Victorian Civil and Administrative Tribunal|2007-01-18

Stewart v Sth Gippsland SC [2007] VCAT 108 (18 January 2007)

Stewart v Sth Gippsland SC [2007] VCAT 108

1 With respect to the request by the Permit Applicant that Tomkinson Consultants be paid its professional fee in this matter of $1,716 including GST, the Tribunal grants this costs claim, and orders that the Responsible Authority pay the Permit Applicant the $1,716 within 30 days of the date of this costs determination.

2 In relation to the request by the Permit Applicant that his own costs of $6,856.19 be paid by the Responsible Authority, this costs claim is rejected, other than the Responsible Authority having to reimburse the Permit Applicant the Tribunal lodging fee of $276. The Responsible Authority must pay the Permit Applicant this $276 within 30 days of the date of this costs determination.

1 To avoid duplication, I refer to my earlier decision in this matter dated 28 November 2006.

2 By way of background, the earlier decision related to a hearing before me on 27 November 2006 which was a conditions appeal relating to Condition 2 in the planning permit No. 2006/4 (as amended) which Council issued on 12 September 2006. This permit allows the use and development of the land at 3 Church Street, Leongatha ("subject land") for the use and development of an office building and creation of a carriageway and drainage easement subject to various conditions.

3 The contentious Condition 2 essentially required the permit holder to pay a parking contribution to Council of $11,000 per car parking space, for a further two car parking spaces.

4 At the hearing on 27 November 2006 I heard submissions from the parties. Ms Dorian (Council planner) essentially ran a merits argument, that it is fair and reasonable that the $11,000 per car space parking contribution be paid with particular reliance upon the relevant local policy set out at cl.22.06 of the planning scheme.

5 In response, Ms Slechten on behalf of the permit holder argued that even if the requested car parking contribution was reasonable on the planning merits (which she denied), such a permit condition is in any case invalid due to the updated requirements of s.62(5) and (6) of the Planning and Environment Act 1987. In other words, given that recent statutory amendments to s.62(5) and (6) have tightened up the process whereby councils can require cash contributions from permit applicants, it was argued that this "old style permit condition" is now unlawful.

6 For the reasons set out at paragraph 11 to 17 of my decision of 28 November 2006, I essentially endorsed the submissions put forward by Ms Slechten, and held that the contentious Condition 2 is invalid.

7 In relation to costs, paragraph 18 of my decision indicated that costs were reserved, and I set out the process whereby the Applicant had the opportunity to put forward submissions why costs should be paid, and Council then had a chance to respond.

8 Since the issuing of my decision, I received a letter dated 14 December 2006 from Tomkinson Consultants on behalf of the Permit Applicant. There was also several attachments to this 14 December 2006 letter, being:

•

a conventional professional invoice from Tomkinson Consultants in relation to their work for the relevant planning appeal, with the relevant costs here being $1,716 including GST; and

•

a summary document plus a more detailed breakdown of costs, in relation those costs being claimed by the appellant Mr Cameron Stewart. The total costs being claimed by Mr Stewart are $6,856.19, with the more detailed tax invoice indicating the hours of work done in relation to various aspects of the appeal, and the sub-total of the various amounts he is claiming with respect to the various components of his work.

9 I subsequently received a letter dated 9 January 2007 from Council. The first part of this letter indicates that Council does not dispute that it is fair and reasonable for Council to pay the $1,716 costs of Tomkinson Consultants.

10 However, in relation to the $6,856.19 claim by Mr Stewart, Council's letter of 9 January 2007 indicates that Council objects to this claim and regards it as being unreasonable, apart from Council reimbursing Mr Stewart the $276 VCAT application fee. In terms of the reasons why Council disputes the merits of the $6,856.19 costs claim by Mr Stewart, I have set out below the relevant paragraphs from the Council letter.

a) Mr Stewart is a private individual representing himself, and is not a planning professional or similar. As such a claim of $120 per hour cannot be justified. Mr Stewart as a private individual does not have any overheads that would warrant such a charge, and could not be considered a 'consultant' for planning purposes as purported.

b) Mr Stewart has claimed for costs that are not pivotal to the merits of the case and have been undertaken of his own volition. I refer to car parking surveys, investigation of previous planning permits and any associated costs. Council also notes that the car parking survey was undertaken as part of Mr Stewart's preparation for the initial planning permit application, and was not specifically undertaken in order to support his case before the Tribunal.

c) Mr Stewart has claimed a disproportionally large number of hours to investigate the relevant planning provisions. As an example, Mr Stewart has suggested that it took 4 hours to review the State Planning Policy Framework, and 8 hours to study the Planning and Environment Act.

