1. For the reasons provided further in this decision, we find that the permit has not been contravened in either of the ways alleged by the council. Section 119 of the PE Act provides that an enforcement order must specify the use or development which contravenes or has or will contravene the PE Act, planning scheme, permit condition or agreement. Given that no contravention has been established, an enforcement order cannot be made by the Tribunal, and the Fifth AEO must be refused.
   1. As further amended on 26 March 1976 and 30 March 1977.
   2. Kingston CC v Lantrak Developments Pty Ltd (Corrected) [2020] VCAT 622.
   3. As set out in the Supreme Court decision, Lantrak Developments Pty Ltd v Kingston City Council [2021] VSC 708 at [10-11].
   4. Given that the payment by the council to the respondent of the costs thrown away was agreed as between the parties, the Tribunal requested that the parties craft a form of consent orders to reflect the agreed position and clarify how the costs would be determined. The parties did not provide the Tribunal with the requested orders or any form of agreement. A practice day hearing has been listed to consider how these costs will be determined.
   5. 6 Kingston CC v Lantrak Developments Pty Ltd [2023] VCAT 633.
2. The respondent is seeking costs in this matter incurred between 2019 and 2025, described as Tranche 1, Tranche 2 and Tranche 3, as well as costs incurred in preparing this application for costs and any further costs arising from engaging a costs consultant.
3. The respondent has not itemised its costs by reference to each tranche but has submitted that the total quantum of costs from 13 May 2019 until the end of December 2024 is $732,236.55 (including GST).
4. The council submitted that these costs should be particularised, as follows:[2]

1. If the Tribunal were minded to award any costs, it should first require Lantrak to properly identify and relevantly particularise the amount(s) of costs it seeks in this proceeding - with any further costs it incurs to disentangle fees that have been intermingled between separate proceedings to be at its own expense.
2. The respondent's summary of its position is reproduced below:[3]

4. In summary, Lantrak's position is as follows:

1. Lantrak seeks its costs of defending the Enforcement Proceeding (other than the Costs Thrown Away);
2. Lantrak seeks those costs on the basis that it would be fair to award them. More specifically, having regard to the matters set out in section 109(3) of the VCAT Act, Lantrak contends that:
   1. the Council's conduct throughout the Enforcement Proceeding prolonged unreasonably the time taken to complete the Enforcement Proceeding;
   2. the contentions put by the Council throughout the Enforcement Proceeding were largely devoid of merit and were bound to fail, and in some respects were not supported by evidence;
   3. the Enforcement Proceeding was exceedingly complex, not least because of the nature of the allegations put by the Council at various points of the Enforcement Proceeding; and
   4. the nature of the Enforcement Proceeding - including the consequences that would have been inflicted upon Lantrak if it were not successful - demonstrate that, in the circumstances of Lantrak succeeding on every point, Lantrak should not be left to bear its own costs;

1. Lantrak seeks that its costs be awarded on a standard basis by reference to the Supreme Court Scale. Lantrak does not seek an order that its costs be awarded on an indemnity basis; and

1. Lantrak has incurred costs in excess of $730,000 in defending the Enforcement Proceeding. It contends that its costs - if assessed on the standard basis by reference to the Supreme Court Scale - total $197,930.28 (plus GST)1, plus counsels' costs and costs associated with witnesses to the extent that such costs have not already been ordered to be paid by the Council. The invoices relied upon in support of that sum are attached to these submissions.
   1. This figure includes both the costs thrown away (already awarded) and sought in these submissions.

1. While this summary, and much of the content of the submissions, seeks to provide overall reasoning as to why the application should be granted, we consider that each tranche should be reviewed separately. Both sets of submissions have regard to the council's role as a responsible authority, which we also consider.
2. Below we set out the basis for the power to award costs followed by the consideration of each tranche. We note that the applicant for costs in this decision is the respondent in the application for enforcement order, in which the council is the applicant. We have continued to refer to the applicant for costs as the respondent in this decision, to avoid confusion.

1. The starting point for considering an application for an award of costs is section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), 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. Section 109(1) of the VCAT Act contains the presumption that each party will bear its own costs. However, section 109(2) provides that the Tribunal may make an order that a party pay all or a specified part of the costs of another party in a proceeding, and section 109(3) sets out the matters to which the Tribunal is to have regard in making that decision.

1. We commence with review of Tranche 3, being the tranche of this application heard and determined by this division of the Tribunal. This division of the Tribunal was not involved in this proceeding until the commencement of the final hearing on 16 September 2024.
2. Tranche 3 is described by the respondent as follows:[4]
   1. Tranche 3 captures the costs that Lantrak has incurred in defending the Enforcement Proceeding after the Fourth Application was filed (except for the Costs Thrown Away).
   2. As noted above, the Fourth Application was filed on 19 February 2024. From that date, Lantrak began preparing for the substantive hearing in the Enforcement Proceeding. The hearing of the Enforcement Proceeding commenced on 16 September 2024.
   3. On the afternoon of the first day of the hearing, the Council foreshadowed an amendment to the Fourth Application. On the evening of 16 September 2024, the Council filed its Fifth Amended Application for an Enforcement Order (Fifth Application).
   4. On the morning of 17 September 2024, the Council sought leave to substitute the Fifth Application as the application upon which the Enforcement Proceeding would be determined. Lantrak indicated that it did not oppose the substitution of the Fifth Application on the basis that two conditions were satisfied (Substitution Conditions). On the morning of 17 September 2024, the Tribunal substituted the Fifth Application as the application upon which the Enforcement Proceeding would be determined, with explicit reference to Lantrak's Substitution Conditions.

1. Following the substitution of the Fifth Application, the hearing of the Enforcement Proceeding continued. The Tribunal's final orders in the Enforcement Proceeding were issued on 17 October 2024. The Enforcement Proceeding was resolved wholly in Lantrak's favour.
2. A dispute then arose in relation to the scope of the Substitution Conditions, which was resolved in Lantrak's favour by order dated 12 December 2024.
3. The above chronology makes it clear that Council has pursued Lantrak in an unrelenting manner, adopting a course of conduct that risked putting Lantrak out of business. It had five bites of the cherry, amending its position up to and during the final hearing of this matter. Ultimately, the Council did not succeed on any substantive point.6
   1. The Original Enforcement Decision was in the Council's favour but that decision was overturned on appeal.
4. The submissions of the respondent with respect to an award of costs with respect to Tranche 3 are reproduced below.
   1. Lantrak submits that it is appropriate and fair to award costs in its favour, having regard to the matters set out in section 109(3) of the VCAT Act. Lantrak does not make this submission only on the basis that it was ultimately successful, although the comprehensively successful defence of the Enforcement Proceeding should, in Lantrak's submission, carry significant weight having regard to the nature of the proceeding for the purpose of section 109(3)(d) of the VCAT Act. In addition to the outcome, Lantrak invites the Tribunal to consider carefully the manner in which the respective parties ran their cases in relation to the Fourth Application and beyond.
   2. Lantrak filed a detailed statement of grounds on 28 March 2024. A review of that document reveals the lengths to which Lantrak's legal team went to respond to the Council's case with precision and fairness, to allow the Council and Tribunal to understand precisely how the Fourth Application would be defended. The Council was therefore on notice of the precise arguments that Lantrak would make in relation to the Fourth Application.
   3. In that circumstance it is noteworthy that the Council's written submissions failed to address Lantrak's grounds in any coherent, logical or comprehensive manner. The Tribunal is invited to revisit the Council's submissions and observe the absence of response to much of Lantrak's carefully articulated position. The Council's conduct in this regard put Lantrak at a disadvantage for the purpose of section 109(3)(a) of the VCAT Act and demonstrated that, in relative terms, its position was unmeritorious for the purpose of section 109(3)(c) of the VCAT Act.
   4. A complexity arises in that the Tribunal has already made an order that Council pays the Costs Thrown Away. Lantrak would have to spend perhaps considerable time and money to differentiate between:

1. the remaining Tranche 3 costs relating to those aspects of the Fourth Application that were replicated in the Fifth Application (Contended Breach Costs).

