1. Emrah Sen is ordered to pay the costs of Hume City Council fixed in the sum of $3,950.00. The costs must be paid within 60 days of the date of this order.

1. Pursuant to section 115B of the Victorian Civil and Administrative Tribunal Act 1998, Emrah Sen is ordered to reimburse the applicant, Hume City Council, the whole of the application fee and the costs application fee paid by the applicant in the proceeding, namely $2,383.80, within 60 days of the date of this order.

1. This proceeding was an application for an enforcement order under section 114 of the Planning and Environment Act 1987 made by the responsible authority, Hume City Council. The alleged contravention related to the importation of fill and waste on to the land at 470 Sunbury Road, Bulla and use of the land for the purpose of refuse disposal without a permit in contravention of the Hume Planning Scheme.
2. On 17 July 2018, the Tribunal made an interim enforcement order requiring removal of all imported construction and demolition waste from the land and lawful disposal of the waste at an off-site disposal site. Rehabilitation of the land was also required. Costs were reserved.
3. There was a practice day hearing on 14 September 2018 attended by both parties. A hearing was scheduled on 8 January 2019 with an administrative mention due on 16 November 2018 to report on negotiations between the parties.
4. At the practice day hearing on 14 September 2018, the Tribunal was advised that the respondent had removed the waste from the land, but there remained some fill on the land which was required to be removed. Subsequently, the council communicated with the respondent about further compliance with the interim enforcement order. The council says there was no adequate response. However, on 7 January 2019 - the day before the scheduled hearing - the Tribunal received a consent order, which resolved the proceeding. In submitting the signed consent order, the council advised the Tribunal as follows:

We confirm that the substance of the contravention has been resolved and that the only outstanding issue is the matter of costs. The signed minute of consent order provides for the resolution of the costs if the parties cannot resolve it between themselves.

1. By order dated 7 January 2019, the Tribunal withdrew the proceeding and reserved costs. It gave directions that any party that wishes to make an application for costs must file and serve such application and supporting submissions, with an opportunity for a response to any such application. The hearing on 8 January 2018 was vacated.
2. The council has now made an application for costs in the sum of $3,950.00 and an application that the respondent pay the application fees incurred of $1,459.00 for the enforcement order application and $924.80 for the costs application. No response has been received from the respondent.
3. The starting point for considering any application for costs is section 109 of the Victorian Civil and Administrative Tribunal Act 1998. Section 109 relevantly provides:

(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);

(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.

1. Whilst normally parties bear their own costs in VCAT proceedings, having considered the council's application and the facts of this case, I am satisfied that it would be fair to make an award of costs in favour of the council. I rely upon the nature of the proceeding and the following matters in reaching this conclusion.
2. Under the Planning and Environment Act 1987, a responsible authority has an obligation to efficiently administer and enforce the planning scheme; and to enforce any enforcement order or interim enforcement order relating to land covered by a planning scheme for which it is the responsible authority.[1]
3. There is no contention in the present case that the respondent was in breach of the planning scheme. By making this application for an enforcement order and obtaining an interim enforcement order, the council has acted to comply with its duty under the Act as a responsible authority. It has been successful in resolving the breach by having the waste and the fill removed and the land rectified thereby avoiding potential environmental harm. I do not consider that in such circumstances where the council is fulfilling its duties as a responsible authority under the Act that the council, and consequently ratepayers, should have to bear the costs of obtaining compliance with the scheme. The respondent was clearly in breach of the scheme and was tardy in carrying out rectification. In these circumstances, I am satisfied it is fair to order that the respondent pay the costs of the applicant in bringing this proceeding.
4. Likewise, I am satisfied that pursuant to section 115C of the Victorian Civil and Administrative Tribunal Act 1998, I should make an order under section 115B that the respondent reimburse the council the whole of the fees paid by the council, as successful party, in the proceeding. Sections 115C(1)(d) and (2) provide that in a proceeding under section 114 of the Planning and Environment Act 1987, 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.
5. I am satisfied that an order under section 115B should be made in respect of the initial application fee of $1,459.00 in respect of the application for an enforcement order plus $924.80 in respect of the costs application, making a total of $2,383.80. This sum is in addition to the costs of $3,950.00, which means that the respondent must pay a total of $6,333.80.

[1] Section 14(a) and 14(aa) Planning and Environment Act 1987