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[2003] VCAT 1524
procedural. Application for costs by the Respondents refused; each party to bear their own costs.
The Tribunal refused the successful respondents' application for costs after the Council's enforcement action alleging unauthorised use as a helipad was dismissed. The Tribunal emphasised the ordinary rule that parties bear their own costs under s.109 VCAT Act, and held that although the respondents established existing use rights, the Council had a statutory duty and sufficient grounds to commence and maintain the enforcement proceeding. Because the matter raised genuine, complex and novel issues and the Council did not act improperly, it was not fair under s.109(3) to make a costs order against the Council.
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1,766 words · generated 26/06/2026
Mornington Peninsula Shire Council (the Responsible Authority) commenced enforcement proceedings under s.114 of the Planning and Environment Act 1987, alleging the respondents (Lindsay and Paula Fox and W. Everton Park Pty Ltd) were using property at Marylands Avenue, Portsea as a helipad without a required planning permit. The Tribunal heard the enforcement application on 26–27 May 2003 and, in reasons delivered 30 June 2003, dismissed the enforcement application because the respondents established an existing use rights defence to the necessary standard. Costs were reserved at the hearing.
4 cited instruments linked from this judgment.
The respondents then applied under s.109 of the Victorian Civil and Administrative Tribunal Act 1998 for an order that the Responsible Authority pay their costs. The parties agreed the costs application would be determined on written submissions. The Tribunal (Judge Michael Higgins and Senior Member Russell Byard) determined the costs application on the papers and refused the respondents' application for costs, ordering that each party bear its own costs.
The reasons focus on the statutory scheme for costs in the Tribunal (s.109 VCAT Act), the duties of a responsible authority (s.14 Planning and Environment Act), the factual and legal complexity of enforcement proceedings (here involving helipad provisions and two allotments in different ownership acquired at different times), and prior Tribunal/AAT practice in enforcement cases.
The decision turns on statutory discretion. The starting point is s.109(1) VCAT Act: the ordinary rule is that each party bears its own costs. That ordinary rule can be displaced only by an order under s.109(2), but s.109(3) constrains that power by requiring the Tribunal to be satisfied it would be fair to make a costs order, having regard to specified considerations (a)–(e). The Tribunal framed the exercise as an evaluative balancing of those considerations rather than a mechanical application of any single factor.
Key facts and law applied by the Tribunal:
Duty of the Responsible Authority: the Tribunal emphasised s.14 of the Planning and Environment Act which obliges a responsible authority to administer and enforce the planning scheme and enforce enforcement orders. The Tribunal found the Council had sufficient information and evidence to justify commencing and maintaining enforcement proceedings in discharge of that duty (quotation: "We are satisfied that the Responsible Authority... had sufficient information and evidence to warrant it in taking action, pursuant to its duty under s.14 PE Act...").
Nature and complexity of the proceedings: s.109(3)(d) directs the Tribunal to consider the nature and complexity of the proceeding. The Tribunal held this case involved "some complexity and some novelty", Clause 52.15 helicopter/helipad planning provisions, the fact the site comprised two allotments in different ownership acquired at different times, and contested factual issues over existing use rights. Those features made the case not run-of-the-mill and meant there was a genuine issue to be tried.
Conduct catching s.109(3)(a): The Tribunal found no material conduct by the Council that would attract an adverse costs consequence (no failure to comply with orders, no vexatious conduct, no attempt to deceive, no unreasonable prolongation). Because the Council had a tenable case in fact and law, and had duties to enforce, its initiating and maintaining the enforcement application was not unreasonable.
Precedent and Tribunal practice: the Tribunal acknowledged a strand of AAT/Tribunal decisions where authorities were awarded costs against respondents who had no credible defence and essentially forced enforcement action by refusing to comply (notably City of Sunshine v Cima). The Tribunal stated that practice is recognisable and sometimes applied, but emphasised that s.109(3) requires a case-specific fairness assessment. The Tribunal indicated it preferred the traditional, cautious approach reflected in such cases and did not accept submissions that the mere success of respondents on an existing use defence should lead to a costs order against the authority.
Applying these considerations, the Tribunal concluded it was not fair under s.109(3) to order costs against the Council. The complexity and contested nature of the proceedings, the Council's statutory duty and its tenable factual and legal case, and the absence of conduct falling within s.109(3)(a) all weighed against departing from the ordinary rule.
