Ms Nicholson did not pursue this point further at the hearing and I did not seek an indication as to whether a costs application is actually being made. If there is any application for costs, it should be filed with the Tribunal and served on the Responsible Authority setting out the grounds, relevant legislation relied upon, and the quantum of costs sought. I observe that the Victorian Civil and Administrative Tribunal Act 1998 has provisions to award costs but the starting position is that each party should bear their own costs. The awarding of cost should not be seen as a punitive measure rather it must be considered having regard to the matters set out in the Victorian Civil and Administrative Tribunal Act 1998.

Victorian Civil and Administrative Tribunal|2014-10-08|Before: Ms J

For the reasons explained above, I will vary the Council's decision.

Ms Nicholson's submission concluded by commenting on a consistency in Tribunal decisions with respect to the rejection of standard section 173 conditions. The submission stated that:

it would be quite reasonable for the Tribunal to entertain the awarding of costs perhaps to provide some incentive to the Council to reconsider its preparedness to continue with a 'policy' which has been so consistently discounted.

Ms Nicholson did not pursue this point further at the hearing and I did not seek an indication as to whether a costs application is actually being made. If there is any application for costs, it should be filed with the Tribunal and served on the Responsible Authority setting out the grounds, relevant legislation relied upon, and the quantum of costs sought. I observe that the Victorian Civil and Administrative Tribunal Act 1998 has provisions to award costs but the starting position is that each party should bear their own costs. The awarding of cost should not be seen as a punitive measure rather it must be considered having regard to the matters set out in the Victorian Civil and Administrative Tribunal Act 1998.

[1] As the land is off-set from north, I have simplified directional references for ease.

[2] I have considered the submissions of all parties that appeared and all exhibits tendered. I do not recite or refer to all of the contents of these documents in these reasons.

[10] Because of the instructions given by the Council to its officers to implement the interim policy.

[13] No concerns were raised with respect to the Overlays that apply to the subject land.

[15] Page 4 of the report dated January 2014.

[18] At page 4, the Agricultural Land Management Plan describes the site as being grazing land but also notes that it has not been used for this purpose for the past seven years since being acquired by the current owner.

[19] Lyons v Mornington Peninsula SC [2011] VCAT 1761 at paragraph 56. This involved a 2ha lot with a proposal for a wholesale plant nursery and vineyard supported by a dwelling. The section 173 was required in that case.

[20] Taras Nominees Pty Ltd v Mornington Peninsula SC [2012] VCAT 1889 at paragraph 33.

[21] Cleine v Mornington Peninsula SC [2012] VCAT 1851 at paragraph 8e.

[22] Amendment VC103 deleted the decision guideline "whether the dwelling is reasonably required for the operation of agricultural activity conducted on the land". This decision guideline was not in the Green Wedge Zone.

[23] Southern Planning Consultants v Mornington Peninsula SC [2013] VCAT 1874 at paragraph 10.

Kavals v Mornington Peninsula SC [2014] VCAT 1253 (8 October 2014)

Southern Planning Consultants v Mornington Peninsula SC [2013] VCAT 1874.

Cleine v Mornington Peninsula SC [2012] VCAT 1851.

Kavals v Mornington Peninsula SC [2014] VCAT 1253

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Cases Cited (3)

Kavals v Mornington Peninsula SC [2014] VCAT 1253 (8 October 2014)