1. The applicants submit that an award of costs is justified for reasons including:
   • The earlier determination of the Tribunal had already resolved the monitoring process for the septic tank system, with this issue effectively being re-litigated by the responsible authority in the second proceeding by way of its proposed s.173 agreement requirements. In the circumstances, no reasonable Responsible Authority "having fairly considered the matter in light of the October 2007 decision by VCAT, could have maintained the position advanced by Council";
   • In the circumstances, the applicants were "forced" to commence the second proceeding, notwithstanding offers to resolve the disputed section 173 agreement having been made to the Responsible Authority; and
   • The additional monitoring of the system proposed by the responsible authority was found by the Tribunal to be "unnecessary" in its decision in the second proceeding.
2. In essence, the Responsible Authority submits that the ordinary rule that each party bears its own costs should apply, since:

The dispute in the present case is properly characterised as a legitimate difference of opinion between the parties. The fact that the Tribunal preferred the Applicant's view does not diminish the legitimacy of the Respondent's view, nor does it render the Respondent liable to a costs order.

1. It further submits that the substance of the disputed condition proposed by the Responsible Authority - relating to monitoring the ongoing integrity of the reed bed - was not addressed by the Tribunal in its earlier determination.

1. The Tribunal and various courts have reaffirmed the position that the purpose of an award of costs is to compensate a party for expense incurred in conducting a proceeding, rather than to punish the unsuccessful party.[4] Importantly, the underlying requirement in section 109 is that the Tribunal may only award costs if it is satisfied that it is "fair" to do so.
2. In the application before us, we are not satisfied that any of the specified circumstances in section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998 apply directly. In particular, we are conscious that the award of costs is confined to costs incurred in the conduct of the proceeding. We do not regard the conduct of the Responsible Authority in the proceeding once instituted as unnecessarily disadvantaging the applicants. Similarly, we do not consider that the Responsible Authority's case can be described as manifestly untenable (when considered in isolation).
3. However, we agree in principle with the applicants that an award of costs against the responsible authority is justified under section 109(3)(e) of the Victorian Civil and Administrative Tribunal Act 1998 which addresses "any other matter the Tribunal considers relevant" , having regard to the principle of fairness. This requires us to consider the circumstances that led to the commencement of the proceeding in particular.

1. The Tribunal's principal determination provided a comprehensive order with all permit conditions applying to both the use and development of the subject land and the installation and use of a septic tank system. Condition 13 of the use and development permit documented the requirement for a section 173 agreement, while the constituent parts of the system were specified in the septic tank system permit. Monitoring and management conditions for the septic tank system were also included in that septic tank system permit. It was these conditions that were the subject of the principal determination.
2. In its reasons for the principal determination, the Tribunal addressed whether the system was designed to address possible human health and environmental risks to an acceptable level. It found that the system would be acceptable when operated in conjunction within an appropriate management regime. That regime included conditions specificly imposed by the order that were required to be adhered to under a s.173 Agreement, in addition to requirements for fencing and protective signage.
3. The second proceeding as to the s.173 Agreement conditions centred on management requirements for the septic tank system. Having regard to the material accompanying that application, the costs submissions and Responsible Authority's responses we consider that the applicants had little option left but to institute the subsequent proceeding to resolve the content of the section 173 agreement. We make this finding in view of what we agree to have been a re-agitation by the Responsible Authority of issues about the management and reporting regime required for the septic tank system.[5]
4. Having regard to the guidance provided in the Tribunal's earlier determination, we consider that the lodgement of the proceeding and contest of the Responsible Authority's additional requirement were costs that the applicants should not have been required to expend. In the circumstances, where the need for the proceeding was occasioned by the Responsible Authority due to its insistence on requirements above and beyond those already specified by the Tribunal, we propose to make a costs order to reimburse the reasonable costs of the applicants. We accept that we are only empowered to direct the grant of costs for expenses incurred in the lodgement and subsequent conduct of that proceeding. We have therefore not entertained any claim for costs beyond those activities.

1. The applicants claim a total of $11,484.10 for their barrister's[6] and solicitor's[7] fees including disbursements.
2. We do not propose to adopt the Responsible Authority's suggested course of allowing for a taxing of costs on a particular scale. We consider that this would just protract the process and further add to both parties' costs.
3. We therefore propose to fix the amount of costs awarded at $5,250. This is based on the supporting materials provided in the costs claim and allowing what we regard as an appropriate figure for the lodgement of the application, preparation and appearances at the hearing and the preparation of costs submissions.

[1] G & K Springer v Glenelg Shire Council [2007] VCAT 2003.

[2] G & K Spring (sic.) v Glenelg Shire Council [2008] VCAT 2508.

[3] The application was made under section 184 of the Planning and Environment Act 1987.

[4] See, for example, Al-Hakim v Monash University [2000] VCAT 1818, Boek v Australian Casualty and Life Ltd [2002] VCAT 92.

[5] See [2008] VCAT 2508, at [13] to [17] and [19].

[7] Claimed as a total of $4,554.10. This appears to be a claim made on Scale D of the County Court scale.