Before this decision: VCAT inherited an approach from the Administrative Appeals Tribunal and earlier statutory regimes where the ordinary rule was party-equal costs, but the Tribunal had some established practice in enforcement matters of awarding costs against respondents who had no reasonable defence and had compelled authorities to litigate (City of Sunshine v Cima is referenced as an early authority for that approach). There was also recognition that enforcement hearings are procedurally and factually different from merits reviews, often more like trials with contested evidence.
After this decision: the Tribunal reaffirmed that s.109(1) remains the starting point and that a costs order is only made when fairness under s.109(3) requires it. It reasserted that the Responsible Authority's statutory duty to enforce (s.14 PE Act) and a tenable case are legitimate reasons to refuse a costs order, even where respondents ultimately succeed on a defence. The decision thus reinforces the careful, case-specific balancing required by s.109(3), and it makes clear that enforcement proceedings raising genuine and novel legal and factual issues are not, simply by reason of the applicant losing, a basis to shift costs.
In short, the ruling confirms that successful respondents in contested enforcement proceedings do not automatically obtain costs; the Tribunal will apply the statutory fairness test and weigh factors such as the nature of the proceedings, the strength of the parties' positions, and the conduct of the parties.
Quotation: "Sub-section (1) thereof lays down the basic rule as to costs in relation to proceedings before the Tribunal. That rule is that each party is to bear its own costs." Translation: The default rule in the Tribunal is that nobody gets costs from the other; an award is exceptional.
Quotation: "We are satisfied that the Responsible Authority... had sufficient information and evidence to warrant it in taking action, pursuant to its duty under s.14 PE Act..." Translation: The Council had enough reason and material to open enforcement proceedings; doing so was part of its statutory job and not an abuse.
Quotation: "This was a case of some complexity and some novelty, in relation to the helicopter and helipad provisions..." Translation: The legal and factual questions were not straightforward; they involved unusual planning rules about helipads and issues about land ownership and existing rights.
Quotation: "We are not willing to make an order for costs in this case. We are not satisfied that it is fair to do so, having regard to the considerations in s.109(3)..." Translation: Balancing all the statutory factors, the Tribunal decides not to depart from the ordinary equal-costs rule and refuses to award costs to the successful respondents.
Enforcement proceedings commenced by a responsible authority under a statutory duty (s.14 PE Act) where the authority had, before commencing proceedings, material or evidence suggesting an apparent contravention of the planning scheme.
Cases where the respondent mounts an existing use rights defence, and where that defence involves contested factual proof and a novel legal question, particularly if the planning instrument contains specialised provisions (for example Clause 52.15 helipad provisions referenced here).
Situations where there is no clear evidence the responsible authority engaged in conduct described in s.109(3)(a) (for example, deliberate non-compliance with procedural orders, vexatious litigation tactics, deception, or causing adjournments).
Cases where the dispute is genuinely contested and could serve as a test case on a point of planning law or fact.
In those fact patterns, this decision signals tribunals will be cautious about awarding costs to successful respondents merely because they won: the responsible authority's duties and the contested/novel nature of the issues are important counterweights.
The judgment itself discusses and distinguishes earlier Tribunal/AAT authorities such as City of Sunshine v Cima (as an example of awarding costs against respondent recalcitrance) and Hobsons Bay CC v Haouli (which the written submissions suggested may justify a different approach). The Tribunal here preferred the 'traditional view' reflected in Cima, whilst signalling it would not follow any view that displaced the s.109(3) balancing. The text does not provide instances of subsequent higher court treatment of this VCAT decision. The decision therefore stands as a clear statement of the Tribunal's approach to costs in enforcement matters at the time it was delivered: apply the s.109(3) criteria and weigh the Authority's statutory duties and the nature of the dispute. Practitioners should check later VCAT, Victorian Supreme Court, or appellate decisions to see how this reasoning was treated subsequently.
Threshold for 'sufficient information and evidence': The Tribunal accepted the Council had "sufficient information and evidence" to commence proceedings. The decision does not deploy a tight test for what information or quality of evidence is required before an authority should bring enforcement proceedings. Practitioners will still need to assess at what point an authority's material justifies litigation exposure to avoid costs risk.
Particularisation of existing use rights defences: The Tribunal noted that particulars of the existing use defence were provided late and that witness statements may be an unsatisfactory form of particulars. The precise standard for adequate advance particularisation of such defences in enforcement proceedings remains imprecise.
