1. The starting point for considering an application for an award of costs is section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), which provides as follows:

109 Power to award costs

(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 subsection (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);

(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 claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(d) the nature and complexity of the proceeding;

(e) any other matter the Tribunal considers relevant

1. Section 109(1) of the VCAT Act contains the presumption that each party will bear its own costs. However, section 109(2) 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, and section 109(3) sets out the matters to which the Tribunal is to have regard in making that decision.
2. There is a long line of Tribunal cases which state that the function of a costs order is not to punish the unsuccessful party. Rather, the purpose of such an order is to compensate a party who has incurred costs in circumstances where it is unfair for them to be liable for such costs. It is also generally accepted that an order for costs may be more readily made in the context of an application for an enforcement order, where the council is undertaking its statutory duty to administer and enforce the requirements of the planning scheme.

1. The above excerpt from the council submissions submits that the council was unable to achieve compliance without applying to the Tribunal for an enforcement order. However, in the following paragraphs, the council provided information about an email sent to the respondents on the same day as filing the application which asked the respondents to advise whether they are willing to remove the tree without Tribunal intervention and then an email two days later when the first respondent advised the council that the tree had already been scheduled for removal in the immediate future:

1. The council then stated, at paragraph 8, that the background events are outlined in the council's statement of grounds and timeline and 'clearly, and unequivocally, establish that the Respondents' behaviour was entirely unreasonable, misconceived and resulted in the Council incurring unnecessary legal costs'.
2. The Tribunal may order that a party pay the costs of another party only if it is satisfied that it is fair to do so, having regard to several factors.
3. Many of these factors relate to conduct of parties throughout a proceeding. They are not relevant in this case given that the sole fixture was a practice day hearing and the first and second respondents have consistently complied with Tribunal directions since the initiating order was made.
4. The council relies on section 109(3)(c), (d) and (e) for its costs application, being 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; the nature and complexity of the proceeding; and any other matter the Tribunal considers relevant.
5. The council submitted that its case was strong and meritorious and that once the application was filed the respondents took active steps to remove the tree, consistent with an understanding that the property was not in compliance with the permit. The council also focussed on, in its view, the 'defiant attitude of the respondents', submitting that without the commencement of enforcement proceedings the tree would not have been removed.
6. In this situation, I accept that the council was undertaking its statutory duty in attempting to effect removal of a tree that was potentially dangerous.
7. However, in seeking costs from the respondents and submitting that the tree would not have been removed without the filing of the application to the Tribunal, I am concerned that the council has not included all of the relevant information and documentation and has not fairly explained the entire context of the matter. Additional documents and information were provided by the first and second respondents, both in response to the council submissions and prior to the practice day hearing, before the council had prepared any submissions.
8. It is clear from that documentation that it was the first and second respondents who first brought this matter to the attention of the council prior to purchasing the property in 2022. It is also clear that it was the first and second respondents who brought this matter to the attention of the council once again on 3 February 2025 when a dead limb of the tree fell on to their fence and driveway, as set out in the email below.

