1. On 13 August 2024, Vista Estate applied to the Tribunal to review the notice ('review application').
2. On 5 May 2025, the EPA revoked the notice.
3. On 28 May 2025, the Tribunal gave leave to Vista Estate to withdraw the review application, and it was withdrawn.
4. Vista Estate has applied for an order that the EPA pay its costs under sections 109(2) and 115B(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') ('application').

1. In the application, Vista Estate said it had incurred substantial costs in the review application comprising legal costs, witness costs thrown away, engineering costs to address the notice, and Tribunal application and hearing fees. Vista Estate supported its application with copies of invoices and receipts.
2. Although the applicable scale for an award of costs is the County Court scale,[1] Vista Estates submits:

... costs should be awarded on an indemnity basis having regard to the nature of the allegations (indictable criminal offences), the severity for [Vista Estate] in being able to complete its development and put lots to market ...

1. Vista Estate relies on its written submissions and affidavits of Stefan Fiedler affirmed on 15 August 2024, 20 May 2025 and 16 June 2025, on the affidavit of Jackson Zaal affirmed on 15 August 2024 and on the affidavit of Travis McCarthy affirmed on 14 August 2024.
2. In opposing the costs application, the EPA relies on its written submissions and affidavits affirmed by Mark Palmer on 23 August 2024, by Carolyn Francis on 23 August 2024, Paula Sardinia on 23 August 2024 and an affidavit sworn by John Anthony Tullio on 7 July 2025.
3. These materials are voluminous, comprising about 1,500 pages of text and many photographs and videos.

1. In their written submissions, both Vista Estate and the EPA refer to what they claim are a relevant chronology of events. I will refer to some of the main events as follows.
2. On 11 November 2022, and with the consent of the parties, the Court made an interim order requiring Vista Estate to manage sediment laden water on the land by carrying out water quality monitoring during particular rainfall events and carrying out specified works.
3. On 13 September 2024 the Court varied the interim order removing all previous requirements and requiring Vista Estate comply with plans to be endorsed by Ballarat City Council ('Council') under the planning permit allowing the subdivision and to provide the EPA with a copy of the endorsed plans within 7 days of endorsement ('interim order').
4. On 22 March 2024, the Council endorsed plans titled 'Environmental Management Plan, Construction of sewer, water, roads and drainage for subdivision works at Vista Estate Stage 2A' ('EMP').
5. In early 2024, Vista Estate's engineers installed a clean water diversion drain and a 'level spreader' ('drainage works'). Vista Estate said these works complied with the EMP.
6. On 15 July 2024, after conducting aerial drone surveillance, the EPA claimed that the drainage works were in contravention of its GED under section 25 of the EP Act.
7. On 25 July 2024, an EPA authorised officer observed the drainage works and considered those works did not comply with the EMP and that it was likely sediment-laden water would be discharged from those works into the river.
8. On 12 August 2024, the EPA issued the notice to Vista Estate requiring Vista Estate to prohibit the discharge of surface water runoff from the drainage works and that evening Vista Estate closed the valves of the level spreader preventing drainage from the clean water diversion drain. The EPA succinctly described this as a requirement to 'shut down the pipes'.
9. On 13 August 2024, Vista Estate filed the review application and requested an order to stay the operation of the notice.
10. On 6 September 2024, immediately before the EPA was required to file and serve any expert evidence on which it relied in the Court proceeding, the EPA advised Vista Estate that it intended to amend its statement of claim.
11. On 11 September 2024, the Tribunal stayed the operation of the notice.
12. On 11 November 2024, the Court heard an application by the EPA to amend its statement of claim and, among other matters, to amend the interim order. In summary, the EPA told the Court that:

(a) the drainage works had caused harm or were likely to cause harm to human health or the environment from pollution or waste, and that it issued the notice immediately having regard to the immediacy of the risk and the degree of harm due in part to anticipated heavy spring rains;

(b) Vista Estate had breached the interim order and breached its GED by, among other things, constructing the drainage works; and

(c) amendment of its statement of claim would avoid a multiplicity of proceedings.

1. Vista Estate claimed that the amended statement of claim ('ASOC') would create a multiplicity of proceedings because there was substantive overlap in facts it relied on in the review application.
2. On 26 November 2024, the Court allowed the EPA to file the ASOC and it was filed on 28 November 2024.
3. On 2 May 2025, Vista Estate wrote to the EPA stating that the issues in the notice:

... overlay or significantly overlap with the [parts of the ASOC] and there is a similarity of subject matter between the proceedings in relation to the issue of the [notice] and [the parts of the ASOC]. This is prima facie vexatious and amounts to an abuse of process.

1. On 5 May 2025, the EPA revoked the notice on the basis that it had formed a view that it must be revoked in light of the ASOC and invited Vista Estate to consider withdrawing the review application.
2. On 7 May 2025, Vista Estate asked the EPA to agree to proposed minutes of consent allowing withdrawal and for costs to be paid.
3. The EPA did not respond to the request and Vista Estate paid the fee for the Tribunal hearing scheduled for 26 May 2025.
4. On 26 May 2025, the Tribunal granted Vista Estate leave to withdraw and made procedural orders for a costs application.

1. The 'general rule' in Tribunal proceedings is that each party is to bear its own costs. However, the Tribunal may order that a party pay all or a specified part of another party's costs in a proceeding. The Tribunal must be satisfied that it is fair to do so having regard to a non-exclusive range of matters.[2]
2. The purpose of a costs order is to enable justice to be done and to compensate a party that has incurred costs in circumstances in which it would be unfair to require them to be liable for its costs.

