1. The Respondents shall pay the Applicant's costs of the application on a party/party basis calculated in accordance with County Court Scale D, and, in default of agreement shall be assessed by a Registrar of the Tribunal.

Mr C Townshend of Counsel instructed by Maddocks, Lawyers.

Mr N Tweedie of Counsel instructed by Arthur E George & Sons, Solicitors

2. The subject of this decision is an application for costs by Colac-Otway Shire Council ("Council") after the conclusion by a consent order of these enforcement order proceedings.

3. On 17 December 2002 by consent but on the basis that the Respondents make no admission the Tribunal made an enforcement order as follows:

"Nature of Contravention Specified: Clearance of native vegetation in contravention of Clause 52.11 of the Colac-Otway Planning Scheme.

The Respondents will carry out the works set out in and give effect to the attached Revegetation Plan (which includes the attached Plan dated June 2001 prepared by J Modra NRE signed by the Tribunal for identification) in accordance with its terms and conditions."

4. Mr Townshend made an application for costs on behalf of the Council.

5. The application for enforcement order was made on 2 March 2001.

6. The history of the matter also included applications 2000/69331 and 69340 which were applications by Tenth Cemalux Pty Ltd against conditions imposed by the Council on permits PPA/050/2000 and PPA/051/2000.

7. These matters were heard by myself and Ms Moles in March and May 2001 and a decision on the conditions applications for review was issued on 7 June 2001 and reasons for the decision were given on 27 June 2001. The applications were allowed in part and resulted in amendments to the permits.

8. Council commenced the application for enforcement order shortly before the hearing of the conditions appeal. The hearings in March and May 2001 included a hearing of the enforcement order application on the basis that the evidence taken in the enforcement application was also taken as evidence in the conditions applications for review.

9. On the application of the Respondents on 4 May 2001 the enforcement order application was adjourned and then further adjourned on the basis that discussions were taking place, but the conditions application for review proceeded to a conclusion.

10. There were further directions on the enforcement order application on 13 August 2001, on 8 November 2001, and a further adjournment to an Administrative Mention on 18 February 2002, to 29 April 2002 to 3 July 2002 to 11 September 2002 to 20 November 2002 after which the matter was listed for hearing for two days on16 December 2002.

11. The reasons for the adjournments can be briefly summarised as either continuing negotiations or communication difficulties between the parties arising from mattes such as the remoteness of the property, the non availability of relevant persons to attend and Mr Harris' illness.

12. At the hearing on 16 December 2002 the parties announced their agreement on the consent order.

13. The question of costs in the Tribunal is regulated by Section 109 of the Victorian Civil and Tribunal Act 1998 ("VCAT Act"):

(1) Subject to this Division, each party is to bear their own costs in the proceedings.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under sub-section (2) only if satisfied that it is fair to do so, having regard to -

(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);

(v) attempting to deceive another party or the Tribunal;

(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;

(e) any other matter the Tribunal considers relevant.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in sub-section (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under sub-section (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding."

14. Mr Townshend for the Council raised some preliminary matters.

15. He noted the application for the enforcement order was made against both the company and Mr Harris but that Mr Harris objected to the order being made against him personally.

16. He submitted it is understood that Mr Harris is a director of the company and directed the removal of the native vegetation on the subject land and by virtue of Section 114 of the Planning and Environment Act that Mr Harris had an interest in the land and was a person on whose behalf the development was being carried out.

"It is the Responsible Authority's case that the Respondents should pay the Responsible Authority's costs consistent with the rule that costs ordinarily follow the event in application for enforcement orders.

It is acknowledged that the current proceedings have been drawn out and somewhat expensive. However, it is submitted that this is largely the result of the following factors:

a) The activity that was the subject of the AEO was native vegetation removal in pristine bushland. The dynamic nature of the bush has meant that the relevant parts of the Subject Land have had the capacity of change from one month to another.

b) The Subject Land is nearly three hours from Melbourne prompting extra costs for those practitioners and consultants that have had to travel there from the city.

c) The Responsible Authority has been prepared to accommodate the needs of the Respondents. Variously the Respondents or their consultants have been unprepared, sick or overseas or they have simply needed time to negotiate with the Responsible Authority. Each time the Respondents have sought an adjournment, except for the very last time, the Responsible Authority has agreed.

