Application for costs under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

1. This matter involves an application pursuant to section 149(1)(a) of the Planning and Environment Act 1987 (Vic) ('Act').
2. Daniel Terrill ('applicant') lodged plans with the Merri-bek City Council ('council') to satisfy condition 1 of the permit MPS/2025/653 ('permit'). The plans lodged detailed an increase in the size of the approved car port from 6 metres x 2.4 metres to 7.5 metres x 2.7 metres. Council decided that the plans were not generally in accordance with condition 1.
3. At the commencement of the hearing, I discussed the consent position with the parties. Council in their submission for the hearing requested that the Tribunal issue an order to amend the application to include an amendment to the permit to allow for the car port of the increased length and size.
4. The applicant's submission went to the merits of the car port arguing that the increased size is generally in accordance with the permit issued MPS/2025/653.
5. Given that the council had requested that the increased size of the car port is allowed and the applicant had previously signed a consent order request, I advised the parties that if condition 1 is amended to reflect the details of the car port, I would amend condition 1 of the permit and issue, by consent, approval for the increased car port size. This was accepted by both parties.
6. Therefore condition 1 is amended to reflect the changed car port size and this order is made at the request of the parties and with their consent.
7. The Tribunal regards the consent of the responsible authority to be a confirmation to the Tribunal that:
   • the responsible authority is of the opinion that the issue of an amended permit in the form agreed by the parties as described in the agreed orders is appropriate having regard to the matters it is required to consider under section 60 of the Planning and Environment Act 1987 (Vic) ('PE Act') including the balanced application of the strategies and policies of the Merri-bek Planning Scheme ('planning scheme') and is otherwise in conformity with the provisions of the planning scheme and the PE Act;
   • the proposed orders will not result in any change to the proposal which would materially affect any person other than the parties to the proceeding.
   • Based on the information available to the Tribunal, it is appropriate to give effect to the settlement reached by the parties pursuant to section 93(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

1. An application for costs was lodged by the applicant. The applicant seeks an order directing the council to pay the applicant's costs in the sum of $1,400.30, constituting the total of the VCAT application fee of $988.40 and hearing fees $411.90. To support the application, the applicant submitted that it was the council's conduct and the time taken for council to make a decision that led to the applicant having to lodge the application at VCAT.
2. The applicant's submission contained a detailed reference to the timing and process of the request to endorse the plans at council. I will not repeat these submissions here but in addressing section 109(3)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the applicant submitted:

1. In summary, the applicant contends that it would be fair to award costs against council because of the delay and time taken by council for a decision.
2. In response, council submitted that costs should not be awarded. To support this, council submitted that the applicant elected to pursue costs rather than achieving a consented outcome at the hearing on 23 February 2026. Council further submitted that it had yet to make a decision on 1 December 2025 being the date when the application for review was lodged, which was 48 days from lodgement for the endorsement of plans with council. Council considered that this is not an excessive timeframe given the plans lodged where not considered to be 'generally in accordance with' the application plans, the application was not lodged correctly (as an amendment) and therefore the delays were outside of council's control. Council acknowledged the prescribed timeframe of 30 days[2] to consider a request to endorse plans, but maintains the time taken is considered acceptable.
3. It has been well established that the relevant statutory provision for costs is to the effect that parties bear their own costs in a proceeding. However, section 109(2) of the VCAT Act provides that the Tribunal may make an order that a party pay all or part of another party's cost if it is satisfied that it is fair to do so, after having regard to the matters in section 109(3) of the VCAT Act. The Tribunal's power is discretionary. Specifically, section 109(3) of the VCAT Act states such an order can only be made if the Tribunal is satisfied that it is fair to do so having regard to a range of stated criteria:

(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. The Tribunal must consider section 109 of the VCAT Act in deciding whether parties should bear their own costs in the proceeding or whether, having regard to the matters set out in section 109(3) of the VCAT Act, it is fair to make an order that one party pay all or a specified part of the costs of another party in a proceeding. As noted in Moore v Minister for Planning (Costs)[3], Deputy President Bisucci made the observation:

[8] There is a long line of Tribunal cases which confirm that an award of costs is not to punish the unsuccessful party but rather to compensate a party who has incurred costs which in the circumstances, would be unfair for that party to be liable for such costs.

1. Overall having regard to sections 109 of the VCAT Act, the Tribunal is not satisfied that it is fair to make an order that council pay the applicant's costs in this proceeding. The Tribunal says this for the following reasons:
   • The application for endorsement of plans to council is not a VicSmart application. The VicSmart process relates only to the original application and is subject to different time frames. The matter is not a particularly complex matter but neither was it straightforward due to the change in the car port size.
   • Whilst a consent position was ultimately agreed between the parties, the plans submitted for endorsement reflected a change to the size of the car port, therefore approval of the plans was not 'automatic' or straightforward. Council formed the view that the plans lodged for endorsement were not 'generally in accordance' with condition 1 of the permit. Procedurally an amendment was required to give effect to the consent position. This amendment request did not occur until the Tribunal hearing.
   • At the time of the original consent request to the Tribunal, a request to amend the permit was not made therefore procedurally the consent could not be considered at that time and the matter proceeded to a hearing.
   • From the time the application for review was lodged at VCAT, there was no time delay. Apart from the consent position request that the Tribunal did not agree to prior to the hearing, the matter progressed to a hearing without delay.
2. For these reasons, the Tribunal refuses to make any order of costs.

[1] The submissions and evidence 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] Regulation 54(c) of the Planning and Environment Regulations 2015 (Vic).

[3] [2024] VCAT 383.