I refer to my primary orders in this matter dated 21 September 2009.
Suffice to say that this matter involved a conditions appeal in relation to Conditions 1 and 3 of the existing Planning Permit No. P08/557 dated 6 May 2009.
There were some quite curious aspects to the hearing of this conditions appeal before me on 14 September 2009, which I outlined in my written Reasons. In the final result, my orders of 21 September 2009 allowed the conditions appeal, ordered that Conditions 1 and 3 be deleted from the re-issued Planning Permit No. P08/557, and set out in my Order 2 a process whereby Council had the opportunity to respond to the costs claim made by the Applicant at the hearing.
In relation to this costs claim, as part of Mr Costa's presentation to me at the hearing, Mr Costa gave a breakdown of his costs involved in preparing for and attending at the hearing (see paragraph 33 of my Reasons in my earlier order), with these orders coming to a total of $7551.70.
In terms of the arguments put forward by Mr Costa why a costs order should be made, paragraph 31 of the Reasons of my earlier order provide a summary as follows:
1. Mr Costa was very critical of Council's conduct in the weeks leading up to the hearing. He submitted that over the two months before the hearing, he had been trying to broker a solution with Council's Planning Department, but it was unresponsive in this regard. He argued that if Council had acted responsibly, there would have been no need for the hearing at all. Given the overlap between the two contentious permit conditions, Mr Costa also queried how Council could indicate with any credibility at the beginning of the hearing that it conceded that Condition 3 should be deleted but would continue to defend Condition 1.
Although as mentioned Council had the opportunity to respond, I did not receive any such written response within the relevant 14 day period. As a courtesy to Council, I arranged for a follow up phone call be made to Council, to ensure that there had no been any logistical hiccup in the Tribunal receiving any submission from Council. In the final result, Council simply provided the Tribunal with a very short email, stating that:

Victorian Civil and Administrative Tribunal|2009-09-21|Before: Member P

Colvington Pty Ltd v Mildura Rural CC [2009] VCAT 2363 (21 September 2009)

Colvington Pty Ltd v Mildura Rural CC [2009] VCAT 2363

The costs claim made by the Applicant against the Responsible Authority is granted.
The Responsible Authority must pay the Applicant's costs of $7551.70 within 30 days of the date of these orders.

I refer to my primary orders in this matter dated 21 September 2009.
Suffice to say that this matter involved a conditions appeal in relation to Conditions 1 and 3 of the existing Planning Permit No. P08/557 dated 6 May 2009.
There were some quite curious aspects to the hearing of this conditions appeal before me on 14 September 2009, which I outlined in my written Reasons. In the final result, my orders of 21 September 2009 allowed the conditions appeal, ordered that Conditions 1 and 3 be deleted from the re-issued Planning Permit No. P08/557, and set out in my Order 2 a process whereby Council had the opportunity to respond to the costs claim made by the Applicant at the hearing.
In relation to this costs claim, as part of Mr Costa's presentation to me at the hearing, Mr Costa gave a breakdown of his costs involved in preparing for and attending at the hearing (see paragraph 33 of my Reasons in my earlier order), with these orders coming to a total of $7551.70.
In terms of the arguments put forward by Mr Costa why a costs order should be made, paragraph 31 of the Reasons of my earlier order provide a summary as follows:
1. Mr Costa was very critical of Council's conduct in the weeks leading up to the hearing. He submitted that over the two months before the hearing, he had been trying to broker a solution with Council's Planning Department, but it was unresponsive in this regard. He argued that if Council had acted responsibly, there would have been no need for the hearing at all. Given the overlap between the two contentious permit conditions, Mr Costa also queried how Council could indicate with any credibility at the beginning of the hearing that it conceded that Condition 3 should be deleted but would continue to defend Condition 1.
Although as mentioned Council had the opportunity to respond, I did not receive any such written response within the relevant 14 day period. As a courtesy to Council, I arranged for a follow up phone call be made to Council, to ensure that there had no been any logistical hiccup in the Tribunal receiving any submission from Council. In the final result, Council simply provided the Tribunal with a very short email, stating that:

I wish to advise that Mildura Rural City Council will not be providing a submission in regard to the costs claim regarding this matter.

As the parties will be aware, the statutory provision for dealing with any costs claim in the Planning and Environment List at the Tribunal is Section 109 of the Victorian Civil and Administrative Tribunal Act 1998.
In essence, Section 109(1) creates a starting point that, in the usual course, each party bears their own costs in any proceeding before the Tribunal.
However Section 109(3) also sets out various criteria which the Tribunal can potentially apply in potentially making a costs order against any party in any one proceeding.
I am satisfied that it is appropriate that I order Council to pay the full costs claim by the Applicant in this matter, applying these various criteria under Section 109(3).
In particular, I am satisfied that:
- Council acted inappropriately in continuing to pursue the retention of the contentious Conditions 1 and 3 in the lead up to the hearing, even when it should have been quite obvious to any well informed and reasonable Council planning officer that (for the reasons set out in my earlier orders) the contentious conditions were nonsensical in light of the true facts involved;
- if Council had in fact correctly re-assessed the merits or otherwise of the contentious permit conditions as part of proper discussions with the Applicant before the hearing date was too close, I agree with Mr Costa that the likely scenario seems that the hearing could have been avoided; and
- I also agree with Mr Costa that it seems a very strange situation where the two contentious permit conditions heavily overlap with each other, but Council's position at the beginning of the hearing was to concede one of these two conditions but to continue to seek to justify the other.
Although I would in the majority of case apply a one-third discount to reflect the awarding of parties/party costs rather than fully indemnity costs, I am satisfied that Council's conduct in the circumstances here is so strange and cavalier as to justify a full reimbursement of the costs being claimed by the Applicant. I also rely here on the fact that the Tribunal has bent over backwards to give Council the opportunity to provide any submissions resisting the costs claim, but Council has not taken up this opportunity.

Colvington Pty Ltd v Mildura Rural CC [2009] VCAT 2363

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Colvington Pty Ltd v Mildura Rural CC [2009] VCAT 2363 (21 September 2009)

Parties