the permit had issued prior to the Code's incorporation into the planning scheme.

71. By letter dated 15 October 2001 Mr Peter Durkin, an officer of the EPA, provided his comments and advice about the plan. This letter was not provided to the permit holders or Mr Proctor until 7 November 2001, when it was included in a letter from Mr Wicks dated 5 November. This letter followed the 2 November directions hearing before Tribunal Member Komesaroff. Among other things, Ms Komesaroff had directed the Responsible Authority to file and serve on the Tribunal and Mr Proctor, no later than 23rd November 2001, "detailed particulars of the dissatisfaction it has with his client's plans...lodged for endorsement under the issued permit".

72. In his letter of 7 November 2001 Mr Wicks also suggested a meeting to draft "acceptable changes to the EMP" and in a letter of the same date Mr Proctor replied that he would be "pleased to discuss the contents of the EPA letter with Council officers and EPA staff". Mr Proctor's letter also enclosed a "differently formatted, and Broiler Code Committee based, Environmental Management Plan" which he suggested that the Shire might "care to consider". His letter clearly states, however, that at any meeting the two EMPs could be discussed.

73. Despite Mr Jones' and Mr Canavan's submissions to the contrary, we find no basis for the suggestion that in submitting a third version of the EMP, the permit applicants had abandoned their July 2001 version. We are satisfied that Mr Proctor, in his desperation to achieve finality, was prepared to explore all options without abandoning any of them.

74. We return to Mr Durkin's letter of 15 October 2001. Put briefly it was his opinion that the EMP needed

There was also reference to the need to tie management actions to a recording system such as a farm log "to ensure there is a documented method to establish timely responses have been undertaken". Notably, Mr Durkin stated "the measures described are insufficient to meet the requirements of the Victorian Code for Broiler Farms and should be revised". On this latter point, we do not agree that the amended EMP should have been required to meet the requirements of the Broiler Code. The permit was granted prior to the Code having any statutory effect and Condition 1 of the permit requires the EMP to be `generally in accordance with the submitted plan'.

75. On 23 November Maddock Lonie and Chisholm Solicitors advised Mr Proctor in relation to the EMP that "our client supports and adopts [Mr Durkin's] comments"..

76. Mr Durkin's advice was also sought in relation to the re-formatted EMP. So too was the advice of Dr Terry Bellair, a well respected environmental scientist, who regularly gives expert evidence before this Tribunal. Both the reformatted and the July 2001 versions were referred to Dr Bellair on 18 January 2002, and Dr Belair's response was provided on 24 January 2002. Unfortunately, Dr Bellair's response `assumed' that the reformatted version was being relied upon and that it superseded the July version. As a result, his more detailed comments are in respect of that plan only. As Mr Proctor has not sought to pursue that version we do not propose to comment upon Mr Durkin's and Dr Bellair's observations in respect of it. Suffice to say that they regarded it as being based on the Generic EMP - that was being developed at about the time of its preparation - but without the required incorporation of site specific contingency plans, performance targets, trigger conditions, remedial actions and monitoring practices.

77. The meeting referred to in Mr Wick's November 5 letter did not take place until 3 January 2002. We understand that Mr Proctor was absent overseas from 8 to 27 November 2001. We think it open to find that this meeting, together with Mr Durkin's comments of 15 October 2002 and possibly also Dr Bellair's letter of 24 January, formed an important basis for the revisions to the EMP which were ultimately made.

78. The cancellation hearing took place on 6 to 8 February 2002 and our decision was handed down on 14 February. On that day we directed that an EMP in accordance with Condition 1 of the permit be filed and served by 19 February and that by 8 March 2002 the Responsible Authority:

"(a) Identify those clauses of the said EMP which are not to the satisfaction of the Responsible Authority;

(b) Identify additional matters which the Responsible Authority contends ought to be included in the said EMP; and

so far as is possible, indicate the form which it contends such amended or additional clauses should take."

79. A further revision of the EMP was filed and served on 19 February 2002. It differs from the July 2001 version in a number of material ways though it remains `generally in accordance with' the EMP that originally accompanied the application for permit. The material changes and our comments in relation to them are set out below. Not all changes are noted: we regard some of them as uncontroversial.

* Clause 1.14 refers to minimising off-site impacts of farm development during the construction phase. This clause is new. It makes reference to State Environment Protection Policy No. N-1 (control of noise from commerce, industry and trade) and the EPA Publication 275 - dealing with construction techniques for sediment pollution control. While we accept that reference to these can be usefully made within an EMP, we note that they are effectively covered by Conditions 10 and 15 of the permit.

* Clause 2.1 refers to wet litter and how this will be prevented. The clause expands upon the wet litter clause in the July 2001 version. Significantly, it puts in the one place a number of contingency suggestions in Mr Durkin's letter of 15 October. While we acknowledge the value of locating these management measures in the one place, we note that most are referred to elsewhere, for example at Clause 1.11 referring to controllers and alarms, at Clause 2.4 referring to digestive upset and at Clause 3.2 referring, in different terms, to litter management.

