Kameel Pty Ltd v Casey CC [2006] VCAT 526 | Case summary | Zoe

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Kameel Pty Ltd v Casey CC [2006] VCAT 526 | Case summary | Zoe

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1 This is an application for costs by the Respondent now known as SPI Networks Pty Ltd following the withdrawal of an application by Kameel Pty Ltd pursuant to Section 149A Planning and Environment Act 1987(PE Act). The application for declaration was lodged on 1 March 2005. The application sought a declaration in relation to the interpretation of the Casey Planning Scheme in relation to whether the Respondent required a planning permit for vegetation removal associated with the construction of an electricity transmission line and for the construction of buildings and works associated with the transmission line over the Applicant's land in Harkaway Road, Berwick.

2 The Respondent filed a statement of grounds on 4 April 2005. The matter was listed for a hearing on 24 May 2005. On the 10 June 2005 the matter was listed for a directions hearing to consider the application by the Applicant for leave to withdraw and any application for costs by any party. The Applicant had by letter dated 11 May 2005 requested leave to withdraw its application. The Respondent indicated it consented to the withdrawal but subject to an application for costs.

3 The Tribunal granted leave to withdraw the application on 15 June 2005, reserved costs and gave directions to the parties regarding the filing and serving of submissions in relation to the question of costs.

4 Leave to withdraw a proceeding in the Tribunal is under the provision of Section 74(1) Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). Section 74(2) (b) empowers the Tribunal to make an order that the Applicant pay all, or any part of, the costs of the other parties to the proceeding.

5 Section 109 VCAT Act deals with the power to award costs and provides at Section 109(1) that 'subject to this division, each party is to bear their own costs in the proceeding'. Both Sections 74 and 109 fall within Part 4 of the VCAT Act which deals with the general procedures of the Tribunal but are located in separate divisions under this general heading. Section 74 falling within Division 4 which deals with preliminary procedure and Section 109 in Division 8 which deals with costs. Batt JA observed in Transport Accident Commission v Coyle[1] that Section 74(2) (b) is an empowering provision that authorises the Tribunal to award costs against an Applicant after an application has been withdrawn. A similar view was adopted by Deputy President Coghlan in the Tribunal in Rhonda Hurwood v Emergency Services Superannuation Scheme, [2] where she also observed the provisions of Section 109(3) apply in the exercise of the discretion.

6 Whilst Section 74 (2) (b) provides a wide discretion in relation to the ordering of costs it should not be forgotten that the underlying principle of costs in the Tribunal is that set out in Section 109(1) that each party bear their own costs. It is considered that the exercising of the discretion under Section 74(2) (b) should commence with the underlying view that if the proceeding had not been withdrawn and the matter had proceeded to a hearing no underlying principle applies in the Tribunal as in the courts that costs will follow the event. Rather the underlying principle is that there will be no award of costs unless as stated in Section 109 it is fair in the circumstances to award costs having regard to the matters set out in Section 109(3). The matters set out in Section 109(3) are considered to be the matters that one would generally consider when exercising discretion on the issue of costs and includes the wider discretion referred to in Section 109(3) (e) that the Tribunal can have regard to 'any other matter the Tribunal considers relevant'.

7 The Respondent in its statement of grounds dated 31 March 2005 under the heading 'Background' states that 'TXU sought an easement from the land owner for the construction of a 22kv power line at Lot 2 PS 210084 Harkaway Road, Berwick Vic 3806 between April 2000 and August 2003... TXU was unsuccessful in obtaining agreement with the landowner for the power line easement'.

8 As a result the Respondent compulsorily acquired the easement and possession of the easement occurred on 10 May 2004. Work commenced for the construction of the line on 2 August 2004 and was completed on 10 December 2004.The Applicant was therefore aware of the creation of the easement and the works carried out within the easement.

9 A letter dated 16 June 2004 from a representative of the Applicant sought advice from the Casey City Council (the Responsible Authority) as to whether any planning permits were required. The Responsible Authority replied by letter dated 19 August 2004 shortly after the commencement of the works on the 2 August 2004. The response from the Responsible Authority indicated no permit was required under the zone provisions, raised an issue regarding the creation of an easement which does not appear to be relevant and comments that a permit would be required for the removal of native vegetation in the Significant Landscape Overlay. No reference was made to the exemption provisions under the Overlay or the planning scheme. This correspondence followed earlier correspondence to the Responsible Authority on 19 May 2005 seeking information as to whether the Council had any policies regarding the construction of power lines either above or below ground and a response by the Responsible Authority on 4 June 2005 referring to the contents of a policy within the Casey Planning Scheme.

10 No action was taken by the Applicant regarding the works following the receipt of the advice from the Responsible Authority on 19 August 2005 and it was not until 1 March 2005 well after the works had been completed on 10 December 2004 that the Applicant lodged its application for declaration.

11 The application for declaration pursuant to section 149A Planning and Environment Act 1987 states that 'TXU Networks Pty Ltd has sought to acquire an easement across the Applicant's land and intends to construct an electricity transmission line over the land.' The declaration application also states 'TXU maintains that it does not require a planning permit for the construction of the power line and has attempted to commence works on the land'. From the Respondent's Statement of Grounds both the acquisition of the easement and the construction of the power lines had well and truly occurred at the time this application was lodged. The statements made in the declaration application do not appear to provide the correct information. The declaration sought was 'that a planning permit is required not only for the vegetation removal associated with the construction of the power line on the subject land but also for the construction of buildings and works associated with it'.