Interaction with public interest considerations: While the decision recognises the responsible authority's public duties under s.14, it leaves open how much weight the public interest or ratepayer protection should receive in close cases where enforcement proceedings are borderline.
The balance between 'test case' value and costs protection: The Tribunal observed that cases with genuine novel issues may be proper test cases and that this fact can cut against a costs order. The decision does not define when the public interest in resolving a legal point should trigger costs protection for a party who loses on the facts but raises important legal questions.
Subsequent construal by higher courts: This decision sits in the body of Tribunal costs jurisprudence. The extent to which superior courts would endorse, limit, or develop the Tribunal's balancing under s.109(3) in enforcement contexts remains a matter for later appellate treatment.
Practitioners should therefore approach enforcement actions with a dual awareness: responsible authorities have a duty to act and will not automatically be penalised with adverse costs when they do so in good faith on tenable material; conversely, respondents who defeat enforcement on technical or factual grounds should not assume costs will follow them automatically where the case involved legitimate issues to be tried.
PLANNING AND ENVIRONMENT LIST Tribunal No. P00144/2003
RESPONDENTS: Lindsay Edward Fox, Paula Fox and W. Everton Park Pty Ltd (CAN 067 891 829)
BEFORE: Judge Michael Higgins, Vice President and Russell Byard, Senior Member
Lots 11 & 12 on Plan of Subdivision No. 116039 being the land in Certificate of Title 9115 Folio 603 and Volume 9115 Folio 604 respectively.
MEDIUM NEUTRAL CITATION [2003] VCAT 1524
__________________________ _________________
Mr John Rantino, solicitor of the firm of Maddocks, solicitors, appeared for the Responsible Authority.
Mr Michael Wright QC, barrister, appeared with Mr Jason Pizer, barrister, on the instructions of the firm of Minter Ellison, solicitors for the Respondents.
Application under s.114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.
Application under s. 109 of the Victorian Civil and Administrative Tribunal Act 1998 by the Respondents for an order for costs.
Use of land as a helipad without a planning permit allegedly required under the Planning Scheme.
Residential 1 Zone and subject to a Design and Development Overlay, an Environmental Significance Overlay, a Vegetation Protection Overlay and a Heritage Overlay under the Mornington Peninsula Planning Scheme.
This is an application by the Respondents for an order of costs in relation to this proceeding. The case was heard on 26 and 27 May 2003 and we gave our decision, together with our reasons in a document dated 30 June 2003.
The proceeding was an application by the Responsible Authority for an enforcement order in relation to the use of the land as a helipad without a planning permit alleged to be required under the planning scheme. Our ultimate decision was that the application for an enforcement order was dismissed. However, that was not on the basis that the Responsible Authority as applicant had failed to establish a prima facie case, but rather on the basis that the Respondents make good a defence based on existing use rights to the necessary standard. Our reasons are set out in the document of 30 June 2003.
At the end of the hearing, and in that document, the question of costs was reserved. The parties asked for this reservation. The successful Respondents have now applied for an order for costs in their favour against the Applicant/Responsible Authority.
It has been agreed between the parties concerned that this application would be made in writing by means of a written submission, and resisted on behalf of the Responsible Authority in a written submission. We have agreed to this question as to costs being dealt with on that basis, including that the Respondents could make a written reply to the answering of written submissions on behalf of the Responsible Authority. We now have a written submission dated 13 August 2003 on behalf of the Respondents, and answering written submission on behalf of the Responsible Authority dated 4 September 2003 and a written reply of the Respondents dated 15 September 2003. On the basis of the arrangements mentioned above, we determine this application for costs on the papers, and without a hearing.
The power of the Tribunal to make an order for costs is found in s.109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). Sub-section (1) thereof lays down the basic rule as to costs in relation to proceedings before the Tribunal. That rule is that each party is to bear its own costs. This is, of course, quite a different rule to that normally applying to court proceedings where costs are said to "follow the event", unless there is reason to the contrary.
Before the Tribunal, each party must bear its own costs, unless there is reason to the contrary. The only reason to the contrary is that provided for in subs.(2) of s.109. It says:
"(2) at any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in the proceeding."
This provision is reconciled with the rule in subs.(1) by subs.(3) which provides that the Tribunal may only make an order under subs.(2) if it is satisfied that it is fair to do so having regard to various criteria. We bear in mind that these various criteria or considerations are not rules in themselves. They are matters to be considered and weighed, if necessary, in coming to a conclusion as to whether it is fair, in terms of subs.(3), to make an order for costs in accordance with subs.(2).