The Respondents have alleged that the Responsible Authority has at times been dilatory. However, it is submitted that such allegations do not bear scrutiny. In any event, some delay is inevitable in a complex matter such as this. To this extent, it is submitted that the presumption that costs follow the event in an application for enforcement order is not displaced. All costs reasonably flow from the land clearing undertaken by the Respondents."

18. He took the Tribunal through the details of correspondence and discussions between the Responsible Authority and the Respondents from March 2001 through to 2 December 2002.

2 March 2001: Application for enforcement order made.

7 March 2001: Council requested conditions and enforcement hearings be combined

22 March 2001: Mr Ed Kondys, a neighbour, swore an affidavit to effect that

a) the clearing that forms the basis of the enforcement order application took place in approximately late March/early April 2000;

b) the earthworks undertaken by the Respondents appears to have encroached upon Crown land;

c) the earthworks undertaken by the Respondents was silting the watercourses running through the subject land and had created erosion channels up to 2 metres deep;

d) livestock had been placed on the subject land without mechanisms to protect watercourses; and

e) that the amount of native vegetation clearing was excessive if the intention was to erect a fence.

28 March 2001: Harwood Andrews, the then Solicitors for the Respondents advised that they are not ready to defend the enforcement order application .

30 March 2001: the Tribunal ordered that the matter be set down for hearing on 7 and 8 of May and made orders for the exchange of expert reports.

11 April 2001: Harwood Andrews wrote to Maddocks confirming a joint meeting of the parties on the land and indicated that they would have a preliminary report on the necessary revegetation prepared by 23 April 2001.

18 April 2001: Mr Philip Du Gueselin, Senior Flora and Fauna Planner of DNRE swore an affidavit stating that on an inspection of the Subject Land he had observed that clearing had occurred within 30 metres of watercourses on private land and state forest.

23 April 2001: Mr John Modra swore an affidavit setting out, in broad terms, the background to the application for enforcement order.

1 May 2001: Mr Beilby, consultant for the Respondents, produced a revegetation plan

2 May 2001: Harwood Andrews wrote to the Tribunal again advising that it would not be in a position to deal with the enforcement order proceedings as a contested matter on the proposed hearing dates and therefore sought an adjournment of the hearing. The Responsible Authority consented to an adjournment for no more than 6 weeks on the basis that it provided a written undertaking that:

All cattle on the site will be removed forthwith.

There will be no further fencing, clearing or soil disturbance of the site.

4 May 2001: the Tribunal made directions granting the Respondent's request for an adjournment to a Directions Hearing on 4 June 2001 and ordered the Council to file and serve any further affidavit of Mr Modra on which it would rely. Costs were reserved. [Emphasis added]. The Respondents gave an undertaking to the Council.

22 May 2001: Council provided a comprehensive response to the Respondent's rehabilitation plan. Mr Nelson replied on the same day ex delay.

28 June 2001: Council wrote complaining of the Respondent's delay and warned the Respondents of escalating costs.

16 July 2001: Harwood Andrews responded that their client had not been doing nothing and had been working on the case.

19 July 2001: A dispute arose about the rehabilitation works. Maddocks wrote to Harwood Andrews drawing its attention to work being undertaken on site, purportedly in contravention of the undertaking given. Harwood Andrew responded that the works 'were done in accordance with the Department's and the Council's expectation" and that they expressly did not breach the undertaking.

15 August 2001: Tribunal ordered an adjournment to administrative mention on 15 October 2001 and that Council supply any videos it would rely on..

11 October 2001: Maddocks responded to the administrative mention that it had complied with the order.

15 October 2001: Harwood Andrews responded to the administrative mention alleging that it could not respond to the Tribunal's directions as the Responsible Authority had not inspected the remedial earthworks the Respondents had carried out. The Council stated in a letter to Harwood Andrews on the same day it was not obliged by any order to do this but that an inspection of the earthworks had been carried out and that a response was being prepared.

November 2001: Mr Modra gave a comprehensive assessment of the remedial works that needed doing in conjunction with the revegetation works proposed by Mr Geoff Beilby. This was forwarded to the Respondents.

8 November 2001: the Tribunal made directions that no later than 8 December 2001, Council was to file and serve written details of (a) the revegetation work Council requires to be done; and (b) what aspects of the work done by the Respondent Council considers incomplete or unsatisfactory.