1. However, the council, in its submissions and documentation, began its timeline from 5 February 2025, when the council responded to the first respondent, confirming that its planning investigations officer would attend the site with the council's arborist to undertake an external inspection of the tree. The council did not include the 3 February 2025 correspondence or refer, in its submissions, to any of the background information of the first and second respondents' interactions with the council in 2022, which provided the context for the approach taken by the first and second respondents.
2. The council immediately treated the matter as an enforcement matter and issued a notice to comply, citing breaches of planning permit conditions. it was clear from the email exchanges that the respondents did not fully understand the scope and context of what the council was seeking in terms of permit amendments and tree removal and that they remained of the view that the council, due to its earlier confirmation in 2022 that the tree was healthy, ought to take some responsibility for the removal.
3. As set out in the introduction to this decision, on 15 May 2025, when the council was advised that the tree was scheduled for removal on 23 May 2025, the Tribunal had not yet processed the application for enforcement order and was awaiting additional information from the council.
4. The council's email dated 13 May 2025 included the following question - 'Can you please advise me if you are willing to remove the tree without the Tribunal's intervention'.
5. The first and second respondents had already engaged ArborCo to remove the tree prior to the filing of the enforcement order application and confirmed that with the council promptly after receiving the council's email dated 13 May 2025.
6. On 16 May 2025, in response to queries from the council, the owner's corporation also confirmed that the tree removal was scheduled for 23 May 2025.
7. On 13 May 2025, the council, despite its email asking if the respondents were willing to remove the tree without the Tribunal's intervention, had already filed the application with the Tribunal. However, on receiving the affirmative response from the respondents, the council did not take steps to pause the processing of the application for enforcement order or withdraw the application, but actively incurred extra costs in relation to the application by continuing to provide the information requested by the Tribunal.
8. While it is the case that there was delay on the part of the respondents in removing the tree and there was extensive correspondence between the parties in the lead up to the Tribunal application, the documentation does not establish that the tree would not have been removed without the application for enforcement order having been filed with the Tribunal. The documentation establishes that the removal had been arranged prior to the filing of the application and was carried out prior to the date by which the respondents were required to be notified of the application.
9. In those circumstances, and having regard to the council's correspondence asking if the tree would be removed without requiring Tribunal intervention, it is not fair to award costs to the council.
10. Once the application was filed, the first and second respondents engaged appropriately with the Tribunal and filed much of the relevant documentation in advance of the practice day hearing in an effort to avoid further costs being incurred. Despite this, the council sought a costs hearing and engaged counsel to prepare submissions.
11. There is much correspondence in the lead up to the filing of the application that I have not included in these reasons. They illustrate the concerns of the respondents with respect to the danger of the tree remaining, but also the cooperation sought from the council in achieving a solution, given the advice provided by the council arborist in 2022 that was subsequently proven to be flawed.
12. I appreciate that the tree is ultimately the responsibility of the land owner and that the council acted as it did in an effort to reach a safe outcome and achieve compliance with the planning permit.
13. I do not, however, agree that in the context of the communications between the parties and, particularly, the wording of the council's email of 13 May 2025, the application was required to be filed in order to effect removal of the tree.
14. As such, I do not think it is fair, having regard to section 109(3) of the VCAT Act, to award costs of the Tribunal proceeding to be paid by the respondents.
15. I also note that the invoices provided to the Tribunal did not specify time spent on tasks, relevant dates or rates applied, but rather provided overall costs. Where a party is seeking costs, it must fully itemise the invoices so that the Tribunal can consider how much time was spent on each item, the date of each item and the cost of each item. It is common that in awarding costs the Tribunal does not award the full amount requested and if the application does not adequately set out the fee details, the Tribunal will not be able to determine an appropriate apportionment. If the Tribunal had considered an award of costs in this matter, the documents filed would not have provided sufficient information by which to assess the costs sought.

1. The council filed the following submissions concerning reimbursement of fees:

1. This is not an application which resulted in an enforcement order being made. However, the application was withdrawn following the removal of the tree, achieving the aims of the application. As set out earlier in this decision, I am not persuaded that the application was the factor that led to the tree being removed.
2. In any case, I note that in City of Port Phillip v Brendan Rothschild Legal Group[2], in a similar scenario of an application being withdrawn, the Tribunal, comprised of Deputy President Bisucci, determined that the withdrawal of a proceeding is not synonymous with a party having 'successfully succeeded' as required by section 115C of the VCAT Act, as follows:

1. Consistent with the reasoning provided in that decision, I am not satisfied that the council is entitled to reimbursement of its application fee pursuant to section 115B and 115C of the VCAT Act.

1. For the reasons provided, the application for costs and for reimbursement of fees is refused.

[1] The submissions of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] [2023] VCAT 1145.