1. Pursuant to sections 115B and 115C of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the respondents are jointly and severally ordered to reimburse the applicant, Geater Bendigo City Council, the whole of the application fee and daily hearing fee paid by the applicant in the proceeding, namely $1,959.40.
2. The fees must be reimbursed within 90 days of the date of this order, or such other date as may be agreed between the parties.

1. The Tribunal issued an enforcement order with the consent of the parties on 2 September 2025. The agreement was reached during the course of the scheduled hearing.
2. The parties agreed, and the Tribunal accepted, that the land had been used for a Store contrary to the provisions of the Greater Bendigo Planning Scheme.
3. However, the evening before the hearing, the respondents undertook work to remove all goods, vehicles and equipment from the land (aside from conventional domestic storage), as sought by Greater Bendigo City Council ('Council') in its application for enforcement order.
4. This addressed the matter at hand.
5. The order issued by consent further prevents the land from being used for a Store in future.
6. More specifically, it precludes goods, vehicles, equipment and the like associated with a commercial enterprise or business being brought onto the land, except in accordance with the law.
7. At the conclusion of the hearing, Council sought an order for its costs in the proceeding and the reimbursement of the application fee.
8. This was opposed by the respondents.
9. I provided a process by which parties could provide extra documentation and submissions in respect of costs. I have considered this material, including Council officer authorisation as addressed at the costs hearing.
10. The respondents sought to be heard on the claim for costs.
11. These reasons address the questions of whether it is fair to make an award of costs in the circumstances of the proceeding and, if so, to what amount.
12. I find it is fair to make an award of costs in favour of Council, but allow only a portion of its costs I regard as reasonable and necessary in the proceeding.
13. In the interests of justice, I have made an order for a fixed amount given my detailed knowledge of the proceeding and to avoid the parties incurring additional costs.
14. I also consider and apply relevant provisions of the legislation relating to the reimbursement of the application and hearing fees.
15. The presumption in favour of reimbursement of fees is met, and I find that the facts of this case are not sufficient to displace it.
16. Therefore, Council is entitled to recoup its application fee and hearing fee from the respondents.

1. Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') is the relevant provision relating to costs in this proceeding. It which provides as follows:

109 Power to award costs

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

(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 subsection (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);

(iv) causing an adjournment;

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

(vi) vexatiously conducting the proceeding;

(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;

(d) the nature and complexity of the proceeding;

(e) any other matter the Tribunal considers relevant

1. The starting point is in section 109(1) of the VCAT Act which provides that each party will bear its own costs.
2. However, section 109(2) enables the Tribunal to make an order that a party pay all or a specified part of the costs of another party in a proceeding. Section 109(3) requires that the Tribunal decides that it is fair to make such an order, and sets out relevant matters to guide the exercise of the Tribunal's discretion.
3. Each case will turn on its particular facts.
4. As documented below, section 115B of the VCAT Act also contains the power of the Tribunal to make an order requiring a party to reimburse fees incurred by another party in a proceeding.
5. In this instance, a presumption in favour of reimbursement of these fees (application fee and hearing fee in this case) is contained in section 115C. However, it can be rebutted if the facts of the case do not justify such an order.

1. Council claimed costs of $18,287.67 in the proceeding, representing all of its professional costs.[2]
2. This has not been re-calculated on a standard basis (formerly party-party costs) to represent all costs 'necessary' in a proceeding. Instead, it represents the costs actually incurred by Council, effectively on an 'indemnity basis'.
3. In summary, Council submitted that it was fair to award all of its costs in the proceeding having regard to the matters in section 109(3) of the VCAT Act since:
   • the respondents were first informed of the alleged breach in March 2024 and were requested to rectify it;
   • the matter has been ongoing for 18 months, throughout which Council has continued to seek compliance with the planning scheme;
   • Council has a duty to enforce the planning scheme in these circumstances, and took action in response to complaints from neighbours in the immediate residential neighbourhood;
   • the respondents failed to comply with directions of the Tribunal, such as to attend the practice day hearing or provide a statement of grounds if the application was opposed;
   • the respondents did not file submissions or evidence in advance of the hearing as required by orders of the Tribunal; and
   • the relative strengths of the claim supported an order for costs, since there had been evidence of an unauthorised use without relevant justification.