23 November 2002: this was complied with by letter from Maddocks to Harwood Andrews.

18 February 2002: The parties agreed on the need for an adjournment, as a consequence of Mr Harris suffering a heart attack while on the land on 9 January 2002, and also because Council's officer had been unable to undertake an agreed site inspection.

21 March 2002: Ms Kerryn Godfrey visited the site to assess the progress of the revegetation works undertaken by the Respondents.

24 April 2002: a further site inspection took place.

24 April 2002: Mr Crawford of Maddocks and Ms Briggs met with Mr Harris and his consultants in an attempt to negotiate an agreement.

29 April 2002: Harwood Andrews requested the Tribunal for a further delay of seven days to respond to an administrative mention to see if an agreement would be forthcoming:

7 May 2002: Maddocks made an offer to Harwood Andrews for intim consent orders including the following: (a) minimum 5 years weed control; (b) further seeding of native species on the Subject Land (as identified by Kerryn Godfrey); (c) drainage channels to be graded to a maximum of 15%, and (d) the matter be adjourned to the end of November 2002.

3 July 2002: Harwood Andrews requested a further adjournment of the administrative mention, conceding that the Council had actively been attempting to settle this matter, but stating their client was still in ill health.

10 September 2002: Harwood Andrews advised that its client was still ill but was also overseas. An administrative mention was sought in mid November 2002.

9 November 2002: Council rejected the Respondents' request for a further administrative mention and called for the matter to be brought on:

December 2002: the Respondents engaged in Mr Trengove who reported on the works the Respondent had carried out and made some further recommendations for further measures.

20. Mr Townshend submitted that the general rule under Section 109 may be varied when enforcement proceedings are brought and these cases an order for costs is more likely to follow the event. He relied on Svanosio v Shire of Strathfieldsaye (1989) 2 AATR 26, 30 - 31 and quoted Mrs Gibson's comments as follows:

"The differences in the nature of the circumstances giving rise to an application for an enforcement order, the higher standard of evidence required to sustain such an application and the more serious consequences of the making of an order, will lead to a conclusion that a difference in approach to the award of costs in the case of enforcement order applications is justified by the Tribunal vis a vis normal planning appeals.

A planning appeal will always concern a prospective use or development which will be authorised by the issue of a permit, whereas enforcement proceedings will usually concern past actions which the proceedings will decide or either authorise or not authorise.

Each case must be judged upon its own merits. However, in many instances, it will be reasonably apparent whether or not the activities complained of are in breach of the planning scheme, permit or agreement. Where a party has acted in a blatant or cavalier way and has ignored proper requests and warnings, the Tribunal is more likely to make an order for costs than in the situation where there is a reasonable dispute about whether or not a contravention has occurred. In those circumstances, the Tribunal would not wish the threat of an order for costs to act as a deterrent to parties or responsible authorities making a reasonable and legitimate application for an enforcement order. [Emphasis added.]"

21. He submitted that in some locations the width of the cleared area is more than 20 to 30 metres wide, given the purported justification for this native vegetation removal being the installation of a fence line, he submitted the behaviour of the Respondents was cavalier. He referred to the evidence of Ms Briggs that Mr Harris had been warned that the land was ecologically sensitive and that permission would be needed to remove native vegetation as early as 4 August 1999 and further submitted that the Responsible Authority has made a reasonable application for an enforcement order and that its Solicitors have conducted themselves efficiently and with fairness throughout the proceedings and that therefore the onus is on the Respondents to convince the Tribunal why it should not pay all of the Responsible Authority's costs.

22. There was discussion of some of the means of calculating costs and Mr Townshend referred to the order of the Tribunal in Cooper v Surf Coast Shire Council [2000] VCAT 2180 (31 October 2002). However I indicated to Mr Townshend that at the present time my preferred practice was that an order for costs be on a party party basis to be assessed on the appropriate County Court Scale to be determined by the Tribunal and in default of agreement be assessed by the Registrar.

23. Mr Tweedie submitted that the conduct of the Responsible Authority in these proceedings has been entirely unsatisfactory. Whilst a negotiated settlement had been reached on all issues but costs, it was submitted it will be appropriate for the Tribunal to order:

(a) that the Responsible Authority pay the Respondent's costs of these proceedings or

24. He indicated that the Responsible Authority did not give notice of its application to amend the enforcement order to seek an award of costs until 21 November 2002 and that no order was sought in the original application.

