1 Mr MacMillan who lives at 22 Docker Street, Elwood commenced this application under Section 149B of the Planning and Environment Act 19987 on 4 April 2005 seeking declarations that amendments to the approved plans for a development at 122-128 Ormond Road and 1 Docker Street, Elwood, should be declared invalid. He said that the amended plans exceeded the building height and envelopes approved by this Tribunal when it directed the issue of a permit for the development on Christmas Eve 2003.

2 Mr MacMillan's application was opposed by Port Phillip City Council as Responsible Authority and by the permit holder Havercroft Developments Pty Ltd. In reasons published on 25 May 2005 I dismissed Mr MacMillan's application. Following publication of my reasons Minter Ellison, solicitors for the permit holder, Havercroft, filed a written application dated 30 June 2005. That application sought an award in favour of Havercroft in the sum of $17,022.80 against Mr MacMillan. The application characterised this as a 'full award of costs'.

3 Mr MacMillan opposes the making of any such costs order against him.

4 There appears to be no costs application made by or on behalf of the Responsible Authority which also appeared by its solicitor to oppose Mr MacMillan's application.

5 Deputy President Gibson ordered with the consent of the parties, on 10 August 2005 that I should determine this costs application 'on the papers'.

6 In their initial written application Havercroft's solicitors referred to Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 as the provision governing the award of costs in the proceeding and acknowledged that the section by sub-section (1) establishes a prima facie presumption that costs should lie where they fell.

7 They said that this proceeding seeking declaratory relief stood in a different situation to an ordinary permit review application and that the Tribunal could and should be far readier to make a costs award in their client's favour in those circumstances. They referred to a costs ruling given by Senior Member Barr and I in Adams v Stonnington City Council [1999/103663]. They said that the rights obtained by their client were under attack in the proceeding and since construction of the development had commenced success by the applicant would have led to consequences for Havercroft which were 'very serious'.

8 They said that to obtain declaratory relief in a proceeding such as this meant that Mr MacMillan had to 'meet a very high test' and that a consideration as Section 109(3)(c) of the Victorian Civil and Administrative Tribunal Act 1998 as to the strength of the claim, would show that it had no tenable basis in fact or law and that this was a reason why costs awards should be made in favour of Havercroft. They said that Mr MacMillan had been warned of these matters at a meeting on 5 April 2005. The application stated that it sought an award of costs in a particular sum of money giving details of the entire costs incurred by Havercroft in resisting the proceeding including the costs of its planning consultant yielding a total of $17,072.80. In response to submissions made by Mr MacMillan in a further written contention of 17 August 2005 Minter Ellison stressed that the onus was always upon Mr MacMillan 'to ensure his case was legally competent'. They said that the basis of an award of costs was 'a decision for the Tribunal'. Section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998 made it 'clear that the nature of the proceedings is relevant in determining whether the Tribunal will depart from the "usual rule" that each party bears its own costs' and that the Tribunal was more ready to order costs in enforcement proceedings and proceedings seeking a declaration. Minter Ellison denied that its client had been 'cavalier in its approach'. Minter Ellison said it was clear that Mr MacMillan 'has long been an opponent of our client's development'. It was clear that he had received some legal advice and 'that advice should also have properly referred to the possibility of costs being awarded if the applicant are not successful'.

9 Minter Ellison said that material relied upon by Mr MacMillan with regard to other amendment proposals was 'irrelevant'.

10 Mr MacMillan filed a number of letters raising a variety of points which in the circumstances it is unnecessary for me to set out in detail.

11 Minter Ellison's contention that the Tribunal will more readily award costs in enforcement or declaration proceedings than it would in ordinary permit review proceedings is doubtless correct. Declaration and enforcement proceedings more clearly resemble proceedings in Court where costs generally follow the event. There may be a number of other reasons why the pattern remarked upon by Minter Ellison is correct but it is unnecessary for me to canvass all these other matters.