1. Lantrak contends that it should not be forced to perform that work. That is because, in Lantrak's submission:
   1. the Costs Thrown Away have been ordered by the Tribunal to be assessed on the Supreme Court Scale; and
   2. the Council should be ordered to pay the Contended Breach Costs on the Supreme Court Scale.
2. Lantrak relies on the principles set out above in relation to Tranche 1. Lantrak submits that those principles apply with even greater strength to the Contended Breach Costs. Not only were the matters in dispute complex, but it was clear that despite several attempts to recast its application, the Council would continue to assert a "negative" - that documents were not filed decades ago with the Council's predecessor body, by some entity other than Lantrak.

83. The Council's:

a. conduct caused Lantrak disadvantage (section 109(3)(a));

1. case, particularly when compared to Lantrak's case, was notably weak (verging on having no tenable basis in fact or law) (section 109(3)(c));
2. case was of a nature and complexity that demanded a robust response from Lantrak (section 109(3)(d)); and
3. approach to the Enforcement Proceeding was generally of a nature that should be regarded as inappropriate in a circumstance where Lantrak was fighting for its continued existence (section 109(3)(e)).

1. Lantrak was required to run a case grounded in complex legal arguments in order to respond to the Council's allegations of breach. The matters raised were highly complex and unusual. For instance:
   1. the Council's case called for inferences to be drawn regarding the practices and conduct of historical government entities such as the Melbourne and Metropolitan Board of Works (MMBW), in circumstances where Council called evidence that bore no relevance at all to that particular authority;
   2. the Council relied upon documents that were not obtained from a successor body to the MMBW, but were obtained from an extractive industry body pursuant to a Tribunal order, which itself called only for extractive industry documents and not planning documents;
   3. Lantrak was required to undertake a highly detailed and complex analysis to respond to the Council's contentions as to the proper construction of Condition 19 of the planning permit; and
   4. the Council's case required inferences to be drawn regarding the conduct of Lantrak's predecessors 48 years prior to the hearing, in circumstances where neither the Council nor its predecessors had seen fit to level contentions of that nature throughout that period of time.
2. Further, this is not a circumstance where Lantrak "caught the Council by surprise" by running a clever technical argument at the hearing. The Council was on notice of Lantrak's defence from 28 March 2024. Upon receipt of Lantrak's defence, the Council had the opportunity to abandon contentions that were bound to fail, or even clarify matters with a view to assisting the Tribunal or limiting Lantrak's costs. But the Council did not seek to amend its Fourth Application before the commencement of the hearing. The Council's conduct in this regard is relevant for the purpose of section 109(3)(a) of the VCAT Act and supports an award of costs in Lantrak's favour.

17 The council's first reply submissions are more generalised in response to the respondent's initial submissions, but include the following, which can be applied to Tranche 1:[5]

1. Lantrak's submissions are lengthy, but its basis for seeking costs is relatively confined. Broadly stated, it says it should be awarded costs because this was an enforcement application, because it was complex, because of the relative strength of the parties' claims, and because of procedural complaints.

1. In this case, the complexity of the proceeding was a complexity inherent in the terms and operation of the historic permit under which Lantrak continues to conduct its business.
2. It is to the benefit of both parties, but especially to Lantrak, that a definitive statement has now been made by the Tribunal (and the Court) as to how that permit operates.20 It has now been definitively established that conditions which appeared on their face, and were clearly intended, to regulate the reclamation / rehabilitation of the subject land, instead have no practical effect for Lantrak's purposes and cannot be enforced against it.

The relative strength of claims, and whether claims were made with no tenable basis in fact or law

1. Conditions 1, 18 and 19 of the permit are clearly directed at regulating, and providing the Council a means to enforce, the reclamation / rehabilitation of the subject land.
2. But through an unhappy combination of circumstances involving the effluxion of time, loss of records,21 and the effect of multiple rounds of repeal and reenactment of the legislation regulating extractive industries on the operation of different conditions of the permit (by reason of the unfortunate specific drafting of the conditions), 22 those conditions have been effectively rendered a 'dead letter'.
3. That was by no means self-evident from the outset.
4. Indeed, it was not disputed in the first Tribunal hearing that the permit did require Lantrak to comply with the Rehabilitation Plan, and the parties' submissions and evidence regarding compliance with the permit were directed at whether the evidence proved noncompliance. The Tribunal held that it did, a finding Lantrak has never challenged.23

1. The Court's ruling upholding Lantrak's argument on appeal that condition 1 did not 'pick up' the Rehabilitation Plan but, rather, picked up a 50-year old historic approval document, then opened up the complicated forensic dispute about the existence, provenance, meaning and significance of historic documents which characterised the second Tribunal hearing and decision - to ascertain what exactly is picked up by the relevant permit conditions, if not the current statutory approvals.
   1. See, e.g., Renex Op Co Pty Ltd v Environment Protection Authority (Costs) [2020] VCAT 938 at [60]- [61].

21 Second Tribunal decision at [34]-[47] and [105]-[120].

1. Supreme Court decision; see also Kingston CC v Lantrak Developments Pty Ltd [2023] VCAT 633 at [79]- [87] and [97].
2. First Tribunal decision at [91]-[119]; and see Lantrak's description of the key issues at [9]. 24 First Tribunal decision at [55]-[90]. 25 Lantrak costs submissions at [50].

1. The strength of claims is also a matter which must be considered prospectively, not retrospectively after the Tribunal has made its decision.29
2. That is especially pertinent where, as in this case, the outcome turned in substantial part on an appeal on a legal argument which no-one had anticipated in the first Tribunal hearing, which then redirected the ultimate outcome to turn on the analysis of a collection of ambiguous historic documents - and, no less significantly, on confirmation of the absence of documents - which did not even emerge until well into the proceeding, following extensive searches and enquiries.
   1. Cooper v Boroondara CC [2001] VCAT 2429 at [31].

1. As to Lantrak's further miscellaneous procedural complaints, to the extent not already answered earlier in these submissions:

1. Lantrak's statement of grounds of 28 March 2024 was lengthy, but it contained none of the detailed particulars of argument later set out in its written submissions. The document was - quite properly - just a statement of grounds. Once the Council had the benefit of fulsome written submissions to respond to, it did, at the appropriate time, by its oral submissions in the hearing.44

44 44 Cf. Lantrak submissions at [78]-[79] and [85].

1. The parties each filed reply submissions responding to the matters raised in each of the initial submissions. We have not reproduced all of the written submissions here but have considered the content of all of the submissions.

1. This application was filed with the Tribunal in 2019. The council had genuine concerns about the rehabilitation of the subject land. The council's role includes to administer and enforce the planning scheme.
2. The council submitted that the pressure of costs consequences could be a significant impediment to it carrying out that role, and acknowledged that, in bringing an enforcement application, it bears the burden of proof:[6]
   1. A council bringing an enforcement application bears a heavy burden of proof, about matters which are almost always within the particular knowledge and control of the party resisting enforcement, and in which reliance on sound inference will often be unavoidable. It may often fail on a complex or unexpected point of law. The decision whether to pursue an enforcement application is already one a council must weigh carefully, with prudent regard to cost and risk. Such applications are inherently difficult, and they often fail.
   2. The integrity of the planning system depends on councils fearlessly discharging their duty to enforce it. If it were to become commonplace for councils to be saddled with crushing costs orders for bringing an unsuccessful enforcement application, that would unavoidably become a weighty disincentive to them seeking to proactively enforce permits and the planning scheme in any but the simplest and clearest of cases.
   3. Concerningly, it is also a disincentive which carries more weight the more that is at stake, and the more resources which can or may be expected to be deployed by the party against whom the enforcement application is made.
   4. There is no general principle - much less a 'paramount' one - that whenever a council falls short of the high evidentiary burden to establish a breach, or is met with a successful legal argument, it is obliged to indemnify the landowner for their legal costs.10 To the contrary. The legislative scheme deliberately contemplates that planning proceedings in the Tribunal, including enforcement, are to be accessible and, to that end, self-funded by each party. That is the 'ordinary' rule - for it not to apply, a proceeding must be marked by factors which take it 'out of the ordinary'.