One would assume that Mr Stewart's status as a non-planning professional would be the reason that he has employed the services of Tomkinson Pty Ltd. Council is not responsible for assisting Mr Stewart to expand his own knowledge of the planning system and associated legislation.

d) Mr Stewart has claimed for "meetings with planner". We are unsure as to whether this is referring to meetings with Tomkinson Pty Ltd or with Council staff. We presume the latter.

We confirm that Council staff have met with Mr Stewart on only a number of occasions for very brief periods at his request (such as when Mr Stewart sought copies of previous planning permits, for which he has nonetheless already claimed separately.) Five hours is considered a gross misstatement and we dispute this figure entirely.

11 The Tribunal's discretion here to award costs is governed by s.109 of the Victorian Civil and Administrative Tribunal Act 1998 which states as follows:

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(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.

12 It is convenient that I now separately deal with the costs claim by Tomkinson Consultants compared to the costs claimed by Mr Stewart himself, as there are different issues involved.

13 In relation to the $1,716 costs claimed by Tomkinson Consultants, Council has conceded that it is fair and reasonable that these costs be paid. In addition, my own view is that it is fair and reasonable in all the circumstances that Council pay these costs, having regard to the relevant criteria under Section 109 of the VCAT Act 1998. Accordingly, I have made orders above that Council pay these costs within 30 days.

14 On the one hand, it is fair to say that Council's conduct in imposing the contentious Condition 2 of the planning permit, and then contesting the subsequent appeal right through to the hearing on 27 November 2006 reflected poorly on Council. To avoid duplication, I refer here to my comments in the second and third bullet points in paragraph 17 of my decision of 27 November 2006, where I criticised certain aspects of Council's handling of this matter.

15 On the other hand, Council has raised what I consider to be a number of legitimate objections to the $6,856.19 being claimed by Mr Stewart himself. In particular, Council has made the simple point that these costs involve Mr Stewart's time as a private individual representing himself, rather than being actual "out of pocket" expenses relating to any professional consultants (ie. other than Tomkinson Consultants) which Mr Stewart had engaged for the purposes of the appeal.

16 In terms of the findings of the Tribunal here, I agree with Council that (apart from one or two exceptional situations, which do not arise in the circumstances here), the Tribunal has taken a consistent position that it would be inappropriate and reasonable for the Tribunal to grant a costs claim where the costs being claimed relate to the private time of a private individual pursuing an appeal before the Tribunal. The obvious dilemma here is that it is very arbitrary as to what value should be put upon a private individual's time.

17 In addition, I consider it to be a fact of life that for the Tribunal to operate in a workable fashion, any person who is a party to an appeal before the Tribunal is expected to invest potentially a significant amount of time into running their case (despite this presumably often being inconvenient and/or annoying for each person involved). If the Tribunal started making costs orders to persons for their individual time, the obvious risk is that this would encourage speculative litigation in a manner that would be a bad planning and community outcome.

18 In summary then, apart from any debate about whether the actual quantum of costs being claimed by Mr Stewart are excessive (which is also a "live issue"), I consider that at a more fundamental level, there is no basis here for the Tribunal to award costs to Mr Stewart where he is a private individual and the costs here claiming (ie. $120 per hour) relate to his own time and cannot be assessed and justified in the same way as actual "out of pocket expenses" relating to services carried out by any professional consultant. However, as has been volunteered by Council, I agree that it is fair and reasonable that Council reimburse Mr Stewart the $276 Tribunal lodging fee which he had to pay at an earlier stage.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Stewart v Sth Gippsland SC [2007] VCAT 108

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Stewart v Sth Gippsland SC [2007] VCAT 108 (18 January 2007)

Parties

Legislation Cited (2)