* Clause 3.2, also refers to litter. The 19 February version sets out more specific triggers for wet litter events and when such litter should be removed. A "significant area" of wet litter is defined as being over 20 sq m and "wet litter" is defined as litter having a moisture content greater than 45%. Mr Durkin's letter of 15 October 2001 had suggested, however, that the trigger for removal of wet litter - defined by him as between 30% and 40% moisture content - should be when the area was in excess of 2 sq m. This definitional disagreement can, we suggest, be regarded as the main area of disagreement.

* Clause 4.0 is an entirely new clause. It has as its heading the following:

"Litter Removal System (to minimise dust and odour emissions while trucks are being loaded or unloaded)"

This clause can be directly related to the requirement at Condition 1 of the permit for the amended EMP to include "details of the system of litter removal which will minimise dust and odour emissions while trucks are being loaded and unloaded."

This issue was not one specifically referred to by Mr Durkin in his 15 October letter. While clearly a requirement of the permit - and the original EMP made no reference to the management of litter delivery and removal - we find, on the whole, that its inclusion was not controversial. Rather, its inclusion was necessary for completeness.

* Clause 5.0 is also entirely new. This clause is headed "Odour Management Plan (if offensive odours should arise)". It too can be sourced to Condition 1 of the permit which requires the originally submitted EMP to be amended by inclusion of "an odour management plan which addresses options available should offensive odour arise from the operation of the premises".

The steps to be taken as now identified in this clause can clearly be related to Mr Durkin's suggestions in his letter of 15 October.

* A contingency plan in the form of a spreadsheet was included in the July 2001 version and again appears in the 18 February 2002 version. The spread sheet identifies reasons for an odour condition, the cause of such an odour condition, and the risk rating of such a condition occurring. It also sets out action triggers and a remedy for various conditions as well as measures to prevent such conditions occurring. The February 2002 version contains considerably more detail, especially in relation to targeted times and remedial actions to be taken. To this end we find the changes to be consistent with Mr Durkin's suggestions for the EMP to include such additional detail. The February 2002 version also refers - for the first time - to contingency procedures in the event of fire, noise, dust and disease events. For the most part we think that these can also be said to arise from Mr Durkin's suggestions.

80. To summarise, we find that the 18 February 2002 version of the EMP gives effect to the requirements of Condition 1 in relation to contingency planning, odour management and litter removal and we find much of the additional detail to have had its genesis in the comments and advice from Mr Durkin.

81. On receipt of the 18 February 2002 version of the EMP the Responsible Authority referred the document to Dr Bellair. Dr Bellair was mostly critical of the 45% moisture content and 20 sq m area trigger for wet litter removal. It was his advice, however, that provided a 35% moisture content trigger - consistent with Mr Durkin's advice for between 30% and 40% moisture content - was adopted, the 20 sq m area should be conceded. Dr Bellair made other suggestions in relation to the chemicals inventory and the need to be clear about options for dead bird disposal. In particular, he was wary about the prospect of a cremator being used. Both the original and the February 2002 versions of the EMP refer to freezing and the subsequent off-site disposal of dead birds as being the primary management measure. However, the February 2002 contingency plan spread sheet makes reference also to cremation.

82. By letter dated 20th March 2002 Mr Proctor confirmed that all Mr Bellair's suggestions were acceptable to his clients, albeit that in relation to the 35% moisture content trigger his clients' acceptance was primarily in the spirit of compromise, rather than an acknowledgment that this was the appropriate level.

83. Also on 20th March 2002 Ms Foley, of Maddock Lonie and Chisholm, advised Mr Proctor that, subject to a further minor matter - namely the council's inability to divulge the names and addresses of complainants without their authorisation - the EMP was to the Council's satisfaction and would be approved. Accordingly the EMP was approved more than eight months after its lodgement.

84. We cannot accept that this eight month gestation period was justified, especially having regard to the requirements of s.197 of the Act. Following receipt of the EMP on 9 July 2001, the responsible authority could reasonably have referred it to the EPA by at least the first week of August. Mr Durkin's response was provided in a timely manner ie. in just less than a fortnight. Having received this advice we think the Responsible Authority could reasonably have been expected to provide it to Mr Proctor by the end of August 2001. The meeting with the EPA, Council officers and Mr Proctor could then have taken place in, say, mid-September. This would have enabled the changes that were ultimately made in the February 2002 version to have been made in about the last week of September 2001. These changes, while clearly necessary, were not particularly complex and could readily have been incorporated into the final document. If this final version had then been referred to Dr Bellair, it is apparent from his response time to the 18 February version that he would have required very little time to assess it. Accordingly we are of the view that compliance with s.197 should have resulted in finalisation of the EMP by not later than 8 October 2001, that is to say, by the time that the Section 149 application was filed

85. The permit conditions forbade "development of the poultry sheds" until the amended plans had been approved by the responsible authority. The delay in approval of the EMP therefore delayed the entire project. Accordingly, we will consider the question of compensation on the footing that until 8 October 2001 construction was delayed by the EMP rather than by the cancellation proceedings.

86. Although the first stage of the assessment is arithmetical, the full amount to be awarded will be in the Tribunal's discretion, i.e., the final award may be less than the total produced by the arithmetic process.