1. The council also made the following submissions about the consequence of ordering costs against a council, creating a burden on the general community:

The nature of the proceeding and the role of the Council

1. While it is true that costs are more often awarded in enforcement proceedings, fundamentally different principles apply where costs are sought against a responsible authority seeking to discharge, in the public interest, its statutory duty to enforce the planning scheme, than in the more common case where costs are sought against a respondent who is in breach of its legal obligations.
2. In the latter case, there is a clear unfairness if 'the costs involved in remedying the misdeeds of a particular ratepayer or ratepayers create a burden to the general community of ratepayers as a whole'.1
   1. Melton SC v Mystical Diamonds Pty Ltd [2007] VCAT 1646 at [5]; see also Great Avenue Pty Ltd v Mitchell SC [2009] VCAT 1140 at [8].
3. Both of these submissions are correct. It is also the case that the respondent, in responding to the application, and amended versions of the application brought against it, was required to expend significant resources in defending the application, and each separate iteration of it. It has the right to seek costs for reimbursement of that expenditure pursuant to section 109 of the VCAT Act.
4. Particularly relevant to this tranche of the proceeding is the time period in which the council had to consider and review the statement of grounds filed by the respondent in March 2024 and to obtain the evidence required to meet the evidentiary burden on the council.
5. The position of the respondent as to the proper reading of condition 19 and documents endorsed under the permit, subsequently put at the hearing and ultimately accepted by the Tribunal, was clear as early as March 2024.
6. The council, had it not already considered the matters through this lens, had six months in which to determine if it could respond to those submissions or obtain evidence that the relevant documents were endorsed under the permit or were the documents placed before the responsible authority.
7. If it could not adequately respond to the contentions raised, it was incumbent upon the council, prior to the September 2024 hearing, to withdraw or further amend the application accordingly. The questions raised by the Tribunal on the first day of hearing ought not to have been new or surprising to the council. In large part, they simply reflected the March 2024 grounds and the pre-filed submissions of the respondent.
8. As for the 'proposals for progressive reclamation' outlined in conditions 19(a) and (c), the statement of grounds also included detailed submissions as to why the documents relied on by the council could not be considered proposals of that nature and that, even if they could, the relief could only involve reclamation in accordance with those proposals, which is not what was sought by the council in its application.
9. From the outset, particularly considering that the permit was issued in 1975, there were several challenges to the council in establishing a contravention of the permit. This was set out in the Final Tribunal Decision as follows:
   1. In order to establish the contravention of condition 19(b) alleged, that the land has not been reclaimed in accordance with the detailed proposals prepared under conditions 19(a) and (c), the council must establish that:
      1. documents A, B and C were placed before the responsible authority;
      2. that they were placed before the responsible authority within six months of the issue of the extractive industries licence;
      3. documents A, B and C are detailed proposals for the progressive reclamation of the land; and
      4. documents A, B and C include detailed proposals setting out the time at which each stage of the reclamation work shall be completed.
   2. Each of these matters must be established for the Tribunal to find that there has been a contravention of condition 19(b). For the reasons provided below, we find that none of these matters have been established.

1. The council does have a responsibility to administer and enforce the planning scheme. It is understandable that the council identified an issue and sought to resolve it by the means open to it. This is discussed more with respect to Tranche 1. However, the council also must consider, in each case, whether the objective it seeks is able to be achieved through the planning scheme. In this case, after five years, it was finally determined that the council does not have the ability to achieve rehabilitation of the subject land through enforcement of condition 1 or 19. The application under condition 18 was not ultimately pursued.
2. We refer to the council's submissions at paragraphs 33 to 35, reproduced earlier. These submissions reference what the council says is the clear direction of conditions 1, 18 and 19, and the inability to achieve them through -

...an unhappy combination of circumstances involving the effluxion of time, loss of records, and the effect of multiple rounds of repeal and reenactment of the legislation regulating extractive industries on the operation of different conditions of the permit (by reason of the unfortunate specific drafting of the conditions)'.

The council submits that this 'was by no means self-evident from the outset'.

1. That is correct. However, by the fourth amended application, and then the fifth amendment, it was incumbent upon the council to carefully consider its prospects of successfully meeting the 'high evidentiary burden to establish a breach'[7].
2. The respondent has sought costs on the basis of section 109(3)(a) - causing disadvantage; (c) - the relative strengths of the parties' claims; (d) - the nature and complexity of the proceeding; and (e) - any other matter, described as the council's approach being inappropriate in a circumstance where Lantrak was fighting for its continued existence.
3. We do not agree with an application on the basis of section 109(3)(a) as this subsection includes examples of ways in which a party conducts a proceeding in a way that unnecessarily disadvantages another party. We do not consider that the council displayed any of that conduct in Tranche 3 of this proceeding.
4. We also do not wish to engage in a debate as to whether or not Lantrak 'was fighting for its continued existence'. However, we do accept that this application was complex and required a fulsome and robust response by Lantrak, to avoid potentially significant consequences to its operation of the subject land, including its Extractive Industries Licence.

1. We consider most relevant in this Tranche is the relative strengths of the claims of the parties. As already noted several times, it is the council's responsibility to establish a contravention in an application for enforcement order. This is a matter which is essential for a council to establish correctly at the outset of a proceeding. The Tribunal accepts that this is not always achieved and that, at times, more or different information comes to light which allows a different lens to be applied at a later point.
2. In this matter, the council had several opportunities to frame both the contravention and proposed orders. The contravention alleged was always a contravention of permit conditions. The drafting of those conditions occurred in 1975 and the council application had to grapple with the 'unfortunate specific drafting' from the outset.
3. The fifth amended application for enforcement order did not seek to amend the contraventions alleged in the fourth amended application. However, by the commencement of the hearing in September 2024, despite having received the statement of grounds of the respondent in March 2024, the council did not have any evidence that documents A, B and C were placed before the responsible authority or that they were placed before the responsible authority within six months of the issue of the extractive industries licence.
4. Even if the council had been successful in its submissions that those documents were detailed proposals for the progressive reclamation of the land and included the details required by conditions 19(a) and (c), the contravention alleged could never have been established without evidence of the first two matters.
5. It was not sufficient to assert, as the council did (reproduced below), that these documents were the relevant documents because no other documents had been found and, in the alternative, that no plans were placed before the responsible authority in the relevant time period:[8]
   1. The Applicant relies on the statement of Peter Bean made on 1 August 2024. The Respondent does not contest that evidence, but rather seeks to draw the distinction questioning whether the:

a) Approved Working Proposal;

b) Approved Working Plan 40482-1B; and

c) Approved Working Plan 40482-2B;

were placed before the Melbourne Metropolitan Board of Works in 1975 for the purpose of, and pursuant to, condition 19 of the Permit.

1. The thorough and diligent searches carried out by the Applicant, and assisted by the Department, identify the documents above, which are contemporaneous and are the only documents identified in a period of nearly half a century.
2. There is no proper basis to find that the:

a) Approved Working Proposal;

b) Approved Working Plan 40482-1B; and

c) Approved Working Plan 40482-2B;

are not the plans placed before the Melbourne Metropolitan Board of Works in 1975 for the purpose of condition 19(a). The Tribunal may be satisfied that the burden of proof is discharged.