25. He submitted the Council has always been aware that the clearing of native vegetation in this case was not a malicious act or an act done in deliberate defiance of the planning controls, rather it was the result of an unfortunate error which resulted from a bona fide attempt by the Respondent to perform the extremely task of correctly identifying of his land and clearing those boundaries to allow them to be fenced. What happened was an inadequate attempt to perform acts which the Respondent was entitled to perform, not an attempt to circumvent the planning controls.

26. He submitted the Responsible Authority grossly delayed in bringing the proceedings. Having been made aware of the incident in April 2000, the proceedings were not issued until 6 March 2001, shortly before the conditions hearing.

27. Before that he submitted the Responsible Authority had not made any requests to the Respondent to carry out any revegetation works and therefore the Respondents were not given any chance to remedy their prior error.

28. He submitted this delay severely hampered the ability of the Respondents to carry out the revegetation works which the Responsible Authority subsequently tried to insist on and that the Responsible Authority by reason of its failure to inform the Respondents in a timely fashion of what it wanted done on the land has made revegetation more difficult. He submitted the Responsible Authority did not even engage its land rehabilitation expert the land until 26 March 2001 after the issue of the proceedings and almost 12 months after the clearance.

29. He submitted the enforcement order proceedings were commenced on a false premise naming an allegation that the Respondents acted in breach of the planning permits subject to the conditions appeal. However he submitted these permits were issued by the Responsible Authority on 7 August 2000, considered by the Tribunal on appeal in March and May 2001, subject to a written decision on 27 June 2001 and not issued by the Responsible Authority by the form ordered until 10 December 2001. This alleged breach was always wholly without substance and never withdrawn.

* Have always been ready to undergo reasonable works to put right their error.

* Sought expert advice as to the best way of doing this.

* Despite the Responsible Authority's suggestions that these works were inappropriate or doomed to failure, the works have been successful.

* The Responsible Authority has failed to particularise their case or to provide any details of the kind of order they sought, contrary to the directions of the Tribunal.

* There has never been any doubt that the Respondents will be prepared to revegetate the land but agreement has not been reached till now.

* The principal barrier to settlement was the insistence by the Responsible Authority that the Respondents pay a bond exceeding $40,000 to guarantee the performance of the works which was an unreasonable request in the context.

31. Mr Tweedie submitted that there was no principal that the Responsible Authority or any party is automatically entitled to an award of costs in all cases where it successfully applies for an enforcement order and he referred to City of Sunshine v Cima [1989] 3 AATR 313 at 316 - 9 and Bayside City Council v Campbell & Slolz [1999]3 VPR at 79.

* has made no attempt to remedy the Respondents inadvertent breaches of the planning scheme without recourse to legal proceedings,

* has grossly delayed in commencing proceedings, and

* has issued proceedings partially on the basis of a fundamentally wrong premise.

33. The general rule in the Tribunal as expressed in Section 109(1) is that each party bears its own costs.

34. The exceptions to the general costs rule arise under Section 109(3).

35. Mr Townshend in his evidence relied on the principal in Svanosio v Shire of Strathfieldsaye cited above which enunciated a principle that costs should be payable by a Respondent in an enforcement order application where a party has acted in a blatant or cavalier way and has ignored proper requests and warnings.

36. Svanosio v Shire o Strathfieldsaye was decided under the preceding legislation, Section 58(2) of the Planning Appeals Act 1980, where the only test was in sub-section (2):

"(2) if the Tribunal is of the opinion in a particular case that there are circumstances that justify it in doing so the Tribunal may make such orders as to costs as it thinks fit."

37. In Bayside City Council v Campbell and Others cited above Member Komesaroff observed:

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

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 Civil and 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"."

38. Those observations have been supported in the decision of Deputy President Macnamara in Hobsons Bay City Council v Haouli & Anor [2001] 7 VPR 249 at 254, who said:

