An application for costs before the Tribunal therefore faces a relatively high hurdle if it is to succeed.

1. BBC has couched its application primarily by reference to the matters in s 109(3)(b),(c),(d) & (e) of the Victorian Civil and Administrative Tribunal Act 1998. I agree that the matters in s 109(3)(a) would not justify an award of costs in this proceeding. There has been no conduct by unChain St Kilda in the proceeding (such as a failure to comply with orders or the Act) that has materially or unnecessarily disadvantaged BBC.
2. For the purposes of s 109(3)(b), I do not consider that unChain St Kilda unreasonably prolonged the time taken to complete the hearing. The hearing date was fixed, in part, to accommodate the joinder of BBC as a party and its request for further particulars, and was not delayed by unChain St Kilda. The hearing itself occupied only 2½ days. Within the hearing, as applicant and first to present, unChain St Kilda took the Tribunal through extensive background material and documents necessary to understand the context of its application. This background would have been required whether the applicant then pursued one or several grounds. Following this background, the actual hearing of argument on the five grounds for declaration was relatively concise. Whilst some grounds were manifestly weaker than others, I doubt that the hearing would have been completed much more quickly or efficiently if the weaker grounds were not pursued.
3. For the purposes of s 109(3)(c), I agree with BBC that the application for declarations was comprehensively dismissed. However, as has been indicated in other decisions on costs, the fact that the Tribunal is (after hearing and analysis) able to reach a firm or comprehensive conclusion does not mean, of itself, that the unsuccessful party's case had no tenable basis in fact or law such that costs should be awarded against it. 'Untenable' means more than 'weak', and an award of costs should not ordinarily be made against an unsuccessful party just because it lost a relatively weak case. I am not convinced that, prior to the hearing and without the benefit of hindsight, unChain St Kilda and its advisers would have considered its application for declarations to be a hopeless cause. Nor do I consider that unChain St Kilda engaged in bringing the application frivolously or vexatiously on such a basis.
4. As I noted in my decision, the St Kilda Triangle project had attracted a high level of publicity and controversy, particularly in relation to the commercial component of the project intended to cross-subsidise planning outcomes for the site, and whether this was properly contemplated and authorised by the Port Phillip Planning Scheme. The planning scheme contained provisions relevant to the project and development plan approval that comprise 'weasel words' uncertain of specific outcome, open to different interpretations, or capable of being weighted or balanced in different ways. Under the planning scheme, the St Kilda Triangle Development Plan approval process represented the last opportunity for significant community input, with subsequent permit applications being largely exempt from third party notice and appeal rights. Alleged irregularities with the Council approval process had been aired publicly. Within this context, the applicant comprised an incorporated group of ordinary citizens seeking to protect their rights, and seeking to ensure that the development plan approval process had been validly undertaken in circumstances where there were at least some grounds for believing otherwise. The grounds for seeking the declarations were carefully crafted and argued by counsel within established administrative law principles. I do not consider it fair in these circumstances to award costs primarily by reference to the relative strengths of the claims made by each party. As indicated, ordinary citizens should ordinarily be able to come before the Tribunal without undue fear of a costs award if unsuccessful - unless it can be established that their case was a hopeless cause, or based on a manifestly untenable premise, that unfairly or unreasonably caused another party to incur costs. In this case, I consider that unChain St Kilda's application for declarations was weak, but not so weak as to be considered hopeless, untenable or unarguable.
5. For the purposes of s 109(3)(d), similar comments prevail to those above in relation to the nature of the proceeding. In terms of its complexity, I agree with unChain St Kilda that the issues required considerable analysis before being dismissed by the Tribunal. All three parties were represented, and the case was argued by reference to numerous administrative law authorities. (The complexity contended by BBC also perhaps reinforces the view that the proceeding was not wholly untenable). As I have stated on other occasions, the issue of complexity also potentially 'cuts both ways' in relation to costs. Complexity will not always be a factor in favour of a costs award - the novelty or public interest in the issues ventilated before the Tribunal may sometimes militate against an award of costs despite the relative complexity of the proceeding.
6. Here, I do not consider that the fact that this proceeding comprised a declaration proceeding requiring a hearing before a presidential member, raising complex issues, and that was conducted by senior counsel with a 'court-like' character, is sufficient to justify a costs award. In my view, these factors would still, by themselves, be rarely sufficient to depart from the general rule that each party bear its own costs at VCAT. I agree with BBC that the application by unChain St Kilda may not necessarily be characterised as 'public interest' litigation in the strict sense. However, it was still of a broadly public character and brought in good faith by an incorporated not-for-profit community orgainsation comprising a large number of ordinary citizens challenging a local planning decision of some public controversy. It was not commercially or privately motivated. I do not consider it fair in these circumstances to award costs against unChain St Kilda.
7. For the purposes of s 109(3)(e), I am entitled to have regard to any other matter I consider relevant. Under this ground, BBC's written submission only raised issues falling under s 109(3)(b). I have already dealt with these.
8. UnChain St Kilda had also raised an argument that costs should not be awarded in favour of BBC because the application for declarations had initially been made against the Council alone and was not directed against BBC. The Council had competently defended the application, and BBC had chosen at its own behest to be joined as a party and to participate in the proceeding. Whilst this is conceivably a factor that might militate in some cases against an award of costs, I have given it little weight in my decision on costs in this proceeding. I agree with BBC that, given the nature of the proceeding and the potential impact on its interests, it was reasonable for BBC to seek joinder and to participate as a party in the hearing. The fact that BBC's joinder and participation was at is own behest should not be a bar to a costs award in the circumstances of this case, if the award of costs is otherwise justified. It is for the other reasons set out above that I have decided not to award costs in favour of BBC.
9. I endorse the views of other Tribunal members in other cases (including those referred to in unChain St Kilda's written submission) where it has been stated that the success of the Planning List at VCAT relies on its accessibility, and the ability of ordinary citizens to bring high level planning disputes before the Tribunal without undue fear of a costs award against them if they lose. I do not consider that the matters raised by BBC under s 109(3)(b),(c),(d) & (e) of the Victorian Civil and Administrative Tribunal Act 1998, when considered 'on balance' in the circumstances of this case, justify an award of costs. Nor do I consider it would be fair to award costs in these circumstances.
10. It follows that the costs application is refused, and each party should bear its own costs.