1. The contention that the Applicant has failed to call a witness of the Melbourne Metropolitan Board of Works to give evidence of submission of plans in 1975 should be given little weight noting the passage of time, nearly half a century, and the impossibility of identifying let alone locating any such delegate, and in any event, their recollection of matters so far in the past would be of little utility. The surest evidence is the record of the documents.
2. The Applicant refutes the Respondent's contention that the alleged contravention of condition 19(a) is serious and relies on the matter detailed at paragraphs 10 to 13 of this reply.
3. The Tribunal should not be persuaded by the Respondent's contention as failure to adduce a witness able to give evidence of matters in 1975, and to then on the other hand be satisfied of the contentions that it is inherently unlikely that compliance within conditions 19(a) and (c) was not achieved, and consequently that compliance was achieved.

1. The Applicant submits that if the Tribunal is not satisfied that the Approved Working Proposal, Approved Working Plan 40482-1B and Approved Working Plan 40482-2B, are the plans required by condition 19, then no plans have been placed before the Applicant pursuant to condition 19(a). The burden to do so now is that of the Respondent who takes the benefit of the Permit and equally the burden of compliance with it. Condition 19(a) does not become inoperative simply because the 6 month deadline has passed.

1. In a proceeding of this nature, with the inherent complexity involved in obtaining evidence concerning a permit issued in 1975, and the significant impact on the respondent if the application is successful, the council ought to have a strong case to proceed.
2. We do not consider that, as at September 2024, the council was in that position. Having regard to the elements of section 109(3) of the VCAT Act, we find that, with respect to Tranche 3, this is a proceeding where it is fair to award costs to be paid to the respondent.
3. We agree that a council should be fearless in discharging its duty to enforce the planning scheme. However, as noted by the council in its submissions, the decision to pursue an enforcement application is one a council must weigh carefully, with prudent regard to cost and risk.
4. We accept that the council, in its actions prior to March 2024, did not act unacceptably in discharging that duty. However, following the statement of grounds filed in response to the fourth amended application for enforcement order, it would have been prudent for the council to once again undertake that cost and risk assessment and consider withdrawing its application.
5. We consider that the costs incurred by the respondent following the filing of the statement of grounds on 28 March 2024 ought to be payable by the council to the respondent. These costs include all work undertaken after the statement of grounds was filed until the hearing, including preparation and attendance at the hearing, and the attendances required following the hearing to clarify the disputes concerning the costs thrown away.
6. However, the order does not include the costs of preparing this application for costs. Given that the application for costs covered the entire period from 2019 to the 2024, we think it is fair and appropriate that each party bears their own costs of preparation of costs submissions and replies.
7. Given that it was agreed between the parties that the costs thrown away by the fifth amended application for enforcement order are to be assessed on the Supreme Court Scale, we consider it appropriate for the remainder of the tranche 3 costs to be assessed on the Supreme Court scale.

1. Tranche 1 is described by the respondent as follows:[9]
   1. Tranche 1 captures the costs Lantrak incurred in defending the original Enforcement Proceeding (and include the costs Lantrak incurred in obtaining a stay of the Tribunal's original decision pending the appeal to the Supreme Court (Appeal)).
   2. The Enforcement Proceeding was initiated by Council on about 13 May 2019. The Tribunal's decision in Kingston CC v Lantrak Developments Pty Ltd (Corrected) [2020] VCAT 622 (Original Enforcement Decision) was issued on 25 June 2020.
   3. Two aspects of the Original Enforcement Decision are noteworthy.
      1. First, the Council alleged that Lantrak was using the land for a purpose that was in contravention of the Kingston Planning Scheme.2 The Council's position was contrary to long-established authority relating to the characterisation of land uses. Lantrak successfully defended the Council's allegations in this regard.3
      2. Secondly, the Council originally contended that Lantrak was in breach of condition 18 of the permit. By the time of the hearing in 2020, Council also contended that Lantrak was in breach of condition 19 of the permit. It was only in the course of the hearing, and by virtue of an amended application that the Council filed after the conclusion of the hearing, that Council contended a breach of condition 1 of the permit. The Tribunal only found in favour of the Council on the question of condition 1.
   4. Following the Tribunal's Original Enforcement Decision, Lantrak filed the Appeal.
   5. However, Lantrak incurred costs relating to the Enforcement Proceeding insofar as Lantrak was required to seek a stay of the Tribunal's orders in the Original Enforcement Decision. The enforcement order arising from the Original Enforcement Decision would have required Lantrak to prepare a complex and costly document in the nature of a "Land Restoration Plan" (LRP) by 24 December 2020 to the satisfaction of the Council, and further, it required Lantrak to comply with the LRP by various dates, but ultimately no later than 25 June 2025.
   6. In the Appeal, Lantrak contended that the Original Enforcement Decision was infected by error and, as such, that it should not be required to prepare the LRP in accordance with the orders unless the Appeal was dismissed. By letter dated 4 September 2020, Lantrak provided the Council with an opportunity to agree to orders regarding a stay, but Council rejected that opportunity. As a result, Lantrak incurred costs applying for the stay of the orders, preparing for the hearing relating to the stay, and appearing at the stay hearing itself. Lantrak was successful seeking a stay of the orders pending the Appeal.4 That stay order was made on 21 October 2020.
   7. Thus, the costs that fall within Tranche 1 span the period 13 May 2019 to 21 October 2020. For the avoidance of doubt, Lantrak does not seek an order for costs in relation to the Appeal itself, as those costs were the subject of a separate costs order made by the Court.
   8. The Court issued its final orders in the Appeal on 9 November 2021, including an order that the Enforcement Proceeding was to be remitted to the Tribunal.

2 Original Enforcement Decision, [56].

3 Original Enforcement Decision, [90].

1. Kingston CC v Lantrak Developments Pty Ltd [2020] VCAT 1181.
2. This division of the Tribunal was not involved in what has been described as the Original Enforcement Decision by the respondent, or in Kingston CC v Lantrak Developments Pty Ltd [2020] VCAT 1181, which we will term the Stay Decision.
3. As these were both decisions made in application P865/2019, they can be considered in this comprehensive application for costs. We have reviewed the relevant Tribunal decisions and all the material provided by the parties with respect to this application for costs.
4. We consider the Original Enforcement Decision and the Stay Decision separately.

1. As already stated, the Original Enforcement Decision was determined by Senior Member Code ('SM Code'). In the introduction to that decision, SM Code explained the basis for the application made by the council and the high evidentiary burden borne by the council to establish the contravention:
   1. The Kingston City Council (the Council) is the responsible authority for the Kingston Planning Scheme (the Scheme) that applies to the subject land. It has investigated the stockpiles. The Council now considers Lantrak is failing to rehabilitate the sand quarry as it is required to do so and the failure constitutes a contravention of both the Scheme and the permit under which quarrying was carried out.
   2. The Council has applied to the Tribunal for an enforcement order to require Lantrak to remedy the claimed contravention.
   3. The Council bears the evidential burden of proof of any contravention on the balance of probabilities. The burden rises if the gravity of the facts to be proven are greater. The burden is elevated in this proceeding because proving the facts might lead to the imposition of the remedies sought by the Council. Those remedies have significant commercial consequences.
2. There were two key issues in that proceeding, being whether the subject land was used for any purpose other than a permitted purposes and whether the current landform is a breach of the permit or the rehabilitation plan, as defined in the Original Enforcement Decision.
3. The Tribunal found that the land was not used for any purpose other than a permitted purpose and that the landform was in breach of the rehabilitation plan.
4. In considering the use of the land, the Tribunal had the benefit of evidence from both parties and submissions concerning characterisation of uses and ancillary uses. The Tribunal found there was insufficient evidence to establish that any of the alternative uses alleged could be characterised as other than ancillary to the real and substantial purpose of the permitted use.
5. With respect to the rehabilitation plan, we reproduce several elements of the decision that refer to that plan, below, and note that the Tribunal also had the benefit of evidence called on behalf of each party with respect to the status of the subject land and materials within it.