The considerations in subs.(3) are found in paragraphs (a) to (e) thereof. There are a number of specific considerations, but they conclude with a final paragraph (e) which is in more general terms. These paragraphs read:
"(a) whether a party has conducted in a proceeding in a way that unnecessarily disadvantages 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 claim 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."
We consider it relevant in this context to bear in mind that the Mornington Peninsula Shire Council, in bringing this enforcement application, was not only the Applicant, but also the Responsible Authority in relation to the Mornington Peninsula Planning Scheme. It therefore had certain public duties cast on it pursuant to s.14 of the Planning and Environment Act 1987 (PE Act). That section sets out duties of a Responsible Authority, so far as relevant, in the following terms:
(a) to administer and enforce the planning scheme; and
(b) to enforce any enforcement order or interim enforcement order relating to the land covered by a planning scheme for which it is the responsible authority; and
(c) to implement the objectives of the planning scheme; and
(d) to comply with this Act and the planning scheme; ......"
We are satisfied that the Responsible Authority, at the time it commenced and when it maintained this application, had sufficient information and evidence to warrant it in taking action, pursuant to its duty under s.14 PE Act, in relation to the apparent contraventions of the planning scheme that had been or were being committed or threatened by the Respondents. It had a duty to take action, at least the extent of satisfying itself that it had discharged its duty, and it had a discretion as to what action it should take. Ultimately, it would be at fault, and could have proceedings brought against it, if it failed to discharge its duties under s.14 PE Act.
The Respondents, in support of their application for costs, have drawn attention to s.109(3)(d) VCAT Act which refers to the nature and complexity of proceeding. The proceeding was, of course, an application for an enforcement order. That can be said to be the nature of the proceeding, although the nature and complexity of such applications vary considerably.
It is true that this Tribunal, and its predecessor, the Administrative Appeals Tribunal, (AAT) has taken a somewhat different attitude to making orders for costs in relation to enforcement orders, as compared with situation in relation to merits reviews (or appeals) in relation to planning permit applications. The AAT was empowered to make orders for costs under s.58 of the Planning Appeals Act 1980 and or s.50 of the Administrative Appeals Tribunal Act 1984. Those provisions were similar to s.109 VCAT Act in that they laid down that the ordinary rule before the AAT was that parties should pay their own costs, and also in that they empowered the AAT to make such order for costs as it thought just if it was of the opinion that, in a particular case, the circumstances justified it in doing so. Those previously applicable sections did not contain a list of considerations like those set out in paragraphs (a) to (e) of s.109(3). Nevertheless, the decisions of the AAT to make or refuse to make such orders were probably substantially in accordance with decisions that might have been made if s.109 VCAT Act had applied in place of those earlier sections.
We have mentioned that a somewhat different approach has traditionally been taken by this Tribunal and the AAT in relation to making orders for costs on enforcement proceedings. That does not mean that the general rule that parties should pay their own costs was ignored. On the contrary, but the Tribunal has been more ready to make orders against Respondents with no credible defence who are more or less forced responsible authorities or other applicants to take enforcement proceedings against them by defying the requirements of the planning laws and ignoring requests, advice and or threats of proceedings where responsible authorities or others have unsuccessfully sought compliance by measure short of commencing proceedings. The decision of the AAT in City of Sunshine v. Cima [1989] 2 AATR 313 is an early decision of the AAT where this approach was laid down and followed. The view was taken in that case that it was hard to see why the rate payers of the City of Sunshine should bear the cost of taking proceedings more or less forced on the municipality by the failure and refusal of the Respondent to comply with the law when asked and advised to do so, and when threatened with proceedings.
It is also true that this Tribunal and the AAT has taken a stricter view in relation to the need to prove an enforcement case, and normally requiring evidence to be given on oath in relation to contentious facts, as compared with planning appeals or planning reviews where there is often no contention as to facts. An enforcement order can have serious consequences, and hearing of such an application can be more like a trial of facts than such appeals or reviews. That is the reason for taking a stricter view procedurally, but it is not necessarily so relevant as to questions of costs. If the decision of the Tribunal in Hobsons Bay CC v. Haouli [2001] 7 VPR 249 at 254, cited in the submissions on behalf of the Respondents is thought to justify different view in relation to costs to what we have described as the traditional view as seen in C_ima's_ case, see also City of Traralgon v. Sella Ira Pty Ltd (unreported, P88/0616 but quoted in Svanosio v. Colwell [1989] 2 AATR 26 at 31) then we prefer what we have described as the traditional view.
