(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 sub-section (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding.

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in sub-section (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under sub-section (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding the Tribunal may require that the order be complied with before it continues with the proceeding.

1. While the presumption under this section is that each party to a proceeding should bear its own costs, it is fair to say that the Tribunal has historically been more willing to make costs orders in circumstances where a Council brings enforcement action to ensure compliance with the provisions of its planning scheme (see for example Bayside CC v Campbell [1999] 3 VPR 69). This is readily understandable and consistent with notions of fairness. Why, one might ask rhetorically, should 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.
2. This is not, of course, an immutable rule. There are many enforcement cases which have involved inadvertent errors, administrative mistakes and the like. Generally, in such cases, the parties have borne their own costs.
3. This however is not such a case. Over a lengthy period the respondents have consistently refused to comply with the requirements of the permit, conducted a flagrant campaign of delay and avoided the most elementary responsibilities of a permit holder. In its earlier decision, the Tribunal described the situation in the following terms:
   1. In resisting the Responsible Authority's case, Mr Beninati persistently attempted to place the blame elsewhere. In particular, he claimed the Responsible Authority had been unhelpful and had unduly delayed the process. In fact, on the material before it, the Tribunal has come to the conclusion that the situation is quite the reverse. The Responsible Authority has attempted on a number of occasions to assist the Respondents, and there have been a number of onsite meetings. Rather than seek to cancel the permit or launch a prosecution in the Magistrates Court (as it was entitled to do), the Responsible Authority has consistently pursued a more constructive approach, namely, endeavouring to obtain a satisfactory EMP.
   2. It is also plain that Mr Beninati has little time for those charged with the task of administering planning legislation. Mr Beninati's conduct during the hearing was rude and provocative. He appeared 20 minutes after the commencement of the hearing in the morning, and 10 minutes late in the afternoon. He refused to abide by various rulings of the Tribunal, repeatedly claiming that he was being victimised and that his constitutional rights were being infringed. Much of the correspondence emanating from Mr Beninati concludes with the following phrase:

We do not consent to acceptance of any ruling or order.

It is a threat that Mr Beninati seems determined to carry out in practice.

1. The case put forward by the respondents against the material advanced by the Shire was so weak as to amount to no case at all. In determining the question of costs, that is a relevant consideration (see s 109(3)(c). Moreover, the conduct of the respondents, as evidenced by their inaction and a plethora of "often incoherent correspondence"[1] has simply served to prolong the proceedings and cloud the basic issue, namely, the flouting of the conditions contained in Planning Permit No. PA2003/310.
2. In all the circumstances the Tribunal has come to the conclusion that the respondents should pay the reasonable costs incurred by the Council in these proceedings. The Tribunal is also satisfied that the circumstances here are so exceptional that those costs should be assessed on a solicitor-client basis[2]. Rather than expose the parties to even further expenditure by requiring the costs to be taxed, the Tribunal proposes to order that those costs be fixed.
3. Insofar as the Council incurred costs in the preparation and appearances involved for the hearing on 22 June 2007, the Tribunal fixes those costs at $11,000.00. Insofar as the Council incurred costs for the preparation of the present costs application, the Tribunal fixes those costs at $1,000.00. It will make that order jointly and severally against the respondents and require the sum of $12,000.00 be paid within 30 days of the date of this decision.

[1] See para 24 of Maddocks' submission dated 29 June 2007.

[2] See for example, paras 28-38 Whittlesea CC v Reading & Ors [2007] VCAT 152.