STATUS OF REHABILITATION PLAN UNDER THE PERMIT

1. The Rehabilitation Plan does not expressly form part of the Permit. I have already referred condition 1 of the Permit and the requirement that the use operate in accordance with the 'approved working plan'.
2. The Rehabilitation Plan is part of the approved work plan. Accordingly, compliance with the Rehabilitation Plan is an obligation under condition 1 of the Permit.
3. I have also already set out conditions 18 & 19 of the Permit which also relate to rehabilitation requirements. The Council ultimately does not rely on any alleged contravention of those conditions, so it is unnecessary to further consider them.

...

DEPARTMENT OF JOBS, PRECINCTS AND REGIONS

1. The Department is an interested person in this proceeding. In response to an invitation from the Tribunal, the Department filed a written submission dated 6 February 2020. The Department agrees that the approved work plan includes the Rehabilitation Plan.

1. I agree with Mr Mackenzie that the Rehabilitation Plan lacks detail and its provisions are vague. The cross sections are surprisingly imprecise. It does not show pre-settlement fill levels. It does not define or specify in sufficient detail what is permitted surcharging. Any impact on levels arising from surcharging is not shown on the RP drawing or RP cross sections. There is insufficient detail on how slimes will be managed and what impact this might have on rehabilitating the subject land.
2. This lack of detail makes it more difficult to determine if there is any noncompliance.
3. The parties agree that a rehabilitation plan approved in 2020 for the subject land (or any other extractive industry site) would be very different.

1. In conclusion, I find Lantrak is in contravention of condition 1 of the Permit because the use has not been conducted in accordance with the approved working plan in the licence which, in turn, requires work to be carried out in the Rehabilitation Plan.

1. An enforcement order needs to be made to ensure the Rehabilitation Plan is now carried through to completion in accordance with the Permit under a clear and enforceable timetable.

1. Non-compliance with the Rehabilitation Plan is a contravention of condition 1 of the Permit.
2. Although it has deficiencies from a planning perspective, the Rehabilitation Plan requires the voids in the four pits to be rehabilitated with clean fill to specified backfill surface levels by late 2017.
3. The evidentiary burden is on the Council to prove the contraventions. On the evidence and submissions in this proceeding, it has discharged that onus in relation to one of the two alleged contraventions. The height of stockpiles in each of the four pits exceeds what is permitted under the Rehabilitation Plan and is a contravention of the Permit. The use of the subject land for an unauthorised use separate to that of extractive industry is not proven.
4. I will make an enforcement order requiring the preparation of a land restoration plan that provides for a lowering of the height of the noncompliant stockpiles and completion of a staged rehabilitation of the subject land within 5 years.
5. Finally, as the Permit and the Rehabilitation Plan have various deficiencies, in part a result of the passage of time, the Council and Lantrak are encouraged to consider whether the Permit should be amended and updated. I also encourage Lantrak and the Department to consider whether to update the Rehabilitation Plan.

1. The Tribunal accepted that the council was attempting to carry out its obligations to ensure compliance with the permit and the Kingston Planning Scheme ('Scheme').
2. The Tribunal, in its reasoning, established that the rehabilitation plan is part of the approved work plan and proceeded to consider whether condition 1 of the permit is contravened, on that basis. The Tribunal, in this decision, stated that the council does not rely on contraventions of conditions 18 and 19 of the permit and did not consider those conditions.
3. The Supreme Court ultimately disagreed with the premise of the Tribunal decision and found that condition 1 does not impose an obligation for Lantrak to comply with the rehabilitation plan and, therefore, an enforcement order could not be made in those terms.
4. The court also explained that the Tribunal had erroneously concluded that the council had resiled from relying upon conditions 18 and 19 of the permit and that, therefore, the proceeding had to be remitted to the Tribunal for further hearing as to the question of compliance with conditions 18 and 19.
5. The respondent made the following submissions about why costs of the Original Enforcement Decision should be ordered against the council on a standard basis, as follows:[10]
   1. The Council's case relied on a meticulous cataloguing of activities undertaken on the land, rather than considering the real and substantial purpose of Lantrak's use. Council's allegation was contrary to established authority and therefore bound to fail, which is relevant for the purpose of section 109(3)(c) of the VCAT Act. The Tribunal found against the Council. Lantrak was wholly successful in this regard.
6. Turning then to the Council's allegations about a breach of permit conditions, Lantrak prepared for the hearing based on the Council's stated case relating to conditions 18 and 19 of the permit. It was only in the course of the hearing that Council raised the issue of condition 1, an approach that ultimately led the Tribunal into error. The Council's conduct unnecessarily disadvantaged Lantrak for the purpose of section 109(3)(a) of the VCAT Act.
7. It was Council's conduct in pursuing that change of argument that set in motion the course of events including the Appeal and the several iterations of enforcement application that followed. Thus, Council was responsible for prolonging unreasonably the time taken to complete the proceeding within the meaning of section 109(3)(b) of the VCAT Act.
8. Again it is not surprising that Lantrak prepared to resist the Council's allegations about conditions 18 and 19, and then did in fact resist Council's allegations about condition 1, with vigour. The form of enforcement order sought by the Council required the rehabilitation of the land by June 2025, which Lantrak contended was either physically impossible, or so commercially unrealistic that it could not sensibly be pursued. The Lantrak group of businesses was at risk if the Council succeeded in its contentions about a breach of the permit. The inherent nature of the proceeding is a relevant and persuasive factor for the purpose of section 109(3)(d) of the VCAT Act. The consequences to Lantrak if it did not resist the proceeding are a factor that is relevant to the Tribunal's consideration of fairness for the purpose of section 109(3)(e) of the VCAT Act.

1. As noted with respect to tranche 3, the council's submissions are more generalised in response to the respondent's initial submissions. The relevant elements that respond to tranche 1 include paragraphs 26, and paragraphs 31 to 40, which have already been included in this decision at paragraph 17.

1. The respondent has sought costs on the basis of section 109(3)(a) - conduct unnecessarily disadvantaging Lantrak; (c) - the council case concerning the real and substantial purpose of the use being contrary to established authority and bound to fail; (b) - prolonging unreasonably the time taken to complete the proceeding due to a change in focus from conditions 18 and 19 to condition 1 of the permit; (d) - the inherent nature and complexity of the proceeding; and (e) - any other matter, described as the consequences to Lantrak if it did not resist the proceeding.
2. As indicated earlier, we agree with the council's submissions that a council should be fearless in discharging its duty to enforce the planning scheme. We accept that the council, in initiating this application for enforcement order, was attempting to resolve what it considered to be a failure to rehabilitate the subject land in accordance with the permit. It does occur, from time to time, that an applicant for enforcement order has cause to amend their initial application to further clarify or broaden its alleged contraventions and/or proposed orders. Often this occurs as a result of witness statements and evidence filed in advance of a hearing.
3. The council submitted that:[11]

...Lantrak did not oppose the Council's late reliance on condition 1, nor seek to reopen the hearing for further evidence and/or submissions, nor argue on appeal that it had been denied procedural fairness. It made no difference to either party's conduct of the case in respect of what they then considered to be the relevant issues.