1. Council relied on section 115C of the VCAT Act. This creates a statutory presumption in favour of a reimbursement of fees where the party has 'substantially succeeded' in a proceeding for enforcement order under section 114 of the Planning and Environment Act 1987 (Vic) ('PE Act').[3] It provides:

(2) Subject to subsection (3), a party who has substantially succeeded against another party in a proceeding to which this section applies is entitled to an order under section 115B that the other party reimburse the successful party the whole of any fees paid by the successful party in the proceeding.

In this section -

"successful party", in relation to a proceeding, means a party who has substantially succeeded against another party in the proceeding.

1. Section 115C(3) then provides an opportunity to displace the statutory presumption in the following terms:

Subsection (2) does not apply if the Tribunal orders otherwise, having regard to -

(a) the nature of, and issues involved in, the proceeding; and

(b) the conduct of the parties (whether occurring before or during the proceeding), including whether the successful party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse.

1. Council claimed that it had 'substantially succeeded' in the proceeding since the Tribunal issued an enforcement order in final form. It submitted that the fact this was issued with the consent of the parties did not alter this conclusion.
2. It considered the respondents had not identified a sufficient basis to displace the presumption on the facts of the case. It sought to rebut arguments it had not acted in a timely manner, that there were defects in service on the respondents or that Mr Chalkley's evidence was flawed.

1. Mr Hall is the owner and occupier of the subject land. He is also the director and secretary of the respondent company.
2. He gave sworn evidence at the costs hearing about the relevant course of events, and his alleged lack of knowledge of the enforcement proceeding until the end of August 2025.

1. The respondents' key point as to why costs should not be ordered was that they were not aware of the enforcement proceeding until approximately the end of August 2025 (compared to the original lodgement date with the Tribunal on 15 April 2025).
2. After that time, Mr Hall submitted that he was working towards compliance and believed he was acting consistently with directions from Mr Chalkley, Council's enforcement officer.
3. The respondents also sought to point to numerous inconsistencies or deficiencies in actions by Council once the proceeding had commenced, including:
   • a purported failure to comply with directions, such as providing a statement of service;
   • inadequate service of documentation, such as to allegedly incorrect addresses for both the business and individual respondent - referring to sections 140(1)(a) and (b) of the VCAT Act;
   • inaccuracies, contradictions or unlawful gathering of evidence in the affidavit of Council's enforcement officer, and/or a lack of independence or consistency compared to Council's submissions; and
   • the matter was originally dealt with as a local laws matter and a Planning Infringement Notice had been issued, such that the proceeding should not have been brought in these circumstances.
4. They suggested that these deficiencies had either caused unnecessary disadvantage or prolonged the time taken to resolve the proceeding.
5. Mr Hall submitted that he had acted in good faith and consented to compliance orders, and should not be liable to paying Council's costs.
6. Alternatively, the respondents submitted that, at most, they should be liable for a maximum of 25% of the costs claimed by Council.
7. Mr Hall did not make additional submissions about the claim for fee reimbursement.

1. This decision considers the application for an award of costs and reimbursement of fees, which is the sole remaining issue in this proceeding.
2. The substance of the proceeding was resolved by consent, with the Tribunal issuing an enforcement order. The Tribunal exercised its powers by way of final order under section 119 of the PE Act in respect of the 'merits' of whether there had been a breach of the planning scheme and what orders are appropriate.
3. I am not in a position to re-open consideration of these issues or the evidence in particular.
4. To the extent that the respondents now suggest that the evidence for Council may have been deficient or flawed (after having had an opportunity to test it before arriving at a consent position), I indicated that I was satisfied on the basis of the material provided by Council that there had been a breach of the relevant planning scheme controls on the balance of probabilities.
5. I was therefore in a position to give effect to the parties' consent position even though the application was within the original (rather than review) jurisdiction of the Tribunal.
6. The question remaining is whether it is fair to depart from the ordinary rule that each party should pay its own costs in the proceeding.
7. If so, what amount of costs should be reimbursed by the respondents considering all relevant matters?
8. Is there justification to award a reimbursement of fees in the proceeding?