We say "if" because we have no quarrel with the quotation from Haouli's case set out in the written submission on behalf of the Respondents. It contains a useful description and contrast of the characteristics of many enforcement hearings compared with planning appeals and reviews in relation to administrative decisions on the planning merits of permit applications. It draws the contrasts and points to the procedural differences, without saying that these differences are relevant to the question of costs or suggesting that the departure from the traditional view as to costs would be justified. We say this on the basis of the quotation set out in the Respondents' submissions. We assume that if the reasons in Haouli's case went on to relate to the quotation to the question of costs, the submissions would say so.
In considering the nature and complexity of the proceeding in accordance with s.109(3)(d), we do not accept that it is necessarily a consideration in favour of making an order for costs that the case was a contested one, or not an ordinary "run of the mill" enforcement proceeding (whatever that might be) or a complex one. On the contrary, it has been recognised that the existence of a genuine issue to be tried is a consideration against the making of a costs order, particularly if it should be a test case where a new issue is to be determined (although a test case element has not been considered to be necessary in justifying a refusal to make a costs order).
This was a case of some complexity and some novelty, in relation to the helicopter and helipad provisions in Clause 52.15 of the planning scheme and their application to the site used as a dwelling. The case had further complexity by the circumstance that the present land in relation to which the case was brought involves two allotments, technically in different ownership, and acquired at different times. There was certainly a contentious issue in relation to whether existing use rights applied, and as to whether the factual situation to justify a defence based on existing use provisions could be proved, and proved to the necessary degree.
The Responsible Authority was not merely in a position to guess or assess these matters. It would not be justified in merely abandoning its application because allegations or assertions were made prior to the hearing, without such allegations or assertions being tested at the hearing, unless it formed the view that it had no real case.
We agree that the Respondents had occasion to resist the application, and to be represented in doing so. That, in itself, does not take the case out of the ordinary, or necessarily justify the making of an order for costs. It is asserted that Mr. Lindsay Fox's reputation was at stake in as much as he gave evidence and may or may not have been believed. We do not think that this circumstance is relevant to the question of costs.
We are unable to agree that there was no reasonable dispute or reasonable basis for dispute. We do not agree that the Applicant/Responsible Authority knew or ought to have known that the Respondents enjoyed existing use rights, or that it should have abandoned its application on that basis without the issue as to existence of such rights and their extent having been tried.
The fact that the Respondents may have had a letter written asserting such rights and threatening to make an application for costs has its relevance but does not really alter this circumstance.
In the circumstances, and on the basis of the submission of the Respondents, without regard to the answering submission of the Responsible Authority or the reply, we are not willing to make an order for costs in this case. We are not satisfied that it is fair to do so, having regard to the considerations in s.109(3), or that there is justification pursuant to that section for departing from the ordinary rule that the parties must bear their own costs.
It is therefore not necessary to deal in detail with the answering submission of the Responsible Authority. We note the claim made therein that the Responsible Authority did not fail to comply with orders and directions of the Tribunal; or fail to comply with the Act, the regulations, the rules or an enabling enactment; did not cause an adjournment or ask for one; nor attempted to deceive a party or the Tribunal; did not vexatiously conduct the proceeding and did not unreasonably prolong the time taken to complete the proceeding. These assertions of the Responsible Authority are generally justified. It also complains that the basis of the alleged existing use rights defence were not particularised, despite correspondence seeking information, until a late stage, and then only by means of providing witness statements. Apparently the representatives of the Responsible Authority were satisfied with such witness statements, although we should not be taken as agreeing that such statements are a satisfactory form of particulars. These circumstances detract from the assertions that the Responsible Authority knew or ought to have known that the Respondents had a good defence and had timely notice of its particulars.
In our view the relative strengths of the claims and the nature and complexity of the proceedings go against the making an order for costs, and it is certainly not true that the case of the Responsible Authority had not tenable basis in fact or law.
There are no other matters of which we are aware that would persuade us in favour of making an order for costs.
__________________________ _________________
Mornington Peninsula Shire Council
Fox [2003] VCAT 1524
Application for costs by the Respondents refused; each party to bear their own costs.