1. We accept that the council, in pursuing the alleged breach of condition 1, was not intending to unnecessarily disadvantage the respondent or unreasonably prolong the time taken to complete the proceeding. The council was pursuing a contravention of the permit that it had identified, and which was accepted by the Tribunal at the time to be a matter worthy of consideration.
2. It is true that the respondent was required to respond to the application to protect its ongoing use of the land. This, in itself, is insufficient to displace the presumption that each party bears their own costs in a proceeding.
3. In terms of the characterisation of land question, it is our reading of that decision, consistent with the council's submissions, that the Tribunal's reasons indicate that its decision was based on as assessment of the evidence provided to ascertain the use.
4. The Tribunal found there was insufficient evidence to establish that any of the alternative uses alleged could be characterised as other than ancillary to the real and substantial purpose of the permitted use. This is contrasted with the submission of the respondent that the argument was 'bound to fail' as per section 109(3)(c) of the VCAT Act.
5. In these circumstances, we do not consider it fair to award costs against the council with respect to the Original Enforcement Decision.

1. The parties made the following submissions concerning the Stay Decision.
2. The respondent submitted:[12]
   1. Lantrak conducted itself in a fair and appropriate manner. Having regard to the outcome of the Original Enforcement Decision - where Council only succeeded in respect of Condition 1 - Lantrak formed the view that a stay of the Tribunal's orders would be necessary to avoid unnecessary angst and expense on the part of both parties. The Council's refusal to agree to a stay caused the need for a contested hearing, in which the Council's position was unpersuasive and unmeritorious. The Council's conduct in this regard unnecessarily disadvantaged Lantrak within the meaning of section 109(3)(a) of the VCAT Act, added complexity within the meaning of section 109(3)(d) of the VCAT Act, and is in Lantrak's submission conduct that falls short of the reasonable expectations of a responsible authority for the purpose of section 109(3)(e) of the VCAT Act.
3. The council submitted in response:[13]
   1. As to Lantrak's further miscellaneous procedural complaints, to the extent not already answered earlier in these submissions:
      1. There is no basis to criticise the Council for not 'agreeing' to stay the Tribunal's orders pending Lantrak's application for leave to appeal to the Supreme Court.37 The mere fact an appeal has been lodged - much less an application for leave to appeal, with leave not yet granted - does not in itself justify a stay. The ordinary rule is the Tribunal's orders are taken to be lawful until shown otherwise, and a successful party is entitled to see them complied with. Lantrak was required to seek and obtain an indulgence from the Tribunal to depart from that. Parties cannot 'agree' to stay Tribunal orders - the Tribunal had to determine for itself whether such an indulgence was appropriate in this case, irrespective of the parties' views.

The Tribunal's reasons show its decision was finely balanced, with little at stake other than the unquantified cost to Lantrak of preparing a Land Restoration Plan.38

37 Cf. Lantrak submissions at [54].

1. Kingston CC v Lantrak Developments Pty Ltd [2020] VCAT 1181.

1. In the Stay Decision, the Tribunal, comprising of Member Whitney, carefully considered the parties' submissions having regard to relevant factors in determining a stay application, and concluded that the overall balance fell in favour of granting a stay of the enforcement order pending a decision from the Supreme Court in the appeal. The position of both parties is clearly articulated in that decision, without criticism of the council position taken in the application. While ultimately the council was unsuccessful, the Tribunal decision sets out the council's approach to the application, which it was entitled to take.
2. The respondent submits that the council's conduct in opposing the stay application falls short of the reasonable expectations of a responsible authority. In light of the Tribunal's decision, this approach may be fair. However, in reflecting on the council approach at the time, it is also understandable that the council sought to ensure some progress on the enforcement order it had obtained in carrying out its obligations under the PE Act, and that it had regard to community expectations in pursuing that course.
3. While ultimately the stay application was successful and the appeal of the Original Enforcement Decision was successful, we accept that the council was attempting to achieve an acceptable planning outcome at the time. In these circumstances, we do not find it fair to award costs against the council with respect to the Stay Decision.

1. Tranche 2 is described by the respondent as follows:[14]
   1. Tranche 2 captures the costs that Lantrak incurred in defending the Enforcement Proceeding after the remittal until the fourth amended form of application (Fourth Application) was filed. A number of steps occurred in that period (and those steps generally related to the Council's attempts to recast its application for an enforcement order). They are set out below.

1. To start with, Council filed an amended form of application on 20 April 2022. By that amended application, Council sought to agitate a new contention that Lantrak's planning permit had expired. By letter dated 9 June 2022, Lantrak advised the Tribunal that the Council's form of application was beyond the scope of the Court's remittal. Council then filed a second amended form of application on 1 July 2022.
2. Also on 1 July 2022, the Council sought to agitate its contentions about the expiry of the planning permit by filing two separate proceedings: P838/2022 (Second Enforcement Proceeding) and P839/2022 (Declaration Proceeding). Lantrak was then required to consider the relationship between the Enforcement Proceeding, the Second Enforcement Proceeding and the Declaration Proceeding.
3. Following a practice day hearing on 5 August 2022, the Tribunal issued orders dated 15 August 2022, which required the Council to recast its application within the scope of the Court's remittal, and confined the further hearing of the Enforcement Proceeding to a consideration of whether Lantrak had contravened conditions 18 and/or 19 of the planning permit.
4. Council subsequently filed its third amended form of application on 1 September 2022 (Third Application).
5. The parties attended a practice day hearing on 9 September 2022 where Lantrak was represented by Paul Chiappi of Counsel. By order dated 12 September 2022, the Tribunal adjourned the Enforcement Proceeding and the Second Enforcement Proceeding to an administrative mention on 8 May 2023.
6. From 12 September 2022 until 15 June 2023, Lantrak incurred costs relating to the Declaration Proceeding. The Declaration Proceeding was heard on 27 and 28 February 2023. On 15 June 2023, the Tribunal issued its decision in Kingston CC v Lantrak Developments Pty Ltd [2023] VCAT 633, wherein the Tribunal refused the Council's application for a declaration that the permit had expired. The Tribunal ordered the Council to pay Lantrak's costs in that proceeding.
7. The costs that Lantrak incurred generally from 12 September 2022 until 15 June 2023 were not incurred in the Enforcement Proceeding. They therefore do not form part of this application.
8. Following the Tribunal's decision in the Declaration Proceeding, Council unsuccessfully sought to recast its application for an enforcement order in this proceeding. A practice day hearing was held on 27 October 2023 where Lantrak made a number of criticisms of the Council's Third Application.5