"I should also say that the structure of Section 109 does, despite Mr Peake's submission to the contrary, create a presumption that costs lie where they fall. So far as I am aware this is the light in which Section 109(1) has been seen in this and all other Lists of the Tribunal. Nevertheless, Section 109(3)(d) provides in itself a justification for departing from the general rule. Ordinary permit review proceedings might be regarded as legitimate differences of opinion between parties as to the proper exercise of administrative discretion. No party contends for a particular view of fact or law to be found by the Tribunal. Therefore, despite the outcome, in most cases nobody can be said to be "right" or "wrong" in an ordinary permit review proceeding. An enforcement proceeding however, stands in a very different character. Here, just as in ordinary court proceedings, one party alleges and another party denies a particular state of fact or law. The Tribunal is called upon to make findings of fact and to apply the law to the facts which it finds, in the same way as a court does. Hence the circumstances surrounding the matter are required to be proven by proper evidence which is taken on oath, in contradistinction to the manner in which ordinary permit review applications are conducted with matters being simply asserted in the course of submission. See for instance Svanosio v Shire of Strathfieldsaye (1989) 2 AATR 26. Nevertheless as Mrs Komesaroff observed in Bayside City Council v T.A. Campbell (1999) 3 VPR 79, 82 at [17] "there is no general rule [that costs follow the event in enforcement orders] and each case must be judged on its merits".

39. I consider the Tribunal must rely on the words of Section 109(3) in coming to its decision and that the principles enunciated in Svanosio are no longer applicable.

40. The question then is whether circumstances exist for making an order for costs against a party in this case.

41. The first circumstance under Sub-paragraph 109(3)(a)(i) is 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.

42. There is no allegation that either party has failed to comply with an order or direction of the Tribunal.

43. Whilst there is a debate about the chronology and the adjournments, the adjournments were adjournments of orders for Administrative Mention (which is an order by the Tribunal that the parties write to the Tribunal advising of the status of the proceedings). Whilst on one or more of the various Administrative Mentions one or other party may have failed to have written to the Tribunal or been late, I do not consider any such conduct can be as conducting the proceeding in a way that unnecessarily disadvantaged the other party.

"Failing to comply with this Act, the regulations, the rules, or enabling enactment.",

"asking for an adjournment as a result of (i) or (ii) and (iv) causing an adjournment may be relevant in these proceedings.",

45. I do not consider Sub-paragraph 109(3)(a)(iv) - "causing an adjournment" applies as and not argued adjournments were not of an actual hearing where the proceedings were interrupted. Since the conclusion of the conditions hearings the only adjournments were of the Administrative Mention dates which were not an adjournment of an actual hearing and did not constitute conducting the proceeding in a way that unnecessarily disadvantages another party.

46. There is no issue arising in this matter under sub-paragraph 109(3)(v) of attempting to deceive another party or the Tribunal.

47. Likewise I do not consider that any allegation has been made that under sub-section (3)(a)(vi) that either party has vexatiously conducted the proceedings.

48. The matters argued which are alleged in this case arise under 109(3)(b), (c), (d) and (e) which are quoted above.

49. The question here is whether a party has been responsible for prolonging unreasonably time taken to complete the proceeding.

50. The proceedings have taken a considerable time to be concluded. The infringements alleged came to the notice of the Council in April 2000, the proceedings were issued on 6 March 2001, the hearing of the conditions review and the evidence in the enforcement order took place in June 2001 and the consent order was made in December 2002.

51. The Respondents alleged that the Council commenced the enforcement order application without giving it any notice that it intended to do so or entering into any discussions with the Respondents about remedying the infringements. This is not denied or explained by Council. Ms Harris' assertion was that they were commenced shortly before the hearing of the conditions applications for review, the implication being that the enforcement order application was issued in an attempt to influence the course of those proceedings.

52. I do find that the Council has acted unreasonably in commencing the enforcement order proceedings without giving notice of its intention to do so to the Applicant and without giving the Applicant an opportunity to respond to the allegations particularly as the enforcement order proceedings were not issued until 11 months after the alleged incident and in a manner which unduly complicated proceedings that were brought by the Applicant to contest the conditions on the subdivision permits.

53. However I do not consider that such conduct falls within paragraph (b) as it is not conduct which is responsible for prolonging unreasonably the time taken to complete the proceeding.

54. Paragraph 109(3)(b) in my view relates to the time between the commencement and the completion of the proceedings and does not relate to matters which have taken place before the proceedings were commenced.

55. The second question under Paragraph (b) relates to the time that elapsed since the completion of the hearings in June 2001 and the final order in December 2002. Negotiations were occurring between the parties and the matter was finally settled on the basis of a revegetation plan submitted by the Respondent with some input from the Council's representatives. Various allegations were made about why it took such a time to complete the negotiations but obvious factors were the remoteness of the site, the non-availability of witnesses and experts, the difficulty in arranging meetings at the site and Mr Harris' illness. There was also "sticking points" in the negotiations where the Respondent refused to accept conditions required by the Council in settlement negotiations.