1. Vista Estate alleges that the EPA 'has conducted the proceeding in a way that unnecessarily disadvantaged' Vista Estate by 'vexatiously conducting the proceeding'.[3]
2. A proceeding is conducted in a vexatious manner if it is conducted in a way productive of serious and unjustified trouble or harassment, or if there is conduct which is seriously and unfairly burdensome, prejudicial or damaging'.[4]
3. Vista Estate alleges the EPA has run substantially similar cases in two forums. It also alleges the EPA has had an ulterior purpose of bolstering its Court proceeding by forcing Vista Estate to file expert evidence in the Tribunal proceeding and to have Vista Estate's review application heard before any trial in the Court proceeding.
4. In Country Endeavours Pty Ltd v Casacir Pty Ltd,[5] the Court said that in considering whether the Tribunal proceeding (in that case, an application for an enforcement order under section 114 of the Planning and Environment Act 1987 (Vic)) was brought for an ulterior purpose, the Tribunal could 'look to matters outside the enforcement proceeding itself, including the number and nature of other proceedings brought' to support the objectives of Casacir Pty Ltd.[6]
5. Vista Estate claims it was 'forced to defend' the notice because it 'substantially restricted how the land could be developed'.
6. This claim lacks specificity of the 'restrictions', evidence of those restrictions and why they were 'substantial'. The notice, on its terms, did not prevent continuation of works towards completing the subdivision. Under the Subdivision Act 1988 (Vic), the relevant municipal council determines if subdivision works have been completed and if a plan of subdivision may proceed to registration and issue of new titles. At its highest, the notice may have frustrated completion of the works.
7. In any event, the underlying notion that the issue of the notice was, of itself, evidence of vexatious conduct, because it forced Vista Estate to apply to review the notice, lacks merit.
8. The EPA issued the notice about three months before the Court considered and allowed the ASOC. I draw an inference that the Court considered Vista Estate's claims about the multiplicity of proceedings but went on to allow the ASOC. This inference militates against Vista Estate's claims.
9. Although some facts were similar in both proceedings, there are distinct differences between the proceedings. In the Court proceeding, the EPA is seeking civil penalties and other orders in respect of Vista Estate's past conduct. In the Tribunal proceeding, the EPA was concerned about the risk of future harm ahead of predicted heavy spring rain.
10. The EPA could have brought separate Court proceedings in respect of its allegations in July 2024 but pursued the ASOC to avoid a multiplicity of Court proceedings. The EPA's conduct, as well as the differences in relief sought in the Court and Tribunal proceedings, therefore militates against Vista Estate's claims.
11. Vista Estate's claim that EPA had an 'ulterior purpose' in issuing the notice to force disclosure of its witness evidence ahead of trial in the Court lacks evidence.
12. Vista Estate's claim that EPA had an 'ulterior purpose' in seeking resolution of the Tribunal proceeding ahead of trial in the Court proceedings lacks merit having regard to the fundamental differences between the two proceedings.
13. Vista Estate also claims that, in the Court proceeding, the EPA was found to have lacked diligence and timeliness in prosecuting its case and meeting the Court's deadlines which was unsatisfactory for a government agency.[7]
14. This does not amount to causing Vista Estate 'serious and unjustified trouble' in the Tribunal proceeding, even taking into account the reasons in Country Endeavours Pty Ltd v Casacir Pty Ltd. The review application was not brought by the EPA. There is a lack of evidence that any failure to meet Tribunal deadlines caused Vista Estate such trouble.
15. In conclusion, Vista Estate's claim that the EPA vexatiously conducted the Tribunal proceeding is not made out.

1. As Vista Estate's claims of vexatious conduct are not made out, there is no basis for an award of costs on an indemnity basis. An award on an indemnity basis is only made in exceptional or special circumstances. The EPA's issue of notice was not wrongful and there is no evidence that it was wholly devoid of merit. There is no evidence that the notice included false allegations.
2. Vista Estate seeks reimbursement of the Tribunal application fee and hearing fees associated with a preliminary hearing and day 1 of a final hearing. The first two of these fees were incurred before the ASOC was filed. The day 1 hearing fee was paid when the EPA did not respond in a period of approximately two weeks to Vista Estate's request to consent to an order for the Tribunal to grant leave to withdraw the review application and for Vista Estate's costs to be paid.
3. Although the EPA was too slow in its response to Vista Estate's request to consent to the orders to avoid Vista Estate paying the day 1 hearing fee, the EPA should not be required to reimburse this fee because Vista Estate did not need a consent order. Vista Estate could have sought leave to withdraw the review application and separately and subsequently sought an order for its costs. The Tribunal brought this to Vista Estate's attention on day 1. In other words, the EPA was not responsible for the 'wasted' day 1 hearing fee.
4. Vista Estate claims that the costs of its expert witness in the Tribunal proceeding were wasted, but the evidence is unclear about whether they should be characterised as wasted if the trial in the Court proceeding proceeds. The EPA revoked the notice before the witness' statement was required to be filed and I see from the Tribunal's file that it accordingly was not filed.
5. Vista Estate's claims regarding the engineering costs are not substantiated because it is unclear that all or part of those costs would have been incurred to eliminate or minimise the risks of harm in compliance with its GED in the Court proceeding.

1. For the above reasons, I will refuse Vista Estate's costs application.

[1] Victorian Civil and Administrative Tribunal Rules 2018 r 1.07.

[2] Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') s 109.

[4] 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216 [4].

[5] [2013] VSC 22.

[7] Environment Protection Authority v Vista Estate Pty Ltd [2023] VSC 552 [67].