1. The Tribunal issued orders dated 27 October 2023, which required the Council to recast its application by 17 November 2023 to comply with the Court's remittal. Notwithstanding the terms of that order, the Council did not file its Fourth Application until 25 January 2024.
2. Following a practice day hearing on 15 February 2024, by order dated 19 February 2024, the Tribunal substituted the Fourth Application as the application upon which the Enforcement Proceeding would be determined.
3. As noted above, that event marks the end of the second tranche of costs. Thus, the costs that fall within Tranche 2 span the period 9 November 2021 to 19 February 2024. As already stated, Lantrak does not seek an order for costs in relation to the costs it incurred in the Declaration Proceeding. Nor does it seek an order for costs in relation to the costs it incurred in the Second Enforcement Proceeding. Those costs are not sought because they were incurred in different proceedings.
   1. Refer to Lantrak's submissions for the purpose of the 27 October 2023 practice day hearing.
4. The respondent's submissions with respect to Tranche 2 are reproduced in full below:
   1. As noted above, Tranche 2 captures the costs Lantrak incurred in defending the Enforcement Proceeding after the remittal by the Supreme Court until the Fourth Application was filed.
   2. Lantrak contends that it would be fair to order the Council to pay the Tranche 2 costs on a standard basis.
   3. The bulk of those costs would not ordinarily arise in a proceeding at the Tribunal, let alone a proceeding in the Tribunal's original jurisdiction, where it is incumbent on the applicant (here, the Council) to set out clearly and with precision the case that the respondent (here, Lantrak) is required to meet. The nature of the proceeding and its complexity are highly relevant for the purpose of section 109(3)(d) of the VCAT Act.
   4. After Lantrak succeeded on the Appeal, the Council attempted and failed on a number of occasions to recast its application for an enforcement order within the scope of terms ordered by the Supreme Court of Victoria. The interlocutory arguments were complex and involved detailed examinations of administrative law and historical documents.
   5. Having succeeded on the Appeal, Lantrak was entitled to expect the Council to comply with the terms of the Court's order. The Council's failure to comply with the Court's order was striking - the Council sought to agitate a new allegation about the expiry of Lantrak's planning permit, in circumstances where the Court's order directed only the consideration of a potential breach of conditions 18 and/or 19 of the Permit.
   6. The Council's conduct unnecessarily disadvantaged Lantrak within the meaning of section 109(3)(a) of the VCAT Act, because rather than dealing with the substantive merits of the case so that Lantrak could continue its business, Lantrak was required to engage in protracted interlocutory arguments, which in Lantrak's submission should not have been necessary given that the Supreme Court set out the scope of the remittal in its orders following the Appeal.
   7. Following the Tribunal's orders dated 15 August 2022, it was clear that the Council could not pursue its argument about expiry in the context of the Enforcement Proceeding. It was also clear that the Council put Lantrak to substantial cost by pursuing complex and confusing amendments to its original enforcement application. Again, the Council's conduct caused Lantrak unnecessary disadvantage for the purpose of section 109(3)(a) of the VCAT Act, and prolonged unnecessarily the time taken to complete the proceeding for the purpose of section 109(3)(b) of the VCAT Act.
   8. On 1 September 2022, Council filed its Third Application, in which it alleged a negative - that the Council never ordered that the subject land be made available for the receipt of fill for the purpose of condition 18 of the permit. Lantrak was therefore required to respond to a case not supported by any evidence (at least no evidence was filed when the Third Application was tabled), and where Lantrak had no knowledge of its predecessor's actions. Council's contentions in its Third Application caused Lantrak unnecessary disadvantage for the purpose of section 109(3)(a) of the VCAT Act and made the proceeding unduly complex for the purpose of section 109(3)(d) of the VCAT Act.
   9. At the practice day hearing on 9 September 2022, Council sought for the Second Enforcement Proceeding and Declaration Proceeding to be heard together with the Enforcement Proceeding. It fell to Lantrak to resist the Council's proposal and the Tribunal agreed with Lantrak's course, whereby the Declaration Proceeding would be heard first to determine the question of permit expiry, and the two enforcement proceedings would be held in abeyance during that time.
   10. Following the determination of the Declaration Proceeding in Lantrak's favour, the interlocutory disputes continued. The Council's Third Application was the subject of a practice day hearing on 27 October 2023, which has been explained earlier in these submissions. Relevantly for present purposes, Lantrak's submissions for the 27 October 2023 practice day hearing record the following in relation to the question of "consequence":

"A finding by the Tribunal that Lantrak is in breach of Conditions 18 and 19 of the Permit leads to the conclusion that the land has been remediated unlawfully for a number of years by reference to the Permit, in knowledge that Lantrak has been operating pursuant to valid and lawful extractive industry permissions. The consequence of that finding is serious, not only for Lantrak but for the holders of historical planning permits and extractive industry permissions throughout Victoria. That consequence ought to increase the importance of Council establishing positively its case that Conditions 18 and 19 have not been satisfied.

Lantrak submits that the Council should be required to provide to the Tribunal and parties the documents on which it relies in support of its contentions about Conditions 18 and 19 of the Permit. If the Council cannot do so within a timeframe that is suitable to the Tribunal, Proceeding No. P865/2019 should be summarily dismissed with an order as to costs in favour of Lantrak."

1. The Tribunal's orders dated 27 October 2023 required the Council to recast its application by 17 November 2023 to comply with the Court's remittal. Notwithstanding the terms of that order, the Council did not file its Fourth Application until 25 January 2024. Throughout the intervening period Lantrak was left to wonder what course the Enforcement Proceeding might take. The Council's failure in this regard is relevant for the purpose of section 109(3)(a)(i) of the VCAT Act - no rational explanation has ever been provided for the Council's lateness in this respect.
2. The council's response is also reproduced below:
   1. Lantrak's procedural complaints look numerous - but they are mostly repeated references to a few selective and overstated points, without identifying any actual disadvantage that is specifically attributable to the Council's conduct or that is material to the question of costs.
   2. As the Tribunal observed in Country Endeavours Pty Ltd v Baw Baw SC (No 8):

... where conduct is held to have unreasonably disadvantaged another party, the costs relevant might only be those arising from that unnecessary disadvantage. That might not necessarily extend to the whole of costs of a particular proceeding.30

1. It is true that the Council's application for an enforcement order was amended several times over the five-year duration of the proceeding:

a. The original application was lodged on 13 May 2019.

1. The application was amended by order of the Tribunal when it made the first Tribunal decision on 25 June 2020, to include reliance on condition 1 of the permit. Lantrak did not oppose the amendment, nor did it suggest that it would be disadvantaged by it.31
2. The second amended application was lodged on 1 July 2022, pursuant to leave granted by the Tribunal on 20 January 2022. Leave was granted by consent. Obviously, the application had to be recast following the Supreme Court decision.
3. The third amended application was lodged on 1 September 2022, pursuant to orders made by the Tribunal on 15 August 2022 when it ruled that the Council was not able to contend the permit had expired as that was beyond the scope of the Supreme Court remittal. The Council duly lodged an amended application, otherwise substantively identical to the previous, but with that contention deleted.
4. The fourth amended application was lodged on 25 January 2024, pursuant to orders made by the Tribunal on 19 December 2023, at Lantrak's request, to better particularise the allegations contained in paragraph 43 of Annexure A (and to redefine the subject land following its part acquisition by the State government). The Tribunal allowed the amendment by order of 19 February 2024. The application was otherwise substantively unchanged.32

1. [2011] VCAT 2403 at [29] (leave to appeal refused in Country Endeavours Pty Ltd v Casacir Pty Ltd [2013] VSC 22; (2013) 194 LGERA 171).

1. The extent of change can be seen in tracked changes in the fourth application. Some non-substantive changes were also made, e.g., at paragraph 30 of Annexure A, to quote rather than paraphrase the terms of permit condition 19.
2. There is nothing remarkable in these amendments, in the circumstances of this proceeding.
3. Most were minor - the only fundamental change to the Council's central case regarding breach was the amendment lodged on 1 July 2022, in response to the fundamental change brought about by the Supreme Court decision. Each amendment was intended to, and did, assist Lantrak in understanding the case it had to meet.
4. Other than the last amendment, for which costs have already been ordered, none have caused any identified disadvantage material to the question of costs. None have, for example, resulted in preparation for a hearing being wasted or a hearing prolonged.
5. None even resulted in an otherwise unnecessary practice day hearing:
   1. The first and last amendments were made in the course of a substantive hearing.
   2. The Tribunal's order of 20 January 2022 granting leave to lodge the second amended application was made by consent. A hearing was only required to consider orders to produce documents, which Lantrak unsuccessfully opposed.
   3. The Tribunal's order of 15 August 2022, regarding the third amended application, was made at a practice day hearing for several applications made by Lantrak:
      1. One was regarding the scope of the Supreme Court remittal. The Tribunal ruled that the scope of remittal was more limited than was contended by the Council, and less limited than was contended by Lantrak.34
      2. The Tribunal also dealt with an application by Lantrak for summary dismissal, observing:

It is not clear to me what the respondent is seeking ...

