Very often clients who successfully overturn a council planning application decision want to seek compensation from the other party for costs (legal or otherwise) incurred as a result of a VCAT appeal. This article looks at the circumstances under which such a legal case may be pursued where costs can be awarded for a VCAT planning appeal.
Examples of circumstances where a case may be brought and an order for costs may be made include:
- where a matter was brought to VCAT without much merit
- where a matter was brought to VCAT to harass, annoy or distress someone
- where a matter was brought to VCAT without a serious purpose
- where someone has unreasonably prolonged a hearing
- where someone deceived VCAT or others involved in a case
- where the application made is not well supported, such as by fact or law.
Section 109 of the Victorian Civil and Administrative Act 1998 governs VCAT’s power to award costs. The Act states that each party is to bear their own fees and costs in a VCAT planning appeal, or proceeding or hearing which is designed to promote fairness and to minimise the overall costs in tribunal proceedings. In most town planning appeals, following a VCAT decision, parties will cover their own legal or other costs. However, the tribunal do have the power to award costs to be paid by one party to another if they see fit.
To award costs it must be established there was unnecessary disadvantage caused to a party by the conduct of another party during proceedings and subsequent decision. It does not include the reasonable result of a proceeding that is permitted by a person exercising their review rights under the Planning and Environment Act. For there to be an unnecessary disadvantage and cost awarded to a party the conduct of another party must have gone beyond the normal and reasonable bounds of a proceeding.
Under Section 109 of the Victorian Civil and Administrative Act 1998 the Tribunal may make an order to award costs if satisfied that it is fair to do so, having regard to whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—
(a) Whether a party has been responsible for prolonging the time taken to complete the case or proceeding;
- Failing to comply with an order of the Tribunal without excuse;
- Failing to comply with the Act, the regulations, the rules or an enabling enactment;
- Asking for an adjournment as a result of (i) and (ii);
- Causing an adjournment;
- Attempting to deceive another party or the tribunal;
- Vexatiously conducting the proceeding;
(b) Whether a party has been responsible for prolonging the time taken to complete the proceeding;
(c) The relative strengths of the claims made by each if the parties during the case, including whether a party has made a claim that has no tenable basis in fact or law;
(d) The nature and complexity of the proceedings or hearing;
(e) Any other matter the tribunal considers relevant.
If the Tribunal considers that the representative of a party, rather than the party, is responsible for certain conduct during the case such as failure to comply with a Tribunal direction or a VCAT decision, or acts in a way that unnecessarily disadvantages another party, resulting in legal or other costs. The Tribunal may order that the representative in his or her own capacity compensate another party for any fees or costs incurred unnecessarily.
What type of fees or costs can be awarded?
Costs that can be awarded have to be directly incurred due to the proceeding. For building permit, or planning permit or related town planning matters this can include:
- Cost to engage a town planning expert or barrister
- Cost of architect or draft person to amend plans for the appeal
- Cost of an expert witness to appear at the hearing
- Cost in relation to preparing the case
- Cost of travel expenses to attend the proceeding
VCAT cannot award a costs order against a party for costs that are incurred prior to commencing proceedings. Costs can only be awarded from when the application to commence proceedings has been lodged with VCAT and can be awarded at any time. In a VCAT planning appeal, or other VCAT proceding, damages and losses from delaying a development due to a VCAT proceeding or hearing, are not taken into account and will not be awarded.
Typically to commence a VCAT appeal, leave must first be sought from the relevant court that would normally hear such a case which in Victoria would be:
- Court of Appeal (if the decision was from the VCAT President), or;
- Supreme Court of Victoria (if other VCAT members made the decision)
The original VCAT decision lists which party made it.
How much can be awarded?
The Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding and is at their discretion.
If the Tribunal makes an order for costs, the Tribunal—
(a) may fix the amount of costs itself; or
(b) may order that costs be assessed, settled, taxed or reviewed by the Costs Court.
Can I have cost awarded against me?
If you apply to VCAT to review or appeal a planning decision, then you could potentially end up paying the costs of the other party which may involve costs of building permit or planning permit preparation. However, this is very rare and provided that you conduct yourself correctly during the proceeding such as attending when necessary, not hindering the proceedings and following orders from the tribunal then a cost order will not be issued against you. If you are a building permit or planning permit applicant and are appealing a decision against council, you may have cost awarded to you but again this is very rare. Along with conduct that unnecessary disadvantages a proceeding, costs can also be awarded if council improperly handled your planning application. This can include:
- Not processing an application correctly
- Inaccurately or wrongly issuing a permit
- Withholding consent unreasonably
- Not appropriately considering an application
Objectors to a planning permit
If you have objected or would have been entitled to object to the issuing of a permit you can apply to the tribunal to amend or cancel the permit under Section 89 of the Planning and Environment Act. However, it is important to note, substantial detriment and legal cost can be incurred by the building permit or planning permit holder from defending their permit at VCAT. Therefore, costs when appealing a decision, are more likely to be awarded in these cases.
How do I seek costs from another party?
If you are seeking to be awarded costs against another party, you can make an application to VCAT under Section 109 of the Victorian Civil and Administrative Tribunal Act or Section 150 of the Planning and Environment Act. To make an application you will have to clearly state the amount you are seeking and evidence of how the costs were incurred. You will also have to outline under which Section and Subsection of the Planning Act the proceedings were brought along with the reasons the other party’s conduct caused cost to you.