1. The Tribunal has often confirmed that the purpose of an award of costs is to compensate a party who has incurred costs in circumstances where it would be unfair to require them to be liable for these costs.
2. It is common for responsible authorities to recoup a portion of their costs in enforcement applications in this List of the Tribunal, particularly where they reasonably attempted to avoid the proceeding and where the case against the respondents was reasonably clear cut.
3. I agree with the responsible authority that this proceeding was necessitated by the respondent's failure to abide by directions it was given by the council (in addition to directions from its building surveyor and subsequently its solicitor) to stop the construction works. Notwithstanding submissions to the contrary by the respondent, I accept that the proceeding was brought as a genuine last resort. In my opinion, this fact and the relative strengths of the parties' cases justify an award of costs under section 109(3)(c) and (e) of the Victorian Civil and Administrative Tribunal Act 1998.
4. Specifically, the respondents were notified that no requisite planning permit was obtained only a short time after works commenced, yet building works were still continuing nearly four months later. The permit application was only submitted to council once the application for interim enforcement order was lodged with the Tribunal.
5. It is relevant to note the submission on behalf of the council that the respondents were one of six property owners in the Shire in a similar predicament (i.e. a planning permit became necessary under the Wildfire Management Overlay just prior to the issue of a building permit but was not brought to the attention of the nominated building surveyors). This was the only property in respect of which compliance could not be obtained to stop construction works in the absence of an urgent Tribunal order.
6. I accept that the professional expertise of the respondents in the architectural industry is relevant to their state of knowledge and their failure to secure/protect the dwelling then cease construction works in a timely way. I accept Mornington Legal's submissions that they:

. . .should have been familiar with the building process and the provisions of the Building Act 1993 and the Planning and Environment Act 1987. The importance of ceasing building works on the site should have been apparent when Council expressed concerns and the stop work order was issued by their own private building surveyor.

1. Council's costs to date have been assessed at nearly $7,500. In an effort to avoid taxation of these costs, it claims three quarters of this sum, thought by Mornington Legal to generally equate to party-party costs. I note that it originally offered to settle the matter in mid December 2010 by payment of $3,750 by the respondents.
2. In the circumstances, given the continuing nature of the breach, the warnings given to the respondents, their state of knowledge and the lack of what I regard as a persuasive defence, I consider that it is reasonable that a substantial proportion of the responsible authority's costs be reimbursed by the respondents.
3. Balancing all relevant matters, I consider that it is reasonable for the respondents to pay 65% of the responsible authority's legal costs. From experience, I regard this as more closely aligned to the equivalent of party-party costs on the County Court Scale D. This equates to $4,875.[1]

[1] As a matter of fairness to the respondents, I note that this sum is not much more than the original settlement offer made by the council in December that was rejected but recognises the additional legal work necessitated since then to obtain final orders.