I do not consider council's conduct nor the contention that a breach of conditions 18 and/or 19 cannot be established, is sufficient to justify either a refusal of the application or summary dismissal. The respondent has not convinced me on the material it relies upon, that a breach of condition 18 and/or 19 of the permit cannot be established at this stage.35

1. The Tribunal's orders of 19 December 2023 and 19 February 2024, regarding the fourth amended application, were made at practice day hearings required in any event to consider the management of three interrelated proceedings, a further aborted application by Lantrak for summary dismissal, and an unsuccessful application by Lantrak to have the question of breach determined separately.36

1. As to Lantrak's further miscellaneous procedural complaints, to the extent not already answered earlier in these submissions:

1. As is sufficiently shown in the above outline of practice day hearings relating to amendment of the enforcement application,39 there were certainly numerous interlocutory arguments, but that was not on any reasonable view something Lantrak was 'required to engage in' by reason of the Council's conduct.40

Almost all interlocutory arguments were initiated by Lantrak. In some it succeeded; in various others it was partly or wholly unsuccessful (e.g., on the scope of remittal, on the production of documents, on the question of breach being determined separately, on summary dismissal).

1. There is nothing unreasonable in seeking to have related applications in the Tribunal heard and determined together.41 Such orders are commonplace, and as the Tribunal's reasons make clear, depend on a balancing of considerations.42 If unsuccessfully seeking or opposing an order of that nature is a basis for awarding costs, then the Tribunal is going to be making a lot of costs orders.

The separate determination of the proceedings would have resulted in the most efficient outcome had the Council succeeded in its separate declaration application - but it did not, and so the practical outcome of Lantrak obtaining its preferred course was actually the very delay it now complains of, with this proceeding held in abeyance until the others were determined.

1. The Council concedes it was late in lodging the fourth amended application after the Christmas break, and it would be fair for it to pay any additional or unnecessary expense Lantrak might have incurred specifically because of that. But Lantrak does not identify any such cost, submitting only that it endured the apparent annoyance of being 'left to wonder' for some weeks.43
   1. Kingston CC v Lantrak Developments Pty Ltd [2022] VCAT 935 at [6]- [7].

1. See Tribunal's orders of 12 December 2023 and 19 February 2024 in P865/2019; of 19 December 2023 in P865/2019, P1134/2023 and P1135/2023; and of 16 February 2024 in P1134/2023 and P1135/2023.
2. Cf. Lantrak submissions at [54].
3. Kingston CC v Lantrak Developments Pty Ltd [2020] VCAT 1181.

39 See submissions above at paragraph 53.

40 Cf. Lantrak submissions at [67].

41 Cf. Lantrak submissions at [70].

42 Tribunal's orders of 12 September 2022.

43 Lantrak submissions at [72].

1. Returning to the words of section 109(3) of the VCAT Act, the Tribunal may make an order that a party pay all or a specified part of the costs of another party in a proceeding only if satisfied it is fair to do so, having regard to the elements set out in subsections (a) to (e).
2. Ultimately it was determined that the council's application, as drafted in the fifth amended application, could not establish a contravention of the permit. As explained earlier, we consider that this ought to have been considered carefully further to the filing of the respondent's statement of grounds in response to the fourth amended application, and that it is fair that the council pay the respondent's costs from that point forward.
3. However, we accept that this proceeding was complex, and that the enforcement order originally granted by the Tribunal and overturned on appeal contributed to that complexity. The council's conduct in pursuing all possible avenues to achieve rehabilitation of the subject land was not vexatious or unreasonable. Costs have already been awarded in related proceedings where the council was unsuccessful in the pursuit of those avenues.
4. In reviewing the Tribunal decisions of 15 August 2022 and 27 October 2023, as referred to in the submissions relating to tranche 2, it transpires that there were applications made by both parties, including applications by the respondent to have the application for enforcement order summarily dismissed. This application was refused by the Tribunal on the basis that it was not clear that a contravention of conditions 18 and 19 could not be established.
5. While this was clear to the Tribunal hearing the Final Tribunal Decision, with the benefit of all of the submissions and documentation before it, it was not clear prior to that point.
6. Significant time and expenses were incurred by both the council and the respondent throughout the period of tranche 2. However, this does not in itself lead to a conclusion that the council conducted the proceeding in a way that 'unnecessarily disadvantaged the respondent', having regard to subsections (a) to (e). During that period, the relative strengths of the parties' claims were being tested with respect to the scope of the application and other related applications, and there was a process that took time in assessing and managing that. It was open to the council to make the related applications, and we do not consider it fair to award costs against the council for exploring the potential options available to carry out what it considered was its duty to ensure remediation of the subject land.

1. There were, however, elements within this tranche that we do consider caused unnecessary disadvantage to the respondent. The council acknowledged the delay in its filing of the fourth amended application, and the respondent, in its reply submissions, identified several specific examples of correspondence to the council to which it did not receive a response.
2. This behaviour creates challenges, particularly in the context of this application. It was an application filed by the council and in which the council was provided with many opportunities to amend its application as well as file other applications, with a respondent who was responsive and engaged in defending each of the applications filed.
3. The council should have ensured that it acted in accordance with Tribunal orders and provided timely responses to correspondence from the applicant.
4. Having said that, it is difficult for this Tribunal to fully appreciate the context during the period of tranche 2. The reply submissions of the parties with respect to the discrete issue of the late filing of the fourth amended application, and the Tribunal practice day decisions during this period paint a more complex picture.
5. While the respondent claims that costs of $4,580 plus GST were incurred with respect to this late filing, including the cost of preparation and attendance at the practice day hearing of 18 December 2023, the council submits that only $298 of that amount ought to be payable by the council, as set out at paragraph 79(a) of the respondent's reply submissions. The council contends that the practice day hearing was held for separate purposes, as set out in order 2 of the Tribunal's order dated 12 December 2023, as follows:

· to consider the relevance, if any, of Proceeding P865/2019 to the determination of Proceedings P1134/2023 & P1135/2023;

· to consider whether a preliminary hearing is required to determine the respondent's application for summary dismissal; and

· to consider the future conduct of the proceeding

1. Upon review of the correspondence and submissions filed during that time, it appears that the activity and timing during this tranche was not straightforward. There were several applications on foot, and it was not always entirely clear in what way those applications were dependant on each other, including whether material submitted in one application was relevant to a party's preparation for another application. It also appears that the interrelation between these matters may have affected the ability for the council to respond in a timely matter to a query concerning one of the proceedings and the ability for the council to finalise its approach to this proceeding P865/2019.
2. While there appears to have been some incidents where the council could or should have responded to correspondence from the respondent without continued follow ups or the requirement for matters to be resolved via practice day hearing, we do not consider that, having regard to the entirety of the proceeding, it is fair to award costs for those instances. It is also very difficult to make a determination as to precisely which billing entries would be appropriate to be paid by the council, in circumstances where, as is evident from the submissions focussed only on the filing of the fourth amended application, there remain opposing views as to the nature of each attendance and which entries are appropriate for reimbursement.
3. For these reasons, we have declined to order costs awarded against the council with respect to tranche 2 of the proceeding.

1. For the above reasons, we have ordered that the council pay the costs of the respondent incurred for tranche 3 of the application on a standard basis, from 29 March 2024, on the Supreme Court Scale.
2. These costs are payable from the period following the filing of the statement of grounds on 28 March 2024 until the conclusion of the merits hearing and the determination of the issues raised with respect to the costs thrown away. The costs do not include the costs incurred in preparing this application for costs.

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

[7] As per the council's submissions 28 February 2025, at [17].

[8] Council reply submissions for the Final Tribunal decision, dated 12 September 2024.

[10] Submissions dated 14 February 2025.

[11] Included earlier, from paragraph 37 of the council's submissions dated 28 February 2025.

[12] Submissions dated 14 February 2025.

[13] Submissions dated 28 February 2025.

[14] Submissions dated 14 February 2025.