1. Costs in the Tribunal are discretionary.
2. The 'ordinary rule' in section 109(1) of the VCAT Act is that each party should bear their own costs in the proceeding. However, the Tribunal may order otherwise if it considers fair to do so in the circumstances of the particular case.
3. Case law confirms that the purpose of an order for costs is to recompense a party for costs it should not be required to shoulder. It is not to 'punish' a party for any non-compliance with the planning controls, for example.
4. Relevant matters as to whether it is fair to award costs are listed in section 109(3) of the VCAT Act.
5. The respondents were not obliged to participate in or contest the proceeding.
6. However, the fact that Mr Hall's first contact with the Tribunal on behalf of the respondents was his attendance on the day of the hearing - without providing submissions or evidence in advance as required, or contacting Council to come to a consent order in advance of the hearing - required Council to go to significant expense to prepare for and prove its case.
7. Had the respondents participated in the practice day hearing, in my experience, there would have been a reasonable likelihood that the matter could have resolved by consent even at that stage, without additional costs being incurred in the lead up to the hearing.
8. The respondents denied having been aware of the enforcement proceeding until late August 2025 when Mr Hall received an email from Beck Legal and chose to open the last attachment (apparently containing some document in the proceeding but not providing the ultimate hearing date - therefore potentially being something other than the initiating order).
9. This was subsequent to an email received from Beck Legal on 8 July 2025 (apparently sent to Mr Hall's 'spam folder') which contained ASIC searches but was not read by Mr Hall. Instead, Mr Hall claims he called the solicitor but never received a return call.
10. I reject much of the evidence of Mr Hall and have significant concerns about his truthfulness in respect to the receipt of documentation from Council.
11. Council's submissions and documents indicate that it posted and emailed relevant correspondence, orders and evidence/submissions to the respondents at the property address and at the confirmed email address as recorded by ASIC for the company (at least before it was changed[4]) on over 10 occasions in the proceeding.
12. This includes information including orders of the Tribunal and the application form to this address by registered post and express post, documented by Australia Post as received.
13. I find that there was no error in the addressing of the letters or emails, and that no letters or emails were returned to Council as non-deliverable.
14. I find that Council undertook and demonstrated sufficient service of the application for enforcement order and associated documentation on the respondents in accordance with the requirements of legislation, including section 140 of the VCAT Act and section 49 of the Interpretation of Legislation Act 1984 (Vic).
15. Notwithstanding, Mr Hall denies having ever received a single letter to the premises from Council in respect of the proceeding.
16. I do not accept this as plausible. Even if it were truthful in part, it indicates wilful blindness on the part of the respondents to either inform themselves about the proceeding, what was required of them to resolve it or how and when to participate.
17. For example, Mr Hall elected not to read the suite of documents provided by Beck Legal in the email he noticed on 8 July 2025, claiming that it may not have been legitimate.
18. Even when he received the Dropbox link with all relevant documents from Beck Legal soon after speaking with a solicitor for Council on or around 20 August 2025,[5] he chose not to read or progress the contents.
19. This would have contained at least the application for enforcement order and Tribunal order providing relevant dates and opportunities. This lack of action meant that the respondents effectively chose not to read and understand or respond to the orders of the Tribunal as was required.
20. Mr Hall also said he had immediately started to clean up the site and continued to do so as requested by Council.
21. I find that this is not consistent with the evidence provided on behalf of Council, which still shows a substantial amount of vehicles and goods stored in the late afternoon inspection the day before the hearing.
22. I also reject the evidence of Mr Hall to the extent that the earthmoving machinery was reasonably stored on site on an ongoing basis to undertake domestic landscaping.
23. In any case, Mr Hall chose to leave key elements of the 'clean up' activities until the night before the hearing.
24. He had also not provided any documented indication to Council that the 'clean up' work would be done by any particular timeframe, such that hearing preparation and attendance could be avoided.
25. Thereby, the respondents chose to avoid the consequences of the hearing until the last possible moment.
26. Had they done so earlier, when Council reinspected (as it did from time to time), Council could have elected to withdraw the application, seek a consent order or the like and vacate the hearing.
27. Instead, Council was required to present its case on the basis that the respondents had not indicated any willingness to participate, or to resolve the issue within a reasonable time of becoming aware.
28. The respondents had just under two weeks to do so from the date they chose to be aware of the proceeding, noting that the scope of the work to remove commercial goods, equipment and vehicles was relatively straightforward and limited.
29. It is on a residential site of approximately 1,000 square metres, the respondents operate an earthmoving/asphalting business with access to trades and machinery and could probably have finalised the clean up over a few days.[6]
30. In turning a blind eye to these issues, it was inevitable that Council would incur additional legal costs in having to prepare for a hearing.
31. Therefore, regrettably, it is clear that the respondents have been responsible for prolonging unreasonably the time taken to complete the proceeding.
32. Another factor supporting an order for costs is the relative strengths of the claims made by each of the parties.
33. In my view, Council's case was relatively clear and simple having regard to the provisions of the planning scheme and the evidence provided (even if some dates on photographs and the like were not formally tested in evidence as alleged by Mr Hall).
34. The fact that Mr Hall did not appreciate that he was not permitted to use residential land for the ongoing storage of commercial goods, or that he believed that compliance would be achieved as long as he did not store his truck at the property overnight is not, in my view, a sufficient defence.
35. The documentation provided by Council was sufficiently clear as to what was required under the planning scheme, as distinct from any potential misapprehension the respondents may have been under in respect of Local Laws.
36. Having read the submissions for the applicants (including extensive attachments), I do not find that any of their claims that Council's actions were deficient in the proceeding is substantiated in substance, or that these had the material potential to cause any potential prejudice to the respondents that should bear on the issue of costs.
37. This includes my satisfaction that Mr Chalkley was an authorised officer of Council entitled to commence the proceeding and collect evidence.[7]
38. For these reasons, I consider it eminently fair for an order for costs to be made in favour of Council.