12 The present application is in substance for an award of costs on a full indemnity basis. I was not taken to the standard authorities in Court on the question of indemnity costs. Such orders were virtually unknown in Court a generation ago. They are now made far more commonly; nevertheless they remain clearly the exception rather than the rule. In the Tribunal where the presumption is against the making of costs awards between parties altogether, they must be rarer still. The Tribunal is generally a no costs jurisdiction and therefore where costs are awarded it should be a low costs jurisdiction. Even if I were persuaded that this was an appropriate occasion for an award of indemnity costs, the usual order is that such costs should be taxed and should be allowed in full except in so far as a particular item was unreasonably incurred or was in an unreasonable amount. See Rules of the Supreme Court 63.30.1. Clearly a Court or Tribunal can fix costs in an amount certain on a full indemnity basis where the sum of costs involved is in a modest amount. I cannot think that it would be a proper exercise of that discretion to award indemnity costs in such a large amount without a taxation.

13 I put the application for indemnity costs to one side.

14 I am not persuaded that even party party costs should be appropriately awarded here. Certainly Havercroft had a clear victory and in retrospect this victory was predictable. Nevertheless as Mr MacMillan observed in his submissions, the Responsible Authority dealt with the amended plans purportedly under Sections 72 and 73 of the Planning and Environment Act 1987. For reasons which I gave in my reasons I did not believe that this was the correct basis upon which the amendment application should have been processed. It was unnecessary for me to express any view as to whether a different result would have flowed had those sections been properly applicable. This confusion however is sufficient in my view to remove this proceeding from the category of the clearly misconceived or clearly untenable.

15 Nor do I believe that there is any proper analogy between the present proceeding and Adams' case which was relief upon by Havercroft. A number of the things which Mr MacMillan said in his submissions in opposition about Adams' case were incorrect. For instance, that it was a 'prompt final hearing' and that there were 'no witnesses'.

16 A consideration of what actually happened in Adams' case will show how different it was from the present. In Adams' case a former Telecom depot area in Toorak was the subject of development approval with a set of rules and building envelopes. A developer erected a number of residences on the site and most had been sold to third party purchasers. Mr Adams objected saying he had not been given proper notice of development approvals as required by the Planning and Environment Act 1987. He filed a request for cancellation of the relevant permits and brought an application for an interim 'stop order' under Section 93 of the Planning and Environment Act 1987 the day before Christmas 1999.

17 I dismissed the interim application and the matter went to a final hearing on 6 and 7 March 2000 when I sat with Mr Barr. This time Mr Adams added an application for declaration under Section 149B as here. The cancellation request was refused as was the application for declaration. The costs order was made for a number of reasons. Certainly the fact that the proceeding was not a simple permit review application was significant; but we also made a finding that Mr Adams had vexatiously conducted the proceeding 'by bringing the application for an interim "stop" order on such short notice the last business day before Christmas when he had ample opportunity in the previous weeks to bring the matter on at a more convenient time'. The matter was brought to a final hearing in March 2000 despite a finding which I made at paragraph [40] of my 23 December 1999 reasons 'there is not a serious issue to be tried with respect to the relief which is sought by this applicant as final relief'. I made this finding because in the circumstances I believed Mr Adams had been guilty of unreasonable delay allowing the interests of third parties to intervene and this was a reason in itself why relief could not be given under Section 87 of the Planning and Environment Act 1987.

18 It is clear from this summary of evidence case that it bears little or no resemblance to the present proceeding. Had Havercroft lost this proceeding it would have had to 're-jig' its development. This may have been quite difficult. It clearly would not have been in as dire a position as the developer in Adams' case who would have been entirely without a permit had Mr Adams succeeded and left to explain this situation to persons who had paid good money to buy residences it. The Developer in Adams' was itself a purchaser and not the original permit holder.

19 In the present case Mr MacMillan brought his application and conducted it so far as I can recollect, with courtesy and efficiency. He was not guilty of any unreasonable delay. He challenged the approval of plan amendments in circumstances where there was doubt as to the basis upon which the amendments had been made. In my view the prima facie rule laid down under Section 109(1) that costs should lie where they fall operates appropriately here.