87. We begin by identifying the heads under which compensation might be awarded. We say "might" because compensation will be awarded if and only to the extent that the particular loss claimed has resulted from the delay. Moreover, as Mr Canavan points out, there may be savings which need to be brought into account.

88. The first head of damage is for increased construction and equipment supply costs. If such increases can be demonstrated as having occurred between 8 October 2001 and 14 February, such increases will be recoverable as compensation, less any savings during the same period. Although the EMP was not approved until March, compensation under s.150(4) is awarded for the consequences of the bringing of a proceedings vexatiously, not for otherwise "stalling" the approval process. This is why 14 February is the end date.

89. The next head of damage is loss of farm income. In this case the permit holders must demonstrate, first, that the delay between 8 October 2001 and 14 February 2002 will delay the commencement of operations, the extent to which the commencement of operations will thereby be delayed and the net loss. As we understand the state of the law, that loss will be an `after tax' figure.

90. The next head of damage claimed is "cost of retaining consultant" which is explained as "costs of consultant to advise, assist and obtain effect to be given to the permit during period when Council was `stalling' the permit holders." Our understanding is that Mr Hooper is not proceeding with this head of damage. There are difficulties with it in any event, because it does not distinguish between the period when the Council was "stalling" and the period when the proceedings were on foot.

91. Section 150(4) empowers the Tribunal to order the payment of "an amount for costs". The permit holders were represented at the hearing by Mr Proctor, who is not a lawyer. We have no hesitation in saying that Mr Proctor provided excellent service to his clients. His preparation was meticulous and his presentation comprehensive.

92. Section 150 is in a Division of the Planning and Environment Act 1987 headed "Applications to Tribunal". We therefore think it likely that "costs" has the same meaning in s.150(4) as it does in Division 8 of Part 4 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act").

93. A reference to "costs" in Rules of Court means legal professional costs: Cachia v Hanes & Anor [1994] HCA 14; (1994) 179 CLR 403. Mr Canavan did not present a corresponding argument in this case, but it is not an issue we can ignore.

94. Section 62 of the VCAT Act permits a party to be represented by a professional advocate if "another party to the proceeding is a professional advocate". The definition of "professional advocate" includes "a person who, in the opinion of the Tribunal, has had substantial experience as an advocate in proceedings of a similar nature to the proceeding before the Tribunal". Although the matter was not argued, we are of the opinion that Mr Proctor is a professional advocate, inasmuch as he has had substantial experience as an advocate in proceedings before the Tribunal concerning broiler farms.

95. Section 62 of the VCAT Act has no counterpart in the statutes or statutory rules governing the Courts. Certainly, the only "professional advocate" recognised in the Courts is a legal practitioner. At VCAT, parties are frequently represented by professional advocates, especially in the Planning and Environment List. We see no reason why the reference to "costs" in Division 8 of the VCAT Act should not be construed so as to reflect this difference. Curiously we could find little in the way of authority on the point. There are a number of cases in which the costs of non-lawyers have been allowed (eg Omar Chacon v City of Glen Iris [1999] VCAT 1671; Mastrameteo v Boroondara City Council [1999] VCAT 1714) but we could find no analysis of the issue.

96. We caution that in reaching the conclusion expressed in the previous paragraph we did not have the benefit of argument.

97. For the foregoing reasons we propose to make a costs order pursuant to s.150(4). There is, obviously, no Court scale suitable for the taxation of costs and expenses payable to a non-lawyer. We were asked to certify Mr Proctor's fees at $140 per hour. We consider this reasonable. We therefore order that in default of agreement the permit holders' costs be taxed, for which purpose the taxing officer should assess a reasonable amount to be allowed for preparation and appearances at $140 per hour. The assessment should be made as near as possible to a party/party basis rather than a solicitor/client basis. We appreciate that this may be no easy task for the taxing officer and we therefore grant liberty to apply lest further directions be necessary.

98. Mr Proctor has prepared a schedule of his costs headed "Consultant's Costs and Legal Costs" showing the date of each item of service provided, the nature of the service and the time taken. Notwithstanding Mr Canavan's submission to the contrary, we direct that the Schedule stand in place of a formal bill of costs for the purpose of taxation. We think it adequate for that purpose. Disbursements will need to be added.

99. The disbursements sought are mileage, parking, photocopying, faxes and postage amounting to $500. The bill for taxation will need to itemise these amounts. Finally, there is a schedule of Mr Hooper's fees totalling $5,000. It is clear that Mr Proctor was seeking advice from Mr Hooper during the currency of the proceedings. We consider that the reasonable costs of obtaining this advice and assistance should be allowed. We have perused the schedule of Mr Hooper's fees totalling $5,000. We are of the view that the services detailed were appropriate and that the fees sought are reasonable. We are therefore prepared to certify Mr Hooper's fees at $5,000. No further taxation of these fees will be necessary. We observe that if Mr Hooper had been engaged as senior counsel for the entirety of the proceedings, instructed by solicitors, the permit holders' costs would be far more than they are in fact likely to be.

100. We will list the case for directions in order to fix a timetable for its final disposition.