1. I do not agree with Council that this case in any way justifies an award of actual costs on an indemnity basis or similar.
2. In my experience, it is appropriate to award 50% of Council's fees incurred in this case since:
   • this approximately represents standard costs for the necessary items claimed, excluding attendances on Council;
   • the matter was relatively straightforward and did not warrant extensive submissions or evidence; and
   • the respondents ultimately remedied the breach and consented to the making of an enforcement order, even though this occurred at or immediately before the hearing.

1. I agree with Council that there is a statutory presumption in favour of an order reimbursing its application fee in this enforcement proceeding.
2. I find that Council was 'substantially successful' in the proceeding, to the extent an enforcement order was issued, finding that the land had been used in breach of the planning scheme, generally as alleged. The order also prevents the unauthorised use of the land from re-occurring in future.
3. The fact the enforcement order was issued by consent is a relevant consideration but, in my view, is not sufficient to displace the presumption under section 115C(3) of the PE Act, having regard to the conduct of the parties.
4. Relying on my findings above, the respondents have not satisfied me that the nature of and issues involved in the proceeding would justify an alternative outcome. On the contrary, I consider these reinforce the appropriateness of a reimbursement of fees on the facts of this case.
5. Likewise, I find that Council's solicitors have acted appropriately and with due diligence to assist the Tribunal in its role as responsible authority to administer and enforce the planning scheme.[8] I do not accept submissions for the respondents that there is any conduct by Council that would justify setting aside this presumption.
6. The fact that Council chose to engage in negotiation to resolve the proceeding during the final hearing at the suggestion of the Tribunal is also to its credit, taking a practical view in light of hearing the evidence of the respondents for the first time at the commencement of the hearing, that the site had been cleared of all goods, equipment and machinery/vehicles other than those used for domestic purposes.

1. It is fair for the respondents to pay 50% of Council's costs actually incurred in the proceeding.
2. It is appropriate for the respondents to reimburse the application fee and hearing fee in this proceeding, applying the relevant legislation.

[1] The submissions, evidence of the parties and supporting exhibits referred to at the hearing have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] It also sought a small additional amount for its disbursements, totalling $104.37.

[4] After that time, the address was changed to the address of the property so service was effected properly.

[5] Noting that Mr Barkla recorded a phone call from Mr Hall on 20 August 2025 to discuss the email.

[6] I note that when Mr Hall advised Council in April that he would clean up the site, he committed to doing so within two days.

[7] I have seen correspondence from the parties, but confirm that Mr Chalkley was authorised under both the PE Act and Local Government Act 1989 from 4 February 2013. The PE Act authorisation was updated on 19 September 2024 but in the absence of a lapsing or revocation being specified, it appears that the earlier authorisation continued until that time and covered the lodgement of the proceeding and the associated investigations.

[8] Referencing obligations in section 14 of the PE Act.