1. The starting point in considering any application for costs is section 109 of the Victorian Civil & Administrative Tribunal Act 1998 and the general rule that each party is to bear their own costs in a proceeding. However, section 109(3) 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 if it is satisfied that it is fair to do so, having regard to -

(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.

1. Whilst the Tribunal has often noted[1] it should not be assumed that costs will be awarded as a matter of course in all enforcement applications, the Tribunal has tended to regard enforcement order proceedings in a different light to applications for review about the merits of planning proposals.
2. In the present case, I find that it would be fair to award costs for the following reasons.
3. The nature of the case is an enforcement order application. The council has an obligation[2] to enforce the planning scheme. It has had to incur costs to enforce the planning scheme as a result of the conduct of the respondents, including the preparation of an offset management plan which the Tribunal ultimately adopted in its order. The council's resources are scarce and it should not be required to bear the burden of its legal costs when the respondents knowingly removed the vegetation without a permit and given the fundamental weakness of the respondents' case in defence.
4. The respondents chose not to produce any expert evidence to substantiate a defence that the trees removed were dead. They otherwise relied upon a range of exemptions from the need for a permit, but Senior Member Horsfall dismissed them all. The language used in his reasons indicates that there was little or no substance to any of them. Plenty of opportunities were provided to the respondents to negotiate a settlement without the need for a full hearing[3], but they insisted on going to a hearing where they were ultimately unsuccessful.
5. I am satisfied having regard to the nature of the proceeding, the relative strengths of the claims made by each party and the conduct of the respondents during the course of the proceeding that costs should be awarded against the respondents.

1. I do not agree that this is a situation where indemnity costs should be awarded. Indemnity costs are not commonly awarded by the Tribunal and the circumstances of this case do not justify such an approach.
2. The more common scale often used by the Tribunal is to award costs on County Court Scale D. The council has had its file assessed by Mr John Ahern (an experienced costs consultant) on a party/party basis on this scale (excluding disbursements). He certified the council's party/party professional charges at $26,823.00. I accept this as a reasonable figure and will order that the respondents pay costs fixed in this amount.

[1] For example see Cotsonis v Darebin CC [2005] VCAT 1131 at [11]; Haouli v Hobsons Bay CC [2001] VCAT 433; Svanosio v Shire of Strathfieldsaye (1989) 2 AATR 26

[2] Under clause 14 of the Planning and Environment Act 1987

[3] For example, there was unsuccessful mediation held on 29 April 2008 as well as numerous discussions between the parties and correspondence from the council dating from 2005.