Victorian Civil and Administrative Tribunal|2014-05-23

The applicant applied for an award of costs 'thrown away' by virtue of its Senior Counsel's appearance at the original Practice Day Hearing. At that hearing, I heard submissions on behalf of the applicant but the responsible authority subsequently requested that I adjourn the proceeding to enable it to prepare submissions.[16]
The applicant submitted that an award of costs was justified by the responsible authority engaging in conduct causing disadvantage (i.e. by seeking the adjournment)[17].
The responsible authority responded that it would not be fair to award costs against it, especially in circumstances where its conduct was unfortunate but not vexatious or engaged in to obtain an advantage.
The Practice Day Hearing was listed with relatively short notice and the accompanying letter from the Tribunal advised that the parties should be prepared to run their case if the matter could be dealt with in an hour and time allowed on the day. I consider that it was not unreasonable (although ultimately perhaps naïve in hindsight) for the responsible authority to expect that the matter would take longer and would therefore be listed for future hearing.[18]
While it would have been desirable for the responsible authority to indicate upfront at the first hearing that it was not ready to proceed to a merits hearing that day, I do not consider that this action of itself should carry a cost consequence.
As it transpired, the applicant was able to rely on both sets of submissions, making more fulsome submissions on the second occasion. Therefore, I consider that the costs at first instance were not 'thrown away' in the true sense, even though there was some overlap in representation.
In the circumstances, I find that it is appropriate for each party to bear their own costs in the proceeding, as is the standard position in section 109(1) of the .

I am not satisfied that there has been any material change in planning policy or that there are any seriously entertained planning policies that would warrant refusal of a first extension of time for this substantial re-development. On the facts before me, on balance, the case law factors support the application.
I have provided an additional two years to commence the development from the date of this decision. This was applied for by the permit holder and I regard it as reasonable having regard to the nature of the development and the time that has passed to date. Corresponding to the applicant's request, I have provided two additional years to complete the development, although this may realistically prove to be inadequate. If required, a further extension of time could be sought from the responsible authority in accordance with the relevant statutory provisions.

[1] More specifically, 520 dwellings, shop, food and drink premises, offices and place of assembly.

[2] The permit provided an additional three years to complete the approved development.

[3] I was advised that the land was transferred to it in February 2013.

[5] Comprised of Cathie McRobert, Craig Czarny and Gordon Anderson.

[7] I also note that the opposite position was taken by the recommending planning officer.

[8] Included in a total of 4 landmark or gateway sites.

[9] Although this appears to still be undetermined, since the more recent document tendered at the hearing post exhibition refers to a reduction from a proposed 10 storeys to a proposed 6 storeys.

[11] In a similar vein to the comments of Member Rundell in APG Property Group Pty Ltd v Moreland CC & Anor [2013] VCAT 1381.

[12] This was acknowledged by the planning officer in their assessment of the extension request.

[15] As emphasised in the Panel's analysis.

[16] Ms Sharp indicated that part of this request was since the officer representing the council at the first hearing had recommended approval of the extension of time and in those circumstances, the responsible authority would have wanted to brief counsel.

[18] This was consistent with its Practice Note 2 response.

Double LZ Development Pty Ltd v Moreland CC [2014] VCAT 613 (23 May 2014)

Double LZ Development Pty Ltd v Moreland CC [2014] VCAT 613

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (1)

Double LZ Development Pty Ltd v Moreland CC [2014] VCAT 613 (23 May 2014)