56. However I consider that these matters are not the fault of one or other of the parties. They constitute what might be regarded as the normal course of a long negotiation over a difficult subject matter. I do not find that any party has acted unreasonably in the negotiations, nor that the proceedings have been prolonged unreasonably. No hearing has been prolonged. What has been prolonged is the time between the conclusion of one hearing and the final consent order. It was open to the Council to insist on a hearing at any time notwithstanding the slow negotiations.

57. The next matter arises under Paragraphs 109(3)(c) and (d) which requires the Tribunal to consider the relative strengths of the claim made by each of the parties including whether a party has made a claim which has no tenable basis in fact or law, and the nature and complexity of the proceedings which should be considered together.

58. Mr Tweedie submitted that the enforcement order proceedings were commenced on a false premise naming an allegation that the Respondents has acted in breach of the planning permits subject to the conditions appeal. The planning permits were issued on 7 August 2000. However the alleged incident came to the notice of the Council in April 2000 before the permits were issued and accordingly they could not be subject to an enforcement order proceeding as they occurred before the permits were issued. It is clear this alleged breach was an untenable claim.

59. However as to the alleged breaches of the Native Vegetation provisions the alleged incident was the subject of a 2 day hearing before myself and Ms Moles. It is difficult for the Tribunal when a matter is compromised or settled to determine the merits of the case as the hearings have not been completed. The Tribunal has not been asked to make a final determination on the issues in the enforcement order application or of any defences that may be raised by the Respondent, particularly under the exceptions to clear native vegetation contained in the VPP Planning Scheme applicable to Rural Zone land.

60. From the evidence heard it was apparent that there was some clearing of native vegetation, that the clearing was conducted in difficult country which was thickly vegetated and very steep. It may be the Tribunal could come to the conclusion that the Respondent could have approached the process of fixing the alignment for his proposed fence with more care than he actually did, and that the clearing was excessive in relation to the need to clear a fence line. The surveyors should have gone in first.

61. Mr Townshend argued that this was a difficult and complex matter for the Council to prosecute, that the activity was native vegetation removal in pristine bushland, that the subject land was remote, that extra costs for practitioners and consultants to travel there from the city were involved and the Responsible Authority has been prepared to accommodate the need of the Respondents when they were unprepared, sick or overseas.

62. He further put the proposition that the Council was a Victorian Country Shire with a limited budget and that it would not be able to bring enforcement orders if it was not able to recover costs and that as a matter of principle the Tribunal should award costs in this matter as an enforcement order had been made requiring the clearance of vegetation albeit without an admission of liability.

63. Whilst the Tribunal cannot determine the merits of the case I do not consider the Tribunal can ignore the fact that the settlement reached has resulted in the Respondent accepting the burden of an enforcement order to re-vegetate the land in accordance with the re-vegetation plan. This could have been the only successful outcome of enforcement order proceedings if they were prosecuted to the hilt. There may have been argument about the nature of the re-vegetation plan but the re-vegetation plan is now agreed upon by the parties and their experts as appropriate in the circumstances.

64. Accordingly the Tribunal is entitled to take the outcome of the settlement as equivalent to a successful prosecution of the proceedings even though the parties were unable to agree on the issue of costs, leaving that to the Tribunal.

65. I consider the comments of Deputy President Macnamara in Hobsons Bay v Haouli are relevant in this matter and that paragraphs (c) and (d) of Section 109(3) provides a justification for departing from the general rule in this case in that the outcome of the settlement is in itself a recognition that the Council's action in bringing the enforcement application was justified, that the Respondents' case was weak and in those circumstances the Council should have its costs. It is also clear that the matter was complex and of an unusual nature.

66. The final grounds which the Tribunal can consider under Section 109(3) is paragraph (e) "any other matter the Tribunal considers relevant" which was not argued.

67. A final matter is whether Mr Harris would be subject to an enforcement order proceeding as well as his company. There has been a submission to the Tribunal that he should not be personally subject to the order. However he was named as a Respondent and he was the person responsible for directing the work resulting in the clearance as well as being a director of the Company. No application was made to have him removed as a party and I consider he should be jointly and severely responsible for the costs together with his Company.

68. Accordingly my order is that the Respondents pay to the Council its costs of the proceedings calculated on a party/party basis in accordance with County Court Scale D which in default of agreement be assessed by the Registrar of the Tribunal.