12 The Respondent's Statement of Grounds dated 31 March 2005 clearly sets out that a permit is not required under the Green Wedge A zone provisions for a 'minor utility installation' defined as 'land used for a utility installation comprising any of the following: power lines designed to operate at less than 220,000 volts'. The power line in question being rated at 22kV. Under the provisions of the zone at Clause 35.05-4 there is also no requirement for a permit for buildings and works.

13 A permit is required under the provision of the Significant Landscape Overlay for buildings and works; however under Clause 62.02 of the planning scheme there is a general exemption for buildings and works associated with a minor utility.

14 The provision of the Significant Landscape Overlay at Clause 42.03 indicates 'a permit is required to remove, destroy or lop any vegetation specified in a schedule to the overlay. This does not apply:

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16 The provisions in the planning scheme referred to by the Responsible Authority and the Respondent are clear although the letter of the 16 June 2004 to the Responsible Authority appears to contain a certain amount of misinformation and hence a slightly misguided response from the Responsible Authority. The easement had already been compulsorily acquired under Section 86 of the Electricity Industry Act 2000 which the Applicant was aware of, therefore any reference to the requirement for a permit under Clause 52.02 was not relevant. It is therefore difficult to conclude that the advice contained in the letter of the Responsible Authority dated 19 August 2004 was to be relied upon when the full facts had not been given to the Responsible Authority.

17 Further the Applicant's letter indicates an objection to the construction of above ground power lines and the Responsible Authority's response clearly indicates no permit is required for such construction under the zone provisions although the Responsible Authority has not itself referred to the exemptions within its planning scheme under the Significant Landscape Overlay or its general exemption provisions under clause 62.02. Failure to provide this information could be as a result of the lack of information provided with the request.

18 I have been referred to the letter from the Responsible Authority dated 19 August 2004 indicating 'a permit is required to create an easement under Clause 52.02 of the planning scheme'. Whilst the application for declaration refers to the Respondent seeking to acquire an easement, as does the letter to the Responsible Authority from the Applicant's representative dated 16 June 2004 no declaration is sought in relation to the easement and whilst it was put that 'there was a real issue as to whether or not any of the exemptions applied and whether the compulsory acquisition of the easement avoided the necessity to obtain a planning permit pursuant to Clause 52.02 of the Casey Planning Scheme', any issue surrounding the easement by compulsory acquisition is irrelevant to the application for declaration as to whether a permit is required for the construction of buildings and works or vegetation removal.

19 I am unable to conclude on the information provided that 'whether or not a planning permit was required for the acquisition of the easement and removal of vegetation involve complex issues' as there was no application seeking a declaration that a permit was required for the acquisition of the easement and the planning scheme clearly expresses exemption provisions regarding the removal of vegetation.

20 There was nothing raised in the declaration application that could lead to a question as to whether a permit was or was not required in relation to the circumstances of the matter. That no permit was required could have been clearly ascertained by reference to the planning scheme without resorting to an application for declaration under Section 149A PE Act seeking an interpretation of the planning scheme.

21 No underlying issues were referred to in the declaration application that would lead me to conclude there was a complex issue to be considered. Consideration of other legislation may have been necessary in relation to the facts and circumstances of the matter but there is nothing to suggest in the application that the matters referred to in any other legislation were in issue in relation to the interpretation of the planning scheme, and if the issues were related to other legislation then the Tribunal has no jurisdiction to consider them. I am unable to further conclude on the matters presented to me that the Applicant had an arguable case and consider that based on the relative strengths of the claims made by each of the parties that the application by the Applicant has no tenable basis either in fact or law.

22 The Applicant could be said to have sat on its hands, and in doing so the application has resulted in the Respondents having been put to considerable expense in providing a statement of grounds and preparing to defend what had already taken place. The application has been lodged at least 7 months after inquiries were made to the Responsible Authority, 10 months after the easement was compulsorily acquired and some 3 months after the completion of the works. The Respondent was required to answer the claims and to give serious attention to the preparation of a response. If there was any substance to the claims there could have been a commercial impact on the Respondent.[3]

23 It is considered that the Applicant has conducted the proceeding in a vexatious manner by waiting until the works have been completed and then lodging the application for declaration when the Applicant was aware of the circumstances that are the basis for its application some 7 months prior to the lodging of the application. If it was considered that there was a debatable issue as to whether the Respondent should have applied for a permit to undertake certain activities then the time for having this issue considered was prior to or at the very least close to the commencement of the works not 3 months after they had been completed.

24 For the above reasons the application for costs is allowed. The costs sought by the Respondent are said to include the internal time costs of its own staff incurred in investigating and preparing the submission to the Tribunal; instructing its corporate solicitor and counsel and preparing exhibits for the proposed hearing. The total amount of costs sought is $6965 being $4,865 for TXU staff and $2100 for Counsel. The Respondent submitted that if costs are to be awarded then they should be confined only to Counsel's fees.

25 I accept that the Respondent had already incurred the costs at the time of the notice of withdrawal dated 11 May 2005 and received by the Respondent on 18 May 2005 just prior to the date of hearing on 24 May 2005. I have perused the attached schedule of costs and fee slips and consider the Applicant should pay the Respondent the amount of $6000 being costs thrown away.